J. A. Davis Properties, LLC v. Martin Operating Partnership, Lp

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-449

J. A. DAVIS PROPERTIES, LLC

VERSUS

MARTIN OPERATING PARTNERSHIP, LP

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APPLICATION FOR SUPERVISORY WRITS FROM THE
THIRTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF CAMERON, NO. 10-19491
HONORABLE PENELOPE QUINN RICHARD, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

WRIT DENIED.

Glenn L. Langley
Julianna P. Parks
Parker W. Maxwell
Langley, Parks, Horton & Maxwell, LLC
401 Market Street, Ste 1100
Shreveport, LA 71161-0059
(318) 383-6422
COUNSEL FOR DEFENDANT-APPLICANT:
Martin Operating Partnership, LP

W. Thomas Barrett, III
The Barrett Law Firm, Inc.
3401 Ryan St., Suite 307
Lake Charles, LA 70605
(337) 474-7311
COUNSEL FOR DEFENDANT-APPLICANT:
Martin Operating Partnership, LP

William B. Monk
H. Alan McCall
Stephen D. Polito
Kathleen T. Deanda
Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P.
P. O. Box 2900
Lake Charles, LA 70602
(337) 436-9491
COUNSEL FOR PLAINTIFF- RESPONDENT
J. A. Davis Properties, LLC

Jennifer Jones
Jones Law Firm
P. O. Drawer 1550
Cameron, LA 70631
(337) 775-5714
COUNSEL FOR PLAINTIFF-RESPONDENT
J. A. Davis Properties, LLC

PICKETT, Judge.

Defendant-Relator, Martin Operating Partnership, LP, (Martin) seeks a

supervisory writ from the interlocutory judgment of the Thirty-Eighth Judicial

District Court, Parish of Cameron, the Honorable Penelope Q. Richard, presiding,

which denied Martin’s peremptory exception of no cause of action.

STATEMENT OF THE CASE

This matter arises out of an alleged breach of a lease agreement. Martin

leases three tracts of land (the North Yard, the Central Yard, and the South Yard)

adjacent to the ship channel in Cameron Parish from the plaintiff, J. A. Davis

Properties, LLC (Davis). On July 16, 2014, Davis sent a letter to Martin alleging

that Martin had failed to maintain the property as required by the lease, including

failure to maintain bulkheads adjacent to the ship channel. After a series of

correspondence, Davis filed suit on July 14, 2015, for breach of the lease.

Through the course of discovery, 1 Davis learned of documents, which

Martin failed to disclose, allegedly demonstrating Martin’s efforts, over the course

of several years, to avoid or postpone incurring millions of dollars in expenses for

repair to the docks, along with the scheme to avoid or delay disclosure of such

efforts. On February 10, 2017, Davis then filed its First Amended and

Supplemental Petition for Damages Under Lease Agreement, alleging Martin

knowingly engaged in and is attempting to engage in unfair and deceptive

methods, acts, and practices against Davis in violation of the Louisiana Unfair

Trade Practices Act (LUTPA), La.R.S. 51:1401, et seq., namely:

1
This court previously denied Relator’s writ in which it sought review from the trial
court’s denial of its motions for protective order and to quash subpoenas. J.A. Davis Properties,
LLC v. Martin Operating Partnership, LP, an unpublished decision bearing docket number 16-
834 (La.App. 3 Cir. 1/5/17).

• Martin has knowingly engaged in and is attempting to continue to
engage in unfair and deceptive methods, acts, and practices against its
lessor Davis by misleading Davis in numerous untruthful, deceitful,
deceptive, and dishonest communications, trying to avoid or postpone
time sensitive dock and bulkhead repairs estimated to cost
approximately $10 million or more. Upon information and belief,
defendant has also withheld significant information from the
Louisiana Office of Coastal Management, and largely understated the
scope of the repairs needed at the subject docks, when pursuing a
permit application that it later withdrew.

• The element of business competition in Louisiana trade or commerce
is satisfied by the type of lease called into question by this lawsuit.
There are currently pending more than $72 billion in LNG related
projects and other industrial projects either under construction or
planned for construction along this vital asset of the State, the
Calcasieu Ship Channel. The defendant in this lawsuit leases or has
leased many other properties for marine facilities in this area and
elsewhere in Louisiana. This is a commercial lease relationship in
which Martin has been untruthful, deceitful, deceptive, and dishonest
while trying to avoid or postpone time sensitive dock and bulkhead
repairs estimated to cost approximately $10 million or much more.
Because Martin has been closing other marine facilities, Davis is
concerned that these kinds of deceptive and unfair practices are
occurring to the detriment of other Louisiana property owners. . . .

In response, Martin filed a peremptory exception of no cause of action, among

other motions and exceptions,2 arguing the allegations of Davis’s petition fail to

state a cause of action under LUTPA, because the Act does not apply to lease

disputes or simple breach of contract cases. After a hearing, the trial court denied

the exception, explaining in its written reasons:

MARTIN cites to Webb v. Theriot, [97-624 (La.App. Cir. 3
10/29/97),] 704 So.2d 1211 . . . , to assert that the “LUTPA did not
apply to a lease because a lease is not ‘trade’ or ‘commerce’ under the
Act.” . . . In the Webb case, the court stated, “we do not find that the
lease and sublease of the hunting property and camp fall within the
definition of ‘trade’ or ‘commerce’.” The instant case does not
2
In particular, Relator also filed a dilatory exception of vagueness, which the trial court
granted. Davis has since filed a Second Amended and Supplemental Petition for Damages
Under Lease Agreement to address the trial court’s vagueness concerns to which Relator has
filed, on the same day it filed its writ in this court, another peremptory exception of no cause of
action. The hearing on that exception is set for June 5, 2017. Both Relator and Davis cite and
allude to the second amended petition in this application, but because that petition has not been
ruled upon by the trial court, it is not properly before this court and will not be discussed herein.

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involve a hunting lease. This case involves a commercial lease
covering valuable dock space along the Calcasieu Ship Channel.

MARTIN also cites to Shaw Industries, Inc. v. Brett, 884
F.Supp. 1054, 1058 (M.D. La. 1994) to argue that the LUTPA does
not provide alternative remedies for breach of contract claims.
However, in the Shaw case, the court looked at the relationship of the
parties (principal and agent/broker) and the nature of their
disagreement and found it to be more analogous to a breach of
contract dispute than a suit involving unfair and deceptive acts, and
granted summary judgment. In the instant case, the plaintiff has
alleged specific facts regarding defendant’s unfair and deceptive acts.
A practice is unfair when it offends established public policy and
when the practice is unethical, oppressive, unscrupulous or
substantially injurious. A trade practice is deceptive under LUTPA
when it amounts to fraud, deceit, or misrepresentation. Indest-Guidry,
Ltd. v. Key Office Equipment, Inc., [08-599 (La.App. 3 Cir. 11/5/08),]
997 So.2d 796 . . . , citing Mixon v. Iberia Surgical, L.L.C., [06-878
(La.App. 3 Cir. 4/18/07),] 956 So.2d 76 . . . , writ denied, [07-1050
(La. 8/31/07),] 962 So.2d 438 . . . . Davis has alleged sufficient facts,
that if true, constitute unfair and deceptive acts by MARTIN. Further,
the issue is brought before this court as an exception of no cause of
action and not as a motion for summary judgment and thus the burden
of proof is different.

After reviewing the petition in this matter, the court finds that
the petition sets forth sufficient facts, if true, that survive an exception
of no cause of action under the LUTPA.

Martin now seeks review of the trial court’s ruling denying its exception of no

cause of action.

SUPERVISORY RELIEF

“The proper procedural vehicle to contest an interlocutory judgment that

does not cause irreparable harm is an application for supervisory writs. See La.

C.C.P. arts. 2087 and 2201.” Brown v. Sanders, 06-1171, p. 2 (La.App. 1 Cir.

3/23/07), 960 So.2d 931, 933.

ON THE MERITS

A peremptory exception of no cause of action questions whether the law

extends a remedy to anyone under the factual allegations of the petition. Its

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function is to “test the legal sufficiency of the petition by determining whether the

law affords a remedy on the facts” that are alleged in the petition. Everything on

Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.2d 1234, 1235 (La.1993). “No

evidence may be introduced at any time to support or controvert the objection that

the petition fails to state a cause of action.” La.Code Civ.P. art. 931. “Every

reasonable interpretation must be accorded the language of the petition in favor of

maintaining its sufficiency and affording the Davis the opportunity of presenting

evidence at trial.” Indus. Cos., Inc. v. Durbin, 02-665, p. 7 (La. 1/28/03), 837 So.2d

1207, 1213. “All reasonable inferences are made in favor of the nonmoving party

in determining whether the law affords any remedy to the plaintiff.” City of New

Orleans v. Bd. of Dirs. of La. State Museum, 98-1170, p. 9 (La. 3/2/99), 739 So.2d

748, 755.

LUTPA prohibits “unfair methods of competition and unfair or deceptive

acts or practices in the conduct of any trade or commerce,” La.R.S. 51:1405, and

grants a right of action to any business competitor, consumer, or person “who

suffers an ascertainable loss” as a result of another person’s use of such practices.

Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 09-1633, p. 6 (La. 4/23/10),

35 So.3d 1053, 1057 (plurality). Given the sweepingly broad statutory language, it

has been left up to the courts to decide, on a case-by-case basis, what conduct

constitutes a LUTPA violation. Quality Envtl. Processes, Inc. v. I.P. Petroleum

Co., Inc., 13-1582, 13-1588, 13-703 (La. 5/7/14), 144 So.3d 1011. The supreme

court has, however, consistently held that, to establish a LUTPA claim, a plaintiff

must show that “the alleged conduct offends established public policy and is

immoral, unethical, oppressive, unscrupulous, or substantially injurious.” Id. at

1025 (quoting Cheramie Servs., Inc., 35 So.3d at 1059). “[T]he range of

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prohibited practices under LUTPA is extremely narrow,” though, as it prohibits

only fraud, misrepresentation, and similar conduct, and not mere negligence.

Cheramie, 35 So.3d at 1060. Moreover, “only egregious actions involving

elements of fraud, misrepresentation, deception, or other unethical conduct will be

sanctioned based on LUTPA.” Id.

Martin first asserts the trial court committed legal error in concluding the

facts herein involve “trade” or “commerce.” Relying once again on Webb’s

interpretation of “trade” or “commerce” as defined in La.R.S. 51:1402(10),3 Martin

claims this court has held that the lease of immovable property does not fall within

the definition of “trade” or “commerce” and, therefore, LUTPA does not apply to a

lease of immovable property. Martin next alleges legal error in the trial court’s

failing to find that this is simply a breach of contract case outside the purview of

LUTPA. In support, Martin again cites to Shaw for the proposition that even if

Davis alleges deceitful conduct, the relationship of the parties (lessor/lessee) and

the nature of their disagreement (breach of lease) are nothing more than a breach of

contract dispute. And, Martin argues, it has long been established that LUTPA

does not provide alternative remedies for breach of contract claims. Citing Shaw,

884 F.Supp. 1054.

Further, Martin asserts the trial court legally erred in finding Davis alleged

sufficiently egregious conduct, since Davis’s first amended petition does not allege

that any of Martin’s purported acts violated public policy or otherwise gave rise to

3
La.R.S. 51:1402(10) provides:

“Trade” or “commerce” means the advertising, offering for sale, sale, or
distribution of any services and any property, corporeal or incorporeal,
immovable or movable, and any other article, commodity, or thing of value
wherever situated, and includes any trade or commerce directly or indirectly
affecting the people of the state.

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the level of egregiousness prohibited by LUTPA. Martin claims that (1) Davis is

not the “consumer” for which LUTPA was enacted to provide protection against

misrepresentation or fraud; (2) the lease does not require that Martin disclose any

information regarding assessments acquired pursuant to its lease obligations; (3)

Davis has not alleged any facts showing that Martin took action with specific intent

to harm Davis or that Davis is even considered a competitor; and (4) Davis’s

conclusory statement that public policy was offended by Martin, because the

leased property is located on and is part of the Calcasieu Ship Channel does not set

forth any public policy on behalf of this state. While Davis has alleged a cause of

action for breach of contract, Martin claims that Davis has not alleged conduct that

would suggest Martin acted unlawfully with improper and intentional means or

with other behavior that would fall within LUTPA’s proscribed conduct. Merely

presenting conclusory allegations regarding Martin’s conduct and labeling it as

unfair and deceptive fails to establish a cause of action under LUTPA.

Finally, Martin claims the trial court committed legal error in failing to

prohibit Davis from integrating ongoing discovery complaints into its LUTPA

claims. Each and every claim Davis has recently made goes back to the allegations

that Martin “hid” documents during discovery that were later identified and

produced as proof of a LUTPA violation. Citing Quality Envtl. Processes, Inc.,

144 So.3d 1011, Martin argues the supreme court has concluded that discovery-

related disputes are not actionable under the LUTPA.

In opposition, Davis first asserts that the commercial nature of the lease

satisfies the “trade” and “commerce” element of its LUTPA claim. Davis also

clarifies that Webb merely held that the lease of the hunting property and camp

therein, which are a far cry from the critical piece of commercial property at issue

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herein, did not fall within the definition of “trade” or “commerce.” Second, Davis

claims this is not a simple breach of contract claim. Rather, coupled with the

unfair and deceptive acts, Davis has also specifically alleged that Martin is a bad

faith obligor, which means an intentional bad faith breach of this commercial lease

that would fall within the purview of LUTPA, citing Volentine v. Raeford Farms of

La., LLC, 50,698 (La.App. 2 Cir. 8/15/16), 201 So.3d 325, writs denied, 16-1924,

16-1925 (La. 12/16/16), 212 So.3d 1171. Third, Davis has alleged conduct of

Martin that is both (1) unfair in that it offends the public policy of this state against

deceitful and dishonest contractual dealings, as well as involves the Calcasieu Ship

Channel, a major source of industry, commerce, and economic stability in this

state, and (2) deceptive in leasing property and then letting it deteriorate to a point

where it will cost approximately $10 million to repair. This conduct, Davis

alleges, is sufficiently egregious for Davis to prevail on its LUTPA claim.

Finally, Davis argues this is not a mere discovery dispute, as Davis is

alleging Martin actively hid documents that showed it was in active breach of the

lease and affirmatively misled Davis, while allowing the docks to fall into

disrepair. Martin’s efforts to avoid or postpone incurring millions of dollars in

repair expenses, along with its scheme to avoid or to, at least, delay disclosure of

such efforts, were all part of a well-orchestrated plan to communicate with Davis

in a deceitful, deceptive, and dishonest way, significantly misrepresenting what

Martin actually knew as to the large and costly problems at these docks. As the

petition alleges, Martin has known for at least six years of the need for these $7 to

$10 million repairs, thus elevating these acts to much more than a simple discovery

dispute.

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Reviewing the petition, the trial court found Davis had alleged sufficient

facts that, if true, constitute unfair and deceptive acts by Martin and denied the

exception of no cause of action. Looking solely at the petition and accepting all

allegations of fact as true and according its language every reasonable

interpretation, we find that Davis has alleged sufficient facts to satisfy the

jurisprudential standards of (1) unfairness in that Davis specifically alleges

Martin’s conduct and practices in relation to its lease obligations offend public

policy and are unethical, oppressive, unscrupulous or substantially injurious, and

(2) deceptiveness in that Davis alleges Martin’s actions constitute fraud, deceit, or

misrepresentations. Davis also alleges the egregiousness of Martin’s efforts to

delay full compliance with its multi-million-dollar obligation to maintain and

repair the commercial docks in a commercial and state-wide context, particularly

as to activities along the Calcasieu Ship Channel. We make no determination here

of whether the claims presented by Davis can ultimately be proven at trial. The

only question we answer here is whether, in a light most favorable to the Davis, the

petition states a valid cause of action under LUTPA. We find that Davis’s

allegations are sufficient to survive Martin’s exception of no cause of action.

Therefore, the writ is denied.

CONCLUSION

Finding no error in the ruling of the trial court, Martin’s application for

supervisory writs is denied.

WRIT DENIED.

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