Opinion
NO. 19-CA-278
12-18-2019
KHOOBEHI PROPERTIES, L.L.C. v. BARONNE DEVELOPMENT NO. 2, L.L.C., Kailas Family Limited Partnership, and Kailas Properties, L.L.C.
COUNSEL FOR PLAINTIFF/APPELLANT, KHOOBEHI PROPERTIES, L.L.C. George D. Fagan Anton L. Hasenkampf COUNSEL FOR DEFENDANT/APPELLEE, KAILAS FAMILY LIMITED PARTNERSHIP; KAILAS PROPERTIES, L.L.C.; CHANDRA MOHAN KAILAS, PRAVEEN KAILAS, NAVEEN KAILAS AND DENISE GAINES Philip A. Franco Diana C. Surprenant
COUNSEL FOR PLAINTIFF/APPELLANT, KHOOBEHI PROPERTIES, L.L.C. George D. Fagan Anton L. Hasenkampf
COUNSEL FOR DEFENDANT/APPELLEE, KAILAS FAMILY LIMITED PARTNERSHIP; KAILAS PROPERTIES, L.L.C.; CHANDRA MOHAN KAILAS, PRAVEEN KAILAS, NAVEEN KAILAS AND DENISE GAINES Philip A. Franco Diana C. Surprenant
Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Hans J. Liljeberg
HANS J. LILJEBERG, JUDGE
In this commercial dispute, plaintiff appeals the trial court judgments granting summary judgment in favor of three defendants and dismissing them from this lawsuit, denying plaintiff's motion for new trial, and denying plaintiff's request for leave to file a fourth amended and supplemental petition. For the following reasons, we reverse the summary judgments granted in favor of defendants and we remand for further proceedings. We affirm the trial court's ruling denying plaintiff's request to file a fourth amended and supplemental petition. FACTS AND PROCEDURAL HISTORY
The underlying facts are essentially the same as those set forth in this Court's prior two opinions. See Khoobehi Props., L.L.C. v. Baronne Dev. No. 2, L.L.C. , 15-117 (La. App. 5 Cir. 11/19/15), 178 So.3d 647, writ denied , 16-0048 (La. 2/26/16), 187 So.3d 1002 ; and Khoobehi Props., L.L.C. v. Baronne Dev. No. 2, L.L.C. , 16-506, 16-354, 16-356 (La. App. 5 Cir. 3/29/17), 216 So.3d 287, writ denied , 17-893 (La. 9/29/17), 227 So.3d 288.
In 2004, plaintiff, Khoobehi Properties, L.L.C. ("Khoobehi Properties"), acquired a 13% interest in Baronne Development No. 2, L.L.C. ("Baronne Development"). The primary asset of Baronne Development was a building located at 210 Baronne Street in New Orleans, Louisiana. On June 17, 2013, Khoobehi Properties sold its 13% membership interest in Baronne Development to one of the defendants in this matter, Kailas Family Limited Partnership ("KFLP"). The sale was negotiated and executed by Dr. Kamran Khoobehi, the managing member of Khoobehi Properties, and Mr. Chandra Mohan Kailas, the managing member of Kailas Properties, L.L.C. ("Kailas Properties"), which is the managing general partner of KFLP.
Following the sale, in August of 2013, Dr. Khoobehi learned of plans to redevelop the upper floors of the building at 210 Baronne Street into luxury condominiums. He claims that these redevelopment plans were being made and negotiated without his knowledge prior to the sale of Khoobehi Properties' membership interest. On November 25, 2013, Khoobehi Properties filed this lawsuit against Baronne Development, KFLP, and Kailas Properties, seeking an order requiring defendants to provide it with a full accounting of Baronne Development's business and operations from the time of its formation through the date Khoobehi Properties sold its interest in Baronne Development, including an accounting of insurance proceeds received by Baronne Development after the building was damaged by Hurricane Katrina. Damages were not sought in plaintiff's original petition.
On April 28, 2014, Khoobehi Properties filed its first amended, supplemental, and restated petition wherein it restated the allegations against defendants, repeated its request for an accounting from Baronne Development and made new allegations under theories of breach of contract, breach of fiduciary duty, negligent misrepresentation, alter ego/single business enterprise, conspiracy, and fraud. It alleged that defendants, KFLP, Kailas Properties, and Baronne Development, failed to disclose material information about plans to renovate Baronne Development's building in order to wrongfully induce Khoobehi Properties to sell its interest in Baronne Development for a substantially lesser value than it was worth. In this amended petition, Khoobehi Properties requested damages and any other equitable relief, in addition to its request for an accounting.
In response to this petition, various exceptions were filed and heard. There has been extensive motion practice in this litigation. The procedural history set forth herein is primarily that which is pertinent to this appeal.
On August 14, 2014, Khoobehi Properties filed a second amended, supplemental, and restated petition wherein it named as additional defendants Chandra Mohan Kailas ("Mr. Kailas"), individually, and 210 Baronne, L.L.C. ("210 Baronne"), which was organized in September 2013 and is the current owner of the 210 Baronne Street property. This amended petition included allegations that, on or prior to June 17, 2013, Mr. Kailas, in his personal capacity and as an agent for Baronne Development, KFLP, and Kailas Properties, made misstatements and failed to disclose material facts to Khoobehi Properties about plans and intentions regarding the development, exchange, leasing, marketing, transfer, and use of the 210 Baronne Street property. Khoobehi Properties alleged that Mr. Kailas made these misrepresentations and failed to disclose pertinent information in order to wrongfully induce Khoobehi Properties to sell its interest for substantially less than it would have sold for, and to obtain an unjust advantage over and cause damage and inconvenience to Khoobehi Properties.
On May 24, 2016, Khoobehi Properties filed a third amended and supplemental petition adding Praveen Kailas ("Praveen"), Naveen Kailas ("Naveen"), and Denise Gaines ("Ms. Gaines") as defendants. Praveen and Naveen are Mr. Kailas' sons and they were members of Baronne Development prior to and after Khoobehi Properties' sale of its 13% interest to KFLP. Ms. Gaines has worked for Mr. Kailas and/or his companies for many years, and she assisted with the efforts to obtain financing for redevelopment of the building. Ms. Gaines was also a member of Baronne Development prior to and after Khoobehi Properties sold its interest in the building to KFLP. In this third amended petition, Khoobehi Properties asserted claims against these defendants for misrepresentation and failure to disclose in order to defraud; failure to disclose in order to defraud based on serving as a manager or agent of Baronne Development, KFLP, and Kailas Properties; and conspiracy.
On September 19, 2018, each of the newly added defendants, Praveen, Naveen, and Ms. Gaines, filed a motion for summary judgment, contending that Khoobehi Properties cannot meet its burden of proof at trial and seeking judgment as a matter of law dismissing all claims against them. Specifically, they asserted that Khoobehi Properties' claims for misrepresentation and failure to disclose in order to defraud must fail because Dr. Khoobehi, as the managing member of Khoobehi Properties, admits that none of these defendants made any misrepresentations to him about the building at 210 Baronne Street and they did not have a duty to disclose any information to plaintiff. They also contended that Khoobehi Properties' claim for failure to disclose in order to defraud based on serving as a manager or agent of Baronne Development, KFLP, and Kailas Properties is without merit, because these defendants were neither managers of Baronne Development or Kailas Properties, nor partners of KFLP. Finally, Praveen, Naveen, and Ms. Gaines asserted that the claims against them for conspiracy must fail because Khoobehi Properties lacks any evidence of an agreement between any of these defendants and another to withhold information from Khoobehi Properties. In support of their motions for summary judgment, Praveen, Naveen, and Ms. Gaines submitted several exhibits, including depositions and other documents.
Khoobehi Properties filed memoranda in opposition to the motions for summary judgment arguing that there are genuine issues of material fact regarding the duties and actions of these defendants that preclude summary judgment. In support of its position, Khoobehi Properties also submitted several exhibits, including various depositions, emails, and other documents.
The motions for summary judgment came before the trial court for hearing on November 7, 2018. After hearing the parties' arguments, the trial court took the motions under advisement. Thereafter, on December 6, 2018, the trial court rendered judgments granting the motions for summary judgment filed by Praveen, Naveen, and Ms. Gaines, and dismissing plaintiff's claims against them. On December 18, 2018, Khoobehi Properties filed a "Motion for New Trial and Other Relief from the Court's December 6, 2018 Judgments Dismissing Defendants Praveen Kailas, Naveen Kailas and Denise Gaines." In this pleading, Khoobehi Properties also requested leave to file a fourth amended and supplemental petition. After a hearing on February 19, 2019, the trial court took the matter under advisement. Thereafter, on March 20, 2019, the trial court rendered a judgment denying Khoobehi Properties' motion for new trial and other relief, including its request for leave to file a fourth amended and supplemental petition. Khoobehi Properties appeals the trial court judgments granting defendants' motions for summary judgment and the judgment denying its motion for new trial and its request for leave to file a fourth amended and supplemental petition.
LAW AND DISCUSSION
Appellate courts review summary judgments de novo using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Greemon v. City of Bossier City , 10-2828 (La. 7/1/11), 65 So.3d 1263, 1267 ; Schroeder v. Bd. of Supervisors of Louisiana State University , 591 So.2d 342, 345 (La. 1991). A court shall grant a motion for summary judgment if "the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3).
On a motion for summary judgment, the initial burden of proof remains with the mover. La. C.C.P. art. 966(D)(1) ; Parish of Jefferson v. Daughters of St. Paul, Inc. , 12-494 (La. App. 5 Cir 3/27/13), 113 So.3d 371, 374, writ denied , 13-953 (La. 6/14/13), 118 So.3d 1088. However, if the moving party will not bear the burden of proof at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966(D)(1) ; Reynolds v. Bordelon , 14-2371 (La. 6/30/15), 172 So.3d 607, 610-611. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. Id. ; Schultz v. Guoth , 10-343 (La. 1/19/11), 57 So.3d 1002, 1006.
In Khoobehi Properties' third amended and supplemental petition, it sets forth claims against Praveen, Naveen, and Ms. Gaines for misrepresentation and failure to disclose in order to defraud, failure to disclose in order to defraud based on serving as a manager or agent of Baronne Development, KFLP, and Kailas Properties; and conspiracy.
We will first address the fraud claims against these defendants. Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. La. C.C. art. 1953 ; Connell v. Davis , 06-9 (La. App. 5 Cir. 10/17/06), 940 So.2d 195, 206, writs denied , 06-2810, 06-2839 (La. 1/26/07), 948 So.2d 175. In order to establish a claim for fraud, the plaintiff must prove: 1) a misrepresentation, suppression, or omission of true information; 2) the intent to obtain an unjust advantage or to cause damage or inconvenience to the other party; and 3) the resulting error must relate to a circumstance substantially influencing the other party's contractual consent. La. C.C. arts. 1953 and 1955 ; Port City Ventures, L.L.C. v. Angle , 52,745 (La. App. 2 Cir. 8/14/19), 277 So.3d 522, 527. Fraud may result from silence or inaction. La. C.C.P. art. 1953; Smith v. Remodeling Service, Inc. , 94-589 (La. App. 5 Cir. 12/14/94), 648 So.2d 995, 999. However, in order to prove fraud from silence or suppression of the truth, there must be a duty to speak or disclose information. Lomont v. Bennett , 14-2483 (La. 6/30/15), 172 So.3d 620, 629, cert.denied , ––– U.S. ––––, 136 S.Ct. 1167, 194 L.Ed.2d 178 (2016) ; Greene v. Gulf Coast Bank , 593 So.2d 630, 632 (La. 1992).
Pursuant to La. R.S. 12:1320, the liability of members, managers, employees or agents of a limited liability company is determined solely and exclusively under the provisions of Louisiana L.L.C. law. Under Louisiana L.L.C. law, specifically La. R.S. 12:1311, the business of the L.L.C. shall be managed by the members, except as otherwise provided in the articles of organization. La. R.S. 12:1314(A)(1) provides that if management of the L.L.C. is reserved to the members, a member shall be deemed to stand in a fiduciary relationship to the L.L.C. and its members. La. R.S. 12:1314(A)(1) further provides that if management is vested in one or more managers, the manager shall be deemed to stand in a fiduciary relationship to the L.L.C. and its members.
In their motions for summary judgment and on appeal, Praveen, Naveen, and Ms. Gaines assert that there is an absence of factual support for Khoobehi Properties' fraud claims and that they are entitled to judgment as a matter of law. They note that Khoobehi Properties does not contend that these defendants made any particular misrepresentation to it regarding redevelopment of the building at 210 Baronne Street. Rather, Khoobehi Properties asserts that Praveen, Naveen, and Ms. Gaines failed to disclose pertinent information about the building and its redevelopment, which would have been material to its decision to sell its 13% interest to KFLP. Praveen, Naveen, and Ms. Gaines contend that they did not have a fiduciary duty to disclose any information to Khoobehi Properties, because they were just members of this manager-managed L.L.C. Khoobehi Properties, on the other hand, argues that the L.L.C. was member-managed and thus, these defendants had a fiduciary duty to inform it of the plans to renovate the building, and they breached this fiduciary duty.
In its reasons for judgment, the trial court found that Khoobehi Properties made a judicial confession that Mr. Kailas was the managing member of Baronne Development at the time of the sale. In granting the motions for summary judgment, the trial court stated that Praveen, Naveen, and Ms. Gaines, as non-managing members of Baronne Development, did not owe a fiduciary duty to Khoobehi Properties.
In order to determine if Praveen, Naveen, and/or Ms. Gaines had a fiduciary duty to speak or disclose information to Khoobehi Properties, we first look to whether the L.L.C. was member-managed or manager-managed. However, based on the evidence presented in support of and in opposition to the motions for summary judgment, we cannot make such a determination.
Defendants assert that Khoobehi Properties has admitted in its pleadings that Baronne Development was manager-managed, and thus, as non-managing members, they did not owe a fiduciary duty to Khoobehi Properties. Defendants refer to the third amended and supplemental petition in which Khoobehi Properties stated, in pertinent part:
5. Between January 1, 2010 and June 17, 2013, Chandra Mohan Kailas was the Manager of Baronne Development No. 2, L.L.C. ("Baronne Development").
6. Between January 1, 2010 and June 17, 2013, Chandra Mohan Kailas, Praveen Kailas, Naveen Kailas, and Denise Gaines and the Kailas Family Limited Partnership ("KFLP") were members of Baronne Development.
(Emphasis added.)
Defendants assert that this language in the third amended and supplemental petition constitutes a judicial confession that Baronne Development was managed by Mr. Kailas and, thus, defendants were not required to present evidence to prove that Baronne Development was manager-managed.
In its memoranda in opposition to the motions for summary judgment and on appeal, Khoobehi Properties argues that defendants did not prove that Baronne Development was a manager-managed L.L.C., because they failed to submit the articles of organization. Khoobehi Properties further contends that the trial court erred by dismissing its claims against defendants based on its purported judicial confession in its third amended and supplemental petition, because no such confession was made. It argues that without evidence to support a finding that Baronne Development was manager-managed, it is presumed that the L.L.C. is member-managed per La. R.S. 12:1311, which provides that the business of an L.L.C. shall be managed by its members "[e]xcept as otherwise provided in the articles of organization."
Members of a member-managed L.L.C. owe a fiduciary duty to the L.L.C. and to the other members, pursuant to La. R.S. 12:1314(A)(1). Thus, Khoobehi Properties argues that as a member-managed L.L.C., defendants had a fiduciary duty to Baronne Development and its members, including Khoobehi Properties. It asserts that there are genuine issues of material fact regarding whether or not these defendants breached their fiduciary duties to Khoobehi Properties by failing to inform it of material developments regarding financing and redevelopment of the building.
An admission by a party in a pleading is a "judicial confession" and is full proof against the party making it. La. C.C. art. 1853 ; C.T. Traina, Inc. v. Sunshine Plaza, Inc. , 03-1003 (La. 12/3/03), 861 So.2d 156, 159 ; Goines v. Goines , 08-42 (La. App. 5 Cir. 6/19/08), 989 So.2d 794, 797. A judicial confession is a party's explicit admission of an adverse factual element and has the effect of waiving evidence as to the subject of the admission. Cichirillo v. Avondale Industries, Inc. , 04-2894 (La. 11/29/05), 917 So.2d 424, 429 ; C.T. Traina, Inc. , 861 So.2d at 159. A judicial confession must be explicit and not merely implied. La Louisiane Bakery Co., Ltd. v. Lafayette Ins. Co. , 09-825 (La. App. 5 Cir. 2/8/11), 61 So.3d 17, 27, writ denied , 11-493 (La. 4/25/11), 62 So.3d 95. Judicial confessions must be intentional waivers relating to the opponent's proof and not merely statements for some unrelated purpose. Licciardi v. Licciardi , 16-289 (La. App. 5 Cir. 12/7/16), 207 So.3d 638, 207 So.2d 638, 641, writ denied , 17-15 (La. 2/10/17), 210 So.3d 797.
In the present case, defendants did not submit the articles of organization for Baronne Development or any other evidence showing that it was manager-managed. Although the record suggests that Mr. Kailas did much of the decision-making, this does not mean that the L.L.C. was manager-managed. Defendants argue that Khoobehi Properties made a judicial confession in its third amended and supplemental petition that Baronne Development was manager-managed when it referred to Chandra Mohan Kailas as "the Manager." However, we find that the third amended and supplemental petition does not contain an explicit judicial confession that pursuant to its articles of organization, Baronne Development was manager-managed. Although Khoobehi Properties does refer to Mr. Kailas as "the Manager," which may imply that the L.L.C. was manager-managed, several other sections of the third amended and supplemental petition also refer to Praveen, Naveen, and Ms. Gaines as "managers, representatives, and/or agents acting by and on behalf of Baronne Development."
Based on our de novo review of the motions for summary judgment, opposition, and exhibits, and considering the applicable law, we find that defendants have not shown they are entitled to judgment as a matter of law on the fraud issues in this case. Because Khoobehi Properties did not make an explicit judicial confession that Baronne Development was manager-managed under the provisions of the articles of organization and because no evidence was introduced to support such a finding, genuine issues of material fact remain regarding whether or not defendants had a fiduciary duty to inform another member, Khoobehi Properties, of the plans for redevelopment of the building at 210 Baronne Street. Accordingly, we vacate the summary judgments as to Khoobehi Properties' fraud claims, and we remand for further proceedings.
Khoobehi Properties also claims on appeal that La. R.S. 12:1314 and 12:1320 authorize L.L.C. members to assert claims against other members for fraud, failing to disclose material facts, misrepresentations, conspiracy or other breaches of duty or wrongful conduct even if the L.L.C. is manager-managed. However, due to our finding that defendants have not shown that Baronne Development was manager-managed and our decision to vacate the summary judgments on the fraud issues, we pretermit discussion of this argument.
Also on appeal, Khoobehi Properties challenges the summary judgments on the conspiracy claims against these defendants. It asserts that the trial court erred by dismissing Khoobehi Properties' claims by failing to resolve factual inferences and construe all doubts in plaintiff's favor and by failing to properly consider the substantial circumstantial and other evidence showing a conspiracy between these defendants and Mr. Kailas to withhold material information about the redevelopment of the building from Khoobehi Properties. Khoobehi Properties contends that the circumstantial evidence shows that these defendants conspired with Mr. Kailas to defraud Khoobehi Properties.
Louisiana law does not have an independent cause of action for civil conspiracy. Haygood v. Dies , 48,485 (La. App. 2 Cir. 11/20/13), 127 So.3d 1008, 1013. La. C.C. art. 2324 provides, "[h]e who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person for the damage caused by such act." The actionable element of a conspiracy claim is not the conspiracy itself; rather it is the tort that the conspirators agreed to commit and actually commit, in whole or in part, causing plaintiff's injury. Id. Khoobehi Properties, L.L.C. , 216 So.3d at 298. To establish a conspiracy, a plaintiff is required to provide evidence of the requisite agreement between the parties. Thomas v. North 40 Land Development, Inc. , 04-610 (La. App. 4 Cir. 1/26/05), 894 So.2d 1160, 1174.
A conspiracy under La. C.C. art. 2324 requires a meeting of the minds or collusion between the parties for the purpose of committing wrongdoing. Boudreaux v. Jeff , 03-1932 (La. App. 1 Cir. 9/17/04), 884 So.2d 665, 672. A party's agreement to participate in a conspiracy to commit fraud requires a determination of subjective facts. Proof of a conspiracy may be inferred from the defendant's knowledge of the impropriety of the actions taken by a co-conspirator. Id. ; Thomas , 894 So.2d at 1174. A conspiracy may be proven by circumstantial evidence, including highly suspicious facts and circumstances. Lomont , 172 So.3d at 629 ; Hardy v. Easterling , 47,950 (La. App. 2 Cir. 4/10/13), 113 So.3d 1178, 1184.
Even though summary judgment procedure is favored, it is not a substitute for trial and is rarely appropriate for judicial determination of subjective facts, such as motive, intent, good faith, knowledge, and malice, which calls for credibility determinations and the weighing of testimony. Read v. Willwoods Community , 11-222 (La. App. 5 Cir. 2/14/12), 88 So.3d 534, 538, writ denied , 12-616 (La. 4/27/12), 86 So.3d 629 ; Prime Ins. Co. v. Imperial Fire and Cas. Ins. Co. , 14-323 (La. App. 4 Cir. 10/1/14), 151 So.3d 670, 677, writ denied , 14-2241 (La. 1/9/15), 157 So.3d 1110.
In its reasons for judgment, the trial court found that Khoobehi Properties lacks any evidence that there was an agreement between these defendants and KFLP or between these defendants and Mr. Kailas to suppress and withhold information from it and, thus, defendants are entitled to summary judgment on the conspiracy claims as well. While we agree that there was no direct evidence of a particular agreement between the parties, a conspiracy can be proven by circumstantial evidence.
In Dr. Khoobehi's deposition, he stated that he went to a meeting of Baronne Development members at Mr. Kailas' office on April 23, 2013, at which it was discussed that HUD would not finance the redevelopment of the building, that there were debts and expenses that needed to be covered, and that there were "liability issues" with regard to the building. He stated that Mr. Kailas had photographs of the façade of the building showing cracks in the building and broken glass, and Mr. Kailas told him that the building was "falling apart." Dr. Khoobehi stated that at the time this "doom and gloom" report was presented at the meeting, there were already active plans to redevelop the building and to obtain a loan from First NBC Bank for the project, but "they didn't tell me any single word about it." There was a discussion at this meeting regarding Dr. Khoobehi's decision to sell Khoobehi Properties' interest in Baronne Development and the price for its 13% interest.
Dr. Khoobehi signed an Agreement for Sale on May 8, 2013, which is the same date Praveen, Naveen, Ms. Gaines, and Mr. Kailas met to discuss redevelopment of the building. Dr. Khoobehi testified that he asked Mr. Kailas whether there was an offer or anything going on with the building at that time, but Mr. Kailas told him there was "nothing going on." He indicated that he executed the documents transferring Khoobehi Properties' interest in Baronne Development to KFLP on June 17, 2013, without knowing about the project to redevelop the building. Dr. Khoobehi testified that Ms. Gaines was involved with the contractors and financiers while they were negotiating the sale of Khoobehi Properties interest in Baronne Development, but she did not tell him there was any project going on.
In her deposition, Denise Gaines testified that she has worked with Kailas companies since 1996. She stated that she was involved in the effort to get HUD financing for redevelopment of the building at 210 Baronne Street. Ms. Gaines' deposition testimony reflects that she worked with Mr. Kailas on this project and was aware of the steps being taken by Baronne Development to redevelop the building at issue. Typically, it was Ms. Gaines who would initiate communications with the members of Baronne Development who were not members of the Kailas family, such as Dr. Khoobehi.
In Praveen's deposition, he testified that he started working with his father's various companies around 2005. Praveen testified that his father has had the same role in the Kailas-related companies for the past ten years, being that "[h]e is in charge" and the "ultimate decision-maker." Praveen stated that his role in the Kailas-related companies has always been "to work at the direction of my father" and his role is to carry out the tasks his father gives him. From 2005 to 2013, Praveen did not attend ownership meetings for the Kailas-related companies; rather, he just met with his father and brother. Praveen also stated that Denise Gaines' general role with the Kailas companies is to assist Mr. Kailas. Praveen was aware that HUD financing had been applied for with respect to the 210 Baronne Street property prior to April of 2013, but he did not know if any information regarding the HUD financing was communicated to Dr. Khoobehi.
In his deposition, Naveen testified that after he graduated from law school in 2011, he worked for his father. He was aware that there were efforts to redevelop the building at 210 Baronne Street, and his father asked him for input on the redevelopment plan. He acknowledged that meeting minutes reflect he was present at a meeting regarding redevelopment of the building, which was held on May 8, 2013, just weeks before Khoobehi Properties sold its interest in Baronne Development to KFLP. Mr. Kailas, Ms. Gaines, Praveen, and others were also present at this meeting, but Dr. Khoobehi was not. Naveen testified that he did not know if Dr. Khoobehi or any representative of Khoobehi Properties was informed of this meeting, and he did not have any knowledge of what information was being provided to Dr. Khoobehi prior to the sale of his interest in the L.L.C. The testimony reveals that both Praveen and Naveen were involved with the plans for redevelopment of the building.
This is also the date that Dr. Khoobehi signed the agreement to sell Khoobehi Properties' interest in Baronne Development.
Whether or not these defendants had an agreement or "meeting of the minds" to withhold pertinent information from Khoobehi Properties requires a determination of subjective facts and credibility determinations, which are inappropriate on summary judgment. Based on all of the evidence presented, we find there are genuine issues of material fact regarding whether there was a conspiracy to defraud Khoobehi Properties and the involvement, or lack thereof, of each defendant. Thus, we reverse the summary judgments rendered on the issue of conspiracy and remand for further proceedings.
In its fifth assignment of error, Khoobehi Properties argues that the trial court erred by denying Khoobehi Properties' motion for leave to file a fourth amended and supplemental petition to clarify or correct any allegations about Baronne Development's status.
La. C.C.P. art. 1151 provides that after an answer has been filed, the petition and answer may be amended only by leave of court or by written consent of the adverse party. Banks v. Parish of Jefferson , 12-215 (La. App. 5 Cir. 1/30/13), 108 So.3d 1208, 1216. The decision to disallow an amendment to a petition after the answer is filed is within the sound discretion of the trial court, and that decision should not be disturbed absent an abuse of that discretion. Id. Khoobehi Properties' petition has been amended three times. In its reasons for judgment, the trial court noted that it had issued a scheduling order and that June 14, 2018 was the deadline for amending pleadings. The trial court stated that it would not extend the deadline in order for Khoobehi Properties to amend its petition once again.
At the time of the trial court's ruling on this issue, summary judgment had been granted to these defendants based on a finding that plaintiff judicially confessed that Baronne Development was manager-managed and thus, the members did not have a fiduciary duty to the other members of the L.L.C. Khoobehi Properties sought to amend its petition to withdraw the purported judicial confession and/or clarify Baronne Development's status. Although this Court has concluded that no such judicial confession was present in the third amended and supplemental petition, we cannot say the trial court abused its discretion by denying plaintiff's request to file a fourth amended and supplemental petition. Accordingly, this assignment of error is without merit.
Khoobehi Properties also appeals the denial of its motion for new trial. The denial of a motion for new trial is generally a non-appealable interlocutory judgment. 9029 Jefferson Highway, L.L.C. v. S & D Roofing, L.L.C. , 15-686 (La. App. 5 Cir. 2/24/16), 187 So.3d 522, 524. However, on appeal, this Court can consider the denial of a motion for new trial, even though it is an interlocutory judgment, where it is directly related to the granting of the summary judgment motion. La. C.C.P. art. 2083 ; Bailey v. Robert V. Neuhoff Ltd. P'ship , 95-616 (La. App. 1 Cir. 11/9/95), 665 So.2d 16, 18, writ denied , 95-2962 (La. 2/9/96), 667 So.2d 534. Nevertheless, considering our decision to reverse the summary judgments rendered in favor of Praveen, Naveen, and Ms. Gaines, we need not address Khoobehi Properties' motion for new trial.
--------
DECREE
For the foregoing reasons, we reverse the summary judgments rendered in favor of defendants, Praveen Kailas, Naveen Kailas, and Denise Gaines. We affirm the trial court's denial of Khoobehi Properties' motion for leave to file a fourth amended and supplemental petition. This case is remanded to the trial court for further proceedings.