Opinion
2014 CA 0812
03-11-2015
GLENN J. PATRICK AND SAMUEL E. CARVILLE v. JAMES H. DUPONT; DUPONT, DUPONT, & DUPONT, LTD., A PROFESSIONAL LAW CORPORATION; STEPHEN PANEPINTO; PLAQUEMINE BANK & TRUST COMPANY; RICKY J. PATRICK; MELISA PATRICK; AND, J. PATRICK, INC. MACHINE PUMP & FABRICATION
Darrel J. Papillion David A. Thomas Edward J. Walters, Jr. Joseph E. Cullens, Jr. Baton Rouge, Louisiana Attorneys for Plaintiffs/Appellants Glenn J. Patrick and Samuel E. Carville Connell L. Archey Keith J. Fernandez Baton Rouge, Louisiana Attorneys for Defendants/Appellees James H. Dupont and Dupont, Dupont & Dupont, a Professional Law Corporation Duris Lee Holmes Robert E. Kerrigan, Jr. Lafayette, Louisiana Attorneys for Plaquemine Bank & Trust Company and Stephen Panepinto John B. Brumfield, Jr. Baton Rouge, Louisiana Attorneys for Defendants/Appellees Melisa Patrick and J. Patrick Inc. Machine Pump & Fabrication Ricky Patrick Plaquemine, Louisiana Pro Se/Defendant/Appellee
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE EIGHTEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF IBERVILLE STATE OF LOUISIANA
DOCKET NUMBER 71,393
HONORABLE MARION F. EDWARDS, JUDGE AD HOC Darrel J. Papillion
David A. Thomas
Edward J. Walters, Jr.
Joseph E. Cullens, Jr.
Baton Rouge, Louisiana
Attorneys for Plaintiffs/Appellants
Glenn J. Patrick and Samuel E.
Carville
Connell L. Archey
Keith J. Fernandez
Baton Rouge, Louisiana
Attorneys for Defendants/Appellees
James H. Dupont and Dupont, Dupont
& Dupont, a Professional Law
Corporation
Duris Lee Holmes
Robert E. Kerrigan, Jr.
Lafayette, Louisiana
Attorneys for Plaquemine Bank &
Trust Company and Stephen
Panepinto
John B. Brumfield, Jr.
Baton Rouge, Louisiana
Attorneys for Defendants/Appellees
Melisa Patrick and J. Patrick Inc.
Machine Pump & Fabrication
Ricky Patrick
Plaquemine, Louisiana
Pro Se/Defendant/Appellee BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. McDONALD, J.
In this appeal, the plaintiffs challenge a judgment, granting peremptory exceptions raising the objections of prescription, peremption, and no cause of action in favor of a bank and one of its officers, and denying the plaintiffs leave to amend their petition to state a cause of action against these defendants. We affirm in part, reverse in part, and remand.
FACTUAL AND PROCEDURAL BACKGROUND
This case involves protracted litigation among several parties originating from as far back as the year 2000. The complex factual and procedural history will not be recited in full here. Briefly, however, before 2000, Bayou Fabricators Machine and Pump, Inc. (Bayou Fabricators) was apparently owned by James Patrick; his brother, Glenn Patrick; and Samuel Carville. After James Patrick's death in February 2000, his interest in the company devolved to his children, Ricky Patrick and Melisa Patrick. As part of a settlement agreement intended to resolve a dispute regarding ownership, Ricky Patrick and Melisa Patrick bought out Glenn Patrick's interest and Samuel Carville's interest in Bayou Fabricators, which at the time had been renamed J. Patrick, Inc., Machine Pump & Fabrication (J. Patrick, Inc.), for approximately $1 million. The settlement was finalized in May 2003.
Over eight years later, on March 8, 2012, the plaintiffs, Glenn Patrick and Samuel Carville, filed the instant suit alleging they were fraudulently induced to divest their ownership in Bayou Fabricators at an artificially low price after being deceived as to the true value of the company via a scheme implemented by the defendants, Ricky Patrick, Melisa Patrick, and J. Patrick, Inc., (Patrick defendants); James Dupont and Dupont, Dupont & Dupont, Ltd. law firm (Dupont defendants); and Stephen Panepinto and Plaquemine Bank & Trust Company (Bank defendants). Specifically, the plaintiffs allege that, shortly after James Patrick died, the Patrick defendants retained attorney James Dupont, who arranged a meeting at which he, Ricky Patrick, and Stephen Panepinto, president of the Plaquemine Bank & Trust, met at the bank and agreed among themselves (and Melisa Patrick later agreed) to divert income properly payable to Bayou Fabricators into certain unauthorized bank accounts, which would then be accessible by the Patrick defendants.
The suit alleged that to hide the unauthorized diversion of funds, Mr. Dupont and the Patrick defendants created "warranty files" within Bayou Fabricator's business records, which falsely indicated that certain work was performed at no charge as "warranty" work, when in fact, payment had actually been received for the work and deposited into the unauthorized bank accounts set up by Mr. Panepinto at Plaquemine Bank & Trust, rather than deposited into Bayou Fabricator's business account (warranty scheme). According to the plaintiffs, as a result of this warranty scheme, the defendants were able to fraudulently deflate Bayou Fabricator's income, convert business income into cash for their personal benefit, and deceive them into "walking away from their business" and selling their interests in Bayou Fabricators at a deflated price. In October 2002, J. Patrick, Inc. issued fifteen shares of stock to Mr. Dupont as compensation for legal work he provided the company.
In their original and amended petitions, the plaintiffs alleged causes of action against the defendants in fraud, conspiracy, negligent misrepresentation, violation of the Louisiana Unfair Trade Practices Act (LUTPA), and alternatively, "unjust enrichment/detrimental reliance." In response to the plaintiffs' petition, the Bank defendants filed peremptory exceptions of prescription, peremption, and no cause of action in the trial court. The Bank defendants claimed the plaintiffs' tort claims against them were prescribed, their claim under the LUTPA was perempted, and that none of their claims sufficiently alleged a cause of action against the Bank defendants. Following a hearing, the trial court signed a judgment on August 12, 2013, granting the Bank defendants' exceptions. (R1000) The plaintiffs then filed this appeal.
On January 30, 2015, this court issued an interim order noting that the appellate record did not contain the Bank, defendants' pleading asserting these exceptions, and ordering the Bank, defendants to file a motion in the trial court requesting that the record be supplemented with such. On March 4, 2015, the appellate record was so supplemented. Further, we also note that the Bank defendants asserted a dilatory exception raising vagueness and non-conformity claiming the plaintiffs failed to plead fraud with particularity. The trial court did not rule on that exception.
On July 14, 2014, this Court granted a motion to place three related appeals, docketed under 2014 CA 0810, 2014 CA 0811, and 2014 CA 0812, before the same panel and on the same docket. The plaintiffs' appeal in 2014 CA 0810 is from a judgment in favor of the Patrick defendants; and, in 2014 CA 0811, is from a judgment in favor of the Dupont defendants. Our opinions in those two related appeals are also handed down this day.
RULE TO SHOW CAUSE
Before reaching the merits of the appeal, we address the validity of the judgment in this case. In response to this court's rule to show cause noting that the August 12, 2013 judgment appeared to lack appropriate decretal language disposing of and/or dismissing the plaintiffs' claims, an "Amended and Final Judgment" signed on July 31, 2014, was supplemented into the appellate record on September 3, 2014. (R1365) This Court provisionally maintained the appeal but reserved final determination to this panel as to whether the appeal should be maintained.
Thus, we now address whether the July 31, 2014 amended judgment corrects the deficiencies of the August 12, 2013 judgment. The amended judgment provides, in pertinent part:
NOW THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED that the August 12, 2013 Judgment is amended to declare that the peremptory exceptions of prescription, peremption, and no cause of action filed by Plaquemine Bank & Trust Company and Stephen Panepinto are GRANTED; that plaintiffs are not granted leave to amend their petition to state a cause of action against defendants; that the judgment is final insofar as it disposes of all claims between all parties; that the judgment is final under La. Code Civ. P. art. 1915, it being expressly determined that there is no just reason for delay[.] (Emphasis added.)
A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. See LSA-C.C.P. art. 1918; Carter v. Williamson Eye Center, 01-2016 (La. App. 1 Cir. 11/27/02), 837 So.2d 43, 44. Although the amended judgment does not specifically identify the parties against whom the judgment is granted, i.e., Glenn Patrick and Samuel Carville, and does not specifically dismiss all of their claims against the Bank defendants, it appears that the trial court intended to remedy the deficient decretal language of the original August 12, 2013 judgment. The trial court's intent is evident in the amended judgment's express statement that the judgment is "final insofar as it disposes of all claims between all parties." Within the context of this appeal, we interpret this language to mean that the trial court granted the exceptions filed by the Bank defendants and dismissed all claims by the plaintiffs against the Bank defendants. Thus, we maintain the appeal from the July 31, 2014 amended judgment and now turn to the merits of the plaintiffs' appeal.
PEREMPTORY EXCEPTION OF PRESCRIPTION
In their first assignment of error, the plaintiffs contend the trial court erred in granting the Bank defendants' exception of prescription as to plaintiffs' claims for fraud, conspiracy, negligent misrepresentation, and "unjust enrichment/detrimental reliance," based on the trial court's conclusion that the plaintiffs knew of the Bank defendants' involvement in the warranty scheme before March 8, 2011, more than one year before the plaintiffs filed their petition in this case.
Liberative prescription is a mode of barring actions as a result of inaction for a period of time. LSA-C.C. art. 3447. The fundamental purpose of prescription statutes is to afford a defendant economic and psychological security if no claim is timely made and to protect him from stale claims and the loss of non-preservation of relevant proof. Giroir v. South Louisiana Medical Center, 475 So.2d 1040, 1045 (La. 1985). The objection of prescription may be raised by a peremptory exception. LSA-C.C.P. art. 927(A)(1). Ordinarily, and in this case, the party pleading prescription bears the burden of proving that the right to bring the claim has prescribed. Further, prescriptive statutes are strictly construed against prescription and in favor of maintaining the claim. See Naquin v. Bollinger Shipyards, Inc., 11-1217 (La. App. 1 Cir. 9/7/12), 102 So.3d 875, 878, writs denied, 12-2676 and 12-2754 (La. 2/8/13), 108 So.3d 87, 93.
At the hearing of an exception of prescription, evidence may be introduced to support or controvert the exception when the grounds thereof do not appear from the petition. See LSA-C.C.P. art. 931. If evidence is so introduced, the trial court's findings of fact are reviewed under the manifest error standard of review. Rando v. Anco Insulations, Inc., 08-1163, 08-1169 (La. 5/22/09), 16 So.3d 1065, 1082. On review, an appellate court should not reweigh the evidence or substitute its own factual findings. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02), 816 So.2d 270, 279. Thus, if the trial court's findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rando, 16 So.3d at 1082.
Delictual actions, including plaintiffs' claims for fraud, negligent misrepresentation, and detrimental reliance, are subject to a liberative prescription of one year. LSA-C.C. art. 3492. See State ex rel. La. Dept. of Education-Food Service v. Bright Beginnings Child Care, Inc., 42,146 (La. App. 2 Cir. 5/16/07), 957 So.2d 362, 366 (one-year prescription applies to tort of fraud); Hollingsworth v. Choates, 42,424 (La. App. 2 Cir. 8/22/07), 963 So.2d 1089, 1094 (one-year prescription applies to negligent misrepresentation claim); Ames v. Ohle, 11-1540 (La. App. 4 Cir. 5/23/12), 97 So.3d 386, 393, writ denied, 12-1832 (La. 11/9/12), 100 So.3d 837 (one-year prescription applies to tort of detrimental reliance). Regarding plaintiffs' claim for conspiracy, we note that conspiracy is not a substantive tort under Louisiana law and by itself is not an actionable claim. Ross v. Conoco, Inc., 02-0299 (La. 10/15/02), 828 So.2d 546, 552. Rather, it is the tort the conspirators agreed to perpetrate, and which they actually commit, that constitutes the actionable elements of a claim. Id.; see LSA-C.C. art. 2324(A). Thus, to recover under this theory of liability, a plaintiff must prove that an agreement existed to commit an illegal or tortious act that resulted in the plaintiff's injury. See Aranyosi v. Delchamps, Inc., 98-1325 (La. App. 1 Cir. 6/25/99), 739 So.2d 911, 917, writ denied, 99-2199 (La. 11/5/99), 750 So.2d 187. In this case, the plaintiffs allege the defendants conspired to defraud them via the warranty scheme. Thus, we conclude the plaintiffs' "conspiracy to defraud" claim is subject to the same one-year prescriptive period as their claim for fraud. See Ames, 97 So.3d at 394.
There are also causes of action of contractual fraud and contractual detrimental reliance, which are subject to ten-year prescription, but such does not apply here. See First Louisiana Bank v. Morris & Dickson, Co., LLC, 55 So.3d at 825-26. We also note that, pursuant to LSA-C.C. art. 2298, the remedy of unjust enrichment is subsidiary in nature and is not available if the law provides another remedy. We will address the plaintiffs' unjust enrichment claim later in this opinion.
Louisiana Civil Code article 2324(A) provides, "He 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." This provision, along with LSA-C.C. art. 2324(B), provides for loss distribution and allocation of fault rather than substantive liability which is provided for generally in LSA-C.C. art. 2315.
Generally, prescription commences to run from the day injury or damage is sustained. See LSA-C.C. art. 3492. Specifically, prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he is the victim of a tort. Guillot v. Doughty, 13-1348 (La. App. 1 Cir. 3/21/14), 142 So.3d 1034, 1046, writ denied, 14-0824 (La. 6/13/14), 140 So.3d 1192. When the claimant is unaware of the facts giving rise to his cause of action against a particular defendant, the running of prescription is suspended, for that reason, until the tort victim discovers, or should have discovered, the facts upon which his cause of action is based. Id. As earlier stated, in granting the Bank defendants' exception of prescription, the trial court found that the plaintiffs first discovered the alleged warranty scheme prior to March 8, 2011.
At the end of the July 18, 2013 hearing, the trial court stated its ruling on the Bank defendants' exception of prescription in the following exchange with the plaintiffs' attorney:
THE COURT: So I'm going to rule in favor of the bank on the issues of prescription and failure to state the cause of action ... .
[PLAINTIFFS' COUNSEL]: Just as a matter of clarification, Your Honor, it's your ruling today that my clients first discovered it prior to March 8, 2011?
THE COURT: I'm going to rule that with regard to the bank's motion based on prescription, I feel that's the case, and they were absolutely right. I couldn't duck that issue by - - as I did in the Dupont case by ruling [peremption].
In support of their exception of prescription, the Bank defendants adopted the testimony of Glenn Patrick, Ricky Patrick, and Samuel Carville, introduced by the Dupont defendants at a February 8, 2013 hearing in support of their exception of prescription/preemption. The Bank defendants also adopted arguments and exhibits introduced by the Dupont defendants at a July 18, 2013 hearing. In opposition, the plaintiffs also submitted evidence.
In paragraphs 10 and 20 of their original petition, the plaintiffs allege that Ricky Patrick told them about the alleged warranty scheme for the first time "on or after approximately June 1, 2011" and that "[p]rior to sometime after June 1, 2011," they did not know, and had no reason to suspect, that the defendants had engaged in the scheme to defraud them. The plaintiffs again asserted the "on or after June 1, 2011" date in their amended petition filed on September 14, 2012, the allegations of which both plaintiffs verified as true, and in discovery responses filed in November 2012. After the amended petition was filed, the Dupont defendants challenged the plaintiffs' claims against them as perempted under the LUTPA. Then, for the first time, in discovery responses dated January 31, 2013, Glenn Patrick specifically stated that he first learned of the warranty scheme from Ricky Patrick "[on] a Thursday afternoon in late September or October, 2011 (either September 22, 29, or October 6, 13, 20, 27)[.]" And, in similar discovery responses, Samuel Carville stated that Glenn Patrick first told him of the warranty scheme on either November 9 or 10, 2011. At the February 8, 2013 hearing, Glenn Patrick and Samuel Carville's testimony was consistent with their discovery responses. Glenn Patrick testified that he first heard of the Bank defendants' involvement in the warranty scheme from Ricky Patrick at a seafood boil on a Thursday night "between the middle of September and the end of October" of 2011. Glenn Patrick also testified that he first told Samuel Carville about the warranty scheme in November 2011. At that same hearing, Samuel Carville also testified that Glenn Patrick first told him about the warranty scheme on either November 9 or 10, 2011, and that Ricky Patrick had told him nothing about it. And, according to Ricky Patrick's testimony at that hearing, he told Glenn Patrick about the warranty scheme, and specifically, the Bank defendants' involvement, in late August, September, or maybe even the beginning of October in 2011; he confirmed that he never discussed the matter with Samuel Carville.
In a discovery deposition taken August 16, 2012, Glenn Patrick testified that the June 2, 2011 date was just "approximate," because he really could not remember when Ricky Patrick told him of the scheme.
On the other hand, the Bank defendants rely on evidence indicating that Glenn Patrick learned of the warranty scheme before March 8, 2011. At the February 8, 2013 hearing, Glenn Patrick admitted that Ricky Patrick gave him his proxy to vote for him at a J. Patrick, Inc. shareholder meeting in October 2009 where a vote was being taken to restrict Ricky Patrick's access to J. Patrick Inc.'s post office box and bank accounts. Glenn Patrick also admitted to loaning money to Ricky Patrick on more than one occasion at some time before 2011. In February 2011, Ricky Patrick consulted Glenn Patrick regarding problems he was having with his employment at J. Patrick, Inc. Ricky Patrick was ultimately fired from the company on February 3, 2011. Ricky Patrick stated that he called Glenn Patrick from the board meeting at which that decision was made, and Glenn Patrick admitted that he went to J. Patrick, Inc. that day to find out "what was going on." Glenn Patrick also admitted that, after J. Patrick, Inc. fired Ricky Patrick, he and Ricky Patrick met with attorney Elizabeth Engolio on March 8, 2011, that Ricky Patrick discussed his employment situation with her while Glenn Patrick was in the room, and that Glenn Patrick agreed to pay Ms. Engolio's attorney fees to represent Ricky Patrick in the matter involving his J. Patrick, Inc. employment issues. Notably, Ms. Engolio's notes from a March 7, 2011 telephone call, the day before the meeting, show that the telephone discussion included references to "Ricky Patrick," "Glenn Patrick," "J. Patrick," "Jimmy Dupont," "K-l Form - own part of co.," and "phony papers." Her notes from the March 8, 2011 meeting include references to "Jimmy Dupont" as a shareholder in J. Patrick, Inc. and to "warranties." Further, on March 9 and 31, 2011, Ms. Engolio requested that subpoenas be issued to Mr. Dupont and/or to J. Patrick, Inc. for documents related to the corporate formation of J. Patrick, Inc.; the issuance of J. Patrick, Inc. stock to Mr. Dupont; for numerous J. Patrick, Inc. business records (including, but not limited to, tax returns, financial statements, customer and vendor lists, sales, payments, accounts payable, invoices); and notably, for multiple banking records and a "detailed listing of all repair and warranty work" by J. Patrick, Inc. We also note that, in a February 3, 2012 email from the plaintiffs' former attorney to their current attorney who filed this suit, the former attorney stated, "After some digging, it appears that Glenn would have first heard of this shortly before March 8, 2011, so the clock is ticking." (Emphasis added.)
The plaintiffs argue that the reference to "this" in the February 3, 2012 email is ambiguous and proves nothing. Thus, to refute the Bank defendants' evidence regarding the extent of Glenn Patrick's knowledge before and at the March 8, 2011 meeting with Ms. Engolio, the plaintiffs obtained an affidavit from Ms. Engolio, dated April 11, 2013, in which she denied discussing the alleged fraud at the March 8, 2011 meeting; rather, Ms. Engolio stated that the discussion at the meeting surrounded facts and issues regarding Ricky Patrick's employment issues with J. Patrick, Inc. and included no discussion "regarding the alleged fraud surrounding the [p]rior [s]ettlement."
In this case, the evidence considered by the trial court included pleadings, deposition testimony, affidavits, discovery responses, other exhibits, and testimony from a hearing held by a previously presiding judge, but no live witness testimony. Nevertheless, the manifest error standard of review applies to the trial court's factual findings even when the record consists solely of documentary evidence. See Shepherd on Behalf of Shepard v. Scheeler, 96-1690, 96-1720 (La. 10/21/97), 701 So.2d 1308, 1315. After reviewing the entire record, and mindful that this court may not substitute its own factual finding for those of the factfinder, we conclude that there is a reasonable basis for the trial court's determination that Glenn Patrick was aware of the warranty scheme before March 8, 2011.
The trial court was presented with evidence that Ricky Patrick and Glenn Patrick, his paternal uncle, had a close, confidential relationship. Even after their differences during 2000-2003, when the dispute regarding ownership of Bayou Fabrication existed, the evidence demonstrates that Ricky Patrick and Glenn Patrick reconciled at least by 2009. Glenn Patrick voted Ricky Patrick's proxy at a 2009 J. Patrick, Inc. shareholder meeting; he loaned Ricky Patrick money more than once before 2011; and, he went to J. Patrick, Inc., in February 2011 to find out why Ricky Patrick was fired. Further, Glenn Patrick paid Ms. Engolio's attorney fees to represent Ricky Patrick's interest involving his J. Patrick, Inc. employment issues, and conversations with her on March 7 and 8, 2011 indicate that phony papers, warranties, and Jimmy Dupont were discussed. As soon as Ms. Engolio was hired, she began to investigate the events surrounding the formation of J. Patrick, Inc., the issuance of J. Patrick, Inc. stock to Mr. Dupont, and she specifically sought banking records and warranty work records from J. Patrick, Inc. Glenn Patrick's knowledge of the alleged fraud prior to the meeting with Ms. Engolio is further evidenced by the February 3, 2012 email from his former attorney advising that Glenn apparently "first heard of this shortly before March 8, 2011."
Although we may have weighed the evidence differently, the sequence of events demonstrated by the above facts provides a reasonable basis from which the trial court could have concluded that, given the nature of their relationship, Ricky Patrick "confessed" the warranty scheme, including the Bank defendants' involvement, to Glenn Patrick at some time before March 8, 2011. This determination is all the more reasonable in light of the fact that the plaintiffs themselves have made inconsistent assertions in multiple verified pleadings and in testimony as to when they actually became aware of the warranty scheme. Apparently, the trial court's conclusions as to the plaintiffs' knowledge included consideration of these inconsistencies and created concerns as to their credibility. Accordingly, we affirm the July 31, 2014 judgment insofar as it dismissed Glenn Patrick's claims for fraud, conspiracy to defraud, negligent misrepresentation, and detrimental reliance against the Bank defendants as prescribed.
On the other hand, we reach a different conclusion regarding the trial court's determination that Samuel Carville also knew of the warranty scheme before March 8, 2011. In both petitions and in discovery responses, Samuel Carville specifically alleged that Ricky Patrick told him and Glenn Patrick about the warranty scheme for the first time "on or approximately June 1, 2011." However, he later testified that he never discussed the matter with Ricky Patrick and that it was Glenn Patrick who first told him in November 2011. Notwithstanding these conflicting assertions, the evidence indicates that, unlike Glenn Patrick's relationship with Ricky Patrick, Samuel Carville had no such relationship with Ricky Patrick and never directly discussed the warranty scheme with him. No evidence was presented to suggest that Samuel Carville was involved in Ricky Patrick's employment issues with J. Patrick, Inc. before June 2011. Thus, our review of the record demonstrates that the earliest date the trial court could have found that Samuel Carville became aware of the scheme was "on or approximately June 1, 2011," and not before March 8, 2011. Accordingly, we reverse the September 3, 2014 judgment insofar as it dismissed Samuel Carville's claims for fraud, conspiracy to defraud, negligent misrepresentation, and detrimental reliance against the Bank defendants as prescribed.
PEREMPTORY EXCEPTION OF NO CAUSE OF ACTION
In several assignments of error, the plaintiffs contend the trial court erred in granting the Bank defendants' exception of no cause of action as to their claims for fraud, conspiracy to defraud, negligent misrepresentation, and detrimental reliance, and in refusing to allow plaintiffs leave to amend to cure any such deficiency. Because we agree with the trial court's determination that Glenn Patrick's tort claims are prescribed, we need address only whether Samuel Carville, the only plaintiff with remaining tort claims, has adequately alleged causes of action under these theories.
The peremptory exception raising the objection of no cause of action questions whether or not the law affords any remedy to the plaintiff under the allegations of the petition. White v. State, Department of Public Safety and Corrections, Office of Motor Vehicles, 569 So.2d 1001, 1002 (La. App. 1 Cir. 1990) (per curiam). If a remedy is provided, the objection must be overruled. Id. The exception is triable solely on the face of the petition and any attached documents. Id.; see LSA-C.C.P. art. 931. The court must presume all well pleaded facts are true, must make all reasonable inferences in favor of the non-moving party, and must resolve any doubts in favor of the sufficiency of the petition. See White, 569 So.2d at 1002. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. In re Interdiction of Coulon, 12-1429 (La. App. 1 Cir. 3/22/13), 116 So.3d 688, 690. The burden of demonstrating that no cause of action has been stated is upon the exceptor. City of New Orleans v. Board of Com'rs of Orleans Levee Dist., 93-0690 (La. 7/5/94), 640 So.2d 237, 253.
In reviewing a trial court's ruling sustaining an exception of no cause of action, the court of appeal performs a de novo review, because the exception raises a question of law and the lower court's decision is based only on the sufficiency of the petition. Id. Where the grounds of the objection raised by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or where the plaintiff fails to comply with the court's order to amend, the action shall be dismissed. LSA-C.C.P. art. 934; see In re Interdiction of Coulon, 116 So.3d at 690.
In their petition, as amended, the plaintiffs alleged the following regarding action of the Bank defendants:
[PARAGRAPH] 11.
At an initial meeting arranged and directed by attorney JAMES DUPONT shortly after James Patrick's death, defendants PANEPINTO, RICKY PATRICK, and JAMES DUPONT met in PANEPINTO'S office at PLAQUEMINE BANK and agreed among themselves that certain unauthorized bank accounts (as described herein) would be opened at PLAQUEMINE BANK for the purpose of deceiving, misleading, and fraudulently inducing plaintiffs, GLENN PATRICK and SAMMY CARVILLE, to have an erroneous impression of the financial condition of the business. MELISA PATRICK and J. PATRICK, INC. were informed of this scheme shortly after this initial meeting, and MELISA PATRICK and J. PATRICK, INC. agreed with this fraudulent scheme, ratified the same, and actively cooperated and participated in this scheme for years. In summary, defendants deliberately manipulated the financial records of the business in order to deter plaintiffs from maintaining any ownership interest in Bayou Fabricators Machine and Pump, Inc. and to deflate the true value of the business so that [plaintiffs] would sell their ownership interests in the business at an artificially low price.
[PARAGRAPH] 12.
Specifically, plaintiffs were recently informed and learned that at the time of James Patrick's death, a number of company checks (i.e., checks paid to compensate the business for work done by Bayou Fabricators Machine and Pump, Inc.) totaling approximately $450,000.00 ... were discovered by attorney JAMES DUPONT and/or RICKY PATRICK and/or MELISA PATRICK in the desk drawer of James Patrick. Rather than disclose the existence of these checks to plaintiffs and negotiate these company checks through a bank account authorized by the business and record this substantial income on the financial records of the business, including its tax returns, at the direction and advice of attorney JAMES DUPONT and with the active cooperation, agreement, participation, and consent of PLAQUEMINE BANK acting through its president, PANEPINTO, certain unauthorized bank accounts ... in the name of J. PATRICK, Inc. and/or RICKY PATRICK and/or MELISA PATRICK and/or other entities were created at PLAQUEMINE BANK to allow RICKY PATRICK and/or MELISA PATRICK and/or J. PATRICK, INC., at the direction of attorney JAMES DUPONT to negotiate these business checks through accounts not associated with or authorized by Bayou Fabricators Machine and Pump, Inc., in order to allow defendants to use these funds for their own personal or professional benefit - all to the detriment of GLENN PATRICK and SAMMY CARVILLE.
[PARAGRAPH] 13.
Furthermore, to hide these off-the-book transactions that should have been disclosed to plaintiffs and reported as income to Bayou [Fabricators], at the direction of attorney, JAMES DUPONT, defendants, RICKY PATRICK, MELISA PATRICK, and J. PATRICK, INC., began creating "warranty files" as follows. ... Pursuant to the scheme and agreement by and between all defendants ... , these designated "warranty" checks would then be negotiated through one or more of the accounts at PLAQUEMINE BANK with the agreement, cooperation, and active, personal participation of PANEPINTO. As a result of this scheme and agreement by and between all defendants, defendants were able to fraudulently deflate the income of [Bayou Fabricators] [.] ...
[PARAGRAPH] 14.
The original scheme and agreement between the defendants to hide the approximately $450,000.00 in business checks ... did not end after that income was diverted and hidden from the plaintiffs[.] ... In [a separate suit RICKY PATRICK filed against J. PATRICK, INC. in June 2011], RICKY PATRICK explains: "in or around the years 2000-2003, Dupont confected an arrangement with Plaquemine Bank & Trust Company, ... through [its] president, whereby Ricky Patrick or Melisa Patrick would be allowed to cash or otherwise negotiate checks" that should have been deposited in an ... account of [J. PATRICK, INC.] Through the use of improper bank accounts at PLAQUEMINE BANK and the practice of creating
fraudulent "warranty files," defendants continued to divert significant income away from the business of Bayou Fabricators Machine and Pump, Inc. n/k/a J. PATRICK, INC. all to defendants' personal and professional enrichment and to the detriment of plaintiffs ... .
[PARAGRAPH] 15.
In addition to being personally liable unto plaintiffs, at all material times regarding the events described in this petition, PANEPINTO was an employee and executive officer (president) of PLAQUEMINE BANK, who was acting in the course and scope of his employment and for the benefit of PLAQUEMINE BANK; therefore, PLAQUEMINE BANK, in addition to any independent liability of PLAQUEMINE BANK to plaintiffs as a result of the events giving rise to this lawsuit, PLAQUEMINE BANK is vicariously liable for the tortious conduct of ... PANEPINTO.
(Emphasis added.)
Fraud and Conspiracy to Defraud
As earlier noted, Samuel Carville's claims for fraud and conspiracy are interrelated. The elements of the tort of fraud are a misrepresentation of material fact made with the intent to deceive where there was reasonable or justifiable reliance by the plaintiff and resulting injury. Chateau Home by RJM, Inc. v. Aucoin, 11-1118 (La. App. 5 Cir. 5/31/12), 97 So.3d 398, 404, writ denied, 12-1526 (La. 10/12/12), 98 So.3d 872. Further, one who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damages caused by such act. LSA-C.C. art. 2324(A). Presuming all factual allegations of Samuel Carville's petitions as true, and resolving all doubts in favor of the sufficiency of the petition, we conclude Samuel Carville has stated a cause of action against the Bank defendants for fraud and conspiracy to defraud; that is, he has alleged the defendants, and specifically "with the active cooperation, agreement, participation, and consent of the Bank defendants, actively participated in the warranty scheme; that the Bank defendants agreed to open unauthorized bank accounts at Plaquemine Bank and Trust to allow the Patrick defendants to use funds properly belonging to Bayou Fabricators; and that this scheme resulted in all defendants' personal and professional enrichment. Accordingly, after a de novo review, we reverse the trial court's judgment insofar as it found Samuel Carville failed to state a cause of action against the Bank defendants for fraud and conspiracy to defraud.
Negligent Misrepresentation and Detrimental Reliance
For a plaintiff to recover for negligent misrepresentation, there must be a legal duty on the part of the defendant to supply correct information, a breach of that duty, and damage to the plaintiff caused by the breach. Further, the plaintiff's damages must result from his justifiable reliance on the defendant's misrepresentation. See LSA-C.C. art. 2315; Tres' Chic in a Week, L.L.C. v. Home Realty Store, 07-1373 (La. App. 1 Cir. 7/17/08), 993 So.2d 228, 232. And, similarly, to recover for detrimental reliance, a plaintiff must prove that the defendant made a representation by word or conduct, that the plaintiff justifiably relied on the representation, and detrimentally changed his position because of the reliance. See LSA-C.C. art. 1967; Suire v. Lafayette City-Parish Consol. Gov't, 04-1459 (La. 4/12/05), 907 So.2d 37, 59.
In brief, Samuel Carville contends his causes of action for negligent misrepresentation and detrimental reliance are in the alternative to his other claims. We recognize that it is sometimes necessary for a party to maintain alternative, inconsistent, and even mutually exclusive positions in the course of litigation. See LSA-C.C.P. art. 892; Jason v. Brown, 92-1301 (La. App. 1 Cir. 5/20/94), 637 So.2d 749, 752, writ denied, 94-1673 (La. 10/7/94), 644 So.2d 638. Thus, the fact that Samuel Carville's fraud and conspiracy to defraud claims (requiring that the actors have intent to commit a tort) are inconsistent with his alternative claims (requiring no such intent) is of no moment. However, the focus of Samuel Carville's petition, as amended, clearly was to set forth a basis for the defendants' intentional participation in the warranty scheme; the petition is markedly lacking in allegations that would afford him a remedy under his alternative claims. Thus, even presuming all well pleaded facts as true, and making all reasonable inferences in favor of Samuel Carville, we agree with the trial court that his petition does not state a cause of action for negligent misrepresentation and detrimental reliance.
Nonetheless, we conclude that, under the mandate of La. C.C.P. art. 934, the trial court erred in refusing to allow amendment of the petition to correct these deficiencies. See In re Interdiction of Coulon, 116 So.3d at 690-91. At this stage of the litigation, where discovery is yet to be conducted as to the Bank defendants' relevant actions, we will remand this matter so that discovery can be conducted and Samuel Carville may amend his petition within a delay allowed by the trial court. Id.
Unjust Enrichment
Pursuant to LSA-C.C. art. 2298, the remedy of unjust enrichment is subsidiary in nature and shall not be available if the law provides another remedy. Walters v. Medsouth Record Management, LLC, 10-0351 (La. 6/4/10) 38 So.3d 245, 246 (per curiam). Because the plaintiffs alleged several other causes of action against the Bank defendants, they are precluded from asserting a claim for unjust enrichment due to the availability of other remedies. Id. Further, it is irrelevant whether the plaintiffs' other claims are prescribed or perempted. Id. The fact that a plaintiff does not successfully pursue another available remedy does not give him the right to recover under the theory of unjust enrichment. Id; see also Ames, 97 So.3d at 391-92. Thus, the trial court did not err in dismissing the plaintiffs' claims for unjust enrichment for failure to state a cause of action.
PEREMPTORY EXCEPTION OF PEREMPTION AS TO LUTPA CLAIMS
The plaintiffs also contend the trial court erred in granting the Bank defendants' exception of peremption as to their claim against Stephen Panepinto under the Louisiana Unfair Trade Practice Act (LUTPA), LSA-R.S. 51:1401, et seq. The LUTPA creates a cause of action available to "[a]ny person who suffers any ascertainable loss of money or movable property ... as a result of the use or employment by another person of an unfair or deceptive method, act, or practice ... ." LSA-R.S. 51:1409(A). According to LSA-R.S. 51:1409(E), an action under the LUTPA is "prescribed" by one year running from the time of the transaction or act which gave rise to the right of action. Plaintiffs correctly acknowledge that "the vast majority of Louisiana courts," including this Court, have held that the LUTPA's one-year period "prescriptive" period is actually peremptive and is not subject to interruption or suspension. (Appellant Br. at 17) See LSA-C.C. art. 3461; Fox v. Dupree, 633 So.2d 612, 614 (La. App. 1 Cir. 1993), writ denied, 635 So.2d 233 (La. 1994); Spencer-Wallington, Inc. v. Service Merchandise, Inc., 562 So.2d 1060, 1063 (La. App. 1 Cir.), writ denied, 567 So.2d 109 (La. 1990). Although plaintiffs contend that all prior jurisprudence holding such should be disregarded, we are bound by this Court's prior holdings. The allegations that Mr. Panepinto engaged in an unfair or deceptive act or practice involve his participation in the warranty scheme which allegedly occurred between early 2000 (after James Patrick died in February 2000) and May 2003 (when the plaintiffs settled their claims against the Patrick defendants for $1 million). Thus, the latest plaintiffs could have filed a LUTPA claim against Mr. Panepinto would have been no later than May 2004. Plaintiffs filed this suit, including their LUTPA claim, on March 8, 2012, well after that one-year peremptive period had run. Thus, we conclude the trial court correctly dismissed their LUTPA claim against Stephen Panepinto as perempted; and, as such, we need not address whether the plaintiffs adequately alleged a cause of action under the LUTPA.
CONCLUSION
For the foregoing reasons, the appeal from the July 31, 2014 judgment is maintained.
The judgment is AFFIRMED insofar as it: (1) dismisses Glenn Patrick's claims for fraud, conspiracy to defraud, negligent misrepresentation, and detrimental reliance against the Plaquemine Bank & Trust Company and Stephen Panepinto as prescribed; (2) dismisses Glenn Patrick's and Samuel Carville's claims against Stephen Panepinto under the Louisiana Unfair Trade Practices Act as perempted; and (3) dismisses Glenn Patrick's and Samuel Carville's unjust enrichment claim against Plaquemine Bank & Trust Company and Stephen Panepinto for failure to state a cause of action.
The judgment is REVERSED insofar as it: (1) dismisses Samuel Carville's claims for fraud, conspiracy to defraud, negligent misrepresentation, and detrimental reliance against the Plaquemine Bank & Trust Company and Stephen Panepinto as prescribed; and (2) dismisses Samuel Carville's fraud, conspiracy, negligent misrepresentation, and detrimental reliance claims against the Plaquemine Bank & Trust Company and Stephen Panepinto for failure to state a cause of action.
This matter is REMANDED to the trial court for further proceeding consistent with this opinion and with instructions to set a delay for amendment of the petition after discovery has been conducted. If Samuel Carville fails to amend his petition as instructed, the trial court shall dismiss his negligent misrepresentation and detrimental reliance claims.
Costs of this appeal are assessed one-half to Plaquemine Bank & Trust Company and Stephen Panepinto; one-fourth to Glenn Patrick; and one-fourth to Samuel Carville.
APPEAL MAINTAINED; JULY 31, 2014 JUDGMENT AFFIRMED IN PART, REVERSED IN PART, REMANDED.