Opinion
No. 2006 CA 1850.
June 15, 2007.
APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE STATE OF LOUISIANA SUIT NUMBER 515,649 HONORABLE TIMOTHY KELLEY, PRESIDING.
Kelly Balfour, Baton Rouge, Counsel for Plaintiff/Appellant Wayne Stablier Catering, Inc.
Steven E. Adams, Baton Rouge, Counsel for Defendant/Appellee L'Eagle Productions, Inc.
Robert A. Kutcher, Metairie, Counsel for Defendant/Appellee Joseph D. Murphy
Before: PARRO, GUIDRY, and McCLENDON, JJ.
In this action to recover payment for services rendered, plaintiff, Wayne Stabiler Catering, Inc. (Stabiler Catering), appeals the trial court's granting of a summary judgment in favor of defendant, Joseph D. Murphy (Murphy), and dismissing its suit against him with prejudice. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On January 22, 2002, Stabiler Catering and Murphy, on behalf of L'Eagle Productions, Inc. (L'Eagle), entered into a contract for Stabiler Catering to provide catering services for a Super Bowl party on February 2, 2002, at Tipitina's in New Orleans. On the date of the event, L'Eagle issued a check, signed by Mmphy, to Stabiler Catering for $66,850.00, representing the balance due under the contract and reimbursement to Stabiler Catering for money advanced to L'Eagle. However, payment on the check was refused by L'Eagle's bank, which returned the check marked "NSF."
Thereafter, Stabiler Catering filed suit against L'Eagle and Murphy seeking payment on the NSF check, plus attorney fees and damages under La.R.S. 9:2782. Particularly, Stabiler Catering asserted Murphy was personally liable under the contract because his actions in issuing the $66,850.00 check constituted fraud, justifying piercing of the corporate veil. On October 26, 2005, Mmphy filed a motion for summary judgment asserting that Stabiler Catering could not prove Murphy's personal liability under the contract. Following a hearing on January 9, 2006, the trial court signed a judgment granting Murphy's request and dismissing Stabiler Catering's action against him with prejudice. Stabiler Catering now appeals from this judgment.
Stabiler Catering also asserted that piercing the corporate veil was warranted because Murphy issued the check in violation of La.R.S. 14:71, he utilized L'Eagle as his alter ego, and he fraudulently induced Stabiler Catering to advance $13,722.50 to L'Eagle on the date of the event. Additionally, Stabiler Catering asserted a claim for unfair trade practices in accordance with La.R.S. 51:1401, et seq.
DISCUSSION
An appellate court reviews a trial court's decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Walston v. Lakeview Regional Medical Center. 99-1920, p. 3 (La.App. 1st Cir. 9/22/00), 768 So. 2d 238, 240, writ denied. 00-2936 (La. 12/15/00), 777 So. 2d 1229. The motion should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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(B); Independent Fire Insurance Company v. Sunbeam Corporation. 99-2181, 99-2257, p. 7 (La. 2/29/00), 755 So. 2d 226, 230-231.
On a motion for summary judgment, if the moving party will not bear the burden of proof at trial on the matter before the court on the motion, the moving party must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact and summary judgment must be granted. La.C.C.P. art. 966(C)(2); Boland v. West Feliciana Parish Police Jury. 03-1297, p. 4 (La.App. 1st Cir. 6/25/04), 878 So. 2d 808, 813, writ denied. 04-2286 (La. 11/24/04), 888 So. 2d 231.
According to the record, Murphy relied on deposition testimony to assert that Stabiler Catering could not establish his personal liability for the $66,850.00. Particularly, Murphy alleged that there were no facts to support Stabiler Catering's claims asserting personal liability under La.R.S. 12:91(A), nor for its claims relating to piercing of the coiporate veil, unfair trade practices, and damages under La.R.S. 9:2782. The record does not contain any opposition from Stabiler Catering; however, counsel for Stabiler Catering refers to such opposition and its attachments at the hearing on the motion for summary judgment. Because Stabiler Catering designated the record on appeal, any deficiency of the record is imputable to it. However, based on Stabiler Catering's argument on appeal, we find this deficiency is immaterial to our review.
At the hearing on the motion for summary judgment, the trial court referred to exhibits A through C, which were introduced by Murphy. However, the only exhibit contained in the record on appeal is the deposition of Murphy.
On appeal, Stabiler Catering only argues that the trial court erred in granting summary judgment in favor of Murphy because Muiphy's actions clearly were grossly negligent under La.R.S. 12:91(A), which provides, in pertinent part:
Officers and shareholders shall be deemed to stand in a fiduciary relation to the coiporation and its shareholders, and shall discharge the duties of their respective positions in good faith, and with that diligence, care, judgment, and skill which ordinary prudent men would exercise under similar circumstances in like positions; however, a director or officer shall not be held personally liable to the corporation or the shareholders thereof for monetary damages unless the director or officer acted in a grossly negligent manner as defined in Subsection B of this Section, or engaged in conduct which demonstrates a greater disregard of the duty of care than gross negligence, including but not limited to intentional tortious conduct or intentional breach of his duty of loyalty.
[Emphasis added.]
According to the plain language of this statute, officers and directors can only incur personal liability to the corporation and shareholders thereof for grossly negligent actions. Therefore, under La.R.S. 12:91(A), Murphy, as an officer of L'Eagle, could only be liable to L'Eagle or to its shareholders. There are no facts to suggest that Stabiler Catering is a shareholder of L'Eagle. Accordingly, La.R.S. 12:91(A) cannot serve as a basis for imposing personal liability against Murphy in favor of Stabiler Catering.
Additionally, Stabiler Catering admits on the final page of its appellate brief that no evidence has been put forth regarding the corporate status of L'Eagle and whether the coiporate veil should be pierced. As stated earlier, Murphy pointed out in its motion for summary judgment that Stabiler Catering had made no showing that Murhpy committed any of the acts recognized as justifying a piercing of the coiporate veil. At that point, the burden shifted to Stabiler Catering to establish that it could meet its evidentiary burden of proof at trial. Having admittedly failed to do so, we find that the trial court was correct in granting summary judgment in favor of Muiphy.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are to be borne by the appellant, Wayne Stabiler Catering, Inc.