Opinion
No. 5930.
January 8, 1974. February 6, 1974 Granting Limited Rehearing. May 10, 1974 On Limited Rehearing.
APPEAL FROM THE CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS, STATE OF LOUISIANA, DIVISION "G", NO. 540-203, HONORABLE PAUL P. GAROFALO, JUDGE.
Favret Favret, J. Paul Demarest, New Orleans, for plaintiff-appellant.
Carr Kollin, Patrick E. Carr, Metairie, for defendant-appellee.
Before SAMUEL and BOUTALL, JJ., and BAILES, J. Pro Tem.
This is a companion case to that of Servi-Clean Industries, Inc. v. Tonti Management Corporation, La.App., 294 So.2d 580 No. 529 on the docket of this court. These two cases were consolidated for trial and the judgment rendered by the trial court herein was identical to that rendered on the original petition of Servi-Clean Industries, Inc. in No. 5929.
However, the plaintiff herein was not involved in the petition in intervention in the class action filed in No. 5929 by Servi-Clean Industries, Inc.
The trial court, ex proprio motu, sustained a peremptory exception of no right of action and dismissed plaintiff's action at its costs.
For the reasons assigned in the companion case of Servi-Clean Industries, Inc. v. Tonti Management Corporation, No. 5929, there is judgment herein in favor of Pinkerton's, Inc., plaintiff-appellant, and against Tonti Management Corporation, defendant-appellee, in the sum of $1,072.00, together with legal interest thereon from date of judicial demand until paid, and for all court costs incurred in the district court and on appeal.
Reversed and rendered.
ON APPLICATION FOR REHEARING
We grant a rehearing for consideration of:
1. The extent of Liability of Tonti Management Corporation for the debts of the transferor, McCarthy Construction Company; and
2. Whether this court should remand this matter to the trial court for trial on the merits.
Arguments on briefs only to be submitted within 15 days from this date.
In all other respects the applications for rehearing are denied.
Limited rehearing granted.
ON LIMITED REHEARING GRANTED
Although not within the bounds of the limited rehearing granted herein, Tonti raises the issue of remanding this case to the district court contending that there has been no trial on the merits. The basis for our rendering judgment herein was the following portion of Tonti's brief filed in this court on original hearing.
We quote from page four of Defendant-Appellee's original brief, to-wit:
"To reach a decision herein, there are three possible questions presented to the Court.
"1. Is the sale of a hotel, including a restaurant and bar, subject to the provisions of the Bulk Sales law?
"If the answer to this question is negative, the plaintiffs' suit must be dismissed. However, should the Court decide that such a sale is covered by the Bulk Sales Law, it must decide the following question:
"2. Does the mere fact, standing alone, that a sale subject to the provisions of the Bulk Sales Law, is made without first obtaining a list of creditors and giving them notice thereof, make the purchaser liable to the creditors up to their fair value of the thing purchased?
"If the answer to this question is yes, then plaintiffs are entitled to judgment. * * *." (Emphasis supplied by the court.)
This court found the answer to both of the questions posed by Tonti to be in the affirmative, and accordingly followed the admission of Tonti that Pinkerton's, Inc. and Servi-Clean Industries, Inc. were entitled to judgment for the amount sued for we rendered judgment in accordance therewith.
For the reasons assigned on rehearing in the companion case of Servi-Clean Industries, Inc. v. Tonti Management Corporation, La.App., 294 So.2d 580, on the docket of this court, this case is remanded to the trial court for the restricted purpose of determining the amount of the judgment to which appellant is entitled.
Accordingly, the judgment of the trial court is reversed and this case is remanded to the trial court for further proceedings consistent herewith. All cost of this appeal are assessed against Tonti Management Corporation, and the assessment of all other court costs to await final determination of the case.
Reversed and remanded.