Opinion
No. 2010 CA 1820.
March 25, 2011.
ON APPEAL FROM THE 21ST JUDICIAL DISTRICT COURT PARISH OF TANGIPAHOA, LOUISIANA DOCKET NO. 2009-0003632, DIVISION "F" HONORABLE ELIZABETH P. WOLFE, JUDGE PRESIDING.
Michael L. DeShazo, Henry W. Kinney, Kinney Ellinghausen, New Orleans, LA, Attorneys for Plaintiff-Appellant PSX, Inc.
Nicholas J. Muscarelio, Jr., Hammond, LA, Attorney for Defendant-Appellee, University Place, L.L.C.
BEFORE: PARRO, GUIDRY, AND HUGHES, JJ.
Plaintiff/appellant, PSX, Inc. (PSX), appeals two judgments in favor of University Place, L.L.C. (University). The first, on April 14, 2010, sustained University's exception raising the objection of no cause of action, dismissing PSX's claims against it and allowing PSX to amend its petition to substitute a different defendant. The second, on June 21, 2010, denied PSX's motion for new trial, except to the extent of amending the April 14, 2010 judgment to remove PSX's right to amend its petition and to clarify that said judgment was a final, appealable judgment. We reverse both judgments and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
PSX filed a petition on open account against University on October 14, 2009, alleging that it had been hired by University to supply and install audiovisual and lighting systems at Chevy's NightClub in Hammond, Louisiana, which is situated on immovable property owned by University. PSX supplied and installed such equipment between July 2007 and July 2008 and billed University at various times during that period for a total amount of $293,316.56. University paid some of the invoices, but ultimately did not fully pay what was owed, leaving a balance in the amount of $62,530.01. PSX sought the amount of this unpaid balance, plus legal interest, attorney fees, and costs.
University filed an exception raising the objection of no cause of action, claiming that PSX did not have a relationship with it, but with a separate legal entity named "Chevy's on the Avenue, LLC" (Chevy's LLC). It claimed that since the invoices attached to PSX's petition showed they were billed to "Chevy's NightClub," those invoices established that PSX had no cause of action against University, but might have a cause of action against Chevy's LLC.
PSX opposed the exception on the grounds that its petition had clearly stated a cause of action against University, and that neither its petition nor attachments made any mention of Chevy's LLC. Moreover, since LSA-C.C.P. art. 931 provides that no evidence could be introduced in connection with the objection of no cause of action, there was no way for University to support its objection.
Following a hearing, the district court sustained the exception, dismissed PSX's claims against University, and allowed PSX to amend its petition to substitute Chevy's LLC as defendant. The judgment was signed April 14, 2010, and PSX filed a motion for new trial on April 23, 2010. The court denied the motion after a hearing, but stated that, "by mutual consent of the parties," the court's April 14, 2010 judgment was amended to remove PSX's right to amend and substitute a new defendant and to clarify that it was a final and appealable judgment. PSX timely appealed both judgments.
DISCUSSION
An exception of no cause of action tests the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La. 1993). For the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. City of New Orleans v. Board of Comm'rs of Orleans Levee Dist., 93-0690 (La. 7/5/94), 640 So.2d 237, 241; see LSA-C.C.P. arts. 927 and 931. Furthermore, the facts shown in any documents annexed to the petition must also be accepted as true. See LSA-C.C.P. art. 853; Cardinale v. Stanga, 01-1443 (La. App. 1st Cir. 9/27/02), 835 So.2d 576, 578. The burden of demonstrating that no cause of action has been stated is on the party filing the exception. Home Distribution, Inc. v. Dollar Amusement, Inc., 98-1692 (La. App. 1st Cir. 9/24/99), 754 So.2d 1057, 1060.
In ruling on an exception of no cause of action, the court must determine whether the law affords any relief to the claimant if he proves the factual allegations in the petition and annexed documents at trial. Home Distribution, 754 So.2d at 1060. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. LSA-C.C.P. art. 931. When a petition is read to determine whether a cause of action has been stated, it must be interpreted, if possible, to maintain the cause of action instead of dismissing the petition. Any reasonable doubt concerning the sufficiency of the petition must be resolved in favor of finding that a cause of action has been stated. Brister v. GEICO Ins., 01-0179 (La. App. 1st Cir. 3/28/02), 813 So.2d 614, 617.
The reviewing court conducts a de novo review of a trial court's ruling sustaining an exception of no cause of action, because the exception raises a question of law, and the lower court's decision is based only on the sufficiency of the petition. B C Elec., Inc. v. East Baton Rouge Parish Sch. Bd., 02-1578 (La. App. 1st Cir. 5/9/03), 849 So.2d 616, 619. When the grounds of the objection pleaded 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 cannot be so removed, the action shall be dismissed. LSA-C.C.P. art. 934; Adams v. Owens-Corning Fiberglas Corp., 04-1296 (La. App. 1st Cir. 9/23/05), 921 So.2d 972, 976, writ denied, 05-2501 (La. 4/17/06), 926 So.2d 514.
The petition filed by PSX stated that University was indebted to it in the amount of $62,530.01, together with legal interest. PSX stated that University had hired it to supply and install audiovisual and lighting systems at Chevy's NightClub. The total cost of the services and equipment supplied and installed by PSX was alleged to be $293,316.56. The petition further stated that University paid only $230,786.55 of that amount, leaving a balance of $62,530.01. PSX attached copies of six invoices showing Chevy's NightClub as the payor, one invoice to University for interest on several invoices, and a copy of the PSX customer ledger, showing the "Customer ID" as "Chevy's" and the "Customer" as "University Place, LLC." The PSX ledger summarized all the invoices and payments; it showed an unpaid balance of $62,530.01.
These factual allegations stated a cause of action against University for amounts owed to PSX on an open account. According to LSA-R.S. 9:2781(D), "open account" includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. University's argument is that it was not a contracting party with PSX; the actual contracting party was Chevy's LLC. Yet, PSX has alleged in its petition that University hired it to perform certain services and to supply certain equipment at a named location. The allegations of the petition must be accepted as true. Accepting as true that University contracted with PSX, then PSX has a claim against it for the amounts owed. The petition and the attachments show that services were provided and invoices were sent at various times between July 2007 and July 2008, that University made partial payments during that period, and that $62,530.01 is still owed by University to PSX. If PSX can prove at trial the allegations made in its petition, it will be entitled to an award of the amount owed against University. See LSA-R.S. 9:2781. Therefore, the district court erred in sustaining University's exception raising the objection of no cause of action.
The court further erred in dictating the terms of the amendment of the petition by ordering PSX to substitute Chevy's LLC as a defendant.
The judgment signed on April 14, 2010, stated that University was dismissed from the lawsuit. A judgment dismissing a suit as to the only defendant is a final judgment. See LSA-C.C.P. art. 1841. Such a judgment does not need to be designated as a final judgment by the court. Therefore, University could have appealed the judgment at that time or filed a motion for a new trial. See LSA-C.C.P. arts. 2083 and 1971. Notice of judgment was sent to PSX on April 16, 2010; consequently, the seven-day delay for applying for a new trial commenced to run on April 17, 2010. See LSA-C.C.P. art. 1974. PSX filed its motion for a new trial on April 23, 2010. Therefore, PSX's motion was timely.
A new trial may be granted on all or part of the issues and for reargument only. LSA-C.C.P. art. 1971. A trial court has virtually unlimited discretion to grant a new trial when it is convinced that a miscarriage of justice has resulted, and, unless an abuse of discretion can be demonstrated, a trial court's action in granting or denying a new trial on discretionary grounds will not be reversed. LSA-C.C.P. art. 1973; Deliberto v. Deliberto, 400 So.2d 1096, 1098 (La. App. 1st Cir. 1981).
Both parties were present at the hearing on the motion for a new trial and, according to the June 21, 2010 judgment, they mutually consented to an amendment of the April 14, 2010 judgment to remove PSC's right to amend its petition to substitute Chevy's LLC as a defendant. The court stated that the motion for a new trial was denied, except for that amendment, and further stated that the amendment was "in order to clarify that said judgment is a final, appealable judgment." As previously discussed, there was no need for this amendment, because the earlier judgment had dismissed the only defendant, and thus was a final, appealable judgment pursuant to LSA-C.C.P. art. 1841.
Moreover, although the court stated in the judgment that the motion for new trial was denied, inherent in the issuance of a judgment that changes aspects of the original judgment is the fact that the court actually granted the motion, although only in part. See Heritage Worldwide, Inc. v. Jimmy Swaggart Ministries, 95-0484 (La. App. 1st Cir. 1/16/95), 665 So.2d 523, 526-27, writ denied, 96-0415 (La. 3/29/96), 670 So.2d 1233. However, since the court's original judgment sustaining the exception of no cause of action was legally incorrect, the court should have granted the motion for new trial and reversed its previous judgment completely, as it was clearly contrary to the law. See LSA-C.C.P. art. 1972(1). Therefore, its judgment on the motion for new trial was also legal error.
CONCLUSION
For the above reasons, the judgments of April 14, 2010, and June 21, 2010, are reversed, and this case is remanded to the district court for further proceedings. All costs of this appeal are assessed to University Place, L.L.C.
REVERSED AND REMANDED.
The differing names on the invoices raise questions, and I disagree that the attachments to the petition establish that University made payments. However, I agree that for purposes of the exception of no cause of action the allegations of the petition are accepted as true, and PSX alleges it contracted with University. Therefore I respectfully concur.