Opinion
2022 CA 0539
11-04-2022
ANH TUYET TRAN v. DRINKABLE AIR, INC., DRINKABLE AIR TECHNOLOGIES, LLC, AND DRINKABLE AIR, LLC
Connie P. Trieu Veleka Eskinde Gretna, LA Counsel for Plaintiff/Appellant Anh Tuyet Tran David M. Cohn, D. Brian Cohn, Bartley P. Bourgeois, Allyson Jarreau, Baton Rouge, LA Counsel for Defendant/Appellee Drinkable Air Technologies, LLC
NOT DESIGNATED FOR PUBLICATION
Appealed from the 21st Judicial District Court in and for the Parish of Livingston State of Louisiana Case No. 166440 The Honorable Charlotte H. Foster, Judge Presiding
Connie P. Trieu Veleka Eskinde Gretna, LA Counsel for Plaintiff/Appellant Anh Tuyet Tran
David M. Cohn, D. Brian Cohn, Bartley P. Bourgeois, Allyson Jarreau, Baton Rouge, LA Counsel for Defendant/Appellee Drinkable Air Technologies, LLC
BEFORE: WELCH, PENZATO, AND LANIER, JJ
LANIER, J.
The appellant, Anh Tuyet Tran, challenges the Twenty-First Judicial District Court's judgment, which sustained a declinatory exception raising the objection of lack of personal jurisdiction and reinstated a previous judgment sustaining a peremptory exception raising the objection of no cause of action, both in favor of the appellee, Drinkable Air Technologies, LLC. The judgment further denied Drinkable Air Technologies, LLC's motion for sanctions. The appellee has answered the appeal. For the following reasons, we affirm the portion of the district court's judgment sustaining the declinatory exception raising the objection of lack of personal jurisdiction in favor of Drinkable Air Technologies, LLC. We vacate the portion of the judgment sustaining the peremptory exceptions raising the objection of no cause of action in favor of Drinkable Air Technologies, LLC. Additionally, we deny the answer to the appeal.
FACTS AND PROCEDURAL HISTORY
The plaintiff, Ms. Tran, filed a petition on March 6, 2020 against Drinkable Air, Inc., Drinkable Air, LLC, and Drinkable Air Technologies, LLC (the appellee). In the petition, Ms. Tran alleged that Sach Dinh Nguyen loaned money to Drinkable Air, Inc. in three separate notes, dated March 7, 2011, March 18, 2011, and April 8, 2011, respectively. As of the filing of Ms. Tran's petition, Drinkable Air, Inc. had failed to pay the amounts it owed on the notes in full. On November 26, 2016, Mr. Nguyen executed an assignment of all rights on the notes to Ms. Tran, his wife, including the right to sue and collect the funds secured by the notes.
Ms. Tran alleged in her petition that Drinkable Air, Inc. is a Florida corporation with its principal place of business in the state of Florida, and that its registered agent for process also resides in Florida. The appellee, Drinkable Air Technologies, LLC, is the successor to Drinkable Air, Inc., with the appellee's members domiciled in the states of Florida and New York. The registered agent for the appellee resides in Florida. Drinkable Air, LLC is a Louisiana limited liability company, and its registered agent for process is Ambrose Szur, who resides in Denham Springs, Louisiana. Ms. Tran stated that Mr. Szur executed the notes on behalf of Drinkable Air, Inc. According to Ms. Tran, Drinkable Air, Inc. was in default of all three notes, and that she and Mr. Nguyen had sent multiple demand letters for full payment. The last payment was received on December 31, 2015. Ms. Tran prayed for judgment holding all three defendants solidarily liable for payment on all three of the notes, including interest, costs, and attorney's fees.
The petition refers to all three defendants collectively as "Drinkable Air;" however, in giving the factual background, the petition specifically states that Mr. Szur executed the notes on behalf of Drinkable Air, Inc.
On April 17, 2020, the appellee filed exceptions raising the objections of lack of personal jurisdiction, no cause of action, vagueness, and prescription. The district court signed a judgment on June 22, 2020, which sustained the appellee's exceptions of lack of personal jurisdiction, no cause of action, and vagueness. The exception of prescription was overruled. The district court granted Ms. Tran thirty days from June 1, 2020 to amend her petition to cure the grounds for the exceptions.
On June 30, 2020, Ms. Tran filed an amended petition, naming all the same defendants. She alleged that Drinkable Air, Inc. was a Florida corporation, and its registered agent was John Fasano, who was also domiciled in Florida. Ms. Tran also alleged that the appellee was the successor to Drinkable Air, Inc., with its members being domiciled in Florida and New York. The appellee's registered agent was Thomas Laury, who was domiciled in Florida. Ms. Tran further alleged that Drinkable Air, LLC was a Louisiana limited liability company, and its registered agent was Mr. Szur, who was domiciled in Louisiana.
Additionally, Ms. Tran alleged in her amended petition that Drinkable Air, LLC and Drinkable Air, Inc. shared Mr. Szur as their initial director, and that they were the same entity when he signed the notes for Drinkable Air, Inc. Ms. Lran again alleged that she was the holder of these notes. She further alleged that, according to the appellee's website, the appellee claimed to be the successor of Drinkable Air, Inc., which the website called its "predecessor company." Ms. Tran also alleged that the appellee, which was located approximately ten miles from Drinkable Air, Inc. in Florida, manufactures the same products and provides the same services as its predecessor.
In response to the amended petition, the appellee filed exceptions on July 31, 2020, raising the objections of lack of personal jurisdiction, no cause of action, and vagueness. Additionally, the appellee moved for sanctions against Ms. Tran. A hearing was held on October 13, 2020, and on November 2, 2020, the district court signed a judgment sustaining an exception of no cause of action, ruling that the exceptions of lack of personal jurisdiction and vagueness were moot, and dismissing the petition against the appellee with prejudice.
The judgment is unclear as to which defendant's exception of no cause of action was granted; however, this judgment is not before us on appeal.
The district court signed an order on November 9, 2020, granting Ms. Tran an appeal of the November 2, 2020 judgment. This Court vacated the district court's judgment and remanded for further proceedings, holding that the district court failed to rule on the merits of the declinatory exception raising the objection of lack of personal jurisdiction prior to ruling on the peremptory exception raising the objection of no cause of action. Tran v. Drinkable Air, Inc., 2021-0182 (La.App. 1 Cir. 10/8/21), 330 So.3d 1125. After remand, the matter was heard on February 7, 2022, and the district court signed a judgment on February 15, 2022, sustaining the appellee's exception of lack of personal jurisdiction, denying the appellee's motion for sanctions, and reinstating the November 2, 2020 judgment insofar as it sustained the exception of no cause of action and dismissed the appellee with prejudice. Ms. Tran has appealed the February 15, 2022 judgment.
The transcript reflects that the trial court orally sustained the exceptions of lack of personal jurisdiction, then stated that the November 2, 2020 judgment sustaining the appellee's exception of no cause of action, vacated by the Court in Tran, 330 So.3d 1125, "will stay in effect." However, upon finding that it lacked personal jurisdiction over the appellee, the trial court had no legal power and authority to consider the appellee's peremptory exception of no cause of action. See Tran, 330 So.3d at 1128. Therefore, we vacate the portion of the February 15, 2022 judgment that sustains the appellee's exception of no cause of action. See Coalition for Responsible Zoning, LLC v. Parish of St. Tammany, 2021-0710 (La. App, 1 Cir. 3/30/22), 2022 WL 997757, *2, n.5 (unpublished).
ASSIGNMENTS OF ERROR
Ms. Tran alleges the following assignments of error:
1. The district court erred in sustaining the appellee's declinatory exception raising the objection of lack of personal jurisdiction, as there were sufficient contacts in the forum state through its conduct.
2. The district court erred in sustaining the appellee's peremptory exception raising the objection of no cause of action based upon conduct, and public persona establishing itself as the successor corporation to Drinkable Air, Inc.
In its answer to the appeal, the appellee states that the judgment fails to award attorney's fees for the frivolous lawsuit filed by Ms. Tran, which was requested by the motion for sanctions filed by the appellee. The appellee also claims that the instant appeal is frivolous and requests that attorney's fees and costs of the instant appeal be awarded to the appellee.
The answer to the appeal describes the judgment as "signed on October 8, 2021." This is apparently a typographical error, as October 8, 2021 is the date this Court rendered judgment vacating the November 2, 2020 judgment and remanding for further proceedings. The district court's judgment dated February 15, 2022 denied the appellee's motion for sanctions, and we find, from the appellee's answer and brief, that the appellee clearly intended to reference that judgment.
STANDARD OF REVIEW
In reviewing a judgment on an exception of lack of personal jurisdiction, the factual findings underlying the judgment are reviewed for manifest error. Northshore Regional Medical Center, L.L.C. v. Dill, 2011-2271 (La.App. 1 Cir. 6/8/12), 94 So.3d 155, 160, writ denied, 2012-1494 (La. 10/8/12), 98 So.3d 862. However, the application of established rules of law to the facts involves a purely legal question. Id., at 161. Thus, appellate courts use a de novo standard of review to determine the legal issue of whether a Louisiana court may exercise personal jurisdiction over a non-resident. Id.
In order to subject a nonresident defendant to personal jurisdiction, the defendant must have sufficient minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Delahoussaye v. Boelter, 2015-1790 (La.App. 1 Cir. 7/28/16), 199 So.3d 633, 637, writ denied, 2016-01626 (La. 11/18/16), 210 So.3d 290. Based on our review of the record, we find no real dispute as to the facts related to the jurisdictional issue before us, and therefore, we review the purely legal issue de novo. See Dill, 94 So.3d at 161.
DISCUSSION
Louisiana's "long-arm" statute, La. R.S. 13:3201, extends personal jurisdiction of courts sitting in Louisiana to the limits permitted under the due process clause of the Fourteenth Amendment of the U.S. Constitution. Guidry v. U.S. Tobacco., Inc., 188 F.3d 619, 624, (5th Cir. 1999), rehearing and suggestion for rehearing en banc denied, 199 F.3d 441. The limits of the long-arm statute are coextensive with the limits of constitutional due process. Bridges v. Autozone Properties, Inc., 2004-0814 (La. 3/24/05), 900 So.2d 784, 803.
The test developed for determining whether a court has personal jurisdiction over a party is whether the nonresident has established "minimum contacts" with the forum such that maintenance of the suit does not offend "traditional notions of fair play and substantial justice." de Reyes v. Marine Management and Consulting, Ltd. 586 So.2d 103, 106 (La. 1991), quoting International Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 160, 90 L.Ed. 95 (1945).
On the trial of a declinatory exception raising the objection of lack of personal jurisdiction, evidence may be introduced to support or controvert the objection, when the grounds thereof do not appear from the petition, the citation, or return thereon. La. C.C.P. art. 930. At the hearing on the exception, the appellee filed its memorandum and an affidavit into the record. The affidavit is that of Mr. Laury, who attested that he is the CEO and a member of the appellee, which is a Delaware limited liability company doing business in Florida. He further attested that the appellee has never done business in Louisiana, that the appellee had purchased at public sale "specific assets only" of Drinkable Air, Inc. on or about March 20, 2018, that the appellee has never assumed any liability of Drinkable Air, Inc. and Drinkable Air, LLC, and has no legal relationship with the other defendants.
Attached to Ms. Tran's amended petition are the promissory notes. Each note indentifies Drinkable Air, Inc. as "borrower," and Mr. Szur signed as CFO for Drinkable Air, Inc. A photocopy of a check from Drinkable Air, Inc. with the notation "note payment" is also included. Finally, Ms. Tran attached the "about us" section of the appellee's website to her amended petition. The document states that the appellee is based in Florida and, along with its "predecessor company, Drinkable Air, Inc.," it sells products "worldwide." (R. 89) Although Ms. Tran attached documents to her opposition to the appellee's exceptions, but failed to introduce the exhibits into evidence during the hearing, the exhibits may not be considered by this Court. See Atain Specialty Ins. Co. v. Premier Performance Marine, LLC, 2015-1128 (La.App. 1 Cir. 4/8/16), 193 So.3d 187, 190 (Unless properly offered and introduced into evidence, documents attached to memoranda do not constitute evidence and may not be considered as such on appeal).
From the record, we find that Mr. Szur, who resides in Louisiana, conducted business on behalf of Drinkable Air., Inc. when he signed the promissory notes. He did not directly conduct business on behalf of the appellee. Relying on an exhibit attached to her amended petition, Ms. Tran asserts that the appellee states on its website that, together with its predecessor, Drinkable Air, Inc., it conducts its business "worldwide." However, this does not necessarily suggest or prove that the appellee conducted business in Louisiana as the successor of Drinkable Air, Inc. More clearly, Mr. Laury's affidavit states that the appellee was entirely based in Florida, has never conducted business in Louisiana, and has not assumed liability for Drinkable Air, Inc. or Drinkable Air, LLC. Ms. Tran has not shown an affirmative assumption of liability from Drinkable Air, Inc. to the appellee to controvert Mr. Laury's affidavit.
Since Ms. Tran has not proven that the appellee has assumed the liability of payment on the promissory notes, the responsibility of payment on the notes rests entirely with Drinkable Air, Inc. Only Drinkable Air, Inc. is named as "borrower" on the notes, and the notes are not paraphed to indicate that the appellee has assumed liability for the notes. Mr. Szur signed the notes as CFO for Drinkable Air, Inc., and did not express that he signed on behalf of the appellee. Based on our review of the record, we find that the appellee has insufficient minimum contacts with the state of Louisiana. Since the requirement of minimum contacts has not been established, a discussion about fairness is not necessary.
Since we find that the state of Louisiana lacks personal jurisdiction over the appellee, we pretermit discussion on whether Ms. Tran's amended petition states a cause of action.
Lastly, the appellee has asserted in its answer to the instant appeal that the district court erred in denying sanctions for Ms. Tran's frivolous lawsuit, and has also requested sanctions against Ms. Tran for filing a frivolous appeal.
Louisiana Code of Civil Procedure article 863 does not empower a court to impose sanctions on lawyers simply because a particular argument or ground for relief is subsequently found to be unjustified. The failure to prevail does not of itself trigger an award of sanctions. Fleming v. Spinnaker Insurance Company, 2021-1564 (La.App. 1 Cir. 6/3/22), 343 So.3d 200, 203. The article is intended to be used only in exceptional circumstances; where there is even the slightest justification for the assertion of a legal right, sanctions are not warranted. Id.
The district court granted Ms. Tran thirty days to amend her petition, which she did. Ms. Tran did allege that one of the defendants and its registered agent for process were based in Louisiana. Therefore we find that, although Ms. Tran's petition was ultimately dismissed, she did show some justification for filing the suit, since there were entities named in her petition that had a relationship to Louisiana.
As for the request for sanctions on appeal, La. C.C.P. art. 2164 authorizes a claim for damages for frivolous appeal, but its provisions are penal in nature and must be strictly construed. Appeals are favored and the imposition of penalties for a frivolous appeal will not be granted unless they are clearly due. Damages for frivolous appeal will not lie unless it manifestly appears that the appeal was taken solely for delay or that appealing counsel does not seriously believe in the position she advocates, even though the appeal lacks serious merit. American Supply Co. of Morgan City, Inc. v. Tara Alyene, Inc., 470 So.2d 459, 460 (La.App. 1 Cir. 1985). Where contentions on appeal are without merit, but raise legitimate issues, damages for frivolous appeals are not allowed. Id.
We do not find that Ms. Tran filed the instant appeal solely for the purpose of delay, and it is very apparent that Ms. Tran seriously believed in her position, as her position was well-briefed. Although she does not prevail on her appeal, Ms. Tran did raise a legitimate, well-recognized legal issue for this Court to review. As such, the appellee's answer to the appeal is denied.
DECREE
The portion of the February 15, 2022 judgment of the Twenty-First Judicial District Court sustaining the peremptory exception of no cause of action is vacated. The remainder of the aforementioned judgment is affirmed. The answer to the appeal filed by Drinkable Air Technologies, LLC, is denied. All costs associated with this appeal are assessed to Anh Tuyet Tran.
JUDGMENT AFFIRMED IN PART; VACATED IN PART; ANSWER TO APPEAL DENIED.