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Palowsky v. Cork

Court of Appeal of Louisiana, Second Circuit

February 26, 2015

STANLEY R. PALOWSKY, III, Plaintiff-Respondent
v.
W. BRANDON CORK, ANTHONY WHITE, OHC SERVICES, LLC AND ALTERNATIVE ENVIRONMENTAL SOLUTIONS, INC., Defendant-Applicants

On Application for Writs from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana. Trial Court No. 2013-2059 (Civil Writ). Honorable Wilson Rambo, Judge.

HAYES, HARKEY, SMITH & CASCIO, By: Thomas M. Hayes, III, Brandon W. Creekbaum Counsel for Applicant, W. Brandon Cork.

WARD & CONDREY, By: Joseph R. Ward, Jr., Counsel for Respondent, Stanley R. Palowsky, III.

SEDRIC E. BANKS, Counsel for Respondent, Alternative Environmental, Solutions, Inc.

WEINER, WEISS & MADISON, By: M. Allyn Stroud, Counsel for Respondents, Anthony White and OHC Services, LLC.

SEABAUGH, JOFFRION, SEPULVADO & VICTORY, LLC, By: Christopher T. Victory, Counsel for Respondent, T.P. Environment & Pipeline Services, LLC.

Before MOORE, LOLLEY and PITMAN, JJ.

OPINION

Page 487

[49,515 La.App. 2 Cir. 1] MOORE, J.

One of the defendants, W. Brandon Cork, seeks supervisory review of the Fourth Judicial District Court's denial of his motion to strike an answer filed by another defendant, Alternative Environmental Solutions Inc. (" AESI" ). Cork contends that as 50% shareholder in AESI, he never authorized AESI to retain counsel and file an answer. In the unique factual circumstances presented, we grant the writ and make it peremptory, grant the motion to strike, without prejudice, and remand for further proceedings.

Factual and Procedural Background

According to the pleadings, Cork and the plaintiff, Stanley Palowsky III, incorporated AESI in 1998. Each is a 50% shareholder and an officer. AESI's business was stated as " environmental consulting services," essentially soil shredding. In late 1998 or early 1999, AESI obtained a contract with an unnamed principal (referred to in the pleadings as " a major oil company" and later disclosed to be Anadarko).

In March 2008, Cork, on behalf of AESI, signed a master service agreement with OHC Services LLC, through its principal, Anthony White. In essence, OHC was to be a subcontractor providing equipment and general services for any general contract that AESI might obtain. In 2011, the major oil company awarded AESI a large contract, which brought AESI gross revenues of $4.7 million in 2012.

In July 2012, however, Palowsky discovered an invoice from OHC, which he interpreted as seriously overbilling AESI. In Palowsky's view, OHC had fraudulently marked up services provided to it by TP Environmental (another subcontractor); White had submitted the invoice to [49,515 La.App. 2 Cir. 2] Cork; Cork had incorporated the ...


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