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Calloway v. Lobrano

Court of Appeals of Louisiana, First Circuit

April 12, 2017

DONALD JOE CALLOWAY
v.
ANNA LOBRANO

         On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No. 643, 998, Sec. 26 The Honorable Donald R. Johnson, Judge Presiding

          Nicholas M. Graphia, Attorney for Plaintiff/ Appellant, Donald Joe Calloway

          Dale R. Baringer James S. Holliday, Jr. Benjamin J.B. Klein James R. Bullman Jarred W. Schick, Attorneys for Defendant/ Appellee, Anna Lobrano

          BEFORE: PETTIGREW, McDONALD, AND CALLOWAY[1], JJ.

          CALLOWAY, J.

         Plaintiff, Donald Joe Calloway, [2] appeals a judgment granting the exceptions raising the objections of no cause of action and prescription filed by defendant, Anna Lobrano, and dismissing his claims with prejudice. For the reasons stated herein, we affirm.

         FACTS AND PROCEDURAL HISTORY

         Mr. Calloway filed suit against Ms. Lobrano on November 23, 2015, seeking to be reimbursed for a $400, 000.00 check he issued to her on August 15, 2012. Mr. Calloway alleged that he delivered the check to his late grandfather, T Joe Calloway, who was Ms. Lobrano's boyfriend, and that his grandfather presented the check to Ms. Lobrano, who negotiated it. Mr. Calloway alleged that he had made amicable demand on Ms. Lobrano, but she had not returned the funds. The petition stated the causes of action were "enrichment without cause" pursuant to La. C.C. art. 2298 and "obligation to restore" pursuant to La. C.C. art. 2299.

         Ms. Lobrano filed a peremptory exception raising the objection of no cause of action, and in the alternative, raising the objection of prescription, claiming that Mr. Calloway failed to plead a prima facie cause of action for a claim of unjust enrichment. Ms. Lobrano also asserted that Mr. Calloway's claim was prescribed pursuant to La. C.C. art. 3494(3), since the funds should have been characterized as a loan.

         A hearing was held on February 22, 2016, wherein the trial court sustained Ms. Lobrano's exception raising the objection of prescription and took the exception raising the objection of no cause of action under advisement.[3] On the same date as the hearing, Mr. Calloway filed an amended petition alleging the elements of a cause of action of unjust enrichment and asserting, alternatively, that the check made payable to Ms. Lobrano was a loan of which he expected to be repaid a year from the date of the check. It is unclear from the record if the trial court was aware of the amended petition at the time of the hearing or when it issued its oral ruling.[4] On February 29, 2016, the trial court issued a ruling sustaining the exceptions raising the objections of no cause of action and of prescription, and judgment was signed accordingly on March 18, 2016.

         Mr. Calloway filed a motion for new trial, which the trial court heard on May 16, 2016. The trial court denied the motion for new trial, and judgment was signed on May 20, 2016. Mr. Calloway moved for appeal from a final judgment rendered March 18, 2016.[5] He also acknowledged that a motion for new trial hearing was held on May 16, 2016, which was denied and that he desired to "appeal devolutively from the final judgment rendered in this action." The only description of the final judgment in the motion for appeal refers to the March 18, 2016 judgment, not the May 20, 2016 judgment denying the motion for new trial. The actual order signed by the trial court does not specify which judgment is being appealed. Therefore, given the motion and order before us in the record, we consider this appeal to be from the March 18, 2016 judgment on the merits, the only judgment referenced by Mr. Calloway in his motion for appeal.

         ERRORS

         Mr. Calloway claims that the trial court erred in finding that he failed to state a cause of action for unjust enrichment and in finding that his claim had prescribed.

         LAW AND DISCUSSION

         Exception of No ...


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