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Streiffer v. Deltatech Construction, LLC

Court of Appeals of Louisiana, Fourth Circuit

October 10, 2018


          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-10916, DIVISION "I" Honorable Piper D. Griffin, Judge.

          Jonathan L. Schultis Jack A. Ricci Michael S. Ricci RICCI PARTNERS, LLC COUNSEL FOR PLAINTIFFS/APPELLEES


          Court composed of Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins.

          Daniel L. Dysart Judge.

         Deltatech Construction, LLC, and Sandra Tomasetti, appeal a judgment against them, in favor of plaintiffs, Anne and Richard Streiffer, for damages in the amount of $63, 785.77, plus costs and attorney fees. For the reasons that follow, we affirm the judgment as to Deltatech Construction, LLC, and reverse the judgment as to Sandra Tomasetti, individually.


         Ann and Richard Streiffer (hereinafter "plaintiffs"), contracted with Deltatech Construction, LLC (hereinafter Deltatech), to remodel and renovate their home, located at 1138 Joseph Street in New Orleans. The Petition for Breach of Contract and Damages, alleges that plaintiffs contracted with Deltatech and Sandra Tomasetti (hereinafter "Tomasetti"), individually.

         Plaintiffs allege in the petition filed November 20, 2013, that numerous problems arose during the renovation causing them to incur damages in the form of corrective work and materials purchased to fix or replace defective work and materials provided by Deltatech. The petition outlines in great detail the problems incurred, but does not allege any actions taken by Tomasetti outside of her role as general contractor.

         Following service of the petition on both defendants, a motion for additional time to respond was filed on December 26, 2013, on behalf of Tomasetti and Deltatech. The pleading was signed by Tomasetti, in proper person, both individually, and as a member of Deltatech. Additionally, Karl Guilbeau (hereinafter "Guilbeau"), signed in proper person as a member of Deltatech.[1]Guilbeau also listed his Louisiana Bar Roll number with "ineligible" in parentheses. The trial court signed an order granting an additional thirty days to respond.

         On January 16, 2014, an Exception of No Cause of Action was filed as to Tomasetti, which was signed by her and Guilbeau, both in proper person. An answer was filed the same date on behalf of Deltatech, and signed by both Tomasetti and Guilbeau, in proper person as members of Deltatech. Guilbeau made no reference to his status as an attorney in either pleading.

         Following a telephone conference with all parties, a judgment was signed by the trial court on October 20, 2015, ruling that Guilbeau was not eligible to practice law at that time, and thus could not represent Deltatech. In reasons for judgment, the trial court found that as Deltatech is a fictional legal person, it could only be represented by licensed counsel. The trial court stated that Deltatech "has no right to proceed without counsel and cannot act or appear pro se. DeltaTech [sic] may only appear in court through counsel and may not be represented by its sole member Mr. Karl Guilbeau. Accordingly, the Court will not consider Mr. Guilbeau as a proper person to represent DeltaTech [sic] Construction, L.L.C., for purposes of this litigation." The trial court thereafter ordered Deltatech to obtain counsel to proceed.

         Deltatech applied to this Court and the Supreme Court for supervisory review. The notice of intent was signed by Guilbeau as a member of Deltatech. Both Courts denied the writ applications.

         Despite the trial court's ruling disqualifying Guilbeau from representing Deltatech, Guilbeau filed a Motion for Sanctions Pursuant to La. Code Civ. Proc. art. 863, and a Memorandum in Opposition to Plaintiffs Motion to Enforce Judgment rendered on October 20, 2015 (filed on September 21, 2016), and Deltatech Construction's Witness List (filed on January 15, 2017). The trial court set a hearing on the Motion for Sanctions, after which the trial court granted plaintiffs' motion and denied Deltatech's motion.

         On February 2, 2017, Tomasetti filed a Petition in Reconvention for Abuse of Process. Although it is unclear from the wording of the document, it appears that the demand is on behalf of her personally and on behalf of Deltatech. Contrary to the title of the pleading, the substance of the pleading answers all of the allegations made in plaintiffs' petition. Plaintiffs moved to strike the reconventional demand based on its untimely filing.

         On March 24, 2017, the trial court granted plaintiffs' motion in limine to exclude all witnesses and exhibits by Deltatech, and denied Tomasetti's motion to determine sufficiency of responses by plaintiffs. Counsel for plaintiffs stated that Deltatech had filed an answer, but that Tomasetti had not. The court explained that because issue had not been joined as to Tomasetti, the trial could not go forward against her, and suggested that the trial be bifurcated. Thereafter, Tomasetti informed the court that she had filed an amended witness list, indicating that she was appearing for trial, and plaintiffs' counsel moved for the trial court to enter a general denial on her behalf. The motion was granted and the matter proceeded to trial on April 4, 2017.

         Following a three day trial, the trial court found in favor of plaintiffs and against Deltatech and Tomasetti, in her personal capacity. It awarded plaintiffs $63, 785.77, ...

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