TRACY VINCE AND JOANN VINCE ON BEHALF OF SOUTHLAND EXPRESS, LLC
METRO REDISCOUNT COMPANY, INC., BRIAN BRENNAN AND FRANK J. ADOLF
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 722-504, DIVISION
"N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE
COUNSEL FOR PLAINTIFF/APPELLANT, TRACY VINCE, JOANN VINCE AND
SOUTHLAND EXPRESS, LLC James E. Cazalot, Jr.
COUNSEL FOR DEFENDANT/APPELLEE, BRIAN BRENNAN Dominick F.
composed of Judges Susan M. Chehardy, Marc E. Johnson, and
John J. Molaison, Jr.
J. MOLAISON, JR. JUDGE.
plaintiffs appeal a judgment that granted the defendant's
exception of no cause of action. We affirm.
OF THE CASE
to the record before us, on January 30, 2008,
plaintiffs/appellants, Tracy Vince and JoAnn Vince,
individually and on behalf of Southland Express, L.L.C.
("Southland"), entered into a "Business
Manager Agreement" with defendant, Metro Rediscount
Company, Inc. ("Metro"), pertaining to the sale of
certain receivables arising from the "sales or services
to [Southland's customers.]"The contract provided that
Metro would "retain a portion of the sums payable"
from Metro to Southland "to provide for satisfaction of
[Southland's] Repurchase Obligation." Trace Vince
and JoAnn Vince acted as personal guarantors for the
contract, which was accepted by Frank Adolf
("Adolf"), in his capacity as president of Metro.
Also executed on January 30, 2008, were three separate
commercial security agreements in favor of Metro by
Southland, JoAnn Vince, individually, and Tracy Vince,
December 31, 2012, plaintiffs/appellants, Tracy Vince and
JoAnn Vince, individually and on behalf of Southland, filed a
petition in the Twenty-Fourth Judicial District Court for
damages against defendants, Metro, appellee Brian Brennan
("Brennan"), and Adolf, alleging that defendants
owed Southland a balance of $527, 101.57 on an open account.
On March 18, 2013, defendants filed an answer, as well as
exceptions of no cause of action and no right of action. The
trial court granted defendants' exceptions on September
17, 2013, and gave leave for appellants to amend and
supplement their petition "at any time" prior to
when the matter was set for trial.
filed their first amended and supplemental petition for
damages on September 1, 2016. On October 19, 2016, Brennan
filed an answer to Southland's amended and supplemental
petition, and also set forth various exceptions, raised
affirmative defenses and asserted cross-claims against
defendants Adolph, Metro, and Metro Rediscount Company of
Kenner II, L.L.C. ("Metro II"),  as Metro's
successor in interest. On November 3, 2017, Brennan filed a
"motion for summary judgment and/or exception of no
cause of action", which was heard by the trial court on
December 13, 2017. On that same date, the trial court granted
Brennan's exception of no cause of action, dismissing all
claims against him with prejudice. The trial court further
determined that Brennan's motion for summary judgment was
moot. Appellants thereafter timely sought the instant
sole assignment of error is that the trial court erred in
granting Brennan's exception of no cause of action, when
the petition and amended petition alleged sufficient facts to
establish causes of action for fraud and the liability of
Brennan as a corporate officer.
function of an exception of no cause of action is to test the
legal sufficiency of a petition by determining whether the
law affords a remedy on the facts alleged in the pleadings.
City of New Orleans v. Bd. of Dirs. of the La. State
Museum, 98-1170 (La. 3/2/99), 739 So.2d 748, 755. No
evidence may be introduced at any time to support or
controvert the objection that the petition fails to state a
cause of action. La. C.C.P. art. 931. Therefore, an exception
of no cause of action is triable solely on the face of the
reviewing a trial court's ruling sustaining an exception
of no cause of action, the appellate court should subject the
case to de novo review because the exception raises
a question of law and the lower court's decision is based
only on the sufficiency of the petition. City of New
Orleans v. Bd. of Comm'rs, 93-0690 (La. 7/5/94), 640
So.2d 237, 253. "[A]n exception of no cause of action
must be overruled unless the allegations of the petition
exclude every reasonable hypothesis other than the premise
upon which the defense is based; that is, unless plaintiff
has no cause of action under any evidence admissible under
the pleadings." Haskins v. Clary, 346 So.2d
193, 195 (La. 1977).
appellants' original petition, Brennan was named as a
defendant and identified as
"Officer/Vice-President/Secretary of Metro Rediscount
Company, Inc." Adolph was identified as the
"Officer/President" of Metro. The factual
allegations in the original petition, in summary, were that
Southland contracted with Metro to collect payments from
Southland's customers in Jefferson Parish. At a certain
point in time, payments to Southland from Metro started to be
returned from the bank for non-sufficient funds. Southland
contacted Adolph directly and "requested he immediately
cease accepting payments from Southland's
customers." Southland alleged that Adolf continued to
collect Southland's customer payments and submit checks
to Southland that were returned by the bank as
non-sufficient. Southland claimed that it terminated its
relationship with Metro while Metro still allegedly owed it
customer funds in the amount of $527, 101.57.
only factual allegation pertaining to Brennan in the original
petition was that, "Joann Vince has also spoken to
Metro's other Officer/Vice-President/Secretary, Brian
Brennan, on multiple occasions who continues to indicate