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Kitziger v. Mire

Court of Appeals of Louisiana, Fifth Circuit

September 24, 2019

JULIE GORDON KITZIGER
v.
MICHAEL F. MIRE

          ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 765-038, DIVISION "O" HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/RESPONDENT, JULIE GORDON KITZIGER Matthew A. Sherman, David R. Sherman, Patrick R. Follette, Nicholas R. Varisco

          COUNSEL FOR DEFENDANT/RELATOR, MICHAEL F. MIRE Andrew P. Burnside, Andrew J. Halverson

          Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson

          ROBERT A. CHAISSON JUDGE

         In this case concerning disputed compensation, defendant Michael F. Mire seeks supervisory review of the trial court's denial of his exceptions of prescription and no cause of action.

         FACTS & PROCEDURAL HISTORY

         On September 26, 2016, Julie Kitziger filed a petition for damages naming Mr. Mire the sole defendant. The facts as set forth in the original and amended petition are as follows:

         In 2003, Ms. Kitziger, who has a degree in business, was working as a salesperson for an oil and gas firm. She was recruited by Mr. Mire to work as a salesperson at his company, Gulfstream Services, Inc. At that time, and on numerous occasions thereafter, Mr. Mire made promises and representations to Ms. Kitziger that she would be "taken care of and that he would "take her to retirement" if she came to work for him at Gulfstream. Based on such promises, Ms. Kitziger left her previous employer and began working as a salesperson at Gulfstream. From 2003 to 2015, Ms. Kitziger brought several accounts to the company. In 2013, Gulfstream hired a new sales manager who purportedly began harassing and bullying Ms. Kitziger; she had sales accounts taken away and her bonuses were diminished. The purported harassment lasted approximately 10 months, during which time Mr. Mire encouraged Ms. Kitziger to "hang in there." In October of 2014, Gulfstream was purchased by the Jordan Company. Following the sale, Mr. Mire continued working for Jordan in an executive role. Ms. Kitziger continued her employment as a salesperson with the Jordan Company until she was terminated on September 28, 2015, supposedly at Mr. Mire's direction. The petition sets forth three causes of action: 1) negligent misrepresentation; 2) detrimental reliance; and 3) unjust enrichment.

         In response to this original petition, Mr. Mire filed a peremptory exception of no cause of action arguing that Ms. Kitziger's claims amounted to a wrongful termination suit and therefore it was necessary to analyze them under La. C.C. art. 2747, Louisiana's at-will employment statute.[1] At the hearing of Mr. Mire's exception, the trial court indicated that an exception of vagueness might have been appropriate because Ms. Kitziger's cause of action was not clearly pled.

         In an attempt to clarify the causes of action brought by Ms. Kitziger, her counsel argued that "the termination did not have anything to do with these negligent misrepresentations, the detrimental reliance or the unjust enrichment, " the termination "is very clearly not related to this case, " "it's our position that this case is completely separate and apart from the termination, " and that her cause of action is "absolutely not" for continued employment. In a February 16, 2017 judgment, the trial court sustained Mr. Mire's peremptory exception, but allowed Ms. Kitziger 45 days to amend her petition to remove the grounds for the exception.

         Ms. Kitziger amended her petition in an attempt to cure the grounds for the exception of no cause of action. In her amended petition, she states that the promises were made by Mr. Mire in his individual capacity, not in his capacity as an officer or owner of Gulfstream, and they were not made to her for indefinite or lifelong employment. Ms. Kitziger also alleged in her amended petition that Mr. Mire promised her she would be substantially compensated by Mr. Mire, individually, if she assisted him in growing and eventually selling Gulfstream. Ms. Kitziger, upon belief that she would be substantially compensated by Mr. Mire upon a sale of Gulfstream, brought at least one potential buyer to Mr. Mire.[2]

         In response to the first amending petition, Mr. Mire filed a second peremptory exception of no cause of action, which the trial court denied. In its reasons for judgment, the trial court found that Ms. Kitziger had alleged facts sufficient to state a cause of action for detrimental reliance.

         Mr. Mire filed additional peremptory exceptions of prescription and no cause of action. The trial court also denied these exceptions. It is from this ...


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