FLUID DISPOSAL SPECIALTIES, INC. Plaintiff-Appellee
UNIFIRST CORPORATION Defendant-Appellant
Opinion Filed Date September 25, 2019.
Appealed from the Second Judicial District Court for the
Parish of Claiborne, Louisiana Trial Court No. 40393
Honorable Jimmy Cecil Teat, Judge
OFFICE OF DAVID TURANSKY, LLC By: David C. Turansky Counsel
COLVIN, SMITH & MCKAY By: James Henry Colvin, Jr. Daniel
N. Bays, Jr. Counsel for Appellee
WILLIAMS, STONE, and THOMPSON, JJ.
dispute arises out of a supposed contract between UniFirst
Corporation ("UniFirst") and Fluid Disposal
Specialties ("FDS"), which FDS shop foreman Kenny
Bryce ("Bryce") signed in his capacity as agent of
FDS. UniFirst pursues this appeal in its capacity as
plaintiff-in-reconvention. The appellees are FDS and Bryce,
case previously came to us as an appeal of the trial
court's granting of a preliminary injunction against
enforcement of the contract via arbitration. We affirmed the
preliminary injunction on the ground that Bryce lacked
authority. Subsequently, UniFirst filed a reconventional
demand in the trial court, asserting various causes of
action, including open account and unjust enrichment. FDS
filed an exception of no cause of action and a motion for
summary judgment ("MSJ") asserting prescription of
the open account action. The trial court granted the MSJ and
dismissed the exception of no cause of action as moot, and
dismissed the entire case with prejudice. UniFirst filed this
appeal. For the reasons stated herein, we reverse the trial
court judgment and deny both the exception of no cause of
action and the MSJ.
AND PROCEDURAL HISTORY
the plaintiff, is in the business of leasing work uniforms to
employers. The defendants are FDS and Bryce, a shop foreman
for FDS. On April 3, 2014, Bryce, supposedly without
authority to do so, signed a contract purporting to bind FDS
to a uniform supply contract with UniFirst. A short time
later, Bryce entered a second uniform supply contract with
UniFirst, again purporting to act as agent of FDS.
Thereafter, UniFirst delivered the uniforms; FDS accepted the
uniforms and paid the rental charges for approximately eight
to ten months. However, FDS then stopped making payments, and
apparently returned the uniforms. FDS made the last payment
via check dated February 28, 2015. This check allegedly did
not clear the bank until March 30, 2015.
filed arbitration proceedings against FDS pursuant to the
contract. On March 24, 2015, FDS obtained a preliminary
injunction from the trial court barring further arbitration
proceedings. We affirmed that preliminary injunction,
reasoning that Bryce had no authority to bind FDS to the
contract, and thus, the arbitration provision thereof was
unenforceable against FDS. Fluid Disposal Specialties,
Inc. v. UniFirst Corp., 50, 356 (La. App 2 Cir.
1/13/16), 186 So.3d 210.
March 6, 2018, UniFirst filed a reconventional demand in the
trial court seeking recovery on multiple grounds, including
open account and unjust enrichment. FDS filed an exception of
no cause of action, and a MSJ asserting that the open account
action was prescribed. The trial court granted the MSJ, and
issued a final judgment dismissing any and all causes of
action asserted in the reconventional demand. The trial court
also dismissed the exception of no cause of action as moot.
filed the instant appeal, urging the following six
assignments of error: (1) the trial court erred in applying
the one-year prescriptive period for delictual actions to an
action which has nothing to do with any tort; (2) the trial
court erred in failing to find that UniFirst's filing for
arbitration interrupted prescription, which interruption
continued until UniFirst filed its reconventional demand; (3)
the trial court erred in failing to realize that its own
judgment rendered in March, 2015, was a preliminary
injunction, not a permanent injunction and that arbitration
proceedings were enjoined, "pending further orders of
this court to the contrary," thus continuing to
interrupt prescription; (4) the trial court erred in failing
to recognize that the prescriptive period on an action on
open account is three years from the date of the last payment
on the account; (5) the trial court failed to apply the
10-year prescriptive period for a quasi-contractual action;
and (6) the trial court failed to overrule the exception of
no cause of action.
Robert L. Manard III PLC v. Falcon Law Firm PLC,
2012-0147 (La.App. 4 Cir. 11/16/12), 119 So.3d 1, 7, on
reh'g (La.App. 4 Cir. 4/10/13), the court stated:
Louisiana jurisprudence is well settled that the character of
an action as disclosed in the pleadings determines the
applicable prescriptive period. SS v. State ex rel. Dept.
of Social Services, 02-0831, p. 7 (La.12/4/02), 831
So.2d 926, 931; Starns v. Emmons, 538 So.2d 275, 277
(La.1989); Qayyum v. Morehouse General Hospital, 38,
530 (La.App. 2 Cir. 5/12/04), 874 So.2d 371, 374.
this court will address the exception of no cause of action
prior to addressing the issue of prescription.
before addressing the exception of no cause of action, we
must consider the effect of our prior ruling affirming the
preliminary injunction. Regarding an appellate court, the
"law of the case doctrine" is merely a
discretionary policy. Day v. Campbell-Grosjean Roofing
& Sheet Metal Corp., 260 La. 325, 256 So.2d 105 (La.
1971). Thereunder, "an appellate court ordinarily will
not, on subsequent appeal, reconsider its own rulings of
law [emphasis supplied] on a subsequent appeal in in the
same case." Hanson v. River Cities Disposal,
51, 700 (La.App. 2 Cir. 11/5/17), 245 So.3d 213; Bank
One, National Ass'n v. Velten, 2004-2001 (La.App. 4
Cir. 8/17/05), 917 So.2d 454, 458, writ denied
2006-0040 (La. 4/28/06), 927 So.2d 283, cert. denied
549 U.S. 826, 127 S.Ct. 349 (2006). The Supreme Court, in
Babineaux v. Pernie-Bailey Drilling Co., 261 La.
1080, 262 So.2d 328, 332 (1972), stated:
The law of the case rule cannot supplant the Code of Civil
Procedure…[and]…only applies when the same
issue is presented to the same court that has previously
decided that issue in the same case which has
not become res judicata (Emphasis in original; internal
citations and quotation marks omitted).
Bank One, supra, the Fourth Circuit rejected the
argument that issuance of a preliminary injunction requires
application of the law of the case doctrine. In so doing, the
court reasoned as follows:
A writ of preliminary injunction is essentially an
interlocutory order issued in a summary proceeding incidental
to the main demand for permanent injunctive relief. It is
designed to and serves the purpose of preventing irreparable
harm by preserving the status quo between the parties pending
a determination on the merits of the controversy. The
principal demand, as opposed to the injunction, is determined
on its merits only after a full trial under ordinary process,
even though the hearing on the summary proceedings to obtain
the injunction may touch upon or decide issues regarding the
merits. (Internal citations omitted).
One at 458.
reasons articulated in Bank One, supra, we decline
to apply the law of the case doctrine.
of no cause of action
Jackson v. City of New Orleans, 12-2742 (La.
1/28/14), 144 So.3d 876, 895, the Louisiana Supreme Court
The peremptory exception of no cause of action is designed to
test the legal sufficiency of a petition by determining
whether a party is afforded a remedy in law based on the
facts alleged in the pleading. All well-pleaded allegations
of fact are accepted as true and correct, and all doubts are
resolved in favor of sufficiency of the petition so as to
afford litigants their day in court. The burden of
demonstrating that a petition fails to state a cause of
action is upon the mover. The sufficiency of a petition
subject to an exception of no cause of action is a question
of law, and a de novo standard is applied to the review of
legal questions; this court renders a judgment based on the
record without deference to the legal conclusions of the
has a "fact pleading" system, as opposed to the
federal "notice pleading" system. La. C.C.P. art.
854, cmt. (a). To state a cause of action in a Louisiana
court, a petition must allege the material facts constituting
the cause of action. Id.
trial court granted a preliminary injunction against
enforcement of the arbitration clause in the purported
contract. In affirming the preliminary injunction, this court
found that Bryce ...