156 So. 3d 763
La. Ct. App.2014Background
- McKey hired Syzygy Construction (an LLC) in 2008 to build a Valuebuild kit home; Syzygy was formed in 2006 and held a residential contractor license.
- Syzygy's members/managers were Anthony Mason and Travis Marking; Marking was the qualifying party on the contractor license.
- A dispute arose during construction, Syzygy sued McKey on open account for unpaid balance; McKey filed reconventional demands against Syzygy, Mason, and Marking alleging fraud, breach of contract, professional negligence, and negligent infliction of emotional distress.
- McKey claimed Mason personally induced her to contract by misrepresenting Syzygy’s SIP (pre-cut panel) experience and that poor workmanship demonstrated fraud and professional negligence.
- Mason moved for summary judgment asserting absence of evidence of fraud and that he is not a “professional” for purposes of La. R.S. 12:1320(D) (citing Ogea v. Merritt). Trial court granted summary judgment; McKey appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fraudulent inducement under La. R.S. 12:1320(D) (piercing LLC protection) | McKey: Mason misrepresented Syzygy’s experience with SIP homes and induced contract; poor workmanship corroborates misrepresentations | Mason: Syzygy was licensed; Mason had prior construction/SIP experience; no evidence he intentionally misrepresented or concealed facts | Court: No genuine issue of material fact that Mason committed fraud; summary judgment affirmed |
| Breach of professional duty under La. R.S. 12:1320(D) (personal liability for LLC member) | McKey: Mason’s construction performance fell below industry standards — should be treated as breach of professional duty to pierce limited liability | Mason: He was not the qualifying licensed party and held no individual contractor license; under Ogea, a contractor without proof of individual licensure is not shown to be a “professional” for §12:1320(D) | Court: Mason is not a “professional” under the statute; professional negligence exception inapplicable; summary judgment affirmed |
Key Cases Cited
- Ogea v. Merritt, 130 So.3d 888 (La. 2013) (defines fraud and explains that poor workmanship alone does not trigger LLC-member liability; interprets "breach of professional duty" and the role of individual licensure)
- Samaha v. Rau, 977 So.2d 880 (La. 2008) (summary judgment standard explained)
- Davis v. Canadian Nat. Ry., 137 So.3d 11 (La. 2014) (reiterates de novo appellate review of summary judgment)