Lead Opinion
I ¿Plaintiff, Donald Joe Calloway,
FACTS AND PROCEDURAL HISTORY
Mr. Calloway filed suit against Ms. Lo-brano on November 23, 2015, seeking to be reimbursed for a $400,000.00 check he issued to her on August 15, 2012. Mr. Callo-way alleged that he delivered the check to his late grandfather, T Joe Calloway, who was Ms. Lobrano’s boyfriend, and that his grandfather presented the check to Ms. Lobrano, who negotiated it. Mr. Calloway alleged that he had made amicable demand on Ms. Lobrano, but she had not returned the funds. The petition stated the causes of action were “enrichment without cause” pursuant to La. C.C. art. 2298 and “obligation to restore” pursuant to La. C.C. art. 2299.
Ms. Lobrano filed a peremptory exception raising the objection of no cause of action, and in the alternative, raising the objection of prescription, claiming that Mr. Calloway failed to plead a prima facie cause of action for a claim of unjust enrichment. Ms. Lobrano also asserted that Mr. Calloway’s claim was prescribed pursuant to La. C.C. art. 3494(3), since the funds should have been characterized as a loan.
A hearing was held on February 22, 2016, wherein the trial court sustained Ms. Lobrano’s exception raising the objection of prescription and took the exception raising the objection of no cause of action under advisement,
Mr. Calloway filed a motion for new trial, which the trial court heard on May 16, 2016. The trial court denied the motion for new trial, and judgment was signed on May 20, 2016. Mr. Calloway moved for appeal from a final judgment rendered March 18, 2016.
ERRORS
Mr. Calloway claims that the trial court erred in finding that he failed to state a cause of action for unjust enrichment and in finding that his claim had prescribed.
j^LAW AND DISCUSSION
Exception of No Cause of Action
The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South Inc.,
In the present case, both the petition and amended petition filed by Mr. Calloway contained annexed documents, which this court must consider on our review of the exception raising the objection of no cause of action. The only | ^documentary evidence that may be considered on an exception raising the objection of no cause of action is that which has been annexed to the petition, unless the evidence is admitted without objection to enlarge the petition. Woodland Ridge Ass’n v. Cangelosi,
In reviewing a trial court’s ruling sustaining an exception raising the objection of no cause of action, the appellate court conducts a de novo review. The exception raises a question of law, and the trial court’s decision is based only on the sufficiency of the petition. Fink v. Bryant, 2001-0987 (La. 11/28/01),
When a petition states a cause of action as to any ground or portion of the demand, an exception raising the objection of no cause of action must be overruled. Thus, if the petition sets forth a cause of action, none of the other causes of action may be dismissed based on an exception pleading the objection of no cause of action. Further, any doubts are resolved in favor of the sufficiency of the petition. Copeland,
Unjust enrichment requires a person who has been enriched without cause at the expense of another person to provide compensation to that person. La. C.C. 1 fiart, 2298. Recovery pursuant to unjust enrichment requires a plaintiff to prove: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the resulting impoverishment; (4) an absence of justification or cause for the enrichment and impoverishment; and (5) the lack of another remedy at law. Davis v. Elmer,
Accepting the facts of the petition and amended petition as true, Mr. Callo-way asserts that Ms. Lobrano received money he did not owe. her; that she was enriched and he was impoverished by the same amount; that the enrichment and impoverishment were connected since the funds were drawn on, his, bank account; and that there was an absence of “justification” or ‘‘legal cause” for the impoverishment as the parties had neither an oral or written agreement concerning ■ the $400,000.00 payment. Although Mr. Callo-way states in his amended petition that he had no other legal remedy at law, he alternatively pleads that the money paid to Ms. Lobrano was a loan, which he expected, to be repaid within a year.
Ms. Lobrano argues ■ that Mr. Calloway failed to allege an absence of justification or legal cause of the impoverishment and did not allege a lack of any' other remedy. Ms. Lobrano asserts that 'Mr. Calloway has another remedy at law in the forrii -of an action to recover money lent, Mr..Callo-way argues that he asserted the causes of action of unjust enrichment and an action on money lent in the alternative. Louisiana Code of Civil Procedure article 89.2 pror vides “a petition may set forth two or more causes of action in the alternative, even though the legal |7or factual bases thereof may be inconsistent of mutually exclusive.” Easy Way Homes Corp. v. Vezinat, 2014-0240 (La. 4/17/14),
The pertinent issue is whether Mr. Calloway has available remedies, not whether he has a remedy against Ms. Lo-brano. The existence of a contractual remedy precludes a plaintiff from maintaining a cause of action in unjust .enrichment for the same damages. See Insulation Technologies, Inc. v. Industrial Labor and Equipment Services, Inc., 2013-0194 (La. App. 4 Cir. 8/14/13),
Accordingly, based on our de novo review, we conclude the trial court did not err by finding that Mr. Calloway has failed to state a cause of action against Ms. Lobrano for unjust enrichment.
Exception of Prescription
The objection of prescription may be raised by a peremptory exception. La. C.C.P. art. 927(A)(1). Although evidence may be introduced to support or controvert any objection pleaded, in the absence of evidence, an objection of | ^prescription must be decided upon facts alleged in the petition with all allegations accepted as true. La. C.C.P. art. 931; Cichirillo v. Avondale Industries, Inc., 2004-2894 (La. 11/29/05),
Ordinarily, a party urging an exception of prescription bears the burden of proving that the prescriptive period has elapsed. However, if the petition shows that it is prescribed on its face, then the burden shifts to the plaintiff to prove that the prescriptive period has not elapsed. Eastin v. Entergy Corp., 2003-1030 (La. 2/06/04),
|9Mr. Calloway claims that his action is not prescribed because as one for unjust enrichment, pursuant to La. C.C. art. 2298, it is subject to a ten-year prescriptive period. La. C.C. art. 3499. Ms. Lobrano asserts that the claim is for money lent, which has a three-year prescriptive period. La. C.C. art. 3494. This court has already determined that Mr. Calloway does not have a cause of action for unjust enrichment. Therefore, the only remaining issue is
In his amended petition, Mr. Cal-loway alleged that Ms. Lobrano agreed to pay back a “loan” within a year of August 15, 2012. At the hearing on the motion for new trial, Mr. Calloway stated that the money he gave to Ms. Lobrano was not a gift, but a loan, which he intended would be paid back. The loan for consumption is a contract by which a person, the lender, delivers consumable things to another, the borrower, who binds himself to return to the lender an equal amount of things of the same kind and quality. La. C.C. art. 2904. An action on money lent is subject to a three-year prescriptive period. La. C.C. art. 3494(3). The prescription commences to run from the day payment is exigible. La. C.C. art. 3495.
Mr. Calloway asserted in his original petition that the money was lent on August 15, 2012. The petition was filed on November 23, 2015. However, he asserts that there was no oral or written agreement as to the money loaned. He also testified that he and Ms. Lobrano did not discuss the repayment terms. Therefore, he claims that La. C.C. art. 2909 applies, which states, “[i]n the absence of a certain term or of an agreement that performance will be exigible at will, a reasonable term is applied.” Mr. Calloway claims in his amended petition, that he expected to be reimbursed within one year of August 15, 2012, based on a previous loan from Ms. Lobrano to him that he repaid in one year. However, attached to Mr. Calloway’s amended petition is a May 19, 2015 letter from Ms-lm Lobrano’s counsel to Mr. Cal-loway’s counsel rebutting the claim that the disputed funds were a loan. Mr. Callo-way’s testimony at the motion for new trial hearing, that he had no agreement with Ms. Lobrano, rebuts his allegation that she agreed to a one-year term. Based on the conflicting evidence in the record, the trial court apparently made a factual determination that there was a loan, but that it was not subject to a one-year term, and prescribed before Mr. Calloway filed suit. Mr. Calloway’s personal expectation does not create a reasonable term. Furthermore, Mr. Calloway’s loan to Ms. Lobrano became exigible upon the date he made the loan, August 15, 2012. Performance of an Obligation not subject to a term is due immediately. La. C.C. art. 1777; See Webb v. Webb,
ANSWER TO APPEAL
Ms. Lobrano answered the appeal and requested damages and costs for a frivolous appeal. Louisiana Code of Civil Procedure article 2164 provides that an appellate court may award damages, including attorney fees, for a frivolous appeal, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable. The courts have been reluctant to grant damages under this article, as it is penal in nature and must be strictly construed. In order to assess damages for a frivolous appeal, it must appear that the appeal was taken solely for the purpose of delay or that counsel does not sincerely believe in the view of law he advocates. Furthermore, because appeals are favored in our law, penalties for the filing of a frivolous appeal will not be imposed unless they are clearly due. Henkelmann v. Whiskey Island Preserve, LLC,
CONCLUSION
For the above and foregoing reasons, the trial court’s March 18, 2016 judgment, granting Anna Lobrano’s exceptions raising the objections of no cause of action and prescription, and dismissing the claims of Donald Joe Calloway, with prejudice, is hereby affirmed. Costs of this appeal are assessed against plaintiff, Donald Joe Cal-loway.
AFFIRMED.
McDonald, J. concurs in the result only and assigns reasons.
Notes
. Mr. Calloway has no relation to Judge Cal-loway, the author of this opinion,
. This court notes that the minutes of the trial court refer to the hearing, but that the record before us does not contain the transcript of what transpired at that hearing.
. In her brief, Ms. Lobrano asserts that the trial court took the exception of no cause of action under advisement on the date of the hearing so that it could consider the amended petition Mr. Calloway filed on the morning of the hearing.
.This court notes that the "18” is scratched out and replaced with a "20” in the record. However, there is no judgment rendered in this matter on March 20, 2016.
Concurrence Opinion
concurring.
1,1 respectfully concur in the result only. At best,' this case has a confusing procedural posture. On February 22, 2016, the trial court conducted a hearing on exceptions of prescription and no cause of action as to the original petition. The petition made a claim for unjust enrichment. The defendant pointed out that the claim was actually' one for money lent. Thus, since the plaintiff had this valid claim under Louisiana law, there was no cause of action for unjust enrichment. Additionally, a claim for money lent prescribes in three years and since suit was not filed within that time, it was prescribed. Inexplicably, the trial court granted the exception of prescription without first ‘ determining what type of action the plaintiff had and took the' no cause of action exception under consideration. Later, the judge also granted that exception and a judgment was signed on March 18, 2016. Evidently, a funny thing happened on the way to the hearing on February 22. The plaintiff filed an amended
| gAfter the adverse decision on the original petition, the plaintiff filed a motion for new trial. This was heard on May 18. Strangely, it appears that at this hearing, the trial court addressed not only the issues actually before the court on the motion for new trial, but also the new “money lent” claim in the amended petition. We know this because the record indicates testimony by Mr. Calloway concerning his understanding that he loaned the money to Ms. Lobrano and it was due and payable one year after the date she borrowed it. The transcript of the hearing also indicates argument by counsel for both parties and discussion by the court about the Claims in the amended petition. A judgment was signed on May 20, 2016, that denied the motion for new trial. The judgment does not mention the- amended petition. So, even if the issues to be decided by the trial court at the May 18 hearing were expanded to include the exceptions of prescription
It is difficult to determine what is before us on appeal. The notice of appeal only mentions one judgment, the March 18 judgment. As noted by the majority, the number “18” has been lined out and the number “20” as been written in. It is most likely that Mr. Calloway intended to appeal the May 20, 2016 judgment. This, arguably, would have appealed the judgment of March 18 granting the exceptions of prescription and no cause of action as well as the decision denying the motion for new trial on those issues in the original petition. However, I am not sure the May 20 judgment addresses the issues in the amended petition; I do not believe there is a judgment on those issues. The May 20 judgment only denies the motion for new trial; it does nothing else.
Thus, in reviewing the March 18 judgment, we need not discuss the amended petition since it is not before us. As already mentioned, I do not believe it can be before us, because there is no judgment that directly deals with it. However, I believe the majority is correct in affirming the trial court’s judgment.
For these reasons, I respectfully concur.
. While ‘titled, as an "amended petition” this .is actually- a supplemental petition. Rather than amend any of the original eight paragraphs of the original petition it adds new paragraphs and asserts a new cause of action.
. On February 29, 2016, the trial court issued written reasons that were memorialized in the March 18 judgment. In his reasons that sustained both the exception of prescription and no cause of action, the trial court judge only references the cause of action for unjust enrichment and states that he does not believe the grounds raised in the exception can be removed by amending the petition. This would certainly indicate that he was unaware that an amended petition had already been filed-