|! This litigation arises out of four gas supply agreements. Parties to the litigation are Huntsman International, L.L.C., Praxair, Inc. and Rubicon, L.L.C. Huntsman is a chemical manufacturer. It acquires industrial gases used to produce methylene-diphenyl diisocyanate (“MDI”) at its plant in Geismar, Louisiana. Rubicon operates Huntsman’s MDI plant. Huntsman owns 100% of the MDI products produced at the plant and directs the work of Rubicon. Praxair operates a plant adjacent to Huntsman’s MDI plant and supplies
| ^Huntsman and Rubicon filed suit against Praxair asserting claims of breach of contract, detrimental reliance and unjust enrichment, alleging that Praxair has failed to meet its obligations under the gas supply agreements to deliver gas supplies to Huntsman’s MDI plant. Praxair filed certain exceptions to the original and first amending and supplemental petitions. Some of these exceptions were denied, others were granted. As to those exceptions granted, the trial court allowed Huntsman and Rubicon leave to amend their petition to remove the grounds of the exceptions as per La. C.C.P. art. 934. Huntsman and Rubicon then filed a Second Amended and Supplemental Petition.
In its exception of no right of action as to Huntsman’s breach of contract claim, Praxair argued that Huntsman failed to show that it is a party, to the gas supply agreements or that Rubicon acted as an agent of Huntsman in executing those agreements. In its exception of no cause of action as.to Huntsman’s detrimental reliance and unjust enrichment claims, Prax-air argued that those claims are based on the same alleged failures of Praxair to perform under the gas supply agreements, and Huntsman cannot cure its lack of standing by relabeling its contract claim under different headings.
|sOn June 25, 2015, the trial court granted Praxair’s exceptions as to Huntsman, dismissing Huntsman’s claims against Praxair, with prejudice.
Huntsman first argues that the trial court erred by applying the wrong legal standard in ruling on Praxair’s exceptions of no right of action and no cause of action. This argument stems from the trial court’s reasons for judgment, which state:
In this very complicated case, Huntsman International, L.L.C. (“Huntsman”) faded to show that it is a party to the gas supply contract with Praxair, Inc., or that Rubicon, L.L.C. (“Rubicon”) acted as an agent of Huntsman in executing these contracts. Huntsman’s claims of unjust enrichment and detrimental reliance are dismissed for the same reasons. Since Rubicon was a signatory to the*904 contracts at issue, it can pursue its breach of contract claims, but no unjust enrichment or detrimental reliance.
Huntsman argues that the trial court erroneously shifted the burden of proof from Praxair to Huntsman to prove that it had a right of action for breach of contract. Huntsman correctly states that the exceptor, Praxair, had the burden of proving that Huntsman has no right of action for breach of contract against Praxair. See Hospitality Consultants, LLC v. Angeron,
Huntsman next argues that the trial court erred in granting Praxair’s exception of no right of action as to its breach of contract claim against Praxair. Huntsman acknowledges that either Rubicon or Rubicon’s predecessors in interest were signatories to the four gas supply agreements at issue and that it, Huntsman, was not.
“It is well settled that on consideration of an exception of no right of action the averments of fact in the pleading, must be taken as true in the absence of evidence to the contrary.” Board of Directors of Louisiana Recovery Dist. v. All Taxpayers, Property Owners, and Citizens of State of La,
On an exception of no right of action, the parties may introduce evidence
According to the allegations of the petition, Huntsman owns a large chemical plant in Geismar, Louisiana, which manufactures methylene diphenyl diisocyanate (“MDI”), and is operated by Rubicon. Praxair operates a plant adjacent to Huntsman’s MDI plant, and is the exclusive supplier of hydrogen and carbon monoxide to Huntsman’s MDI plant under four gas supply 'agreements and amendments thereto. Hydrogen and carbon monoxide are two critical components in the manufacture of MDI. MDI is used in making polyurethane, which is a | ^chemical also manufactured by Huntsman. Huntsman and Rubicon have alleged that Praxair has failed to meet its obligations under the agreements to deliver these gas supplies to Huntsman’s MDI plant.
The four gas supply agreements at issue were executed on April 1, 1970, June 18, 1981, December 1, 1986 and January 1, 1998, and have all been amended. The 1970 and 1981 agreements were executed between Rubicon Chemicals, Inc. (“RCI”) and Liquid Carbonic Corp. (Praxair’s predecessor in interest). The 1986 agreement was executed between Rubicon Inc. and Liquid Carbonic Specialty Gas Corporation, and stated that Rubicon Inc. succeeded in interest to the rights and obligations of ICI Amеricas, Inc. “(as the successor through merger of Rubicon Chemicals Inc.)”, and that Liquid Carbonic Specialty Gas Corporation succeeded in interest to the rights and obligations of Liquid Carbonic Corp. The 1998 agreement was executed between Praxair (formerly Liquid Carbonic Corp.) and Rubicon Inc. (as successor to RCI), and stated that Praxair and Rubicon Inc. are parties to the agreements dated April 1, 1970, June 18, 1981 and December 1, 1986 (and amendments thereto), for the supply of hydrogen gas and carbon monoxide gas in certain quantities by Praxair to Rubicon Inc.
On June 30,1999, a Transfer Agreement was executed between Huntsman ICI Holdings LLC and ICI Americas, Inc. (a successor of RCI) whereby ICI transferred, among other items, its polyurethanes business and business contracts to Huntsman ICI Holdings LLC. In this agreement, Huntsman ICI Holdings LLC also acquired partial ownership of Rubicon. The petition states that all references to Huntsman also include its predecessors in interest.
Huntsman and Rubicon allege that in 1999, Huntsman became a sucсessor in interest to RCI and the 1970 and 1981 gas supply contracts and amendments by virtue of its acquisitions of all polyurethanes assets of ICI Americas, Inc. (“ICI”), which was also a successor to RCI.
Huntsman and Rubicon also allege that Rubicon and its predecessors entered into all four gas supply agreements as the agent of Huntsman. The Huntsman/Rubicon petition includes a paragraph, which states: “Rubicon LLC specifically pleads that it, and its predecessors, acted as аgent on behalf of Huntsman in entering into contracts, and all amendments thereto, with Praxair for the supply of hydrogen and carbon monoxide to be used for the benefit of Huntsman’s MDI plant.” Additionally, Huntsman and Rubicon included several paragraphs in their petition in support of their allegation that Rubicon operates Huntsman’s MDI plant solely for Huntsman’s benefit. Specifically, they alleged that Rubicon does not own, sell or hold title to any commercial product consumed and produced at any of the Huntsman plants, and that Rubicon acts as Huntsman’s agent when acquiring raw mar terials consumed in the production of MDI at Huntsman’s plant.
| sIn support of its exception of no right of action, Praxair submitted a memorandum and attached the four gas supply agreements, the amendments thereto and affidavits of two Praxair employees: Thomas R. Dalton, Executive Director of Prax-air Hydrogen & Co.; and Amer Akhras, General Manager, Helium and Rare'Gases. Both affidavits were executed in 2015. Mr. Dalton stated that Praxair knew Rubicon is a joint venture partly owned by Huntsman. However, Mr. Dalton stated that Praxair “never has believed” Huntsman was a party to the gas supply agreements and “never believed” that Rubicon acted as an- agent for Huntsman regarding the agreements. Mr. Akhras stated in his affidavit that he “understood” Rubicon, not Huntsman, was the party to the agreements. Each stated that it was “understood” that Rubicon employees were acting on behalf of Rubicon regarding the gas supply agreements, even if they also held positions at Huntsman, and that no one ever represented to either of them that Rubicon was acting as an agent for Huntsman.
In opposition to Praxair’s exceptions, Huntsman and Rubicon submitted the 1999 transfer agreement between ICI Americas Inc. and Huntsman ICI Holdings- LLC and- several affidavits. The first affidavit is that of Mark Dearman, Huntsman’s Operations Director for the Polyurethanes Division in the-Americas, and General Manager of Rubicon LLC. Mr. Dearman stated that Rubicon LLC is the current 50/50 operating joint venture between its owners, Huntsman and Chemtu-ra Corporation, and operates Huntsman’s MDI plant for the sole benefit of Huntsman. According to Mr. Dearman, Rubicon does not sell or market any commercial products, and has no reason to acquire raw materials consumed at Huntsman’s MDI plant except for the sole benefit of Huntsman. He further stated that when acquiring raw materials (such as the industrial gases purchased from ^Praxair) used to produce Huntsman’s MDI products, Rubicon functions as Huntsman’s agent in those transactions.
The second affidavit is that of Steven Hostetter, a retired Huntsman employee who worked in various capacities for ICI until its acquisition by Huntsman in 1999. He served as Controller for the Americas
The third affidavit offered by Huntsman and Rubicon is that of Brian Ridd, Huntsman’s Senior Vice President of Purchasing. and Distribution since 2000. He stated that Rubicon operates Huntsman’s MDI plant in Geismar on behalf of Huntsman and for Huntsman’s sole benefit. He further stated that he often participates directly in negotiations with Huntsman’s suppliers, including Praxair, and also supervises Huntsman employees who directly participate in negotiations |inwith suppliers. He said that the purchasing in Rubicon’s name of raw materials used at Huntsman’s MDI plant has been negotiated by Huntsman personnel for years. Mr. Ridd stated that after Huntsman’s acquisition of ICI’s polyurethanes assets, the Rubicon Board of Directors approved having Huntsman’s corporate purchasing group handle negotiations for raw materials needed to produce MDI at Huntsman’s plant, and once negotiated, these contracts were often executed by Rubicon on .Huntsman’s behalf.
The trial court considered the evidence presented in support of and in opposition to Praxair’s exception of no right of action, and granted the exception as to Huntsman’s breach of contract claim against Praxair.
Huntsman has never alleged that it is a signatory to any of the gas supply agreements or amendments thereto, but argues that the fact that it is not a signatory does not preclude.it from having the right to recover for Praxair’s breach of those agreements. Specifically, Huntsman argues that Praxair has presented no evidence to refute its allegations in its petition that it has a right of action to assert a breach of contract claim against Praxair as an assignee or successor in interest of a signatory, as the principal of a signatory agent and as a third party beneficiary. As stated above, fоr purposes of an exception of no right of action, the averments of fact in the pleading must be taken as true in the absence of evidence to the contrary. Board of Directors of Louisiana Recovery Dist.,
For reasons that follow, we find no merit in Huntsman’s argument that it has a right of action for breach of contract against Praxair as a third party beneficiary of the four gas supply agreements and amendments thereto. However, we find that Huntsman has set forth factual allegations that it has a right of action-to bring a breach of contract claim against Praxair as the successor in interest of RCI as to the |, ,1970 and 1981 agreements and аmendments thereto, and as the principal of a signatory agent (RCI, Rubicon Inc. or Ru
We first address Huntsman’s argument that it has a right of action for breach of contract against Praxair as a third party beneficiary of the gas supply agreements. La. C.C. art. 1978 provides that “a contracting party may stipulate a benefit for a third person called a third party beneficiary.” Such a contract for the benefit of a third party is commonly referred to as a “stipulation pour autrui.” Joseph v. Hospital Service Dist. No. 2 of Parish of St. Mary, 2005-2364 (La. 10/15/06),
The gas supply agreements at issue do not include any provision establishing a stipulation to benefit a third party in a manifestly clear manner. Without this most basic requirement of a stipulation pour autrui, ■ Huntsman did not carry its | ¶ {.burden of proving the benefit of such a stipulation. Accordingly, we conclude that Huntsman does not have a right of action to assert a breach of contract claim against Praxair as a third party beneficiary.
Huntsman also argues that it has a right of action for breach of contract against Praxair as an assignee of a signatory. Huntsman points to allegations in its petition that it is a direct successor in interest to RCI, a signatory of the gas supply agreements signed on April 1, 1970 and on June 18, 1981. Huntsman alleges that in 1992, RCI transferred its interest in the MDI plant and related contracts to its affiliate, ICI Chemicals, Inc., which affiliate subsequently changed its name to ICI Americas, Inc., which later transferred the MDI plant and related contracts to Huntsman in the 1999 transfer agreement. In paragraph 72 of the petition, Huntsman set forth the following sequence of events that led to its 1999 acquisition of the polyurethanes business from RCI (later renamed ICI Americas, Inc,), ownership of business contracts of ICI Americas and 50% ownership interest in Rubicon:
i. In July 1987, RCI changed its name to ICI Americas, Inc.
ii. In 1992, RCI (now ICI Americas, Inc.) deeded the MDI plant to its affiliate, ICI Chemicals, Inc. In this same transaction, RCI assigned all contracts associated with the MDI plant to ICI Chemicals, Inc., a wholly owned subsidiary, which included all of the Liquid Carbonic gas supply contracts.
iii. In 1993, ICI Chemicals, Inc. changed its name to ICI Americas, Inc.
iv. In 1999, Huntsman International acquired all of its polyurethane assets from ICI Americas, Inc., including
hi- ownership (by deed) of the MDI plant, and
*909 2. ownership (by assignmеnt) of all “business contracts” of ICI Americas, Inc. associated with the MDI plant, which included all Liquid Carbonic contracts, and
3. as fully discussed below, 50% ownership of Rubicon, Inc.
Praxair responds to Huntsman’s allegation that it succeeded to RCI’s interest .in the 1970 and 1981 agreements by arguing that Rubicon, and not Huntsman, is the successor in interest to RCI. However, Huntsman’s petition alleges that Rubicon and Huntsman are both successors in interest to RCI, albeit as to different assets. The petition states that Rubicon is successor in interest to RCI as the owner of the Geismar'aniline plant, whereas Huntsman is the successor in interest to RCI as to the ownership of the MDI plant and assets acquired-by Huntsman through its acquisition of assets of ICI (a successor of RCI) in the 1999 transfer agreement.
The transfer agreement was executed in the name of Huntsman’s predecessor company, Huntsman ICI Holdings LLC, but the petition states that references in the petition to Huntsman include its predecessors in interest. The record shows that following the execution of the transfer agreement, Huntsman ICI Holdings LLC changed its name tó ■ Huntsman International Holdings LLC, and then' later merged with Huntsman International LLC, plaintiff herein.
Huntsman has set forth factual allegations and affidavits stating that RCI’s interests in the MDI plant and the 1970 and 1981 gas supply agreements and amendments theretо were transferred to Huntsman through the 1999 transfer 114agreement, and that it can enforce these two agreements as a successor in interest to RCI. Praxair presented no evidence to refute these allegations.
Additionally, Huntsman argues that it sufficiently pleaded its right of action for breach of contract as to all of the gas supply agreements and amendments thereto as the principal of a signatory agent (Rubicon and its predecessors, RCI and Rubicon Inc.).' The petition, filed by both Huntsman and Rubicon, includes the following allegation: “Rubicon LLC specifically pleads that it, and its predecеssors, acted as agent on behalf of Huntsman in entering into contracts, and all amendments thereto, with Praxair for the supply of hydrogen and carbon monoxide to be used for the- benefit of Huntsman’s MDI plant.” The gas supply agreements and amendments thereto submitted by Praxair in support of its exception of no right of action do not réfute Huntsman’s allegation that it can enforce the agreements as principal of a signatory agent.
The affidavits submitted by Praxair employees also do not refute the allegations in the Huntsman/Rubicon petition that Rubicon and its predecessors acted as Huntsman’s agеnt in entering into the gas supply agreements and amendments thereto. These affidavits offer nothing more than the affiants’ subjective beliefs that Rubicon did. not act as an agent for Huntsman regarding the contracts and that Rubicon employees were acting only on behalf of Rubicon even if they were also employed by Huntsman. Furthermore, the statements in the affidavits that neither Rubicon nor Huntsman ever represented to Praxair that Rubicon acted as an agent for Huntsman with regard to the gas supply agreements 11Bor presented a document to that effect are immaterial to the issue of whether an agency relationship existed between Rubicon and Huntsman. Louisiana law does not require an agent to disclose to a third party that it is • contracting on behalf of a principal. Woodlawn Park Limited Partnership v. Doster Construction
Huntsman sufficiently alleged that it can enforce the 1970 and 1981 agreements as successor in interest to RCI, and can enforce all of the agreements as the principal of a signatory agent. Because we accept the allegations in the petition as true in the absence of evidence to the contrary for purposes of an . exception of no right of action, we find that the. trial court erred in granting Praxair’s exception of no right of action as to Huntsman’s claim for breach of contract.
Huntsman also argues that the trial court erred in granting Praxair’s exception of no cause of action as to Huntsman’s alternative claims of detrimental reliance and unjust enrichment, We agree for reasons that follow.
An appellate court reviews a ruling sustaining an exception of no cause of action under a de novo standard because the exception raises a question of law, and the trial court’s determination . is based solely on the sufficiency of the petition, Badeaux v. Southwest Computer Bureau, Inc., 2005-0612, p. 7 (La. 3/17/06),
La. C.C. art. 1967 codifies the doctrine of detrimental reliance as follows:
A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to -his detriment and the other party was .reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.
To establish detrimental reliance, a party must prove three elements by a preponderance of the evidence: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detriment because оf the re-banee. Suire v. Lafayette City-Parish Consol. Government, 2004-1459 (La. 4/12/05),
Huntsman argues that its detrimental reliance claim is based not only on Prax-air’s promises to comply with the gas supply agreements, but also on additional representations made by Praxair to Huntsman. In addition to the allegations that Praxair made promises and representations to Huntsman and Rubicon that it
The trial- court also granted Praxair’s exception of no cause of action as to Huntsman’s unjust enrichment claim. La. C.C. art. 2298 codifies the doctrine of unjust enrichment as follows:
A person who has-been-enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remеdy for the impoverishment or declares a contrary rule.
The amount of compensation due is measured by the extent to which one has been enriched or the other has been impoverished, whichever'is less.
11sThe extent of the enrichment or impoverishment is measured as of the time the suit is brought or, according to the circumstances, as of the time the judgment is rendered.
The five elements required to establish an unjust enrichment claim are: (1) an enrichment, (2) an impoverishment, (3) a connection between the enrichment and resulting impoverishment, (4) an absence of “justification” or “cause” for the enriсhment and impoverishment, and. (5) no other remedy at law available to plaintiff. Dugas v. Thompson,
The Huntsman/Rubicon petition includes the following allegations in support of their claims of unjust enrichment:
As a result of its1 failure to comply with the Supply Agreements, Praxair has been enriched without cause at the expense of Huntsman and Rubicon. Specifically, Praxair has been enriched by, •among other things, not having to spend millions of dollars on maintenance irm provements, facilities upgrades, new equipment .and parts, or backup supplies. Further, Praxair was enriched by not spending millions of dollars to purchase or othеrwise procure, the gas supplies necessary to meet the requirements of Rubicon and Huntsman’s plants when Praxair’s plant was shut down or otherwise unable to deliver the industrial gases its was contractually obligated to supply.
Accepting these allegations as true, Huntsman has sufficiently stated a cause- of action for unjust enrichment against Praxair.
For the reasons stated above, we reverse the trial court judgment granting Praxair’s exception of no right of action as to Huntsman’s breach of contract claim, and its exception of no cause of action as to Huntsman’s alternative claims of detrimental reliance and unjust enrichment, and dismissing these, claims with prejudice. This case is remanded to the trial court for further proceedings.
REVERSED AND REMANDED
. In this opinion, the term "petition” will refer to the Second Amended and Supplemental Petition filed by Huntsman and Rubicon against Praxair.
.The judgment also granted Praxair’s exception of no cause of action as to Rubicon’s detrimental reliance and unjust enrichment claims, and dismissed those claims with prejudice. Praxair did not file an exception as to Rubicon’s breach of contract claim, which is still pending in the trial court. Rubicon has not appealed thе dismissal of its detrimental reliance and unjust enrichment claims.
. The Rubicon joint venture has undergone certain corporate transitions since its inception, and these entities have been called Rubicon Chemicals, Inc. ("RCI”),. Rubicon Inc. and Rubicon LLC.
. Huntsman ICI Holdings LLC subsequently changed its name to Huntsman International Holdings LLC, and then merged with Huntsman International LLC, plaintiff herein.
. The petition also alleged that Huntsman acquired the 1986 gas supply agreement through its acquisition of the MDI plant, and that this agreement was also executed by RCI. The 1986 agreement shows that it was execut