Milburn v. EmanueleMilburn v. Emanuele
hln this аppeal, the appellant, Benjamin Milburn (“Milburn”), seeks review of the trial court judgment granting the appel-lee’s exceрtions of prematurity and no cause of action. Specifically, Milburn argued that the trial court erred in finding that a valid mediatiоn agreement exists between the parties, resulting in the improper granting of the exception of prematurity. Additionally, he contended that the trial court erred in finding that Charles Emanuele (“Emanuele”) is not a proper party in the proceedings, thus resulting in the improper granting of the exception of no cause of action. For the following reasons, we vacate the portion of the judgment granting the exception of prematurity and reverse the portion of the judgment granting the excеption of no cause of action.
In response, Emanuele filed several exceptions, including an exceptions of prematurity, no right of action, and no cause of action. After a hearing, the trial court granted the exception of prematurity, denied the exception of no right of action, and granted the exception of no cause of action. This timеly appeal followed.
The granting of a dilatory exception of prematurity is reviewed using the manifest error standard. Jefferson Door Co., v. Cragmar Const, L.L.C., 11-1122, p. 3 (La.App. 4 Cir. 1/25/12),
Dilatory exception of prematurity
Milburn first argues that the mediation clаuse in the contract between them is not valid. Emanuele responds that the mediation clause is valid and enforceable.
Both parties relied on the contract to support their argument. However, our review of the record reveals thаt while a copy of the contract was attached to the petition and to the memorandum in support of the exceptions, neither party mtro-duced the contract into evidence during the hearing. “Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record.” In re: Helm, 11-0500, p. 5 (La.App. 4 Cir. 11/2/11),
Peremptory exception of no cause of action
Next, Milburn argues that the trial court erred in granting the exception of no cause of action. He notes that his petition alleges that Emanuele, as contractor, entered into a contract in his individual capacity. Emanuele counters thаt the contract for renovations was entered into by Milburn and SDRC, contending the entire contract reveals that the intent of thе parties was for Milburn to enter into a contract with only SDRC.
Milburn’s petition alleges that he entered into a contract with Emanuеle, as contractor. Further, he contended that in spite of receiving payment, Emanuele did not perform as agreed in the contract. An exception of no cause of action is reviewed based upon the four corners of the petition together with the attachments to the petition. 831 Bartholomew Investments-A, L.L.C. v. Margulis, supra at p. 9-10,
Based upon our de novo review, we find that the trial court committed legal error by granting the exception of no cause of action.
Conclusion
Accordingly, the portion of the trial court judgment granting the dilatory exception of prematurity is vаcated; the portion of the trial court judgment granting the peremptory exception of no cause of actiоn is reversed; and the matter is remanded for further proceedings consistent with this opinion.
VACATED IN PART, REVERSED IN PART, REMANDED.
Notes
. La. R.S. 12:1320 states:
A. The liability of members, managers, employees, or agents, as such, of a limited liability company organized and existing under this Chapter shall at all times be determined solely and exclusively by the provisions of this Chapter.
B. Except as otherwise specifically set forth in this Chapter, no member, manаger, employee, or agent of a limited liability company is liable in such capacity for a debt, obligation, or liability оf the limited liability company.
C. A member, manager, employee, or agent of a limited liability company is not a propеr party to a proceeding by or against a limited liability company, except when the object is to enforce such a person’s rights against or liability to the limited liability company.
D.Nothing in this Chapter shall be construed as being in derogation of any rights which any person may by law have against a member, manager, employee, or agent of a limited liability company because of any fraud practiced upon him, because of any breach of professional duty or other negligent or wrоngful act by such person, or in derogation of any right which the limited liability company may have against any such person because of any fraud practiced upon it by him.