Trans Pacific Interactive, Inc. VS U. S. Telemetry Corporation, U. S. Telemetry Network, Inc., U.S. Telemetry - Bakersfield, L.L.C., Datex Spectrum, L.L.C., Thomas L. Siebert, K. Steven Roberts, Robert S. Miller, Don M. Clarke, James K. Gable, Charles M. Bruce, John J. Broussard, Henry (Ha
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2008 CA 2174 TRANS PACIFIC INTERACTIVE INC VERSUS U S TELEMETRY CORPORATION U S TELEMETRY NETWORK INC U S TELEMETRY BAKERSFIELD LLC DATEX SPECTRUM LLC THOMAS L SIEBERT K STEVEN ROBERTS ROBERT S MILLER DON M CLARKE JAMES K GABLE CHARLES M BRUCE JOHN J BROUSSARD HENRY HANK MILLS CLAY M ALLEN and STEPHEN D GAVIN Judgment rendered May Appealed 8 2009 from the 19th Judicial District Court in and for the Parish of East Baton Rouge Louisiana Trial Court No 507 714 Honorable William A Morvant CATHERINE S ST PIERRE Judge ATTORNEYS FOR JAMES R LEWIS PLAINTIFF APPELLANT MARY G ERLINGSON TRANS PACIFIC INTERACTIVE BATON ROUGE LA INC H ALSTON JOHNSON JANE A III ATTORNEYS FOR DEFENDANTS APPELLES ROBERT MICHAEL D HUNT TEXACO GROUP KIMBERLY R LAHAYE TEXACO DEVELOPMENT BATON ROUGE LA CORPORATION BEFORE PETTIGREW McDONALD AND HUGHES JJ LLC AND PETTIGREW J In this court judgment sustaining defendants an exception raising the objection of Group LLC Texaco TG hereinafter sometimes referred to we TPIchallenges the trial plaintiff Trans Pacific Interactive Inc case and Texaco collectively no cause of action filed Development Corporation Texaco the For as reasons by TDC that follow affi rm FACTS AND PROCEDURAL HISTORY May 15 2003 On USTC Telemetry Corporation Louisiana s Blue TPI filed suit its exchange for securities TPI filed 2004 a made material with responded an misrepresentations to it that caused TPI to exception but gave TPI california market in no cause exception the trial court sustained La partial final judgment pursuant to to Texaco an as opportunity to amend its petition second amended petition for damages prompting exception raising the objection of as alleged that USTC through its exception raising the objection of vagueness a prejudice for violations of resulting in huge financial losses to TPl On August 2 On November 19 2007 TPI filed with s U including supplemental and amending petition adding TG and TDC The trial court sustained the the TPI USTN spectrum license for the Bakersfield in USTC first Texaco defendants et seq Sky Law La RS 51 701 MHz radio 218 defendants numerous Telemetry Network and U S Board of Directors and officers trade against of action same by Texaco a hearing on May 6 2008 the trial court signed On Code Civ P art 1915 A It is from this Following an 1 dismissing a TPI s suit judgment that TPI has appealed LAW AND ANALYSIS The function of the of the the petition objection of La of action is to test the no cause petition by determining whether the law affords Ramey No evidence the exception of petition App v DeCaire 2003 1299 p may be introduced to no cause must be 1 Cir of action accepted 2 11 05 as La support or Code Civ P true Rebardi 906 So 2d 455 457 2 7 a remedy La 3 19 04 controvert the art v 931 on the facts alleged 869 So 2d 114 in 118 exception raising the In addition all facts Crew boats Inc Thus the legal sufficiency only issue pled in 2004 0641 p 3 at the trial of the exception is whether relief on the face of the 906 So 2d at 457 In reviewing the petition to determine whether the court must if a cause possible interpret it to maintain the Dist finding that No 2 v of action has been stated a cause Millers Mut Fire Ins 767 So 2d 949 952 writ denied 9 22 00 Appellate courts review the Co objection of a 2000 2887 judgment sustaining of action de no cause of Texas novo 99 1728 La 0987 p 4 La On 11 28 01 s exception raising the objection of party liability under Louisiana TG the s of action in La App 1 Cir 776 So 2d 1175 12 8 00 peremptory exception raising a see on exception raises the also Fink a suffiCiency of the v Bryant 2001 801 So 2d 346 349 appeal TPI assigns two specifications of granting Texaco 5 p This is because the Ramey 2003 1299 at 7 8 869 So 2d at 119 cause Livingston Parish Sewer question of law and the trial court s decision is based only petition of action has must be resolved Any reasonable doubt concerning the sufficiency of the petition favor of to the Ramey 2003 1299 at 7 869 So 2d at 118 Rebardi 2004 0641 at 3 sought been stated petition the plaintiff is legally entitled s Blue the trial court erred in 1 error of action no cause Sky Law and 2 the trial exception raising the objection of no cause of action regarding control court erred in granting regarding TPI s claims under theory of respondeat superior In oral reasons for ruling 1 which we judgment the trial incorporate and adopt herein court as provided part of our a detailed analysis of its opinion unfortunately this has been somewhat deja vu all over again This is the second amended petition by Trans Pacific which according to my The review was approximately 44 pages and some 244 paragraphs exceptions are on behalf of Texaco Development who is alleged to be a s U Telemetry Corporation as well as shareholder in the defendant Texaco Group who was the employer of Mr Gable the individual that pursuant to their Stock Purchase Agreement Texaco Development placed on the board of U S Telemetry And having reviewed and that was the obvious starting point before I read the arguments was to review the allegations of the second amended and restated petition I don t see a lot Well 1 In its oral Wireless reasons for judgment Telemetry Corporation 11 16 07 the trial court makes several references to its decision in the case and the similarities between the two cases 967 So 2d 525 2006 1920 a case La arising judgment sustaining an exception raising Southeast Wireless plaintiffs App 1 Cir 7 6 07 out of the the In Southeast Wireless same objection 3 of unpublished basic facts no cause as Network writ denied this case of action filed Southeast Inc v 2007 1892 U S La this court affirmed by a Texaco as to the of difference between this to the petition and the allegations that Texaco defendants in the Southeast Wireless through fourth And amending petitions have been made as of the none to the Texaco defendants and I for the purposes of an state a cause of action exception of no cause were case allegations that accept them as true new of action are sufficient to control person under R 51 702 5 in paragraph 2 of plaintiffs petition and it between plaintiff defendants Trans Pacific USTC and Datex as their first as a look at the allegation states that this suit arises from made And I correctly contractual and securities transactions Interactive and this Incorporated and the allegation is repeated throughout the petition about these contractual and securities transactions between plaintiff and these two entities There s no allegations in the petition as to any contract or any securities transactions between plaintiff and Texaco the reason being is that basically Texaco stands in the same position as Trans Pacific It invested likewise in U S Telemetry and kind of got left to hang out to dry just like all the other investors What the new petition fails to allege with any sufficient facts is first that Texaco ever contracted with the plaintiff in any capacity and again as I said either sales or security that Texaco whether it s Group or Development either of the Rather two defendants controlled USTC within the meaning of 51 702 they were a shareholder As Southeast Wireless alleged they had certain peremptive rights as per their Stock Purchase Agreement They were able to place one member on a five member board of directors which they did so after Mr Gable did a due diligence not on behalf of Trans Pacific but on behalf of Texaco to make a determination of whether or not they even And plaintiff wanted to invest the initial 5 million into the corporation acknowledges in paragraph 171 that Texaco was a strategic customer and I don t think Texaco disputes that fact and that they were a strategic investor in USTC and that as a result and this is the same thing that Southeast Wireless alleged Texaco had exclusive use of certain that being the stuff that was taking place in Bakersfield But technology none of which none of these allegations taken as true establishes that had control over the operations of USTC as required under And as I read through the petition plaintiff used the term Texaco Texaco 51 702 interchangeably as well as Texaco and USTC however a reading of the petition as a whole shows that it s incorrect The actual allegations if you read through are directed either to USTC and Gable somewhat because of the contractual relations and the securities transactions or as to Mr Gable as an officer I mean as a director of USTC with no real factual support to include Texaco in those facts to show that Gable allegations within the And there s also no and scope of his against that entity acting employment with the Texaco Group to impose liability under the doctrine of respondeat superior Again I hate to say it but these are almost the identical allegations and the arguments that were made to this Court and rejected in the Southeast Wireless case and was therein I dealt with the control issue employment respondeat superior claim same the part of Texaco and the both of which I rejected these on claims that Texaco exercised control same contracts and the Trans Pacific And the the what I found the most Wireless same mere over agreements plaintiff fact that distinguishing course per the terms of that s now relied upon by now and this is I guess USTC as feature between this and Southeast Southeast Wireless concentrated on the fact that Texaco pursuant to the Stock Purchase Agreement and the other investment agreements between Texaco and USTC had the ability to exercise control Trans Pacific takes a more over the policies and procedures of USTC narrow approach and says well we re not going to say they did that but they definitely had an interest in the Bakersfield license and therefore 4 tried to exercise control like sounding ruling and I a over how that asset broken record the was managed And again going back to my Southeast Wireless in here under the terms and conditions thing Agreement Texaco had certain peremptive rights and had the ability to protect its interests and investments specifically with regard to the Bakersfield license and by doing so I don t think that equates to control under 51 702 I guess the long and the short of it is is and I do tip my hat to plaintiff V all did that after reading all 44 pages a much better and a yeoman s job of trying to keep Texaco in as did Southeast Wireless but at the end of the day after reading through all of this and having to take those paragraphs that I alluded to and then apply them to the body of the allegations as to specifically who transacted with whom the amended petition is really long on conclusion and short on facts and support So for those reasons as well as the oral reasons stated by the Court on October 17 05 and March 27 06 in the Southeast Wireless case both of which the parties conveniently attached to the exceptions and the opposition the Court s going to maintain the exception of no cause of action on behalf of Texaco Development and Texaco Group and I m going to dismiss plaintiffs claim as to those two defendants with prejudice at plaintiffs costs see same of the Stock Purchase In addressing the second amended of as true and no cause no cause applying the we cannot find after reviewing TPI s of action of action to the facts herein factual allegations in TPI s petition foregoing exception Accepting all of the allegations in the we exception raising the objection of s for the above and s legal principles for the exception raising the objection Texaco assess appeal petition that the trial court erred in sustaining Texaco raising the objection of petition merits of this to all costs associated with this no cause of action a cause of action support reasons we find the trial court affirm the judgment appeal against TPI properly There 5 simply against Texaco no Thus of the trial court and We issue this memorandum opinion in accordance with Uniform Rules Courts of Appeal Rule 2 16 1B AFFIRMED are sustained
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