Allied North American Corporation of Texas VS Richard Edgecomb, ICT Group, L.L.C., Marsh USA, Inc. and State of Louisiana
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL tJ FIRST CIRCUIT J rI NUMBER 2009 CA 0113 ALLIED NORTH AMERICAN CORPORATION OF TEXAS VERSUS MARSH USA INC RICHARD EDGECOMB ICT GROUP L L C AND STATE OF LOUISIANA Judgment Rendered Appealed IUN 1 9 7009 from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge Louisiana Trial Court Number 485 390 Honorable R Michael Caldwell Robert J Burns Jr Judge Attorneys for Plaintiff Appellant John W Perry Jr Baton Rouge LA Allied North American Corp of Texas William F Grace Jr Attorneys for Charles D Marshall III Defendants New Orleans LA Richard Appellees Edgecomb Marsh USA Inc Lauren S Coenen Baton Hensgens Rouge LA BEFORE c 1t1erJ Texas Attorneys for Defendant Appellee ICT Group L L C Jude C Bursavich Scott N 7 and Ilt PARRO McCLENDON AND WELCH JJ J vi he flJtti d J5fdJ f WELCH J Plaintiff Allied North American judgment dismissing summary Richard and Edgecomb a Corporation of Texas Allied breach of rendered after judgment a claims for intentional breach of dismissing claim contract contract Edgecomb answered reconventional demand the appeal challenge to seeking attorney fees and the merits and unfair trade against defendants Richard Edgecomb and Marsh USA Richard on costs Inc practices Texas the a defendant against trial a appeals Marsh dismissal of his We affirm BACKGROUND On damages and L L C Group 29 June October 28 a 2001 and the State of Louisiana ICT 1998 as an on insurance broker November 13 Edgecomb actively pursued year 1 July coverage ICT FEC 13 1999 contract was through July 1998 also 1 an While in Allied subject the to public s 2000 with two one employ Mr to procure bid process year on employment The bid of insurance for the placement Edgecomb worked in conjunction with listing Allied and Mr Edgecomb a options to Allied and ICT had an agreement accordance with that agreement to share ICT to submit a notice of award of the on undisputed that for the first policy period July On ICT Edgecomb with the State of Louisiana for the provided Allied hired Mr and entered into On March 30 1999 the State issued receiving contract policy renew the placed Mr State a property coverage that specifications for breach of declaratory judgment against Richard Edgecomb Marsh agreement with him excess petition Allied filed this 1 1999 ICT through July and fees to the contract to the notice of the award brokerage fees with Allied bid 1 were It is 2000 paid in and another broker each 100 000 00 May 19 2000 more than one 2 month before the expiration of the insurance policy work for Marsh not Mr a insurance s bid the re the award of the In its for the 1 breached his July employment Edgecomb agreement with Allied that 2000 1 July 1 2001 renewal of July brokerage 2002 policy period to was was aware aware to regarding parties to damages 2001 that the act as 51 1401 the fees the distribution of the Edgecomb contract 2002 Edgecomb fiduciary and a of Mr Edgecomb contract s employment of insurance had been brokerage commissions and Marsh ICT and Allied further deceptive et seq or intentionally Allied asserted the State to cease caused trade and that Marsh it would have received one or more Mr Edgecomb during contemplation of liable for Mr was policy periods liquidated damages and within the practices It sought to Edgecomb recover with both performing causing alleged that the actions of theory of respondeat superior Edgecomb 1 July Marsh and ICT constituted intentional interference with its contract unfair and Marsh Allied and knew of the partnering agreement Allied had entered into the State and ICT Mr Allied the Allied claimed that when property s 1 Allied asserted that Mr by failing contract Marsh it July despite the knowledge of the contractual interest Allied enjoyed of the firm each brokerage fees received by 2001 renewal and the discarded Allied Marsh hired Mr with ICT 2001 that the rightfully belonged or to 1 undisputed that Marsh again received brokerage commissions from alleged 1 misappropriated awarded 1 July and Marsh Allied 2000 contract July went to bid contract petition July insurance re fees for the For the contract It is also firm with Marsh ICT and another policy 100 000 00 receiving State brokerage with Allied and employment left his competitor brokerage Allied received the State Edgecomb s as well La as RS actions under the loss of brokerage the 2000 2001 and 2001 2002 insurance as provided in Allied s contract with Mr damages for loss of business reputation and lost business 3 opportunity contractual Prior as result of Mr a Edgecomb obligations to Marsh and Mr Allied dismissed the State and ICT from the trial Edgecomb then filed dismissal of all claims that Mr with Allied violated Louisiana law and contract They further charged that enforceable there provision action to of the issue or the misappropriated and refrain from or or on Mr Edgecomb s s s breached any that he and property on the breach of affidavit and never solicited business from the State after his from Allied and insisted he did property he was In his affidavit Mr designated representative Specifically contacted Mr not remove the State assist the State in its efforts to placed in July of Edgecomb Allied he did not Mr May or contract deposition Jr Allied Edgecomb 19 2000 destroy and s attested resignation any of Allied s Edgecomb stated that after he resigned from Allied indirectly by 1999 discard relationship a excerpts of the deposition testimony of Mr Lloyd Ray Pitts president was business took any entering into discarded Allied Edgecomb employment s competition agreement support of the motion for summary judgment defendants relied contract therefore unenforceable was solicited the State contract employment non Edgecomb evidence that Mr have the State discontinue with Allied In if even positive was no judgment seeking employment agreement Defendants urged clause contained in Mr competition non motion for summary a litigation Edgecomb breached his employment and that Marsh interfered with that that the bad faith breach of his alleged s renew the through policy a representative of ICT of insurance that attested that prior to his was originally resignation from solicit the State for the renewal of insurance and did or with Allied Edgecomb explained that after he left Allied deposition ICT wanted him to Mr help them solve a 4 entering into not encourage the State to discontinue In his refrain from to any relationship problem that had arisen when Liberty Mutual the insurer the initial told that the State raised specifically requested Allied had s expected Mr deposition as the began working for Marsh he his help because in the normal to find certain things in Edgecomb in he did the issues resolving that violated the or know whether Mr suspected documents had been in e mails that Defendants based telephone records that on Mr not s s either ICT to business or no employ business after s Mr s Pitts cited business any evidence to show that took any action Instead they urged to have the State Allied s breach of speculative belief supported only by business or produced and the fact Defendants deposition testimony that argued that particularly and the declarations in his was the renewal after he left Allied 5 s or Mr Pitts stated that he believed Mr solicit business from the State and problem with Pitts admitted that Allied had He had not been identified Edgecomb affidavit that he did a s Mr Pitts Marsh ended up with the State in view of Mr Edgecomb talked argued that Allied failed to produce was there after not employ the fact that Marsh ended up with the State relationship with Allied claim s As evidence of the solicitation solicited the State Edgecomb were with the State and solicited the State employ s at any documents when he left Edgecomb did anything before leaving Allied contact telephone records and discontinue its not no one When asked whether he had any information that Mr employment agreement initiated he left Allied State solve the file knowledge of business the company would have moving that business about information that Mr Edgecomb course his solicited any business before he left Allied acknowledged the State to or remove Pitts stated that Allied Mr discovery was conducted contract Pitts admitted that Edgecomb destroy Mr seen employ destroyed Mr change the pricing to by Liberty Mutual in connection with the renewal policy In his Allied wanted policy He stated that after he approached 2000 renewal was on asked s to help the employ Allied lacked evidentiary support for its breach of contract claim In opposition employment agreement signed by notice of the award of the Mr contract Mr Edgecomb Mr Edgecomb violated to from information client soliciting any during Allied the employment Paragraph and or or 7 of the or for into any a as relationship follows fiduciary and its affiliates all Company relating to or concerned with their operations sales business and affairs except such information as is generally known in the industry and he she will not at any time hereafter data or disclose or divulge to any person firm its designees corporation or except or any such information as knowledge other than to the otherwise be may connection with the business and affairs of the or Company required in Company and its affiliates Paragraph 8 of the Restrictive employment agreement provides in pertinent part Covenants During Employee shall render and or above services its affiliates and he she shall services perform control her his the as an for employee term of this exclusively to agreement the Company not directly or own manage operate join indirectly participate in invest in except as permitted in Paragraph I or otherwise be connected with in any manner any entity which is engaged in the business of insurance brokerage in which Company or its affiliates is currently engaged or may hereafter be engaged at any time during the term thereof In addition Employee shall not during the term of his her employment by the Company and for a period of two 2 years thereafter for the him herself corporation concert or or on behalf of entity directly with others b any or other indirectly solicit induce 6 or person or by partnership action an Allied period following will hold in Employee and data knowledge relationship with entering for the benefit of the information a employees precludes employment agreement provides Confidential Information capacity Allied which two year a it could demonstrate on 8 person who has employment e employment agreement Paragraph refrain from FEC 13 and Edgecomb and others urged that of the provisions two discontinue terminate cancel with Allied and from Mr an and various depositions s imposes fiduciary obligations confidential regarding employee which 7 Paragraph to insurance account s No Edgecomb Proposal mails letters and facsimile transmissions involved in the State Allied submitted judgment the motion for summary to or in encourage any client the other person who has a relationship with the Company to discontinue terminate cancel or refrain from entering into any relationship with the Company or any of its affiliates customer Allied that while the bulk of defendants urged validity or business soliciting termination of the to during the employment Edgecomb owed a which that even directed occurred complained in the absence of the to from the termination of the owed Edgecomb still Mr was prohibited employees period following of which Allied employment while argued 8 Paragraph two year a actions It also Allied of portion of that argument prior to fiduciary duties written agreement Mr a duty of nonsolicitation both before and after the termination under the law The evidence submitted 13 the State year accepted bids for for the properties options to period renew of Mr Louisiana insurance agency stated that his work provide by Allied on the ultimate excess July 1 representatives of the names 2000 with s as a team in a companies to along with ICT London broker a one Edgecomb Mr insurance two and ICT employ and that he Aubrey Temple Liberty Mutual worked preparing the and actual request The notice of the award of the bid signed by State Risk Director Seth E Keener Jr heading negotiating with No FEC various Louisiana the bid submission quote and coverages Ken Thomas and under the while in Allied on the bid involved on 1 through July Edgecomb worked through Proposal property coverage 1999 representatives response to the bid reflects that on insurance agency Allied and Richard May name 30 1999 lists ICT and its chairman To the right of that listing appears Edgecomb who signed for Allied its vice as president Following the award of the insurance contract to invoiced the State for Allied received 3 211 500 00 and 100 000 00 in a brokerage 7 policy was fees with Liberty issued by equal Mutual Liberty amounts Allied Mutual paid to ICT and London a regarding the renewal because it had not provided notice to specifications Mr the renewal while he was the bid he employ after insurance State of was paid that 100 000 00 he Mr problems with Liberty Mutual the Ultimately invoice was Edgecomb testified for the policy problem was initially that July 1 2000 resolved while Mr invoiced the State for the voided ICT issued a s ICT to assist ICT and the approached by was Marsh received invoice premium but interviewing with Marsh but when he left Allied for Marsh and Marsh premium that raise the stated that he knew of the Edgecomb term working to questions were the State within the window of time provided for in employ s policy 2001 Edgecomb Liberty Mutual wanted the renewal of the obtaining 1 July point there some thought the problem had been solved leaving Allied State in At brokering underwriter invoice and the an share of the commission in the amount 100 000 00 and leT and another agency each received III brokerage fees In opposition to the motion for summary judgment Allied insisted that its evidence demonstrated that Mr Edgecomb solicited the Allied while still in its employ fiduciary duties that various was lining employed Allied on at Allied May 19 Various e account to 2000 that he ten days contract mails was thereafter until was That resigning his day Mr same 8 Edgecomb employ 29 May Allied However show that its Mr s s virtue of a evidence refuted this own Edgecomb and 2000 position to accept sent Edgecomb by 2000 19 Pitts Edgecomb gave notice to Mr May on general Marsh while he remained Mr leaving exchanged between employees notified Allied that he with Marsh s demonstrated that Mr argued that although continued Pitts and Allied position writings Allied provision in the claim Mr urged business from s in violation of his contractual and up the transfer of the State employment notice It State an e Mr Pitts and Mr a mail Edgecomb management to an Allied employee asking that the system and transfer Mr to Mr to appropriate steps Edgecomb mails and s e Edgecomb from personal computer drive to remove Mr Mr Pitts also noted that the contract called for ten Pitts terminate however he stated that it that be taken was agreed that to Edgecomb would leave Mr day and it would be his last day None of the documentary evidence submitted by Allied in opposition the motion for summary judgment detailed any conversations to Edgecomb prior Instead May principally In relied The first is to Mr an on two documentary items and and Seth broker Richard be written broker 1 will at by on which noted that to in varied roles Mr joining employ s proof that Mr the a June 9 to e employ referring talked to Seth change can this document describe letters Edgecomb 2000 was appointment s mail from Mr as Edgecomb ICT s to Mr subject of State of Louisiana broker relationships make the placements work there is These Edgecomb continued the firm and have been regarding 24 2000 property policy on Allied Edgecomb Marsh while still in its on Two other notations Allied insisted this document of his agreement by Mr judgment containing the following notations ICT to effectuate Mr Thomas of ICT with Marsh account to he believes ICT lead The second is to my s as unsigned unauthenticated notation dated May Edgecomb Keener which he left Allied on the motion for summary to opposition up the transfer of the State lining prior 2000 the date 19 actions or to documentary evidence reflects activities and conversations all of the after that date to notice days a need for varied were accepted by explained Marsh players to Marsh management proved that Mr Edgecomb engaged in discussions the State refrain from s account prior to his joining Marsh in violation doing so During Mr Edgecomb s deposition Allied s attorney stated that this produced by lCT during discovery and that the handwriting was probably representative Ken Thomas 9 document was that of ICT s Defendants had that the handwritten argued urged been authenticated and not court the State but in fact corroborated Mr not the State and ICT the May 24 2000 note 19 May 2000 suggested Edgecomb a solicitation occurred s June 9 presented because when Edgecomb to 2000 e to not his termination mail did not with this admitted that he mentioned his work seeking was contradicted Mr did not at Marsh Edgecomb solicit the State The trial court that constituted such the court evidence showing the breach of his not its likelihood of contract left Allied the employ s Mr proving insurance there defendants on was insisted after contract no evidence leaving Allied s In the absence of coming trial that Mr that he behalf of Marsh absolutely or Mr account deposition testimony its burden of at s deposition management position evidence employment satisfy his the State Edgecomb did anything before stated Allied did employment on during insurance business from Allied a if that date it is clear They also urged that affidavit and agreed concluding that that would indicate Mr employ s sworn even claim for breach of the a required for None of this s that was support the breach of contract claim document demonstrate he had technical abilities he support that he argued on Edgecomb properly was Edgecomb and testimony s defendants Additionally and therefore could employment agreement prior Edgecomb if this evidence even that the purported solicitation occurred after Mr on inadmissible because it was show any conversations between Mr before the approached by it did that note forward with Edgecomb breached and therefore entered summary judgment dismissing the breach of contract claims Allied unfair trade s remaining practices against Following the conclusion Allied failed claims for intentional interference with to meet Mr Edgecomb and Marsh of the trial the court made its burden of proving that there 10 a contract proceeded to and trial factual determination that was an agreement between Allied and ICT to split brokerage fees beyond the observed that while Allied received the was no the evidence that it had any type of The policy court interference with a contract for unfair trade court not fee for the second year of a support and that Allied failed an The policy period upon fee for the first year there contract found that the facts did constituting defendants part agreed first a claim for intentional conduct to prove any practice The peremptory exception raising the objection of prescription court on also on granted a the unfair trade practices claim that had been filed earlier in the litigation by defendants but had been referred Allied to the merits appealed claim and the judgment dismissing Mr and Marsh the summary Edgecomb judgment dismissing its remaining answered the claims its breach of against appeal challenging dismissal of his reconventional demand for attorney fees and asserted that Allied brought claims for unfair trade s practices contract Edgecomb Mr the trial court s in which he costs groundless and were in bad faith for the purpose of harassment SUMMARY JUDMGENT This summary court reviews judgment de a trial novo court using the s decision same judgment Vankerkhove 2007 2555 p 5 App 730 The motion for summary depositions answers to is entitled to On a judgment judgment interrogatories affidavits show that there is as a no 1 st is Cir 8 11 08 and admissions oflaw or deny However burden of proof at on trial the 11 court s v 729 granted if the pleadings on file together with of material fact and that the any mover La C C P art 966 B issues for which the moving party motion for 993 So 2d 725 motion for summary judgment the initial burden of moving party a Boudreaux appropriate should be genuine issue matter grant criteria that govern the trial consideration of whether summary La to must moving party only point proof is will out to not the on the bear the court that there is absence of factual support for an adverse party claim action s defense factual support sufficient produce evidentiary burden no or to Thereafter the establish that it will be able CC P La 2 966 C art to nonmoving party to of proof at trial if the nonmoving party fails to do issue of material fact genuine elements essential one or more see the must satisfy its there is so Boudreaux 2007 2555 at p 5 993 So 2d at 730 Allied contends that it Mr s business and to Edgecomb toward no Allied Allied unauthenticated notation e mail from Mr placement were accepted by on s to Marsh policy Allied also claims Mr fees on the at a as fully Edgecomb left its to take the unsigned 2000 principally on the June 9 referencing State of Louisiana broker to his an invoice which the firm and had been joining to was to mail constitutes direct e take the State As evidence of the 100 000 00 in fees and that Mr 24 stated that the roles in the insurance prior policy period alleged scheme Allied the State for the insurance voided and later reissued generated by the State Edgecomb business s was s by renewal promoted shortly after his 2 evidence of the scheme the fact that time when the State earned employ general fiduciary duties May It relies schemed with Marsh employment with Marsh began s ICT the facts that Marsh issued of the insurance Allied to employment for the second employment relies Edgecomb Edgecomb ICT that Marsh received 2 contractual and Marsh management Allied insists that this before he left Allied premium s support its claim Edgecomb explained evidence that Mr also relies to longer in which Mr relationships s deprive Allied of revenue generated by its work for the State in violation of Mr 2000 direct and circumstantial evidence that schemed with Marsh before he left Allied Edgecomb State proved by s renewal of the 2000 policy Edgecomb was left Allied assured and s thus however it offered employ no evidence to support the claim that when the renewal was assured Moreover Allied did not offer evidence at the summary judgment stage demonstrating that it even had a contract for brokerage fees for the 2000 2001 policy period Allied s unsupported allegations do not provide factual support for Allied s breach of contract 12 or breach of fiduciary duties claims In this Allied defendants case breach of s that Mr moving the State efforts Allied Edgecomb employ s Mr or s representative In light the burden of It offered scheme was or solicit the State s was Instead Mr employ contacted by the to prior trial that Mr to have to come Edgecomb stated that indirectly through renew on the Allied which bore breached his contractual testimonial evidence to trial Allied show that Mr an policy of forward with factual support sufficient at leaving business s Edgecomb State of this evidence it became incumbent at for the State about or business s assist the State in its efforts to proving clearly failed to to Edgecomb engaged or show do so in any plan with Marsh to deprive Allied of brokerage commissions while he still in Allied s employ Because Allied failed to offer sufficient factual establish that it would be able to proof at trial the trial contract he employ support of not with anyone from ICT satisfy its evidentiary burden no president admitted he did s Edgecomb denied having solicited the State fiduciary duty to Allied that it could to after he left Allied after he left Allied insurance part s proof He also admitted he did not receive information of business s Mr on either before ICT Edgecomb spoke the absence of factual out Allied claim contract knowledge pointed court to properly granted satisfy its summary evidentiary judgment on burden of the breach claim TORTIOUS INTERFERENCE WITH CONTRACT Allied contends that the evidence adduced Marsh and Mr the State to Edgecomb intentionally be interference with actions breached contract respondeat superior caused Allied s contract with ICT and rendering defendants liable Allied also insists that because Mr directly benefitted Marsh and after his tortious conduct of thus trial demonstrated that at were known by Marsh before Marsh is also liable for Allied Allied claims it 13 s damages proved both theories for tortious Edgecomb during on a of s and theory liability because its evidence demonstrated that orchestrated 2 State of accepted breached were 3 the breach of the agreements honoring non fees it knew due to with leT and the assistance s in violation of Marsh and compete agreements were place with Marsh was with five elements one existence of a s contract or 4 absence of causation of damages to performance brought about 538 So 2d 228 234 The trial a found fee Allied received the existence of subject of a as a to or 3 the the breach the or the part of the officer fact that based upon the contract or more and difficulty of Inc Specifically year agreed manifest court must and that the first year of the v 5 its Spurney and was a court a right Allied failed splitting contract Development wrong of fees share of or to prove the the right to This factual determination is Pursuant to that standard for Stobart v 617 So 2d 880 882 14 to a found that while there reasonable factual basis does clearly Allied failed the first year of the contract and standard of review find that finding the upon fee for that year error testimony agreement giving it contractual agreement for the Transportation the plaintiff and corporation 9 to 5 Fashions splitting agreement for beyond the to the reversal this finding a 1 contract the breach of contract very recover performance impossible on a La 1989 court evidence of justification by the officer brokerage fees in the second receive fees of the cause rights is of the knowledge s plaintiff by the prove the existence of was or must prove to interest between the legally protected his intentional rendition of its burdensome to plaintiff a intentional inducement or stated s Allied the corporate officer 2 corporation officer contract and Marsh billed for and 4 The action for intentional interference with contractual narrow left Allied he Edgecomb breach of the agreements Allied had in a these agreements knowledge policy before Mr 1 not exist for the State Department La 1993 The trial court of factual s that there finding the first year of the insurance contract is brokerage fees beyond the record and is supported by existence of a contract contractual agreement for the was no reasonably As Allied failed to prove the clearly wrong not splitting brokerage fees that could have been the subject of a for tortious interference claim the trial dismissed Allied correctly court claims for s damages under this legal theory UNFAIR TRADE PRACTICES Allied also challenges the trial court ruling that s its claims for damages under the Louisiana Unfair Trade Practices and Consumer Protection Act specifically trial court s preponderance a unfair trade Louisiana methods of established A public policy or and competitors Inka 2271 10 1 La App review of the record failed to prove a st we declares practice acts when the find or unfair trade also found that to no error unlawful practices u nfair in the conduct practice is unethical and consumers v in the trial violation of the unfair trade oppressive consumers include School Time L L c 725 So 2d 496 Cir 116 98 an is considered unfair when it offends S Coolwear Inc s court the judgment prescribed substantially injurious business for proving The trial deceptive or reasons its burden of 51 1405 A Statutes or commerce unscrupulous p claim had competition and unfair of any trade to meet of the evidence practices Revised In oral prescribed found that Allied failed practice by Allied La R S 51 1409 had 501 court practice law s After finding 97 thorough a that Allied 3 RECONVENTIONAL DEMAND Mr Edgecomb answered the appeal of his reconventional demand 3 against to challenge Allied for We further find that the trial court the trial court attorney fees and s dismissal costs pursuant correctly sustained the prescription objection as to unfair trade practices claim but as the record clearly supports the trial court s ruling on merits ofthat claim we pretermit further discussion of the prescription issue 15 the the to La 51 1409 A RS fees and costs to practices upon a That provision defendant in finding private a that the action was for the purposes of harassment This strict construction A trial attorney fees under the caruthurs court s 1286 action for groundless See Double statute damages for unfair trade brought and subject and Gas L L c App 2nd Cir Based upon the record before s in bad faith in nature and Eight Oil Edgecomb award attorney or to determining whether to award p 11 La 451 41 discretion in denying Mr court to provision is penal has discretion in Producing Co Inc So 2d 1279 trial court authorizes the us we find 11 20 06 no v 942 abuse of the demand for attorney fees CONCLUSION F or the costs to of this appellant foregoing reasons the judgments appeal including the cost Allied North American appealed from are affirmed of supplementing the record Corporation of Texas AFFIRMED 16 are All assessed STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT c 2009 CA 0113 ALLIED NORTH AMERICAN CORPORATION OF TEXAS VERSUS RICHARD EDGECOMB ICT GROUP L LC MARSH USA INC AND STATE OF LOUISIANA McCLENDON l agrees in part and dissents in part I believe that summary the breach of contract claim judgment was Therefore I improperly granted with respect respectfully dissent in part to
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