Larry James Alexander On Behalf of Richard Lee Myles VS Period Millworks, L.L.C., Thomas J. Edmonds, Jr., Leah Edmonds, Thomas J. Edmonds, Sr., William Smith and Delta Power Equipment Corporation

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT N0 2011 CA 2274 LARRY JAMES ALEXANDER O B 0 RICHARD LEE MYLES VERSUS PERIOD MILLWORKS LLC ET AL udgment rendered UN 1 4 ZQ Appealed from the 22 Judicial District Court i in and for the Parish of St Tammany Louisiana Trial Court No 2011 14Z86 Honorable William J Crain Judge is MARCUS J PLAISANCE ATTORNEYS FOR DONNA U GRODNER APPELLANT PLAINTIFF BATON ROUGE lA LARRY JAMES ALEXANDER B O RICHARD LEE MYLES LAWRENCE B FRIEMAN ATTORNEYS FOR BERGERON JANNA C APPELLEES DEFENDANTS COVINGTON LA PERIOD MILLWORKS LLC THOMAS J EDMONDS JR LEAH THOMASJ EDMONDS EDMONDS SR WILLIAM SMifH AND DELTA POWER EQUIPMENT CORPORATION BEFORE PETTIGREW McCLENDON AND WELCH J PETTIGREW 7 In this case plaintiff challenges the trial court judgment sustaining the defendants exception raising the objection of no cause of action and dismissing with prejudice his claims against defendants For the following reasons we reverse in part a in part rm vacate amend and remand for further proceedings FACTS AND PROCEDURAL HISTORY On July 29 2011 plaintiff Larry James Alexander filed suit on behalf of his step brother Richard Lee Myles against defendants Thomas J Edmonds Jr Leah Edmonds hereinafter sometimes referred to as Mr and Mrs Edmonds Thomas J Edmonds Sr Thomas Period Millworks LLC Miliworks William Smith and Delta Power Equipment Corporation Deita alleging that Mr Myles was injured while working on the premises of Millworks According to the petition Mr Myles had been performing odd jobs at Millworks such as general maintenance sweeping and cleaning for several months prior to August 6 2010 the date Mr Myles was injured It is asserted in the petition that Millworks and Mr and Mrs Edmonds had previously denied that Mr Myles was an employee of Millworks On the day in question Mr Myles was sweeping sawdust from around the lathes as he had done on severaf prior occasions At that same time Thomas was operating a lathe manufactured by Delta and was working on a post Thomas told Mr Myles special to leave the room while he was working on the special post As he was leaving the room Mr Myles heard a loud crack and looked back in the direction of the room Mr Myles was immediately struck in the face by all or a part of the special post which had been on the Delta lathe Mr Myles lost consciousness and suffered two seizures before emergency medical services could arrive Medical personnel were unable to save Mr Myles right eye which had become detached during the incident Moreover doctors It is alleged in the petition that Mr and Mrs Thomas J Edmonds r were members and ormanaging members of Millworks that Thomas J Edmonds Sr was an employee of Millworks that William Smith was the owner of the physical property where Millworks was located and that Delta was the manufacturer or and producer of certain machinery used at Millworks 2 were unable to restore sight to his left eye leaving Mr Myles completely blind Following multiple surgical procedures Mr Myles was left in a severely debilitating arthritic condition He required assistance and a wheelchair for mobility and was unable to perform even the most basic functions such as dressing himself or feeding himself As a result of the injuries sustained by Mr Myles plaintiff filed the instant suit maintaining that Mr Myles condition and injuries were the result of the acts and or omissions of the defendants In response to the petition for damages Mr and Mrs Edmonds Thomas and Millworks collectively referred to as defendants filed an exception raising the objection of no cause of action Defendants argued that at the time of the accident Mr Myles was an employee of Millworks and was engaged in manual labor Thus defendants maintained the exclusive remedy availabie was in workers compensation pursuant to La R 23 et seq Defendants further asserted that Mr S 1032 and Mrs Edmonds can have no personal liability as they are protected from such liability by the limited liability company The exception was heard on September 29 2011 Following argument the trial court ruled in favor of defendants sustaining the exception and denying plaintiff oral request for leave of court to amend the pleadings The trial s s court judgment sustaining the no cause of action exception and dismissing plaintiffs claims against defendants with prejudice was signed on October 18 2011 It is from this judgment that plaintiff appeals assigning the following specifications of error for our review A The District Court erred in maintaining an exception of no cause of action as to Mr and Mrs Edmonds on the basis of their immunity as members of a limited liability company B action The District Court erred in maintaining an exception of no cause of as to Millworks and Thomas on the basis of workers compensation immunity C Pursuant to Louisiana Code of Civil Procedure article 934 the District Court erred in failing to allow any amendment of the Petition fo Damages to remedy the basis of the objection z Plaintiff notes in his brief to this court that since the lodging of the record on appeal Mr Myles has succumbed to his injuries and passed away Plaintiff further indicates that should this court find error in the trial court judgment and remand the matter a wrongful death and survival action will be substituted for s the original claims 3 DISCUSSION The objection that a petition fails to state a cause of action is properly raised by the peremptory exception La Code Civ P art 927 The purpose of the 5 A peremptory exception raising the objection of no cause of action is to test the legal sufficiency of a pleading by determining whether the law affords a remedy on the facts alleged in the pleading Ourso v Wai Stores Inc 2008 pp 3 La Mart 0780 4 App 1 Cir 11 998 So 295 298 writ denied 2008 La 2 999 08 14 2d 2885 09 6 2d So 785 Generally no evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action La Code Civ P art 931 The exception is triable on the face of the pleadings and for the purposes of determining the issues raised by the exception the well facts in the petition must be pleaded accepted determine as if 0780 Ourso 2008 true the law affords plaintiff a at 2d 4 998 So remedy at Z98 under those facts The court must Stroscher v Stroscher 2001 p 3 App 1 Cir 2 845 So 518 523 Any doubts 2769 La 03 14 2d are resolved in favor of the sufficiency of the petition Id If the allegations of the petition state a cause of action as to any part of the demand the exception must be overruled A petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim that would entitle him to relief Pelts Skins L v Louisiana Dept of Wildlife and Fisheries 2005 p 8 C 0952 La App 1 Cir 6 938 So 1047 1053 writ denied 2006 La 10 06 21 2d 1821 06 27 939 So 1281 An exception of no cause of action is likely to be granted only in the 2d unusual case in which the plaintiff includes allegations that show on the face of the petition that there is some insurmountable bar to relief Thus dismissal is justified only when the allegations of the petition itself clearly show that the plaintiff does not have a cause of action or when its allegations show the existence of an affirmative defense that appears clearly on the face of the pleadings 4 Lyons v Terrebonne Parish Consol Government 2010 p 6 App 1 Cir 6 68 So 1180 2258 La il 10 3d 1183 The burden of demonstrating that a petition fails to state a cause of action is upon the mover Foti v Holliday 2009 p 6 10 27 So 813 817 0093 La 30 09 3d In reviewing a district court ruling sustaining an exception of no cause of action s appellate courts conduct a de novo review because the exception raises a question of law and the district court decision is based only on the sufficiency of the petition s Torbert Land Co L v Montgomery 2009 p 4 App 1 Cir 7 C 1955 La 10 9 42 So 1132 1135 writ denied 2010 La 12 51 So 16 3d 2009 10 17 3d In the present case plaintiff argues the petition states a valid cause of action against Millworks based on the allegations that Millworks had denied that Mr Myles was an employee of Millworks that Mr Myles had been performing odd jobs at Millworks for several months prior to the accident and that Mr Myles was paid an hourly rate of between 8 by check issued by Mrs Edmonds 10 Plaintiff notes that defendants argument on the no cause of action exception that Mr Myles was an employee of Millworks was in direct conflict with the facts pled in the petition and that accepting the pleaded well facts in the petition as true the exception should have been denied and seen as what it truly was a motion for summary judgment raising a potential affirmative defense and a disputed issue of material fact We agree Considering the alleged facts of the petition and accepting them as true we find plaintiff has stated facts sufficient to support a negligence cause of action against Miliworks and Thomas Thus we reverse that portion of the trial court October 18 s 2011 judgment that sustained the exception raising the objection of no cause of action as to Millworks and Thomas and vacate the dismissal of plaintiffs action against Millworks and Thomas With regard to plaintiff claims against Mr and Mrs Edmonds we find the facts s in the petition insufficient to support a cause of action against them personally at this time However at the conclusion of the argument before the triai court below counsel 5 for plaintifF requested leave to amend the petition His request was denied by the trial court Louisiana Code of Civil Procedure article 934 provides When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition the judgment sustaining the exception shall order such amendment within the delay allowed by the court If the grounds of the objection raised through the exception cannot be so removed or if the plaintiff fails to comply with the order to amend the action claim demand issue or theory shall be dismissed Emphasis added If a petition allegations are merely conclusory and fail to specify the acts that establish s a cause of action then the trial court should permit the plaintiff the opportunity to amend the petition Badeaux v Southwest Computer Bureau Inc 2005 0612 p 11 La 3 929 So 1211 1219 The decision to allow amendment of a 06 17 2d pleading to cure the grounds for a peremptory exception is within the discretion of the trial court Pearl River Basin Land and Development Co L v State ex rel C sOffice of Homeland Sec and Emergency Preparedness 2009 Governor 0084 p 7 App 1 Cir 10 29 So 589 594 In this case we are not prepared to La 09 27 3d find as a matter of law that the basis for defendants objections to plaintiffs petition cannot be removed by amendment of the petition Therefore while we agree that the factual allegations are presently insufficient to state a cause of action against Mr and Mrs Edmonds personally we conclude that the trial court committed an abuse of its discretion and legal error in failing to allow plaintiff to amend his petition to remove the grounds of the objection and will allow amendment of plaintiffs petition in accordance with Article 934 See Ramey v DeCaire 2003 pp 9 La 3 869 1299 10 04 19 2d So 114 119 120 Thus we affirm the trial court October 18 2011 judgment s insofar as it sustained the exception raising the objection of no cause of action filed by Mr and Mrs Edmonds but vacate the dismissal of plaintiffs action against Mr and Mrs Edmonds We reverse the trial court denial of plaintiffs request for leave of court to s amend the pleadings and amend the judgment in part to provide that the trial court allow the plaintiff a reasonable period of time within which to amend his petition to state a cause of action against Mr and Mrs Edmonds in default of which his action 6 shall be dismissed as against Mr and Mrs Edmonds The matter is remanded to the trial court for further proceedings consistent with the views expressed herein CONCLUSION For the above and foregoing reasons we reverse that portion of the trial court s October 18 2011 judgment that sustained the exception raising the objection of no cause of action as to Period Millworks LLC and Thomas J Edmonds Sr and vacate the dismissal of plaintiffs action against Period Millworks LLC and Thomas J Edmonds Sr We affirm that portion of the judgment that sustained the no cause of action exception filed by Thomas 7 Edmonds Jr and Leah Edmonds but vacate the dismissal of s plaintiff action against Mr and Mrs Edmonds We reverse the trial court denial of s plaintiffs request for leave of court to amend the pleadings and amend the judgment in part to provide that the trial court allow the plaintiff a reasonable period of time within which to amend his petition to state a cause of action against Mr and Mrs Edmonds The matter is remanded to the trial court for further proceedings All costs associated with this appeal are assessed equally between the parties REVERSED IN PART AND VACATED AFFIRMED IN PART AND VACATED AMENDED AND REMANDED FOR FURTHER PROCEEDINGS 7

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