Marla B. Whittington VS Hospice Care Services of Louisiana, L.L.C. and Life Hospice, L.L.C.

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 0540 MARLA B WHITTINGTON VERSUS HOSPICE CARE SERVICES OF LOUISIANA L C Judgment Rendered FEB 2 5 2013 On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No 559 Section 24 169 The Honorable R Michael Caldwell 7udge Presiding Donna U Baton Rouge Robert I New Grodner Louisiana Siegel Counsel for Defendant Appellee Orleans Louisiana Namisha D Patel Roy H Baton Counsel for Plaintiff Appellant Marla B Whittington Jr Maughan Rouge Louisiana Joseph C Wiley Baton Rouge Louisiana Granite State Insurance Company Counsel for Defendants Appellees Life Hospice LDynafab USA C C L Randal A Gomez Counsel for Defendant Appellee Life Hospice L C BEFORE PARRO HUGHES AND WELCH JJ HUGHES J This is an appeal of a judgment that sustained exceptions of no right of action For the reasons that follow we reverse in part and remand FACTS AND PROCEDURAL HISTORY This suit arose as an action for damages for the alleged wrongful termination of Ms Marla Whittington employment by Hospice Care s Services of Louisiana C L Hospice Care The trial court initially rendered summary judgment in favor of Hospice Care but this court reversed that judgment on September 10 2010 and remanded the case to the trial court for further proceedings Whittington v Hospice Care Services of Louisiana L 10 La App 1 Cir 9unpublished C 0206 10 10 On December 31 2009 during the pendency of the summary judgment appeal an of LLC Membership RighY was executed Assignment by Hospice Care only members Richard and Linda Mahoney s In that assignment the Mahoneys transferred 100 of their membership interest in Hospice Care to Dynafab USA L Dynafab and resigned employment C with Hospice Care and as managers of Hospice Care Dynafab consisted of a sole member and manager Mr Randal A Gomez Mr Gomez was also the managing member of Life Hospice L C Life Hospice which he co with Mr David E Roberts On June 1 owned 2010 Mr Gomez executed an Sale Agreement with Assumption of Asset Certain Liabilities wherein Hospice Care through Mr Gomez as managing member transferred to Life Hospice through Mr Gomez as its managing member the following 1 Hospice Care DHH license s 2 All furniture fixtures equipment inventory and supplies located at Hospice Care 2 3 All of Hospice Care patient records software and records for s billing and 4 Hospice Care right to receive all outstanding payments due from s Medicare The sale agreement further stated that Life Hospice shall not be deemed to have assumed any o or liability of Hospice Care other ligation than the Medicare ibed Overpayment desc aLove As a result of the assignment and sale Hospice Care remained a limited liability company in good standing but was left without any assets Thus Ms Whittington supplemented and amended her pleadings to add Dynafab Life Hospice and Mr Gomez as additional defendants in the suit alleging that they had conspired to defraud her Life Hospice filed an exception raising the objection of no right of action Dynafab and Mr Gomez also filed exceptions raising the objections of no right of action no cause of action and vagueness The hearing on the exceptions and the trial on the merits were held the same day Prior to the trial the court rendered judgment on the exceptions sustaining the exceptions of no right of action raised by Dynafab Mr Gomez and Life Hospice and denying the exceptions of no cause of action and vagueness raised by Dynafab and Mr Gomez The judgment on the exceptions was signed on July 12 2011 Ms Whittington appeals and assigns enor to the trial court ruling sustaining the exceptions s of no right of action At the conclusion of the trial the court ruled in favor of Ms Whittington on the merits of her wrongful termination claim and found that On appeal Ms Whittington also makes the following assignments of error 1 The trial court erred in finding that Ms Whittington did not have a right of action against Life Hospice as the interest in successor to Hospice Care 2 The trial court erred in finding that Dynafab became a member of Hospice Care and 3 The trial court erred in finding that Hospice Care liabilities did s not shift with its assets under the continuation doctrine Because we conclude herein that Ms s Whittington assignment of error regarding the exception of no right of action nas merit we pretermit discussion of the other assignments of error 3 Hospice Care was liable to her for danna in the amount of 151 s 00 265 That judgment was signed omJuly 26 2011 and was not appealed LAW AND AN LYSIS The exceptions of no cause of action and no right of action are often confused but are separate and distinct One of the primary differences between the two exceptions lies in the fact that the focus zn an exception of no cause of action is on whether the law provides a remedy against a particular defendant while the focus in an excepYion of no right of action is on whether the particular plaintiff has a right to bring the suit Robertson v Sun Life Financial 09 La App 1 Cir 640 So 507 511 2275 10 11 3d The function of the exception urging no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit Robertson 40 So3d at 511 The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation Robertson 40 So at 511 3d In this case Ms Whittington pleadings state a cause of action for s damages as a result of her wron termination As the person wrongfully ful terminated there is no question that she belangs to the class tl has a legal at interest in the subject matter of the litigation i pursue a judgment for e to the damages she herself sustained Thus she has stated a valid right of action and the trial court erred in sustaining that exception Accardingly we must reverse the trial court judgment in that respect s Because the trial s court ruling denying the exceptions of no cause of action and vagueness raised by Dynafab and Mr Gomez were not appealed those issues are not before us for review 4 CONCLUSION For the foregoing reasons the portion of the judgment sustaining the exceptions of no right of action in favor ofDynafab USA L Randal A C Gomez and Life Hospice L is reversed This case is remanded to the G I trial court for further proceedings Costs fthis appeal are assessed to the appellees defendants Dynafab USA L Life Hospice L and Mr C C Randal A Gomez REVERSED IN PART AND REMANDED 5

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