GENOVESE, Judge.
Plaintiff, Alfonso Haybeych, appeals the trial court's judgment granting an exception of res judicata in favor of Defendant, JPMorgan Chase Bank, N.A. (Chase), and the trial court's judgment granting exceptions of no cause of action and prescription in favor of Defendant, Asset Liquidators and Management, Inc. (ALM), thereby dismissing Mr. Haybeych's claims against these Defendants. For the following reasons, we reverse in part, affirm in part as amended, affirm in part, and remand.
Mr. Haybeych filed a Petition to Perpetuate Testimony on April 22, 2013, seeking to take the corporate deposition of Chase. Therein, he contended that he submitted a bid on property located in Lafayette, Louisiana, that had been listed for sale by Chase. Mr. Haybeych asserted that Chase agreed to sell the property provided he obtain the financing from Chase and that the parties agreed to a closing date. Allegedly, prior to closing, Chase cancelled the contract and relisted the property for sale. Thereafter, according to Mr. Haybeych, Chase sold the property for a price less than what he had contracted to pay Chase. According to Mr. Haybeych's petition, despite his efforts, he was unable to obtain information from Chase as to the Chase personnel involved in the transactions and Chase's reasons for cancelling the sale.
In response to Mr. Haybeych's efforts to take its corporate deposition, Chase filed exceptions of no cause of action and no right of action. Following a hearing, the trial court denied Mr. Haybeych's Petition to Perpetuate Testimony, granted Chase's exception of no cause of action relative to the petition, and found Chase's exception of no right of action moot. The trial court signed a concomitant judgment on July 8, 2013, ordering that Mr. Haybeych's Petition to Perpetuate Testimony be dismissed with prejudice.
On May 6, 2014, Mr. Haybeych filed a Petition, naming as defendants Chase and ALM,
Mr. Haybeych presents the following assignments of error for our review:
The parties dispute the appropriate standard of review to be applied in this case. When evidence is introduced by the parties in support of an exception of res judicata, the appropriate standard of appellate review is manifest error. Fogleman v. Meaux Surface Prot., Inc., 10-1210 (La.App. 3 Cir. 3/9/11), 58 So.3d 1057, writ denied, 11-712 (La. 5/27/11), 63 So.3d 995. However, when, as in the present case, the trial court does not make any factual determinations, but rather the issue is whether a prior judgment bars an action, "[t]he res judicata effect of a prior judgment is a question of law that is reviewed de novo." Id. at 1059 (quoting Morales v. Parish of Jefferson, 10-273, p. 6 (La.App. 5 Cir. 11/9/10), 54 So.3d 669, 672). Therefore, we must determine whether the trial court was legally correct in ruling that Mr. Haybeych's Petition to Perpetuate Testimony bars the present action under the doctrine of res judicata.
Mr. Haybeych argues on appeal that the trial court erred in finding that his Petition to Perpetuate Testimony barred the current litigation on the grounds of res judicata. The doctrine of res judicata is
In this case, the fact that both Mr. Haybeych and Chase are parties in both pleadings which were filed, the fact that the same underlying facts are found in both pleadings, and the fact that the prior judgment is a final judgment are undisputed. However, Mr. Haybeych argues that the error of the trial court arises from its conclusion that "the two `actions' arose out of the same `transaction and occurrence[;'] therefore[,] the first constitute[s] a bar to the second."
The trial court stated the following in its written reasons:
Mr. Haybeych argues that the prior Petition to Perpetuate Testimony is not an "action" pursuant to La.R.S. 13:4231.
Mr. Haybeych's Petition to Perpetuate Testimony was filed in accordance with Louisiana Code of Civil Procedure Article 1429 which provides as follows:
In distinguishing an action or lawsuit from the nature of a petition filed in accordance
Notably, La.Code Civ.P. art. 1429 appears within chapter three of the Louisiana Code of Civil Procedure governing discovery, and under section two thereof, which addresses depositions and general dispositions. The express language of La. Code Civ.P. art. 1429 (emphasis added) instructs us on the filing of a petition "in a court in which the anticipated action might be brought" and contains the words "expects" and "expected" when referring to the action and the parties. As noted by Mr. Haybeych, "[i]t would be clearly contrary to the purpose of La.[Code Civ.P. art.] 1429 for an attempt to preserve evidence for an anticipated suit to be deemed to constitute a bar to the very suit it anticipates."
The limited purpose of a petition for the perpetuation of testimony, evidentiary in nature, is also reflected by the contents of the pleading itself, both in the nature of the allegations and the relief sought. Specifically, Mr. Haybeych's Petition to Perpetuate Testimony alleged that he "anticipates litigation against Chase Bank and others" and averred that "it is necessary that Petitioner obtain an order from this Court ordering Chase Bank to show cause why its corporate deposition [should] not be taken in order to allow Petitioner to obtain the relevant documents and the names and addresses of the persons who were involved in the transaction." These allegations expressly aver an anticipated litigation, and Mr. Haybeych's sought-after relief was limited to "an order ruling Chase Bank into Court to show cause why Petitioner should not take its Corporate Deposition to Perpetuate Testimony ... and after due proceedings order the taking of that deposition."
We agree with Mr. Haybeych that the Petition to Perpetuate Testimony was not an action or litigation as contemplated by La.R.S. 13:4231. The purpose of that pleading was limited in scope to include only the taking of the corporate deposition of Chase and nothing further. Mr. Haybeych further argues that the proceeding was not "`litigation' on the merits, no substantive relief, such as injunction, specific performance, damages or other `redress' for a legal wrong" was sought. This conclusion is wholly supported by the placement of the article within the code and the express language of the article itself. To conclude otherwise would negate the provisions of La.Code Civ.P. art. 1429.
Mr. Haybeych cites Gaines v. Bruscato, 30,340 (La.App. 2 Cir. 4/8/98), 712 So.2d 552, writ denied, 98-1272 (La. 6/26/98), 719 So.2d 1059, which supports his position and our conclusions herein. In Gaines, the court found that a "supplemental and amending petition did not relate back to the filing of [a] petition for perpetuation of testimony and evidence, and therefore, the claim for damages [had] prescribed." Id. at 556. The second circuit began its analysis by examining the petition to perpetuate testimony and evidence and the provisions of La.Code Civ.P. art. 1429, and reasoned that "[a] petition for pre-litigation preservation of testimony under La.[Code Civ.P.] art. 1429 is an extraordinary discovery method to be used where resort to normal discovery is made impossible by the absence
This court has also discussed La. Code Civ.P. art. 1429 in Lasseigne v. Perpetuate Testimony, 381 So.2d 952 (La.App. 3 Cir.1980). In Lasseigne, we recognized Fed.R.Civ.P. 27(a)(1) as the source of La. Code Civ.P. art. 1429 and opined that the "primary purpose is to preserve testimony that might otherwise be lost to a prospective litigant." Id. at 953 (quoting In the Matter of Vermilion Parish Sch. Bd., 357 So.2d 1295, 1297 (La.App. 3 Cir.1978)). This court, in Lasseigne, went on to state that "[t]he first requirement" for a petition pursuant to La.Code Civ.P. art. 1429 "is that the petitioner show that the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought." Id.; In the Matter of Vermilion Parish Sch. Bd., 357 So.2d at 1297. The nature and purpose of a petition pursuant to La.Code Civ.P. art. 1429 is clearly for discovery and in anticipation of litigation.
For the reasons discussed above, we find that Mr. Haybeych's Petition to Perpetuate Testimony was not an action as contemplated by La.R.S. 13:4231. Therefore, the current action is not a "subsequent action" barred under the doctrine of res judicata. La.R.S. 13:4231(2). Therefore, we find legal error in the trial court's ruling, and we reverse the judgment of the trial court granting the exception of res judicata in favor of Chase and dismissing the claims asserted by Mr. Haybeych against Chase.
In reaching our conclusion, we note that Chase, in its brief, sets forth considerable discussion attempting to convince this court that the trial court correctly held that the present lawsuit "asserts a cause of action which arises out of the transaction or occurrence that was the subject matter of the first action" for purposes of res judicata. However, Chase, like the trial court, overlooks the threshold inquiry. Although Chase refers to Mr. Haybeych's filing of the Petition to Perpetuate Testimony as "the [f]irst lawsuit[,]" for the reasons discussed above, we do not find that it was an "action" triggering La.R.S. 13:4231. Therefore, we need not discuss the remaining res judicata requirements of the same parties, the same underlying transaction and occurrence, and the finality of the judgment.
In his second assignment of error, Mr. Haybeych contends that the trial court erred in granting ALM's exception of no cause of action. He argues that in so concluding, the trial court "misread" his Petition.
Industrial Cos., Inc. v. Durbin, 02-665, pp. 6-7 (La.1/28/03), 837 So.2d 1207, 1213 (citations omitted).
Mr. Haybeych argues on appeal that his suit against ALM is based upon its formation and subsequent breach of contract. He admits that given the lack of information available to him, he was put in the position of casting a broader net [than] he would like to have cast[;] however, his [P]etition sufficiently alleges that "ALM `and/or' Chase, one or both of them, are the culprits in this matter."
In its Reasons for Ruling, the trial court quoted portions of Mr. Haybeych's Petition and concluded that "[t]he allegations of the [P]etition assert a claim for breach of contract, but do not state any facts that establish the existence of a contract between [Mr.] Haybeych and ALM Realty, other than to allege that Chase was acting through its agent, ALM Realty." The trial court concluded that "[t]he only contract that is alleged is between [Mr.] Haybeych and Chase. This [c]ourt finds that [Mr. Haybeych]'s [P]etition does not establish the existence of a contract between ALM Realty and [Mr.] Haybeych." We agree.
Mr. Haybeych's Petition does allege that Chase acted through ALM as its agent. It also alleges, in the alternative, by its use of "and/or[,]" that ALM acted in its own capacity with respect to placing the property for sale, and that there was there an offer, a counter-offer, the formation of a contract, and a breach thereof. However, as the trial court correctly noted, absent from the Petition is any allegation of ownership of the property. In order for Mr. Haybeych to assert a cause of action against ALM for breach of contract of the sale of the property, there must be a specific allegation in his Petition that ALM is the owner of the property. A review of the facts pled in the Petition reveals that the factual allegations are deficient and do not adequately state a cause of action for breach of contract. However, this does not end the inquiry.
Louisiana Code of Civil Procedure Article 934 allows for there to be an amendment to the petition, providing as follows:
Because we find no error by the trial court in sustaining ALM's exception of no cause of action, we affirm that judgment, but amend it to allow Mr. Haybeych the opportunity to cure the deficiency by amending his Petition within thirty days of the issuance of this opinion in accordance with La.Code Civ.P. art. 934.
In his third assignment of error, Mr. Haybeych argues that the trial court erred in granting ALM's exception of prescription stemming from the trial court's erroneous grant of ALM's exception of no cause of action. We agree, in part.
The judgment of the trial court contains the following:
Additionally, in its Reasons for Ruling, the trial court stated:
With respect to a claim in tort, we agree with the trial court that Mr. Haybeych's Petition was untimely.
However, as set forth above, we also affirm the trial court's grant of ALM's exception of no cause of action as it pertains to any contractual claims, but we amend the judgment to allow Mr. Haybeych the opportunity, within thirty days of the issuance of this opinion, to amend his Petition in order to cure the deficiency relative to a cause of action against ALM for breach of contract, which has a ten-year prescriptive period.
In his final assignment of error, Mr. Haybeych contends that "[t]he trial court also erred in declining to consider [his] argument (in brief opposing ALM's exceptions)
Insomuch as Mr. Haybeych argues that he has a claim against ALM pursuant to La.Civ.Code art. 3019, any such claim would be tortious in nature, subject to the one-year prescriptive period, and, therefore, prescribed. Hence, we pretermit a discussion herein as to the assertion of claims under this theory of liability since the trial court did not consider same; and, even if it had been sufficiently alleged, it was untimely brought.
For the reasons assigned, the judgment of the trial court granting the exception of res judicata in favor of Defendant, JPMorgan Chase Bank, N.A., is reversed. The judgment of the trial court granting the exception of no cause of action in favor of Defendant, Asset Liquidators and Management, Inc., is affirmed as amended, to allow Mr. Haybeych to amend his Petition within thirty days of the issuance of this opinion. Additionally, that portion of the trial court's judgment granting the exception of prescription in favor of Asset Liquidators and Management, Inc. relative to any claims arising in tort is affirmed, and the exception of prescription as to a claim for breach of contract is pretermitted pending subsequent amendment to the Petition, if any. This matter is remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed one-third to Alfonso Haybeych, one-third to JPMorgan Chase Bank, N.A., and one-third to Asset Liquidators and Management, Inc.