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ALBERT F. MORRIS, JR. v. SUCCESSIONS OF PEARL JONES MORRIS AND PERCY MORRIS SUCCESSION OF PERCY MORRIS
Appellant/plaintiff, Albert F. Morris, Jr., appeals the trial court's March 13, 2024 judgment sustaining defendant Succession of Pearl Jones Morris and Percy Morris's (hereinafter referred to as “the Succession”) exception of no right of action and dismissing plaintiff's petition with prejudice. For the following reasons, we reverse the trial court's judgment, overrule the exception of no right of action, and remand for further proceedings.
FACTS and PROCEDURAL HISTORY
On November 17, 2017, appellant filed a Petition for Damages and Specific Performance. 1 In the petition, appellant contended that on May 23, 2017, he entered into an agreement dated March 13, 2017, with Joy Cressend in her capacity as administratrix of the Succession (i.e., seller), for the purchase of certain immovable properties belonging to the Succession (hereinafter “the purchase agreement”). On the same day, the parties also executed an addendum to the purchase agreement which granted appellant the right of first refusal to purchase additional immovable properties belonging to the Succession. Appellant asserted that pursuant to the terms of the purchase agreement, he timely delivered to Ms. Cressend a promissory note securing an amount of $10,000 as a deposit for the properties and the act of sale was to occur on or before July 1, 2017.
Appellant's petition contended the purchase agreement provided that the seller was responsible for maintaining the property in substantially the same condition as it was when the agreement was executed, but in July of 2017, a contractor for the Jefferson Parish Code Enforcement Office demolished one of the properties listed in the purchase agreement. Appellant asserted that thereafter, he requested a reasonable reduction in the sale price due to the demolition of one of the properties, but the Succession did not offer a reduction. Nevertheless, appellant averred that he agreed to and attempted to move forward with the sale of the properties (i.e., sent the contract to a title company, texts to Ms. Cressend asking for updates on the prospective closing, and bringing his mortgage originator to meeting with counsel for the Succession on more than one occasion). Despite this fact, Ms. Cressend informed him she was unilaterally canceling the purchase agreement and going forward with a second purchase agreement for the subject properties with a different buyer/third party, which was entered into by Ms. Cressend on September 21, 2017.
Appellant alleged that in the Succession proceeding, Ms. Cressend filed a motion to vacate the trial court's prior order to sell the properties to appellant and requested an order for approval to sell the properties to the third party buyer per the terms of the second purchase agreement. Appellant contended the motion to vacate was not supported with any exhibits or documentation that would serve to cancel the agreement with appellant. Appellant asserted he complied with all the terms and conditions of the purchase agreement and “has been consistently ready and willing to close this transaction.” Appellant's petition asserted Ms. Cressend breached the terms of the purchase agreement by failing to make an attempt to prevent the demolition of one of the properties, by failing to reduce the purchase price due to the demolition, and by failing to deliver the subject property in substantially the same condition as it was when the purchase agreement was executed. The petition further contended Ms. Cressend breached the purchase agreement by refusing to convey the title to appellant, unilaterally canceling the contract without cause, and executing a purchase agreement with a third party for the subject properties. As a result of Ms. Cressend's breaches of the purchase agreement, appellant stated he was seeking damages and specific performance of the purchase agreement and addendum.
On February 6, 2024, the Succession filed an exception of no right of action, alleging appellant's right to bring this action is contingent upon the existence of a valid purchase agreement, which does not exist. The Succession asserted the purchase agreement with appellant is not valid or binding because appellant/buyer failed to comply with his responsibilities as set forth in the purchase agreement (i.e., he did not secure the financing for the purchase and did not choose a notary to set the matter for sale), the allegations in the petition are incorrect or not supported by evidence, the purchase agreement terminated on its own under the terms as set forth therein, and there was no “joint, written extension of the agreement.” Additionally, the Succession asserted appellant's right of action “evaporated” on October 5, 2017, when the trial court ordered ex parte “that the May 23, 2017 order approving the execution of the purchase agreement and authorizing the sale of estate properties to Al Morris is hereby vacated, annulled and set aside.” In the October 5, 2017 order, the trial court approved a revised purchase agreement with a third party for the sale of the same property. Because Mr. Morris did not appeal the trial court's October 5, 2017 judgment, nor did he attempt to set it aside or request a new trial, the Succession contended appellant did not have a right of action.
On March 11, 2024, after a contradictory hearing, the trial court sustained the Succession's exception of no right of action, dismissing appellant's lawsuit with prejudice. The trial court rendered a written judgment on March 13, 2024. This appeal followed.
LAW and ANALYSIS
On appeal, appellant contends the trial court erred in finding he did not have a right of action to sue for specific performance of and/or an award of damages for the breach of contract by the Succession, to which he was a party to and signatory of the contract. Appellant argues that in sustaining the exception of no right of action, the trial court improperly considered the merits and/or affirmative defenses to appellant's lawsuit. Appellant contends he has a real and actual interest in the purchase agreement to which he was a party and signatory on the contract. Therefore, he possesses a legally protectable and tangible stake in the litigation and has standing to assert the claims set forth in his petition.
An action can only be brought by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. An exception of no right of action assumes the petition states a valid cause of action and questions whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation. Krebs, Lasalle, Lemieux Consultants, Inc. v. G.E.C., Inc., 16-24 (La. App. 5 Cir. 07/27/16), 197 So.3d 829, 831; Badeaux v. Southwest Computer Bureau, Inc., 05-612 (La. 03/17/16), 929 So.2d 1211, 1217; See La. C.C.P. art. 927 A(6). A party has an actionable right, and consequently standing, if it can be said that the party has a legally protectable and tangible stake in the litigation. I E C I, LLC v. South Central Planning & Dev. Comm'n, Inc., 21-382 (La. App. 5 Cir. 2/23/22), 336 So.3d 601, 609. The exception of no right of action tests whether the plaintiff has a “real and actual interest” in the action, but it does not raise questions of the plaintiff's ability to prevail on the merits or whether the defendant may have a valid defense. L&G Drywall, Inc. v. Gray Insurance Company, 19-441 (La. App. 5 Cir. 03/18/20), 293 So.3d 775, 778; Grubbs v. Haven Custom Furnishings, LLC, 18-710 (La. App. 05/29/19), 274 So.3d 844, 849-850, citing Roubion Shoring Company, LLC v. Crescent Shoring, L.L.C., 16-540 (La. App. 5 Cir. 05/17/17), 222 So.3d 921, 926.
An appellate court reviews a trial court's ruling on an exception of no right of action de novo because the exception raises a question of law. Krebs, Lasalle, Lemieux Consultants, Inc., 197 So.3d at 831; Badeaux, 929 So.2d at 1217, Marks v. Third Dist. Volunteer Fire Dep't, 13-383 (La. App. 5 Cir. 12/30/13), 131 So.3d 1099, 1101, writ denied, 14-88 (La. 03/14/14), 135 So.3d 606. The defendant raising the exception has the burden of proving the exception. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La. 03/02/99), 739 So.2d 748, 755. At the hearing on the exception of no right of action, the exception may be submitted on the pleadings, or evidence may be introduced either in support of or to controvert the objection raised when the grounds thereof do not appear from the petition. La. C.C.P. art. 931; Lemmon Law Firm, LLC v. School Bd. of Parish of St. Charles, 13-376 (La. App. 5 Cir. 12/12/13), 131 So.3d 231.
In this case, the minute entry of the March 11, 2024 hearing on the exception of no right of action does not indicate that any evidence of any kind was admitted. This exception is therefore to be decided on the allegations of the petition. In the absence of any findings of fact by the trial court based on evidence admitted at a contradictory hearing, the exception is reviewed entirely de novo, applying the law to the facts alleged in the petition, which are taken as true.
Upon de novo review, accepting all of the allegations in the petition as true in the light most favorable to appellant, we find that the trial court improperly considered the merits of the case and/or affirmative defenses asserted by the Succession in determining that appellant did not have a right of action. As previously stated, an exception of no right of action does not question whether the named defendant may have a valid defense or whether the plaintiff can prevail on the merits. Here, the Succession argued the merits of the action and/or potential affirmative defenses to the action (i.e., that the purchase agreement expired by its own terms, the parties did not enter into a written extension; that appellant did not comply with the terms of the purchase agreement; and/or that the purchase agreement “evaporated” with the trial court's October 5, 2017 order). Such arguments that go to the merits or defense of the action may not be considered in determining whether appellant has a right of action.
An exception of no right of action focuses instead on whether the named plaintiff has a real and actual interest in the action. In the instant case, it is undisputed that appellant entered into a purchase agreement with the Succession for the purchase of immovable properties belonging to the Succession and no evidence was introduced at the hearing to disprove any other allegations of the petition. Therefore, as a party to and signatory of the purchase agreement, appellant has a real and actual interest in the subject matter of the litigation. In other words, appellant, as a party to the purchase agreement, is a member of the class for which the law provides a remedy, which in this case is the right to assert damages for breach of contract claims, specific performance of the contract, and damages for breach of contract claims. Consequently, we find the trial court erred by sustaining the Succession's exception of no right of action and dismissing appellant's lawsuit.
DECREE
Accordingly, for the foregoing reasons, we reverse the trial court's judgment, overrule the exception of no right of action, and remand for further proceedings.
REVERSED; REMANDED
FIFTH CIRCUIT
101 DERBIGNY STREET (70053)
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054
www.fifthcircuit.org
SUSAN M. CHEHARDY CHIEF JUDGE
FREDERICKA H. WICKER
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL
JUDGES
CURTIS B. PURSELL CLERK OF COURT
SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK
LINDA M. WISEMAN FIRST DEPUTY CLERK
MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF
(504) 376-1400
(504) 376-1498 FAX
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY MAY 21, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
CURTIS B. PURSELL CLERK OF COURT
24-CA-399
C/W 24-CA-400
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE SHAYNA BEEVERS MORVANT (DISTRICT JUDGE)
PATRICK T. ISACKS (APPELLANT)
GEORGE S. HESNI, II (APPELLEE)
G. PATRICK HAND, JR. (APPELLEE)
SUSANNE JERNIGAN (APPELLEE)
STEPHEN C. BRAUD (APPELLEE)
MAILED
TIMOTHY S. MADDEN (APPELLANT)
ATTORNEY AT LAW
201 ST. CHARLES AVENUE
45TH FLOOR
NEW ORLEANS, LA 70170
S. JACOB BRAUD (APPELLEE)
ATTORNEY AT LAW
8114 HIGHWAY 23
SUITE 101
BELLE CHASSE, LA 70037
LOUIS MORRIS, JR. (APPELLEE)
2700 JASPER STREET
KENNER, LA 70062
CARLOS V. ROSETTI (APPELLEE)
ATTORNEY AT LAW
407 HUEY P. LONG AVENUE
GRETNA, LA 70053
FOOTNOTES
1. On January 27, 2021, case no. 777-893, Div. H, Albert F. Morris, Jr. v. Successions of Pearl Jones Morris and Percy Morris, was transferred and consolidated with case no. 707-404, Div. M, Successions of Pearl Jones Morris and Percy Morris.
STEPHEN J. WINDHORST JUDGE
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Docket No: NO. 24-CA-399
Decided: May 21, 2025
Court: Court of Appeal of Louisiana, Fifth Circuit.
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