SAFE AIR TECHNOLOGY LLC v. GERALD CHRISTIE (2017)

The plaintiff, Safe Air Technology, LLC (“Safe Air”), appeals two judgments rendered in favor of defendants, Northern Air Technology, LLC, Northern Air Systems, Inc., and Michael S. Calamia, which sustained their peremptory exceptions raising the objection of prescription and dismissed Safe Air's claims against those defendants for damages based on the Louisiana Uniform Trade Secrets Act, La. R.S. 51:1431, et seq. (“LUTSA”), conversion, and violations of the Louisiana Unfair Trade Practices and Consumer Protection Law Act, La. R.S. 51:1401, et seq. (“LUTPA”). For reasons that follow, we affirm the judgments of the trial court.

I. FACTUAL AND PROCEDURAL HISTORY

Northern Air Technology, LLC and Northern Air Systems, Inc. (collectively “Northern Air”) are suppliers of specialized air-conditioning equipment, including explosion proof HVAC systems,¹ which are used by the oil and gas industry and the military. Safe Air also makes explosion-proof HVAC systems and is a competitor of Northern Air. Gerald Christie, was employed by Safe Air from about June 17, 2004,² until about January 12, 2012, when he commenced working for Northern Air.

On June 27, 2012, Safe Air filed a petition seeking damages from Mr. Christie for breach of contract (“the original petition”). Therein, Safe Air alleged that Mr. Christie had entered into non-disclosure and confidentiality employment agreements with Safe Air on June 17, 2004, and on July 31, 2008.³ According to Safe Air, these agreements provided that Mr. Christie would not use any information and practices he acquired from Safe Air for the benefit of either himself or any other third party and that he would refrain from working for a competitor of Safe Air for two years from the date of termination. Safe Air claimed that Mr. Christie had violated the terms of the agreements by immediately going to work for Northern Air, a competitor of Safe Air, and that “[u]pon information an belief, ․ [Mr.] CHRISTIE also used information that he acquired during his employment with [Safe Air] to design and build products for the benefit of [Northern Air].” Safe Air further claimed that as a result of Mr. Christie's breach of the agreements, Safe Air suffered losses and damages.

Mr. Christie responded by filing an answer generally denying the allegations of the petition and a reconventional demand. Therein, Mr. Christie admitted that he had entered into a confidentiality and nondisclosure agreement with Safe Air on July 31, 2008; however, he maintained that that agreement did not contain a noncompete agreement. Mr. Christie asserted that the July 31, 2008 agreement contained a specific provision providing that any prior agreements between Safe Air and Mr. Christie were cancelled by the July 31, 2008 agreement. Mr. Christie admitted he had entered into a nondisclosure and confidentiality employee agreement with Safe Air on June 17, 2004, which purportedly contained a noncompete agreement; however, he maintained that the noncompete agreement therein was cancelled by the provisions of the July 31, 2008 agreement and further, that the noncompete agreement was not enforceable under Louisiana law since it violated La. R.S. 23:921. Thus, in the reconventional demand, Mr. Christie claimed that Safe Air was attempting to enforce a noncompete agreement that either no longer existed or was unenforceable, thereby entitling him to damages and attorney fees under LUTPA.

On April 23, 2014, Safe Air filed an application for preliminary and permanent injunction against Mr. Christie. Therein, Safe Air sought to enjoin Mr. Christie from using any information that belonged to Safe Air for the benefit of Northern Air or any other third party on the basis of the June 17, 2004 nondisclosure and confidentiality employee agreement between Safe Air and Mr. Christie. In support of the injunction, Safe Air submitted the affidavit of Mr. David Ratcliff, the president of Safe Air, and the affidavit of Leif Wismar, a mechanical engineer. In Mr. Ratcliff's affidavit, which was dated April 8, 2014, he stated that he witnessed Mr. Christie sign the June 17, 2004 nondisclosure and confidentiality employee agreement and that he had “information which shows that [Mr.] Christie went to work for [Northern Air] in early 2012, and that he took information that belonged to [Safe Air] and used it for the benefit of [Northern Air].” In Mr. Wismar's affidavit, he stated that he worked on specialized HVAC equipment in the petrochemical market and that as part of his job duties, he would inspect and perform work on explosion proof HVAC systems, which came from various manufacturers, including Safe Air. Mr. Wismar stated that he personally inspected an HVAC system manufactured by Northern Air at a plant in Belle Chasse, Louisiana, that it looked strikingly similar to the explosion proof HVAC system manufactured by Safe Air, that he reviewed the diagrams allegedly prepared by Mr. Christie for the HVAC system at that particular plant, and that the diagram was almost identical to diagrams for similar Safe Air HVAC systems.

That same date, April 23, 2014, Safe Air also issued a notice of deposition for the production of documents to Northern Air (the “subpoena duces tecum”), seeking the production of: any and all drawings or diagrams prepared by Mr. Christie for explosion proof HVAC systems both in PDF and Auto Cad format; any and all drawings or diagrams provided by Mr. Christie for explosion proof HVAC systems both in PDF and Auto Cad format; and any and all parts lists for explosion proof HVAC systems that had been designed by Mr. Christie. In response to the subpoena duces tecum, Northern Air filed a motion to quash and a motion for protective order. Essentially, Northern Air claimed that to provide Safe Air, its competitor, with its entire library of documents for explosion proof HVAC systems would be unreasonable, overly burdensome, and would cause damage to Northern Air. However, Northern Air stated in its motion to quash and for protective order that it would provide Safe Air with the documents and diagrams regarding the HVAC system manufactured for the plant at issue in Safe Air's request for the injunction under an agreed upon protective order.

On July 15, 2014, after a hearing, the trial court denied Northern Air's motion to quash and ordered Northern Air to respond to the subpoena duces tecum within 21 days from the date of the hearing by producing any and all drawings or diagrams prepared or provided by Mr. Christie for explosion proof HVAC systems both in PDF and Auto Cad format. An “order” in accordance with the trial court's ruling in this regard was signed on July 31, 2014 (“the July 2014 discovery order”). At the July 15, 2014 hearing, the trial court also denied Safe Air's request for a preliminary injunction, and a judgment in accordance with this ruling was signed on August 18, 2014.

Thereafter, on November 20, 2014, Safe Air filed a second supplemental and amending petition,⁴ adding Northern Air and Mr. Calamia as defendants (“the second petition”).⁵ The second petition alleged additional facts with respect to Safe Air's claim against Mr. Christie for breach of contract, and it asserted new claims against all of the defendants for conspiracy to breach contract, conversion, and unfair trade practices (i.e., violations of LUTPA).⁶ On February 26, 2015, Safe Air filed a third supplemental and amending petition, which added a new claim—breach of fiduciary duty—against Mr. Calamia, added more factual allegations to the claim for breach of contract against Mr. Christie and added more factual allegations to the conspiracy to breach contract, conversion, and violation of LUTPA claims against all the defendants (“the third petition”).

In response to the second and third petitions, Northern Air and Mr. Calamia filed peremptory exceptions raising the objections of prescription and no cause of action. In the objection of prescription, Northern Air and Mr. Calamia maintained that the claim for conversion was prescribed and that the claim for the alleged violation of LUTPA was perempted; in the objection of no cause of action, Northern Air and Mr. Calamia maintained that no cause of action existed in Louisiana for conspiracy to breach a contract. At the February 29, 2016 hearing on the exceptions, Safe Air withdrew all opposition to the exceptions; therefore, the trial court sustained the objection of no cause of action in regard to the claim for conspiracy to breach contract and sustained the objection of prescription regarding the claims for conversion and unfair trade practices.

However, just prior to the February 29, 2016 hearing and while the objections still were pending, on February 18, 2016, Safe Air filed a fourth supplemental and amending petition (“the fourth petition”). The fourth petition asserted the same claims against Mr. Christie for breach of contract, against Mr. Calamia for breach of fiduciary duty, and against all the defendants (Mr. Christie, Northern Air, and Mr. Calamia) for conspiracy to breach contract, conversion and unfair trade practices (i.e. violations of LUTPA). In addition, the fourth petition asserted two new claims against all of the defendants based on LUTSA and fraud. Moreover, with respect to all of these claims, Safe Air added allegations regarding the dates that it discovered these claims—more specifically, Safe Air asserted that it discovered these claims on or about August 12, 2014, when Northern Air produced a disc, which was in response to the subpoena duces tecum and the trial court's July 2014 discovery order, that contained drawings and diagrams of explosion proof HVAC systems that were prepared for Northern Air by Mr. Christie.

After Safe Air filed its fourth petition, on March 29, 2016, the trial court signed the judgment with respect to the objections filed in response to the second and third petitions. The trial court's judgment specifically sustained both the objection of no cause of action regarding the claim for conspiracy to breach the contract “AS IT EXISTED ON FEBRUARY 29, 2016” and the objection of prescription regarding the claims for conversion and unfair trade practices “AS THEY EXISTED ON FEBRUARY 29, 2016.”

In response to the fourth petition, Northern Air and Mr. Calamia filed peremptory exceptions raising the objections of prescription and no cause of action with regard to the fraud claim, the objection of prescription as to the claim based on LUTSA, and the objection of no cause of action as to the claim for conspiracy to breach contract. A hearing was held on August 8, 2016; thereafter, by separate judgments signed on August 30, 2016, the trial court sustained the objection of prescription regarding the cause of action based on LUTSA; overruled the objection of no cause of action, but sustained the objection of prescription as to the fraud claim; and sustained the objection of no cause of action as to the conspiracy to breach contract claim.

With respect to the trial court's ruling on the objection of prescription as to the claim based on LUTSA, Safe Air sought review of that ruling by filing an application for supervisory writs with this court. On December 1, 2016, this court denied the writ application. See Safe Air Technology, LLC v. Gerald Christie, 2016-1183 (La. App. 1st Cir. 12/1/16)(unpublished writ action).⁷

Thereafter, on September 2, 2016, Northern Air and Mr. Calamia filed a peremptory exception raising the objection of prescription as to the remaining claims raised in Safe Air's fourth petition, i.e., its claims based on conversion and the alleged violations of LUTPA. By judgment signed on March 20, 2017, the trial court rendered judgment in favor of Northern Air and Mr. Calamia and against Safe Air, sustaining the peremptory exception raising the objection of prescription as to the claims for conversion and alleged violations of LUTPA and dismissing those claims with prejudice.⁸ The March 20, 2017 judgment further set forth that the dismissal of the claims for conversion and alleged violations of LUTPA effectively resulted in the dismissal of all claims against Northern Air brought by Safe Air.⁹ From this March 20, 2017 judgment, Safe Air has appealed.

On appeal, Safe Air maintains that the trial court erred in sustaining the objection of prescription and in dismissing its claims against Northern Air and Mr. Calamia based on LUTSA,¹⁰ conversion, and violations of LUTPA.

II. LAW AND DISCUSSION

A. Prescription

Liberative prescription is a mode of barring actions as a result of inaction for a period of time. La. C.C. art. 3447. The fundamental purpose of prescription statutes is to afford a defendant economic and psychological security if no claim is timely made and to protect him from stale claims and the loss of non-preservation of relevant proof. Giroir v. South Louisiana Medical Center, 475 So.2d 1040, 1045 (La. 1985). However, prescriptive statutes are strictly construed against prescription and in favor of maintaining the claim. See Naquin v. Bollinger Shipyards, Inc., 2011-1217 (La. App. 1st Cir. 9/7/12), 102 So.3d 875, 878, writs denied, 2012-2676, 2012-2754 (La. 2/8/13), 108 So.3d 87, 93.

The objection of prescription may be raised by a peremptory exception. La. C.C.P. art. 927(A)(1). Generally, the burden of proving that a cause of action has prescribed rests with the party pleading prescription; however, when the face of the plaintiff's petition shows that the prescriptive period has run, the burden is on the plaintiff to prove suspension or interruption. St. Romain v. Luker, 2000-1366 (La. App. 1st Cir. 11/9/01), 804 So.2d 85, 88, writ denied, 2002-0336 (La. 4/19/02), 813 So.2d 1083.

At the hearing on the objection of prescription, evidence may be introduced to support or controvert the exception of prescription when the grounds thereof do not appear from the petition. See La. C.C.P. art. 931; Kelley v. General Insurance Company of America, 2014-0180 (La. App. 1st Cir. 12/23/14), 168 So.3d 528, 533, writs denied, 2015-0157, 2015-0165 (La. 4/10/15), 163 So.3d 814, 816. In the absence of evidence, the exception must be decided on the facts alleged in the petition, which are accepted as true. Duckworth v. Louisiana Farm Bureau Mutual Insurance Company, 2011-2835 (La. 11/2/12), 125 So.3d 1057, 1072. When evidence is received at the trial of the exception, the appellate court reviews the trial court's factual findings under the manifest error-clearly wrong standard of review. Warren v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, 2014-0310 (La. App. 1st Cir. 11/20/14), 168 So.3d 436, 439, writ denied, 2015-0068 (La. 4/2/15), 163 So.3d 795. On review, an appellate court should not reweigh the evidence or substitute its own factual findings. Pinsonneault v. Merchants & Farmers Bank & Trust Co, 2001-2217 (La. 4/3/02), 816 So.2d 270, 279. Thus, if the trial court's findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rando v. Anco Insulations, Inc., 2008-1163, 2008-1169 (La. 5/22/09), 16 So.3d 1065, 1082.

1. Prescription of Claims based on LUTSA

A claimant may recover damages under LUTSA for the actual loss caused by the misappropriation of a trade secret.¹¹ See La. R.S. 51:1433. Louisiana Revised Statutes 51:1436 sets forth the prescriptive period for an action for the misappropriation of a trade secret under LUTSA, and it provides that “[a]n action for misappropriation must be brought within three years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered” and that “a continuing misappropriation constitutes a single claim.”¹² Under LUTSA, “misappropriation” is defined as the:

(a) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or

(b) disclosure or use of a trade secret of another without express or implied consent by a person who:

(i) used improper means to acquire knowledge of the trade secret; or

(ii) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was:

(aa) derived from or through a person who had utilized improper means to acquire it;

(bb) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or

(cc) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or

(iii) before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

La. R.S. 51:1431(2).

In addition, a “trade secret” is defined as “information, including a formula, pattern, compilation, program, device, method, technique, or process, that:

(a) derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and

(b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

La. R.S. 51:1431(4).

Northern Air and Mr. Calamia contend that Safe Air filed its fourth petition adding the claims based on LUTSA more than three years after they discovered or should have discovered the alleged misappropriation. Northern Air and Mr. Calamia point out that Safe Air filed its original petition against Mr. Christie on June 27, 2012, alleging therein that Mr. Christie had violated the terms of his agreements with Safe Air and was using information that he acquired during his employment with Safe Air to design and build products for the benefit of Northern Air. Northern Air and Mr. Calamia further point out that despite this allegation, Safe Air did not bring any claims against them for the alleged misappropriation of trade secrets until Safe Air filed its fourth petition on February 18, 2016. Northern Air and Mr. Calamia argue that as of June 27, 2012, Safe Air was aware that Mr. Christie was working for Northern Air and that he was allegedly using Safe Air information for the benefit of Northern Air; hence, at that time, Safe Air knew or should have known (constructive knowledge) of its claim for the alleged misappropriation of a trade secret, and the three year prescriptive period began to run. Northern Air and Mr. Calamia maintain that since Safe Air waited until February 18, 2016—more than three years from June 27, 2012—to file its LUTSA claim against Northern Air and Mr. Calamia, that claim was prescribed.

Safe Air contends that it specifically alleged in its fourth petition that it did not discover its claim for the misappropriation of a trade secret until on or about August 12, 2014, when Northern Air produced through the discovery process, a disc with drawings in their possession that were prepared for them by Mr. Christie for explosion-proof HVAC systems both in PDF and Auto Cad format. Hence, Safe Air argues that August 12, 2014, was the date that prescription began running for its claim based on LUTSA and that it filed its action well within the three-year time period.

At the hearing on the objection of prescription, David Ratcliffe, the president and CEO of Safe Air, testified that when Safe Air filed its original petition, it had no evidence that Mr. Christie or Northern Air had taken any information from Safe Air. Rather, he maintained that it was not until Mr. Wismar sent him an email on February 4, 2014, of several drawings of explosion-proof HVAC systems that Mr. Christie prepared for Northern Air, which were a direct copy of Safe Air's equipment, that it became aware that Mr. Christie may have taken its designs and drawings. Thus, Safe Air claimed that prescription began running, at the earliest, on February 4, 2014, when Mr. Wismar sent the email, or at the latest, on August 12, 2014, when Northern Air produced the disc; thus, its action was timely because it was filed well within three years of either date.

However, Mr. Ratcliffe admitted during his cross-examination that in June 2012, when the original petition was filed, he “believe[d]” that when Mr. Christie left Safe Air, he took Safe Air documents with him and “probably was using them for the benefit of Northern Air.” Based on this testimony, the trial court found that when Safe Air filed its petition in June 2012, Safe Air knew that Mr. Christie had left Safe Air, that Mr. Christie had taken certain documents and drawings with him, that Mr. Christie had gone to work for a competitor (Northern Air), and that Mr. Christie was using the documents and drawings for the benefit of Northern Air. The trial court then determined that this knowledge was sufficient information to justify further investigation into the various claims that Safe Air may have had with respect to what may have occurred when Mr. Christie left the employ of Safe Air, and thus, prescription on Safe Air's claims began to run. The trial court then concluded that since Safe Air filed its claim against Northern Air and Mr. Calamia more than three years after that date, its claim based on LUTSA was prescribed. Therefore, the trial court sustained the objection of prescription.

Based on our review of the record, we find no manifest error in the trial court's determination that prescription began to run when Safe Air filed its original petition against Mr. Christie (on June 27, 2012), or in its conclusion that Safe Air's claim based on LUTSA was prescribed because it was filed more than three years from that date. Safe Air alleged in its original petition that Mr. Christie left his employment with Safe Air, that Mr. Christie began working for its competitor, Northern Air, and that he took documents with him for the benefit of Northern Air. These allegations indicate that Safe Air had knowledge—constructive or actual—that Mr. Christie may have violated the terms of his agreements with Safe Air by going to work for Northern Air and using Safe Air information to design and build products for the benefit of Northern Air. As such, when Safe Air filed its original petition on June 27, 2012, it had enough notice to call for inquiry about a claim for the misappropriation of trade secrets. Moreover, Mr. Ratcliffe's testimony that he “believe[d]” that Mr. Christie took Safe Air documents with him when he left Safe Air and that he was using them for the benefit of Northern Air, further supports the trial court's finding that Safe Air had knowledge or constructive knowledge of the misappropriation at the time the original petition was filed. Accordingly, the allegations of Safe Air's original petition, together with Mr. Ratcliffe's testimony, support the conclusion that Safe Air had knowledge sufficient to warrant further investigation into its claims, thus triggering the prescriptive period for any claims arising from Mr. Christie's departure from Safe Air.

As previously set forth, the three-year prescriptive period for misappropriation of a trade secret begins to run when the plaintiff discovers or should have learned through reasonable diligence of the alleged misappropriation of a trade secret. See La. R.S. 51:1436. Since we have found no manifest error in the trial court's determination that prescription began to run on Safe Air's LUTSA claim on June 27, 2012, when Safe Air filed its original petition, any claim that Safe Air may have had for an alleged misappropriation of a trade secret should have been filed within three years of June 27, 2012, i.e., by June 27, 2015. Since Safe Air did not file its LUTSA claim until February 18, 2016, the trial court properly sustained the objection of prescription and dismissed the claim.

Safe Air has alternatively argued that its cause of action based on LUTSA was not prescribed due to the relation back principle set forth in La. C.C.P. art. 1153. Louisiana Code of Civil Procedure article 1153 provides that when the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing of the original petition. Safe Air claims that in its second petition, it pled facts for the new claims of conversion and violations of LUTPA against Northern Air and Mr. Calamia and that it is those same facts alleged against the same defendants that give rise to its LUTSA claim. Thus, Safe Air maintains that its fourth petition, filed on February 18, 2016, asserting the claim based on LUTSA, relates back to its second petition, filed on November 20, 2014, asserting claims for conversion and violations of LUTPA, and since the second petition was filed within three years of the date the trial court found that prescription began to run (June 27, 2012), its claims based on LUTSA are not prescribed. However, we find no merit in this argument.

The claims set forth in Safe Air's fourth petition cannot relate back to its second petition (or to its third petition) because the relation back theory set forth in La. C.C.P. art. 1153 assumes that there is a legally viable claim to which the pleading can relate back. TCC Contractors, Inc. v. Hospital Service District No. 3 of Parish of Lafourche, 2010-0685 (La. App. 1st Cir. 12/8/10), 52 So.3d 1103, 1116 (citing Naghi v. Brener, 2008-2527 (La. 6/26/09), 17 So.3d 919, 925). In this case, there are no legally viable claims existing in Safe Air's second (or third petition) to which its claims in the fourth petition can relate back because Safe Air's claims in the second petition (and third petition) against Northern Air and Mr. Calamia for conversion and violations of LUTPA, as they existed on February 29, 2016, were dismissed as prescribed pursuant to the March 29, 2016 judgment. Therefore, the relation back principle cannot be applied to circumvent the effect of prescription.

Furthermore, the factual allegations set forth in the second and third petitions are insufficient to allow the new claim of misappropriation of trade secrets to relate back. Safe Air's second petition alleged claims for breach of contract against Mr. Christie; it also, for the first time, named Northern Air and Mr. Calamia as defendants and asserted claims against them based on conversion and violations of LUTPA. Safe Air's third petition again named Northern Air and Mr. Calamia as defendants and reiterated the allegations of conversion and violations of LUTPA against Northern Air and Mr. Calamia. However, it was not until Safe Air's fourth petition that it alleged claims based on LUTSA for the misappropriation of a trade secret.

As previously noted, a “trade secret” is defined as information, including a formula, pattern, compilation, program, device, method, technique, or process that is not generally known to others and not readily ascertainable by proper means by other persons. To succeed on a LUTSA claim, a claimant must establish the existence of a trade secret, a misappropriation of the trade secret by another, and the actual loss caused by the misappropriation. See Reingold v. Swiftships, Inc., 126 F.3d 645, 648 (5th Cir. 1997). We have thoroughly reviewed the allegations of Safe Air's second and third petitions, and we cannot say that those petitions set forth any factual allegations that the documents at issue were trade secrets or that they were not readily ascertainable by proper means so as to support a claim for misappropriation of trade secrets. When a timely original petition does not contain sufficient factual allegations needed to litigate a subsequent claim raised in an amended petition, the amended petition does not relate back to the original petition (and prescription is not interrupted). See La. C.C.P. art. 1153; Lewis v. Transocean Terminal Operators, Inc., 2002-0152 (La. App. 4th Cir. 12/11/02), 834 So.2d 1180, 1182; Miller v. New Orleans Home & Rehab Center, 449 So.2d 133, 134-136 (La. App. 4th Cir. 1984). Thus, under the circumstances of this case—where there are no legally viable claims to which Safe Air's fourth petition can relate back and the factual allegations set forth in its second and third petition are insufficient to litigate the new LUTSA claims set forth in the fourth petition—Safe Air's claim based on LUTSA in its fourth petition cannot relate back to its second (or third) petitions.

Lastly, with respect to the claims based on LUTSA, Safe Air argues that even if it had constructive knowledge of its LUTSA claim when it filed its original petition against Mr. Christie, prescription was interrupted when it filed the original petition on June 27, 2012, because all of the defendants are liable in solido for the wrongful taking of its information. See La. C.C. art. 1799 (providing that “[t]he interruption of prescription against one solidary obligor is effective against all solidary obligors”).¹³ However, we likewise find no merit to this contention.

An obligation is solidary for the obligors when each obligor is liable for the whole performance and a performance rendered by one of the solidary obligors relieves the other of liability toward the obligee. La. C.C. art. 1794. Moreover, a solidary obligation arises from a clear expression of the parties' intent or from the law. La. C.C. art. 1796. In this case, Safe Air's claims against Mr. Christie in the original petition are based on the employment agreements between Mr. Christie and Safe Air; neither Northern Air nor Mr. Calamia were parties to that contract, and thus, they do not owe the same duties to Safe Air that Mr. Christie may contractually owe to Safe Air. Furthermore, the record before us contains no allegations or evidence establishing that either Northern Air or Mr. Calamia made an expression of an intent (nor does Mr. Christie's employment agreement indicate) that Northern Air, Mr. Calamia, and Mr. Christie would be responsible for the performance of Mr. Christie's obligations, and thus would be solidarily liable for those obligations. Solidarity of an obligation shall not be presumed. La. C.C. art. 1796. Accordingly, Safe Air failed to establish that Northern Air and Mr. Calamia were solidary obligors with Mr. Christie such that the filing of the original petition interrupted prescription as to Northern Air and Mr. Calamia with respect to its claims based on LUTSA.

For all of the above and foregoing reasons, we find no error in the trial court's determination that prescription began running on Safe Air's claims based on LUTSA when Safe Air filed its original petition on June 27, 2012; thus, Safe Air's claims based on LUTSA, which were filed more than three years later on February 18, 2016, were prescribed. Accordingly, the August 30, 2016 judgment of the trial court sustaining the objection of prescription as to the LUTSA claim is affirmed.

2. Prescription of Claims Based on Conversion

In Louisiana, conversion is an intentional tort and consists of an act in derogation of the plaintiff's possessory rights or the wrongful or unlawful exercise or assumption of authority over another's goods, depriving him of the possession permanently or for an indefinite time. See Dual Drilling Co. v. Mills Equipment Investments, Inc., 98-0343 (La. 12/1/98), 721 So.2d 853, 857; Quealy v. Paine, Webber, Jackson & Curtis, Inc., 475 So.2d 756, 760 (La. 1985). A conversion is committed when any of the following occurs: (1) possession is acquired in an unauthorized manner; (2) the chattel is removed from one place to another with the intent to exercise control over it; (3) possession of the chattel is transferred without authority; (4) possession is withheld from the owner or possessor; (5) the chattel is altered or destroyed; (6) the chattel is used improperly; or (7) ownership is asserted over the chattel. Dual Drilling Co., 721 So.2d at 857.

Since the action for conversion is delictual in nature, it is governed by the one-year prescriptive period set forth in La. C.C. art. 3492, which provides, in part, that “[d]elictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.” Thus, under Louisiana law, the prescriptive period for conversion is one year from the time that the plaintiff is or should be on notice of the alleged act of conversion. Johnson v. Hardy, 98-2282 (La. App. 1st Cir. 11/5/99), 756 So.2d 328, 333; La. C.C. art. 3492. Prescription commences to run when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he is the victim of a tort. Guillot v. Doughty, 2013-1348 (La. App. 1st Cir. 3/21/14), 142 So.3d 1034, 1046, writ denied, 2014-0824 (La. 6/13/14), 140 So.3d 1192.

Safe Air first asserted its claim for conversion against Northern Air and Mr. Calamia in its second petition filed on November 20, 2014, and it also asserted claims based on conversion in its third petition filed on February 26, 2015. Pursuant to the judgment signed on March 29, 2016, the trial court sustained the objection of prescription and dismissed all claims based on conversion as they existed on February 29, 2016. Just prior to the dismissal of the conversion claims made in the second and third petition, Safe Air filed its fourth petition on February 19, 2016, alleging claims based on conversion, but claiming that it did not discover its claim for conversion until August 12, 2014, when Northern Air produced the disc in response to the subpoena duces tecum and the July 2014 discovery order.

Northern Air and Mr. Calamia contend that Safe Air's claims for conversion alleged in the fourth petition were filed more than one year from the date that Safe Air had actual or constructive knowledge of the alleged conversion and that Safe Air's fourth petition alleged no additional facts with regard to conversion that were not held prescribed by the trial court's March 20, 2016 judgment. Safe Air maintains the same arguments as it did with respect to its claim based on LUTSA—i.e., that the trial court erred in finding that prescription on its conversion claim in the fourth petition began running on June 27, 2012, when it filed its original petition; that its claim for conversion in the fourth petition should relate back to the filing of the second petition (November 20, 2014); and that Northern Air and Mr. Calamia were solidarity liable with Mr. Christie, and thus, the filing of the original petition interrupted prescription as to all solidary obligors. In addition, Safe Air contends that Northern Air and Mr. Calamia's actions with regard to conversion are a continuing tort because a new claim for conversion and damages arises each time the misappropriated or converted information or documents are used by Northern Air; thus, any new claims for conversion arising within one year of the filing of the petition are not prescribed.

The trial court apparently determined that Safe Air's conversion claims were prescribed for the same reasons it found that the conversion claims made in the second and third petition were prescribed—that when Safe Air filed its original petition on June 27, 2012, Safe Air had constructive knowledge that Mr. Christie had taken its documents and was using those documents for the benefit of Northern Air, which knowledge was sufficient to put Safe Air on notice that it was the victim of a tort. For the reasons detailed hereinabove with respect to Safe Air's LUTSA claim, we find no manifest error in the trial court's determination that the prescriptive period for Safe Air's conversion claim began to run when it filed its original petition on June 27, 2012. Thus, Safe Air's claim for conversion in the fourth petition are prescribed. In addition, for the same reason we found that the fourth petition did not relate back to the second and third petitions with regard to the LUTSA claim, we likewise find the fourth petition's claims regarding conversion cannot relate back to the second petition—there is no legally viable claim for conversion to which the claims in the fourth petition can relate back because the claims for conversion set forth in the second and third petition were prescribed. And, for the same reasons set forth above, we also find no merit to Safe Air's argument that Northern Air and Mr. Calamia are solidarily liable with Mr. Christie, such that the original petition interrupted prescription.¹⁴

With respect to Safe Air's argument that Northern Air and Mr. Calamia's actions constitute a continuing tort, such that prescription begins to run anew with each use of the misappropriated or converted information or documents, we also find no merit to this argument. Pursuant to the continuing tort theory, when the tortuous conduct and resulting damages are of a continuing nature, prescription does not begin until the conduct causing the damage is abated. South Central Bell Telephone Company v. Texaco, 418 So.2d 531, 533 (La. 1982). Thus, the theory of a continuing tort requires that the operating cause of the injury be a continuous one which results in continuous damages. Crump v. Sabine River Authority, 98-2326 (La. 6/29/99), 737 So.2d 720, 726. Courts must look to the operating cause of the injury sued upon and determine whether it is a continuous one giving rise to successive damages, or whether it is discontinuous and terminates, even though the damage persists and may progressively worsen. Marin v. Exxon Mobil Corp., 2009-2368, 2009-2371 (La. 10/19/10), 48 So.3d 234, 253. A continuing tort is occasioned by continual unlawful acts, not the continuation of the ill effects of an original, wrongful act. Id.; Crump, 737 So.2d at 728. In order to allege a continuing tort, a plaintiff must allege both continuous action and continuous damage. Thomas v. State Employees Group Benefits Program, 2005-0392 (La. App. 1st Cir. 3/24/06), 934 So.2d 753, 758. One-time thefts are generally not considered continuing torts. See Miller v. Conagra, 2008-0021 (La. 9/8/08), 991 So.2d 445, 456.

In this case, Safe Air claims that every time that Northern Air used the information and documents from Safe Air, it sustained additional damages. However, we find the record fails to establish that the operating cause of Safe Air's alleged injury or that the alleged wrongful conduct by Northern Air and Mr. Calamia was continuous. Even though Safe Air may continue to sustain damages as a result of any alleged conversion of its information or documents, the alleged wrongful conduct was a one-time act by Mr. Christie that occurred when Mr. Christie left his employ with Safe Air. If the operating cause of the damage is discontinuous in nature, even if the damage is continuous, the continuing tort theory is inapplicable and prescription runs from the date that knowledge of such damage was apparent or should have been apparent to the injured party. Thomas, 934 So.2d at 758.

Accordingly, we find no error in the trial court's determination that prescription began to run on Safe Air's conversion claims when Safe Air filed its original petition on June 27, 2012, and hence, Safe Air's conversion claims asserted against Northern Air and Mr. Calamia in its fourth petition filed on February 18, 2016, are prescribed. Therefore, we affirm that portion of the March 20, 2017 judgment sustaining the peremptory exception raising the objection or prescription and dismissing Safe Air's conversion claims against Northern Air and Mr. Calamia.

B. Peremption and LUTPA

LUTPA creates a private cause of action available to “[a]ny person who suffers any ascertainable loss of money or movable property ․ as a result of the use or employment by another person of an unfair or deceptive method, act, or practice declared unlawful.․” La. R.S. 51:1409(A). According to La. R.S. 51:1409(E), the private action under LUTPA “shall be prescribed by one year running from the time of the transaction or act which gave rise to [the] right of action.” However, the vast majority of Louisiana courts, including this Court, have held that LUPTA's one-year “prescriptive” period is actually peremptive and is not subject to interruption or suspension.¹⁵ Patrick v. Dupont, 2014-0812 (La. App. 1st Cir. 3/11/15) (unpublished); see also La. C.C. art. 3461; Fox v. Dupree, 633 So.2d 612, 614 (La. App. 1st Cir. 1993), writ denied, 635 So.2d233 (La. 1994); Spencer-Wallington, Inc. v. Service Merchandise, Inc., 562 So.2d 1060, 1063 (La. App. 1st Cir.), writ denied, 567 So.2d 109 (La. 1990); Morris v. Sears, Roebuck and Co., 99-2772 (La. App. 4th Cir. 5/31/00), 765 So.2d 419, 422. Since the time period in which to bring a LUTPA claim is peremptive, the doctrine of contra non valentem does not apply.¹⁶ Morris, 765 So.2d at 422. The continuing tort doctrine is a suspension principle based on contra non valentem; therefore, it cannot be used to suspend a peremptive period. Scott v. American Tobacco Co. Inc., 2004-2095 (La. App. 4th Cir. 2/7/07), 949 So.2d 1266, 1280. Likewise, there is nothing to relate back to an amended petition filed after the expiration of the peremptive period. Naghi v. Brener, 2008-2527 (La. 6/26/09), 17 So.3d 919, 926.

Lastly, with regard to Safe Air's claims based on violations of LUTPA, Safe Air first filed its claim against Northern Air and Mr. Calamia for alleged LUTPA violations in its second petition filed in November 2014 and then again asserted similar claims in its third petition filed in February 2015. Pursuant to the trial court's March 29, 2016 judgment, the trial court found these claims, as they existed on February 29, 2016, were “prescribed.”¹⁷ As to Safe Air's claims based on violations of LUTPA, as set forth in its fourth petition, the trial court found that the time period within which Safe Air should have brought its claims began to run when Safe Air filed its original petition on June 27, 2012, and since Safe Air filed its fourth petition more than one year from that date, the trial court dismissed those claims.

On appeal, Safe Air challenges this ruling by making the same arguments as it did with respect to its claim based on LUTS A and conversion—i.e., that the trial court erred in finding that peremption on its claim for violations of LUTPA claim in the fourth petition began running on June 27, 2012, when it filed its original petition; that its claim for violations of LUTPA in the fourth petition should relate back to the filing of the second petition (November 20, 2014); that Northern Air and Mr. Calamia were solidarily liable with Mr. Christie, and thus, the filing of the original petition interrupted prescription as to all solidary obligors; and that Northern Air and Mr. Calamia's actions with regard to violations of LUTPA are a continuing tort and are not prescribed. For the reasons previously set forth hereinabove with respect to Safe Air's claims based on LUTSA and conversion, we find no manifest error in the trial court's factual determination that the peremptive period on Safe Air's claim for violations of LUTPA began to run on June 27, 2012, when Safe Air filed its original petition. In addition, for the reasons previously set forth and the legal precepts stated above, we find no merit to Safe Air's arguments that its claim for violations of LUTPA was not perempted because its fourth petition should relate back to the second petition, because Northern Air and Mr. Calamia's action constituted a continuing tort, and because Northern Air and Mr. Calamia were solidary obligors with Mr. Christie.

Therefore, we affirm that portion of the March 20, 2017 judgment sustaining the peremptory exception raising the objection or prescription (or peremption) and dismissing Safe Air's claims for alleged violations of LUTPA against Northern Air and Mr. Calamia.

CONCLUSION

For all of the above and foregoing reasons, the August 30, 2016 judgment of the trial court sustaining the peremptory exception raising the objection of prescription as to Safe Air's claim for damages based on the Louisiana Uniform Trade Secrets Act, La. R.S. 51:1431, et seq., is affirmed. In addition, the March 20, 2017 judgment of the trial court sustaining the peremptory exception raising the objection of prescription as to Safe Air's claim for damages based on conversion; sustaining the objection of peremption as to Safe Air's claim for damages based on violation of the Louisiana Unfair Trade Practices and Consumer Protection Law Act, La. R.S. 51:1401, et seq. (“LUTPA”); and dismissing all claims against Northern Air and Mr. Calamia is affirmed.

All costs of this appeal are assessed to the plaintiff/appellant, Safe Air Technology, LLC.

APPEAL MAINTAINED; AUGUST 30, 2016 JUDGMENT AFFIRMED; MARCH 20, 2017 JUDGMENT AFFIRMED.

FOOTNOTES

1.   An explosion proof HVAC system is an air conditioning system that creates no sparks, and is, therefore, safe for use in industrial areas.

2.   The record is unclear as to the exact date that Mr. Christie commenced his employment with Safe Air. In Safe Air's petition, it alleged that Mr. Christie began his employment with Safe Air on June 17, 2004; however, Mr. Christie claimed, in his answer to the petition, that he began his employment in October 2003. This disputed issue of fact is not relevant to any of the issues raised in this appeal; therefore, for the sake of clarity and consistency herein, we have used the date that Safe Air alleged in its petition as the date that Mr. Christie began his employment with Safe Air.

3.   In Safe Air's original petition, it asserted that Mr. Christie had entered into a non-disclosure and confidentiality agreement with Safe Air on September 24, 2006; however, in response to assertions made by Mr. Christie in his answer to the petition, Safe Air filed a first supplemental and amending petition on July 17, 2014, to allege that Mr. Christie had entered into nondisclosure and confidentiality agreements with Safe Air on June 17, 2004 and on July 31, 2008 (“the first petition”).

4.   As previously set forth, the first petition corrected the dates of the non-disclosure and confidentiality agreements that Mr. Christie had entered into with Safe Air. See footnote 3.

5.   Mr. Calamia was Mr. Christie's supervisor at Safe Air and, thereafter, at Northern Air. Safe Air's second petition also added Tim Confer, the owner of Northern Air, as a defendant; however, Mr. Confer was not included as a defendant in Safe Air's third petition.

6.   Safe Air's second petition also added a claim for civil racketeering (i.e., a violation of the Louisiana Racketeering Act, La. R.S. 15:1353, et seq.) against all of the defendants; however, that claim was not included in the claims asserted in Safe Air's third petition.

7.   We note that the denial of supervisory writ of review is merely a decision not to exercise the extraordinary powers of supervisory jurisdiction, and does not bar reconsideration of, or a different conclusion on, the same question when an appeal is taken from a final judgment. Cotton v. Gaylord Container, 96-1958 (La. App. 1st Cir. 3/27/97), 691 So.2d 760, 763, writ denied, 97-0800 (La. 4/8/97), 693 So.2d 147; Guidry v. USAgencies Casualty Insurance Co., Inc., 2016-0562 (La. App. 1st Cir. 2/16/17), 213 So.3d 406, 414, writ denied, 2017-0601 (La. 5/26/17), 221 So.3d 81.

8.   The March 20, 2017 judgment was an amended judgment. The original judgment, signed on November 3, 2016, lacked appropriate decretal language disposing of and/or dismissing Safe Air's claims against any of the defendants. Following a rule to show cause issued by this Court, an amended judgment was issued by the trial court, and the rule to show cause was then referred to the panel to which the appeal was assigned. See Safe Air Technology, LLC v. Gerald Christie, 2017-0320 (La. App. 1st Cir. 5/18/17)(unpublished action). Since the amended judgment complies with La. C.C.P. arts. 1911 and 1918 and 1915(A)(1), as it clearly identifies the parties against whom and in favor of whom judgment is rendered, specifically dismissed the LUTPA and conversion claims against Northern Air and Mr. Calamia, and specified that the dismissal of the LUTPA and conversion claims against Northern Air resulted in the dismissal of all claims against Southern Air, we maintain the appeal.

9.   We note that all of Safe Air's claims against Mr. Christie are still pending, as well as its claim for breach of fiduciary duty against Mr. Calamia.

10.   See footnote 7.

11.   A claimant may also obtain injunctive relief under LUTSA for actual or threatened misappropriation of a trade secret. See La. R.S. 51:1432.

12.   We note that Safe Air has argued, among other things that its claims against Northern Air and Mr. Calamia based on conversion and violations of LUTPA were not prescribed because they were continuing torts; however, Safe Air has made no such allegation with respect to its claim based on LUTSA. Nonetheless, we note that according to La. R.S. 51:1436, in Louisiana, the doctrine of a “continuing wrong” or a “continuing tort” may not be applicable to claims based on LUTSA. See La. R.S. 51:1436 and the comments therein.

13.   We note that Safe Air has only argued that Northern Air, Mr. Calamia, and Mr. Christie are solidary obligors and that prescription was interrupted against all solidary obligors when it filed the original petition against Mr. Christie. Safe Air has not argued that Northern Air, Mr. Calamia, and Mr. Christie are joint tortfeasors, such that prescription was interrupted as to all joint tortfeasors by the filing of the original petition. See La. C.C. art. 2324(C). However, to the extent that Safe Air's argument with regard to the interruption of prescription against a solidary obligor could be construed as an argument for the interruption of prescription against a joint tortfeasor, we find no merit to such argument. Notably, Safe Air's claims against Mr. Christie in its original petition arise out of a contract and the alleged breach thereof, rather than a tort. Hence, in the original petition, Mr. Christie is not a “tortfeasor,” but rather an obligor; therefore, the original petition could only interrupt prescription as to solidary obligors, because there are no joint “tortfeasors.”

14.   Again, we note that Safe Air has only argued that Mr. Christie, Mr. Calamia, and Northern Air are solidary obligors, rather than joint tortfeasors. However, we note that some of the claims against Mr. Christie that were raised in the second, third, and fourth petitions arise out of tort, and hence, as to those claims, Mr. Christie, Mr. Calamia, and Northern Air may arguably be joint tortfeasors. Therefore, to the extent it may be argued that the prescription was interrupted against all joint tortfeasors by the filing of the second petition, we note it has already been determined that the tort claims asserted against Northern Air and Mr. Calamia in the second (and third petition) were prescribed according to the trial court's March 29, 2016 judgment. With respect to whether the second petition was sufficient to interrupt prescription as to all joint tortfeasors with regard to the tort claims in the fourth petition, if the plaintiff's basis for claiming interruption of prescription is that the defendant is a joint tortfeasor with a defendant who was timely sued, then the plaintiff bears the burden of proving that joint tortfeasor status and that prescription had been timely interrupted against a joint tortfeasor. Wheat v. Nievar, 2007-0680 (La. App. 1st Cir. 2/8/08), 984 So.2d 773, 775. In this case, the trial court found that prescription began to run on Safe Air's claims when it filed its original petition on June 27, 2012, and we have determined that there was no manifest error in this factual finding. As such, Safe Air's second petition, filed on November 20, 2014, failed to interrupt prescription as to all joint tortfeasors because it was filed more than one year from June 27, 2012. The fact that Mr. Christie has not urged the objection of prescription with respect to the tort claims asserted against him does not render the action timely or establish that prescription was timely interrupted.

15.   Peremption is a period of time fixed by law for the existence of a right, and unless timely exercised, the right is extinguished upon the expiration of the peremptive period. La. C.C. art. 3458. Consequently, peremption may not be renounced, interrupted, or suspended. La. C.C. art. 3461.

16.   Since a peremptive period may not be renounced, interrupted, or suspended, exceptions such as contra non valentem are not applicable. State Bd. of Ethics v. Ourso, 2002-1976 (La. 4/9/03), 842 So.2d 346, 349.

17.   As previously set forth, LUTPA's one-year “prescriptive” period is actually peremptive.

WELCH, J.