author: KEATY, Judge.

text:
    NEWMAN HOFFOSS & DEVALL, LLP, and Hoffoss & Devall, LLC v. RALEIGH NEWMAN, APLC
    16-967
    Court of Appeal of Louisiana, Third Circuit.
    March 22, 2017

      Barry A. Roach, Larry A. Roach, Inc., 2917 Ryan Street, Lake Charles, Louisiana 70601, (337) 433-8504, Counsel for Relator: Raleigh Newman, APLC,
    Russell J. Stutes, Jr., Shelley Bouillion, Stutes & Lavergne, LLC, 600 Broad Street, Lake Charles, Louisiana 70601, (337) 433-0022, Counsel for Respondents: Newman, Hoffoss & Devall, LLP, Hoffoss & Devall, LLC.
    Court composed of Marc T. Amy, Phyllis M. Keaty, and David E. Chatelain, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   KEATY, Judge.

| Defendant-Relator, Raleigh Newman, APLC, seeks supervisory writs from the judgment of the Fourteenth Judicial District Court, Parish of Calcasieu, the Honorable Clayton Davis presiding, which denied Relator’s Notice and Exception of Lis Pendens and which ordered the Clerk of Court for Calcasieu Parish to “cancel and discharge of record[ ] a Notice of Lis Pen-dens ... filed in the Mortgage Records” and which “expressly requested, authorized, and directed [the Clerk of Court for Calcasieu Parish], by order of [the] Court to cancel the recordation of the aforementioned Notice of Lis Pendens by virtue of this order and upon submission of the requisite cancellation form submitted by counsel for Plaintiffs.” For the following reasons, we grant the writ application, reverse the trial court’s judgment denying the exception of lis pendens, and order the suit bearing district court docket number 2013-3389 dismissed without prejudice.

FACTUAL AND PROCEDURAL BACKGROUND

The instant litigation and the connected litigation giving rise to the lis pendens issue arise out of an acrimonious demise of a law partnership. On April 1, 2013, Raleigh Newman filed a petition, bearing the district court’s docket number 2013-1538, seeking, in pertinent part:

II. A temporary restraining order issue herein, without bond, enjoining and restraining each party to the agreement forming Newman, Hoffoss & Devall, LLP, or anyone acting on their behalf, from disposing of or altering in any way any client contracts, records or documents that pertain in any way to the partnership of Newman, Hoffoss & De-vall, LLP and practice of law which existed since the formation of Newman, Hoffoss & Devall, LLP until such time that there is a formal accounting between the parties.
| gill. A rule issue herein ordering all parties to show cause on the date and hour to be set by this Honorable Court why a preliminary injunction and finally a permanent injunction should not issue herein in the form of the temporary restraining order described herein.

The caption to this petition names the Defendants as “HOFFOSS & DEVALL, LLC, et al[.]” Nowhere in the petition does it set forth who constitutes the “et al[.]” in the caption, and there is no specific paragraph of the petition which clearly sets forth the names of the Defendants. Instead, the petition states:

1.
On January 6, 2010, RALEIGH NEWMAN, APLC, a practicing attorney, entered into a partnership for the practice of law with Hoffoss & Devall, LLC, through its partners, J. Lee Hof-foss, Jr. and Claude P. Devall, Jr., which firm would be known as Newman, Hof-foss & Devall, LLP.
2.
On January 21, 2010, Newman, Hof-foss & Devall, LLP (N H D) a Louisiana Limited partnership represented therein by all of its partners, Raleigh Newman, A Professional Law Corporation (RN) Hoffoss & Devall, LLC, a Louisiana Limited Liability Company; Hoffoss & Devall LLC (H & D), a Louisiana Limited Liability Company represented therein by all of its members, J. Lee Hoffoss, Jr. and Claude P. Devall, Jr., Raleigh Newman, A Professional Law Corporation (RN), a Louisiana Professional Law Corporation represented therein by its duly authorized president, Raleigh Newman, and C. Raleigh Newman, Sr., John Lee Hoffoss, Jr., and Claude Pierson Devall, Jr., individually, entered into an operating agreement for the operation of Newman, Hoffoss & Devall, LLP.

Raleigh Newman filed his First Supplemental and Amending Petition on July 15, 2013. This amended petition did not add or alter any parties to the suit; however, it added a claim for an accounting “between the parties as to a proper division of fees resulting from the partnership business as well as from the conduct of the individual partners of the partnership,” and added to the prayer for relief that “[tjhere should be a full accounting as outlined herein-above.”

|sOn July 23, 2013, Newman, Hoffoss & Devall, LLP, a domestic limited liability partnership (hereinafter sometimes NHD), and Hoffoss & Devall, LLC, a domestic limited liability company (hereinafter sometimes HD), filed, their Petition in Suit for Partnership Termination, and for Damages, and for Declaratory and Other Relief, which bears the district court’s docket number of 2013-3389. The only defendant named in the suit is Raleigh Newman, APLC. This petition outlines the factual history of the creation of the NHD partnership and the disagreements giving rise to the end of the parties’ business arrangement. In pertinent part, this petition prays for the following relief:

II. After due proceedings had, and the lapse of all legal delays, there be judgment herein in favor of NEWMAN, HOFFOSS & DEVALL, LLP and HOFFOSS & DEVALL, LLC and against defendant, RALEIGH NEWMAN, APLC, as follows:
A. Terminating NEWMAN, HOF-FOSS & DEVALL, LLP effective January 1, 2012;
B. All fees paid to RALEIGH NEWMAN, APLC by NEWMAN, HOFFOSS & DEVALL, LLP after January 1, 2012 are to be returned to NEWMAN, HOF-FOSS & DEVALL, LLP; and
C. Appoint HOFFOSS & DEVALL, LLC to perform an accounting of NEWMAN, HOFFOSS & DE-VALL, LLP, and to serve as the sole member of the Liquidation Committee of NEWMAN, HOF-FOSS & DEVALL, LLP, and to wind down the business of NEWMAN, HOFFOSS & DEVALL, LLP.
III. In the alternative, should this Court find that NEWMAN, HOFFOSS & DEVALL, LLP has not terminated as of March 12, 2013, HOFFOSS & DEVALL, LLC be allowed to take possession of all cases being worked on by RALEIGH NEWMAN, APLC as of March 12, 2013 and prohibit any partner of RALEIGH NEWMAN, APLC from taking any further action toward the prosecution and funding of any cases in the possession of RALEIGH NEWMAN, APLC as of March 12, 2013.

140n August 19, 2016, the Plaintiffs Second Supplemental and Amending Petition was filed in 2013-1538. This pleading asked that the caption of the subject case be changed to read:

RALEIGH NEWMAN, Individually and as Agent for RALEIGH NEWMAN, APLC VS.
HOFFOSS & DEVALL, LLC and NEWMAN, HOFFOSS & DEVALL, LLP

Although the pleading asked that the name of the Plaintiff be changed throughout the original petition and the first supplemental and amending petition to read as set forth in the new caption, this pleading does not provide a specific paragraph naming the defendants to the suit. It added a claim that Hoffoss & Devall, LLC, and Newman, Hoffoss & Devall, LLP, had violated the partnership agreement and breached their fiduciary duties to the partners resulting in damage to the Plaintiff for which recovery was being sought. The prayer for relief then provides, in pertinent part:

II. There should be a full accounting as outlined hereinabove;
III. After due proceedings had and the lapse of all legal delays, there be judgment herein incorporating the findings of the final accounting reached between the parties.
IV. After due proceedings had and ■the lapse of all legal delays, there be judgment herein in favor of petitioner, RALEIGH NEWMAN, APLC, and against defendants, HOFFOSS & DE-VALL, LLC and NEWMAN, HOF-FOSS & DEVALL, LLP, awarding unto Petitioner such damages that Petitioner suffered as a result of Defendants’ violation of the Partnership Agreement and breach of their fiduciary duties as partners, together with legal interest thereon from date of judicial demand until paid, and for all costs of these proceedings.

|sOn April 7, 2016, in docket number 2013-3389, Raleigh Newman, APLC, filed a Notice of Lis Pendens. On July 21, 2016, NHD and HD filed a Motion for Rule to Show Cause Why Lis Pendens Should Not Be Denied. After filing the second supplemental and amending petition in 2013-1538 which is discussed above, Raleigh Newman, APLC, filed a memorandum in support of the exception of lis pendens. NHD and HD filed an opposition to the notice of lis pendens to which Raleigh Newman, APLC, filed a reply memorandum.

A hearing was held by the trial court in docket number 2013-3389 on the lis pen-dens issue. The trial court signed a written judgment on November 3, 2016, entitled Order Denying Defendant’s Notice and Exception of Lis Pendens. Raleigh Newman, APLC, timely sought a return date for the filing of the instant writ application in which he seeks a reversal of the trial court’s ruling. Relator asserts the following assignments of error:

1. The trial court erred as a matter of law by failing to hold and decide that Raleigh Newman could “amend his petition without leave of court at any time before the answer therfeto is served.” The trial court was told by Raleigh Newman’s counsel that Hoffoss & Devall had never filed an answer to the original lawsuit, meaning Raleigh Newman could appeal as of right. Nevertheless, the trial court accepted NHD and Hoffoss & 'Devall’s repeated claims that the trial court could not consider the Second Supplemental and Amending Petition until Raleigh Newman received leave of court to file it,
2. The trial court erred as a matter of law in failing to apply Raleigh Newman’s Second Supplemental and Amending Petition in the decision at hand. Raleigh Newman’s Second Supplemental and Amending Petition was attached in its entirety to Raleigh Newman’s Memo in Support of Lis Pendens and filed in the record in the trial court. That Second Supplemental and Amending Petition cures every issue that Hoffoss & Devall and NHD complain of, and would mandate lis pendens. However, the trial court failed to consider its effect on the Rule to Show Cause.
3. Even setting aside the effect that Raleigh Newman’s Second Supplemental and Amending Petition would have- on this litigation, the trial court still erred as a matter of law when it ruled that [the] two | flSuits involve different issues. The proper standard for lis pendens is not whether there are different issues, but whether the two cases stem from the “same transaction or occurrence.” That broader standard means that lis pendens applies when the same logically related events entitle the parties to institute legal action, which in this case, means the partnership agreement, and the events that led to the March 13, 2013 walk-out by Hoffoss & Devall.
4.The trial court erred as a matter of law by holding that the two suits involve different parties. Hoffoss & Devall and NHD’s lawyer only focused on Raleigh Newman in his individual capacity as opposed to Raleigh Newman, APLC, the law firm. But the Third Circuit has already held that an individual attorney and the law firm that he owns and operates are the same person for the purposes of lis pendens. See Bandaries v. Cassidy, 2011-1267 (La,App. 3 Cir. 3/7/12, 6), 86 So.3d 125,128, writ denied, 2012-0780 (La. 5/25/12), 90 So.3d 412.

DISCUSSION

The doctrine of lis pendens is found in La.Code Civ.P. art, 531, as follows:

When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.

The first issue that this court must consider is whether this exception was properly raised before the trial court. As discussed above, Raleigh Newman, APLC, filed a Notice of Lis Pendens, in response to which NHD and HD filed a Motion for Rule to Show Cause Why Lis Pendens Should Not Be Denied. At the hearing on NHD and HD’s motion, counsel for NHD and HD began the oral argument before the trial court by noting that no exception of lis pendens had been filed in this action; rather, Raleigh Newman, APLC, had filed this Notice of Lis Pendens, even though the parties involved in this litigation owned no immovable 1 -^property together. Despite noting the lack of a formal exception of lis pendens, counsel for NHD and HD stated that he knew that if the court found that the exception was not properly pending before the court due to its having not been formally filed, Raleigh Newman, APLC, would simply file said exception. Therefore, the argument continued as though an exception of lis pendens had been properly filed.

As quoted above, La.Code Civ.P. art. 531 refers to La.Code Civ.P. art. 925. This latter article provides, in pertinent part, “[t]he objections which may be raised through the declinatory exception include but are not limited to the following: .... (3) Lis Pendens.” La.Code Civ.P. art. 925(A). However, La.Code Civ.P. art. 924 states, “[a]ll exceptions shall comply with Articles 853, 854, and 863, and, whenever applicable, with Articles 855 through 861. They shall set forth the name and surname of the exceptor, shall state with particularity the objections urged and the grounds thereof, and shall contain a prayer for the relief sought.”

While La.Code Civ.P. art. 924 does not expressly require the declinatory exceptions to comply with La. Code Civ.P. art. 852, we find that they must. Louisiana Code of Civil Procedure Article 852 (emphasis added) provides, in pertinent part, “[t]he pleadings allowed in civil actions ... shall be in writing and shall consist of petitions, exceptions, written motions, and answers.” The assertion that a writing requirement is required is bolstered by a reading of some of the articles specifically listed in La.Code Civ.P. art. 924.

For instance, La.Code Civ.P. art. 853, which is entitled, “Caption of pleadings; adoption by reference; exhibits[,]” provides:

] «Every pleading shall contain a caption setting forth the name of the court, the title and number of the action, and a designation of the pleading. The title of the action shall state the name of the first party on each side with an appropriate indication of other parties.
A statement in a pleading may be adopted by reference in a different part of the same pleading or in another pleading in the same court. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.

Louisiana Code of Civil Procedure Article 854, which is entitled, “Form of pleading!!,]” provides:

No technical forms of pleading are required.
All allegations of fact of the petition, exceptions, or answer shall be simple, concise, and direct, and shall be set forth in numbered paragraphs. As far as practicable, the contents of each paragraph shall be limited to a single set of circumstances.

Louisiana Code of Civil Procedure Article 863, which is entitled, “Signing of pleadings, effect[,]” provides:

A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address.
B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following:
(1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
(2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.
(3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
Is(4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.
C. If a pleading is not signed, it shall be stricken unless promptly signed after the omission is called to the attention of the pleader.
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.
E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.
F. A sanction authorized in Paragraph D shall not be imposed with respect to an original petition which is filed within sixty days of an applicable prescriptive date and then voluntarily dismissed within ninety days after its filing or on the date of a hearing on the pleading, whichever is earlier.
G. If the court imposes a sanction, it shall describe the conduct determined to constitute a violation of the provisions of this Article and explain the basis for the sanction imposed.

The foregoing articles make clear the intention of the legislature that the exceptions, such as lis pendens, must be made in writing. The Notice of Lis Pen-dens, which was filed into this record, states that (emphasis added):

[Defendant in the above captioned suit does hereby file an exception and notice of pendency of a suit against plaintiffs in the above captioned matter, which is entitled Raleigh Newman v. Hoffoss and Devall, LLC, in the 14th Judicial District Court for Calcasieu Parish, Louisiana, Docket No. 2013-1538 filed on April 1, 2013 which involves the same parties, issues and transaction or occurrence as the captioned matter. Therefore, two suits are pending in separate Louisiana State Courts, and RALEIGH NEWMAN, APLC puts this Honorable Court on notice of the prior pending action.”

| 10In Aisola v. Louisiana Citizens Property Insurance Corp., 14-1708, p. 4 (La. 10/14/15), 180 So.3d 266, 269, the supreme court instructed:

The doctrine of lis pendens prevents a plaintiff from litigating a second suit when the suits involve the same transaction or occurrence between the same parties in the same capacities. For lis pendens to apply, La.Code Civ. Proc. art. 531 requires that (1) two or more suits are pending in a Louisiana court or courts; (2) on the same transaction or occurrence; and (3) between the same parties in the same capacities. The “test” established to determine if an exception of lis pendens should be sustained is the same as that for res judica-ta; thus, an exception of lis pendens should be sustained if “a final judgment in the first suit would be res judicata in the subsequently filed suit.” United Gen. Title Ins. Co. v. Casey Title, Ltd., 01-600 (La.App. 5 Cir. 10/30/01), 800 So.2d 1061, 1065; see also Domingue v. ABC Corp., 96-1224 (La.App. 4 Cir. 6/26/96), 682 So.2d 246, 248, writ denied, 96-1947 (La. 11/1/96), 681 So.2d 1268.

In Stokes v. Layssard, 15-969 (La.App. 3 Cir. 3/9/16), 187 So.3d 576, writ denied, 16-1027 (La. 9/16/16), 206 So.3d 883, the plaintiff had attempted to set aside a donation of property for various reasons. She lost in that action following a trial, and the judgment in the defendant’s favor was affirmed by this court. However, the plaintiff in the original suit then instituted a new action against the same defendant attacking the same donation but on different grounds. In affirming the trial court’s decision to grant the exception of res judicata and to dismiss the plaintiffs new suit, this court provided the following instructive language:

Because they address common issues, we address Stokes’ second and third assignments of eiTor together. In these assignments of error, Stokes asserts that the trial court erred in sustaining the exception of res judicata by preclusion. In support of this assignment, she asserts that the cause of action for ingratitude did not exist at the time she filed her first suit and, further, that the cause of action in the instant suit did not arise from the same transaction or occurrence as the prior suit. For the following reasons, we find these assignments of error to lack merit.
Louisiana Code of Civil Procedure Article 425 provides that “[a] party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.” Article 425 is read in pari materia with the res judicata statute, La.R.S. 13:4231. Ingres v. State Farm Mut. Auto. Ins. Co., 08-573 (La.App. 3 Cir. 11/5/08), 996 So.2d 697, writ denied, 08-2871 (La. 2/6/09), 999 So.2d 783.
Res judicata is an issue and claim preclusion device which prohibits relit-igation of matters which were litigated or could have been litigated in a prior suit. Louisiana Revised Statute[s] 13:4231 enumerates the specific circumstances under which a valid and final judgment will preclude a party from raising a claim or issue in a subsequent proceeding.
Walker v. Howell, 04-246, p. 3 (La.App. 3 Cir. 12/15/04), 896 So.2d 110, 112 (emphasis added). Louisiana Revised Statutes 13:4231 provides, in pertinent part:
Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
Our court has previously explained:
Technically, both claim and issue preclusion are termed res judicata under our law. However, there is a distinction given in Hudson v. City of Bossier[, 83,620, p. 7 (La.App. 2 Cir. 8/25/00), 766 So.2d 738, 743, writ denied, 00-2687 (La. 11/27/00), 775 So.2d 450]:
Under claim preclusion, a final judgment on the merits precludes the parties from relitigating matters that were or could have been raised in that action....
Thus, unlike issue preclusion, claim preclusion is much broader, encompassing a prohibition against relitigation of those matters which, not only, were litigated but, also, of those which could have been litigated. “The purpose of both federal and state law on res judicata is essentially the same; to promote judicial efficiency and final resolution of disputes by preventing needless re-litigation.”
| 12Williams v. City of Marksville, 02-1130, pp. 2-3 (La.App. 3 Gir. 3/5/03), 839 So.2d 1129,1131 (footnotes omitted). Importantly, “[f]or res judicata to apply, the cause or causes of action asserted in the second suit must have existed at the time of final judgment in the first litigation.” Burguieres v. Pollingue, 02-1385, p. 12 (La. 2/25/03), 843 So.2d 1049, 1056.
In the instant matter, there is no dispute that the parties are the same. The first suit was an action to annul the donation of the property to Layssard on the grounds that the form of the donation was invalid. In the second suit, Stokes attempted to revoke the donation on the grounds of ingratitude. Both claims concern an attempt to have the same property returned to Stokes and arise out of Layssard’s refusal to return the property at issue to Stokes. Thus, they arise out of the same transaction or occurrence. Additionally, for the reasons articulated in our analysis of assignment of error number one, we find that the cause of action to revoke the donation on the grounds of ingratitude existed and should have been known by Stokes on August 2, 2012. Final judgment in the first suit was rendered on October 1, 2013. Thus, we conclude that the cause of action asserted in the instant matter existed, and should have been brought, at the time final judgment in the first suit was rendered. Therefore, we find that the trial court did not err in sustaining Layssard’s exception of res judi-cata on the grounds that the claims were precluded and affirm the judgment of the trial court on this issue.

Layssard, 187 So.3d at 579-80 (first, third, and fourth alteration in original).

As to the identity of the parties element, in Forum for Equality PAC v. McKeithen, 04-2551, pp. 10-11 (La. 1/19/05), 893 So.2d 738, 745 (alteration in original), the supreme court has stated:

An examination of the res judicata provision, La.R.S. 13:4231, reveals that a second action is precluded when all of the following are satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Burguieres v. Pollingue, 02-1385 (La. 2/25/03), 843 So.2d 1049. The sole element disputed by plaintiffs is the third element, relat-mg to the identity of the parties. Specifically, plaintiffs assert there are three new plaintiffs in the instant litigation (Louisiana Log Cabin Republicans, Gerald Thibodeaux and Julie Jacobs). Because these plaintiffs were not parties to the Orleans Parish litigation, plaintiffs argue they should not be subject to res judicata.
Lain Welch v. Crown Zellerbach Corp., 359 So.2d 154, 156 (La.1978), we explained that “[tjhere exists an identity of parties whenever the same parties, their successors, or others appear so long as they share the same ‘quality’ as parties.” In Hudson v. City of Bossier, 33,620 at p. 8 (La.App. 2 Cir. 8/25/00), 766 So.2d 738, 743, the appellate court, relying on federal jurisprudence interpreting res judicata provisions analogous to those under our state law, found that the pre-clusive effect of a judgment could bind a nonparty whose interests were adequately represented by parties to the litigation:
Under federal law, the preclusive effect of a judgment binds the parties to the action and nonparties who are deemed the “privies” of the parties in these limited circumstances: (1) the nonparty is the successor in interest of a party; (2) the nonparty controlled the prior litigation; or (3) the nonparty’s interests were adequately represented by a party to the action who may be considered the “virtual representative” of the nonparty because the interests of the party and the nonparty are so closely aligned. Gilbert v. Visone, 30,204 La.App. 2 Cir. 2/25/98, 708 So.2d 496; Condrey v. Howard, 28,442 (La.App. 2 Cir. 08/21/96), 679 So.2d 563, writ denied, 96-2335 (La. 11/22/96), 683 So.2d 281, citing Meza v. General Battery Corp., 908 F.2d 1262 (5th Cir.1990).
The interests of the additional parties in the instant litigation who were not parties to the Orleans Parish litigation are closely aligned with the interests of the parties in the Orleans Parish litigation. Under these circumstances, we must conclude their interests were adequately represented by the parties in the Orleans Parish litigation.

This court will now consider the facts of the instant case in light of the foregoing principles. In the petition filed by NHD and HD in 2013-3389 on July 23, 2013, these parties aver, in pertinent part:

On March 13, 2013, a meeting was held in the office of NEWMAN during which J. Lee Hoffoss, Jr. and Claude P. Devall informed Raleigh Newman that because of NEWMAN’s afore described [sic] action, H & D was terminating the partnership for cause and that NEWMAN would no longer be taking part in the business of NHD, thus expelling NEWMAN from NHD for cause due to NEWMAN’s actions[.j

Again, we note that at the time docket number 2013-1538 was filed on April 1, 2013, Mr. Newman appeared only in his individual capacity. Nevertheless, 114we discussed the claims being advanced in the original petition in docket number 2013-1538 previously herein.

Thus, we find that all claims arising out of the dissolution of NHD were viable as of the date of the filing of docket number 2013-1538. While this first-filed suit did not specifically name the Defendants to the action, the intent was obviously to name Newman, Hoffoss & Devall, LLP, and the individual partners since those were the parties sought to be enjoined by the temporary restraining order. Furthermore, while the petition in docket number 2013-1538 named Raleigh Newman only in his individual capacity, the individual could only seek the relief as to the partnership by appearing as the representative of Raleigh Newman, APLC, because only it was a member of the partnership, not the individual Raleigh Newman. Therefore, there was a sufficient identity of the parties’ interests to satisfy the test as to whether a judgment in 2013-1538 should bind the same parties who appear in docket number 2013-3389.

In the opposition memorandum submitted to this court, NHD and HD assert that all of the claims made by the original petition filed in docket number 2013-1538 were put to an end when the parties entered into a stipulation “whereby the parties agreed that they would not dispose of any client contracts, records or documents.” However, when NHD and HD moved for the trial court to dismiss the suit in 2013-1538, Raleigh Newman objected to the dismissal because there was outstanding discovery to which they had not, according to Mr. Newman, sufficiently responded.

|1fiIn the opposition memorandum NHD and HD write:

NHD and HD previously filed motions to dismiss and strike, and an exception of no cause of action, all pending before the trial court in the Injunction Suit [2013-1538]. The status of said motions and exception have been discussed during several discovery related hearings before the trial court in the Injunction Suit, which resulted in dicta as to said motions and exception from both parties and the trial judge in hearing transcripts. However, the trial court has not formally heard argument, and has not considered the memorandum or merits of any of said motions or exception. The record of the Injunction Suit is manifestly void of any judgment or order denying any of these pending matters.

These parties stated the foregoing in an attempt to show that the trial court has not ruled on the motion to dismiss in 2013-1538, contrary to Raleigh Newman and Raleigh Newman, APLC’s assertions in their writ application that the trial court in that matter had denied their motion to dismiss. Nevertheless, we note that the foregoing quote also indicates that there are ongoing matters in 2013-1538, such as the exception of no right of action.

NHD and HD also contend that no supplemental and amending petitions should have been permitted in 2013-1538 because the parties had entered into the stipulation which rendered the prayer for relief in the original petition moot before those supplemental and amending petitions were filed. The stipulation appears as an exhibit to the opposition memorandum. As asserted by NHD and HD, the stipulation provides for the relief sought by the original petition filed in 2013-1638.

However, as noted above, 2013-1538 was not formally dismissed prior to those additional filings and from the exception of no right of action and the |1fidiscovery that was ongoing, it does not appear that 2013-1538 was at an end. As pointed out in the instant writ application to this court, at the hearing held in 2013-1538 on July 24, 2013, then counsel for NHD and HD stated in open court, ‘We’re just going to leave it like it is, do the discovery, and come back to the Court if we don’t settle our differences.” The trial court then stated, “Okay. Now, in today’s proceeding the defendants are alleging that this lawsuit filed initially, this particular one, is—is—no longer exists—” and then stated, “essentially is what they’re saying. But we’re not going to talk about that or go there or resolve that.” In response, counsel for NHD and HD stated, “we’re going to leave it right where it is, reserving our right to contend that it’s moot and the right of the defendant to contend that it is still viable, if we have to go there.” Thus, the parties and the trial court in 2013-1538 anticipated the discovery was to move forward in that docket number and that the extant exception of no right of action and motions would be held in abeyance, at least temporarily, in an attempt to complete discovery and perhaps permit the parties to settle their differences. Therefore, we find the argument that the suit in 2013-1538 was at an end with the stipulation entered into between the parties is without merit.

Accordingly, we hold that the exception of lis pendens should have been sustained by the trial court and that the suit bearing the district court docket number 2013-3389 should have been ordered dismissed without prejudice.

DECREE

For the foregoing reasons, the writ application is granted, the trial court’s judgment denying the Notice and Exception of Lis Pendens filed by Defendant-Relator, Raleigh Newman, APLC, in district court docket number 2013-3389 is | ^reversed, and the suit bearing the same district court docket number is dismissed without prejudice.

WRIT GRANTED AND MADE PEREMPTORY.

      . Mr. Newman’s appearance as Plaintiff in docket number 2013-1538 was only as an individual in the original petition. It was not until the filing of the second supplemental and amending petition on August 19, 2016, that Mr, Newman changed his designation into “Raleigh Newman, Individually and as Agent for Raleigh Newman, APLC.”

      . The physical location in which NHD had operated was owned by Raleigh Newman, APLC.

      . We note, though, that in the reply brief filed in this court, Newman contends that it was "impossible” for Newman to be “expelled” from NHD because the partnership agreement requires unanimous agreement for a partner to be expelled pursuant to Section 4.4 of the agreement.

      . No party involved in this writ application has submitted a copy of the exception of no right of action filed in 2013-1538. However, the exception apparently challenges the right of the individual Raleigh Newman to bring an action clearly belonging only to a partner in NHD, i.e., Raleigh Newman, APLC. Arguably, the cure for such a defect, if it exists, would be to sustain the objection and afford the plaintiff, Raleigh Newman, the opportunity to amend the petition to substitute a party who does have an interest in the action, i.e., Raleigh Newman, APLC. La. Code Civ.P. art. 934. This amendment has already been accomplished through filing of Plaintiffs’ Second Supplemental and Amending Petition in that action.


source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    KHOOBEHI PROPERTIES, LLC v. BARONNE DEVELOPMENT NO. 2, L.L.C., Kailas Family Limited Partnership, and Kailas Properties, L.L.C. Khoobehi Properties, L.L.C. v. Baronne Development No. 2, L.L.C., Kailas Family Limited Partnership, and Kailas Properties, L.L.C. Khoobehi Properties, L.L.C. v. Baronne Developement No. 2, L.L.C., et al.
    NO. 16-CA-506, 16-C-354 & 16-C-356
    Court of Appeal of Louisiana, Fifth Circuit.
    March 29, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, KHOOBEHI PROPERTIES, LLC, George D. Fagan, Anton L. Hasen-kampf
    COUNSEL FOR DEFENDANT/AP-PELLEE, BARONNE DEVELOPMENT NO. 2, L.L.C. KAILAS FAMILY LIMITED, PARTNERSHIP, AND KAILAS PROPERTIES, L.L.C., Philip A. Franco, Jeffrey E. Richardson, David C. Coons
    Panel composed of Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson
   CHAISSON, J.

| ^Plaintiff, Khoobehi Properties, L.L.C. (“Khoobehi Properties”), appeals a May 13,2016 judgment of the district court that sustained various exceptions filed by co-defendants Baronne Development No. 2, L.L.C. (“Baronne Development”), 210 Bar-onne, L.L.C. (“210 Baronne”), and Kailas Properties, L.L.C. (“Kailas Properties”). Khoobehi Properties also attempts to appeal a July 25, 2014 judgment of the district court that sustained an exception of peremption filed by defendant Kailas Family Limited Partnership (“KFLP”), and further seeks this Court’s supervisory review of a ruling of the district court that denied its motion to compel discovery. Additionally, defendant Chandra Mohan Kailas seeks this Court’s supervisory review of a ruling of the district court that denied his motion to compel discovery and also denied his motion to quash Khoobehi Properties’ discovery requests served on a non-party accountant.

For the following reasons, we dismiss that portion of Khoqbehi Properties’ appeal that seeks revievy of the July 25, 2014 judgment sustaining KFLP’s exception of peremption; we reverse that portion of the district court’s May 13, 2016 judgment that sustained Kailas Properties’ exception of discussion, and in all other respects we affirm the judgment of the district court. Additionally, we deny the writ applications of both Khoobehi Properties and Mr. Kai-las regarding discovery issues and remand this matter to the district court for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

This case comes before us on a second appeal, the first appeal having, been dismissed on the grounds that the judgment at issue was interlocutory rather than final in nature. Khoobehi Props., L.L.C. v. Baronne Dev. No. L.L.C., 15-117 (La.App. 5 Cir. 11/19/15), 178 So.3d 647, writ denied, 16-0048 (La. 2/26/16), 187 So.3d 1002. Though Khoobehi Properties has amended its petition, the alleged facts remain essentially the same as those set forth in this Court’s previous opinion.

This case arises from a contract for the sale of Khoobehi Properties’ membership interest in Baronne Development, a limited liability company whose primary asset consisted of a high rise building located at 210 Baronne Street in downtown New Orleans. In the contract of sale, Khoobehi Properties sold its 13% membership interest in Baronne Development to KFLP. The sale was negotiated and executed by Dr. Kam-ran Khoobehi, the managing member of Khoobehi Properties, and Mr. Kailas, the managing member of Kailas Properties, which is the managing general partner of KFLP. At the time of the 2013 sale, KFLP owned a greater than 50% controlling interest in Baronne Development. The sale of Khoobehi Properties’ membership interest was initially memorialized in an “Agreement for Sale of a Limited Liability Interest” on May 9, 2013, and was completed on June 17, 2013, with the execution of a “Sale, Assignment, and Transfer of Membership Interests.” Both of these documents were signed by Dr. Khoobehi and Mr. Kailas. Following the sale, in August of 2013, Dr. Khoobehi learned of plans to redevelop the upper floors of the 210 Bar-onne building into luxuiy condominiums. He claims that these development plans were being made and negotiated without his knowledge, prior to the sale of Khoob-ehi Properties’ membership interest.

On November 25, 2013, Khoobehi Properties filed a petition against Baronne Development, KFLP, and Kailas Properties wherein it alleged the facts stated above regarding the sale of its membership interest to KFLP, and also that it had never received an asset distribution from Baronne Development at any time while it was a member from 2005 to 2013. It also alleged that during that same time period, Dr. Khoobehi made repeated requests of Mr. Kailas for a full and | .^complete accounting of Baronne Development’s business and financial records, but that this accounting was never provided. Though acknowledging that it had sold and transferred its interest in Bar-onne Development and was therefore no longer a member, Khoobehi Properties nevertheless demanded an accounting from Baronne Development and the other defendants from that time period for which it was a member, pursuant to La. R.S. 12:1319. Damages were not sought as part of this initial petition.

On January 24, 2014, Baronne Development, KFLP, and Kailas Properties filed a peremptory exception of no right of action pursuant to La. C.C.P. Art. 927(A)(6), wherein they argued that under the statutes governing Louisiana limited liability companies, the sale agreement between the parties, and the principles of subrogation, Khoobehi Properties no longer has a right to an accounting of the business of Baronne Development. After a hearing on the matter, the district court issued a judgment on February 19, 2014, sustaining the defendants’ exception of no right of action. Subsequently, on March 7, 2014, Khoobehi Properties filed a motion for a new trial requesting the right to amend the petition to state a right of action as allowed for pursuant to La. C.C.P. Art. 934. On April 15, 2014, the district court granted the motion for new trial for the purpose of allowing Khoobehi Properties leave to amend its petition to address the previously urged peremptory exception of no right of action.

On April 28, 2014, Khoobehi Properties filed its first amended, supplemental, and restated petition wherein it restated the allegations against the three corporate defendants, repeated its request for an accounting from Baronne Development, and made new allegations under theories of breach of contract, breach of fiduciary duty, negligent misrepresentation, alter ego/single business enterprise, conspiracy, and fraud. In its prayer for relief in this amended petition, Khoobehi Properties also requested damages and any other equitable relief, in ^addition to its request for an accounting. In response to this petition, the corporate defendants filed various exceptions: Baronne Development filed a peremptory exception of no cause of action, contending that Khoobehi Properties had failed to allege facts sufficient under any theory to constitute a cause of action against Baronne Development; KFLP filed a peremptory exception of peremption in which it sought to bar all of Khoob-ehi Properties’ claims that arose prior to November 25, 2010, which was three years prior to the time of filing of the suit; Kailas Properties filed a dilatory exception of discussion in which it argued that Khoobehi Properties should be required to enforce its rights against KFLP before pursuing Kailas Properties because, as á partner in KFLP, Kailas Properties is only secondarily liable for KFLP’s debts. On July 25, 2014, after a hearing on these exceptions (as well as some discovery related motions), the district court issued a judgment sustaining all of the defendants’ exceptions.

On August 8, 2014, Khoobehi Properties filed a motion for new trial from the July 25, 2014 judgment with respect to Baronne Development’s exception of no cause of action and Kailas Properties’ exception of discussion, but not with respect to KFLP’s exception of peremption. Khoobehi Properties also filed a second amended, supplemental, and restated petition wherein it named as additional defendants Mr. Kai-las, individually, and 210 Baronne, which was organized in September 2013 and is the current owner of the 210 Baronne Street property. This amended petition also included additional allegations that, on or prior to June 17, 2013, Mr. Kailas, in his personal capacity and as an agent for Bar-onne Development, KFLP, and Kailas Properties, made misstatements and failed to disclose material facts to Dr. Khoobehi about the plans and intentions | ^regarding the development, exchange, leasing, marketing, transfer, and use of the 210 Bar-onne Street property. Khoobehi Properties alleged that Mr. Kailas took these actions in order to -wrongfully induce Khoobehi Properties to sell its interest for substantially less than it would have sold for had the misrepresentations not been made and the material information disclosed, and to obtain an unjust advantage over, and to cause damage and inconvenience to, Khoobehi Properties.

On October 8, 2014, KFLP and Mr. Kai-las filed an answer to Khoobehi Properties’ second amended and supplemental petition in which they denied that material information was withheld from, or misrepresentations were made to, Dr. Khoobehi. In their answer, KFLP and Mr. Kailas also stated as affirmative defenses that, inter alia, Khoobehi Properties failed to state a claim against the defendants upon which relief can be granted, that pursuant to La. R.S. 12:1502, Khoobehi Properties’ claims pre-dating November 25, 2010, are per-empted, and that Khoobehi Properties has no cause of action for any acts allegedly occurring after June 17, 2013, the date of the sale. Additionally, 210 Baronne filed a peremptory exception of no cause of action, and Kailas Properties filed another dilatory exception of discussion.

The district court rendered judgment on November 10, 2014, denying Khoobehi Properties’ motion for new trial on the issues of Baronne Development’s peremptory exception of no right of action and Kailas Properties’ dilatory exception of discussion. Khoobehi Properties appealed the November 10 judgment; however, this Court dismissed the appeal on the grounds that the judgment, which did not address Khoobehi Properties’ claim for an accounting by Baronne Development, was an interlocutory judgment rather than a final appealable judgment. Khoobehi Props., L.L.C., supra.

lfiIn response to this Court’s dismissal of its appeal, Khoobehi Properties filed an ex parte motion in the district court seeking a ruling as to all of its causes of action against Baronne Development, and entry of a final judgment dismissing all of its causes of action against Baronne Development, with prejudice, reserving unto Khoobehi Properties the right to appeal that judgment. Additionally, various parties filed discovery related motions: Khoobehi Properties filed a motion to compel complete responses to interrogatories, requests for production and admissions, and a motion for award of reasonable expenses, directed to all defendants; in response, Mr. Kailas filed a motion to quash Khoobehi Properties’ notice of deposition for production of records held by a third party accountant and a motion to compel discovery responses from Khoobehi Properties for questions relating to the fee agreement between Khoobehi Properties and its counsel.

At a hearing on April 12, 2016, the district court considered the outstanding exceptions filed in the defendants’ answer, the motion for an entry of a final judgment, and the various discovery motions, and on May 13, 2016, entered a ruling wherein it: granted Kailas Properties’ dilatory exception of discussion; granted 210 Baronne’s peremptory exception of no cause of action and dismissed 210 Baronne from the case with prejudice at Khoobehi Properties’ cost; granted Khoobehi Properties’ ex parte motion for entry of a final judgment, thereby dismissing Baronne Development from the case with prejudice for failure to state any cause of action or right of action against Baronne Development; denied Khoobehi Properties’ motion to compel responses to interrogatories, requests for production and admission, and for an award of reasonable expenses; denied Mr. Kailas’s motion to compel discovery responses; and denied Mr. Kailas’s motion to quash.

Khoobehi Properties timely filed an appeal of the May 13, 2016 judgment. The parties also timely sought supervisory review of the district court’s | ^interlocutory rulings on the discovery motions, and these writs have been consolidated with Khoobehi Properties’ appeal. In its appeal, Khoobehi Properties raises the following assignments of error:

1. The district court erred by determining that Khoobehi Properties lacks standing to request an accounting from Baronne Development under La. R.S. 12:1319;
2. The district court erred in sustaining Baronne Development’s exception of no cause of action and dismissing Baronne Development;
3. The district court erred in sustaining 210 Baronne’s exception of no cause of action to the second amended petition and dismissing 210 Bar-onne;
4. The district court erred in sustaining KFLP’s exception of peremption;
5. The district court erred in sustaining Kailas Properties’ exception of discussion; and
6. The district court abused its discretion or clearly erred by denying plaintiffs motion to compel.

Additionally, in an answer to the appeal, Mr. Kailas argues:

1. The district court erred in denying Mr. Kailas’s motion to quash discovery request served on non-party accountant.
2. The district court erred in denying Mr. Kailas’s motion to compel discovery relating to Khoobehi Properties’ claim for attorneys’ fees.

DISCUSSION

Exception of No Right of Action filed by Baronne Development, KFLP, and Kailas Properties

La. C.C.P. Art. 927 provides for the peremptory exception of no right of action, or no interest in the plaintiff to institute the suit, which is an exception that may be brought by the defendant, the trial court, or the appellate court on its own motion. The determination of whether a plaintiff has a right of action is a question of law, which the appellate court reviews de novo, Johnson v. Motiva Enters., LLC, 13-305 (La.App, 5 Cir. 10/30/13), 128 So.3d 483, 488.

Khoobehi Properties argues that under La. R.S. 12:1319, a former member of a limited liability corporation may request an accounting for at least that period of time when it was a member of the LLC. Defendants argue, on the other hand, Isthat Khoobehi Properties relinquished its right to an accounting when it sold and transferred its membership interest in the LLC.

La. R.S. 12:1319 provides, in pertinent part:

B. Unless otherwise provided in the articles of organization or an operating agreement, a member may do any of the following:
(1) At the member’s own expense, inspect and copy any limited liability company record upon reasonable request during ordinary business hours.
(2) Obtain from time to time upon reasonable demand the following:
(a) True and complete information regarding the state of the business and financial condition of the limited liability company.
(b) Promptly after becoming available, a copy of the limited liability company’s federal and state income tax returns for each year.
(c) Other information regarding the affairs of the limited liability company as is just and reasonable.
(3)Demand a formal accounting of the limited liability company’s affairs whenever circumstances render it just and reasonable.

According to the plain language of this statute, the right to obtain and inspect the records of the limited liability company is reserved to members of the LLC. Channelside Servs., LLC v. Chrysochoos Grp,, Inc., 15-0064 (La.App. 4 Cir. 5/13/16), 194 So.3d 751, 760. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written. La. C.C. Art. 9. There is nothing in this statute that suggests that the right to an accounting from the LLC is extended to nonmembers. Khoobehi Properties is no longer a member of Baronne Development since it sold its 13% membership interest to KFLP. As expressly defined in another article of the Louisiana Limited Liability Companies Act, La. R.S. 12:1301(A)(14), “membership interest” means a member’s rights in a limited liability company, collectively, including the member’s share of the profits and losses of the limited liability company, the rights |flto receive distributions of the limited liability company’s assets, and any right to vote or participate in management. Khoobehi Properties relinquished its right to an accounting from Baronne Development when it executed the “Sale, Assignment, and Transfer of Membership Interests” in favor of KFLP on June 17, 2013, and therefore has no right of action for an accounting against Baronne Development. We therefore affirm that portion of the trial court’s judgment sustaining the exception of no right of action.

Exception of No Cause of Action by Bar-onne Development

The exception of no cause of action tests the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Hurricane Fence Co. v. Jensen Metal Prods., 12-956 (La.App. 5 Cir. 5/23/13), 119 So.3d 683. The appellate court reviews a trial court’s ruling sustaining an exception of no cause of action de novo because the exception raises a question of law and the court’s decision is based solely on the sufficiency of the petition. Johnson v. Motiva Enters., LLC, 128 So.3d at 488. The peremptory exception of no cause of action is triable on the face of the pleadings, and, for purposes of resolving issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Par. of Jefferson v. Bankers Ins. Co,, 11-590 (La.App. 5 Cir. 2/28/12), 88 So.3d 1082, 1088. No evidence may be introduced at any time to support or controvert an exception of no cause of action. Id. Because Louisiana uses a system of fact pleading, a plaintiff is not required to plead the theory of recovery in his petition; however, mere conclusions of the plaintiff unsupported by facts will not set forth a cause of action. Id.

Khoobehi Properties argues that the district court erred in sustaining Baronne Development’s exception of no cause of action without leave to amend because its petition adequately states a cause of action against Baronne Development under theories of breach of fiduciary duty, principal-agent, single hobusiness enterprise, conspiracy, and fraud. We address each of these theories in turn.

Breach of Fiduciary Duty

Khoobehi Properties argues that Louisiana law clearly obligates limited liability companies like Baronne Development to disclose material information about the LLC to .members like Khoobehi Properties, and imposes liability on the LLC when that duty is breached by a member or other representative of the LLC. Khoobehi Properties’ position is unsupported by Louisiana law. None of the provisions of the Louisiana Limited Liability Companies Act, La. R.S. 12:1301-12:1370, state that the LLC owes a fiduciary duty to its members. Because the LLC is a fictional juridical entity, it can act only through its members; therefore, the statutes set forth the duties that members of the LLC owe to each other, not duties that the LLC owes to its members. La. R.S, 12:1314(A)(1) states that the manager “[s]hall be deemed to stand in a fiduciary relationship to the limited liability company and its members and shall discharge his duties in good faith, with the diligence, care, judgment, and skill which an ordinary prudent person in a like position would exercise under similar circumstances.” As the managing member of Bar-onne Development, KFLP owed the fiduciary duty to its fellow members of the LLC, including Khoobehi Properties. To argue that the LLC itself owes a fiduciary duty to its members is to essentially posit that all of the members of the LLC have a fiduciary duty to themselves and to all of their fellow members, which is clearly contrary to the plain language of La. R.S. 12:1314. Accordingly, we find that the facts as alleged in Khoobehi Properties’ petition do not set forth a cause of action against Baronne Development for breach of fiduciary duty.

Principal-Agent

Khoobehi Properties argues that Mr. Kailas was acting as an agent on behalf of Baronne Development while participating in the negotiations with third parties |ri regar ding the redevelopment of the 210 Baronne building prior to Khoob-ehi Properties’ sale of its membership interest. Under general mandate law, the knowledge of an agent or mandatory is imputed to the principal even if the agent neglected to specifically convey those facts to the principal. General American Oil Co. v. Meche, 442 So.2d 496, 499 (La. App. 3 Cir. 1983). For these reasons, a principal may be liable for its agent’s actions. Urbeso v. Bryan, 583 So.2d 114, 116 (La. App. 4 Cir. 1991). This general rule is applicable in those situations where the agent or mandatory acts for the LLC in such a way as to make the LLC liable to a third party. See La. R.S. 12:1317. However, this general rule does not apply where there are specific provisions which govern the liability between members of the same LLC, such as those set forth in La. R.S. 12:1314-1317. In this case, the general principles of agency must yield to the specific statutes governing LLCs. Channelside Servs., LLC v. Chrysockoos Grp., Inc,, 194 So.3d at 761. This conclusion is further supported by the language of La. R.S. 12:1320(A) of the Louisiana Limited Liabilities Companies Act which states, “[t]he liability of members, managers, employees, or agents, as such, of a limited liability company organized and existing under this Chapter shall at all times be determined solely and exclusively by the provisions of this Chapter.” We find that the facts alleged in Khoobehi Properties’ petitions do not support a cause of action against Baronne Development under the general laws of agency.

Single Business Enterprise

The single business enterprise doctrine is a theory for imposing liability where two or more business entities act as one. Green v. Champion Ins. Co., 577 So.2d 249 (La. App. 1 Cir. 1991). Corporations are separate entities; however, the legal fiction of a distinct corporate entity may be disregarded when a corporation is so organized and controlled as to make it merely an instrumentality of another | ¶.¿corporation. Id. If one corporation is wholly under the control of another, the fact that it is a separate entity does not relieve the latter from liability. Id.

Although Khoobehi Properties makes the conclusory statement that 210 Baronne, Baronne Development, KFLP and Kailas Properties are operated as a single business enterprise, it makes no factual allegations that would support that conclusion. The fact that Mr. Kailas is a part owner of each of these corporations and is the managing member who handles the business and affairs of the corporations does not establish that the corporations are a single business enterprise. Furthermore, Khoobehi Properties’ claim that it owned a 13% membership interest in Bar-onne Developments during the relevant time period, but never had an ownership interest in any of the other corporations, directly contradicts the conclusory assertion that Baronne Developments was operated as a single business enterprise with the other corporations. Separate and distinct ownership of each corporation is a compelling indication that the various corporations were not organized or controlled so as to make each corporation merely an instrumentality of the other. We conclude that the facts alleged in Khoobehi Properties’ petitions do not support a cause of action against Baronne Development under a single business enterprise theory.

Conspiracy

Khoobehi Properties alleges that “Mohan Kailas, Baronne Development, KFLP and Kailas Properties, and others acting by or on behalf of the foregoing, acted and -wrongfully conspired to suppress the truth and withhold material information from Khoobehi Properties regarding the interrelated business affairs of Mohan Kailas, Baronne Development, KFLP and Kailas Properties regarding the new plans for the development, renovation and use of the 210 Baronne Property. Under La. C.C. Art. 2324, “[h]e who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for |1Rthe damaged caused by such act.” Furthermore, the actionable element of a conspiracy claim is not the conspiracy itself; rather, it is the tort that the conspirators agree to perpetrate and actually commit in whole or in part. Thomas v. North 40 Land Dev., Inc., 04-0610 (La.App. 4 Cir. 1/26/06), 894 So.2d 1160, 1174. As previously noted, limited liability companies such as Baronne Development are fictional legal entities that can only act through their members or managers. Khoobehi Properties’ petition essentially alleges that Mr. Kailas, acting on behalf of Baronne Development, conspired with Mr. Kailas, acting on behalf of himself and/or KFLP and/or Kailas Properties, to fraudulently induce Dr. Khoobehi into selling Khoobehi Properties’ interest in Baronne Development to KFLP. Since Mr. Kailas, as the sole natural person alleged to have acted on behalf of himself and the corporations, cannot conspire with himself, we find that the facts alleged are insufficient to maintain a cause of action for conspiracy against Bar-onne Development.

Fraud

Under the Civil Code, fraud is defined as “a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.” La. C.C. Art. 1953. Khoobehi Properties’ petition alleges that Mr. Kailas omitted and failed to disclose material facts to Dr. Khoobehi in order to wrongfully induce the sale of Khoobehi Properties’ membership interest in Baronne Development for a substantially lesser value than would have been the case had defendants made or furnished such material disclosures and material information to Khoobehi Properties prior to the sale. Khoobehi Properties alleges that Mr. Kailas perpetrated the fraud while acting on behalf of Baronne Development, KFLP, and Kailas Properties. Khoobehi Properties also acknowledges that the offer to purchase its interest was | umade by Mr. Kailas acting on behalf of KFLP, and that both agreements for the sale in May and June of 2013 were signed by Dr. Khoobehi on behalf of Khoobehi Properties and by Mr. Kailas on behalf of KFLP. These allegations contradict each other: on the one hand, Khoobehi Properties seeks to attribute Mr. Kailas’s purported misstatements and fraud-inducing activity to Baronne Development in order to maintain an independent cause of action against that company, and on the other, he seeks to attribute Mr. Kailas’s actions to KFLP, Kailas Properties, and Mr. Kailas himself to maintain independent causes of action for fraud against those companies and Mr. Kailas in his personal capacity. As we stated in our discussions of the single enterprise and principal-agent theories, Khoob-ehi Properties attempts to transpose the actions of Mr. Kailas in order to hold Baronne Development independently liable. In this particular instance, Khoobehi Properties argues, in effect, that Baronne Development, which was not a party to the sale and transfer agreements, has perpetrated a fraud against itself. As the trial court correctly noted, Baronne Development is the object of the sale and transfer agreement, not a party to it. Khoobehi Properties has failed to allege facts sufficient to maintain a cause of action for fraud against Baronne Development. Accordingly, we affirm that part of the trial court's judgment sustaining Baronne Development’s exception of no cause of action and dismissing Baronne Development with prejudice from the suit.

Exception of No Cause of Action by 210 Baronne

Khoobehi Properties argues that the trial court erred in sustaining 210 Bar-onne’s exception of no cause of . action, or alternatively should have allowed it to amend its petition, because 210 Baronne is the successor in interest to Baronne Development and is independently liable for defendants’ misconduct. Khoobehi Properties has acknowledged that 210 Baronne was not organized until September of 2013, months after the alleged fraudulent activity. Because the organization did |iKnot exist at the time of the alleged sale, 210 Baronne could not have participated through any of its members or managers in the alleged misstatements and misrepresentations attributed to the other defendants. Accordingly, we find that Khoobehi Properties has no independent right of action against 210 Baronne. Furthermore, having determined that Khoobehi Properties has no right of action nor cause of action against Baronne Development, we pretermit any discussion regarding whether 210 Baronne is a successor in interest to Baronne Development. We affirm that part of the trial court’s judgment sustaining 210 Baronne’s exception of no cause of action and dismissing 210 Baronne with prejudice from the suit.

Exception of Peremption by Kailas Family Limited Partnership

Khoobehi Properties next argues that the district court erred in sustaining KFLP’s exception of peremption because La. R.S. 12:1502 is not a peremptory statute, and does not apply to or govern all of Khoobehi Properties’ claims against KFLP.

The district court’s May 13, 2016 judgment makes no mention of the exception of peremption filed by KFLP on June 2, 2014. The district court granted that exception in a judgment dated July 25, 2014. On August 8, 2014, Khoobehi Properties filed a motion for new trial from that judgment, but only with respect to Bar-onne Development’s exception of no cause of action and Kailas Properties’ exception of discussion; KFLP’s exception of per-emption was not referenced in the motion for new trial. In its notice of intention to file supervisory writs, Khoobehi Properties stated that it sought partial review of the trial court’s July 25, 2014 judgment that granted KFLP’s “Peremptory Exception of Prescription;” however, Khoobehi Properties did not raise this issue as an assignment of error in its | ^application for supervisory writs. It is well established that the court may consider as abandoned any specification or assignment of error that has not been briefed. Uniform Rules— Courts of Appeal Rule 2-12.4(B)(4). While Khoobehi Properties did raise the issue as an assignment of error in its first appeal, it was not timely raised then, and it has not been timely raised before this court now. See Khoobehi Props., L.L.C., 178 So.3d 647. Accordingly, that portion of Khoobehi Properties’ appeal seeking review of the trial court’s sustaining of KFLP’s exception of peremption is dismissed.

Exception of Discussion by Kailas Properties

Khoobehi Properties argues that the trial court erred in sustaining Kailas Properties’ dilatory exception of discussion because Kailas Properties failed to comply with procedural requirements for a plea of discussion and because Kailas Properties is independently liable, not merely derivatively liable as a partner in KFLP.

The right of a partner to plead discussion of the partnership’s assets is contained in La. C.C. Art. 2817: “[a] partnership as principal obligor is primarily liable for its debts. A partner is bound for his virile share of the debts of the partnership but may plead discussion of the assets of the partnership.” Furthermore, La. C.C.P. Art. 5151 defines discussion as “the right of a secondary obligor to compel the creditor to enforce the obligation against the property of the primary obligor or, if the obligation is a legal or judicial mortgage, against other property affected thereby, before enforcing it against the property of the secondary obligor.”

Khoobehi Properties argues that Kailas Properties’ dilatory exception of discussion was improperly pled because it failed to comply with La. C.C.P. Art. 5155, which requires that the secondary obligor pleading discussion identify |17property of the primary obligor and deposit into the court registry an amount sufficient to defray the cost of executing the judgment. On the other hand, Kailas Properties argues that the requirements of La. C.C.P. Art. 5155 apply only to a third possessor in an injunction suit to restrain the enforcement of a legal or judicial mortgage against his property or in cases involving a surety or transferee in a revocatory action, and do not apply in this instance where a partner pleads the exception of discussion of the partnership assets.

La. C.C.P. Art. 5155 states:

A third possessor may plead discussion in an injunction suit to restrain the enforcement of a legal or judicial mortgage against his property. Discussion may be pleaded by a surety or transferee in a revocatory action only in the dilatory exception.
In pleading discussion, the secondary obligor shall:
(1) Point out by a description sufficient to identify it, property in the state belonging to the primary obligor, or otherwise subject to discussion, which is not in litigation, is not exempt from seizure, is free of mortgages and privileges, and is worth more than the total amount of the judgment or mortgage; and
(2) Deposit into the registry of the court, for the use of the creditor, an amount sufficient to defray the costs of executing the judgment or enforcing the mortgage against the property discussed.

We find the language of this statute to be unclear. It may be read as either applying the requirements of identification and deposit only to pleas of discussion filed by third possessors, sureties, or transferees in a revocatory action, or it may be read as applying those requirements to all pleas of discussion filed by all secondary obligors. As the trial court correctly noted, Kailas Properties is not a third possessor, a surety, or a transferee in a revocatory action. It is also true that Kailas Properties did not identify the properties owned by KFLP sufficient to satisfy the total amount in judgment nor deposit any funds into the registry of court.

Kailas Properties offers no case law in support of its assertion that the procedural requirements of La. C.C.P. Art. 5155 are not applicable to partnerships. The only case cited for this rarely pled exception, Brackley & Voelkel Constr. v. 3421 Cause way, Ltd., 98-134 (La.App. 5 Cir. 5/27/98), 712 So.2d 716, 719, is quoted mainly for the proposition that:

The partnership as a business entity is primarily liable and the individual partners’ liability normally only comes into existence when and if the partnership becomes insolvent. The clear intent of both articles [La Code Civ. P. Art. 737 and La. Civ. Code Art. 2817] is that a partnership creditor must first exhaust his rights against the partnership before he proceeds against the individual partners. (Internal citations omitted.)

This is an accurate statement of the law of partnership, and remains true in this case. However, the question of whether the defendants properly pled the exception of discussion under La. C.C.P. Art. 5155 in Bmokley was never addressed because the individual partners failed to file any dilatory exception of discussion prior to filing their answer.

We find that the requirements set forth in La. C.C.P. Art. 5155 apply in those cases where a partner pleads the dilatory exception of discussion as is his right under La. C.C-. Art. 2187. This holding is supported by Revision Comment A to this article, which provides further clarification:

(a) This Article sets forth the rule that creditors must look to the partnership first for the debts of the partnership. The partners are only secondarily liable. This continues the present jurisprudence, but the Article adds a new provision to the effect that if a partner is sued on a partnership debt, the partner may plead discussion of the partnership’s assets. A third person may sue the partnership and the partners at the same time, as provided in Article 737 of the Louisiana Code of Civil Procedure, but can recover against a partner who has properly pleaded discussion only if the partnership’s assets have been exhausted or the partnership has been dissolved. By requiring the partner to plead discussion in order to get the benefit of having the assets of the partnership exhausted before there can be recovery against him, the Article, in fairness to creditors, places the burden of pointing out paHnership property on the partner. (Emphasis added.)

Because Kailas Properties did not specify which assets of KFLP should be used to satisfy the debts incurred by KFLP, it cannot obtain the benefit of the pléa |13of discussion for unspecified assets. This finding does nothing to alter the well-established law of partnership that the partnership is the principle obligor and is primarily liable for its debts. For those debts which KFLP incurred, Khoobehi Properties must first exhaust its remedies against the partnership before seeking recovery against Kailas Properties. We also recognize that Khoobehi Properties’ petition sets forth independent causes of action against Kailas Properties to which this exception would not apply. Accordingly, we reverse that portion of the trial court’s judgment sustaining Kailas Properties’ dilatory exception of discussion.

DISCOVERY MOTIONS

Khoobehi Properties’ Motion to Compel and Mr. Kailas’s Motion to Quash Production of Third Party Records

In ruling on discovery matters, the trial court is vested with broad discretion and, upon review, an appellate court should not disturb such rulings absent a clear abuse of discretion. Channelside Servs., 194 So.3d at 756. A party to litigation may apply to a court for an order compelling discovery when another party fails to answer properly propounded interrogatories or requests for production. Hardee v. City of Jennings, 10-1540 (La.App. 3 Cir. 5/11/11), 65 So.3d 266, 269. The discovery articles grant the trial court the power to compel discovery and the discretion to impose various sanctions on a party or his attorney for unjustified failure to comply with the statutory scheme or obey an order compelling discovery. The decision whether to grant relief against a recalcitrant party rests within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. Id.

On March 10, 2016, Khoobehi Properties filed a motion to compel complete responses to interrogatories, requests for production and requests for admission |2nwherein it sought information regarding: payments made by defendants between January 1, 2013, and June 17, 2013, in connection with the redevelopment of 210 Baronne; defendants communications with First NBC Bank between January 1, 2013, and June 17, 2013, with respect to their requests for financing to redevelop 210 Baronne; and information regarding the financial performance of 210 Baronne since the June 2013 sale. Khoob-ehi Properties also served a notice of deposition for the production of records on the nonparty accounting firm Weiner & Brenner, LLC, also seeking the information concerning the financial performance of 210 Baronne since the sale.

In response, Mr. Kailas filed a motion to quash the notice of deposition served on the nonparty accountants. On appeal, Mr. Kailas argues that the information concerning the financial performance of 210 Baronne since the sale is irrelevant, immaterial, and not reasonably calculated to lead to the discovery of admissible evidence.

In its May 13, 2016 judgment, and its subsequent reasons for judgment, the trial court denied Khoobehi Properties’ motion to compel, finding the requests were dupli-cative of previous discovery requests and that defendants had participated in discovery in good faith in their previous responses and production of records. The trial court additionally denied Mr. Kailas’s motion to quash Khoobehi Properties’ notice of deposition for the production of records to the nonparty accountants, finding the requested discovery concerning the financial performance of 210 Baronne since the sale is relevant to show the nature, scope, and extent to which Khoobehi Properties was allegedly harmed when it sold its interest in Baronne Development prior to the redevelopment. In addition, the court noted that damages are a proper subject of discovery and the information sought may be relevant for the purposes of determining damages, and that the accountant-client privilege claimed by Mr. Kailas applied to confidential communications | ¾1 between an accountant and client, not to accounting documents or records prepared in the ordinary course of a company’s business operations like those sought and requested by Khoobehi Properties.

Upon review of the record and consideration of Khoobehi Properties’ arguments on appeal, we find that the trial court did not abuse its broad discretion in denying Khoobehi Properties’ motion to compel or Mr. Kailas’s motion to quash. In particular, with regard to the relevance of the financial performance of 210 Baronne, such information is relevant to show the nature, scope, and extent to which Khoob-ehi Properties was allegedly harmed when it sold its interest prior to the redevelopment of the 210 Baronne property. Fraud vitiates consent and thus is grounds for rescission. Stutts v. Melton, 13-0557 (La. 10/15/13), 130 So.3d 808, 814. Under La. C.C. Art. 1958, the party against whom rescission is granted because of fraud is liable for damages and attorney’s fees. Coates v. Anco Insulations, Inc., 00-1331 (La.App. 4 Cir. 3/21/01), 786 So.2d 749, 755. The measure of damages in such instances is set forth in La. C.C. Art. 1995: “[d]amages are measured by the loss sustained by the obligee and the profit of which he has been deprived.” As such, the information concerning the financial performance of 210 Baronne, the profits (and losses) in which Khoobehi Properties would have shared as a member of Bar-onne Development had it not sold its membership interest, is relevant to Khoobehi Properties’ cause of action for 'fraud and therefore discoverable information. Accordingly, we affirm the judgment of the trial court denying both Khoobehi Properties’ motion to compel and Mr.' Kailas’s motion to quash.

Mr. Kailas’s Motion to Compel Production of Attorney-Client Agreement

Mr. Kailas also seeks reversal of the trial court’s judgment denying his motion to compel discovery relating to Khoobehi Properties’ claim for attorney’s fees. In particular, Mr. Kailas sought to compel Khoobehi Properties to produce its |22fee agreement with its counsel and counsel’s billing records in this case. Khoobehi Properties argues that discovery on attorney’s fees is premature because attorney’s fees would only be determined if it prevails after a trial on the merits. While the trial court made no reference to its decision to deny Mr. Kailas’s motion to compel in its reasons for judgment, we nevertheless find no abuse of the trial court’s broad discretion in this discovery matter. Accordingly, that portion of the trial court’s judgment is affirmed.

CONCLUSION

We affirm the trial court’s May 13, 2016 judgment sustaining the exceptions of no cause of action and no right of action filed by Baronne Development and 210 Baronne and dismissing those defendants with prejudice; we dismiss as untimely the assignment of error seeking review of the trial court’s sustaining KFLP’s exception of peremption; we reverse that part of the trial court’s judgment sustaining Kailas Properties’ exception of discussion; and, we deny the writ applications of both Khoobehi Properties and Mr. Kailas regarding discovery issues and remand this matter to the district court for proceedings consistent with this opinion.

DISMISSED IN PART; AFFIRMED IN PART; REVERSED IN PART; WRITS DENIED; REMANDED

      . Khoobehi Properties also seeks review of this ruling on its motion to compel by way of its sixth assignment of error in its appeal.

      . Mr. Kailas has also sought review of these rulings by way of an answer to Khoobehi Properties' appeal.

      .Khoobehi Properties filed a notice of intention to apply for supervisory writs, wherein it stated its intention to request review of the district court’s granting of certain discovery motions as well as the sustaining of KFLP’s peremptory exception of peremption. On September 29, 2014, this Court granted in part and denied in part Khoobehi Properties’ writ with respect to the trial court’s discovery orders; however, the issue of KFLP's perempto- . ty exception of peremption was not briefed by the relator, and therefore was not considered by this Court at that time.

      . This alleged material information included communications with, and site visits by, local architects and contractors in April, May, and June of 2013 regarding the plans for redevelopment, and negotiations with First NBC Bank concerning the financing of the redevelopment.

      . The court also denied a motion for partial summary judgment filed by defendants in which they requested that Khoobehi Properties’ remedy be limited to rescission of the sale contract. No review of this denial was sought.

      . A review of the record indicates that KFLP only filed a peremptory exception of peremption, not a peremptory exception of prescription.

      . Discussion must be specifically pleaded as a dilatory exception, which is waived if not raised prior to answer or judgment by default. La. C.C.P. Arts. 926, 928.

      . The seeming discrepancy between La. C.C. Art. 2817, which provides partners with the right to plead discussion, and La. C.C.P. Art. 5155, which makes no mention of partnerships, is explained by Professors Glenn C. Morris and Wendell H. Holmes in the Louisiana Civil Law Treatise: Business Organizations § 6.10, as the result of a twenty year gap between enactment of these two code articles. Their analysis of the issue also supports the finding that the requirements of La. C.C.P. Art. 5155 apply to partners pleading discussion of partnership assets.