author: CORTIÑAS, J.

text:
    Gerhardt M. WITT, Individually, Appellant, v. LA GORCE COUNTRY CLUB, INC., Appellee. La Gorce Country Club, Inc., Appellant, v. ITT Industries, Inc., Appellee.
    Nos. 3D08-1812, 3D08-1825.
    District Court of Appeal of Florida, Third District.
    June 9, 2010.

      Robert D. Luskin and Patrick J. Slevin and Kathryn Biber and Patton Boggs, Washington, D.C.; Derrevere, Hawkes & Black and Jon D. Derrevere and Shirley Jean McEashern, West Palm Beach, for appellant, Gerhardt M. Witt.
    Stearns Weaver Miller Weissler Alha-deff & Sitterson and Eugene E. Stearns and Mark P. Dikeman, Miami, for appel-lee/appellant, La Gorce Country Club.
    Hunton & Williams and Thomas R. Ju-lin; Linkhorst & Hockin and Adam C. Linkhorst, Jupiter, for appellee, ITT Industries, Inc.
    Oertel, Fernandez & Bryant, and Segundo Fernandez and Gavin D. Burgess, Tallahassee, for Florida Association of Professional Geologists, as amicus curiae.
    Young van Assenderp and Roy C. Young, Tallahassee; Gray Robinson and J. Michael Huey, Tallahassee, for Florida Engineering Society, Florida Institute of Consulting Engineers and Florida Association of the American Institute of Architects, as amici curiae.
    Before RAMIREZ, CORTIÑAS, and LAGOA, JJ.
   ON MOTION FOR REHEARING

CORTIÑAS, J.

On consideration of appellant, Gerhardt M. Witt’s, motion for rehearing, rehearing en banc, or certification of this Court’s opinion filed June 10, 2009, we grant rehearing, withdraw our prior opinion and issue the following opinion in its stead:

Appellant, Gerhardt M. Witt, seeks review of a final judgment holding him personally liable for damages in excess of four million dollars to La Gorce Country Club, Inc. (“La Gorce”) as well as the trial court’s non-allocation of fault to ITT Industries, Inc. (“ITT”) as a Fabre defendant. Also consolidated with this case is La Gorce’s appeal of the portion of the same final judgment which awarded it no damages on its counts against ITT for fraud in the inducement and violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”).

In 1999-2000, La Gorce began exploring options to irrigate its golf course using a reverse osmosis water treatment system as an alternative to the municipal water supply. In January 2000, La Gorce met with ITT regarding the water treatment project. ITT introduced Witt, a professional geologist licensed in Florida, to La Gorce, advising them that ITT had previously worked with Witt on another project involving reverse osmosis. Witt submitted a proposal to provide hydrogeologic consulting services and ITT submitted a proposal to design and build a reverse osmosis water treatment plant. La Gorce and ITT eventually entered into a design-build contract for the reverse osmosis system (the “ITT Agreement”) and Witt’s Company, Gerhardt M. Witt and Associates, Inc. (“GMWA”), entered into various contracts with La Gorce for consulting services and the overall project coordination (collectively the “GMWA Agreements”). These agreements between GMWA and La Gorce each contained the following limitation of liability provision:

In recognition of the relative risks and benefits of the project to both La Gorce and [GMWA], the risks have been allocated such that La Gorce agrees, to the fullest extent permitted by law, to limit the liability of [GMWA] and its subcon-sultants to the total dollar amount of the approved portions of the scope for the project for any and all claims, losses, costs, damages of any nature whatsoever or claims expenses from any cause or causes, so that the total aggregate liability of [GMWA] and its subconsultants to all those named shall not exceed the total dollar amount of the approved portions of the Scope or [GMWA’s] total fee for services rendered on this project, whichever is greater. Such claims and causes include, but are not limited to, negligence, professional errors or omissions, strict liability, breach of contract or warranty.

Throughout the design and construction of the project, many problems arose, including issues with water quality, and the proper operability of the water treatment system. ITT and La Gorce attempted to address these issues via the execution of a particular change order. Because of the numerous technical problems that occurred during the design and building of the system, ITT continued to make modifications through 2003. The system was eventually completed, delivered to La Gorce, and began operating. During the fourteen-month period the system was in use, its performance deteriorated and ultimately, the system failed completely.

La Gorce filed suit against Witt, GMWA, and ITT. La Gorce’s complaint was later amended, and alleged 1) fraud in the inducement against ITT, 2) aiding and abetting fraud in the inducement by Witt and GMWA, 3) violation of FDUTPA by ITT and GMWA, 4) professional malpractice by Witt and GMWA, and 5) breach of the GMWA Agreements by GMWA. Pursuant to section 44.104, Florida Statutes (2006), the parties agreed to try the case before a trial resolution judge. After a two-week trial, the trial resolution judge issued findings of fact and conclusions of law that were later incorporated by the circuit court into its final judgment. The conclusions of law pertinent to this appeal include the trial judge’s determination that Witt and GMWA were liable to La Gorce for professional malpractice, but that the limitation of liability provision applied only to GMWA, and the conclusion that La Gorce failed to prove fraud in the inducement and violation of FDUTPA by ITT.

I. Standard of Review

The trial resolution judge’s findings of fact are not reviewable on appeal. See section 44.104(11), Florida Statutes (2008) (“Factual findings determined in the voluntary trial are not subject to appeal.”). However, we review questions of law, including those pertaining to contract interpretation, de novo. See Peach State Roofing Inc. v. 2224 S. Trail Corp., 3 So.3d 442, 445 (Fla. 2d DCA 2009) (citing Leopold v. Kimball Hill Homes Fla., Inc., 842 So.2d 133, 136 (Fla. 2d DCA 2003)); Amica Mut. Ins. Co. v. Drummond, 970 So.2d 456, 459 (Fla. 2d DCA 2007).

II. The Limitation of Liability Provision

In determining that Witt was personally hable for professional negligence but was outside of the protection of the limitation of liability clause, the trial judge concluded:

This damage limitation is not applicable to Witt’s liability for malpractice. I find it is not applicable both because he was not a party to the agreements and, therefore, not entitled to the benefit of any such limitation, and because [Moransais v. Heathman, 744 So.2d 973 (Fla.1999) ] ... suggests that, “it is questionable whether a professional, such as a lawyer, could legally or ethically limit a client’s remedies by contract in the same way that a manufacturer could do with a purchaser in a purely commercial setting.” Moransais, at p. 983.

Florida law recognizes a cause of action against an individual professional geologist for professional negligence, irrespective of whether the geologist practices through a corporation. More specifically, section 492.111, Florida Statutes (2005), provides in pertinent part, as follows:

The fact that a licensed professional geologist practices through a corporation or partnership shall not relieve the registrant from personal liability for negligence, misconduct, or wrongful acts committed by her or him. Partnership and all partners shall be jointly and severally liable for the negligence, misconduct, or wrongful acts committed by their agents, employees, or partners while acting in a professional capacity. Any officer, agent, or employee of a corporation shall be personally liable and accountable only for negligent acts, wrongful acts, or misconduct committed by her or him or committed by any person under her or his direct supervision and control, while rendering professional services on behalf of the corporation. ... The corporation shall be liable up to the full value of its property for any negligent acts, wrongful acts, or misconduct committed by any of its officers, agents, or employees while they are engaged on behalf of the corporation in the rendering of professional services.

§ 492.111(4), Fla. Stat. (emphasis added).

Witt argues that although he may be liable for professional negligence, any such liability is capped by the limitation of liability provisions present in the GMWA Agreements. We disagree. Even assuming, for argument’s sake, that Witt, in his individual capacity, was covered by the limitation of liability provisions, such a limitation would be unenforceable as a matter of law. Section 492.111(4), Florida Statutes; see Moransais, 744 So.2d 978. While there are no Florida cases which specifically address whether such a limitation provision extends to an individual professional, the Florida Supreme Court’s decision in Moransais is instructive.

In Moransais, the Florida Supreme Court considered the question of whether the economic loss doctrine barred a negligence action to recover purely economic loss in a case where the defendant was neither a manufacturer nor distributor of a product and there was no privity of contract. Moransais, 744 So.2d 973. Moransais involved a dispute between a home buyer and the engineering firm hired to perform an inspection of the home prior to purchase. The contract between the engineering firm and the buyer contained a provision limiting the firm’s liability to $50,000.00. The engineering firm prepared a report for the buyer but failed to disclose defects, later discovered by the buyer, which rendered the home uninhabitable. Id. at 974-75. The buyer sued the engineering firm, and the two individual engineers that actually performed the inspection and prepared the report, for professional negligence. Id. The appellate court affirmed the dismissal of the buyer’s counts against the individual engineers, but the Florida Supreme Court reversed and held that:

[T]he economic loss rule does not bar a cause of action against a professional for his or her negligence even though the damages are purely economic in nature and the aggrieved party has entered into a contract with the professional’s employer. We also hold that Florida recognizes a common law cause of action against professionals based on their acts of negligence despite the lack of a direct contract between the professional and the aggrieved party.

Id. at 983-84.

Although not specifically addressing whether an individual professional is insulated by a limitation of liability provision, the Florida Supreme Court’s analysis of the economic loss rule in the context of a claim of professional negligence highlights the extra-contractual nature of such a claim. The Florida Supreme Court has expressly limited the applicability of the economic loss rule to two different circumstances:

The first is when the parties are in contractual privity and one party seeks to recover damages in tort for matters arising from the contract. The second is when there is a defect in a product that causes damage to the product but causes no personal injury or damage to other property.

Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So.2d 532, 586 (Fla.2004) (emphasis added). See also Cessna Aircraft Co. v. Avior Techs., Inc., 990 So.2d 532, 537 (Fla. 3d DCA 2008); Biscayne Inv. Group, Ltd. v. Guarantee Mgmt. Servs., Inc., 903 So.2d 251, 255-56 (Fla. 3d DCA 2005).

This “prohibition against tort actions to recover solely economic damages for those in contractual privity is designed to prevent parties to a contract from circumventing the allocation of losses set forth in the contract by bringing an action for economic loss in tort.” Indem. Ins. Co., 891 So.2d at 536. Moreover, when discussing the exemptions to the economic loss rule, the Florida Supreme Court, citing Moransais as an example, stated that “[ajnother situation involves cases such as those alleging neglect in providing professional services, in which this Court has determined that public policy dictates that liability not be limited to the terms of the contract.” Indem. Ins. Co., 891 So.2d at 537. In Moransais, the Florida Supreme Court tacitly acknowledged that an extra-contractual remedy against a negligent professional is necessary because contractual remedies in such a situation may be inadequate. Moransais, 744 So.2d at 983 (“While the parties to a contract to provide a product may be able to protect themselves through contractual remedies, we do not believe the same may be necessarily true when professional services are sought and provided”). By allowing a professional negligence claim against an individual on common law and statutory grounds, and finding that the doctrine designed to prevent “parties to a contract from circumventing the allocation of losses set forth in the contract” does not preclude such a claim, the Florida Supreme Court implicitly acknowledged that claims of professional negligence operate outside of the contract.

Under the facts of this case, a cause of action in negligence exists irrespective, and essentially, independent of a professional services agreement, as evidenced by section 492.111(4) and Moransais, and, therefore, we find that the limitation of liability provision was, as a matter of law, invalid and unenforceable as to Witt.

III. ITT as a Fabre Defendant

Witt argues that the trial resolution judge failed to properly conduct a Fabre allocation of fault as to ITT. Section 768.81, Florida Statutes (2005), provides in pertinent part, that “[i]n order to allocate any or all fault to a nonparty and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiffs injuries.” § 768.81(3)(e), Fla. Stat. (2005). Prior to trial, Witt amended its affirmative defenses to allege contribution by ITT pursuant to section 768.81. However, there were no findings of fact or conclusions of law by the trial resolution judge that Witt proved either ITT’s fault at trial or the propriety of allocation of fault against ITT. Furthermore, based upon the record, it appears that the allocation of fault was not requested by Witt until after the final judgment was rendered. As such, we find that the trial resolution judge did not err by not making a Fabre allocation against ITT. See Nash v. Wells Fargo Guard Servs., Inc., 678 So.2d 1262, 1263-64 (Fla.1996).

IV. The Counts of Fraud in the Inducement and Violation of FDUTPA Against ITT

The trial resolution judge made no specific findings of conduct rising to the level of fraud or deceptive trade practices by ITT. In order to show fraud in the inducement by ITT, La Gorce would necessarily have had to prove that ITT 1) misrepresented a material fact, 2) knew or should have known of the falsity of the statement, 3) intended that the misrepresentation would induce La Gorce to rely and act on it and 4) that La Gorce suffered injury in justifiable reliance on the misrepresentation. Biscayne Invs. Group, 903 So.2d 251. Whether a party has made intentional fraudulent misrepresentations is a question of fact. See D & M Jupiter, Inc. v. Friedopfer, 853 So.2d 485 (Fla. 4th DCA 2003); Jenne v. Broward Serv. Ctr., Inc., 717 So.2d 585, 586 (Fla. 4th DCA 1998). Once La Gorce presented evidence as to the elements of fraud in the inducement, it was within the fact finder’s province to determine whether fraud existed. See Lou Bachrodt Chevrolet, Inc. v. Savage, 570 So.2d 306, 308 (Fla. 4th DCA 1990). The trial resolution judge found that ITT did not make certain misrepresentations of fact alleged by La Gorce, and, regardless, reliance on any such misrepresentations would not have been justified. Although these findings appear under the title “Conclusions of Law,” the characteristic of a factual finding is not altered by the mere labeling as a conclusion of law. See Kinney v. Dep’t of State, Div. of Licensing, 501 So.2d 129, 132 (Fla. 5th DCA 1987).

Whether conduct constitutes an unfair or deceptive trade practice is also a question for the fact finder. See Suris v. Gilmore Liquidating, Inc., 651 So.2d 1282 (Fla. 3d DCA 1995) (“[Plaintiff] alleged sufficient misrepresentation and deceptive non-disclosure on [defendant’s] part to, at the very least, create a jury question concerning the deceptive or misleading nature of [defendant’s] acts under the FDUTPA.”); Deltona Corp. v. Jannotti, 392 So.2d 976, 978 (Fla. 1st DCA 1981) (Finding that on the facts adduced, “the jury was capable of determining whether [defendant] committed unfair trade practices, within the meaning of the statute, based on the instruction” which tracked the language of the statute on unfair and deceptive trade practices.); see also Urling v. Helms Exterminators, Inc., 468 So.2d 451, 453-54 (Fla. 1st DCA 1985) (“[A]ecumulation of the ... evidence creates a jury question as to the nature of the act under [FDUTPA].”). Although categorizing its findings under the title “Conclusions of Law,” the trial resolution judge found that a review of the evidence yielded no support to the assertion that ‘Witt, GMWA, and ITT were sufficiently deceptive or unfair or ... misled La Gorce under the circumstances of this case.” Moreover, in assessing the evidence presented, the trial judge concluded that although “[t]he trial evidence supports the conclusion that although [ITT] designed a system which did not perform as promised, they [sic] do not rise to the level of unfair or deceptive practices against a consumer acting reasonably under the circumstances.” Pursuant to section 44.104(11), Florida Statutes, we are bound by the factual findings of the trial resolution judge. Absent any findings clearly indicating fraudulent conduct by ITT which induced La Gorce to enter into the ITT Agreement, or any findings of conduct rising to the level of unfair and deceptive trade practices, we affirm the trial judge’s conclusions.

Based on the foregoing, we affirm the final judgment.

Affirmed.

      . La Gorce Country Club, Inc. also filed a motion for rehearing, which we deny.

      . Waterlink Technologies, Inc., was the entity that originally entered into a design-build contract with La Gorce. Waterlink was bought by ITT during the course of the project. For ease of reference, Waterlink is referred to as "ITT” throughout this opinion, as ITT is the named party in La Gorce's appeal.

      . See Fabre v. Marin, 623 So.2d 1182, 1185 (Fla.1993).

      . Sections 501.201-.213, Florida Statutes (2005).

      . We note, as did the trial resolution judge, that in Florida Power & Light v. Mid-Valley, Inc., 763 F.2d 1316 (11th Cir.1985), the Eleventh Circuit Court of Appeals extended a limitation of liability/exculpatory provision to an individual engineer. However, at the time of the Florida Power decision, there was no Florida decision addressing the statutory or common law negligence action against an individual professional. Moransais, which addressed such issues, was decided by the Florida Supreme Court fourteen years after Florida Power.

      . The Florida Supreme Court opinion does not specify that the limitation of liability provision was present in the agreement, but this fact appears in the original opinion of the Second District. See Moransais v. Heathman, 702 So.2d 601, 602 (Fla. 2d DCA 1997).

      . Moreover, there were no findings of fact that ITT intended that any misrepresentations it made would induce La Gorce’s reliance.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Carson DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1297.
    District Court of Appeal of Florida, Second District.
    June 11, 2010.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Carson Davis appeals the order revoking his probation and the resulting sentence. We affirm the order revoking probation without discussion. The sentence imposed upon the revocation of probation was a probationary split sentence of 45.9 months’ imprisonment followed by 16 months’ probation. Mr. Davis was convicted of aggravated assault, a third-degree felony. See § 784.021, Fla. Stat. (2007). His maximum lawful sentence could not exceed 60 months. See §§ 775.082(3)(d), 948.06(3), Fla. Stat. (2007). The State concedes that the combined sentence exceeds the lawful maximum, but the parties disagree on the proper calculation of credit for the period of probation that has already been served. Accordingly, we reverse the sentence and remand this case to the trial court to impose a term of probation following the 45.9-month term of imprisonment that does not exceed the lawful maximum sentence.

Affirmed in part, reversed in part, and remanded.

ALTENBERND, WHATLEY, and ' WALLACE, JJ., Concur.


author:
GUIDRY, Justice.
     JOHNSON, Justice, KNOLL, Justice, WEIMER, J.,

text:
    STATE of Louisiana v. Tracey YOUNG.
    No. 2009-KK-1177.
    Supreme Court of Louisiana.
    April 5, 2010.
    Rehearing Denied May 7, 2010.
    James D. Caldwell, Atty. Gen., Hillar Clement Moore, III, Dist. Atty., Aaron D. Brooks, Dylan Christopher Alge, Asst. Dist. Attys., for Applicant.
    Indigent Defender Board, Mark David Plaisance, Mark Vincent Marinoff, Michael Anthony Mitchell, Margaret Evelyn Lagat-tuta, for Respondent.
   GUIDRY, Justice.

liThe instant criminal proceeding involves the admissibility of expert testimony regarding the reliability of eyewitness identification. An East Baton Rouge grand jury indicted the defendant, Tracey Young, for first degree murder pursuant to Louisiana Revised Statute 14:30. After unsuccessful efforts to suppress eyewitness identifications of the defendant as the gunman, the defense gave notice of its intent to introduce expert testimony at trial on factors that might affect the reliability of the identifications. Following a hearing, the district court ruled the defendant’s proffered expert in the field of eyewitness identification would be permitted to testify at trial in the event the State of Louisiana (hereafter, the “State”) presented the identifications. The State sought review in the court of appeal, which found no error in the district court’s ruling. We granted certiorari in this matter to address the correctness of the district court’s ruling.

Upon review, we find the district court erred in allowing the introduction of the testimony of the defendant’s expert. The proposed testimony on the general factors contributing to a misidentification does not satisfy the standard for admission of |2expert testimony articulated under Louisiana Code of Evidence article 702 because the testimony will not aid the jury in its deliberations and, instead, is inclined to be more prejudicial than probative in value. Therefore, for the reasons that follow, we vacate the district court’s ruling granting the admissibility of the testimony of the defendant’s proposed expert on eyewitness identification and remand the case to the district court for further proceedings.

FACTS

On September 8, 2006, East Baton Rouge Parish detectives responded to the late night shooting of two persons in a restaurant parking lot. Upon their arrival, the male victim, Aaron Arnold, was unresponsive with gunshot wounds to his upper body. He never regained consciousness and ultimately died from his injuries. The female victim, Dionne Grayson, was lying on the ground with gunshot wounds to her legs. She provided statements to detectives at the scene and hours after her admission to the hospital. Ms. Grayson informed detectives that, after leaving work, she and Mr. Arnold were in the process of putting gasoline in her vehicle when a white automobile occupied by two men pulled alongside them. She stated a black male brandishing a semiautomatic handgun exited the passenger front seat and demanded their wallets. Ms. Grayson claimed the individual shot them before they could fully comply with his request. She gave a description of the gunman’s physical features.

Nancy Segura witnessed the attempted robbery and shootings. She was sitting in a vehicle in close proximity to Ms. Gray-son’s car, while waiting for a friend to leave work. She was not noticed by the assailants. Additionally, there were several witnesses located at a nearby coffee shop who observed the driver and the white vehicle used in the commission of the crime both prior to and after the shootings. Detectives obtained statements from the witnesses.

1 «¡During the course of the police investigation, a confidential informant provided detectives with information regarding the involvement of Sanchez Brumfield, the getaway driver and the defendant’s cousin. This led to information from Mr. Brum-field linking the defendant and his vehicle to the crime. Ms. Segura identified the defendant from a photographic lineup as the individual who shot Mr. Arnold and Ms. Grayson. Detectives ran the defendant’s name in their computer files and learned that a white vehicle similar to the model described as being involved in the crime was registered to the defendant’s home address. The defendant was later arrested. Near the time of the arrest, Ms. Grayson was presented with a photographic lineup and identified the defendant as the gunman. The defendant denies any involvement in the crime.

PROCEDURAL HISTORY

A grand jury indicted the defendant for first degree murder and attempted first degree murder. The State gave notice of its intent to seek the death penalty. Thereafter, it severed the charges and announced that it would proceed solely on the charge of first degree murder, although it intended to introduce evidence of the attempted first degree murder of Ms. Grayson as res gestae.

Defense Efforts to Suppress and Exclude Identifications

The defense moved to suppress the identifications made by Ms. Segura and Ms. Grayson alleging the circumstances under which they were made were unclear. The court postponed consideration of the suppression of Ms. Segura’s identification until |4she returned to the United States to testify at the defendant’s trial. Ms. Segu-ra is a Mexican national, who was illegally in the United States at the time of the crime. Sometime after the shootings, Ms. Segura returned to live in Mexico. At the suppression hearing, the State asserted, as it has throughout the entirety of the criminal proceedings, that it was working with the federal government to arrange for Ms. Segura’s temporary return to the United States to allow her to testify at the trial.

Subsequently, the defense filed a motion in limine to exclude Ms. Segura’s statements and identification of the defendant made in connection with Mr. Brumfield’s trial. Based on the State’s assertion that it was “feverishly” still attempting to obtain Ms. Segura’s presence at the defendant’s trial, the court excluded her hearsay statements, but not her testimony in the event of her appearance at trial.

The district court then proceeded with the hearing on the motion to suppress Ms. Grayson’s identification. She testified that she identified the defendant from a photographic lineup conducted by police at her home two weeks after the shootings. Regarding the lineup procedure, Ms. Gray-son’s testimony on direct examination provided, in part:

Ms. Grayson: Basically, they gave me the lineup and, you know, said for me to, you know, have some time. Look at it. And I really didn’t need that much time. I — I identified the guy right away.
Prosecutor: Okay. How long do you believe it took you in order to pick out the individual who shot Aaron Arnold and yourself?
Ms. Grayson: Not even a minute.
Prosecutor: Okay.
Ms. Grayson: Just a couple of seconds.

On redirect, Ms. Grayson was shown the photograph used in the lineup and asked again how long it took her to select the defendant as the gunman. She responded, ls“[b]asically X looked at this and I picked it. I mean it — it was like five seconds. I mean it just didn’t take that long at all.”

On cross-examination, Ms. Grayson testified that days after her release from the hospital she was shown one or two photographic lineups prior to the one where she identified the defendant as the gunman. As to the prior lineups, Ms. Grayson testified that the detectives, as they did for the lineup where she identified the defendant, advised her that the assailant may not have been in the lineup. She contended that she was unable to “pinpoint the person” in the earlier lineups. In fact, the defendant was not depicted in these earlier photographic lineups. Ms. Grayson stated that she was under the influence of pain medication for the earlier lineups, but confirmed that she was not taking pain medication at the time she identified the defendant. Moreover, Ms. Grayson testified that she had not seen any suspects in news coverage before she identified the defendant.

Following the testimony of the officer that administered the final photographic lineup to Ms. Grayson, the district court denied the motion to suppress her identification because it found no evidence that the procedure was impermissibly suggestive.

Defense Efforts to Introduce Expert Eyewitness Identification Testimony

Subsequently, the defense filed notice of its intent to introduce expert testimony at trial on factors that might affect the reliability of the State’s eyewitness identifications. It conceded Louisiana courts have been cautious in admitting expert testimony regarding the reliability of eyewitness identifications for fear of improperly influencing and invading the province of the jury, citing State v. Stucke, 419 So.2d 939 (La.1982). However, it urged that scientific advances in the study of eyewitness | identifications since Stucke indicates the probative value of the admission of expert testimony on the subject, when properly admitted, outweighs any prejudicial effect on the jury’s decision-making process. The defense anticipated the State would ask the district court to perform its function as gatekeeper to the admissibility of expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), which this Court adopted in State v. Foret, 628 So.2d 1116, 1121 (La.1993), and requested a hearing to address the proposed testimony. The State opposed the hearing, citing jurisprudence from this Court disallowing expert testimony on the reliability of eyewitness testimony.

Over the State’s objection, the district court proceeded with the hearing. The defendant’s proposed expert, Dr. Roy S. Malpass, Ph.D., a Texas psychology professor, testified regarding his credentials and education. He summarized his publications, professional affiliations, past and present research in facial recognition and eyewitness identification, and prior acceptance in other jurisdictions as an expert in the psychology of eyewitness identifications. Following cross-examination, the State conceded the witness was an expert in the field of psychology, but urged that the psychology of eyewitness identification is not a discipline recognized in the scientific community. The court directed its own questions to Dr. Malpass. Subsequently, the court accepted the witness as an expert in the science of psychology with a special emphasis in the field of eyewitness identification.

Thereafter, Dr. Malpass testified that he had reviewed the police reports and found that the case presents issues of cross-race identification, gun focus, the effects of stress, estimates of confidence, and the impact of identification protocol on the outcome. He testified in general about these factors based on his research. Following the parties’ submission of written argument on the issue of the admissibility of Dr. 17Malpass’ testimony, the district court ruled that the defense’s expert would be permitted to testify at trial. Relying on its gatekeeping function articulated in Daubert and Foret, the court stated that the proposed testimony would be relevant in the event the State utilized eyewitness identifications at trial.

The State sought writs from the court of appeal contending the district court abused its discretion in finding that the proposed expert testimony would be relevant and not confusing to the jury. The court of appeal denied the State’s writ application with one dissent. The dissenting member of the panel would have granted the writ to reverse the district court. He assigned the following reasons:

A witness qualified as an expert by knowledge, skill, experience, training, or education may testify if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. La.Code Crim. P. art. 702. The requirement that an expert’s testimony pertain to “scientific knowledge” establishes a standard of evidentiary reliability. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469 (1993). Herein, defendant failed to show that the proposed expert testimony on eyewitness identification met the standard of evidentiary reliability. Moreover, the prejudicial effect of the proposed testimony outweighs its probative value because of the substantial risk that the expert witness will have a greater influence on the jury than other evidence presented at trial. Such evidence presents the danger of invading the province of the jury and usurping its function. See State v. Higgins, 2003-1980 (La.4/1/05), 898 So.2d 1219, 1240; State v. Stucke, 419 So.2d 939 (La.1982).

State v. Young, unpub., 09-0154 (La.App. 1 Cir. 5/14/09) (Kuhn, J., dissenting).

This Court granted the State’s application for certiorari to review the correctness of the district court’s action regarding the admissibility of the proposed expert’s testimony. State v. Young, 09-1177 (La.9/18/09), 17 So.3d 383.

LAW

A determination regarding the competency of a witness is a question of fact. Cheairs v. State ex rel. Dept. of Transp. & Dev., 03-0680, p. 5 (La.12/3/03), 861 So.2d 536, 541. It is well settled that a trial judge is vested with wide discretion in determining questions of fact. Therefore, rulings on the qualifications of an expert witness will not be disturbed on appeal absent manifest error. Id.

Louisiana Code of Evidence article 702 dictates the admissibility of expert testimony. It provides, “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” State v. Higgins, 03-1980, p. 33 (La.4/1/05), 898 So.2d 1219, 1239. Notably, this Court has placed limitations on this codal provision in that, “[e]xpert testimony, while not limited to matters of science, art or skill, cannot invade the field of common knowledge, experience and education of men.” Stucke, 419 So.2d at 945.

In Foret, this Court adopted the guidelines set forth by the United States Supreme Court in Daubert for determining the reliability of expert scientific testimony under Louisiana Code of Evidence article 702. Foret, 628 So.2d at 1121. Daubert set a new standard to assist trial courts in evaluating the admissibility of expert testimony. It requires district courts to perform a “gatekeeping” function to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Id., 509 U.S. at 589, 118 S.Ct. at 2795.

In addressing the issue of reliability, Daubert articulated the following nonexclusive factors to be considered by district courts in determining the admissibility of expert testimony:

(1) The “testability” of the scientific theory or technique;
(2) Whether the theory or technique has been subjected to peer review and publication;
(3) The known or potential rate of error; and
(4) Whether the methodology is generally accepted in the scientific community.

Cheairs, 03-0680 at 7, 861 So.2d at 541.

The United States Supreme Court later held in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 1174, 143 L.Ed.2d 238 (1999), that the Daubert analysis is to be applied to determine the admissibility of all expert testimony, not just scientific testimony. Cheairs, 03-0680 at 7, 861 So.2d at 541.

The issue of the admissibility of expert testimony on eyewitness identification is not a res nova issue for this Court. Rather, it is undisputed that the admissibility of expert testimony on eyewitness identification has been uniformly barred by this Court on the occasions the issue has been raised. The earliest decision addressing the subject is Stucke, which was rendered over a decade prior to the Daubert and Foret decisions. In Stucke, a defendant appealed his conviction for aggravated battery contending that the trial court erred in refusing to permit expert psychological testimony regarding the ability of a witness to perceive and recall events pertaining to the shooting at issue. The defendant called as a witness an experimental psychologist to “enlighten the jury as to the quality of the victim’s identification so that the jury would have a standard against which they could make an evaluation of the victim’s identification.” Id., 419 So.2d at 944. In excluding the proffered expert testimony, the district court expressed “grave doubt about the competency of this evidence,” citing concern over the fact the proposed expert’s studies were based on mock scenarios. The court rejected the testimony concluding that the jury did not need the testimony to evaluate the witness’ identification of the defendant and that the jury’s standard in judging such evidence was within their own training and experience. Following a review of cases in other jurisdictions where the issue of the acceptance of expert testimony regarding eyewitness identification had arisen, this Court found no error in the district court’s failure to admit the expert’s testimony:

We conclude that the prejudicial effect of such testimony outweighs its probative value because of the substantial risk that the potential | ^persuasive appearance of the expert witness will have a greater influence on the jury than the other evidence presented during the trial. Such testimony invades the province of the jury and usurps its function.
We therefore conclude that the trial court did not abuse his discretion in failing to allow the expert witness to testify. The testimony sought to be elicited from him would not have been an aid to the jury.
Id., 419 So.2d at 945.

In State v. Higgins, 03-1980, pp. 33-35 (La.4/1/05), 898 So.2d 1219, 1239-40, this Court’s second occasion to address the issue of admission of eyewitness identification testimony, we again determined the proposed expert testimony was unnecessary. This decision did not reference Daubert or Foret, although it was decided after the adoption of the new test for the admissibility of expert testimony. Addressing Stucke, this Court stated:

Because of the risk that expert testimony on eyewitness identification “will have a greater influence on the jury than other evidence presented at trial,” and because such evidence presents the danger of “ ‘invad[ing] the field of common knowledge, experience, and education of men [ ]’ ” this Court has held that the prejudicial impact of such evidence would substantially outweigh its probative value. Stucke, 419 So.2d at 945 (quoting 3 Am.Jur.2d, Expert and Opinion Evidence, § 21; 100 A.L.R.2d 1421, 92 A.L.R. 1223).
Higgins, 03-1980 at 33-34, 898 So.2d at 1240.

Applying Stucke to the facts in Higgins, we found no error in the trial court’s exclusion of the evidence on the basis that the expert’s specialized knowledge would impinge on the province of the jury:

While the defendant claims that the particular facts of this case present the rare instance in which the “ ‘specialized knowledge’ of an expert in the form of opinion evidence would assist the jury in deciding the question of identity,” Stucke, 419 So.2d at 951 (Lemmon, J., concurring), with the possible exception of the effect of alcohol on Brown’s ability to process Inthe world around her, the proposed expert testimony likely presented an invasion into a reasonable juror’s common knowledge. See State v. Ammons, 208 Neb. 797, 305 N.W.2d 812, 814 (1981) (the prejudicial effect of a psychologist’s testimony on a witness’s identification outweighs its probative value); see also [State v.] Ford, 608 So.2d [1058] at 1061 [ (La.App. 1st Cir.1992) ] (expert testimony regarding the fallibility of human perception and memory generally is unnecessary to resolve the issues regarding the reliability of an identification); see generally Elizabeth Loftus, Eyewitness Testimony Civil and Criminal (1997). The trial court thus properly excluded this expert testimony, and defendant’s third assignment of error fails to have merit.

Higgins, 03-1980 at 34-35, 898 So.2d at 1240.

See also State v. Bozeman, pp. 4-8 (La.App. 5 Cir. 1/30/07), 951 So.2d 1171, 1173-1176 (appellate court examined Stucke in light of Higgins, ultimately finding no error in excluding proffered expert testimony on eyewitness identifications).

We now apply this codal and case law to the facts.

DISCUSSION

The State argues the district court misapplied the tests articulated under Daubert and Foret. Specifically, it contends the court erred in qualifying Dr. Malpass as an expert in a field before determining whether the discipline itself satisfied the standards for reliability. The State argues that the “field of eyewitness identification psychology” has no known error rate, its findings are insufficiently quantifiable, and its theories are not falsifiable. It contends there has been no new jurisprudence or compelling scientific advances, since this Court’s seminal decision in Stucke, to warrant reconsideration of this Court’s ban on expert testimony regarding the validity of eyewitness identification. The State also contests the district court’s findings as to Dr. Malpass’ qualifications as an expert and the relevancy of his testimony.

Conversely, the defense urges the district court properly performed its gatek-eeping function articulated under Daubert and Foret. It claims emerging social science research in the field of eyewitness identification validates the reliability of the | ^proposed testimony and, as such, warrants this Court revisiting the vitality of Stucke. As evidence of the recognized field of study, the defense relies on the fact several jurisdictions that previously barred the admission of such testimony have changed their position on the issue. It also contends Dr. Malpass is well-qualified to testify as an expert based on his professional background, which includes publicly-funded research and his participation in developing law enforcement guidelines, and his extensive history of testifying as an expert in numerous other court proceedings.

This Court is cognizant of the ongoing legal debate over the admissibility of expert psychological testimony on the validity of eyewitness identification. Generally, criminal defendants suggest jurors are ignorant of the alleged inadequacies of eyewitness testimony. Their proposed remedy is to allow qualified cognitive and memory experts to essentially educate jurors on the factors allegedly outside of the common experience that contribute to unreliability and inaccuracies in eyewitness testimony. These factors would include observations involving significant stress, weapon focus, cross-race identification, identification based on time delays, and psychological phenomena, such as the feedback factor and unconscious transference, among others. See United States v. Langan, 263 F.3d 613, 621 (6th Cir.2001).

Unquestionably, eyewitness identifications can be imperfect. However, upon review, the touted advances in the social sciences regarding the validity of eyewitness identifications do not render obsolete the underlying premise for which such evidence was held to be inadmissible in Stucke. There is still a compelling concern that a 11spotentially persuasive expert testifying as to the generalities of the inaccuracies and unreliability of eyewitness observations, that are already within a juror’s common knowledge and experience, will greatly influence the jury more than the evidence presented at trial. Higgins, 03-1980 at 33-34, 898 So.2d at 1240; Stucke, 419 So.2d at 945. By merely being labeled as a specialist in eyewitness identifications, an expert has the broad ability to mislead a jury through the “education” process into believing a certain factor in an eyewitness identification makes that identification less reliable than it truly is. See United States v. Angleton, 269 F.Supp.2d 868, 873-874 (S.D.Tx.2003); United States v. Lester, 254 F.Supp.2d 602, 608-609 (E.D.Va.2003). Moreover, expert testimony on eyewitness identifications can be more prejudicial than probative because it focuses on the things that produce error without reference to those factors that improve the accuracy of identifications. The expert testimony presumes a misidentification, in the absence of presenting factors which support the validity of the identification. This fosters a disbelief of eyewitnesses by jurors.

This Court has long been reluctant to allow experts to offer opinions on the credibility of another witness for fear of the expert invading what is considered the exclusive province of the jury. Moreover, the concept of promoting battles of experts over whether the testimony of every witness is truthful and reliable is not desirable. These considerations are especially compelling in cases involving eyewitness identifications where any alleged deficiencies could easily be highlighted through effective cross-examination and artfully crafted jury instructions. United States v. Rincon, 28 F.3d 921, 921 (9th Cir.1994); United States v. Harris, 995 F.2d 532, 535 (4th Cir.1993).

With this in mind, we decline to overrule our decision in Stucke barring the admissibility of eyewitness identification testimony. We conclude the district court 114erred in finding the proposed testimony satisfied the standard for admission of expert testimony under Louisiana Code of Evidence article 702. The testimony will not assist the jury in its deliberations.

CONCLUSION

There is no reason for us to disturb our earlier ruling in Stucke barring the admission of the expert testimony at issue. The proposed testimony on the general factors potentially contributing to a misidentification does not satisfy the standard articulated under Louisiana Code of Evidence article 702. While being aware of the vast discretion to be afforded to trial courts in their determinations of the admissibility of expert evidence, we find the district court abused its discretion in allowing Dr. Mal-pass to testify at trial.

DECREE

For the reasons stated herein, the ruling of the district court permitting the admission of the defendant’s proposed expert testimony on the validity of eyewitness identifications is vacated. The case is remanded to the district court for further proceedings.

DISTRICT COURT JUDGMENT VACATED; CASE REMANDED TO THE DISTRICT COURT.

JOHNSON, KNOLL and WEIMER, JJ., concur and assign reasons.

JOHNSON, Justice,

concurs and assigns reasons.

_JjI concur with the majority opinion vacating the district court’s ruling permitting the admission of testimony by defendant’s expert on the validity of eyewitness identification. However, I disagree with the majority’s finding that State v. Stucke, 419 So.2d 939, 945 (La.1982) serves as a complete bar to the admission of expert testimony regarding eyewitness identification. In Stucke, this Court held that the trial court did not abuse its discretion in excluding expert witness regarding the quality of an identification. This Court, in addressing the then res nova issue, reasoned as follows:

[T]he prejudicial effect of such testimony outweighs its probative value because of the substantial risk that the potential persuasive appearance of the expert witness will have a greater influence on the jury than the other evidence presented during the trial. Such testimony invades the province of the jury and usurps its function. State v. Stucke, 419 So.2d at 945.

Other Louisiana courts have relied upon the Stucke decision when denying the admissibility of expert witness testimony on eyewitness identification. Although not legislatively overruled, the Stucke case must be examined in light of the provisions of the Louisiana Code of Evidence regarding expert testimony that followed the Stucke decision, since the Stucke decision was rendered prior to the enactment of the Louisiana Code of Evidence and repeal by Acts 1988, No. 515, § 8 of the provisions in La. R.S. 15:464 et seq., regarding expert testimony.

The trial in the instant case occurred after January 1, 1989, therefore the provisions of the Louisiana Code of Evidence are applicable to the case herein.

La.C.E. art. 403 states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of un-due delay, or waste of time.

La.C.E. art. 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. State v. Ford, 608 So.2d 1058 at 1062, (1st Cir.1992).

Rather than establishing a brightline rule, our jurisprudence has determined that the admissibility of expert witness testimony should be made on a case by case basis. In State v. Chapman, 436 So.2d 451, 453 (La.1983), the trial court allowed expert testimony concerning studies which generally reflected the fallibility of eyewitness identification in certain circumstances. Although the question of admissibility was not an issue on appeal in Chapman, this Court, in a footnote, cited the Stucke decision, and discussed the concurring opinion in Stucke which emphasized the trial court’s discretion in admitting such evidence, in the interest of justice, when the court determines that the proffered evidence would assist the jury in deciding the question of identity.

The United States Supreme Court noted the inherent problems in eyewitness identification testimony decades ago in its first attempt to establish constitutional safeguards governing the admission of eyewitness evidence of identification in | (¡criminal trials. The Court, in a trilogy of cases, stated: “The vagaries of eye-witness identification are well known; the annals of criminal law are rife with instances of mistaken identification....” Although the majority concludes that the expert testimony on eyewitness identification somehow invades the province of the jury, Federal Rules of Evidence have eliminated this rationale, providing that: “Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Fed. R.Evid. 704(a). Additionally, this reasoning has been explicitly rejected by the federal courts.

In the ease at bar, I agree, that based on the facts presented, the majority is correct in vacating the trial court’s ruling admitting the expert testimony because there were multiple eyewitnesses, and ample corroborating evidence to support defendant’s conviction. The fallibility of human perception and memory, in general, is consideration in those cases where the lone witness’ identification is not supported by other testimony or evidence. It is my view, that expert witness testimony regarding the reliability of eyewitness identification is not per se inadmissible in every case.

KNOLL, Justice,

additionally concurring.

^ The Daubert/Foret standard of eviden-tiary reliability requires an expert’s opinion be grounded in methods and procedures of science, rather than subjective belief or unsupported speculation. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469 (1993); State v. Foret, 628 So.2d 1116 (La.1993). In light of the record evidence demonstrating the “field of eyewitness identification psychology” has no known error rate, no reliable testing format, insufficiently quantifiable findings, non-falsifiable theories, and lacks a methodology generally accepted in the scientific community, I find the State has more than convincingly demonstrated an expert’s testimony regarding this “field of eyewitness identification psychology” will never be able to satisfy the applicable standard. Therefore, in my view, the resolution of the issue in this case concerning the admissibility of expert testimony regarding this “junk science” is best resolved by the adoption of a per se/bright-line rule of inadmissibility.

WEIMER, J.,

concurring.

h Because there are facts in this matter which corroborate the eyewitness identification, I concur in the result.

       Kimball, C.J., participated in oral argument but did not participate in the deliberation of this opinion.

      . The driver of the vehicle, Sanchez Brum-field, was convicted and sentenced to death for his participation in the crime. His conviction is currently pending appeal. Mr. Brum-field has stated he will not testify at the defendant's proceedings regarding his statement implicating the defendant as the gunman and the owner of the vehicle used in the commission of the crime. In the instant proceedings, the district court granted defense counsel's motion in limine to bar the State from putting Mr. Brumfield on the witness stand in the event the prosecution anticipated his intention to exercise his Fifth Amendment privilege against self-incrimination and remain silent.

      . Ms. Grayson’s identification of the defendant occurred prior to his arrest being publicized.

      . The defendant sought to call an expert in eyewitness identification to explain to the jury his findings that intoxication greatly increases the likelihood of false identification, that little correlation exists between the confidence expressed by an eyewitness and the actual reliability of that witness' identification, that the chance of misidentification increases with the length of time between incident and identification, and that facts gathered from secondary sources after observing the event in question tend to skew a witness’ perception of that event.

      . The defense cites to post-Stucke decisions from other jurisdictions that have held expert evidence on the general deficiencies of eyewitness identifications to be admissible under some circumstances: Echavarria v. State, 108 Nev. 734, 839 P.2d 589 (1992); United States v. Rincon, 28 F.3d 921 (9th Cir.1994); United States v. Smith, 156 F.3d 1046 (10th Cir.1998).

      . "Feedback factor” involves the effect of post-event information on the memory of the event, including discussions among witnesses that may unconsciously reinforce mistaken identifications. "Unconscious transference” allows a person to remember a face but not the circumstances under which the person saw the face.

      . Even those jurisdictions which allow this type of expert testimony have held that it is not admissible when there is substantial evidence of corroboration. See, e.g., U.S. v. Martin, 391 F.3d 949 (8th Cir.2004); U.S. v. Crotteau, 218 F.3d 826 (7th Cir.2000); Manley v. State, 284 Ga. 840, 672 S.E.2d 654 (2009); People v. Goodwillie, 147 Cal.App.4th 695, 54 Cal.Rptr.3d 601 (2007); People v. Jones, 30 Cal.4th 1084, 1112, 135 Cal.Rptr.2d 370, 70 P.3d 359 (2003); People v. McDonald, 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709 (1984).

      . See State v. Gurley, 565 So.2d 1055, 1057-1058 (La.App. 4th Cir.1990), writ denied, 575 So.2d 386 (La.1991); State v. Coleman, 486 So.2d 995, 1000 (La.App. 2d Cir.), writ denied, 493 So.2d 634 (La.1986).

      . Nathan R. Sobel, Eye-witness Identification; Legal and Practical Problems 1 (2d ed.1981).

      . Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

      . United States v. Wade, 388 U.S. at 228, 87 S.Ct. 1926 (footnotes omitted).

      . See United States v. Rogers, 769 F.2d 1418, 1425 (9th Cir.1985), and the U.S. Supreme Court's rejection of a similar argument in Barefoot v. Estelle, 463 U.S. 880, 899, 103 S.Ct. 3383, 3397-98, 77 L.Ed.2d 1090 (1983).


author:
WEIMER, Justice.
     JOHNSON, Justice, KNOLL, J., GUIDRY, Justice,

text:
    CHERAMIE SERVICES, INC. and Attecia Cheramie v. SHELL DEEPWATER PRODUCTION, INC. and Filco International, Inc.
    No. 2009-C-1633.
    Supreme Court of Louisiana.
    April 23, 2010.

      Johnson Gray McNamara, LLC, Mary Susan Johnson, Dhadwick James Moliere, Jill Thompson Losch, Mandeville, for Applicant.
    Daniel G. Abel, New Orleans, Vallerie Lynn Oxner, Metairie, for Respondent.
   WEIMER, Justice.

I,The threshold legal issue in this case is whether persons who are neither business competitors nor consumers can bring an action for damages pursuant to the Unfair Trade Practices and Consumer Protection Law, LSA-R.S. 51:1401, et seq. (LUTPA). Finding no such limiting language in the statute, we hold the dismissal of plaintiffs’ LUTPA claim against Shell Deepwater Production, Inc. (Shell) by the district court on the basis of this procedural requirement was error. Nevertheless, we find the appellate court’s reversal of summary judgment dismissing plaintiffs’ LUTPA claim was inappropriate because plaintiffs failed to produce evidence of a material factual dispute regarding Shell’s alleged use of an “unfair or deceptive method, act or practice” in its dealings with plaintiffs.

Thus, we reverse the appellate court judgment and render judgment dismissing claimant’s claims.

¡¡.FACTS AND PROCEDURAL BACKGROUND

Plaintiffs, Cheramie Services, Inc. (Cheramie Services) and its sole owner, Attecia Cheramie, filed suit in 1999 against Shell and Filco International, Inc. (Filco) asserting several causes of action for damages allegedly sustained due to wrongful acts by and between the two defendants. The events leading to the filing of the petition are as follows.

Cheramie Services was one of several businesses that provided services to the oil industry, especially support personnel for offshore activities; these businesses bid on jobs for specific platforms. After submitting a successful bid to Shell, Cheramie Services first supplied clerks to Shell’s “Auger” tension-leg platform (Auger TLP) in the Gulf of Mexico in 1996. In August 1997, Cheramie Services entered into a written contract with Shell “to furnish all tools, equipment, materials, labor and supervision in order to provide the furnishing of clerical support for buyer.” Thereafter, Cheramie Services placed two clerks on the Auger TLP, Kenneth K. Ward and Kevin W. Kays, who each worked fourteen-day shifts. They alternated their shifts so that one of them was always on the platform. The procedure was that Shell paid Cheramie Services, and Chera-mie Services in turn paid Ward and Kays $13.00 per hour, with no benefits for vacation, retirement, or insurance. Cheramie Services made no deductions for income tax or social security taxes.

Approximately six months later, Shell stopped paying Cheramie Services and began paying Filco for services provided by Ward and Kays. In support of a motion for summary judgment filed by Shell, Ward and Kays signed affidavits which attested |sto the fact that they voluntarily quit Cheramie Services and went to work for its competitor, Filco. The plaintiffs allege in their petition that Shell’s actions constituted a wrongful termination of the contract and a breach of contract in January of 1998.

Although plaintiffs also allege collusion on the part of Shell and Filco regarding a Cheramie Services worker by the name of Mary Perez, Shell introduced the deposition testimony of Ms. Cheramie that is at odds with this allegation. Shortly after Ward and Kays switched parent companies (late 1997 to early 1998), according to Ms. Cheramie’s testimony, she called Shell which had a need for a logistics coordinator aboard the Ursa TLP. Ms. Cheramie met with a Shell representative and submitted a bid to provide workers for the Ursa TLP and provided the resume of Mary Perez, who had worked for Chera-mie on a recent project known as the “Ram Powell” job, which had been completed. Thereafter, Perez was sent by Ms. Cheramie to One Shell Square in New Orleans to be interviewed for the position by Shell employees. Perez attested she was told that if she wanted the position she would have to work for Filco, apparently because Filco, not Cheramie Services, had submitted the successful bid. Because Perez needed the job, she chose to leave the plaintiffs’ employ and work for Filco.

Shell answered the suit timely, but Filco failed to file an answer. The plaintiffs obtained a default which was confirmed by judgment on September 5, 2000. On May 2, 2001, Filco paid plaintiffs a settlement sum for dismissal of their suit against Fil-co.

In 2007, after the trial court granted Shell’s motion for summary judgment and dismissed plaintiffs’ claim in its entirety, plaintiffs appealed. They specifically argued the trial court erred in granting the motion for summary judgment finding that there was no breach of contract and that LUTPA did not apply.

|4The court of appeal affirmed the trial court’s finding that there was no breach of contract, and plaintiffs have not challenged that holding. Thus, the breach of contract issue is not before this court.

However, the court of appeal reinstated plaintiffs’ LUTPA claim. Without addressing whether the language of LUTPA limits the availability of a cause of action to consumers and business competitors, the court cited jurisprudence which allows a plaintiff to claim damages when one party conspires with a business competitor to commit unfair trade practices. The court held that the plaintiffs in the instant case made a prima facie showing that Shell conspired with Filco to injure plaintiffs, which brings their action within the ambit of LUTPA. One member of the panel concurred, noting that the range of prohibited practices under LUTPA is narrow, but concluding that Shell’s conduct was “so unscrupulous and egregious” that reversal of the summary judgment was appropriate. Cheramie Services, Inc. v. Shell Deepwater Production, Inc., 07-1231 (La.App. 4 Cir. 3/4/09), 14 So.3d 1, writ granted, ((La.11/20/09), 25 So.3d 809).

DISCUSSION

Standing to Assert a LUTPA Claim:

As previously mentioned, the threshold legal issue in this case is whether plaintiffs have standing to bring a claim for damages pursuant to LUTPA. Noting that plaintiffs are neither business competitors of Shell nor consumers, facts that plaintiffs concede, Shell has urged a lack of standing. The issue is one of first | r,impression with this court. Although we have denied writs as early as 1982 in cases that have rendered contradictory holdings, we have never addressed the conflict.

At issue is an evaluation of LSA-R.S. 51:1401, et seq., Louisiana’s Unfair Trade Practices and Consumer Protection Law enacted in 1972 as part of Title 51 entitled “Trade and Commerce.” We begin as we must with the words of the statute. Grant v. Grace, 03-2021, p. 4 (La.4/14/04), 870 So.2d 1011, 1014.

The legislation specifies that “[ujnfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” LSA-R.S. 51:1405(A).

Entitled “Private actions,” LSA-R.S. 51:1409 provides, in pertinent part:

A. Any person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act, or practice declared unlawful by R.S. 51:1405, may bring an action individually but not in a representative capacity to recover actual damages. If the court finds the unfair or deceptive method, act, or practice was knowingly used, after being put on notice by the attorney general, the court shall award three times the actual damages sustained. In the event that damages are awarded under this Section, the court shall award to the person bringing such action reasonable attorney fees and costs. Upon a finding by the court that an action under this Section was groundless and brought in bad faith or for purposes of harassment, the court may award to the defendant reasonable attorney fees and costs.

l6The definition portion of LUTPA is found in LSA-R.S. 51:1402 which provides, in pertinent part:

(1) “Consumer” means any person who uses, purchases, or leases goods or services.
(3) “Consumer transaction” means any transaction involving trade or commerce to a natural person, the subject of which transaction is primarily intended for personal, family, or household use.
(8) “Person” means a natural person, corporation, trust, partnership, incorporated or unincorporated association, and any other legal entity.
(9) “Trade” or “commerce” means the advertising, offering for sale, sale, or distribution of any services and any property, corporeal or incorporeal, immovable or movable, and any other article, commodity, or thing of value wherever situated, and includes any trade or commerce directly or indirectly affecting the people of the state.

An examination of these sections of LUTPA reveals that the legislation contains no language that would clearly and expressly bar a “person” (such as the individual and the corporation that are the plaintiffs herein) from bringing an action for unfair trade practices. To the contrary, LUTPA grants a right of action to any person, natural or juridical, who suffers an ascertainable loss as a result of another person’s use of unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. Although business consumers and competitors are included in the group afforded this private right of action, they are not its exclusive members. As noted in Capitol House Preservation Company, L.L.C. v. Perryman Consultants, Inc., 98-1514, pp. 12-13 (La.App. 1 Cir. 12/10/98), 725 So.2d 523, 530, Louisiana courts have repeatedly held that there is no such limitation in LUTPA.

17An evaluation of the words of this statute leads to the conclusion that, consistent with the definition and usage of the word “person,” there is no such limitation on those who may assert a LUTPA cause of action. Any such limitation that has found its way into the jurisprudence resulted without proper analysis of the statute. See Gil v. Metal Service Corp., 412 So.2d 706, (La.App. 4 Cir.), writ denied, 414 So.2d 379 (La.1982). In Hamilton v. Business Partners, Inc., 938 F.Supp. 370 (E.D.La.1996), the Court discussed contrary holdings in cases, both state and federal, that have held relief under LUT-PA is limited to business competitors and consumers. Despite an acknowledgment in Hamilton that the seminal Louisiana case upon which subsequent jurisprudence relied could well be flawed, the limitation has been perpetuated in both state appellate courts and the federal courts interpreting Louisiana law.

Based on the language of the statute, which does not contain a clear, unequivocal and affirmative expression that the private right of action provided in LSA-R.S. 51:1409(A) extends only to business competitors and consumers, LUTPA does not exclude other persons who assert a “loss of money or ... property ... as a |sresult of the use or employment by another person of an unfair or deceptive method, act, or practice.” Contrary holdings are hereby repudiated, because any limitation must be contained in the language of the statute.

We note the legislature, in enacting LUTPA in 1972, has provided certain limiting features. Although a plaintiff who obtains a judgment for damages pursuant to LSA-R.S. 51:1409(A) is entitled to an award for attorney fees and costs, LSA-R.S. 51:1409(A) also provides that if the plaintiff is unsuccessful and the court finds that the action “was groundless and brought in bad faith or for purposes of harassment,” the defendant may be awarded attorney fees and costs. Further, the treble damages that a plaintiff may be entitled to are conditioned on a finding by the court of an “unfair or deceptive method, act, or practice [that] was knowingly used, after being put on notice by the attorney general.” LSA-R.S. 51:1409(A); see Faris v. Model’s Guild, 297 So.2d 536 (La.App. 4 Cir.1974), writ denied, 302 So.2d 15 (Plaintiff could not recover treble damages where defendant company was never placed on notice of any act, conduct or practice prohibited by statute or by any rule or regulation made by the State.).

Although LUTPA is available to plaintiffs other than business competitors and consumers, a plaintiffs burden of proving an unfair or deceptive method, act, or practice on the part of a defendant is not lessened by this opinion.

Defendant’s Motion for Summary Judgment:

We turn now to a consideration of defendant’s motion for summary judgment, which was granted by the trial court and reversed by the appellate court.

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to | ¡Judgment as a matter of law.” LSA-C.C.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action,.... The procedure is favored and shall be construed to accomplish these ends.” LSA-C.C.P. art. 966(A)(2). In 1997, the legislature enacted LSA-C.C.P. art. 966(C)(2), which further clarified the burden of proof in summary judgment proceedings, providing:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. [Emphasis supplied.]

This amendment, which closely parallels the language of Rule 56(C) of the Federal Rules of Civil Procedure interpreted in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), first places the burden of producing evidence at the hearing on the motion for summary judgment on the mover (in this case the defendant), who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. At that point, the parties who bear the burden of persuasion at trial (in this case the plaintiffs) must come forth with evidence (affidavits or discovery responses) which demonstrates they will be able to meet the burden at trial. See Racine v. Moon’s Towing, 01-2837, p. 5 (La.5/14/02), 817 So.2d 21, 25, citing 1 Frank L. Maraist & Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 6.8 (1999). Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce |inevidence of a material factual dispute mandates the granting of the motion. Hardy v. Bowie, 98-2821, p. 6 (La.9/8/99), 744 So.2d 606, 610. A fact is “material” when its existence or nonexistence may be essential to plaintiff’s cause of action under the applicable theory of recovery. Smith v. Our Lady of the Lake Hospital Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751; Penalber v. Blount, 550 So.2d 577, 583 (La.1989). Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Id. This court has noted that a “material fact” is a fact, the existence or non-existence of which may be essential to plaintiffs cause of action under the applicable theory of recovery. Kennedy v. Sheriff of East Baton Rouge, 05-1418, p. 26 (La.7/10/06), 935 So.2d 669, 687, citing Champagne v. Ward, 03-3211, p. 5 (La 1/19/05), 893 So.2d 773, 777.

The applicable theory of recovery before this court is provided in LUTPA. Louisiana Revised Statutes § 51:1405(A) prohibits any “unfair or deceptive acts or practices in the conduct of any trade or commerce,” and § 51:1409(A) grants a right of action to “[a]ny person who suffers any ascertainable loss” from a violation of this prohibition. It has been left to the courts to decide, on a case-by-case basis, what conduct falls within the statute’s prohibition. Dufau v. Creole Engineering, Inc., 465 So.2d 752, 758 (La.App. 5 Cir.), writ denied, 468 So.2d 1207 (La.1985) (In order to recover under LUTPA a plaintiff must prove “some element of fraud, misrepresentation, deception, or other unethical conduct” on the part of the defendant.).

The courts have repeatedly held that, under this statute, the plaintiff must show the alleged conduct “offends established public policy and ... is immoral, unethical, oppressive, unscrupulous, or substantially injurious.” Moore v. Goodyear Tire & Rubber Company, 364 So.2d 630, 633 (La.App. 2 Cir.1978) (Applying common meanings to the words of the statute, the court held a debtor had a right of action under LUTPA to recover actual damages for wrongful repossession of movables.); see also Lilawanti Enterprises, Inc. v. Walden Book Company, Inc., 95-2048 p. 6, 670 So.2d 558, 561 (Conclusory allegation by prospective subtenant of unethical, oppressive, unscrupulous or substantially injurious conduct on the part to a landlord were not supported by the record and did not controvert landlord’s affidavits that showed economic reasons for not accepting sublease.); Bolanos v. Madary, 609 So.2d 972, 977 (La.App. 4 Cir.1992), writ denied, 615 So.2d 339 (La.1993) (Defendant’s letters to government agencies did not fall to level of unethical, oppressive, unscrupulous, or substantially injurious practice and thus, did not constitute unfair trade practice.).

As noted in the concurrence in the instant case, Cheramie Services, Inc., 07-1231 at 1, 14 So.3d at 6, the range of prohibited practices under LUTPA is extremely narrow. In Turner v. Purina Mills, Inc., 989 F.2d 1419, 1422 (5th Cir.1993), the court explained:

LUTPA does not prohibit sound business practices, the exercise of permissible business judgment, or appropriate free enterprise transactions. The statute does not forbid a business to do what everyone knows a business must do: make money. Businesses in Louisiana are still free to pursue profit, even at the expense of competitors, so long as the means used are not egregious. Finally, the statute does not provide an alternate remedy for simple breaches of contract. There is a great deal of daylight between a breach of contract claim and the egregious behavior the statute proscribes. [Citations omitted.]

Furthermore, at-will employees are free to exercise their right to change employment, even if they decide to work for a competitor of their former employer. Jones v. Ernst & Ernst, 172 La. 406, 134 So. 375 (1931); see also, Marine Forwarding & Shipping Co. v. Barone, 154 So.2d 528 (La.App. 4 Cir.1963) (The Inspirit of free labor permits every person to better his condition if he can lawfully do so.), cited in “Liability for inducing employee not engaged for definite term to move to competitor,” 24 A.L.R.3d 821, § 3. A corollary to this principle is the general rule denying the liability of competitors who lure away at-will employees, in the absence of a showing that the competitor had an unlawful or improper purpose or used unlawful or improper means. Id.; American Buildings Company v. Pascoe Building Systems, Inc., 260 Ga. 346, 348-349, 392 S.E.2d 860, 863 (1990); Hechler Chevrolet, Inc. v. General Motors Corp., 230 Va. 396, 403, 337 S.E.2d 744, 748 (1985). The courts are concerned not only with the interests of competing employers, but also with the employee’s interests; the interests of the employee in his own mobility and betterment are deemed paramount to the competitive interests of the employers, where neither the employee nor his new employer has committed any illegal act accompanying the employment change. Diodes, Inc. v. Franzen, 260 Cal.App.2d 244, 255, 67 Cal.Rptr. 19 (1968). Therefore, only egregious actions involving elements of fraud, misrepresentation, deception, or other unethical conduct will be sanctioned based on LUTPA.

Plaintiffs’ petition states the following allegations pertinent to the issue before this court, i.e., claimed violations of LUT-PA:

Commencing ... about January 20, 1998, the defendants, Shell and Filco, conceived and implemented a plan to enhance their respective businesses and competition positions over the petitioners by misappropriating, stealing and luring the petitioners’ employees away from the petitioners....
The actions of both the defendants, Shell and Filco, were taken for the purpose of soliciting and diverting, to their own benefit, the employees of Cheramie Services, Inc. and to deprive Cheramie Services, Inc. of its business, all in violation of the Louisiana Unfair Trade Practices Act, Louisiana Revised Statutes 51:1401 et seq.

|1sIn the instant case, we find Shell pointed out to the court that there was an absence of factual support for an essential element of plaintiffs cause of action under LUTPA, because plaintiffs were unable to show any collusion between Shell and Filco to “steal” plaintiffs’ employees (Ward, Kays, and Perez) as plaintiffs alleged. In support of its motion for summary judgment, Shell produced the deposition testimony of Frank Mihlon, Daniel J. Miessner, and Ms. Cheramie and the affidavits of Ward and Kays. An examination of those exhibits reveals that Shell was not involved with the eventual employment of the former Cheramie Services employees by Fil-co. The record is clear that Ward, Kays, and Perez were never employees of Shell; that Shell was unaware Ward and Kays had switched companies until after they became employees of Filco; and that Perez’s employment with Filco derived from the fact that Filco, not Cheramie Services, was the successful bidder for the Ursa TLP position.

Mihlon was Shell’s “asset leader” aboard the Auger TLP from April 1997 through January 2002. In that position, Mihlon was responsible for all activities at that location, including drilling, producing, and construction activities. He testified that the knowledge he had of the persons who worked offshore was limited to knowing to whom they reported aboard the Auger TLP, but he would not necessarily know for what company the individuals worked. Mihlon did not know Ward and Kays other than to say “Hello” and to know what their duties were. At some time he became aware that the two clerks were displeased with their parent contractor because they were not receiving benefits: medical insurance, chiefly, as well as vacation allowances and overtime pay. Mihlon learned they had approached their immediate supervisor, Dan Miessner, and asked if it would be a problem for Shell if they were to go to work for another parent contractor. Miessner, in turn, asked Mihlon; it was |unot a problem with either of those Shell supervisors. When Mihlon was asked if he was aware of any actions taken by Shell to influence Ward and Kays to leave Cheramie and work for Filco, he answered: “I’m not aware of any reason why anyone at Shell would have any interest ... with respect to why those individuals would work for one company or another.”

In his deposition, Miessner testified he was Shell’s logistic team leader for the Auger TLP and that Ward and Kays were already working there when he assumed that position. Miessner was not involved in procuring Shell’s contract with Chera-mie Services and never saw the written contract. He had no contact with Ms. Cheramie until after Ward and Kays switched companies, and then it was only by phone calls she made to him in an effort to solicit his aid in getting the two clerks to return to employment by Cheramie Services. Miessner was the supervisor who signed the time sheets turned in by the two clerks. He did not know anyone at Cheramie Services other than those two clerks and he knew no one at Filco. The first time Miessner became aware of the two men switching companies was when they turned in Filco time sheets instead of Cheramie time sheets.

In his affidavit, Ward explained how he left Cheramie’s employ and started work with Filco. His last shift on the Auger TLP while working for Cheramie ended on December 23, 1997; the next shift was scheduled to begin on January 6, 1998. During his time off, Ward called Filco’s field superintendent at Filco’s Lafayette office to confirm the pay and benefits. He sent a resume to Filco and then went to Lafayette to complete an employment application and to take a physical and other pre-employment tests. On January 5, 1998, Filco offered Ward employment as a logistics clerk and he accepted. Thereafter, Ward told Dan Miessner, Shell’s drilling foreman on the Auger TLP, that he was going to work for Filco and that he would hjjike to remain on the Auger TLP. Ward attested that before he talked to Miessner, he had decided to work for Fil-co, in order to receive better pay and benefits not provided by Cheramie, even if it meant he could not retain the spot on the Auger TLP.

The affidavit of Kays was similar. He, too, stated he was already determined to leave Cheramie’s employ before he talked to Miessner. During his off hours on the Auger TLP, Kays called a Filco employee and inquired about the pay and the benefits that company was providing. On his next fourteen days off, Kays went to Lafayette, interviewed for the job, and was hired by Filco. Thereafter, he notified Cheramie that he was leaving and going with Filco. He began earning about $10,000 more annually with Filco than he had made with Cheramie. Kays attested that no one from either Shell or Filco enticed, encouraged, or lured him to leave Cheramie and to work for Filco.

Additionally, Shell introduced the deposition testimony of Ms. Cheramie in which she explained the relationship between her company and Perez. Ms. Cheramie admitted she initiated the process of bidding on an opening for a logistics coordinator on the Ursa TLP. Thus, it would be error to state that Shell called Cheramie Services about sending a worker to apply for the position. Ms. Cheramie testified she sent Perez to interview for the Ursa TLP position after Cheramie Services submitted a bid to Shell. It is clear from our review of the record that it was Cheramie Services’ failure to submit the successful bid for the Ursa TLP opening, and not any action by Shell, that resulted in Perez leaving her employ with Cheramie Services. Ultimately, it was Perez’s decision to apply with Filco, which had prevailed in its bid for the Ursa TLP position. In sum, Perez exercised her freedom as an at will employee to go to work for Filco, as Ward and Kays had done earlier.

|, (¡After Shell filed its evidence in support of its motion for summary judgment, the burden shifted to plaintiffs to produce factual support sufficient to establish that they would be able to satisfy their evidentiary burden of proof at trial. “When a motion for summary judgment is made and supported ..., an adverse party may not rest on the mere allegations ... of his pleading, but his response ... must set forth specific facts showing that there is a genuine issue for trial.” LSA-C.C.P. art. 967(B). Plaintiffs did not produce any factual support for their contentions that the former Cheramie employees’ leaving their employ to become Filco employees was because of collusion between Filco and Shell. The affidavit of Ms. Cheramie merely reiterated the conclusory allegations of plaintiffs’ petition; affidavits with conclusory allegations of fact which are devoid of specific facts are not sufficient to defeat summary judgment. Id.; National Gypsum Company v. Ace Wholesale, Inc., 96-215, p. 6 (La.App. 5 Cir. 11/26/96); 685 So.2d 306, 309, writ denied, 96-3055 (La.2/7/97), 688 So.2d 502. The affidavit of Perez does not contain any facts that prove Shell personnel conspired with Filco personnel to lure her away from Cheramie Services. According to Ms. Cheramie’s admissions in her deposition introduced into the record by Shell, she was the party who initiated negotiations between her company and Shell for the position on the Ursa TLP, not vice versa.

In sum, plaintiffs’ response to Shell’s evidence fails to refute the affidavits by Ward and Kays and Ms. Cheramie’s deposition testimony, showing that the three workers were merely exercising their prerogatives as at-will employees to change the companies for which they worked. Plaintiffs failed to produce any evidence of actions by Shell which would be tantamount to “unfair or deceptive acts or practices” |17in the conduct of their offshore operations. Plaintiffs’ inadequate response to Shell’s evidence made summary judgment appropriate. Id.

After considering a line of cases dealing with conspiracy, the court of appeal found that “plaintiffs made a prima facie showing that Shell conspired with Filco to injure plaintiffs, bringing their action within the ambit of LUTPA.” Cheramie, 07-1231 at 9, 14 So.3d at 6. We disagree. The appellate court’s conclusion is not supported by the record and is mere speculation that there was a conspiracy between the two defendants. Once defendant supported its motion for summary judgment with the affidavits of Ward and Kays, the deposition testimony of Ms. Cheramie regarding Perez, and the deposition testimony of two Shell supervisors, all of which negated allegations of a conspiracy between Shell and Filco, plaintiffs were required to produce evidence to refute defendant’s evidence. As the party adverse to the granting of the summary judgment, plaintiffs were required to produce factual support sufficient to establish that they would be able to satisfy their evidentiary burden of proof at trial of a conspiracy between the two defendants. LSA-C.C.P. art. 966(C)(2); see Dejoie v. Medley, 08-2223, p. 10 (La.5/5/09), 9 So.3d 826, 832. Plaintiffs’ evidence falls far short of the factual support required to establish that plaintiffs would be able to satisfy their evidentiary burden of proof at trial.

Accordingly, we hold that the court of appeal erred in reversing the trial court’s grant of summary judgment dismissing plaintiffs’ LUTPA claim.

JUDGMENT REVERSED; JUDGMENT RENDERED DISMISSING PLAINTIFFS’ PETITION.

JOHNSON and GUIDRY, JJ., concurred and assigned reasons.

KNOLL, J., concurred in result only.

JOHNSON, Justice,

concurs in the result and assigns reasons.

|) While I agree that Plaintiffs’ petition should be dismissed, I disagree with the majority opinion finding that the Plaintiffs are entitled to bring an action under the Unfair Trade Practices and Consumer Protection Law (LUTPA). In my opinion, the Plaintiffs have no standing to assert a claim for damages pursuant to LUTPA.

The LUTPA is set forth in La. R.S. 51:1401 et seq. Section 1409 creates a private right of action under LUTPA. Pursuant to the statute, an action can be brought by “[a]ny person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act, or practice declared unlawful by R.S. 51:1405.” La. R.S. 51:1409(A). The majority concludes that, based on the clear wording of the statute, there is nothing in the Act that limits the private cause of action to business competitors and consumers. Given the purpose of LUTPA, and the existing jurisprudence, I must respectfully disagree.

Although, standing alone, the words “any person” might include the plaintiffs here, I do not find that a proper reading of the LUTPA, along with existing jurisprudence, supports the majority’s conclusion. While not specifically defining |2unfair acts or practices, the Act specifically provides that “[ujnfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” La. R.S. 51:1405(A). In my view, the reference to “competition” and “trade or commerce” indicates an intent by the legislature to allow business competitors to pursue an action again an adversary who has used deceptive trade practices. Combined with the purpose of the Act to protect consumers, the logical interpretation is that the legislature intended to limit the private right of action to consumers and business competitors.

This interpretation is supported by the fact that the development of consumer protection laws was essentially a response to consumer dissatisfaction with their treatment in the marketplace. See Breeden and Lovett, Louisiana’s New Unfair Trade Practice and Consumer protection Law, 20 La. B.J. 307, 308 (1973). While private disputes, like the one here, were already protected by remedies in commercial law, consumers had inadequate remedies to protect themselves from unscrupulous conduct, and the cost to pursue any remedy was cost prohibitive given the expense of litigation relative to the amount of likely recovery. Id. at 308. Similarly, business competitors were often without remedy under contract or other commercial laws.

Admittedly, the statutory language is broad, and appears to afford a right to any person damaged by unfair trade practices committed by another. However, the majority of the jurisprudence to date has interpreted this language narrowly. Appellate courts throughout this state have found that the personal right of action afforded under LUTPA applies only to direct consumers or to business competitors. See Reed v. Allison & Perrone, 376 So.2d 1067 (La.App. 4 Cir.1979); National Oil Service of Louisiana v. Brown, 381 So.2d 1269 (La.App. 4 Cir.1980); Gil v. Metal Serv. Corp., 412 So.2d 706 (La.App. 4 Cir.1982); J.B.N. Morris v. Rental Tools, Inc., 435 So.2d 528 (La.App. 5 Cir.1983); Monroe Medical Clinic, Inc. v. Hospital Corporation of America, 522 So.2d 1362 (La.App. 2 Cir.1988); National Gypsum Co. v. Ace Wholesale, Inc., 98-1196 (La.App. 5 Cir. 6/1/99), 738 So.2d 128; Vermilion Hospital, Inc. v. Patout, 2005-82 (La.App. 3 Cir. 6/8/05), 906 So.2d 688; Dominion Exploration & Production, Inc. v. Waters, 2007-0386 (La.App. 4 Cir. 11/14/07), 972 So.2d 350; Washington Mut. Bank v. Monticello, 07-1018 (La.App. 3 Cir. 2/6/08), 976 So.2d 251; Indest-Guidry, Ltd. v. Key Office Equipment, Inc., 2008-599 (La.App. 3 Cir. 11/5/08), 997 So.2d 796.

Louisiana federal courts have also interpreted LUTPA to provide for a private cause of action only for direct consumers or business competitors. See Delta Truck & Tractor, Inc. v. J.I. Case Co., 975 F.2d 1192, 1205 (5th Cir.1992); Gardes Directional Drilling v. U.S. Turnkey Exploration Co., 98 F.3d 860 (5th Cir.1996); Computer Management Assistance Co. v. DeCastro, Inc., 220 F.3d 396 (5th Cir.2000); Tubos de Acero de Mexico, S.A. v. American International Investment Corp., Inc., 292 F.3d 471 480 (5th Cir.2002); Schenck v. Living Centers-East, Inc., 917 F.Supp. 432 (E.D.La.1996); Cashman Equipment Corp. v. Acadian Shipyard, Inc., 2002 WL 1433876 (E.D.La.2002); Landreneau v. Fleet Financial Group, 197 F.Supp.2d 551, 557 (E.D.La.2002) (noting that the “real thrust” of LUTPA is to deter injury to competition; thus, where the plaintiffs are not in competition with the defendants, most courts treat the claim as a breach of contract claim, which is not actionable under LUTPA).

|4This Court has never ruled directly on this issue, nor addressed the split in the circuits. While the majority has relied on a broad reading of the statutory language to find that the plaintiffs have standing to assert a private cause of action, I would follow the prevailing jurisprudence and interpret the language more narrowly, thus limiting the cause of action to direct consumers or business competitors.

Moreover, it is important to note that despite the nearly uniform interpretation of the statute, over many years, limiting the private right of action to business competitors and consumers, the legislature has not amended the statute to suggest that such interpretation has been erroneous.

While the protection of the statute may appear to be broad, I do not believe that the claims involved in this case fall under the intended scope of the statute. Thus, because plaintiffs are neither a business competitor nor consumer, I would find that they have no standing to bring a claim under LUTPA.

KNOLL, J.,

concurs.

|J concur in the result only.

GUIDRY, Justice,

concurs in the result and assigns reasons.

hi concur in the majority’s finding that Shell Deepwater Production, Inc. was entitled to summary judgment because plaintiffs failed to produce evidence of a material factual dispute regarding Shell’s alleged use of an “unfair or deceptive method, act or practice” in its dealings with plaintiffs. Given this result, which disposes of the controversy before us, the majority’s discussion of standing to bring an action for damages pursuant to the Louisiana Unfair Trade Practices and Consumer Protection Law, La. Rev.Stat. 51:1401 et seq., is dicta.

      . Kimball, C.J., did not participate in the deliberation of this opinion.

      . The trial court's judgment dated April 17, 2007, dismissed the plaintiffs’ claims against Shell for "misappropriation of trade secrets, intentional infliction of emotional distress, unfair trade practices, conspiracy, discrimination, and violation of civil rights" and preter-mitted decision on the breach of contract claim. By another judgment dated May 22, 2007, the trial court dismissed the breach of contract claim.

      . Compare Gil v. Metal Service Corporation, 412 So.2d 706 (La.App. 4 Cir.), writ denied, 414 So.2d 379 (La.1982) (holding only consumers and business competitors have standing) with Jarrell v. Carter, 577 So.2d 120, 123-124 (La.App. 1 Cir.), writ denied, 582 So.2d 1311 (La.1991) (holding that plaintiff who was not a consumer or a business competitor of defendant had standing).

      . In an effort to be thorough, we reviewed the legislative history of this enactment. However, our review of the legislative history proved inconclusive. Nevertheless, when the words of a statute are clear and unambiguous, the letter of the law is not to be disregarded under the pretext of pursuing its spirit. LSA-R.S. 1:4.
      As the court of appeal in the instant case noted, this 1972 legislation was modeled after the Federal Trade Commission Act of 1914 (FTC). In the 1950s, state legislatures began adopting “little FTCs” in an effort to supplement the FTC in areas where the federal agency did not have the resources to enforce the federal act. See Keith E. Andrews, Louisiana Unfair Trade Practices Act: Broad Language and Generous Remedies Supplemented by a Confusing Body of Case Law, 41 Loy. L.Rev. 759 (Winter 1996). Although the FTC creates no private right of action, most states included a private right of action as part of their "little FTCs.” Id. The crucial issue in the instant case is the nature of the private right of action provided by LUTPA.

        . Belle Pass Terminal, Inc. v. Jolin, Inc., 618 So.2d 1076, 1081 (La.App. 1 Cir.), writ denied, 626 So.2d 1172 (La.1993); Jarrell v. Carter, 577 So.2d 120, 123-124 (La.App. 1 Cir.), writ denied, 582 So.2d 1311 (La.1991); Roustabouts, Inc. v. Hamer, 447 So.2d 543, 548 (La.App. 1 Cir.1984); Monroe Medical Clinic, Inc. v. Hospital Corporation of America, 622 So.2d 760, 763 (La.App. 2 Cir.), writ denied, 629 So.2d 1135 (La.1993); Lilawanti Enterprises, Inc. v. Walden Book Company, Inc., 95-2048, p. 6 (La.App. 4 Cir. 2/29/96), 670 So.2d 558, 561 ("Any person who suffers damage as a result of an unfair or deceptive act or practice which is unlawful under § 1405 has a private cause of action.”).

      . Gil, 412 So.2d at 707, stated: "[T]his statute has been construed to give protection only to consumers and business competitors.” The court cited only National Oil Service of Louisiana v. Brown, 381 So.2d 1269 (La.App. 4 Cir.1980), and Reed v. Allison & Perrone, 376 So.2d 1067 (La.App. 4 Cir.1979), both of which involved plaintiffs seeking injunctions and neither of which addressed the issue of a limitation of the private right of action under LUTPA.

      . In Delta Truck & Tractor v. J.I. Case Co., 975 F.2d 1192, 1205 (5 Cir.1992), the court followed the interpretation given by some Louisiana circuit courts and held that the private cause of action was limited to consumers and business competitors. Four years later the federal appellate court acknowledged that the split in the Louisiana circuit court decisions made its prior position debatable. Nevertheless, finding no subsequent decisions of the courts of Louisiana demonstrated that decísion was clearly wrong, the federal court again held there was no private cause of action for the plaintiffs under LUTPA. Gardes Directional Drilling v. U.S. Turnkey Exploration Co., 98 F.3d 860, 868 (5 Cir.1996).

      . We assume that Ward, Kays, and Perez were employees of the plaintiffs because that assumption enhances the plaintiffs’ argument. However, the record is unclear whether they were employees or independent contractors.

      . It appears that only the First Circuit has held that the private right of action is not reserved exclusively to business consumers and competitors. See Roustabouts, Inc. v. Hamer, 447 So.2d 543 (La.App. 1 Cir.1984); Jarrell v. Carter, 577 So.2d 120, 123 (La.App. 1 Cir.1991); Capitol House Preservation Co. v. Perryman Consultants, Inc., 98-1514 (La.App. 1 Cir. 12/10/98), 725 So.2d 523; Plaquemine Marine, Inc. v. Mercury Marine, 03-1036 (La.App. 1 Cir. 7/25/03), 859 So.2d 110. But, see Thibaut v. Thibaut, 607 So.2d 587 (La.App. 1 Cir.1992), which held that LUTPA did not provide the plaintiffs with a cause of action since they were neither competitors nor consumers.