Ourso v. Wal-Mart Stores, Inc.
Decision Date | 14 November 2008 |
Docket Number | No. 2008 CA 0780.,2008 CA 0780. |
Citation | 998 So.2d 295 |
Parties | Rachael Estelle OURSO v. WAL-MART STORES, INC. |
Court | Court of Appeal of Louisiana — District of US |
Tommy Thompson, Port Allen, LA, for Plaintiff/Appellant Rachael Estelle Ourso.
Roy C. Beard, Eugene T. Rhee, Metairie, LA, for Defendant/Appellee Wal-Mart Stores, Inc.
Before: PETTIGREW, McDONALD, and HUGHES, JJ.
Plaintiff, Rachael Estelle Ourso, appeals the trial court's judgment sustaining the peremptory exception raising the objection of no cause of action filed by Wal-Mart Stores, Inc. and dismissing, with prejudice, the plaintiff's claims against defendant. We affirm.
On February 27, 2006, Rachael Estelle Ourso (Ms. Ourso) was detained at the Wal-Mart store located in Port Allen, Louisiana, for shoplifting merchandise. Ms. Ourso alleges that she was apprehended before she could leave the Wal-Mart parking lot; accordingly, she alleges that she did not remove the merchandise from the store premises. Ms. Ourso also alleges that she returned the merchandise, including two Leap Frog electronic toys, without damage and in perfect, merchantable condition.
Ms. Ourso was criminally prosecuted for shoplifting and ordered to pay a fine. Thereafter, pursuant to La. R.S. 9:2799.1(A), Wal-Mart sent a letter to Ms. Ourso, demanding payment of approximately $200.00 as a civil penalty.
Ms. Ourso has filed this suit for damages against Wal-Mart seeking, in essence, a declaration that Wal-Mart is not entitled to recover a civil penalty under said statute because the merchandise was not removed from the store premises1 and the merchandise was returned in merchantable condition. Ms. Ourso contends that she was apprehended in the store parking lot and, therefore, did not remove the merchandise from the store premises. Moreover, she alleges that the merchandise was returned without damage and in perfect, merchantable condition. Ms. Ourso's petition further alleges that Wal-Mart is liable to her pursuant to Louisiana Civil Code articles 22992, 23033, and 22984 because the two conditions set forth in La. R.S. 9:2799.1 as conditions precedent to a claim for civil penalties under the statute are not met.
Wal-Mart filed a peremptory exception pleading the objection of no cause of action, alleging that Ms. Ourso had not pled any operable facts for which defendant may be found liable, and that plaintiff had not alleged damages that can be compensated under the facts alleged, as Wal-Mart's actions were specifically allowed by La. R.S. 9:2799.1. The trial court sustained the objection and dismissed Ms. Ourso's claims against Wal-Mart, with prejudice. Ms. Ourso has appealed.
The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993); Copeland v. Treasure Chest Casino, LLC., 2001-1122, p. 3 (La.App. 1 Cir. 6/21/02), 822 So.2d 68, 70. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La.Code Civ. P. art. 931. The exception is triable on the face of the pleading, and for the purpose of determining the issues raised by the exception, the well-pleaded facts in the pleading must be accepted as true. Richardson v. Richardson, 2002-2415, p. 6 (La. App. 1 Cir. 7/9/03), 859 So.2d 81, 86. Thus, the only issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Perere v. Louisiana Television Broadcasting Corporation, 97-2873, p. 3 (La.App. 1 Cir. 11/6/98), 721 So.2d 1075, 1077.
In reviewing a trial court's ruling sustaining an exception raising the objection of no cause of action, the appellate court should subject the case to a de novo review. The exception raises a question of law, and the trial court's decision is based only on the sufficiency of the petition. Fink v. Bryant, 2001-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349; B & C Elec, Inc. v. East Baton Rouge Parish School Bd., 2002-1578, pp. 4-5 (La.App. 1 Cir. 5/9/03), 849 So.2d 616, 619. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim that would entitle him to relief. Richardson, 2002-2415 at p. 7, 859 So.2d at 86. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Id. The question, therefore, is whether, in the light most favorable to the plaintiff, and with every doubt resolved in his behalf, the petition states any valid cause of action for relief. Copeland, 2001-1122 at p. 4, 822 So.2d at 70.
As an initial procedural matter, Wal-Mart contends that Ms. Ourso waived her right to appellate review of the trial court's decision because she acquiesced in the judgment. Louisiana Code of Civil Procedure article 2085 provides, in pertinent part, as follows:
An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him.
Wal-Mart asserts that Ms. Ourso acquiesced in the judgment because (1) she failed to submit a written objection to the exception of no cause of action prior to the hearing; and (2) her counsel, at the hearing, clearly stated that the trial court should "go ahead and grant [the] exception."
A party against whom judgment was rendered is not entitled to appeal if he or she "confessed judgment in the proceedings in the trial court." La.Code Civ. P. art. 2085. To preclude the right to appeal, the acquiescence must be voluntary and unconditional. Appeals are favored; therefore, a party does not acquiesce in the judgment, thereby forfeiting his or her right to appeal, unless his or her conduct demonstrates an intention to accept the judgment. See Associates Commercial Corp. v. Bayou Management, Inc., 415 So.2d 557, 559 (La.App. 1 Cir. 1982); Major v. Louisiana Dept. of Highways, 327 So.2d 515, 517 (La.App. 1 Cir.1976); Ponder v. Pechon, 169 So.2d 671 (La.App. 1 Cir. 1964), writ not considered, 247 La. 353, 170 So.2d 868 (1965).
In Associates Commercial Corp., 415 So.2d at 559, this court noted that another panel of this court in Succession of Marcel, 387 So.2d 1363 (La.App. 1 Cir.1980) well summarized the legal principles governing acquiescence in judgment, in pertinent part, as follows:
Appeals are favored in law and forfeiture of a party's right to an appeal through acquiescence should be decreed only when the party's intention to acquiesce and abandon his right of appeal is clearly demonstrated. Acquiescence in a judgment is never presumed. The party alleging same must establish by direct or circumstantial evidence that the party now appealing intended to acquiesce. Associates Commercial Corp., 415 So.2d at 559. (Citations omitted.)
Simply stated, a judgment is acquiesced in only if an intention to accept the judgment and not to appeal is shown. Id. Here, a review of the transcript reveals that counsel for Ms. Ourso previously filed a similar lawsuit on behalf of another client challenging Wal-Mart's right to seek civil penalties under La. R.S. 9:2799.1 based on facts almost identical to those presented herein. Counsel for Ms. Ourso advised the trial court that this court disagreed with his position in that case.5 Accordingly, Ms. Ourso's counsel suggested that the trial court go ahead and grant Wal-Mart's exception of no cause of action since this court has already established precedent, unfavorable in his view, on this issue in the prior case. Nevertheless, counsel unequivocally expressed an intention to take the issue to the supreme court for resolution and, obviously, the case must be appealed to this court prior to reaching the higher court. As such, we find there was no attempt to accept the adverse judgment and to waive appeal.
The issue presented in this case, therefore, is whether Ms. Ourso's petition states a cause of action against Wal-Mart such that her claim for damages for the alleged enrichment of Wal-Mart without cause or the payment to Wal-Mart of a thing not owed, i.e., a civil penalty, should be allowed to proceed to trial. We believe it should not.
In the first place, the petition fails to allege whether Ms. Ourso, in fact, paid the disputed fine to Wal-Mart. In the second place, we disagree with Ms. Ourso's position that Wal-Mart wrongfully seeks civil penalties from her pursuant to La. R.S. 9:2799.1.
Although Ms. Ourso alleges that the merchandise must be physically removed from the store premises or not returned in merchantable condition in order for the merchant to assess the statutory civil penalty, plaintiff cites no legal authority for these propositions.
Louisiana Revised Statutes 9:2799.1 provides:
A. Any person who unlawfully takes merchandise from a merchant's premises shall be liable to the merchant for the retail value of the merchandise taken, if not recovered in merchantable condition, plus damages of not less than fifty nor more than five hundred dollars.
B. The provisions of this Section shall not be construed to prohibit or limit any other cause of action which a merchant may have against a person who unlawfully takes merchandise from the merchant's premises.
This court addressed this same issue of law concerning the interpretation of La. R.S. 9:2799.1 on writs in Lejeune.6 Notably, Lejeune involved the same underlying facts, trial court, and Wal-Mart store, and was brought on behalf of plaintiffs represented by the same attorneys as herein. The Lejeune plaintiffs filed a suit for damages alleging that...
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