WARD v. TENNECO OIL CO.

LABORDE, Judge.

We granted a writ of certiorari in this case to consider the correctness of the trial court's judgment which granted in part defendant-respondent's motion for a partial summary judgment and which denied a motion to compel discovery filed by plaintiffs-relators.

FACTS

In its Reasons for Ruling, the trial court set forth the pertinent facts and legal questions at issue:

      VALUE INCENTIVE TABLE
        (rounded amounts)

   SALES             AMOUNT
   PRICE              YOU
(billions)          RECEIVE

 5.70-5.85           4,700
  6.00              15,000
  6.15              25,300
  6.30              35,700
  6.45              46,000
  6.60              56,700
  6.75              65,700
  7.00              77,000

ACTION OF THE TRIAL COURT

The trial court rendered partial summary judgment against plaintiffs on the following claims: 1) plaintiffs' claim for declaratory judgment; 2) plaintiffs' claim for penalties and attorney's fees based on Louisiana's Wage Payment Act; 3) plaintiffs' claims alleging breach of fiduciary duty.2 The trial court denied all other portions of defendant's motion for summary judgment.

The trial court also rendered the following ruling denying plaintiffs' motion to compel discovery:

THE REQUEST FOR A DECLARATORY JUDGMENT

At issue in this case is whether or not the trial court appropriately granted a partial summary judgment.

First, we note that a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, admissions on file, together with supporting affidavits, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966. The movant for the summary judgment has the burden of affirmatively showing the absence of a genuine issue of material fact and any doubt as to the existence of such issue of material fact is to be resolved against granting the motion. Thibodeaux v. Southwest La. Hosp. Ass'n., 488 So.2d 743 (La.App. 3d Cir.1986).

LSA-C.C.P. art. 966(A) provides that:

LSA-C.C.P. art. 1915 reads in part as follows:

It is clear from a reading of these articles, as well as from the jurisprudence interpreting them, that summary judgment may be granted for less than all of the relief for which the party prays.

However, it is also clear that a partial summary judgment must grant at least part of the relief prayed for by one of the parties; it cannot merely strike down a theory of the case. Pizzolato v. Field, 441 So.2d 1248 (La.App. 1st Cir.1983). Thus, unless specifically authorized by the Code of Civil Procedure, partial final judgments which do not grant all or part of the relief prayed for are not permitted, since to do so would promote piecemeal litigation and the uneconomical use of judicial time thereby frustrating the prompt resolution of issues. Serpas v. Ridley, 556 So.2d 134 (La.App. 5th Cir.1990).

In the instant case, plaintiffs seek a declaratory judgment "recognizing and enforcing" defendant's obligation as written in the value incentive plan to pay plaintiffs the amounts outlined on the sliding scale based on a total sales price for the company of Seven Billion Three Hundred Million ($7,300,000,000.00) dollars. The trial court granted partial summary judgment dismissing plaintiffs' claim for declaratory judgment as procedurally inappropriate.3 We find the granting of partial summary judgment improper under these circumstances. The trial court's action does not, in itself, dispense with any of the relief claimed by plaintiffs, but only refuses plaintiffs' request to make a judicial declaration of their rights under the value incentive plan. However, the trial court declined to grant partial summary judgment on plaintiffs' claim that defendant's failure to pay the appropriate amounts pursuant to the sliding scale constitutes a breach of contract. This claim therefore remains viable. Thus, since no relief was granted by rendering a summary judgment disallowing the declaratory relief, we find that partial summary judgment on plaintiffs' request for a declaratory judgment was improper.

LOUISIANA'S WAGE PAYMENT ACT

The trial court, relying on Dore v. WHC Lease Service, Inc., 528 So.2d 235 (La.App. 3d Cir.1988), granted partial summary judgment declaring that Louisiana relators do not have a claim under LSA-R.S. 23:631 et seq., of Louisiana's Wage Payment Act.4 In Dore a bonus (which was actually in the nature of delayed compensation) was found by this court not to be a wage within the intendment of these statutes since the payment involved therein was not by the day, the hour, the week or the month. Accordingly, the court in Dore affirmed the trial court's denial of statutory penalties and attorney's fees under LSA-R.S. 23:631 et seq.

We agree with the trial court that in the case, sub judice, Louisiana's Wage Payment Act does not apply. It is well settled that these statutory provisions are penal in nature and must be strictly construed. Dore, supra. According to plaintiffs' petition, an employee had to remain with the company until the date of sale in order to participate in the value incentive plan. An employee could leave the company at any time; however, that employee would have no claim to any portion of the bonus. Clearly, under the plan, payment was not by the day, the hour, the week or month. Thus, statutory penalties and attorney's fees under LSA-R.S. 23:631 et seq., are not available to plaintiffs.

However, we note that defendant seeks a summary judgment on plaintiffs' claims under Louisiana's Wage Payment Act based on the argument that these statutes do not grant plaintiffs a cause of action under the facts alleged in this case. Whether or not a petition states a cause of action is a matter to be determined on a peremptory exception of no cause of action and not on a motion for summary judgment. A motion for summary judgment may not be used as a substitute for an exception of no cause of action. Brooks v. Prince, 465 So.2d 797 (La.App. 4th Cir. 1985); St. Romain v. Kenny, 454 So.2d 1163 (La.App. 4th Cir.1984). Thus, the defendant has chosen the wrong procedural vehicle to raise its argument on this issue.

Under LSA-C.C.P. art. 927, an appellate court can, on its own motion, take notice of a plaintiff's failure to state a cause of action. We choose to exercise this right as it pertains to plaintiffs' failure to state a cause of action based on Louisiana's Wage Payment Act.

The exception of no cause of action is a procedural device used to test the legal sufficiency of the petition. No evidence may be introduced to support or controvert the objection of no cause of action. LSA-C.C.P. art. 931. For purposes of ruling on the exception of no cause of action, the court must accept all allegations of the petition as true, and sustain the exception only if the law affords no remedy under any evidence that is admissible under the pleadings. Bellah v. State Farm Fire & Cas. Inc., 546 So.2d 601 (La.App.3d Cir.1989).

The general rule is that where a petition states a cause of action as to any ground or portion of a demand, the exception of no cause of action should be denied. The purpose of this rule is to prevent piecemeal litigation and to avoid multiple appeals. Rodriguez v. American Bankers Insurance Company of Florida, 386 So.2d 652 (La.1980). However, this court has recognized an exception to this rule when separate and distinct causes of action are included in one petition. Bordelon v. Cochrane, 533 So.2d 82 (La.App. 3rd Cir. 1988), writ denied, 536 So.2d 1255 (La. 1989). In the instant case, plaintiffs have attempted to set out a cause of action based on Louisiana's Wage Payment Act which is totally separate and distinct from all other causes of action contained in their petition.5 This cause of action arises when an employer fails to pay the employee wages due him within 72 hours of his termination. For the reasons expressed above, we find that plaintiffs have failed to state a cause of action based on LSA-R.S. 23:631 et seq. Accordingly, we set aside the summary judgment based on Louisiana's Wage Payment Act and grant an exception of no cause of action. We also direct that plaintiffs be allowed fifteen days from the date this opinion becomes final to amend their petition or suffer dismissal of this cause of action. LSA-C.C.P. art. 934.

CLAIMS BASED ON THE BREACH OF A FIDUCIARY DUTY

The trial court also granted a partial summary judgment against plaintiffs on their various fiduciary duty claims. We find that the motion for summary judgment was an improper vehicle for the questioning of plaintiffs' theories of the case. Here again, the summary judgment granted by the trial court did not affect the relief prayed for by either the plaintiffs or the defendant, but rather, merely struck down some theories of the case. However, as previously explained, "[a] summary judgment cannot merely strike down a theory of the case; it must consider the ultimate relief prayed for." Pizzolato, supra, at 1249.

We also find that defendant's motion for partial summary judgment cannot be construed as adequately alleging an exception of no cause of action. Among the theories of recovery advanced by plaintiffs on their fiduciary duty claims is the contention that the value incentive plan, itself, gave rise to a fiduciary duty. Thus, since one of the theories concerning the fiduciary duty claims involves an interpretation of the value incentive plan, this cause of action is not separate and distinct from plaintiffs' breach of contract claim. Bordelon, supra. Consequently, the fiduciary duty claims cannot be dismissed since there is no exception for a partial no cause of action under Louisiana law. Moore, Romero & Co. v. Nan Corp., 458 So.2d 675 (La.App. 3d Cir. 1984).

MOTION TO COMPEL

Relators' motion to compel involved the following discovery requests:

INTERROGATORY NO. 1:

Please identify each and every person contacted, interviewed, or consulted by the Company as to:

REQUEST FOR PRODUCTION OF DOCUMENTS NO. 4:

Please produce all projections, predictions, studies and/or analysis of the economic impact of the renegotiated Gas Purchase and Sales Agreements referenced in plaintiffs' interrogatory No. 12.

REQUEST FOR PRODUCTION OF DOCUMENTS NO. 5:

Please produce all projections, predictions, studies and/or analysis of all bids received for the sale of Tenneco Oil Company.

REQUEST FOR PRODUCTION OF DOCUMENTS NO. 6:

Please produce copies of any and all documents and/or correspondence in which there are discussions relating to the failure of entities to bid on Tenneco Oil Company.

As to interrogatory No. 1, the trial court denied plaintiffs' motion to compel because it found their request was overly broad. The trial court has reasonable discretion to refuse or limit discovery of matters that are not relevant to the issues, are unreasonably vexatious, or are tardily sought and which might delay trial. Michigan Wisconsin Pipeline Co. v. Sugarland Development Corp., 221 So.2d 593 (La. App. 3d Cir.), writ denied, 223 So.2d 872 (La.1969). Thus, while liberal pretrial discovery should be encouraged, it must not be conducted without regard to the rights of the party against whom it is invoked to be protected against undue hardship, loss or damage. LSA-C.C.P. art. 1426. In the instant case, involving a complex multi-billion dollar transaction, we conclude that the trial court did not abuse its discretion in finding that plaintiffs' request for identification of "each and every person contacted, interviewed, or consulted by the Company" was overbroad.

With respect to the requests for production of documents the trial court denied discovery on the grounds that these requests were burdensome and did not lead to relevant evidence. We disagree with the trial court's ruling in this matter. The test of discoverability is not the admissibility of the particular information sought, but whether the information sought appears reasonably calculated to lead to the discovery of evidence that is admissible. LSA-C.C.P. art. 1422; Ogea v. Jacobs, 344 So.2d 953 (La.1977).

Plaintiffs allege in their petition that, under the value incentive plan offered to them by defendant, they were entitled to be paid bonuses based on the price received from the sale of the assets of Tenneco Oil Company as a whole. Plaintiffs additionally claim in their amending petition that the renegotiation of certain gas purchase agreements by the defendant, during the period that plaintiffs were offered the plan, caused a substantial decrease in the value of Tenneco Oil Company and/or Tenneco E & P. Plaintiffs contend, inter alia, that defendant breached its contractual obligation to them either in failing to pay according to the value received for Tenneco Oil Company or in failing to pay the appropriate value for Tenneco E & P. The discovery plaintiffs seek relates to the issue of the value of the operating entity. This information appears reasonably calculated to lead to the discovery of admissible evidence. Thus, we find that the trial court should not have denied plaintiffs' request for production of documents Nos. 4, 5, and 6.

DECREE

For the foregoing reasons, the ruling granting partial summary judgment in favor of defendant-respondent is reversed. Judgment is rendered maintaining an exception of no cause of action as to plaintiffs-relators' claim based on Louisiana's Wage Payment Act, and plaintiffs-relators are given fifteen days from the rendition of this judgment to amend this claim to state a cause of action, if possible, upon penalty of dismissal of this claim.

The trial court's ruling on plaintiffs-relators' motion to compel discovery is affirmed as it pertains to Interrogatory No. 1 and reversed as it pertains to the Request for Production of Documents Nos. 4, 5, and 6.

WRIT GRANTED IN PART AND MADE PEREMPTORY; WRIT DENIED IN PART.

ON REHEARING

PER CURIAM.

In our original opinion herein we overlooked an issue raised and briefed by defendant/respondent: the objection that the information and documents sought by plaintiff's Motion To Compel related to Requests No. 4, 5, and 6 were confidential and should be protected by issuance of an appropriate protective order. The trial court did not address this issue, since it had denied the Motion To Compel, and we can not address this issue on the basis of the record, even though we have granted the writ in part and ordered production of the information and documents related to Requests No. 4, 5, and 6. For this reason we grant the Motion For Rehearing of defendant/respondent, for the limited purpose of addressing this issue, and amend our decree to remand the matter to the trial court with instructions to conduct a hearing on the request of defendant/respondent for a protective order, if appropriate, with respect to the information and documents sought by plaintiff's Motion To Compel related to Requests Nos. 4, 5, and 6.