The plaintiffs filed a class action, on behalf of themselves and others who obtained representation from an attorney at the defendant law firm, alleging that they
Factual and Procedural Background
The plaintiffs, Gene Smart and Priscilla Babin, filed a "Class Action Petition" on their own behalf, and on behalf of others similarly situated, wherein they alleged that they retained "The Gold Firm" to provide legal representation for their individual legal needs and that attorney J. Ogden Middleton, II was assigned to handle their representation. The plaintiffs asserted that they were "over-billed for said representation" and alleged breach of contract and unjust enrichment. Among the damages sought was "restitution and refund of all monies paid for said legal services, plus interest hereon." In addition to Mr. Middleton, the plaintiffs named "Gold, Weems, Bruser, Sues & Rundell (A Professional Law Corporation)," "Gold. Weems, Bruser, Sues & Rundell, LLC," and individual attorneys who the plaintiffs alleged served as directors of the firm.
The trial court granted the exception of vagueness and ordered the plaintiffs to "amend their petition to state all material facts relating to each specific claim of each plaintiff against each separate, individually named defendant and each separate corporate entity on whose behalf the Exception of Vagueness is filed[.]" The trial court ordered that the plaintiffs amend the petition within thirty days.
The plaintiffs filed two amending petitions, the latter of which was accepted as the applicable petition for the court's consideration. The plaintiffs alleged that they contracted for legal representation from the law firm of "Gold, Weems, Bruser, Sues & Rundell P.L.C." The suit was brought on behalf of all those similarly situated who contracted for legal representation "from the law firm of Gold, Weems, Bruser, Sues & Rundell P.L.C. and/or Gold, Weems, Bruser, Sues & Rundell L.L.C. and who were over-billed for said representation." These entities and the individual attorneys allegedly serving as directors of the firm were named as defendants.
The firm and the directors, other than Mr. Middleton, again filed a dilatory exception
Mr. Middleton subsequently filed an exception of vagueness. He argued that, because "any allegations that would suggest liability on the part of Mr. Middleton are directed to at least one of the dismissed defendants and, thus, already have been deemed vague by the Court. There would [be] no reason, therefore, to rule differently on the vagueness issue with respect to Mr. Middleton." The trial court denied Mr. Middleton's exception.
The plaintiffs appeal the granting of the exception and assign the following as error:
Mr. Middleton filed an application for supervisory writs, wherein he advances the following assignments of error:
The appeal and the writ application have been consolidated for review.
The Plaintiffs' Appeal—Granting of the Exception of Vagueness
The plaintiffs question the determination that the petition is vague. They argue that it is sufficient insofar as it alleges that they individually hired the Gold Law Firm to represent them for their specific family law needs, and that this work was either not performed or resulted in over-billing. As for the firm's directors, the plaintiffs point out that they alleged that the firm's course of conduct was performed with the knowledge and/or consent and that these directors benefitted from the practices. These facts, the plaintiffs argue, provide sufficient information to the defendants to begin their defense insofar as they can examine their files and billing statements and prepare their defense. Further, they contend that this information sufficiently permits the identification
Louisiana Code of Civil Procedure Article 891 requires that a petition "contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation[.]" Furthermore, with regard to the form of a pleading, La.Code Civ.P. art. 854 provides:
The purpose of the dilatory exception of vagueness, which is provided for by La.Code Civ.P. art. 926, is to place a defendant on notice of the nature of the facts sought to be established and, thus, enable him or her to identify the cause of action and prevent its future re-litigation after a judgment is obtained. Snoddy v. City of Marksville, 97-327 (La.App. 3 Cir. 10/8/97), 702 So.2d 890. See also Thomas v. Sonic, 06-0014 (La.App. 1 Cir. 11/3/06), 950 So.2d 822. However, the exception does not permit the defendant to demand exactitude and detail beyond what is necessary for the above purposes. Snoddy, 702 So.2d 890. An exception of vagueness will be denied if the petition fairly informs the defendant of the nature of the cause of action and includes sufficient particulars for the defendant to be able to prepare his or her defense. Id.
Review of the plaintiffs' petition reveals no error in the trial court's granting of the exception of vagueness in favor of the firm and its individual directors. Rather than advancing material facts of the transaction or occurrence that is the subject matter of the litigation, as is required by La.Code Civ.P. art. 891, the petition advances the broadest of allegations, i.e., that the plaintiff contracted with the firm and that they were either over-billed or billed for representation that did not occur. Rather than alleging material facts crucial to the transaction/occurrence, the petition attempts to substitute general allegations for these necessary, material facts. The plaintiffs contend that the required information is in the possession of the firm and its individual directors. However, requiring the defendants to produce its files, billing statements, and client contracts in these circumstances and for this type of broad allegation would essentially require these defendants to sustain the burden of disproving the case brought against them.
Neither do we find error in the trial court's dismissal of the plaintiffs' claims against the firm and its directors.
The record indicates that the trial court's procedure in dismissing the plaintiffs' claims was consistent with Article 933. After the first exception of vagueness was granted, the trial court ordered amendment of the petition to remove the defects. Only after that order was not sufficiently satisfied and, upon a second exception of vagueness did the trial court dismiss the plaintiff's claim. We note, too, that the plaintiff's claim was dismissed without prejudice.
Application for Supervisory Writs-Denial of the Exception of Vagueness
In his application for supervisory writs, Mr. Middleton contends that in light of its determination that the petition was vague as to the firm and the other directors, the trial court erred in denying his subsequently filed exception of vagueness. He asserts that the allegations as to him are identical to those made against the other defendants and, thus, they are vague as to him as well.
We reject the assertion that the petition's allegations regarding Mr. Middleton are identical to those lodged against the firm and the other directors. The petition alleges that Mr. Middleton was the attorney "assigned" to the named plaintiffs' cases and that they each met with him. The petition also alleges that:
This statement is directed toward Mr. Middleton, not the other directors of the firm, and is more targeted as to an actor than the general allegation similarly made against the "Gold Law Firm P.L.C." Having said this, however, it is apparent that the petition is insufficient under La.Code Civ.P. art. 891, as again, it is does not contain material facts of the transaction or occurrence that is the subject matter of the litigation. Rather, it merely contains the allegation of misrepresentation and over-billing. In short, the petition lacks sufficient substantial particulars which would permit Mr. Middleton to appropriately prepare his defense. See Thomas, 950 So.2d at 825. Accordingly, we reverse the trial court's denial of Mr. Middleton's exception of vagueness and remand this matter to the trial court with instructions to enter judgment granting the exception of vagueness in compliance with La.Code Civ.P. art. 933(B).
Although Mr. Middleton requests that the claims against him be dismissed, such a dismissal is premature absent an opportunity
In his final assignment of error, Mr. Middleton contests the denial of his exception of improper cumulation of actions. We note that, as this matter was filed as a class action, the prerequisites for a class action provided in La.Code Civ.P. art. 591 may be applicable in this instance, rather than La.Code Civ.P. art. 463,
For the foregoing reasons, we affirm the trial court's judgment granting the exception of vagueness and dismissing the plaintiffs' suit against Gold, Weems, Bruser, Sues & Rundell, A Professional Law Corporation, Gold, Weems, Bruser, Sues & Rundell, L.L.C., Dorrell J. Brister, Raymond L. Brown, Jr., Henry B. Bruser, III, Robert G. Nida, Kenneth O. Ortego, Michael J. O'Shee, Sam N. Poole, Jr., Edward E. Rundell, Randall M. Seeser, Peggy Dean St. John, Eugene J. Sues, Gregory B. Upton, Charles S. Weems, III, and Randall L. Wilmore. Costs of this proceeding are assessed against the plaintiffs, Gene Smart and Priscilla Babin.