NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 0430

LOUISIANA TELEVISION BROADCASTING, L.L.C.

VERSUS

JAY INZENGA & JAY' S FURNITURE HOME STORE, L.L.C.

DATE OF JUDGMENT.- NOV 15 2019

ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NUMBER 657125, SECTION 25, PARISH OF EAST BATON ROUGE STATE OF LOUISIANA

HONORABLE WILSON E. FIELDS, JUDGE

Timothy Stephen Babcock Counsel for Plaintiff A - ppellee Chase Tettleton Louisiana Television Broadcasting, Baton Rouge, Louisiana L.L.C.

Brent E. Kinchen Counsel for Defendants -Appellants Gregory P. Aycock Jay Inzenga and Jay' s Furniture Home Baton Rouge, Louisiana Store, L.L.C.

BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.

Disposition: REVERSED IN PART.

CHUTZ, J.

Defendants -appellants, Jay Inzenga and Jay' s Furniture Home Store, LLC Jay' s Furniture), appeal the trial court' s summary judgment against them, in favor of plaintiff a - ppellee, Louisiana Television Broadcasting, LLC (WBRZ),' awarding the balance due on an advertisement account as well as attorney fees. We reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

WBRZ sells advertising during its programming which Jay' s Furniture utilized subsequent to entering into a credit application and payment agreement, signed by Inzenga on behalf of Jay' s Furniture as its " Owner" on June 30, 2009.

By April 20, 2016, Jay' s Furniture had an advertising balance due of $47, 285. 60.

Jay' s Furniture subsequently sold its furniture store without having either paid off the balance due on the WBRZ account or transferred the debt to the purchaser.

Inzenga contacted WBRZ representative, General Manager Rock Daboval, in three

text messages. WBRZ maintains that as a result of the contents of the text

messages, Inzenga became liable in his individual capacity along with Jay' s Furniture for the balance due on the advertising account.

WBRZ initiated this lawsuit, naming Inzenga and Jay' s Furniture as defendants. After Inzenga and Jay' s Furniture answered the lawsuit,2 WBRZ filed this motion for summary judgment, averring it was entitled to judgment in its favor against both Inzenga and Jay' s Furniture.' After a hearing, the trial court rendered

DISCUSSION

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court' s

determination of whether summary judgment is appropriate. Schultz v Guoth, 2010- 0343 ( La. 1/ 19/ 11), 57 So. 3d 1002, 1005- 06. A motion for summary judgment shall be granted only if the pleadings, memoranda, affidavits,

depositions, answers to interrogatories, certified medical records, written

stipulations, and admissions admitted for purposes of the motion for summary judgment show there is no genuine issue as to material fact, and that the mover is

entitled to judgment as a matter of law. La. C. C.P. art. 966( A)(3) & ( 4). A genuine

issue is one as to which reasonable persons could disagree. Moreover, all doubts

should be resolved in the non-moving party' s favor. Hines v. Garrett, 2004- 0806 La. 6/ 25/ 04), 876 So. 2d 764, 765- 66 ( per curiam); Neighbors Fed. Credit Union

v. Anderson, 2015- 1020 ( La. App. 1st Cir. 6/ 3/ 16), 196 So. 3d 727, 735.

The burden of proof rests with the mover. La. C. C. P. art. 966( D)( 1). When

the mover will bear the burden of proof at trial, it must be determined that its

supporting documents are sufficient to resolve all material issues of fact. Only they are sufficient does the burden shift to the opposing parties to present evidence showing that an issue of material fact exists, because the opposing parties can no longer rest on the allegations or denials in their pleadings at that point. Neighbors

Fed. Credit Union, 196 So. 3d at 734. Thus, regardless of whether the opposing

parties file an opposition or counter -affidavits, the moving party must first show Although the motion for summary judgment was set for November 13, 2018, the trial court' s minutes of court and the recital set forth in the signed judgment granting relief state the hearing was held on November 14, 2018. While the record does not offer an explanation to account for the different dates, the parties have not complained. that all critical elements of the opposing party' s case have been put to rest. This is because the burden of proof is on the mover to present a prima facie case. If the

mover does not make a prima facie case, the burden never shifts to the opposing parties and they have nothing to prove in response to the motion for summary judgment. Hat' s Equip., Inc. v. WHM, L.L. C., 2011- 1982 ( La. App. 1st Cir.

5/ 4/ 12), 92 So. 3d 1072, 1076.

On appeal, Inzenga and Jay' s Furniture do not challenge the entry of judgment against Jay' s Furniture in the amount of $ 47, 285. 60, the award of attorney fees in the amount of $ 9, 457. 12, or the quantum of either amount.5 Instead, they assert there was no obligation by Inzenga to assume the debt of Jay' s Furniture in his individual capacity.

In support of its motion for summary judgment, WBRZ relied the three text messages Inzenga sent to WBRZ representative Daboval. According to the first message, dated April 4, 2013, Inzenga texted:

Rock, I must find a way to give to you something toward the old bill The letter of intend is done but no sign of closing as of yet.

I will forward to you any corresponden ce on this.

Thanks Jay.

M Over two years later, on June 29, 2015, Inzenga stated in another text message:

I will give you something in the morning that we can live with in good faith.

The last message Inzenga sent to Daboval was on July 2, 2015 and provided: Rock we are getting funded on something today So we can send you something The BP Claim looks good it should cover the balance.

In its motion for summary judgment, VWBRZ emphasized Inzenga' s use of the word " I" in the first two messages as an indication that he was referring to himself rather than acting in a representative capacity. Additionally, VWBRZ

suggested that in the April 4, 2013 message, the reference to " something toward

the old bill" was " an absolute expression of [ Inzenga' s] intent to pay the open account since his text unequivocally states he is agreeing to make payments individually for and on behalf of Jay' s Furniture." On appeal, WBRZ urges that the only reasonable interpretation of the text messages is that Inzenga intended to be a personal guarantor, surety, and payor of the outstanding debt. According to RZ, the messages show that Inzenga knew a debt was owed by Jay' s Furniture that must be paid; he intended to pay it personally; and he ensured that he would pay the debt.

An obligee and a third person may agree on an assumption by the latter of an obligation owed by another to the former. That agreement must be made in writing.

La. C. C. art. 1823. Additionally, parol evidence is inadmissible to establish a promise to pay the debt of a third person. La. C. C. art. 1847.

The requirements for a valid contract, which include an agreement to assume

the debt of a third person, are: ( 1) capacity; ( 2) consent; ( 3) a lawful cause; and ( 4)

a valid object. See La. C. C. arts. 1918, 1927, 1966, 1971; Granger v. Christus

Health Central Louisiana, 2012- 1892 ( La. 6/ 28/ 13), 144 So. 3d 736, 760- 61. The

burden of proof in an action for breach of contract is on the party claiming rights under the contract. See La. C. C. art. 1831; Hornbeck Offshore Operators, LLC v.

Cross Group, Inc., 2016- 0174 ( La. App. 1st Cir. 10/ 31/ 16), 207 So. 3d 1141, 1146, writ denied, 2016- 2095 ( La. 1/ 9/ 17), 214 So. 3d 872.

According to the Civil Code, " The quantity of a contractual object may be undetermined, provided it is determinable." La. C. C. art. 1973. Where an

obligation is " too indeterminate" to meet the requirements of Article 1973, the

obligation [ is] unenforceable because it is without cause." Wegmann v.

Tramontin, 2015- 0561 ( La. App. 4th Cir. 1/ 13/ 16), 186 So. 3d 236, 240, writ

denied, 2016- 0276 ( La. 4/ 4/ 16), 190 So. 3d 1209 ( citing TAC Amusement Co. v. Henry, 238 So. 2d 398, 400 ( La. App. 4th Cir. 1970)). Thus, where a former

husband allegedly agreed to pay his former wife between $ 3 million and $ 5 million on an as -needed basis, there was an undeterminable sum and the agreement was

unenforceable, because it was without cause since there was no indication of where

in the range the payments would fall or what constituted " as needed." See

Wegmann, 186 So. 3d at 240. See also Villars v. Edwards, 412 So. 2d 122, 124- 25

La. App. 1st Cir.), writ denied, 415 So. 2d 945 ( La. 1982) ( because the parties

agreeing to build a home did not have a " meeting of the minds" with regard to price, no contract came into existence).

Pretermitting a discussion of whether in the text messages Inzenga

communicated with WBRZ individually or in a representative capacity as an owner of Jay' s Furniture, as well as whether the text messages constitute a writing for purposes of Article 1823, we find the three text messages fail to establish the

quantity of a contractual object. As such, any alleged offer by Inzenga in his individual capacity to assume the debt of Jay' s Furniture is undetermined.

Although the parties may have understood that an outstanding balance existed, the offer to " give [ WBRZ] something toward the old bill" on April 4, 2013; to " give WBRZ] something in the morning that we can live with in good faith" on June 29, 2015; or that " we can send [ WBRZ] something" on July 2, 2015, each

individually, and all collectively, fail to establish the amount of Jay' s Furniture' s outstanding advertising balance that Inzenga was ostensibly offering to assume. As such, there was an undeterminable sum, and any alleged agreement was without cause.

Therefore, WBRZ failed to make its prima facie case on its motion for

summary judgment showing that Inzenga assumed the debt of Jay' s Furniture on the advertising balance in his individual capacity. Accordingly, the trial court erred in entering judgment against Inzenga individually.

DECREE

For these reasons, we reverse the portions of the judgment entered against

Inzenga in his individual capacity in the amount of $47, 285. 60 and casting him with attorney fees in the amount of $9,457. 12. In all other respects, the trial court' s judgment is affirmed. Appeal costs are assessed against plaintiff a - ppellee,

Louisiana Television Broadcasting, LLC.

REVERSED IN PART.

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

2019 CA 0430

LOUISIANA TELEVISION BROADCASTING, L. L. C.

VERSUS

JAY INZENGA & JAY' S FURNITURE HOME STORE, L. L. C.

J McDONALD, J., concurs.

I respectfully concur. In addition to the reasons set forth in the majority opinion, I write separately to point out that there are genuine issues of material fact regarding whether Mr. Inzenga' s text messages to Mr. Daboval were sent in his individual or

representative capacity. Further, even if the text messages were sent on his own

behalf, there are genuine issues of material fact as to the extent to which Mr. Inzenga assumed Jay's Furniture's debt under La. C. C. art. 1822.

First, I think there are genuine issues of material fact as to whether Mr. Inzenga

sent the text messages in his individual capacity. In reviewing a summary judgment, factual inferences reasonably drawn from the evidence must be construed in favor of the non- moving party, and all doubt must be resolved in his favor. Pontchartrain

Natural Gas System v. Texas Brine Co., LLC, 18- 0606 ( La. App. 1 Cir. 12/ 21/ 18), 268

So. 3d 1058, 1062, writ denied, 19- 0526 ( La. 17/ 19), 273 So. 3d 1210. Construing Mr. Inzenga' s ambiguous text messages in his favor, and resolving doubt as to Mr. Inzenga' s intent in his favor, the reasonable inference is that he sent the text messages on Jay's Furniture' s behalf, not individually. The majority opinion pretermits

consideration of this issue.

Second, even if Mr. Inzenga did assume Jay's Furniture's obligation to pay the advertising debt, under La. C. C. art. 1822, a person who assumes another's obligation is bound ' only to the extent of his obligation." See Crosstex Energy Services, LP v. Texas Brine Company, LLC, 18- 1213 ( La. App. 1 Cir. 7/ 11/ 19), 2019 WL 3049762 * 4.

Because Mr. Inzenga' s text messages contain no specific dollar amount, I do not think they show the " extent" to which Mr. Inzenga bound himself to pay Jay's Furniture' s advertising debt. I would base the reversal of the judgment on WBRZ' s lack of

summary judgment proof under La. C. C. art. 1822, rather than on the more general provision of La. C. C. art. 1973, upon which the majority opinion relies.