Nola Fine Art, Inc. v. Ducks Unlimited, Inc.
Nola Fine Art, Inc. v. Ducks Unlimited, Inc.
Opinion of the Court
ORDER AND REASONS
Before the Court is defendant, Ducks Unlimited, Inc.’s motions for summary judgment on plaintiffs’ contract,
I. BACKGROUND
This suit arises from a failed charitable project intended to raise money for the restoration of Cat Island, a small island off the coast of Southeast Louisiana. Plaque-mines Parish Coastal Director P.J. Hahn spearheaded the project and met with plaintiff Michael Hunt in late May or early June of 2012 to discuss Hunt’s interest in participating in the project.
After securing plaintiffs’ participation, Hahn approached Ducks Unlimited to gauge their interest in lending their name, logo, and reputation to the project.
Over the next month and a half, Hunt finished the project and began to advertise the prints. Ducks Unlimited also advertised the prints in its August 2012 “Louisiana DU News” publication.
Unsatisfied with Ducks Unlimited’s performance, Hunt withdrew from the project, refused to sell any additional prints, and brought this suit alleging breach of contract, detrimental reliance, unfair trade practices, and fraud under Louisiana law.
II. LEGAL STANDARD
Summary judgment is warranted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, the Court considers “all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 1075.
If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party “must come forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’ ” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonmoving party can then defeat the motion by either countering with evidence sufficient to demonstrate the existence of a genuine dispute of material fact, or “showing that the moving party’s evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324, 106 S.Ct. 2548. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry of summary judgment, after adequate time
III. DISCUSSION
a. Ducks Unlimited’s Motion to Strike Plaintiffs’ Summary Judgment Exhibits
Ducks Unlimited moves to strike two of plaintiffs’ summary judgment exhibits.
Ducks Unlimited first argues that the Hahn email is not competent summary judgment evidence because it is inadmissible hearsay. Hahn’s email, dated August 10, 2012, is addressed to Michael Patterson, Ducks Unlimited’s 2012 Publicity Chairman.
The Court likewise overrules Ducks Unlimited’s objection to the transcript of the recorded conversation between Hunt, Hahn, and Garrity.
b. Ducks Unlimited’s Summary Judgment Motions
i. Plaintiffs’ Contract Claim
Ducks Unlimited moves for summary judgment on plaintiffs’ breach of contract claim arguing (1) that plaintiffs failed to proffer sufficient evidence to create a question of fact as to whether the parties formed a contract, (2) that Louisiana law requires the contract to be in writing because the alleged contract is a stipulation pour autrui, and (3) that Hurricane Isaac’s landfall was a resolutory condition that terminated Ducks Unlimited’s obligations under the alleged contract. The Court will address Ducks Unlimited’s arguments in turn.
Ducks Unlimited first argues that plaintiffs failed to proffer sufficient evidence to create a question of fact as to whether the parties formed a contract. “A party who demands performance of an obligation must prove the existence of the obligation.” La. Civ.Code art. 1831. A contract is formed by the consent of the parties established through offer and acceptance, and “[ujnless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent.” La Civ.Code art. 1927. However, an oral contract valued at more than $500 “must be proved by at least one credible witness and other corroborating circumstances.” La. Civ.Code art. 1846. Although “[t]he plaintiff himself may serve as the witness to establish the existence of the oral contract,” the “corroborating circumstances” must come from a source other than the plaintiff. Suire v. Lafayette City-Parish Consol. Gov’t, 907 So.2d 37, 58 (La. 2005). The corroborating circumstances need only be general in nature; “independent proof of every detail of the agreement is not required.” Id. (citing Kilpatrick v. Kilpatrick, 660 So.2d 182, 185 (La.App. 2d Cir. 1995)).
Here, plaintiffs have proffered sufficient evidence to create a question of fact as to whether the parties entered into a contract. Michael Hunt provided an affidavit which states that Robert Garrity contracted on Ducks Unlimited’s behalf and agreed to donate a portion of Ducks Unlimited’s licensing fee proceeds to the Cat Island restoration project and further agreed to send email advertisements to its 650,000 members nationwide.
The “Cat Island Project” print was commissioned by DU President John Newman and DU State Chairman, Robert Garrity and was unveiled at the 2012 Louisiana DU State Convention in New Orleans, LA. These prints are now available for sale with a portion of the proceeds going towards the restoration of the Cat Islands, a nesting habitat of the Brown Pelican.32
Not only does Ducks Unlimited’s own publication support the existence of a contract between the parties, but it also supports plaintiffs’ contention that Ducks Unlimited agreed to donate a portion of its licensing fees to the Cat Island restoration project. This is sufficient under Article 1846. See Harang v. Schwartz, CIV. A. No. 13-58, 2014 WL 4084939, at *8 (E.D.La. Aug. 15, 2014) (denying judgment as a matter of law because “corroborating circumstances need only be general in nature”); Robert Hale, III v. M.J.J.K., LLC, CIV. A. No. 12-1515, 2013 WL 6835987, at *3 (E.D.La. Dec. 23, 2013) (denying summary judgment because “[w]hether a plaintiff has offered sufficient corroborating evidence is a question of fact”). Accordingly, the Court finds that plaintiffs have proffered sufficient evidence to create a question of fact as to the existence and terms of a contract between the parties.
Ducks Unlimited next argues that, if there was a contract between the parties, it was for the benefit of Cat Island, and Louisiana law requires third party beneficiary contracts, known as stipulations pour autrui, to be in writing. Contrary to Ducks Unlimited’s assertion, Louisiana law does not require third party beneficiary contracts to be in writing. Joseph v. Hosp. Serv. Dist. No. 2 of Parish of St Mary, 939 So.2d 1206, 1215 (La. 2006) (“Review of the former articles, as well as the current articles related to a third party beneficiary contract, indicates that there is no statutory requirement that the stipulation pour autrui be in writing.”). Thus, even if the Court were to assume that the parties agreement constitutes a stipulation pour autrui the Louisiana Supreme Court has expressly held that there is “no general requirement that stipulations pour au-trui be in writing.” Id. at 1215 n. 13. Accordingly, the Court finds Ducks Unlimited’s second argument to be without merit.
Ducks Unlimited’s final argument is that Hurricane Isaac’s landfall on August 28, 2012 fulfilled an implied resolutory condition thereby terminating Ducks Unlimited’s obligations under the contract.
Although a proponent of a contract has the burden to prove the contract’s exis
The Court also finds that there is a question of fact as to whether Ducks Unlimited breached the alleged contract before Hurricane Isaac’s landfall. Hunt met with Garrity and Hahn on August 20, 2012, eight days before Hurricane Isaac made landfall.
For all the foregoing reasons, the Court denies Ducks Unlimited’s motion for summary judgment on plaintiffs’ breach of contract claim.
ii. Plaintiffs’ Detrimental Reliance Claim
Ducks Unlimited next moves for summary judgment on plaintiffs’ detrimental reliance claim. Ducks Unlimited argues that plaintiffs failed to provide evidence demonstrating that plaintiffs relied on Ducks Unlimited’s alleged promises to their detriment.
Louisiana Civil Code article 1967 governs plaintiffs’ detrimental reliance claim. That article provides, in pertinent part:
A party may be Obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.40
Although plaintiffs have provided evidence that Garrity made the alleged promises, the Court finds that plaintiffs have failed to provide any evidence demonstrating a change in their position based on their reliance on Ducks Unlimited’s alleged promises. Indeed, plaintiffs spend the majority of their opposition quoting from allegations in the complaint:
Plaintiffs allege in their Complaint that Ducks Unlimited commissioned the prints and that in return Ducks Unlimited obligated itself to donate its 20% interest in the proceeds directly to the Cat Island project for the restoration of Cat Island. The Complaint further states as a result of Ñola Fine Arts Commitments that: “In return, DU would market and promote the prints to their 650,000 members nationally” and take other steps to promote the sale of the prints and the goals of the project. The Complaint further states that Hunt would have to postpone other projects to focus his efforts and the efforts on the prints and that marketing would have to be swift and massive. “Noía Fine Arts set aside two pending projects and focused on the Cat Island project exclusively.41
It is well-settled, however, that to survive summary judgment a plaintiff must do more than rest on allegations contained in the complaint. Celotex, 477 U.S. at 325, 106 S.Ct. 2548; see also Weyant v. Acceptance Ins. Co., 917 F.2d 209, 212 (5th Cir. 1990) (to survive summary judgment, “the party opposing the motion may not sit on its hands, complacently relying upon the pleadings”).
Notwithstanding this failure, plaintiffs do make the general assertion that the “record reflects a genuine issue of material fact as to the nature of the promises, the reliance upon them, and the detriment caused to the plaintiff,” and cite every exhibit they attach to the pleading in support.
As an initial matter, “affidavits setting forth ultimate or conclusory facts ... are insufficient to either support or defeat a motion for summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (internal quotations omitted); see also Young v. Equifax Credit Info. Servs., Inc., 294 F.3d 631, 639 (5th Cir. 2002). Thus, Hunt’s assertion that he “relied on these promises from DU” is insufficient to defeat Ducks Unlimited’s motion for summary judgment. Moreover, Hunt’s assertion that he had to forego other work to participate in the project does not demonstrate that he changed his position in reliance on Ducks
For the foregoing reasons, Ducks Unlimited’s motion for summary judgment on plaintiffs’ detrimental reliance claim is granted.
iii. Plaintiffs’ Unfair Trade Practices Claim
Plaintiffs also allege that Ducks Unlimited’s conduct violated the Louisiana Unfair Trade Practices Act (“LUTPA”). See La. Rev.Stat. § 51:1405 (“Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.”). Ducks Unlimited moves for summary judgment on the LUTPA claim arguing that plaintiffs lack standing to bring a LUTPA claim and that plaintiffs have failed to prove that Ducks Unlimited engaged in conduct proscribed by the act.
Ducks Unlimited first argues that LUTPA claims are limited to individual consumers or business competitors, and that plaintiffs do not fit into either category. Although the Fifth Circuit previously limited LUTPA’s private right of action to individual consumers or business competitors, Orthopedic & Sports Injury Clinic v. Wang Labs., Inc., 922 F.2d 220, 226 (5th Cir. 1991), the Louisiana Supreme Court has since clarified that LUTPA includes no such limitation. Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 35 So.3d 1053, 1057 (La. 2010) (“LUTPA grants a right of action to any person, natural or juridical, who suffers an ascertainable loss.... Although business consumers and competitors are included in the group afforded this private right of action, they are not its exclusive members.”). See also Burgers v. Bickford, CIV. A. No. 12-2009, 2014 WL 4186757, at *3 (E.D.La. Aug. 22, 2014) (applying the Cheramie Servs. standard rather than “older Fifth Circuit law on the issue”). Because plaintiffs allege that they have suffered an ascertainable loss as a result of Ducks Unlimited’s “unfair or deceptive acts,” the Court finds that plaintiffs have standing to bring a LUTPA claim.
Ducks Unlimited next argues that even if plaintiffs have standing to bring a LUTPA claim, they have nevertheless failed to demonstrate that Ducks Unlimited engaged in conduct proscribed by the act. The Court agrees.
To succeed on a LUTPA claim, a plaintiff must show that the defendant en
Plaintiffs contend that Turner is inapposite because Ducks Unlimited engaged in “unethical, unscrupulous, and substantially injurious behavior in addition to breaching the contract.”
iv. Plaintiffs’ Fraud Claim
Ducks Unlimited also moves for summary judgment on plaintiffs’ fraud
Ducks Unlimited first contends that plaintiffs have failed to identify a specific misrepresentation by Ducks Unlimited, arguing that an “affidavit from someone other than Hunt” is required to prove that Ducks Unlimited made the alleged promises.
Although the Court finds that plaintiffs have provided sufficient evidence to create a question of fact as to whether Garrity made the alleged promises, plaintiffs have failed to provide sufficient evidence of Ducks Unlimited’s intent to defraud. As stated above, a fraud claim under Louisiana law requires proof of a defendant’s “intent to obtain an unjust advantage or to cause damage or inconvenience to another.” Shelton, 798 So.2d at 64. Additionally, in order to differentiate their claim from a simple breach of contract, plaintiffs must provide evidence tending to show that Ducks Unlimited made the alleged promises with the intent not to perform at the time the promises were made. Keenan, 575 F.3d at 490 (“A breach of promise, standing alone, is not enough for a fraud claim.”).
The undisputed evidence here shows that Ducks Unlimited had a 20% interest in the project,
For the foregoing reasons, the Court grants Ducks Unlimited’s motion for summary judgment on plaintiffs’ fraud claim.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Ducks Unlimited’s motions for summary judgment on plaintiffs’ detrimental reliance,
. R. Doc. 37.
. R. Doc. 38.
.R. Doc. 39.
. R. Doc. 40.
. R. Doc. 50.
. R. Doc. 1 at 2.
. Id. at 3-4.
. Id. at 4-5 (“NOLA Fine Art anticipated that such a project would sell out quickly, be profitable, charitable, and earn favorable publicity for him by having generated the donated funds from the sale of his art.”).
. R. Doc. 37-3 at 3.
. R. Doc. 37-3 at 3.
. Id.
. R. Doc. 48-2 at 2 ("Ducks Unlimited's sole obligations under the parties’ agreement was that it was to actively and regularly advertise the prints to its over 650,000 members and it was to turn over a portion of its percentage to the restoration of Cat Island.”).
. R. Doc. 48-6. The Newsletter reads, in pertinent part: “The 'Cat Island Project' print was commissioned by DU President John Newman and DU State Chairman, Robert Garrity and was unveiled at the 2012 Louisiana DU State Convention in New Orleans, LA. These prints are now available for sale with a portion of the proceeds going towards the restoration of the Cat Islands, a nesting habitat of the Brown Pelican.”
. R. Doc. 48-5.
. Id. at 16. Garrity confirmed Ducks Unlimited’s position in his deposition. R. Doc. 48-8 at 5.
. R. Doc. 48-5 at 29 ("[W]e can do web blasts from the state. We can’t do 'em nationally.”).
. R. Doc. 1.
. R. Docs. 37-40.
. R. Doc. 50.
. R. Doc. 50.
. R. Docs. 47-3, 48-3, and 49-3.
. R. Docs. 47-5, 48-5, and 49-5.
. R. Doc. 47-3 at 3. Michael Hunt and Robert Garrity were also copied on the email.
. Id.
. R. Doc. 50-2 at 2.
. R. Doc. 48-2 at 4.
. R. Docs. 47-5, 48-5, and 49-5.
. R. Doc. 50-2 at 3.
. R. Doc. 48-2 at 4.
. R. Doc. 49-2 at 2.
. R. Doc. 48-6 at 8.
. Id.
. R. Doc. 37-3 at 12.
. R. Doc. 37-4 at 2.
. R. Doc. 37-4.
. R. Doc. 49-5.
. Id. at 16.
. Id. at 29.
. R. Doc. 38-3 at 4.
. La. Civ.Code art. 1967.
. R. Doc. 49 at 3.
. Id. at 3-4.
. R. Doc. 49-2 at 2.
. R. Doc. 1 at 6 ("Prior to DU’s involvement, ÑOLA Fine Arts’ original plan was to produce 1000 prints ... and market these Celebrity Edition prints to his collectors and general public without the DU logo for $250 each, generating a profit for NOLA Fine Art.”).
. R. Doc. 40-3.
. R. Doc. 47 at 12.
. Id. at 12-17.
. R. Doc. 47-2 ("Ducks Unlimited’s sole obligations under the parties' agreement was that it was to actively and regularly advertise the prints to its over 650,000 members and it was to turn over a portion of its percentage to the restoration of Cat Island.”).
. R. Doc. 39-3.
. R. Doc. 54 at 10.
. R. Doc. 47-2 at 2.
. R. Doc. 37-3 at 3.
. See, e.g., R. Doc. 47 at 18 (“Ducks Unlimited advertised and induced others to participate in the project as a response to the BP disaster, yet it quickly backpedaled and killed the deal through its failure to advertise when BP’s concerns were brought to its attention.”); id. at 5 (“Faced with the choice of continuing with the project as agreed to, or reneging and accommodating BP, [Ducks Unlimited] sided with BP.”).
. R. Doc. 38.
. R. Doc. 40.
. R. Doc. 39.
. R. Doc. 37.
. R. Doc. 50.
Reference
- Full Case Name
- NOLA FINE ART, INC. and Michael Hunt v. DUCKS UNLIMITED, INC.
- Cited By
- 7 cases
- Status
- Published