### STATE OF LOUISIANA 

### COURT OF APPEAL j 

### FIRST CIRCUIT

2023 CA 1046 LAURIE V. MOORE VERSUS 

### EDWARD J. VAUTHIER, III, AND L& E ONE, LLC AND L& 

### E II, LLC

JUDGMENT RENDERED: 

### APR 19 2024 

### Appealed from the Twenty - Second Judicial District Court 

### Parish ofSt. Tammany • State of Louisiana Docket Number 2022- 12281 • Division F 

### The Honorable Vincent J. Lobello, Presiding Judge

David M. McDonald COUNSEL FOR APPELLANT Molly M. Jones PLAINT{FP--- Laurie V. Moore John D. Perez Metairie, Louisiana 

### Richard A. Tonry, II COUNSEL FOR APPELLEES Raymond J. Brinson DEFENOAMrsEdward J. Vauthier, Brian L. Glorioso III; L& E One, LLC; L& E, II, LLC; S. Michele Blanchard and the Succession of Edward J. Slidell, Louisiana Vauthier, Jr.

BEFORE; 

### WELCH, WOLFE, AND STROMBERG, LTJ.WELCH, J.



### In this quitclaim nullity action, plaintiff sought to annul two quit claims on 

## the basis offraud that were executed approximately nine years priorto the filing of the nullity action. Defendants filed a dilatory exception raising the objection of vagueness and a peremptory exception raising the objection ofprescription, arguing 

### that plaintiff's nullity action was prescribed under the five-year period set forth in 

### La.C.C. art.2032 forrelative nullities. Following a hearing,the trial court sustained defendants' prescription exception and denied the vagueness exception as moot. For the reasons discussed herein, we affirm. FACTS AND PROCEDURAL HISTORY 

### The plaintiff,Laurie V. Moore, instituted this action on May 26,2022 to annul two quitclaims; plaintiff also filed an amended and supplemental petition. In her petitions, plaintiff named as defendants her brother, Edward Vauthier, III (" EV3"); L& E One, LLC (" L& E One"); L& E II, LLC (" L& E II"); and the Succession of Edward Vauthier, Jr. (" EVJ"). Plaintiff alleged that her father, EVJ, and her brother, 

### EV3, created two limited liability companies, L& E One and L& E II, which plaintiff believed stood for " Laurie & Edward as One" in order to provide protection for 

### certain income-producing property co - owned by plaintiff, her brother, and her father. Plaintiffargued that EV3 and/or EVJ conspired to deprive her ofher interest in L& E One and L& E II and alleged defendants " 

### utilized fraudulent and misleading tactics to convince [ plaintiff) to sign" 

### two quitclaim deeds on July 30, 2013, that 

### purportedly transferred her interest in the co - owned property to L& E One and L& E II. She further alleged that she was " unaware that [ L& E One] and [ L& E II] were solely owned" 

### by EVJ and EV3. Plaintiff alleged that "[ fJurther perpetuating his scheme," her brother waited until afterthe death oftheir father' to file the quitclaims 

### 1 Plaintiffstates her father passed away on January 14, 2020. EVJ's ownership in L&E One and L& E 11 was placed into the Succession of Edward Vauthier, Jr., which was opened on March 10, 2020. 2into the conveyance office on March 2, 2020. Plaintiff alleged that her brother

committed fraud pursuant to La. C.C. art. 

### 1953 by using misrepresentation and 

### suppression ofthetruthwith the intention ofobtaining an unjust advantage, entitling plaintiffto nullity ofthe quitclaims, any damages related to the loss ofuse, loss of fruits, and/or loss ofthe ability to make insurance claims against the property, and attorney' s fees. 

### Defendants filed a dilatory exception raising the objection ofvagueness' and a peremptory exception raising the objection of prescription. In their supporting
memorandum, 

### defendants argued that EVJ created the two limited liability companies on July 29, 2013, ofwhich EVJ was the sole member and ofwhich EVJ 

### and EV3 were the sole managers. Also on July 29, 2013, EVJ drafted a last will and 

### testament and left all ofthis propertyto his son, EV3, including the property at issue 

### in the quitclaim deeds. Defendants argued that on July 30, 2013, the plaintiff,EVJ, and EV3 entered into two separate quitclaim deeds that purportedly transferred all of the parties' interest in four immovable properties to L& E One and L& E 11, respectively. 3 Defendants contended that plaintiffs action for annulment was prescribed on the face ofthe pleadings under the five-year period set forth in La. C. C. art. 2032 for relative nullities. Defendants argue that over eight years had passed since plaintiff signed and agreed to the quitclaim deeds—

### July 30, 2013— and the time she 

### instituted hernullity action—May 26, 2022. Defendants argued that plaintiffhad the 

### burden to show that her nullity action had not prescribed.



## z We pretermitanydiscussion ofthe vagueness exception,asthat ruling isnotat issue on appeal. 3 Defendants stated that the first quitclaim deed transferred the parties' interest in the property Municipal No. 57458 Dunbar Drive, Slidell, Louisiana 70460 and Municipal No, 2033-35 Roosevelt Boulevard, Kenner, Louisiana 70062 to L& E One. Defendants claimed the second 

### quitclaim deed transferred the parties' interest in the property Municipal No. 2726-28 Panama Street, Kenner, Louisiana 70062 and Municipal No. 2705- 10 Huntsville Street, Kenner, Louisiana 70062 to L& E II. 3Plaintiff opposed defendants' exceptions. Plaintiff stated that she was " under

the impression that [L& E One] and [ L&

### E I1] would belong to" her and her brother 

### afterthe death oftheirfatherbased on the company' s name " L& E," i.e., " Laurie and Edward as One." Plaintiff contended that she " was unaware" that her father' s last will and testament " 

### would leave her out completely," which she did not discover 

### until afterEVJ's death on January 14, 2020. She furtherargued that EV3 did not file the quitclaim deeds into the records ofthe conveyance office until March 2, 2020, two months after EVJ' s death. Plaintiffclaimed that she did not discover the alleged fraud until after the death of her father in 2020; therefore, she argued that prescription did not begin to run until 2020. Plaintiff argued that she filed suit two 

### years after her discovery ofany alleged fraud, well within the five-year prescriptive period for relative nullities provided for in La. C.C. art. 2032. 

### Atthe hearing on defendants' exceptions,the trial court sustained defendants' exception ofprescription and denied the exception ofvagueness as moot. Thereafter, 

### the trial court signed ajudgment on March 29, 2023, in conformity with its oral ruling and dismissed all ofplaintiff's claims against defendants with prejudice. The trial court also denied defendants' exception of vagueness as moot. Plaintiff now 

### appealS. 4 PRESCRIPTION OF ACTION FOR RELATIVE NULLITY 

### An action for nullity alleging fraud is arelative nullity,not an absolute nullity. See Radcliffe 10, L.L.C. v. Burger, 2016-0768 ( La. 1/ 25/ 17), 219 So.3d 296, 303 

### n. 19; United Most Worshipful King George's Grand Lodge A.F. & A. Masons 

### v. Lewis, 2021- 1326 (La. App. 1 Cir.418122), 342 So.3d 36, 40. As set forth in La. 

### C.C. art. 2032, an action ofannulment ofa relatively null contract must be brought 

### within five years from the time the ground for nullity either ceased, as in the case of

a Plaintifffiled amotion fordevolutive appeal on May 27, 2023. The trial court signed an order of appeal on June 2, 2023, notice ofwhich was transmitted by the Clerk of Court to the parties on June 5, 2023. 4

## incapacity orduress, orwas discovered,as inthe case oferrororfraud.Accordingly,

plaintiffs' allegations that the two quitclaim deeds at issue are relative nullities must 

### have been asserted within five years of the execution of the quitclaim deeds. See 

### Succession ofCarpenter,2022- 192 (La.App.5 Cir.2/1123), 358 So.3d 874, 884. 

### Ordinarily,the exceptorbearsthe burden ofproofatthetrial oftheperemptory exception of prescription. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. 

### Shannon v. Vannoy, 2017- 1722 ( La. App. 1 Cir, 6/ 1/ 18), 251 So.3d 442, 448. 

### Although evidence may be introduced to support or controvert any objection pleaded, in the absence of evidence, an objection of prescription must be decided upon the facts alleged in the petition with all allegations accepted as true. La. C.C.P. art. 931; Shannon, 251 So.3d at 448-49. In the instant matter, no evidence was 

## introduced atthe hearing on defendants' exception. Accordingly, we accept as true the facts alleged in plaintiffs' petitions and applythe de novo standard to our review ofthe trial court' s legal conclusions. Shannon, 251 So.3d at 449. LAW & DISCUSSION In her sole assignment of error, plaintiff contends that the trial court erred when it sustained defendants' prescription exception and applied a five-year 

### prescriptive period instead of recognizing a cause of action for breach of contract and applying a ten-year prescriptive period.' As noted above, in the absence of evidence, the exception ofprescription must be decided upon the facts alleged in the 

### petition,which must be accepted as true. But this principle applies onlyto properly - pleaded material allegations of fact, as opposed to allegations deficient in material

5 A personal action, such as a claim for a breach of contract, is a personal action subject to a 

### liberative prescription often years. See La. C.C. art. 3499; Talley v. Baum, 2022- 1329 ( La.App. 1 Cir, 917123), 371 So.3d 1114, 1118.

5

### detail, conclusory factual allegations, or allegations of law . 6 

### Kirby v. Field, 2004- 

### 1898 ( La. App. 1 Cir. 9/23/05), 923 So.2d 131, 135, writ denied, 2005-2467 ( La. 3/ 24/06), 925 So.2d 1230. 

### Louisiana's Code of Civil Procedure uses a system of pleading based upon the narration of factual allegations. Greemon v. City of Bossier City, 2010-2828 La. 7/ 1/ 11), 65 So. 3d 1263, 1268. As set forth in La. C.C.P. art. 854, "[ n] o technical 

### forms ofpleading are required. All allegations offact ofthe petition, exceptions, or answer shall be simple, concise, and direct, and shall be set forth in numbered paragraphs." 

### As long as the facts constituting the claim or defense are alleged or proved, the party may be granted any relief to which he is entitled under the fact - pleadings and evidence. Greemon, 65 So.3d at 1268. However, La. C.C. P. art. 891( A) requires that a petition " shall contain a short, clear, and concise statement of 

### all causes of action arising out of,and ofthe material facts of,the transaction or occurrence that is the subject matter ofthe litigation.." Greemon, 65 So.3d at 1268 Emphasis in original). Otherwise, the defendant would not have adequate notice of 

### the allegation, nor an opportunity to counterthe claim. Stuckey v. Republic Fire & Cas. Ins. Co., 2019-0445 ( La. 

### App. 1 Cir. 1/ 9/20), 2020 WL 104382, * 3 unpublished). 

### After our review ofplaintiffs' petitions, taking her factual allegations as true, we find that she has failed to plead facts sufficient in material detail to establish the 

### existence ofa contract. A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. La. C.C. art. 1906. A contract is 

### formed by the consent ofthe parties established through offer and acceptance. La. b This rule is a parallel to that employed in the determination ofa peremptory exception ofno cause ofaction, where onlythe " well - pleaded" allegations offact are accepted as true. Kirby,923 

### So.2d at 135 n.5 ( citing Raney v. DeCaire, 2003- 1299 (La. 3/ 19104), 869 So.2d 114, 118). The 

### adjective " well -

pleaded" refers to properly - pleaded allegations conforming to the system offact pleading embodied in the Louisiana Code ofCivil Procedure. Allegations deficient in the factual particularity required to establish a cause of action are not " well - pleaded." 

### Kirby, 923 So.2d at 135 n.5 ( titin Ramey, 869 So.2d at 119). 31

### C.C. art. 1927; Broyles v. Ducote, 2021- 0852 (La. App. 1 Cir. 6114122), 343 So.3d

902, 909. The four elements ofa valid contract are: ( 1) capacity; (2) a lawful cause; 3) consent; and (4) a valid object. See La. C.C. arts. 1918, 1927, 1966, and 1971; Broyles, 343 So.3d at 907. Our review of the record shows that plaintiff made no factual allegations in her petitions that she entered into an oral or written contract 

### with EV3 and/or EVJ to transfer her ownership interest in the immovable property to L& E One and L&

### E II in exchange for receiving a reciprocal ownership interest in L& E One and L& E 11. We further find that plaintiff has failed to plead facts sufficient in material detail to establish the existence ofa breach ofcontract claim. The essential elements of a breach of contract claim are: ( 1) 

### the obligor's undertaking an obligation to perform; (2) the obligor failed to perform the obligation (the breach); and ( 3) the failure to perform resulted in damages to the obligee. See La. C.C. art. 1994; 

### Denham Homes, L.L.C.v.Teche Fed. Bank,2014- 1576 (La.App. 1 Cir.9118115), 182 So.3d 108, 119. Plaintiff made no factual allegations that EV3 and/or EVJ 

### promised to and thenfailed to grant her an ownership interest in L& E One and L& E II in exchange for her agreement to execute the two quitclaim deeds and transfer her 

### ownership interest in certain immovable property to L& E One and L& E 11. 

### The closest argument plaintiffmakes regarding a breach ofcontract claim is in found in her opposition memorandum to defendants' exceptions. Therein, she states that she was " under the impression" that L& E One and L&

### E II would "belong to her and [EV3] after the death oftheirfather based on the name L& E, [ i.e.], ` Laurie and Edward as One."' 

### She argued that she " was unaware that [EVJ' s] Last Will and 

### Testament would leave her out completely," and that she didn' t discover this until 

### after her father's death on January 14, 2020. However, plaintiffcannot allege facts to support a breach ofcontract claim in a memorandum in opposition to an exception 

### ofprescription. A memorandum is not recognized as a pleading, and arguments and

7allegations made in memoranda are not evidence. See La. C.C. P. arts. 852, 856, 891;

Garner v. Redwood Inv. Co., 

### 2022- 1049 (La.App. 1 Cir.7/31/23), 371 So.3d 528, 

### 533-34; Williams v. Nelson, 2018-207 (La. App. 5 Cir. 12119/ 18), 263 So.3d 466, 476, writ denied, 2019-0092 ( La. 3/ 18/ 19), 

### 267 So.3d 92 (cit_ int Vallo v. Gayle Oil Co., 94- 1238 ( La. 11/ 30/94), 646 So.2d 859, 865). And because we find that plaintiff's allegations cannot be construed as breach of contract claims, no remand of this matter to the trial court is necessitated for the presentation of evidence. See,

e. g., Johnson v. State, 2002-2382 ( La. 5120/03), 851 So.2d 918, 920-21; MedImpact Healthcare Sys., Inc. v. Div. of Admin., 

### 2021- 1367 ( La. App. 1 Cir. 6/3122), 343 So.3d 705, 714. Furthermore, the issue ofprescription for breach ofcontract was raised for the first time on appeal in Ms. Moore' s appellant brief in this court. In the trial court, 

### the only prescriptive period that was argued was prescription from the date ofthe alleged fraud. As a general rule, appellate courts may not consider issues raised for the first time on appeal, which the trial court has not addressed. Geiger v. State ex 

### rel. Dep' t ofHealth & Hosp., 2001- 2206 (La. 4/ 12/02), 815 So.2d 80, 86; Jackson
v. Home Depot, Inc.,

### 2004- 1653 ( La. App. 1 Cir.6/ 10/05), 906 So.2d 721, 725. 

### Thus, the only issue which is properly before this court is prescription from 

### the date of any act of alleged fraud. See Geiger, 815 So.2d at 87. Fraud is a misrepresentation or a suppression of the truth made with the intention either to 

### obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. La. C.C. art. 1953. 

### To succeed on an action for fraud against a party to a contract, three elements must be proved: ( 1) a misrepresentation, suppression, or omission oftrue information; (2) the intent to obtain an unjust advantage orto cause 

### damage or inconvenience to another; and (3) the error induced by a fraudulent act 

### must relate to a circumstance substantially influencing the victim' s consent to the

### contract. Robinson v. Papania, 2022- 1010 (La. App. 1 Cir. 316123), 368 So.3d 74,

80, writ denied, 2023- 00488 (La. 5123123), 360 So.3d 1262. 

### Executed on July 30, 2013, the two quitclaim deeds allegedly transferred any interest in four immovable properties that plaintiffmay have held to L&E One and L& E II, respectively, " for valuable consideration, 

### receipt of which is hereby acknowledged[.]" In her petitions, plaintiff alleged that she was " unaware of what 

### she was signing [ and] unaware ofthe consequences[.]" However, as this court has 

### long held, signatures to an obligation are not mere ornaments. A person who signs a written instrument is presumed to know its contents and cannot avoid its obligations 

### by contending that he did not read it, orthat it was not explained, or that he did not 

### understand it. Wagner v. DA Exterminating Co. of St. Tammany, Inc., 2020- 

### 0876 (La.App. 1 Cir.4116121), 324 So.3d 105, 111. 

## Plaintiff made no factual allegations nor offered any evidence that her signature was forged, coerced, orobtained by fraud,that she lacked capacity, orthat she was illiterate and was unable to read the quitclaim deeds. Louisiana Code of Civil Procedure article 856 sets forth that "[ 

### i]n pleading fraud or mistake, the 

### circumstances constituting fraud or mistake shall be alleged with particularity." It is 

### insufficientto plead merelythat a defendant defrauded a plaintiff.A mere allegation 

## of fraud, unaccompanied by factual allegations setting forth with particularity the circumstances which constitute the same, is a mere conclusion of the pleader and 

### does not set forth a cause ofaction as to fraud. Ivy Restaurant New Orleans, LLC v.Torre, 2016-0777 (La. App. 4 Cir.211117), 211 So.3d 676, 680. In her petitions, plaintiff argued that defendants conspired to deprive her of her interest in L& E One and L& E II and alleged defendants " utilized fraudulent and 

### misleading tactics to convince [plaintiff)to sign" the quitclaims. She further alleged that she was " unaware that [ L& E One] and [ L&

### E II] were solely owned" 

### by EVJ and EV3. Fraud cannot, however, be predicated on unfulfilled promises or Istatements as to future events. See Bass v. Coupel, 93- 1270 ( 

### La. App. 1 Cir.

6123/95), 671 So.2d 344, 351, writ denied, 95- 3094 ( La. 3115196), 669 So.2d 426. The mere failure to do what one promises in orderto induce anotherto sign a contract is not fraud but a mere breach of promise. Johnson v. Unopened Succession of Alfred Covington, Jr.,

### 42,488, 42,489 (La. App. 2 Cir. 10/31/07), 969 So.2d 733, 

### 742 ( Brother's failure keep his promise to redistribute to his siblings the property purchased from parents' respective estates, which provided funds to pay the estates' debts, after brother recovered his expenses was not legal fraud, and thus, did not vitiate the siblings' consent to the purchases, where brother made a promise offuture 

### action, but did not make any misrepresentation regarding facts then existing.). At 

### best, plaintiffs allegations in this matter only show that her brother and/or father promised to perform acts in the future—

### grant her an ownership interest in L& E One and L& E II—and their failure to perform such acts is not legal fraud. See Bass, 671 So.2d at 351. 

### As a first -

parry signatoryto the quitclaim deeds, plaintiff's allegationsthatthe quitclaim deeds are relative nullities must have been asserted within five years of 

### July 30, 2013, the date ofexecution ofthe quitclaims deeds. See La. C.C. art. 2032; Succession of Carpenter, 358 So.3d at 884. Because plaintiff did not institute her 

### nullity action until May 26, 2022, her claims are prescribed. Accordingly, we find 

### thatthe trial court did not err in sustaining defendants' exception ofprescription. DECREE We affirm the trial court' s March 29, 2023 judgment. All costs ofthis appeal
are assessed to the plaintiff-appellant, Laurie V. Moore. AFFIRMED.

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