NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2007 CA 2257
LIS SETTE SAVOY MENENDEZ AS THE APPOINTED
NATURAL TRUTRIX OF VANESSA SAVOY
VERSUS
MICHAEL B O NIELL FRIENDS ENTERPRISES LLC AND
PROGRESSIVE SECURITY INSURANCE COMPANY
flJ
Judgment Rendered June
cpJJ
Appealed
6 2008
from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge Louisiana
Trial Court Number 519 357
Honorable
Lewis O
Kay Bates Judge
Attorneys for
Unglesby
Robert M Marionneaux Jr
Plaintiff
Baton
Vanessa
Rouge
LA
Appellant
Savoy
William C Helm
Attorney for
Baton
Defendant
Rouge
LA
Appellee
Marc Fraioli
Donald R Smith
Kelly
Baton
E
Balfour
Rouge
Charles L
Baton
Attorneys for
Defendant Appellee
Progressive Security Ins
LA
Chassaignac
Rouge
Attorney for
IV
Defendant
LA
Friends
Attorney for
Baton
Defendants
Naquin Jr
Rouge LA
Appellee
Enterprises
C John
CARTER
J
C
LLC
Appellees
Darin P Adams
BEFORE
Co
CB
PETTIGREW AND WELCH JJ
LLC
WELCH J
In this
appeal plaintiff Lissette Savoy Menendez challenges
judgment entered by the trial
tort
court
dismissing
a
summary
defendant Marc Fraioli from this
We affirm
litigation
BACKGROUND
On
travelling
a
22 2004
February
Louisiana
on
19 year old
On
this lawsuit
seeking
the
Insurance
In the
April
Named
alleged
vehicle driven
Highway 30 in
by Michael O Niell crashed while
East Baton
Rouge Parish
guest passenger in the vehicle sustained
the collision
daughter
a
to recover
as
owner
20 2004 Vanessa
s
severe
tutrix Lissette
Vanessa
injuries
as a
Savoy
result of
Savoy Menendez filed
damages arising from the collision on behalf of her
defendants
were
of the vehicle
Michael O Niell Friends
he
was
and
driving
Enterprises
LLC
Progressive Security
Company the alleged insurer of O Niell and Friends Enterprises LLC
petition plaintiff alleged
that O Niell
was
intoxicated
at
the time of the
accident and that his intoxication caused the collision
In
defendants
Fred
s
Reggie
the
to
s
and its
s
on
intoxicated
was
the
as a
amending petition
owner
Marc Fraioli
Darin Adams
under the
evening
owner
legal drinking
alleged
of alcohol
further
the
to
that Mr Fraioli
were
Inc
B
db
a
b
d
a
LLC
petition plaintiff alleged that
consumed alcohol
at
Fred
s
and
She asserted that O Niell became
on
the
theory of respondeat superior
under age patrons and thus breached
of C B
additional
Rouge
along with C
that Triumvirate and C B violated Louisiana law
alleged
owner
age
added
negligent supervision of the bar employees premising
liability against Triumvirate and C B
also
In the
of the accident
result of the
plaintiff
Triumvirate of Baton
litigation including
Bar and Grill and its
O Niell who
Reggie
and
supplemental
a
as
the
owner
a
2
prohibiting the sale
statutory duty
Plaintiff
of Triumvirate and Mr Adams
liable under the alter ego doctrine
She
as
Mr Fraioli filed
corporate shield
no
evidence
seeking
an
to
motion for summary
defense
his
to
He
personal liability
that
charged
heavy burden of proof placed by law
not carry her
pierce the corporate veil
In
s
plaintiff had
certificate issued
corporation
s
on
plaintiffs
support of the motion Mr Fraioli attached
affidavit in which he attested that Triumvirate
Grill and that he is the
owns
and operates Fred
sole shareholder
by the Secretary of State
on
certified that Triumvirate filed its charter and
on
judgment asserting Triumvirate
support her allegation that he is the alter ego of Triumvirate and that
to
could
plaintiff
as a
a
July
to
Bar and
He also introduced
6 2006
qualified
s
in which the
a
Secretary
do business in this
state
January 18 1982 and that Triumvirate is currently in good standing and is
authorized
do business in this
to
Triumvirate
s
1982 articles of
Additionally
state
the
incorporation
with various annual reports filed by the
Mr
corporation
corporation
s
from 1983
Fraioli introduced
initial report
along
through January
18
2006
In
opposition
material fact
as
Mr
preventing
to
to
the motion
plaintiff urged
that there
Fraioli from
of Fred
the
owned Fred
s
and that he
such had sole control
Mr
asked
to
accident
was
over
Fraioli who
corporate
In the
represented by Mr Fraioli
Fraioli
thus
Plaintiff introduced O Niell
s
was
accident and admitted that he consumed alcohol
introduced
issues of
hiding behind its corporate veil and making him
deposition in which he acknowledged that he
also
genuine
whether Triumvirate is the alter ego of Mr
personally liable for the actions
She
were
the
Fred
was not
testify regarding Fred
s
s
20 years old
at
Fred
s
at
prior
the time of the
to
deposition of Triumvirate
deposition
s
the accident
which
was
Mr Fraioli attested that Triumvirate
president and sole
owner
of Triumvirate and
as
operation
present
at
Fred
s on
the
night in question
general operational practices
including its hiring practices and methods
3
to
near
was
the time of the
prevent under age
employees working
Fraioli testified that Fred
Mr
consumption of alcohol
given night including
on a
Mr Fraioli stated that he
doormen
7 30 and
per week
night
one
drink
that
to consume
given
are
a
were
He
the crowd to make
admitted that Fred
Board for
In
Mr
requires
s
are
s
to
an
at
20
by
a
in Fred
Fred
In
s
s
to
the
pierce
the fact that Fred
Fred
The trial
s
were
insufficient
Mr Fraioli
were no
as a
to
stamp
are
that under age patrons
He also
the Alcohol and Control
corporate veil plaintiff stressed that
ran
operated and managed Fred
had been cited for
s
serving under
court
found Mr Fraioli
matter
of law
to
s
justify piercing
motion for summary judgment the
age
buy
active involvement
consumption
age
to
s
of alcohol
at
the corporate veil
court
concluded that
exceptional circumstances that would justify denying
Mr Fraioli the
s
benefit oflimited personal
This
age
under age patron
operation and his knowledge of under
granting
there
at
show
employees
drinkers and that Mr Fraioli knew that under age persons got persons of age
alcohol for them
at
to enter
legal
his establishment
1988
or
Fraioli the sole member of Triumvirate
on
was aware
buy their alcohol
support of her attempt
She also focused
to
stamped with
s
two
morning
only the people who have wristbands
sure
had been cited in 1987
serving alcohol
are
21 and thus ofthe
are
and
its patrons
Fraioli attested that Fred
acknowledged however that he
to
the bar every
19 and 20 and males who
are
Mr
one
other persons
getting
at
wristband while patrons under that age
generally monitor
drinking
worked
alcohol Patrons who
under twenty
states
who
bartender
manager
He testified that Fred
proof of age and allows females
the bar but not
generally
a
generally had four
s
liability
appeal taken by plaintiff followed
DISCUSSION
Appellate
courts
governing the trial
review summary judgments de
court
s
novo
consideration of whether
4
a
under the
summary
same
criteria
judgment is
appropriate
Love
AAA
v
2006 1679 p 3
Under La C C P
961 So 2d 480 483
5 4 07
Inc
Temporaries
966
art
judgment should be granted only if the pleadings
admissions
interrogatories
issue
as
to
allegedly serving
or
depositions
answers
is entitled
to judgment as
Fraioli
s
no
matter
a
liability solely
to
genuine
of law
on
the basis
She asserted that because Triumvirate is the alter ego
of Mr Fraioli Mr Fraioli is
The issue
mover
pleadings plaintiff premised Mr
of the alter ego doctrine
motion for summary
file and affidavits show that there is
on
material fact and the
ln her
a
App 1st Cir
La
liable for the actions of the
personally
allowing
an
under age patron
presented by the motion for
to
consume
judgment
summary
was
corporation in
alcohol
at Fred
s
thus whether Mr
Fraioli could be held personally liable for the debt of Triumvirate
a
corporation
of
which he is the sole shareholder
As
a
shareholder
The law
on
general
rule
individuals who
debts of the
corporation
La
st
App 1 Cir
exceptions
corporation
corporation is
to
whereby
La
App
3 28 03
pierced
1
st
a
only
two
art
25
6
99
non
court may
Cir 12 20 02
840 So 2d 578
in
CC
the rule of
individual shareholders liable
8
distinct
a
legal entity separate
comprise them and individual shareholders
98 1420 p 7 La
limited
a
liability for the debts of a corporation is well settled
Rock
24
ATPIC
v
739 So 2d 874 879
Louisiana
Trucking Co
There
Inc
2d
So
663
courts
v
669 writ denied
have allowed
a
corporate veil
second
conduct business
where the shareholders fail
the corporate
corporation become indistinguishable
entity
to
to
deceit
such
McDonough
5
2003 0224 La
to
be
The first is where the shareholders
exceptional circumstances
disregarding
however
Uter 2001 0506 p
or
footing
are
Inc
ignore the corporate fiction and hold the
acting through the corporation commit fraud
occurs
liable for the
liability of shareholders for the debts of the
Imperial Trading Co
837
are not
from the
on
extent
a
third party
that
on a
The
corporate
they and the
Marine Service
a
Division
of Marmac
Corporation
So 2d 305
308
Doucet 95 2087 p 5
In the second scenario
instrumentality
determining
v
whether
to
apply
2
for
the
and
incorporation
undercapitalization
records
and
failure
4
failure
5
McDonough 95 2087
Where
a
for
at
to
to
failure
of
provide separate
bank
hold
asserts
and may carry this burden
by the
burden then shifts
plaintiff
merit
to
the
piercing the corporate veil
to
and
accounts
requiring her
Plaintiff failed
to
and Triumvirate
show the
Triumvirate
regarding
not
Triumvirate
no
by
Mr
on
Fraioli
corporation is
or
record
disregarding
Cir
16
2
06
the fact that Triumvirate is
10
sufficient alone
the corporate
922
2d
So
entity
1267
corporation
The
circumstances which
proof shifted
as
a
v
theory of liability
indicia that Mr Fraioli
Although plaintiff took
were
or
Mr
or
of law
Fraioli
whether
Plaintiff
and controlled
majority shareholder in
to
establish
a
Simmons 40 000 p 16 La
1279 80 writ denied 2006 0793
6
to
posed
keeping practices
sole
To
plaintiff
to
transacting its affairs
as a matter
Riddle
ego
solely owned operated
However the involvement of
not
by law
questions
Triumvirate followed statutory formalities
instead relies
liability
corporate existence
s
actually separate entities
accounting
s
meetings
other documents
exceptional
the burden of
judgment
corporate deposition
s
director
holding the individual shareholder liable Id
offer any evidence identified
are
3
bookkeeping
defense from
or
produce evidence in support of her alter
to
and
of
required
affairs
the existence of the
proving
Mr Fraioli met his burden of proving Triumvirate
survive the motion for summary
or
as a
of corporate charter
use
the
309
the corporate shield
the shareholder has the initial burden of
as
commingling
corporate
regular shareholder
at
1
follow statutory formalities
transaction
p 7 694 So 2d
shareholder
to
to
694
Some factors considered in
Jd
the alter ego doctrine include
corporate and shareholder funds
Cir 6 28 96
corporation is referred
of the members
alter ego
or
the
App 151
La
La 6
a
basis for
App 2nd
06
2
929
So 2d 1259
under age
Moreover
we
find the fact that Mr Fraioli may have been
consumption of alcohol
sufficient basis
to
pierce
at
his establishment is
the corporate veil and
not
aware
of
alone
a
standing
impose personal liability
on
him
under the alter ego doctrine
It is clear that
fact
as
to Mr
Fraioli
plaintiff failed
s
liability
on an
correctly granted the motion for
Fraioli
s
to
personal liability based
offer evidence
alter ego
summary
on
to create
material issue of
Accordingly the trial
theory
judgment
a
as
to
plaintiff s theory
court
of Mr
the alter ego doctrine
CONCLUSION
For the
costs
of this
foregoing
appeal
are
reasons
assessed
to
the
judgment appealed from is affirmed
All
appellant Lissette Savoy Menendez
AFFIRMED
We note that in her petition
plaintiff failed to allege that Mr Fraioli who was not present
had any personal involvement in O Niell s alcohol
at Fred s on the night in question
consumption that might support a cause of action for a breach of a personal duty and the
imposition of personal liability on that legal basis
7