DONALD PALMER * NO. 2025-CA-0391
VERSUS * COURT OF APPEAL
CRESCENT CITY AUCTION * FOURTH CIRCUIT GALLERY, LLC
* STATE OF LOUISIANA
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APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2024-08022, DIVISION “A”
Honorable Ellen M Hazeur, Judge
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JUDGE SANDRA CABRINA JENKINS
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(Court composed of Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge Karen K. Herman)
Daniel Berger
A. Albert Ajubita
AJUBITA, LEFTWICH & SALZER, L.L.C.
1100 Poydras Street
Suite 1500
New Orleans, LA 70163-1500
COUNSEL FOR PLAINTIFF/APPELLANT
Robert P. Kemp
ATTORNEY AT LAW
273 Perrilloux Road
Madisonville, LA 70447
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED IN PART, REVERSED IN PART AND REMANDED
DECEMBER 1, 2025
SCJ
DLD
KKH
This is a breach of contract action. Donald Palmer (“Mr. Palmer”) seeks
review of the trial court’s February 10, 2025 judgment sustaining Crescent City
Auction Gallery, LLC’s (“Crescent City Auction”) peremptory exception of no
cause of action and dismissing Mr. Palmer’s claims with prejudice. For the
following reasons, we affirm in part and reverse in part the February 10, 2025
judgment, and remand the matter for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
In January 2024, Mr. Palmer met with a representative of Crescent City
Auction to discuss the consignment and auctioning of his items. Mr. Palmer’s
items were sold at auction in March 2024. After receiving his payment, Mr. Palmer
contacted Crescent City Auction regarding the amount being less than what he
expected.
On August 29, 2024, Mr. Palmer filed a petition to recover damages for
breach of contract, which named Crescent City Auction as the defendant. Mr.
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Palmer alleged that Crescent City Auction made oral representations and provided
him with a signed consignment contract indicating that he would receive
$10,300.00, minus costs and fees, in connection with the consignment of his
items.1 Mr. Palmer further alleged that he was presented with and signed a
consignment contract identical to the previous contract, however, the new contract
omitted the notation of $10,300.00.
In response to the petition, Crescent City Auction filed peremptory
exceptions of no right of action and no cause of action, and a dilatory exception of
vagueness and ambiguity. Crescent City Auction argued that the consignment
contract included an estimate of what each item could possibly sell for at auction
and the minimum price that Mr. Palmer would accept to sell his items. Crescent
City Auction further argued that Mr. Palmer had no cause of action and no right of
action because he knew his items would be sold to the highest bidder and that there
would be commissions and fees.
Mr. Palmer filed an opposition to the exceptions, arguing that he was told
that his items would be sold for no less than $10,300.00, however, the items were
sold for a price less than what they agreed. A hearing on the exceptions was held
on January 17, 2025. The trial court signed a judgment on February 10, 2025,
sustaining Crescent City Auction’s exception of no cause of action and dismissing
Mr. Palmer’s claims with prejudice. This appeal follows.
DISCUSSION
Mr. Palmer assigns two errors: 1) the trial court erred in granting Crescent
City Auction’s exception of no cause of action, and 2) the trial court erred in not
giving him leave to amend the petition to cure defects.
1 The contract only had the signature of Crescent City Auction’s representative.
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Standard of Review
A peremptory “exception of no cause of action presents a question of law, so
an appellate court reviews a trial court’s ruling on an exception of no cause of
action de novo.” Wakin’ Bakin’ L.L.C. v. Rabalais, 2023-0432, p. 4 (La. App. 4
Cir. 11/15/23), 377 So.3d 784, 787 (quoting Cunningham v. City of New Orleans,
2021-0532, p. 9 (La. App. 4 Cir. 3/30/22), 336 So.3d 977, 986). “A peremptory
exception of no cause of action questions whether the law extends a remedy
against a defendant to anyone under the factual allegations of a petition.” Id.
(quoting Cunningham at p. 10, 336 So.3d at 986).
When ruling on “an exception of no cause of action a court can consider
only the petition, any amendments to the petition, and any documents attached to
the petition.” Girod Titling Tr. v. Hermes Health All., L.L.C., 2024-0221, p. 10 (La.
App. 4 Cir. 7/1/24), 401 So.3d 721, 729, writ denied, 2024-01199 (La. 12/11/24),
396 So.3d 963 (quoting Green v. Garcia-Victor, 2017-0695, p. 5 (La. App. 4 Cir.
5/16/18), 248 So.3d 449, 453). “A court cannot consider assertions of fact referred
to by the various counsel in their briefs that are not plead in the petition.” Id.
Additionally, “[t]he grant of the exception of no cause of action is proper when,
assuming all well pleaded factual allegations of the petition and any annexed
documents are true, the plaintiff is not entitled to the relief he seeks as a matter of
law.” Id.
Breach of Contract
A breach of contract claim requires proof of three elements: 1) the
undertaking of an obligation to perform; 2) the failure to perform the obligation;
and 3) resulting damages from the failure to perform. New Orleans Priv. Patrol
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Serv., Inc. v. Corp. Connection, Inc., 2017-0746, p. 7 (La. App. 4 Cir. 3/21/18),
239 So.3d 480, 484.
Here, Mr. Palmer argues that the trial court did not accept the factual
allegations in the petition as true, but instead evaluated the documents attached to
the petition. The trial court found that Mr. Palmer had no cause of action for claims
under breach of contract because the contract which was attached to the petition
listed the amount $10,300.00 under the provision entitled “estimate.” The trial
court further found that the contract contained provisions that stated “any
appraisal, estimate, or other statement of the Company and its representatives
concerning the value of any Property is not binding upon the Company, nor can be
relied upon as a prediction of actual sales price, as it is a statement only of
opinion.”
Taking the allegations of Mr. Palmer’s petition as true, he alleged that oral
representations were made by Crescent City Auction that he would receive
$10,300.00, minus costs and fees, in connection with the consignment of his items
and he was provided with a signed consignment contract indicating as such. We
find that Mr. Palmer’s petition states a valid cause of action for breach of contract.
While it is permissible for the trial court to consider documents attached to the
petition, the trial court must also consider the sufficiency of the petition and
determine whether the law affords a remedy on the facts alleged in the petition. See
Pri-Tal v. Progressive Prop. Ins. Co., 2024-0531, p. 16 (La. App. 4 Cir. 5/14/25),
414 So.3d 1064, 1076 (citation omitted); see also State ex rel. Tureau v. BEPCO,
L.P., 2021-0856, p. 17 (La. 10/21/22), 351 So.3d 297, 309. We further find that the
trial court exceeded its limited scope in addressing the merits. Neither the trial
court nor this Court can consider whether Mr. Palmer “will prevail on the merits of
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the trial.” See Kinney v. Bio District New Orleans, 2023-0611, p. 11 (La. App. 4
Cir. 6/25/24), 398 So.3d 38, 45 (quoting Winstead v. Kenyon, 2015-0470, p. 6 (La.
App. 4 Cir. 12/2/15), 182 So.3d 1087, 1091). Thus, the trial court erred in
sustaining Crescent City Auction’s exception of no cause of action.
CONCLUSION
For the foregoing reasons, we affirm in part the February 10, 2025 judgment
that overruled Crescent City Auction’s peremptory exception of no right of action
and dilatory exception of vagueness and ambiguity. We reverse the portion of the
judgment dismissing Mr. Palmer’s claims against Crescent City Auction with
prejudice and remand this matter for further proceedings.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED
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