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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 55

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 8th day of September, 2008 , are as follows:

BY CALOGERO, C.J. :

2008-C -0021

GARY L. MILLER v. CONAGRA, INC. (Parish of Natchitoches) Retired Judge Thomas C. Wicker, Jr., sitting ad hoc for Weimer, J., recused. AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART.

09/08/08 SUPREME COURT OF LOUISIANA No. 2008-C-0021 GARY L. MILLER VERSUS CONAGRA, INC. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF NATCHITOCHES CALOGERO, Chief Justice* This action for breach of contract and violation of Louisiana's Unfair Trade Practices and Consumer Protection Law raises issues regarding judicial estoppel, no right of action, and timeliness. For the following reasons we find that the Plaintiff is not judicially estopped from bringing this action. Also, we find Defendant is procedurally barred from asserting his exception of no right of action and Defendant failed to raise a valid exception to the courts' subject matter jurisdiction. Accordingly, we affirm Plaintiff's breach of contract awards. However, we find meritorious Defendant's argument that the claims under the Unfair Trade Practices and Consumer Protection Law are untimely, and we reverse the judgments of the lower courts in this regard. FACTS AND PROCEDURAL HISTORY The origin of this suit is a breach of contract and unfair trade practices claim brought by the plaintiff/respondent Gary L. Miller against defendant/relator ConAgra, Inc. ("ConAgra"). Defendant is referred to as "ConAgra" although that corporation has been succeeded by Pilgrim's Pride Corporation. On July 23, 1993, Miller and ConAgra entered into a "Broiler Production Agreement" wherein ConAgra agreed to provide young chickens for Miller to raise until they were sold on the commercial

* Retired Judge Thomas C. Wicker, Jr., sitting ad hoc for Weimer, J., recused.

broiler market. When the chickens were the proper age and size, ConAgra would remove them from Miller's farm. Under the contract, ConAgra also supplied Miller with feed and medicine for Miller to use exclusively on ConAgra's chickens. The agreement had a term of ten years and required any party wishing to terminate the contract to do so in writing. On December 21, 1993, less than six months after the Broiler Production Agreement had commenced, ConAgra accused Miller of stealing the chicken feed it provided and using it to feed his hogs. ConAgra offered Miller an opportunity to terminate the agreement or be faced with criminal charges. Miller elected to terminate the contract. However, this termination was never placed in writing as the contract required. Allegedly as a result of the contract's termination, Miller was forced to declare bankruptcy in 1996. Miller filed a petition under Chapter Seven of Title 11 of the United States Code. A bankruptcy proceeding was opened, a trustee appointed, and, on January 27, 1997, the trustee in bankruptcy issued a "Verification of No Asset Case--No Distribution Report." Based on this report, the United States Bankruptcy Court for the Western District of Louisiana signed a discharge order on February 24, 1997, releasing Miller from all personal liability for his declared debts. On July 22, 1998, almost seventeen months after his bankruptcy discharge, Miller brought this lawsuit in our state's Tenth Judicial District Court, alleging that ConAgra breached the Broiler Production Agreement and caused him damages. On March 6, 2000, a little over twenty months after suit was filed, the district court allowed Miller to amend his petition to include claims under the Unfair Trade Practices and Consumer Protection Law, LSA

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