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NOVELAIRE TECHNOLOGIES, L.L.C VERSUS MARTIN KENNETH HARRISON, BARBARA BUCKLIN & ESSENTIAL HUMIDITY SOLUTIONS, L.L.C.

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-CA-94 FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA NO. 521-029, SECTION 22 HONORABLE TIMOTHY E. KELLEY, JUDGE PRESIDING

JULY 25, 2006

FREDERICKA HOMBERG WICKER
JUDGE
Panel composed of Judges Edward A. Dufresne, Jr., Walter J. Rothschild, and Fredericka Homberg Wicker

A. JUSTIN OURSO, III DAVID M. KERTH Attorneys at Law 8555 United Plaza Boulevard
Four United Plaza Baton Rouge, Louisiana 70809

COUNSEL FOR PLAINTIFF/APPELLEE GLEN R. GALBRAITH
Attorney at Law P. O. Drawer 699 Hammond, Louisiana 70404

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED

Defendants appeal a judgment dismissing their declinatory exception of improper venue and their dilatory exception of improper cumulation of actions. For the following reasons, we affirm. Factual and Procedural History On June 9, 2004, NovelAire Technologies, L.L.C. ("NovelAire") filed suit in the Nineteenth Judicial District Court in East Baton Rouge Parish against defendants, Martin Kenneth Harrison ("Harrison"), Barbara J. Bucklin
("Bucklin"), and Essential Humidity Solutions, L.L.C. ("EHS"). The petition

alleges that NovelAire is a limited liability company organized under the laws of the State of Georgia, with its principal business establishment in Baton Rouge, Louisiana; that Harrison and Bucklin are domiciled in Livingston Parish and are

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members of EHS; and that EHS is a Louisiana limited liability company, managed by its members, with its registered office in Livingston Parish. NovelAire, a manufacturer of energy recovery and dehumidification equipment, including desiccant dehumidifiers, employed Harrison as a designer in its engineering department in Baton Rouge, Louisiana. Harrison's job duties
included making improvements to the company's product line. During his

employment with NovelAire, the company developed a dehumidifier line, the DH50, with a casing made of extruded aluminum, and began selling it to Harrison's former employer, AAR, Corp. NovelAire alleges in its petition that while working for NovelAire, Harrison entered into a written agreement ("Agreement") with the company, under which (1) all improvements that Harrison conceived or made relating to NovelAire's business were the property of NovelAire, and (2) Harrison was obliged not to disclose or use any confidential information of NovelAire without the written consent of NovelAire. NovelAire further alleges the following: While employed by NovelAire, Harrison engaged in secret product development to pursue a business opportunity for himself. More specifically, while working for NovelAire, and on company time, Harrison used materials, resources, and equipment of NovelAire to secretly develop an improved design of the DH-50 and to manufacture parts for the new design, without reporting this improvement to NovelAire. Further, Harrison enlisted the assistance of a friend and employee of AAR Corp., to make inquiries of potential suppliers for components of the improved design; the results of these inquiries were communicated to Harrison at NovelAire. Bucklin also assisted Harrison, and on February 5, 2004, Harrison and Bucklin organized EHS to use the improved design to compete with NovelAire. NovelAire asserts four causes of

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action in six claims: breach of contract and breach of fiduciary duties claims against Harrison; unfair and deceptive trade practice claims against Harrison, Bucklin, and EHS; and, an intentional interference with contract claim against

Bucklin.
On May 12, 2005, defendants filed two exceptions, a declinatory exception of improper venue and a dilatory exception of improper cumulation of actions. Defendants assert venue is not proper in East Baton Rouge Parish for all claims pled against defendants; consequently, the actions have been improperly cumulated. At the hearing on the exceptions, Harrison testified that while employed by NovelAire in Baton Rouge, he began developing ideas that would be improvements to NovelAire's DH-50 dehumidifier; one such idea was to create a
sheet metal dehumidifier. In 2003, without informing anyone in management, he

used his computer at NovelAire to work on drawings for a new sheet metal casing for a dehumidifier. He placed the drawings into a computer file on NovelAire's computer network which contained drawings for NovelAire's DH-125, a dehumidifier that was still undeveloped. He then had these drawings converted into machine readable code by asking Brian Chassaniol ("Chassaniol"), a fellow designer in NovelAire's engineering department, to convert the DH-125 file drawings. Harrison subsequently enlisted Chassaniol's assistance to operate a NovelAire punch press machine, and punch out the sheet metal casing parts. Chassaniol confirmed this in his testimony, stating that in late March 2003 Harrison asked that he convert some drawings for a DH-125 into machine code. Rick Thomas Granier testified that he works in the machine shop at NovelAire and that in March 2003 he observed Harrison and Chassaniol punching out sheet metal parts. When he asked Chassaniol what they were working on,

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"[h]e said it was a special unit that NovelAire didn't know about, that they would never ever know about." Harrison later took the parts to a NovelAire brake press operator to bend them in accordance with Harrison's drawings. He then stored the parts at NovelAire, where they remained because, "they didn't bend up correctly." Harrison stated "[t]here was a lot of work to be done on creating that idea using sheet metal." Harrison testified that he also had an idea for a dual voltage heater; this was part of his effort to create a more "all-in-one type unit." The DH-50, as NovelAire sold it, had separate models for different voltages. Harrison had sample dual voltage heaters delivered to an electronics store rather than NovelAire, and he received an email at NovelAire with test data on a dual voltage heater. This email was part of several exhibits offered into evidence by NovelAire. NovelAire introduced emails to and from Harrison at his office at NovelAire regarding vendors for dehumidifier supplies. Also, NovelAire introduced email correspondence between Harrison at his NovelAire office and Bucklin at her Baton Rouge office regarding the new business. Harrison further testified that he submitted his letter of resignation to NovelAire on January 23, 2004, effective February 6, 2004. He stated that it was only upon resigning that he decided to go into business for himself. Harrison testified that he did not finish designing a new and improved version of the DH-50 while at NovelAire and left the bent metal sheets, as well as the machine code for punching out the metal parts, at NovelAire. After leaving NovelAire, he continued to work on developing a working dehumidifier at a shop at Bucklin's house in Livingston Parish; after several weeks, he was successful in his efforts. Harrison now manufactures the dehumidifiers "start to finish" at the shop in Livingston

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Parish. Vendors referenced in his pre-resignation email correspondence, now provide supplies for his dehumidifier. Terry Leon Parker, Director of Manufacturing and Technology at NovelAire
testified that in April 2003 he asked Harrison about cost reduction improvement

ideas for the DH-50. He stated that, "we went over all the major components in it,
including whether or not we needed to use extrusion, or if there was ways to cut our extrusion, cost reductions on the heater, the motor, fans, and control board." Parker testified that Harrison told him that "the extrusion was a non-starter with

AAR," NovelAire's sole customer for the DH-50 at that time. Parker also testified
that he assembled the sheet metal parts that Harrison punched out at NovelAire and left behind at the company, into the casing for a dehumidifier and they fit.

Two Baton Rouge vendors for EHS testified. William J. Mattox, II
("Mattox"), founder and director of Inkontrol, Inc. (Inkontrol), a Baton Rouge business, testified that in 2003 and for several years prior, Inkontrol sold printed

circuit boards to NovelAire for use in its DH-50 dehumidifier. The company now sells the circuit boards to EHS. Mattox stated that he and Harrison discussed dual voltage in 2003; he also identified a copy of Inkontrol's order entry log reflecting that Harrison first ordered printed circuit boards for his new business on January
20, 2004, prior to his letter of resignation, dated January 23, 2004. Fred Harry

Bauerle, branch manager at a Ralph's Industrial Electronic's Supplies ("Ralph's"), testified that Bucklin started picking up parts for EHS at his store in Baton Rouge a

"little bit after" March of 2004. Bucklin testified that she is a founding member of EHS and in charge of
"most" of the financial aspects of the business. Her job duties for EHS include preparing the monthly state sales tax reports, paying all bills, and handling banking matters. She further testified that she signed each of the packing slips associated

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with Inkontrol invoices at Inkontrol's in Baton Rouge. Included in the record are

copies of Inkontrol invoices, billable to EHS, with signed packing slips. The dates on the invoices and packing slips range from April 12, 2004 to November 22, 2004. Bucklin also identified her signature on EHS checks issued to Inkontrol in payment for printed circuit boards purchased by EHS. The copies of the checks included in the record range in date from June 3, 2004 to August 24, 2004.
Further, Bucklin testified that she signed for and picked up merchandise for EHS

from Ralph's in the vendor's Baton Rouge office. The purchase order, dated May 31, 2005, and the signed invoice, dated June 1, 2005, are included in the record. In a judgment dated July 5, 2005, the trial court dismissed both exceptions. Defendants appealed, alleging that the judgment may cause irreparable injury, pursuant to La.C.C.P. art. 2083(A)'. The appeal was granted on July 5, 2005,
returnable to the Court of Appeal, First Circuit. On January 31, 2006, the Supreme

Court of Louisiana, after considering that all of the judges of the Court of Appeal, First Circuit had recused themselves, transferred the matter to this Court. Law and Analysis Cumulation of actions is the joinder of separate actions in the same judicial demand. La.C.C.P. art. 461. In order to cumulate multiple actions against the same defendant and/or join multiple defendants in the same suit, each of the actions cumulated must be brought in the proper venue. La.C.C.P. arts. 462 and 463. When the venue is improper as to one of the actions cumulated, that action shall be dismissed. La.C.C.P. art. 464. In the instant case, defendants do not dispute that venue is proper for the breach of contract claim against Harrison. However, they assert that venue is
* La.C.C.P. art 2083(A), at the time this appeal was filed, provided that, "[a]n appeal may be taken...from an interlocutoryjudgment which may cause irreparable injury." By Acts 2005, No. 205,

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