City of Baton Rouge v. American Home Assur.

951 So. 2d 1113, 2006 WL 3804697
CourtLouisiana Court of Appeal
DecidedDecember 28, 2006
Docket2006 CA 0522
StatusPublished
Cited by3 cases

This text of 951 So. 2d 1113 (City of Baton Rouge v. American Home Assur.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Baton Rouge v. American Home Assur., 951 So. 2d 1113, 2006 WL 3804697 (La. Ct. App. 2006).

Opinion

951 So.2d 1113 (2006)

CITY OF BATON ROUGE and Parish of East Baton Rouge Through The Greater Baton Rouge Metropolitan Airport District
v.
AMERICAN HOME ASSURANCE COMPANY and J. CALDARERA & CO., INC.

No. 2006 CA 0522.

Court of Appeal of Louisiana, First Circuit.

December 28, 2006.

*1114 John W. Waters, Jr., Bienvenu, Foster, Ryan & O'Bannon, New Orleans, for Defendant-Appellant J. Caldarera & Co., Inc.

Davis B. Allgood, Daniel B. Davis, James C. Percy, Ryan E. Johnson, Jones, Walker, Waechter, Poltevent, Carrère & Denegre, L.L.P., Baton Rouge, for Defendants-Appellees URS Corporation and Joseph Levraea.

Before: PARRO, GUIDRY, and McCLENDON, JJ.

PARRO, J.

The defendant, J. Caldarera & Co., Inc. (Caldarera), appeals a judgment sustaining an exception raising the objection of prescription and dismissing some of its third-party demands against URS Corporation (URS) and Joseph Levraea. After a de novo review of the designation of this partial judgment as final, we conclude that the trial court erred in so designating it. Accordingly, we dismiss the appeal and remand to the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

This lawsuit arises out of a contract to renovate the Baton Rouge airport. The *1115 original contractor defaulted, and on April 19, 1999, the City of Baton Rouge and Parish of East Baton Rouge, through the Greater Baton Rouge Metropolitan Airport District (EBR) executed a "Takeover Agreement" with the contractor's surety, American Home Assurance Company (American Home), to complete the terminal project. On April 30, 1999, American Home hired Caldarera as the general contractor under a "Completion Contract." However, there were numerous problems and delays with the project, and on March 27, 2002, EBR terminated the "Takeover Agreement." On the same day, EBR sued American Home for breach of contract and Caldarera for tort damages. American Home, with Caldarera's consent, removed the suit to federal court, and there both defendants filed third-party demands against URS, the company hired by EBR as program manager in charge of supervising the airport construction work; Caldarera also filed third-party demands against Levraea, a URS employee who was the on-site program manager for the terminal project.[1] The third-party demands were mailed to URS and Levraea by certified mail, but were not served on them. Eventually, because of the federal court's lack of subject matter jurisdiction, the case was remanded to the Nineteenth Judicial District Court (19th JDC).

On February 11, 2003, in the 19th JDC, Caldarera asked that the federal court record be made part of the record in this case and filed an amended and restated answer, a reconventional demand against EBR, and a restated third-party demand against URS and Levraea.[2] The restated third-party demand included claims for indemnity and contribution, and also claimed tort damages from June 27, 2001, based on actions taken by URS and Levraea after that date.[3] URS and Levraea filed an answer on March 7, 2003, and on March 24, 2004, they filed a peremptory exception. The exception raised the objection of prescription as to Caldarera's third-party tort claims concerning conduct occurring before February 11, 2002.[4] URS and Levraea contended that the filing of the third-party claims in federal court did not interrupt prescription, since that court was not a court of competent jurisdiction; that they were not served within the prescriptive period; that they did not waive service under FRCP Rule 4(d); that they did not answer the third-party demands in the federal court; and that the re-filing of the claims in the 19th JDC after remand was too late. Caldarera claimed its third-party demands were in the nature of a continuing tort; the actual notice provided by its mailing of the third-party demand to URS and Levraea was sufficient to interrupt the running of prescription; and URS and Levraea had waived service under FRCP Rule 4(d) or by answering the third-party demand in the 19th JDC.

*1116 The trial court sustained the exception in part. The dispositive language of the judgment stated the following:

[T]he Court being of the opinion that the exception should be granted, it is hereby ORDERED, ADJUDGED AND DECREED as follows:
(1) the peremptory exception be and it is hereby SUSTAINED, except to the extent that it originally sought dismissal of the tort-based damage claims of defendant American Home Assurance Company;
(2) the indemnity and any contribution claims asserted against URS Corporation and Joseph Levraea by J. Caldarera & Company, Inc. in this matter, be and they are hereby DISMISSED WITH PREJUDICE;
(3) the indemnity and contribution claims asserted against URS Corporation and Joseph Levraea by American Home Assurance Company in this matter, be and they are hereby DISMISSED WITH PREJUDICE;
(4) the tort claims asserted against URS Corporation and Joseph Levraea by J. Caldarera & Company, Inc. in this matter that relate to conduct occurring before February 11, 2002 be and they are hereby DISMISSED WITH PREJUDICE;
(5) this judgment shall be without prejudice to the rights of URS Corporation and Joseph Levraea to seek dismissal of any other claims of J. Caldarera & Company, Inc. or American Home Assurance Company on any grounds, including prescription;
(6) all costs of the peremptory exception and the related motion to clarify ruling are assessed against J. Caldarera & Company, Inc. and American Home Assurance Company, in solido; and
(7) the Court further expressly determines, pursuant to La.Code Civ. Pro. art. 1915(B)(1), that no just reason exists for delaying the finality of this judgment and that this judgment should be and hereby is designated as final for purposes of appeal.

The judgment was signed November 18, 2005,[5] and Caldarera appealed the partial dismissal of its third-party claims against URS and Levraea arising out of conduct occurring before February 11, 2002.[6]

FINALITY OF PARTIAL JUDGMENT

At oral argument, this court queried the parties concerning whether it was appropriate to designate this partial judgment as final, in that the judgment did not sustain the exception in its entirety, but only dismissed Caldarera's third-party tort claims against URS and Levraea related "to conduct occurring before February 11, *1117 2002." Additionally, only a portion of the judgment was appealed. The concern raised by this court was that this designation of the judgment as final would result in "piecemeal" litigation and multiple appeals that would ultimately delay the resolution of the lawsuit.[7] Also, because only a final judgment may be appealed, this court must examine the issue of whether this judgment was correctly designated as final in order to determine whether this court has jurisdiction over this matter. See LSA-C.C.P. arts. 1841 and 2083(A); McGehee v. City/Parish of East Baton Rouge, 00-1058 (La.App. 1st Cir.9/12/01), 809 So.2d 258, 260.

Louisiana Code of Civil Procedure article 1915(B) provides as follows:

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Cite This Page — Counsel Stack

Bluebook (online)
951 So. 2d 1113, 2006 WL 3804697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-baton-rouge-v-american-home-assur-lactapp-2006.