STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 0403 a&
LANDCO CONSTRUCTION, LLC
VERSUS
PRECISION CONSTRUCTION & MAINTENANCE, LLC, MAPP i CONSTRUCTION, AND KRISHMAN, LLC
Judgment Rendered: N10V 1 5 2019
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 652004
Honorable Timothy E. Kelley, Judge Presiding
Kim Segura Landry Counsel for Plaintiff/Appellant Ronnie J. Berthelot Landco Construction, LLC Gonzales, LA
R. Gray Sexton Counsel for Defendant/Appellee Jodi Bauer Loup MAPP Construction, LLC Blane A. Wilson Baton Rouge, LA
BEFORE: WHIPPLE, C. J., GUIDRY, AND CRAIN, JJ. WHIPPLE, C. J.
Landco Construction, LLC ( Landco) appeals a judgment sustaining the
peremptory exception raising the objections of prescription and no cause of action
filed by MAPP Construction, LLC ( MAPP) and dismissing Landco' s claims
against MAPP with prejudice. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On October 10, 2016, Landco filed a petition for damages for breach of
contract and unjust enrichment, naming as defendants MAPP, Precision
Construction & Maintenance, LLC ( Precision) and Kirshman, LLC ( Kirshman).
According to the allegations of the petition, Kirshman owned property on Siegen
Lane, in Baton Rouge, on which it planned to construct a CarMax Center ( the
project). Kirshman hired MAPP to be the contractor on the project. MAPP then
entered into a contract with Precision to complete certain work needed to fulfill
MAPP' s contractual obligations, and in turn, Precision entered into a contract with
Landco for performance of those obligations, with MAPP' s consent. Landco
further alleged in its petition that the work it performed on the project consisted of
cutting lime and soil cement, amounting to $ 40, 383. 00 in costs, which it was never
paid. Landco alleged that MAPP, Precision, and Kirshman were solidarity liable
for this obligation and that MAPP had failed to pay Precision or Landco for work
done on the project, even though MAPP had been paid by Kirshman for this work.
Landco asserted that MAPP was also liable to pay it for all amounts in which
MAPP was unjustly enriched by failing to pay Landco for work performed that
benefitted MAPP and for which MAPP was paid.
In response to Landco' s petition, MAPP filed the peremptory exceptions of
no cause of action and prescription. Therein, MAPP contended that Landco had
failed to state a cause of action against MAPP for breach of contract as it was
evident that no contractual relationship existed between the two. MAPP further contended that Landco had failed to effectively plead a claim based on unjust
enrichment. MAPP argued that because Landco had two remedies available to it
for nonpayment, which included a breach of contract claim against Precision, and a
Private Works Act claim against MAPP, a claim for unjust enrichment was not
available. Finally, MAPP contended that any claim Landco may have had against
MAPP under the Private Works Act was prescribed. Thus, MAPP sought the
dismissal of Landco' s claims against it with prejudice.
After a hearing, the trial court sustained both exceptions and dismissed
Landco' s claims against MAPP with prejudice; a written judgment was signed
thereafter on April 25, 2017. Landco appealed that judgment. This court affirmed
the trial court' s ruling sustaining the exception of no cause of action, vacated the
trial court' s ruling sustaining the exception of prescription and dismissing
Landco' s claims against MAPP, and remanded the matter to the trial court to
afford Landco the opportunity to amend its petition to state a cause of action. See
Landco Construction, LLC v. Precision Construction and Maintenance, LLC,
2017- 1060 ( La. App. 1St Cir. 2/ 21/ 18), 2018 WL 1007343 ( unpublished).
On March 22, 2018, Landco filed its first supplemental and amended
petition. In this petition, Landco set forth its claim under the Private Works Act by
specifically alleging: ( 1) that MAPP entered into a contract with Kirshman to
build the CarMax Center on Siegen Lane, which Notice of Contract was recorded
on October 7, 2010 with the Recorder and Clerk for the Parish of East Baton
Rouge; ( 2) that MAPP entered into a contract with Precision to complete certain
work needed to fulfill MAPP' s contractual obligations; and ( 3) that in turn,
Precision entered into a contract with Landco for performance of those obligations,
with MAPP' s consent. The amended petition further reasserted that Landco was
never paid for the services it provided on the project, in the amount of $40, 383. 00,
and that MAPP, Precision, and Kirshman were solidarily liable for this obligation. 3 Landco alleged that on March 24, 2011, it sent a statement of claim under the
Private Works Act by certified mail to Precision, MAPP, and Kirshman, and that
on May 24, 2011, Landco recorded a lien with the Recorder and Clerk for the
Parish of East Baton Rouge. Landco also asserted that MAPP, as the general
contractor, failed to pay the amounts due to Landco for the work performed, even
though MAPP received money for the work provided by Landco. Landco further
alleged that MAPP owed Landco attorney' s fees, costs, and penalties in
conjunction with the Private Works Act.
On June 13, 20189 MAPP once again filed exceptions of no cause of action
and prescription. Although MAPP argued that Landco had not stated a cause of
action for breach of contract, unjust enrichment, or stipulation pour autrui, it made
no mention of whether Landco stated a cause of action under the Private Works
Act. As for its exception of prescription, MAPP focused on Landco' s Private
Works Act claim, asserting that Landco' s claim had prescribed because the lien
recorded by Landco lacked a proper legal description of the property, thereby
making it invalid, and Landco had never filed a valid lien within the time limit
provided by statute to preserve its claim. MAPP further contended that even if the
lien had been perfected, Landco only had one year from that filing date to file suit,
which time had long since lapsed. Therefore, MAPP once again prayed that
Landco' s claims against it be dismissed with prejudice. In support of its
exceptions, MAPP attached the lien that Landco recorded.
Landco opposed MAPP' s exceptions, contending that it had removed all
claims of breach of contract and unjust enrichment from its amended petition, and
that therefore, any arguments regarding those claims were moot. Landco further
argued that it had clearly alleged a cause of action for a stipulation pour autrui in
its amended petition, which defeated the exception of no cause of action.
4 As for the exception of prescription, while Landco conceded that the
statement of claim it recorded was invalid, Landco argued that it was enough to
give notice to MAPP of its obligation to pay Landco and to preserve Landco' s
claim under a different section of the Private Works Act. Additionally, Landco
contended that as MAPP never filed a notice of termination of work, as required by
statute, Landco' s time delays to file its lien and suit never began to run, thus,
Landco' s claims were not prescribed. In support of its argument, Landco attached
the notice of nonpayment it sent by certified mail on March 24, 2011, to Precision,
MAPP, and Kirshman, which set out the specific work Landco performed on the
project, the municipal address of the project, the value of the services provided,
and the fact that it was not paid, along with the invoice for the project.
MAPP filed a reply memorandum, asserting that Landco' s amended petition
was devoid of any allegations of fact sufficient to support a cause of action arising
under a stipulation pour autrui, as there was no allegation of MAPP entering into a
stipulation in Landco' s favor.
Addressing the exception of prescription, MAPP argued that the certificate
of substantial completion that it filed into the mortgage records equated to a notice
of termination as it included all of the requirements necessary of such notice, as
outlined in LSA-R.S. 9: 4822( E). A copy of the certificate of substantial
completion that was recorded on March 16, 2011 was attached by MAPP to this
memorandum.
A hearing was held on the exceptions on September 24, 2018, during which
all of the evidence attached to the memoranda was filed into the record. After the
parties concluded their arguments, the trial court orally ruled, finding that the filing
of the certificate of substantial completion satisfactorily met the requirements of a
notice of termination under the Private Works Act, and that, accordingly, Landco' s
Private Works Act claim was prescribed. The exception of prescription was 5 granted, and Landco' s claim against MAPP was dismissed with prejudice. A
written judgment was signed by the court on November 28, 2018, reflecting its oral
ruling sustaining the exception of prescription. The written judgment further
provided that MAPP' s exception of no cause of action was also granted " with
respect to all other claims asserted by Landco..." From this judgment, Landco
appeals.
PRESCRIPTION AND PEREMPTION
The rules that govern the burden of proof as to prescription likewise govern
peremption. Rando v. Anco Insulations Inc., 2008- 1163 ( La. 5122109), 16 So. 3d
1065, 1082. As such, the party who raises an exception of prescription or
peremption ordinarily bears the burden of proof at trial on the exception. Id.
However, when prescription or peremption is evident on the face of the petition,
the burden is on the plaintiff to prove that his action is not prescribed or
perempted. Id. When a peremptory exception is pleaded prior to trial, the parties
may introduce evidence to support or controvert the objection pleaded, when the
grounds thereof do not appear from the petition. See LSA- C. C. P. art. 931. When
evidence is introduced, the trial court's factual conclusions are reviewed under the
manifest error -clearly wrong standard. Rando, 16 So. 3d at 1082.
In these assignments of error, Landco challenges the trial court' s finding that
the certificate of substantial completion filed in this matter on March 16, 2011,
satisfied the requirements of LSA-R.S. 9: 4822( A) and ( E) of the Private Works
Act, and triggered the tolling of prescription on Landco' s claim.
The Private Works Act, LSA-R.S. 9: 4801 et seq., l was enacted to facilitate
construction of improvements on immovable property and does so by granting to
We note that the legislature recently amended the Private Works Act as provided in 2019 Act 325, but these changes do " not affect an action, case, or proceeding commenced before January 1, 2020." See LSA -Acts 2019, No. 325, § 20. Therefore, in this opinion, we have conducted our review under the version of the Act as it existed prior to this amendment.
10 subcontractors, among others, the right to facilitate recovery of the costs of their
work from the owner or contractor with whom they lack privity of contract. Ted
Hebert, LLC v. Infiniedge Software, Inc., 2013- 2052 ( La. App. 1St Cir. 9/ 19/ 14),
2014 WL 4669188, * 3 ( unpublished). The Act provides the subcontractor with a
claim against the owner or contractor to secure payment of the price of their work.
LSA-R.S. 9: 4802( A).
Louisiana Revised Statute 9: 4823( A) provides that a claim against the
contractor provided by LSA-R.S 9: 4802 is extinguished if. "(1) [ t]he claimant or
holder of the privilege does not preserve it as required by [ LSA-] R.S. 9: 4822."
Louisiana Revised Statute 9: 4822 provides for two separate delay periods.
Depending on whether the notice of contract between the owner and general
contractor was properly filed, after the filing of a notice of termination of work, an
unpaid subcontractor has thirty days under LSA-R.S. 9: 4822( A), or sixty days
under LSA-R.S. 9: 4822( C), to file his statement of claim and privilege. The failure
to timely file a statement of claim results in the extinguishment of the claim and
privilege under LSA-R. S. 9: 4823( A). Nevertheless, LSA-R. S. 9: 4823( B) provides:
A claim against a contractor granted by [ LSA-] R.S. 9: 4802 is not extinguished by the failure to file a statement of claim or privilege as required by [ LSA-] R.S. 9: 4822 if a statement of the claim or privilege is delivered to the contractor within the period allowed for its filing by LSA-]R.S. 9: 4822. The failure to file an action against the owner as
required by [ LSA-] R.S. 9: 4823( A)(2) shall not extinguish a claim
against a contractor if an action for the enforcement of the claim is instituted against the contractor or his surety within one year after the expiration of the time given by [ LSA-] R.S. 9: 4822 for filing the statement of claim or privilege to preserve it.
Thus, pursuant to LSA-R. S. 9: 4823( B), a claimant potentially has one year
plus the corresponding time delay found in LSA-R.S. 9: 4822 in which to file suit
against a contractor. In the instant case, because a notice of contract was filed, the thirty -day time delay, beginning with the filing of a notice of termination of the
work, provided in LSA-R.S. 9: 4822( A), is applicable.
Louisiana Revised Statute 9: 4822( E) provides that a notice of termination of
the work:
1) Shall reasonably identify the immovable upon which the work was performed and the work to which it relates. If the work is evidenced by notice of a contract, reference to the notice of contract as filed or recorded, together with the names of the parties to the contract, shall be deemed adequate identification of the immovable and work.
2) Shall be signed by the owner or his representative, who contracted with the contractor, or, if the owner has conveyed the immovable, then it may also be signed by the new owner, or his representative.
3) Shall certify that:
a) The work has been substantially completed; or
b) The work has been abandoned by the owner; or
c) A contractor is in default under the terms of the contract.
4) Shall be conclusive of the matters certified if it is made in good
faith by the owner, his representative, or his successor.
According to Comment ( d), "[ t]his Section adopts the term ` notice of termination'
for the notice to be filed rather than notice of acceptance or notice of completion,
as being more nearly descriptive of its function." ( Emphasis added).
Given the special nature of the right provided in this statute, it must be
strictly construed against those to whom it is accorded ( subcontractors), and there
must be strict compliance with the requirements of the Private Works Act.
Metropolitan Erection Company, Inc. v. Landis Construction Company, Inc., 627
So. 2d 144, 148 ( La. 1993). As the Louisiana Supreme Court further explained:
The Legislature, in adopting the Act, granted a special right in favor of specified claimants, but limited the time for enforcing that right in the manner prescribed in the Act, after which the right becomes extinguished and passes out of existence. The Legislature clearly intended to extinguish in short order the special rights of those claimants who did not file their privileges and their actions within the specified time limitations. The Act thus balances the private interest in asserting claims against the public interest in limiting special rights. 8 Id. at 148. Because the Act provides for the extinguishment of rights if not
properly preserved through timely lien or suit, this period is peremptive. See LSA-
C. C. art. 3458; Metropolitan Erection Company, 627 So. 2d at 148; Lagniappe
Construction Company v. Montecino, 525 So. 2d 693, 694 ( La. App. 1 st Cir. 1988).
With this in mind, we turn to the parties' arguments. Landco asserts that a
document entitled " certificate of substantial completion," despite its contents,
could never satisfy the requirements found in LSA-R.S. 9: 4822( E) for a " notice of
termination of the work." MAPP counters that the title of the document is not
important, as long as the contents of the document fulfill the requirements of the
Act.
Although this specific issue does not appear to have been previously
addressed by the courts, we are inclined to agree with MAPP. A review of the
jurisprudence discussing the Private Works Act demonstrates the acceptance and
treatment of a certificate of substantial completion as a notice of termination of
work, so long as the requirements enumerated in LSA-R.S. 9: 4822( E) are met. See
Clark Construction Company Inc. v. Warren, 33, 223 ( La. App. 2nd Cir. 5/ 15/ 00),
760 So. 2d 677, 678, 681 ( wherein the court noted that a " certificate of substantial
completion" was filed, and used that date as the notice of termination of the work
filing date in order to determine the peremptive period for a claimant to file a
statement of claim); Byron Montz, Inc. v. Conco Construction, Inc., 2002- 0195
La. App. 4t}' Cir. 7/ 24/ 02), 824 So. 2d 498, 500, 503 ( wherein the court noted that
the certificate of substantial completion was filed on March 14, 2000, which it
declared to be the date of the filing of the notice of termination of work); and
Metropolitan Erection Company, 627 So. 2d at 145 ( wherein the Louisiana
Supreme Court noted that a notice of termination of work had been filed on June
20, 1984, which had been described by the lower court as a certificate of
VJ substantial completion, see Metropolitan Erection Compal, Inc. v. Landis
Construction Company, Inc., 613 So. 2d 1147, 1149 ( La. App. 5' Cir. 1993)).
Moreover, the Act itself appears to use the two notice titles interchangeably. See
LSA-R.S. 9: 4822( F), and comment ( f)thereto.
Applying these precepts, we conclude that as long as the certificate of
substantial completion that was filed on March 16, 2011 fulfilled the statutory
requirements, it is sufficient to trigger the running of the peremptive time period on
Landco' s claim. The certificate of substantial completion that was filed into the
record in this case contained a legal description as well as what appears to be
reference to the notice of contract previously filed, which satisfies the first
requirement of LSA-R.S. 9: 4822( E). The certificate is signed by MAPP, the
owner of the property, as well as the architect, satisfying the second requirement.
Lastly, the certificate states that the "[ w] ork performed under this [ c] ontract has
been reviewed and found to the Architect' s best knowledge, information and
belief, to be substantially complete," which satisfies the third requirement that the
notice shall certify that the work has been substantially completed. Because we
find this certificate satisfies all of the requirements of a notice of termination of the
work, it triggered Landco' s time to preserve its claim, such that Landco had thirty
days from the date of filing within which to either file a valid statement of claim or
lien, LSA-R.S. 9: 4822( A); or to deliver a statement of its claim or privilege to the
contractor within that same thirty -day period, which it arguably did on March 24,
2011. Landco then had one year, from the thirty -day time period, within which to
institute an action against MAPP for payment. The record reflects that Landco
failed to institute such an action until March 22, 2018, well beyond the one- year
peremptive period. Therefore, we find that Landco' s claim against MAPP under
the Private Works Act is perempted.
10 NO CAUSE OF ACTION
The peremptory exception raising the objection of no cause of action
questions whether or not the law affords any remedy to the plaintiff under the
allegations of the petition. White v. State, Department of Public Safety and
Corrections Office of Motor Vehicles, 569 So. 2d 1001, 1002 ( La. App. 1St Cir.
1990) ( per curiam). If a remedy is provided, the objection must be overruled. Id.
The exception is triable solely on the face of the petition and any attached
documents. See LSA-C. C. P. art. 931. All well -pleaded facts are accepted as true,
and any doubts are resolved in favor of the sufficiency of the petition. White, 569
So. 2d at 1002. The issue at the trial of the exception is whether, on the face of the
petition, the plaintiff is legally entitled to the relief sought. In re Interdiction of
Coulon, 2012- 1429 ( La. App. 1St Cir. 3/ 22/ 13), 116 So. 3d 688, 690.
We note that following the previous ruling from this court, Landco removed
its allegations in support of its breach of contract claim and unjust enrichment
claims. However, there was argument set forth by the parties as to whether the
supplemental and amended petition contained a claim for stipulation pour autrui, in
addition to the claims under the Private Works Act.'
Louisiana Civil Code article 1978 provides "[ a] contracting party may
stipulate a benefit for a third person called a third party beneficiary." Under
Louisiana law, such a contract for the benefit of a third party is commonly referred
to as a " stipulation pour autrui." The stipulation gives the third party beneficiary
or the stipulator, for the benefit of the third party, the right to demand performance
from the promisor. LSA-C. C. art. 1981. A stipulation pour autrui is never
2Essentially, Landco asserted the theory of stipulation pour autrui in pleadings subsequent to the petition and at the hearing on the matter. See also Pearl River Basis Land & Development Company L.L.Q. v State ex rel. Governor' s Office of Homeland Security and Emergency Preparedness, 2009- 0084 ( La. App. 1St Cir. 10/ 27/ 09), 29 So. 3d 589, 593 ( where the court noted that the petition should not be dismissed merely because plaintiff s allegations do not support the legal theory he intends to proceed on, since the court is under a duty to examine the petition to determine if the allegations provide for relief or any possible theory). 11 presumed. Rather, the intent of the contracting parties to stipulate a benefit in
favor of a third party must be made manifestly clear. Paul v. Louisiana State
Employees' Group Benefit Program, 99- 0897 ( La. App. 1St Cir. 5/ 12/ 00), 762 So.
2d 136, 140. Additionally, to establish a stipulation pour autrui, the third party
relationship must form the consideration for a condition of the contract, and the
benefit may not be merely incidental to the contract. Id.
In Joseph v. Hospital Service Dist. No. 2 of Parish of St. Mary, 2005- 2364
La. 10/ 15/ 06), 939 So. 2d 1206, 1212, the Louisiana Supreme Court reviewed the
jurisprudence and found that there are three criteria for determining whether
contracting parties have provided a benefit for a third party: 1) the stipulation for a
third party is manifestly clear; 2) there is certainty as to the benefit provided the
third party; and 3) the benefit is not a mere incident of the contract between the
promisor and the promisee. The court emphasized that the most basic requirement
of a stipulation pour autrui is that the contract manifest a clear intention to benefit
the third party; absent such a clear manifestation, a party claiming to be a third
party beneficiary cannot meet his burden of proof. Id.
Accepting all of the allegations set out in Landco' s supplemental and
amended petition as true, we find that Landco failed to state a cause of action for
stipulation pour autrui, as it lacks allegations that any contract MAPP entered into
manifested a clear intention to benefit Landco. Therefore, to the extent Landco
intended to plead this cause of action, the trial court properly found that it failed.
CONCLUSION
For the above and foregoing reasons, the November 28, 2018 judgment of
the trial court granting MAPP Construction, LLC' s exceptions of prescription and
no cause of action and dismissing with prejudice Landco' s claims against MAPP,
12 is hereby affirmed. Costs of this appeal are assessed against plaintiff/appellant,
Landco Construction, LLC.
AFFIRMED