Mark McDonnell and Marie McDonnell v. Architectural Solutions, LLC

• Court: Louisiana Court of Appeal
• Decided: November 5, 2014
• Docket: CA-0014-0432
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

14-432

MARK MCDONNELL, ET AL.

VERSUS

ARCHITECTURAL SOLUTIONS, LLC, ET AL.

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APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20104206, DIVISION A HONORABLE JOHN D. TRAHAN, DISTRICT JUDGE

J. DAVID PAINTER JUDGE

Court composed of J. David Painter, James T. Genovese, and Phyllis M. Keaty, Judges.

AFFIRMED.

J. Scott Loeb Jennifer C. Poirier Loeb Law Firm 1180 West Causeway Approach Mandeville, LA 70471 (985) 778-0220 COUNSEL FOR DEFENDANT-APPELLEE: Detail Design-Build, LLC William L. Melancon Melancon & Associates, LLC 520 Roosevelt Street Lafayette, LA 70503 (337) 233-8600 COUNSEL FOR PLAINTIFFS-APPELLANTS: Mark McDonnell and Marie McDonnell

John P. Wolff, III Mary Anne Wolf Virginia J. McLin Keogh, Cox & Wilson, Ltd. 701 Main Street Baton Rouge, LA 70802 (225) 383-3796 COUNSEL FOR DEFENDANT: Architectural Solutions, LLC PAINTER, Judge.

Mark McDonnell and Marie McDonnell (Plaintiffs), appeal the trial court’s

granting of an exception of prematurity filed by Defendant, Detail Design-Build,

LLC (DDB), and dismissing their claims. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiffs entered into two separate contracts for the construction of their

new home. One contract was with Defendant, Architectural Solutions, LLC

(Architectural Solutions), and was signed on September 20, 2006. No arbitration

clause is contained in the contract with Architectural Solutions. The other contract

was with DDB and was signed on November 26, 2007. It is not disputed that the

contract with DDB contains an arbitration clause.

Plaintiffs allegedly had numerous problems after moving into their home.

They filed suit against Architectural Solutions and DDB. DDB filed an exception

of prematurity on the basis of the arbitration clause in their contract. A hearing on

the exception of prematurity was held on October 28, 2013. Judgment granting the

exception of prematurity and dismissing Plaintiffs’ claims against DDB was signed

on November 25, 2013. This devolutive appeal followed. Plaintiffs allege that the

trial court erred in granting the exception because the arbitration clause should

have been unenforceable because they did not agree to have to submit their

disputes in separate forums and because DDB waived its right to demand

arbitration. Plaintiffs also argue that the trial court erred in dismissing their claims

against DDB instead of merely staying the proceedings and ordering them to

arbitration. We find Plaintiffs’ arguments to be without merit and affirm the trial

court’s judgment in its entirety. DISCUSSION

Motion to Strike

Architectural Solutions filed a motion to strike portions of Plaintiffs’ brief

that it contends are unsupported by the record. The motion was referred to the

merits.

Specifically, Architectural Solutions points out the following misstatements

of fact made by Plaintiffs in brief:

1. The McDonnells contracted with Architectural Solutions and DDB in 2007.

2. The McDonnells entered into a “design build” project with both Architectural

Solutions and DDB.

3. Alan Broussard and Marc Thomas own both DDB and Architectural Solutions

and operate the companies as a single entity.

4. Alan Broussard and Marc Thomas represented that Architectural Solutions and

DDB were the same “design-build” company.

5. The insurance for design-build is a new product, hard to come by, and explains

why Architectural Solutions and DDB had the McDonnells sign two separate

contracts.

6. The defects that form the basis of the lawsuit, i.e., the buckled floors, were

caused by Alan Broussard and Marc Thomas, and these two individuals are

responsible for any defects.

7. Damages in the home are obvious.

8. Architectural Solutions and DDB have unnecessarily compounded the

McDonnell’s litigation costs.

We note that Plaintiffs have not made any citations to the record other than

those to support the dates and titles of pleadings filed, and Plaintiffs introduced no

evidence in the trial court to support their factual allegations. “Appellate briefs of 2 parties are not part of the record on appeal, and the appellate court cannot consider

facts referred to in appellate briefs.” Ledet v. Nat’l Car Rental Sys., Inc., 96-1270,

p. 11 (La.App. 3 Cir. 6/4/97), 694 So.2d 1236, 1242. Thus, while we question why

these issues are raised by Architectural Solutions (who admittedly is not

technically a party to this appeal) and not DDB, we are compelled to agree with

Architectural Solutions. Consequently, to the extent that Plaintiffs’ brief

references “facts” that are not supported by the appellate record before us, the

motion to strike is granted.

Exception of Prematurity

“A trial court’s granting of a dilatory exception of prematurity . . . is a final

judgment subject to a manifest error standard of review.” Dietz v. Superior Oil

Co., 13-657, p. 3 (La.App. 3 Cir. 12/11/13) 129 So.3d 836, 839.

Louisiana law favors arbitration. Detraz v. Banc One Sec. Corp., 13-191

(La.App. 3 Cir. 10/19/13), 123 So.3d 875, writ denied, 13-2633 (La. 2/7/14), 131

So.3d 865. In this case, Plaintiffs do not assert that the arbitration clause is not

applicable or that it is invalid. They merely argue that it should not be enforced

because the other Defendant, Architectural Solutions, cannot be compelled to

arbitration. Plaintiffs argue that because the two Defendants have the same

principals, they are unnecessarily compounding the litigation costs by seeking to

enforce the arbitration clause found in one contract while refusing to submit to

arbitration on behalf of the other company. It is clear that there are two separate

contracts in this case, and it is not unusual for courts to order that certain claims

proceed to arbitration where all claims are not subject to arbitration. Arbitration is

a matter of contract, and a party who did not contract to arbitration cannot be

compelled to submit thereto. Gunderson v. F.A. Richard & Assocs., Inc., 05-917

3 (La.App. 3 Cir. 8/23/06), 937 So.2d 916. Therefore, we find no manifest error in

the trial court’s granting of DDB’s exception of prematurity.

Dismissal

“The failure of a party to arbitrate in accordance with the terms of an

agreement may be raised either through a dilatory exception of prematurity

demanding dismissal of the suit or by a motion to stay the proceedings pending

arbitration.” Gary v. Moncla Well Servs., Inc., 97-1131, p. 2 (La.App. 3 Cir.

2/4/98), 706 So.2d 1096, 1097. Thus, we find Plaintiffs’ argument that the trial

court erred in dismissing their claims against DDB rather than staying the action

against DDB to be without merit. The trial court did not err in dismissing

Plaintiffs’ claims.

Alleged Waiver of Right to Arbitration

The petition in this case was filed on June 22, 2010. DDB filed the

exception of prematurity on August 10, 2010, and had it set for hearing on

September 7, 2010. Plaintiffs at first requested that the hearing be rescheduled for

November 3, 2010. Before that hearing could be held, Plaintiffs again filed a

motion to continue without date. DDB again had the matter set for hearing, and

Plaintiffs again requested a continuance. The hearing was finally held on October

28, 2013. Plaintiffs argue that DDB waived its right to arbitration because it

waited more than three years to have its exception heard and participated in the

litigation. The burden of proving a waiver of arbitration is on the party alleging

the waiver, in this case Plaintiffs. Lincoln Builders, Inc. v. Raintree Inv. Corp.

Thirteen, et al., 37,965 (La.App. 2 Cir. 1/28/04, 866 So.2d 326. Furthermore, the

Louisiana Supreme Court has noted that “[b]ecause of the strong public policy

favoring the right to demand arbitration, a party’s otherwise explainable conduct

should be construed against waiver of the right” and “[o]nly in extreme cases have 4 courts found waiver of the right to demand arbitration.” Matthews-McCracken

Rutland Corp. v. City of Plaquemine, 414 So.2d 756, 757 (La.1982). Thus, we

find Plaintiffs’ waiver argument to be without merit since all of the continuances

were as a result of Plaintiffs’ own motions.

DECREE

The motion to strike filed on behalf of Architectural Solutions, LLC is

hereby granted. The trial court’s granting of the exception of prematurity and

dismissing the claims of Mark McDonnell and Marie McDonnell against Detail

Design-Build, LLC, is hereby affirmed. All costs of this appeal are assessed to

Plaintiffs-Appellants, Mark McDonnell and Marie McDonnell.