STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
10-1187
THOMPSON TREE & SPRAYING SERVICE, INC., D/B/A LIVE OAK LANDSCAPES
VERSUS
WHITE-SPUNNER CONSTRUCTION, INC., ET AL.
********** APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 236,974 HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE
**********
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and John D. Saunders, Judges.
REVERSED AND REMANDED.
John M. Madison, III Kracht, Frazier, Madison, LLP 5149 Bluebonnet Boulevard Baton Rouge, LA 70809-3076 Telephone: (225) 293-4568 COUNSEL FOR: Plaintiff/Appellant - Thompson Tree & Spraying Service, Inc., d/b/a Live Oak Landscapes
Kevin P. Riche Watson, Blanche, Wilson & Posner P. O. Drawer 2995 Baton Rouge, LA 70821-2995 Telephone: (225) 387-5511 COUNSEL FOR: Defendants/Appellees - Wal-Mart Stores, Inc., Hartford Fire Insurance Company, and White-Spunner Construction, Inc. THIBODEAUX, Chief Judge.
In this dispute between a general contractor and a sub-contractor over
the payment for the work completed, the sub-contractor (Appellant), Thompson Tree
& Spraying Service, Inc., doing business as Live Oak Landscapes (Live Oak), asserts
that the trial court erred by granting a summary judgment and an exception of
improper venue in favor of Appellees, White-Spunner Construction, Inc. (the general
contractor), Hartford Fire Insurance Company (the insurer), and Wal-Mart Stores, Inc.
(the owner of the project). Appellees filed a motion to dismiss Live Oak’s appeal but
did not file an answer to the appeal. Because we find that the trial court rendered an
immediately-appealable final judgment in this matter, we deny the Appellees’ motion
to dismiss the appeal. Because we find that Live Oak timely filed a statement of
claim or privilege, we reverse the trial court’s summary judgment. Finally, because
we find that the forum selection clause in the contract between Live Oak and White-
Spunner is against Louisiana public policy, we reverse the grant of exception of
improper venue.
I.
ISSUES
(1) We shall consider whether the trial court’s grant of Appellees’ motion for “partial” summary judgment was a partial final judgment requiring designation of “final judgment” to be appealable, where all the parties and all the claims in this suit have been dismissed;
(2) After concluding, for the reasons expressed below, that the judgment in this matter was final and immediately-appealable, we shall consider whether the sub-contractor filed its statement of claim or privilege timely where a notice of contract and, what could be considered a notice of termination, were filed, but both lacked the legal description of the property and where the contractor filed his statement of claim or privilege over a year after the purported notice of termination;
(3) We shall finally consider whether Louisiana has a strong public policy against enforcement of forum selection clauses thereby limiting the freedom of the parties to contractually select the venue before litigation begins where the selected venue is in violation of Louisiana Code of Civil Procedure.
II.
FACTS AND PROCEDURAL HISTORY
This dispute arises out of the Wal-Mart Super-Center project in
Alexandria, Louisiana. The general contractor for the project, White-Spunner,
entered into a construction contract with Wal-Mart and filed a notice of the contract
in August of 2007 in the mortgage records of Rapides Parish.
Then, White-Spunner entered into a sub-contract with Live Oak for
landscape and irrigation works. In June of 2008, White-Spunner filed a document,
titled “Certificate of Substantial Completion” in the mortgage records. In September
of 2009, Live Oak filed a statement of claim or privilege (lien) against the project in
the mortgage records because, allegedly, it was not paid for the work it satisfactorily
performed. In December of 2009, Live Oak filed this suit. Live Oak alleged a breach
of contract against White-Spunner. Live Oak sought to enforce its claims under the
Louisiana Private Works Act (LPWA) against Wal-Mart and Hartford.
Appellees filed, in addition to other alternative exceptions, an exception
of improper venue and a motion for partial summary judgment. In support of the
exception, Appellees pointed to the forum selection clause in the contract between
White-Spunner and Live Oak. The clause identifies Mobile County, Alabama, as the
place of contract formation and Mobile County Circuit Court as the forum “for any
litigation between the parties.”
2 Without an explicit ruling as to whether the venue was proper for the
LPWA claims, the trial court held that Live Oak did not timely file its statement of
claim or privilege. It reasoned that because both the notice of contract and the notice
of termination were equally defective in that neither contained a legal description of
the property, Live Oak had sixty days from the substantial completion of the work to
file the lien. Because more than sixty days elapsed from the substantial completion
before Live Oak filed its lien, the filing was untimely. Thus, the trial court dismissed
the LPWA claims.
After this dismissal, only the breach of contract claim remained. The
trial court then held that under the forum selection clause, the proper venue lies in an
Alabama court and, thus, dismissed the contract breach claim. These rulings
dismissed all of the parties and all of Live Oak’s claims.
III.
STANDARD OF REVIEW
Appellate courts review summary judgments de novo. Guilbeaux v.
Times of Acadiana, Inc., 96-360 (La.App. 3 Cir. 3/26/97), 693 So.2d 1183, writ
denied, 97-1840 (La. 10/17/97), 701 So.2d 1327. Summary judgment shall be
rendered if the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue of material
fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art.
966(B).
3 IV.
LAW AND DISCUSSION
(1) Motion to Dismiss the Appeal
An interlocutory judgment “does not determine the merits but only
preliminary matters in the course of the action.” La.Code Civ.P. art. 1841. A final
judgment “determines the merits in whole or in part.” Id.
A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors.
....
B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
La.Code Civ.P. art. 1915 (emphasis added). The statute further provides that if the
trial court does not make such a determination and designation, the judgment may not
be immediately appealed. Id.
As this court has already explained, generally, La.Code Civ.P. art.
1915(A) applies to the dismissal of parties, and La.Code Civ.P. art. 1915(B) applies
to the resolution of issues. Jeansonne v. New York Life Ins. Co., 08-932 (La.App. 3
Cir. 5/20/09), 11 So.3d 1160. Thus, when one party receives a partial relief and is not
dismissed from the suit, the judgment is interlocutory in the absence of the court’s
designation as final. Id. Yet, “[a] judgment that dismisses a party from a suit without 4 adjudicating all of the issues in a case is a partial final judgment subject to an
immediate appeal without the need of the trial court’s certification as such.” Id. at
1168 (citing La.Code Civ.P. art. 1915(A)(1); Cavalier v. Rivere’s Trucking, Inc.,
03-2197 (La.App. 1 Cir. 9/17/04), 897 So.2d 38).
For example, a plaintiff filed suit against multiple parties. Jeansonne,
11 So.3d 1160. The trial court granted a summary judgment and an exception of
peremption in favor of some parties, dismissing them from the suit. Id. The court
granted motions for summary judgment in favor of the other parties several years
later. Id. Plaintiff appealed seeking review of the recently-granted motions and the
ones granted several years previously. Id. Plaintiff maintained that because the trial
court did not designate the old rulings as final judgments, they were interlocutory and
not immediately-appealable. Id. This court disagreed stating that to follow the
plaintiff’s reasoning would negate La.Code Civ.P. art. 1915(A)(1). Id. Thus, a
judgment that dismisses a party from the suit is an immediately-appealable judgment.
Id.
Here, the only causes of action Live Oak filed against Wal-Mart and
Hartford were based on LPWA. The trial court found that Live Oak did not timely
file its statement of claim or privilege and dismissed the causes of action. Thus, the
trial court dismissed all of the claims against Wal-Mart and Hartford, thereby
dismissing them from the suit. The court then, relying on the forum selection clause,
dismissed the contract breach claim because of improper venue. Because the correct
venue, according to the trial court, lies outside of Louisiana making it impossible to
transfer the action to the court of proper venue, the court dismissed the contract
breach claim. Thus, according to the trial court’s judgment, all parties and all claims
in this suit have been dismissed. Therefore, the judgment was final and did not
5 require a designation to be immediately-appealable. Based on these considerations,
we deny Appellees’ motion to dismiss the appeal.
(2) Timeliness of the Statement of Claim or Privilege
A. If a notice of contract is properly and timely filed in the manner provided by R.S. 9:4811,1 the persons to whom a claim or privilege is granted by R.S. 9:4802 shall within thirty days after the filing of a notice of termination of the work:
1 La.R.S. 9:4811 provides:
A. Written notice of a contract between a general contractor and an owner shall be filed as provided in R.S. 9:4831 before the contractor begins work, as defined by R.S. 9:4820, on the immovable. The notice:
(1) Shall be signed by the owner and contractor.
(2) Shall contain the legal property description of the immovable upon which the work is to be performed and the name of the project.
(3) Shall identify the parties and give their mailing addresses.
(4) Shall state the price of the work or, if no price is fixed, describe the method by which the price is to be calculated and give an estimate of it.
(5) Shall state when payment of the price is to be made.
(6) Shall describe in general terms the work to be done.
B. A notice of contract is not improperly filed because of an error in or omission from the notice in the absence of a showing of actual prejudice by a claimant or other person acquiring rights in the immovable. An error or omission of the identity of the parties or their mailing addresses or the improper identification of the immovable shall be prima facie proof of actual prejudice.
C. A notice of contract is not improperly filed because a proper bond is not attached.
D. A general contractor shall not enjoy the privilege granted by R.S. 9:4801 if the price of the work stipulated or reasonably estimated in his contract exceeds twenty-five thousand dollars unless notice of the contract is timely filed.
E. If a notice of contract is mutually released by the owner and contractor, then the contract will have no effect, provided no work has begun on the land or materials placed on the site. The recorder of mortgages shall immediately cancel the contract upon the filing of the mutual release and an affidavit made by a registered or certified engineer or surveyor, licensed architect, or building inspector employed by the city or parish or by a lending institution chartered under federal or state law, that states he inspected the immovable at a specified time subsequent to the filing of the contract and work had not been commenced and no materials placed at the site. If the contract, or a certified copy, is then refiled, the refiling date shall become the effective date for privilege for work done pursuant to the contract in accordance with R.S. 9:4820(A)(1).
6 (1) File a statement of their claims or privilege.
(2) Deliver to the owner a copy of the statement of claim or privilege. If the address of the owner is not given in the notice of contract, the claimant is not required to deliver a copy of his statement to the owner.
B. A general contractor to whom a privilege is granted by R.S. 9:4801 of this Part, and whose privilege has been preserved in the manner provided by R.S. 9:4811, shall file a statement of his privilege within sixty days after the filing of the notice of termination or substantial completion of the work.
C. Those persons granted a claim and privilege by R.S. 9:4802 for work arising out of a general contract, notice of which is not filed, and other persons granted a privilege under R.S. 9:4801 or a claim and privilege under R.S. 9:4802 shall file a statement of their respective claims and privileges within sixty days after:
(1) The filing of a notice of termination of the work; or
(2) The substantial completion or abandonment of the work, if a notice of termination is not filed.
La.R.S. 9:4822. Other Louisiana courts, as well as the federal appeals court, fifth
circuit, have considered the above statute. These courts concluded that if the notice
of contract is filed, but the notice of termination is not filed or is deficient, neither the
sixty-day, nor the thirty-day period start to run. Bernard Lumber Co., Inc. v. Lake
Forest Constr. Co., Inc., 572 So.2d 178 (La.App. 1 Cir. 1990); Rowley Co., Inc. v.
Southbend Contractors, Inc., 517 So.2d 1260 (La.App. 4 Cir. 1987); In re Whitaker
Constr. Co., Inc., 439 F.3d 212 (5th Cir. 2006).
For example, where the notice of contract and the notice of termination
were both filed, but neither one contained a legal description of the property, the
fourth circuit held that the time period under the LPWA never commenced. Rowley,
7 517 So.2d 1260. Relying on La.R.S. 9:4822(E)2 and La.R.S. 9:4831(C)3 the fourth
circuit concluded that a notice of termination must contain a legal description of the
property to be effective. Id. Because the notice of termination did not contain the
legal description it was ineffective. Id. The court further found that the notice of
contract was not ineffective even though it did not contain the legal description of the
property. Id. The court supported this conclusion with La.R.S. 9:4811(B). Id. The
statute stated that a notice of contract is not improperly filed because of an error or
omission unless an actual prejudice is shown by a claimant.4 Rowley, 517 So.2d
1260.
Where the notice of contract was filed but the notice of termination was
not, the first circuit held that the tolling period for filing a statement of claim or
privilege was not activated. Bernard Lumber Co., Inc., 572 So.2d 178. The party
2 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.
La.R.S. 9:4822(E)(1) 3 La.R.S. 9:4831 reads:
A. The filing of a notice of contract, notice of termination, statement of a claim or privilege, or notice of lis pendens required or permitted to be filed under the provisions of this Part is accomplished when it is filed for registry with the recorder of mortgages of the parish in which the work is to be performed. The recorder of mortgages shall inscribe all such acts in the mortgage records.
B. For purposes of this Part, the recorder of mortgages includes the office of the clerk of court and ex officio recorder of mortgages.
C. Each filing made with the recorder of mortgages pursuant to this Part which contains a reference to immovable property shall contain a description of the property sufficient to clearly and permanently identify the property. A description which includes the lot and/or square and/or subdivision or township and range shall meet the requirement of this Subsection. Naming the street or mailing address without more shall not be sufficient to meet the requirements of this Subsection. 4 The current version of the statute also reads that “[a]n error or omission of the identity of the parties or their mailing addresses or the improper identification of the immovable shall be prima facie proof of actual prejudice.” La.R.S. 9:4811(B).
8 who failed to file the notice of termination argued that the legislature did not intend
for there to be an indefinite period for filing the statement of claim or privilege. Id.
The legislature intended, the party argued, La.R.S. 9:4822(C) with its sixty-day time
limit to apply in situations where the notice of contract but no notice of termination
have been filed. Id.
The court rejected this argument. First, quoting the official comments
to La.R.S. 9:4822, the court stated: “[i]f a notice of contract is filed, a notice of
termination is always required to commence the 30 day time for filing.” Id. at 181.
The first circuit then reasoned that the statutory procedure of filing the notice of
contract and the notice of termination was designed to cut off “valid assertions of any
potential claims of privilege.” Id. (emphasis added). Thus, to take advantage of the
statute, the statute requires the owner to take affirmative actions. Id. Failure to take
the appropriate actions places the burden of consequences on the party responsible
for the failure. Bernard Lumber Co., Inc., 572 So.2d 178.
In another case, after finding an ambiguity in the statute, the federal fifth
circuit, relying on the Louisiana jurisprudence and the official comments to the
statute, also concluded that where the notice of contract has been filed but the notice
of termination has not, the tolling period never started to run. In re Whitaker Constr.
Co., Inc., 439 F.3d 212. The federal court rejected the suggestion that La.R.S.
9:4822(C) is a “catch-all” category and should apply in this situation. Id. The fifth
circuit concluded that such “interpretation does not follow directly from the statutory
language, and it is inconsistent with” the Louisiana jurisprudence and the official
comments to the statute. Id. at 226.
On the other hand, where the notice of contract that did not contain the
legal description of the property was filed but the notice of termination was never
filed, more recently, the first circuit applied a sixty-day tolling period which 9 commenced on the date of substantial completion. Norman H. Voelkel Constr., Inc.
v. Recorder of Mortgages for E. Baton Rouge Parish, 02-1153 (La.App. 1 Cir.
6/27/03), 859 So.2d 9, writs denied, 03-1962, 03-2133 (La. 10/31/03), 857 So.2d 486,
488. The court did not distinguish the case from the previous jurisprudence (and,
under the civilian tradition, it does not have to) but relied on La.R.S. 9:4811(B). Id.
That section states that although an error in the notice of contract does not make the
filing of the notice improper unless there is a showing of actual prejudice, an
improper identification of the immovable is a prima facie proof of actual prejudice.
La.R.S. 9:4811(B). In the footnote the court stated that the plaintiff sub-contractor
did not rebut the presumption of actual prejudice. Norman H. Voelkel Constr., Inc.,
859 So.2d 9.
The court found that in the absence of legal description, the notice of
contract was improper, and, therefore, the court applied La.R.S. 9:4822(C). Id.
Under this section, in situations where no notice of contract and no notice of
termination have been filed, persons may file a claim or privilege within sixty days
from the date of substantial completion or abandonment of the work. La.R.S.
9:4822(C). Because the sub-contractor did not file his claim or privilege within sixty
days of substantial completion, the court held the filing untimely. Norman H. Voelkel
Constr., Inc., 859 So.2d 9.
We find that in this case La.R.S. 9:4822(A) applies. This subsection of
the statute governs situations in which a notice of contract has been filed. The
language of this subsection, the official comments to the statute, and the above-cited
jurisprudence, all lead to the conclusion that if the notice of termination has not been
filed or was deficient, then the tolling period never starts to run.
Louisiana Revised Statutes 9:4822(C) governs those situations where the
notice of contract has not been filed. Louisiana Revised Statutes 9:4811(B) states 10 that an improper identification of an immovable is prima facie proof of actual
prejudice which would make the filing of the notice of contract improper.
Nevertheless, the effect of a presumption is to relieve “him in whose favor it exists
from the necessity of any proof; but may none the less [sic] be destroyed by rebutting
evidence.” La.R.S. 15:432 (emphasis added).
Under the LPWA, the owner of the immovable has unlimited personal
liability to those who perform the work on the property unless the owner timely files
a notice of contract and the general contractor files a proper bond. La.R.S.
9:4802(C). Thus, the primary purpose of a notice of contract is to relieve the owner
of potentially unlimited liability under the LPWA. To take advantage of this limit on
liability, the owner must timely file a proper notice of contract. The notice of contract
must contain a proper identification of the property. Failure to properly identify the
property creates a presumption in favor of the person who is protected under LPWA,
here the sub-contractor, that the notice of contract was improperly filed. This means
that the owner, presumptively, is not relieved of unlimited personal liability.
Therefore, the presumption is there for the benefit of the claimant, here the sub-
contractor, against the owner.
Thus, in situations where the sub-contractor wants to reach the owner for
the purposes of liability, La.R.S. 9:4811(B) allows him to dispense with proof of
actual prejudice to himself where the notice of contract did not properly identify the
immovable. What Appellees propose to do is to use the presumption that was created
in favor of the sub-contractor to his detriment. In essence, they argue that because
they did not properly do what they were supposed to do, i.e., to include the legal
description of the immovable in the notice of contract, they should benefit from their
own failure. This court declines to accept such a position.
11 Even if we were to construe the presumption against Live Oak, that
presumption is rebuttable by proof that the facts are actually otherwise. La.R.S.
15:432. Here, Live Oak submitted proof that it was not prejudiced by the failure to
include a legal description in the notice of contract. Therefore, even if we were
inclined to apply the presumption against Live Oak, that action would be of no avail
to Appellees.
Based on the above discussion, this court concludes that the failure to
include a proper identification of the immovable in the notice of contract does not
make the notice ineffective under the facts of this case.5
We agree with our sister-jurisdictions which concluded that where the
notice of contract was filed, but the notice of termination was not filed or was
defective, the applicable tolling period for filing a statement of claim or privilege is
in La.R.S. 9:4822(A). To begin the tolling period, a notice of termination must be
filed. If a notice of termination was not filed or was defective, then the tolling period
does not begin to run. As the first circuit aptly pointed out, because the filing
procedures specified in La.R.S. 9:4822 were designed to cut off valid claims, to take
advantage of the statute the owner must take affirmative actions. Failure to take the
actions places the burden of the consequences on the party responsible for the failure.
Based on these considerations, Live Oak’s statement of claim or
privilege was timely.
5 We caution a potential inference that the failure to include a proper identification of the immovable would not make the notice of contract ineffective with respect to the owner’s personal liability. The statute is very clear that the presumption would be in favor of the claimant that he suffered actual prejudice from the failure to include the proper identification. Thus, under the statute, it would be the owner’s burden to rebut that presumption and to make the notice of contract filing effective to limit the owner’s personal liablity.
12 (3) Forum Selection Clause and Venue
Because Appellees did not answer the appeal, we do not consider
whether the venue was proper for Live Oak’s claims under LPWA.6 Because we
reverse the trial court’s dismissal of Live Oak’s claims under LPWA and because the
trial court held that the contract claims should be litigated in Alabama, we now need
to consider whether the forum selection clause is enforceable.
“An objection to the venue may not be waived prior to the institution of
the action.” La.Code Civ.P. art. 44(A).7
It being against the public policy of the state of Louisiana to allow a contractual selection of venue or jurisdiction contrary to the provisions of the Louisiana Code of Civil Procedure, no provision of any contract which purports to waive these provisions of venue, or to waive or select venue or jurisdiction in advance of the filing of any civil action, may be enforced against any plaintiff in an action brought in these courts.
La.R.S. 51:1407(A).
The legislature finds that, with respect to construction contracts, subcontracts, and purchase orders for public and private works projects, when one of the parties is domiciled in Louisiana, and the work to be done and the equipment and materials to be supplied involve construction projects in this state, provisions in such agreements requiring disputes arising thereunder to be resolved in a forum outside of this state or requiring their interpretation to be governed by the laws of another jurisdiction are inequitable and against the public policy of this state.
La.R.S. 9:2779(A).
There are several appellate courts which have concluded that forum
selection clauses are legal and binding in Louisiana unless the resisting party clearly
6 Because the trial court issued a judgment on the merits, it implicitly held that the venue was proper with respect to these claims. 7 An interesting historical perspective regarding the evolution of La.Code Civ.P. art. 44(A) from Article 162 of the Code of Practice of 1870 and the associated jurisprudence can be found in Eric Michael Liddick, Give Me Freedom of Contract or Give Me Death: The Obscurity of Article 44(A) of the Louisiana Code of Civil Procedure, 54 LOY . L. REV . 602 (2008).
13 shows that the enforcement would be unreasonable and unjust, that the clause arises
from fraud or overreaching, or that the enforcement would contravene a strong public
policy. E.g., Case Atl. Co. v. Blount Bros. Constr., Inc., 42,251 (La.App. 2 Cir.
6/20/07), 960 So.2d 1274, writ denied, 07-1541 (La. 10/12/07), 965 So.2d 403. The
supreme court has not addressed the issue explicitly, but has touched upon it in two
cases. In Lejano v. Bandak, 97-388 (La. 12/12/97), 705 So.2d 158, cert. denied,
Lejano v. K.S. Bandak Assuranceforeningen Gard, 525 U.S. 815, 119 S.Ct. 52 (1998),
the supreme court addressed a forum selection clause in an admiralty action. Citing
Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522 (1991), the court
held that “in admiralty cases, federal law governs the enforceability of forum
selection clauses.” Lejano, 705 So.2d 158, 166. Thus, applying the federal law, the
court held that forum selection clauses are generally enforceable. Id.
In Power Marketing Direct, Inc. v. Foster, 05-2023 (La. 9/6/06), 938
So.2d 662, the court cited Lejano for the proposition that in Louisiana forum
selection clauses are generally enforceable. This case is challenging for two reasons.
First, Lejano applied the federal law and, therefore, cannot be cited for the statement
of Louisiana law. Thus, the supreme court is “announcing” the new law without a
citation to anything. Second, this pronouncement in Power Marketing is dictum. The
court did not have to decide whether the clause was or was not enforceable because
the party claiming unenforceability of the clause has already admitted the allegations
of jurisdiction and venue in the forum selected under the contract. Thus, the party
waived the objection to venue after the litigation commenced.
This circuit also made a statement that forum selection clauses are
generally enforceable in Calahan v. Haspel, 99-44 (La.App. 3 Cir. 5/5/99), 732 So.2d
796. The case involved a rental of residential property. Id. The court had to consider
whether the forum selection clause conferred personal jurisdiction over the defendant 14 on this court. Id. Holding that it did not, because the defendant did not have enough
contacts with this State, this court stated that forum selection clauses are legal and
binding, unless held unreasonable under the circumstances. Id. The forum selection
clause selecting venue in Louisiana was held unenforceable in this case for the same
reasons the court could not assert personal jurisdiction over the defendant. Id.
One of the examples from our sister-jurisdictions on which Appellees
relied heavily in their brief is Case Atlantic Co., 960 So.2d 1274. There, the contract
was between the Department of Transportation and Development (DOTD) and Blount
to build a bridge. Id. The contract incorporated by reference a provision that any
litigation related to the contract, bidding, or award thereof shall be in Baton Rouge
Parish. Id. Blount sub-contracted with Case Atlantic. Id. Case sent lien notices to
DOTD, alleging Blount failed to pay. Id. DOTD withheld two payments from
Blount. Case Atlantic Co., 960 So.2d 1274. Case filed a concursus proceeding,
naming Blount, DOTD, and DOTD’s surety as defendants. Id. DOTD deposited the
money withheld. Id. Blount filed a cross-claim against DOTD, claiming DOTD
wrongly withheld the payment. Id. DOTD responded with an exception of improper
venue. Id. Blount contended that the venue for concursus proceedings was in Caddo
Parish and was mandated by the statute (citus of the immovable), thus, the cross claim
should also be litigated there. Id.
The court disagreed: “Blount’s cross-claim is not a concursus but a
breach of contract claim.” Case Atlantic Co., 960 So.2d 1274, 1278. The court was
cognizant of the competing policy interests. Id. It noted that the law disfavors
multiplicity of actions and piecemeal litigation. Id. The court weighed this policy
against the following considerations: concursus is a summary proceeding and a
contract claim is an ordinary action; thus, Case Atlantic would be inconvenienced if
its summary proceeding were converted into an ordinary action. Id. The court also 15 noted the enormous benefit accrued to Blount from contracting with DOTD. Id. This
benefit dwarfed Blount’s potential inconvenience of litigation in another parish. Id.
There are two sources of law in Louisiana: legislation and custom, with
legislation superceding custom in every instance. Doerr v. Mobil Oil Corp., 00-947
(La. 12/19/00), 774 So.2d 119 (citing La.Civ.Code arts. 1, 3). “Judicial decisions, on
the other hand, are not intended to be an authoritative source of law in Louisiana.”
Id. at 128 (citing A.N. YIANNOPOULOS, LOUISIANA CIVIL LAW SYSTEM § 35 (1977)).
Because “‘one of the fundamental rules of [the civil law tradition] is that a tribunal
is never bound by the decisions which it formerly rendered: it can always change its
mind,’ 1 Marcel Planiol, Treatise on the Civil Law § 123, (La. State Law Inst.
trans.1959) (12th ed.1939), prior holdings by this court are persuasive, not
authoritative, expressions of the law.” Id. at 128-29 (citing A.N. YIANNOPOULOS,
LOUISIANA CIVIL LAW SYSTEM § 35 (1977)). Thus, “a prior judicial
(mis)construction of a statute does not ‘insulate’ the Louisiana judge . . . from
returning to the legislation itself to ascertain its correct meaning and application.”
Albert Tate, Jr., Civilian Methodology in Louisiana, 44 TUL. L. REV. 673, 678 (1976).
As Justice Dennis explained, in Louisiana, legislation “is the primary
source of law, and precedent serves merely as an example of a prior judge’s
interpretation and application of legislated law.” James L. Dennis, Interpretation &
Application of the Civil Code & the Evaluation of Judicial Precedent, 54 LA. L. REV.
1, 3 (1993). The function of every legal concept contained in the statutes “is to
delimit contradictory or competing interests, and to decide the contest between two
or more such interests.” Id. at 9.
In creating a legal rule or concept, the legislator also considers ethical, religious, moral interests, the interest of justice, of equity, of the public, and the highest interests of human kind. Although we may disagree vigorously over which interest should prevail or be vanquished in a 16 particular case, it is self-evident that every statute affects these kinds of interests.
Id. at 9-10 (footnotes omitted). When the legislature has weighed the involved
interests and formed a rule based on this evaluation, “the judge is absolutely bound
by the legislator’s delimitation of those interests, no matter if the judge himself would
reach a different result.” Id. at 10.
Justice Dennis concluded that “[i]t should be evident that the common-
law or case-law theory of precedent is incompatible in many ways with the legal
method of deciding a case . . . .” Id. at 14. Furthermore, the civil law method should
be applied to determine “whether the case should be imitated in a subsequent
decision.” Id. at 15. Thus, “if a judge ignores a clearly applicable Code rule and
follows another jurisdiction’s case, his example of using the wrong starting point or
source of law should not be influential at all.” James L. Dennis, Interpretation &
Application of the Civil Code & the Evaluation of Judicial Precedent, 54 LA. L. REV.
1, 15 (1993).
The law should be applied as written if it is clear, unambiguous and does
not lead to absurd consequences. Martin v. Safeway Ins. Co. of La., 08-1419
(La.App. 3 Cir. 4/15/09), 26 So.3d 777. “Laws on the same subject matter must be
interpreted in reference to each other.” La.Civ.Code art. 13. This means that where
statutory provisions are in conflict, laws in pari materia should be construed together
and harmonized, if possible. Killeen v. Jenkins, 98-2675 (La. 11/5/99), 752 So.2d
146.
The courts presume that the legislature “enacted the law with full
knowledge of all other laws pertaining to the same subject matter” and that “every
provision of law was intended to serve some useful purpose . . . .” Martin, 26 So.3d
at 780 (quoting Ransome v. Ransome, 01-2361 p. 8 (La.App. 1 Cir. 6/21/02), 822
17 So.2d 746, 754). Courts do not presume that “the lawmaker intended for any part
of a law to be meaningless . . . .” Id.
The public policy of the State is a limit on one’s freedom to form an
enforceable contract. See M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct.
1907 (1972). Our legislature, the primary and superior source of the law in this state,
has declared: “[a]n objection to the venue may not be waived prior to the institution
of the action.” La.Code Civ.P. art. 44(A). In addition, our legislature stated in
La.R.S. 51:1407(A) (emphasis added):
It being against the public policy of the state of Louisiana to allow a contractual selection of venue or jurisdiction contrary to the provisions of the Louisiana Code of Civil Procedure, no provision of any contract which purports to waive these provisions of venue, or to waive or select venue or jurisdiction in advance of the filing of any civil action, may be enforced against any plaintiff in an action brought in these courts.
The public policy stated in La.R.S. 51:1407(A) is not being declared in
that statute. Instead, the legislature refers to the already-existing public policy and
applies it to the situations the Unfair Trade Practices Act (UTPA) addresses: “it
being against the public policy . . . .” The Louisiana Code of Civil Procedure Article
44(A) by stating that an objection to venue may not be waived prior to the institution
of an action is an explicit expression of the legislative will from which La.R.S.
51:1407(A) derives its policy statement. Therefore, that the restatement of the policy
appears in the UTPA does not mean it is not a public policy outside of UTPA.
Moreover, the language in La.R.S. 51:1407(A) such as “any contract,” “any civil
action,” and “any plaintiff” indicates that the policy is far from being limited to the
claims based on the UTPA.
The question remains, nevertheless, of the significance of La.R.S. 9:2779
where the legislature declared forum selection clauses against public policy when the
18 construction contract involves a Louisiana domiciliary and the work is to be done in
Louisiana. At first blush, this statute implies that forum selection clauses are
unenforceable as against public policy only under certain circumstances. In the case
of La.R.S. 9:2779, only when one of the parties is a Louisiana domiciliary and the
work is to be done in Louisiana is it so.
Yet, this interpretation would render La.Code Civ.P. art. 44(A)
nugatory.8 This interpretation, by implicitly making all forum selection clauses
generally enforceable, would also conflict with the explicit pronouncement in La.R.S.
51:1407(A) that it is against public policy of Louisiana to allow contractual selection
of venue contrary to the Code of Civil Procedure.
On the other hand, if La.Code Civ.P. art. 44(A), which is clear and
unambiguous, means exactly what it plainly states, why would the legislature enact
La.R.S. 9:2779? Louisiana Code of Civil Procedure Article 44(A)’s prohibition of
forum selection has a temporal component to it; it prohibits waiver of the objection
to venue “prior to the institution of the action.” (Emphasis added). Thus, the Code
of Civil procedure allows the waiver of objections to venue after the suit is filed,
unless it is one of the actions specified in La.Code Civ.P. art 44(B).
On the other hand, if the requirements of La.R.S. 9:2779 are satisfied,
then the venue selection outside of this state is against public policy. “The cause of
an obligation is unlawful when the enforcement of the obligation would produce a
result prohibited by law or against public policy.” La.Civ.Code art. 1968. “An
obligation cannot exist without a lawful cause.” La.Civ.Code art. 1966. Thus, the
parties whose circumstances fit under La.R.S. 9:2779 may not consent to venue
8 In their supplemental brief, Appellees would limit La.Code Civ.P. art. 44(A) to those situations listed in La.Code Civ.P. art. 44(B). This interpretation would also render La.Code Civ.P. art. 44(A) nugatory. Moreover, La.Code Civ.P. art. 44(A) disallows waiver of objection to venue before an action is instituted. On the other hand, La.Code Civ.P. art. 44(B) covers those situations in which venue may never be waived whether before or after the litigation commences.
19 outside of this state even after the litigation has started as such an agreement would
violate the public policy of this State.
Moreover, unlike La.Code Civ.P. art. 44(A) which controls only venue
issues, La.R.S. 9:2779, in addition to prohibiting the selection of forum outside of
Louisiana, forbids application of another state’s laws to decide the case. Thus, while
La.R.S. 9:2779 and La.Code Civ.P. art. 44(A) address similar issues, La.R.S. 9:2779
has a more comprehensive coverage while including only a certain class of litigants,
and La.Code Civ.P. art. 44(A) applies to all litigants but covers the limited area of
venue. Unlike La.R.S. 9:2779, La.Code Civ.P. art. 44(A) does not address the
conflict of laws issues.
Because our goal, under the statutory interpretation principles, is not to
render a statute nugatory and to construe together and harmonize, if possible, laws in
pari materia, we conclude that the legislature broadened the policy clearly stated in
La.Code Civ.P. art. 44(A) by enacting La.R.S. 9:2779 but applied that broad policy
to the litigants that satisfy its requirements. The litigants who do not satisfy the
requirements of La.R.S. 9:2779 may not claim its broad protection; nevertheless, they
may rely on the more limited in scope La.Code Civ.P. art. 44(A).
This case does not fall within La.R.S. 9:2779 because none of the parties
in this case is a Louisiana domiciliary. Thus, the general provisions of the Code of
Civil Procedure with respect to venue apply. La.Code Civ.P. art. 44(A) clearly and
unambiguously prohibits waiver of the Code’s venue provisions prior to the
institution of the action. The contract at issue here purported to waive the venue
provisions of Louisiana Code of Civil Procedure in advance of the litigation.
Therefore, the waiver is not enforceable.
We decline to accept the holdings from our sister-jurisdictions that make
forum selection clauses enforceable in this state. None of those decisions examined 20 the primary source of law of this state, i.e., La.Code Civ. P. art. 44(A), and relied,
instead, on the Supreme Court’s pronouncements. Yet, it is the Supreme Court which
declared that forum selection clauses are unenforceable when the “enforcement would
contravene a strong public policy of the forum in which the suit is brought, whether
declared by statute or by judicial decision.”9 M/S Bremen v. Zapata Off-Shore Co.,
407 U.S. 1, 92 S.Ct. 1907, 15, 1916 (1972).
Thus, the starting point of any judicial decision on the issue must begin
with the examination of whether there exists a public policy prohibiting enforcement
of forum selection clauses in Louisiana. This court has failed to find any such case.
Thus, we adopt the words of Justice Dennis: “if a judge ignores a clearly applicable
Code rule and follows another jurisdiction’s case, his example of using the wrong
starting point or source of law should not be influential at all.” James L. Dennis,
Interpretation & Application of the Civil Code & the Evaluation of Judicial
Precedent, 54 LA. L. REV. 1, 15 (1993).
The examination of the two supreme court cases which touched upon the
issue of forum selection clauses, leads to the conclusion that they are also of limited,
if any, consequence. First, in Lejano, 705 So.2d 158, the supreme court applied the
federal law, not Louisiana law, as it was an admiralty action. Second, in Power
Marketing Direct, Inc., 938 So.2d 662, there is one sentence that forum selection
clauses are enforceable in Louisiana with a citation to Lejano. This pronouncement
in Power Marketing Direct was a dictum because the party insisting on the
unenforceability of the forum selection clause consented to the jurisdiction of another
court after the litigation began.
9 In fact, there are several states where the enforcement of forum selection clauses is against public policy.
21 Finally, consistent with the civil law tradition where the tribunal can
always change its mind, this court disavows its statements made in Calahan, 732
So.2d 796. The specific issue in that case was whether the forum selection clause
conferred personal jurisdiction on this court in the absence of any other contacts with
the State. Id. Nevertheless, this court implicitly held and explicitly stated that forum
selection clauses are generally enforceable even though the clause at issue was not
enforceable under the factual circumstances of the case. Id. We now declare that the
statement relating to the enforceability of forum selection clauses in Callahan was
inaccurate.10
10 Even if we were to follow the jurisprudence instead of the solemn expression of the legislative will, the conclusion will, nevertheless, be the same. First, because Appellees failed to answer the appeal, we need not consider the implicit trial court’s holding that the venue for the lien actions is proper in Louisiana. Thus, the issue is whether the lien cause of action and the contract breach claim should be split. We conclude that even if forum selection clauses were not against public policy, the clause’s enforcement under the circumstances of this case would be against public policy. This is because the enforcement would require to split the litigation between two states.
Unlike Case Atlantic Co., 960 So.2d 1274, an action involving summary and ordinary proceedings, this case would involve two ordinary proceedings, i.e, the contract breach and lien enforcement. Moreover, unlike Case Atlantic where both actions were within the state of Louisiana and, therefore, the inconvenience associated with the enforcement of the clause was small compared to the benefit derived, enforcement of the forum selection clause here would require two separate lawsuits in two different states arising out of the same dispute. Very similar factual issues would have to be determined in both the lien action and the contract breach action, i.e., what Live Oak did on the project, how much the materials and labor cost, etc. In addition, the court in Case Atlantic was concerned about the inconvenience to the party who brought the concursus proceeding and whose summary action would have to be converted to the ordinary one. Here, no such parties exist.
Furthermore, the inconvenience in this case would, indeed, be considerable. Unlike cases where the litigant simply had to go to another state to litigate under the forum selection clause, our litigant would have to litigate here and in another state.
We also note that the subject of the dispute is located in Louisiana. All of the work involved in the dispute was performed in Louisiana. Thus, almost all evidence and witnesses would be located in Louisiana. Based on the totality of circumstances and that Louisiana disfavors multiplicity of actions and piecemeal litigation, it would be against public policy to enforce the forum selection clause in this case even if forum selection clauses were generally enforceable.
22 V.
CONCLUSION
Summary judgment in favor of White-Spunner Construction, Inc.,
Hartford Fire Insurance Company, and Wal-Mart Stores, Inc. is reversed. The grant
of exception of improper venue is reversed. The case is remanded to the trial court
for further proceedings consistent with this opinion. Costs of this appeal are assessed
to White-Spunner Construction, Inc., Hartford Fire Insurance Company, and Wal-
Mart Stores, Inc..