TUBBS RICE DRYERS, INC. v. Martin

33 So. 3d 926, 2010 La. App. LEXIS 239, 2010 WL 625044
CourtLouisiana Court of Appeal
DecidedFebruary 24, 2010
Docket44,800-CA
StatusPublished
Cited by9 cases

This text of 33 So. 3d 926 (TUBBS RICE DRYERS, INC. v. Martin) 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
TUBBS RICE DRYERS, INC. v. Martin, 33 So. 3d 926, 2010 La. App. LEXIS 239, 2010 WL 625044 (La. Ct. App. 2010).

Opinions

DREW, J.

|) Lawrence Martin appeals a judgment denying his exceptions of prematurity, no cause of action, no right of action, and lack of subject matter jurisdiction. We affirm.

FACTS

Tubbs Rice Dryers, Inc., operates grain storage facilities in northeast Louisiana. Tubbs books grains from local farmers. The way the booking process works is that farmers contact Tubbs to sell future crops at a certain price. Tubbs then calls its broker with Commodity Risk Management and places an order to sell the same amount of grain at the same price on the Chicago Board of Trade. Tubbs does this to hedge its position. When the broker makes the sale, Tubbs and the farmer become obligated at that point and a contract, known as a confirmation sheet in the grain trade, is sent to the farmer, who is to deliver the grain at a future time.

Lawrence Martin is a Texas resident who farms in Morehouse Parish. Martin entered into several contracts to sell grain to Tubbs:

• Under contract number 772, which had a booking date of February 16, 2006, Martin agreed to deliver 4,000 bushels of wheat between May 15 and June 30, 2007.
• Under contract number 912, which had a booking date of May 15, 2006, Martin agreed to deliver 5,000 bushels of wheat between May 15 and June 30, 2007.
• Under contract number 923, which also had a booking date of May 15, 2006, Martin agreed to deliver 3,000 bushels of milo between July 15 and October 31, 2007.
• Under contract number 937, which had a booking date of May 18, 2006, Martin agreed to deliver 8,000 bushels of wheat between May 15 and June 30, 2008.

| .¿Martin signed contract number 772, but did not sign the other contracts, which was not an unusual occurrence in the grain trade. Because of the nature of the transactions, Tubbs often had to rely on oral agreements from farmers who did not sign and return the contracts. This is reflected in the contracts, which stated:

If Seller does not return a signed copy of this confirmation to Buyer within ten days from the above date, Buyer shall have the option to cancel this confirmation by sending written notice to Seller ■within fourteen days from the above date. If Buyer does not give such writ[928]*928ten notice, the confirmation shall remain in full force and effect.

After Martin failed to deliver the grains as promised under contract numbers 772, 912, and 923, Tubbs filed a petition on open account and for breach of contract against Martin on January 14, 2008.

Martin filed an answer in a pro se capacity on February 21, 2008. On April 14, 2008, Martin’s attorney filed a motion to enroll as counsel of record.

On July 28, 2008, Tubbs amended its petition to add the claim that Martin had failed to deliver 8,000 bushels of wheat as agreed to under contract number 937.

On December 30, 2008, Martin filed the exceptions of no cause of action and no right of action in which he argued that the dispute with Tubbs was subject to the arbitration rules of the National Grain and Feed Association (“NGFA”), and that Tubbs had not exhausted that remedy pri- or to bringing suit. On that same date, Martin also separately filed the exception of lack of subject matter jurisdiction, and in the alternative, the |3exception of prematurity; Martin also contended in these exceptions that the dispute had not yet been submitted to mandatory arbitration.1

The trial court denied the exceptions. A bench trial was held on the merits.2 The court found in favor of Tubbs, and ordered Martin to pay $57,345.03 plus court costs, legal interest, and attorney fees. Martin has appealed the denial of the exceptions.3

DISCUSSION

We note that normally when an appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him in addition to the review of the final judgment. See Alexander v. Palazzo, 2008-1541 (La.App. 1st Cir.2/13/09), 5 So.3d 950. However, some adverse interlocutory rulings, such as the denial of the exception of improper venue, cannot as a practical matter be corrected on appeal after a final judgment. See Danny Weaver Logging, Inc. v. Norwel Equipment Co., 33,793 (La.App.2d Cir.8/23/00), 766 So.2d 701, where the failure to timely appeal a venue ruling amounted to a waiver of venue. In those instances, the party should either seek supervisory review pursuant |4to La. C.C.P. art. 2201, or file an appeal under La. C.C.P. art. 2083(C) if it is expressly provided by law.

The denial of a request for arbitration can be likened to the denial of an exception of improper venue in the sense that it would be difficult to correct the error once a final judgment has been rendered. Arbitration exists as an alternative to litigation in order to avoid a costly trial. It would not foster judicial efficiency if a [929]*929matter could be sent to arbitration after the trial court had already decided the case on its merits.

We recognize that Louisiana has a public policy favoring arbitration. This is exemplified in La. R.S. 9:4201, which provides:

A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

We further recognize that Tubbs has not sought dismissal of this appeal on the grounds that Martin waived his claim to arbitration by not seeking supervisory review. Furthermore, the trial on the merits in this matter was held immediately after Martin’s exceptions were denied. There was no delay between the denial of the exceptions and the trial on the merits such that Martin’s failure to seek supervisory review was inexcusable. Under the circumstances of this case, and in light of our public policy favoring arbitration, we will review on this appeal the arbitration issues raised by Martin in his exceptions.

|fiWhen a party to a lawsuit claims that the matter is required to be submitted to arbitration, the threshold inquiry is whether the parties have agreed to arbitrate the dispute in question. See Johnson’s, Inc. v. GERS, Inc., 84,268 (La.App.2d Cir.1/24/01), 778 So.2d 740. This determination involves two considerations: (1) whether there is a valid agreement to arbitrate between the parties; and (2) whether the dispute in question falls within the scope of that arbitration agreement. Id.

In regard to the first consideration, we note that Tubbs has not consented to arbitration. We further note that Martin has denied executing three of the four contracts. Thus, Martin has taken the interesting position of seeking to enforce arbitration clauses in three contracts to which he disclaims even being a party.

Tubbs used standard grain contracts when booking Martin’s grain. The contracts stated under their general terms section:

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