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Tymeless Flooring, Inc. v. Rotolo Consultants, Inc.

Court of Appeals of Louisiana, Fourth Circuit

May 20, 2015

TYMELESS FLOORING, INC.
v.
ROTOLO CONSULTANTS, INC. AND FIDELITY DEPOSIT COMPANY OF MARYLAND

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2013-10734, DIVISION " A" . Honorable Tiffany G. Chase, Judge.

Wayne J. Jablonowski, LAW OFFICE OF WAYNE J. JABLONOWSKI, APLC, Slidell, LA, COUNSEL FOR PLAINTIFF/APPELLANT.

John R. Walker, Bailey D. Morse, JONES, FUSSELL, L.L.P., Covington, LA, COUNSEL FOR DEFENDANT/APPELLEE.

(Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Rosemary Ledet).

OPINION

Page 146

[2014-1392 La.App. 4 Cir. 1] Rosemary Ledet, Judge

 This is a breach of contract suit. The narrow issue presented is whether the payment provision in the construction contract between the parties is a " pay-when-paid" clause--a term of payment--or a " pay-if-paid" clause--a suspensive condition.[1] The trial court, finding that the contract contained a suspensive condition, sustained the dilatory exception of prematurity filed by the defendant, Rotolo Consultants, Inc. (" RCI" ), and dismissed without prejudice the suit filed by the plaintiff, Tymeless Flooring, Inc. (" Tymeless). From this judgment, Tymeless [2014-1392 La.App. 4 Cir. 2] appeals. For the reasons that follow, we find that the contract contains a term of payment--a " pay-when-paid" clause. Accordingly, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND[2]

This case arises out of a construction contract between Dryades Young Men's Christian Association (" Dryades" ) and Ellis Construction, Inc. (" Ellis" ), the prime contractor, for a project known as the Dryades YMCA Natatorium and Wellness Center in New Orleans, Louisiana (the " Project" ). After contracting with Dryades, Ellis entered into a subcontract with RCI for certain portions of the work on the Project. RCI, in turn, entered into a subcontract with Tymeless to perform

Page 147

additional work, as an extra to the contract (the " Subcontract" ). Tymeless was thus a subcontractor of a subcontractor on the Project.

After fully performing the work under the Subcontract, Tymeless invoiced RCI. Although RCI made a partial payment, it failed, despite amicable demand, to make full payment. On November 16, 2012, Tymeless filed a Statement of Claim and Privilege with the Orleans Parish Recorder of Mortgages in the principal amount of $24,595.00. On November 15, 2013, Tymeless commenced this suit against RCI.[3] In its petition, Tymeless alleged that RCI was liable to it for the full amount of its lien claim, plus interest, attorneys' fees, and costs. In support of its [2014-1392 La.App. 4 Cir. 3] claim, Tymeless cited the Subcontract; the Private Works Act, La. R.S. 9:4801, et seq ; and the Open Account statute, La. R.S. 9:2781.

In response, RCI filed a dilatory exception of prematurity. The sole basis for RCI's exception was the payment provision contained in Section 5 of the Subcontract,[4] which provides as follows:

Payments are to be made as follows: 90% of Sub-Contractor's approved invoices or pay request will be paid subject to the conditions following, after payment by the Owner for Sub-Contractor's work. Retention of 10% will be released upon satisfactory completion of this contract and release of final payment by the Owner.[5]

RCI" s position was that the underlying proceeding is premature because the payment provisions contained in the contract have not been triggered. Stated otherwise, RCI's position was that the Subcontract specified that the amounts Tymeless was seeking to recover from RCI were not owed by RCI " unless and until" RCI itself was paid by Ellis. Given that Ellis had not yet paid RCI these amounts, RCI contended that Tymeless' suit to secure payment from RCI was premature.

[2014-1392 La.App. 4 Cir. 4] Agreeing with RCI, the trial court granted RCI's exception of prematurity and dismissed Tymeless' suit without prejudice. Tymeless then filed a motion for new trial, which the trial court summarily denied. This appeal followed.

DISCUSSION

An exception of prematurity poses the question of " whether the cause of action has matured to the point where it is ripe for a decision by the court." 1 Frank L. Maraist and Harry T. Lemmon, LOUISIANA

Page 148

CIVIL LAW TREATISE: CIVIL PROCEDURE § 6.6 (1999). An exception of prematurity is governed by La. C.C.P. art. 423, which sets forth the following pertinent rules:

o When the obligation allows a term for its performance, the right to enforce it does not accrue ...

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