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R.L. Lucien Tile Co. v. Solid Rock Co.

Court of Appeals of Louisiana, Fourth Circuit

March 29, 2017

R.L. LUCIEN TILE CO.
v.
SOLID ROCK CO., STALLINGS CONSTRUCTION CO. AND CHILDREN'S HOSPITAL

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2000-08416, DIVISION "C" Honorable Sidney H. Cates, Judge.

          Jack H. Tobias LAW OFFICES OF JACK H. TOBIAS, P.L.C. COUNSEL FOR PLAINTIFF/APPELLANT, R.L. LUCIEN TILE CO.

          Lindsey M. Ladouceur Jane C. Alvarez LADOUCEUR & LADOUCEUR, L.L.C. COUNSEL FOR DEFENDANT/APPELLEE, STALLLINGS CONSTRUCTION CO., INC.

          Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Marion F. Edwards, Pro Tempore

          Marion F. Edwards, Pro Tempore Judge.

         Plaintiff, R. L. Lucien Tile Company, appeals a judgment of the district court denying its motion to set aside the dismissal of its breach of contract case on grounds of abandonment against defendant, Stallings Construction Company, Inc. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         This case involves a construction dispute between R. L. Lucien Tile Company ("Lucien"), Solid Rock Company ("Solid Rock"), Stallings Construction Company, Inc. ("Stallings"), and Children's Hospital. On May 30, 2000, Lucien filed a lawsuit against Solid Rock, Stallings, and Children's Hospital Co., alleging that it provided over $60, 000.00 in payroll financing to Solid Rock and Stallings, and that defendants have ignored repeated requests by Lucien to be paid for its services and supplies. Further, Lucien alleged that Children's Hospital was "the recipient of the labor and materials that were fraudulently and illegally taken" and that the "labor and material has been incorporated as a part of the immovable property that is now the Children's Hospital Ambulatory Care Center.[1]

         On September 22, 2000, Lucien filed an amended petition for damages.[2]Thereafter, on September 6, 2001, Stallings filed an exception, answer, reconventional demand, cross-claim, and third-party demand against Solid Rock and Lucien. Stallings excepted to Lucien's procedural capacity to prosecute this lawsuit, alleging that "Lucien is a sole proprietorship and not a corporation chartered under or licensed to do business in Louisiana." In its reconventional demand, Stallings made Robert L. Lucien, Sr., d/b/a R. L. Lucien Tire [sic] Co., a defendant. In its cross-claim and third party demand, Stallings made "Solid Rock Construction, L.L.C." a defendant, identifying it as a limited liability company whose primary place of business was in St. Tammany Parish, Louisiana. Mr. Lucien, Sr., and Solid Rock were served on September 14 and 19, 2001, respectively. On November 13, 2001, Stallings received preliminary default judgments against Solid Rock and Lucien after both parties failed to answer its pleading.

         On November 28, 2001, Solid Rock filed a motion to set for trial on the merits. [3] Stallings opposed this motion on several grounds: (1) that no discovery had been conducted; (2) that neither Solid Rock nor Children's Hospital had filed an answer; and (3) and that the proposed motion to set for trial did not comply with Rule 10, Section 1, of the Civil District Court Rules.

         On December 18, 2001, Children's Hospital filed exceptions of no cause of action and no right of action. The basis for the exception of no cause of action was Lucien's failure to fulfill the requirements necessary to state a claim against Children's Hospital under La. R.S. 9:4802 (the Private Works Act), the statutory authority on which Lucien's claims were based. The basis for the exception of no right of action was Lucien's failure to file its Materialman's and Labor Lien within sixty days of substantial completion of the construction project. On February 20, 2002, following a hearing, the district court granted Children's Hospital's exceptions of no cause of action and no right of action, and dismissed Lucien's claims against it.

         On February 15, 2005, Stallings filed peremptory exceptions of no right of action and prescription, alleging (1) that Lucien is not included in the class of persons for whom the Louisiana Private Works Act (La. R.S. 9:4801, et seq.) extends a privilege against Stallings; and (2) in the event the Louisiana Private Works Act is applicable, Lucien failed to file suit against Stallings within the time periods outlined by said act. On July 21, 2008, Lucien filed a response to Stallings' exceptions. On August 25, 2011, Stallings filed a second motion to set hearing on peremptory exceptions of no right of action and prescription, which were heard on October 14, 2011. Thereafter, on October 27, 2011, Stallings' exceptions of no right of action and prescription were maintained and Lucien's claims against Stallings under the Private Works Act (La. R.S. 9:4801) were dismissed. Further, the October 27, 2011 judgment ordered that "the Materialman's and Labor Lien filed by plaintiff shall be stricken from the mortgage records of Orleans Parish."[4]

         On March 9, 2012, because the liens against Stallings had not been stricken from the mortgage records as ordered by the district court on October 27, 2011, Stallings filed a rule for contempt and for attorney's fees and costs. Thereafter, on April 12, 2012, Lucien's liens were canceled; however, on June 14, 2012, the district court granted Stalling's request for sanctions and ordered Lucien to pay Stallings $500.00.

         On May 29, 2015, a pleading was filed by plaintiff R.L. Lucien Tile Company, Inc. [both the original and first amended petitions were filed on behalf of "R.L. Lucien Tile Co."] requesting leave to supplement and amend the petition for a second time in order to add new defendants and several new causes of action. Stallings filed a memorandum in opposition to the motion for leave to file the second supplemental and amending petition arguing that the pleading "adds an entirely new defendant and several new causes of action, all of which were known or should have been known to Lucien at the time of filing of the original Petition fifteen ...


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