R.L. LUCIEN TILE CO.
SOLID ROCK CO., STALLINGS CONSTRUCTION CO. AND CHILDREN'S HOSPITAL
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2000-08416,
DIVISION "C" Honorable Sidney H. Cates, Judge.
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.
composed of Judge Daniel L. Dysart, Judge Madeleine M.
Landrieu, Judge Marion F. Edwards, Pro Tempore
F. Edwards, Pro Tempore Judge.
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.
AND PROCEDURAL HISTORY
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.
September 22, 2000, Lucien filed an amended petition for
damages.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.
November 28, 2001, Solid Rock filed a motion to set for trial
on the merits.  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
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.
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
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.
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 ...