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Trouth Air Conditioning & Sheet Metal, Inc. v. Bay Electric Co., Inc.

Court of Appeals of Louisiana, Third Circuit

August 23, 2017

TROUTH AIR CONDITIONING & SHEET METAL, INC.
v.
BAY ELECTRIC CO., INC., AND LA CREOLE HOSPITALITY 1, LLC

         SUPERVISORY WRIT FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2017-000075 HONORABLE ROBERT L. WYATT, DISTRICT JUDGE

          Henry r. Liles Counsel For Plaintiff/Respondent: Trouth Air Conditioning & Sheet Metal, Inc.

          Jeffrey N. Boudreaux John C. Funderburk Joshua J. Coleman Thomas D. Bourgeois Kean Miller LLP Counsel For Defendant/Applicant: LA Creole Hospitality 1, LLC

          Court composed of John D. Saunders, Shannon J. Gremillion and John E. Conery, Judges.

          JOHN D. SAUNDERS, JUDGE.

         Defendant-Relator, LA Creole Hospitality 1, LLC, seeks supervisory writs from the judgment of the Fourteenth Judicial District Court, Parish of Calcasieu, the Honorable Robert L. Wyatt presiding, which denied Relator's declinatory exception of lis pendens.

         STATEMENT OF THE CASE

         The instant litigation and the connected litigation giving rise to the lis pendens issue arise out of a construction project (project) in which Relator, as owner, contracted with Bay Electric Company, Inc. (Bay Electric), as general contractor, to construct a Marriot Residence Inn in Lake Charles. Bay Electric then entered into a subcontract with plaintiff, Trouth Air Conditioning and Sheet Metal, to complete the HVAC work for the hotel. After completion, the project began experiencing severe water intrusion and leaks. On June 23, 2016, Relator filed suit against Bay Electric, plaintiff, several other subcontractors, and their various insurers, for the damages to its property under theories of breach of contract, breach of warranty, negligence, gross negligence, and failure to warn (original suit). Therein, Relator specifically alleged plaintiff's breach of its subcontract with Bay Electric. Plaintiff answered the original suit but did not include any reconventional demands against Relator. Thereafter, on January 12, 2017, plaintiff filed the present suit for Breach of Contract and to Enforce Lien against Bay Electric and Relator, alleging that Bay Electric breached its subcontract with plaintiff by not paying the full amount due (second suit). Relevant herein, plaintiff only alleged a Private Works Act lien claim against Relator, in its capacity as owner of the property subject to the lien.[1] After the lien was filed, Bay Electric, pursuant to its construction contract with Relator, purchased a bond, which has now taken the place of the lien on the property. In response, Relator filed its declinatory exception of lis pendens, claiming both suits arise out of the same construction project for breach of the same subcontract. After hearing arguments, the trial court denied the exception, explaining:

Based on the information that has been presented to the court, based on the statement and clarification of [plaintiff's counsel] of the suit for breach of contract and to enforce lien, . . . the exception of lis pendens is denied at this time.
It's . . . splitting hairs, I recognize . . . . There are some similarities. It's likely that in the [original] suit . . . that all of these matters will be addressed. I understand that; but for basic - - just for purposes of what [plaintiff] has sued in the [second] lawsuit against Bay Electric and LA Creole, your . . . exception is denied at this time.

         Relator now seeks review of the trial court's judgment.

         SUPERVISORY RELIEF

         "The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs. See La. C.C.P. arts. 2087 and 2201." Brown v. Sanders, 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933. But see La.Code Civ.P. art. 2083, comment (b), "Irreparable injury continues to be an important (but not exclusive) ingredient in an application for supervisory writs." (Citation omitted.) A court of appeal has plenary power to exercise supervisory jurisdiction over trial courts and may do so at any time, according to the discretion of the court. When the trial court's ruling is arguably incorrect, a reversal will terminate the litigation, and there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictate that the merits of the application for supervisory writs ...


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