AUCOIN-HART JEWELERS, INC. AND JEWELERS MUTUAL INSURANCE COMPANY, AS SUBROGEE OF AUCOIN-HART JEWELERS, INC.
METAIRIE SHOPPING CENTER, L.L.C., METAIRIE PROPERTIES, L.L.C., LIBERTY MUTUAL INSURANCE COMPANY, BSD CONSTRUCTION, LLC, LANDMARK AMERICAN INSURANCE COMPANY, AND ROOF TECHNOLOGIES, INC.
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 759-583, DIVISION
"I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING
COUNSEL FOR DEFENDANT/APPELLANT, METAIRIE SHOPPING CENTER,
LLC Richard G. Duplantier, Jr., Blake W. Bourgeois.
COUNSEL FOR DEFENDANT/APPELLEE, ROOF TECHNOLOGIES, INC.,
Gerald A. Melchiode, James J. Reeves, II.
composed of Judges Robert A. Chaisson, Hans J. Liljeberg, and
Marion F. Edwards, Judge Pro Tempore.
A. CHAISSON JUDGE.
case arising out of an alleged breach of contract, Metairie
Shopping Center, LLC ("MSC"), appeals a final
judgment confirming an arbitration award rendered in favor of
Roof Technologies, Inc., ("Roof Tech"). The only
assignment of error MSC raises on appeal involves an
interlocutory ruling of the trial court rendered prior to the
commencement of the arbitration proceedings. In that ruling,
the trial court denied a peremptory exception of no right of
action filed by MSC. For the following reasons, we affirm the
judgment of the trial court.
AND PROCEDURAL HISTORY
about May 15, 2015, heavy rains caused water intrusion and
extensive damage to retail premises at the Metairie Shopping
Center, which is owned by MSC. On April 5, 2016, Aucoin-Hart,
a lessee of the retail premises, filed a petition for damages
against MSC, Metairie Properties, LLC, Liberty Mutual
Insurance Company, BSD Construction, LLC, Landmark American
Insurance Company, and Roof Tech. According to allegations
set forth in the petition, per addendum to the lease
agreement between Aucoin-Hart and MSC, MSC had agreed to
replace the roof over the leased premises prior to the May
15, 2015 heavy rains. Roof Tech was named as a defendant
because, at the time of the incident, Roof Tech had been
hired by MSC to repair certain portions of the roof at the
1, 2016, Roof Tech filed an answer to Aucoin-Hart's
petition for damages, as well as a cross-claim against MSC in
which Roof Tech alleged that it had entered into a
contractual agreement with MSC on March 24, 2015, to repair
portions of the roof at the shopping center. Roof Tech also
alleged that on September 21, 2015, MSC rescinded their
contract for the roofing work without cause. Pursuant to the
terms of the contract, Roof Tech sought damages for costs
incurred and lost profits in the amount of $74, 218. Included
with their cross-claim is an "AIA Document A101
Standard Form Agreement" signed by representatives of
both Roof Tech and MSC, as well as a September 21, 2015
letter from MSC purportedly rescinding the offer to have Roof
Tech complete the roofing work.
filed a peremptory exception of no right of action in which
it contended that Roof Tech has no claim against MSC for
breach of contract because a contract never existed between
MSC and Roof Tech. Roof Tech contended that rather than a
contract, there was a series of proposals that never resulted
in an agreement between the parties. At the same time, MSC
also filed a dilatory exception of prematurity in which they
argued that, should the trial court find that a contract
existed between the parties, then the mandatory arbitration
clause requires that the trial court dismiss Roof Tech's
cross-claim pursuant to La. C.C.P. art. 933. In their
opposition to these exceptions, Roof Tech filed a motion to
stay the proceedings pending arbitration in accordance with
La. R.S. 9:4202.
a hearing on the exceptions, during which no evidence was
introduced, the trial court rendered judgment overruling the
exception of no right of action, sustaining the exception of
prematurity, and staying the cross-claim of Roof Tech pending
arbitration. MSC did not seek review of this judgment at that
parties proceeded to arbitration. MSC filed in the
arbitration a motion to dismiss Roof Tech's claim on the
basis that there was no contractual agreement between MSC and
Roof Tech. The arbitrator denied the motion, finding that a
valid and enforceable contract existed between the parties.
Following a hearing, the arbitrator found in favor of Roof
Tech and awarded a lump sum of $59, 340 as reasonable
overhead and profit to be paid by MSC.
Tech filed a motion to confirm the arbitration award pursuant
to La. R.S. 9:4214. MSC opposed the motion to confirm the
arbitration award, although it did not seek to have the
arbitration award vacated on any of the grounds enumerated in
La. R.S. 9:4210, or on the grounds that no contract existed
between Roof Tech and MSC. Rather, MSC argued that the
arbitrator had acted with "manifest disregard of the
law" in making his award because Roof Tech did not
provide evidence of damages from the breach of contract, an
essential element of the claim. Following a hearing on the
matter at which time the parties introduced various documents
into evidence, the trial court granted the motion to confirm
and entered a judgment in favor of Roof Tech against MSC.
filed a suspensive appeal of the judgment of the trial court
confirming the arbitrator's award. As its sole assignment
of error, MSC argues that the trial court, in its ruling on
the exception of no right of action, erred in finding that ...