FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-12444,
DIVISION "G-11" Honorable Robin M. Giarrusso, Judge
Kohler Douglas A. Kewley GARDNER & KEWLEY COUNSEL FOR
INTERVENOR/APPELLANT, RONALD FRANKS CONSTRUCTION CO., L.L.C.
Matthew R Emmons Mark W. Frilot Nicholas R. Pitre BAKER,
DONELSON, BEARMAN, CALDWELL & BERKOWITZ, COUNSEL FOR
DEFENDANT/APPELLEE, 225 BARONNE COMPLEX, LLC.
composed of Judge Roland L. Belsome, Judge Rosemary Ledet,
Judge Paula A. Brown.
A. BROWN JUDGE.
underlying matter involves a dispute arising out of the
Louisiana Private Works Act ("LPWA"). Appellant,
Ronald Franks Construction Company, L.L.C. ("Franks
Construction"), a subcontractor, intervened in the
Petition to Enforce Lien and For Damages ("Petition to
Enforce Lien") filed by the general contractor, Roy
Anderson Corp. ("RAC"), against the property owner,
225 Baronne Complex, L.L.C. ("225 Baronne"). Franks
Construction appeals the district court's judgment which
granted 225 Baronne's peremptory exception of no right of
action, finding that Franks Construction had no right to
intervene in the Petition to Enforce Lien. For the reasons
that follow, we affirm the judgment.
AND PROCEDURAL HISTORY
Baronne and RAC entered a Contract in the amount of $61, 300,
000.00 for the renovation and reconstruction of property
located at 225 Baronne Street in New Orleans, Louisiana (the
"Project"). On March 17, 2014, RAC subcontracted
with Franks Construction for Franks Construction to complete
certain portions of the work that 225 Baronne had contracted
with RAC to perform.
filed a Petition to Enforce Lien on December 21, 2016,
alleging that 225 Baronne had failed to pay RAC the total
amount due for the work it had performed on the
Paragraph 4 of the Petition to Enforce Lien alleged the
On November 8, 2013, the Contract was recorded with a Notice
of Construction Contract as Instrument No. 2013-42883 with
the Recorder of Mortgages for Orleans Parish.
April 18, 2017, Franks Construction filed a Petition for
Intervention (the "Intervention") into the Petition
to Enforce Lien, pursuant to La. C.C.P. art.
Construction alleged it was entitled to intervene against
both RAC and 225 Baronne to enforce its rights as a third
person with an interest in the Petition to Enforce Lien.
Franks Construction contended that it had entered into three
subcontracts with RAC totaling $6, 691, 448.00. It alleged
that delays, scheduling, and other management problems caused
by RAC made it spend an additional 305 days on the Project
and incur total damages in the amount of $8, 372,
Construction joined with RAC to seek relief for any
"pass-through" claims RAC might recover against 225
Franks Construction also pled that it had filed a demand for
arbitration in December 2016 with the American Arbitration
Association ("AAA") against RAC to recover those
Baronne filed a peremptory exception of no right of action
(the "Exception") in response to the Intervention.
225 Baronne alleged that RAC had furnished and maintained a
payment bond (the "Bond") of solvent, legal
sureties for the work to be performed under the Contract and
attached the Bond to the notice of the Contract that was
recorded in the Office of the Recorder of Mortgages for
Orleans Parish ("Recorder of Mortgages"). The
furnishing of the Bond and the recordation were completed
prior to work commencing on the Project in accord with La.
R.S. 9:4812(A) of the LPWA. Accordingly, it argued that
as the owner, La. R.S. 9:4802(C) relieves it of claims
asserted against it by the subcontractor, Franks
Construction, which arise from the performance of the
Contract.Therefore, Franks Construction did not have
a right to intervene in the Petition to Enforce Lien;
instead, 225 Baronne urged that Franks Construction's
only LPWA remedies were limited to the arbitration action it
had filed against RAC and its suit against the
16, 2017, the district court heard arguments on the
Exception, and orally sustained the Exception on the same
date. This devolutive appeal followed.
function of the exception of no right of action is to
determine whether the plaintiff belongs to the class of
persons to whom the law grants the cause of action asserted
in the suit." Two Canal Street Investors, Inc. v.
New Orleans Building Corp., 2016-1306, p. 8 (La.App. 4
Cir. 2/15/17), 212 So.3d 611, 617. (citation omitted). As set
forth in Louisiana Citizens Prop. Ins. Corp. v. LAA
Shoring, LLC, 2016-1136, p. 5 (La.App. 4 Cir.
6/14/17), 223 So.3d 17, 23:
"The determination of whether a plaintiff has a right of
action is a question of law." Mendonca v. Tidewater
Inc., 03-1015, p. 3 (La.App. 4 Cir. 12/17/03), 862
So.2d 505, 508. "The standard of review of a trial
court's ruling on an exception of no right of action is
de novo." N. Clark, L.L.C. v. Chisesi,
16-0599, p. 3 (La.App. 4 Cir. 12/17/16), 206 So.3d 1013,
1015. "Therefore, this court is required to determine
whether the trial court applied the law appropriately."
Mendonca, 03-1015, p. 3, 862 So.2d at 508.
Construction argues that it was entitled to intervene because
the outcome of the Petition to Enforce Lien litigation would
have a direct impact on its ability to recover additional
funds due Franks Construction on the Project. It further
asserts that RAC had informed Franks Construction that Franks
Construction's outstanding claims were "pass
through" claims that could be recouped only if RAC
successfully recovered those claims against 225 Baronne.
Therefore, Franks Construction alleges that it had the right
to intervene to aggressively protect its own interests.
Construction contends the district court, in sustaining 225
Baronne's Exception, erred in: (1) basing its ruling on
evidence which was not made a part of the record; (2)
granting the Exception premised on an affirmative defense-La.
R.S. 9:4802(C)-rather than an evaluation of Franks
Construction's procedural capacity to assert the
intervention; (3) failing to evaluate Franks
Construction's right to intervene under the criteria
enunciated pursuant to La. C.C.P. art. 1091; (4) concluding
that Franks Construction had no justiciable interest
connected to the object of the existing litigation; and (5)
dismissing Franks Construction's Intervention with
prejudice without affording Franks Construction the
opportunity to amend its Intervention to remove the grounds
for the Exception. We will discuss each alleged error,
although some may be combined for consistency and ease of
Construction urges that comments from the district court
suggest it granted the Exception based on 225 Baronne's
argument that, as the owner of the property, Franks
Construction did not have a right of action against it
because the Bond had been furnished and the Contract recorded
in accordance with La. R.S. 9:4802(C). Our jurisprudence is
well-settled that an appeal is taken from a final judgment
and not the district court's reasons for judgment;
however, an appellate court may consider the reasons for
judgment in determining whether the district court committed
legal error. Winfield v. Dih, 2001-1357, p. 8
(La.App. 4 Cir. 4/24/02), 816 So.2d 942, 948 (citation
At the hearing, 225 Baronne represented the following:
“…Roy Anderson at the started[sic] of the
project filed a Private Works Act statutory payment bond that
exist [sic]in the record. What that does is, is it precludes
subcontractors and suppliers like Ronald Franks Construction
from filing direct actions against the project owner and so
the - - Ronald Franks in enforcing its lien rights has to
file suit against the bond which it has in an action in [sic]
Eastern District. It's also initiated arbitrate [sic]
against Roy Anderson to assert its claim against Roy
colloquy with counsel for Franks Construction's, the
district court inquired:
But don't you have to go after the bond? I don't
understand how you can file suit in this. I'm having a
hard time with that. Isn't your only right is to go
against the surety bond?
Yeah. We can also go against Roy Anderson. And we are
going against Roy Anderson in the ...