FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-12444,
DIVISION "G-11" Honorable Robin M. Giarrusso, Judge
N. Shields Adrian A. D'Arcy Michael S. Blackwell Laura E.
Avery SHIELDS MOTT L.L.P. COUNSEL FOR PLAINTIFFS/APPELLEES
Leopold Z. Sher James M. Garner Christopher T. Chocheles
Jacob A. Airey SHER GARNER CAHILL RICHTER KLEIN &
HILBERT, LLC COUNSEL FOR DEFENDANT/APPELLANT
composed of Judge Joy Cossich Lobrano, Judge Rosemary Ledet,
and Judge Sandra Cabrina Jenkins
Rosemary Ledet, Judge
a dispute arising out of a construction contract to renovate
a large office building into a hotel, an apartment building,
and a garage (the "Project"). The general
contractor filed a lien under the Louisiana Private Works
Act. La. R.S. 9:4801, et seq. (the
"PWA"). The parties involved in this appeal are as
follows: (i) the general contractor, Roy Anderson Corporation
("RAC")-the plaintiff and
defendant-in-reconvention; (ii) the building owner, 225
Baronne Complex, L.L.C. ("225 Baronne")-the
defendant, plaintiff-in-reconvention, and third-party
plaintiff; and (iii) the four sureties for the Project:
Travelers Casualty and Surety Company of America, Liberty
Mutual Insurance Company, Fidelity and Deposit Insurance
Company of Maryland, and Federal Insurance Company
(collectively the "Surety Defendants")-the
the trial court's judgment granting RAC's peremptory
exceptions of prescription and res judicata and
granting the Surety Defendants' peremptory exceptions of
no right of action and no cause of action, 225 Baronne
appeals. For the reasons that follow, we reverse in part-as
to the granting of RAC's exceptions of prescription and
res judicata; affirm in part-as to the granting of
the Surety Defendants' exceptions of no right of action
and no cause of action; and remand.
AND PROCEDURAL BACKGROUND
underlying facts regarding this appeal are undisputed and are
set forth in 225 Baronne Complex, LLC v. Roy Anderson
Corp., 16-0492 (La.App. 4 Cir. 12/14/16)
(unpub.), 2016 WL 7238975, writ denied,
17-0326 (La. 4/7/17), 218 So.3d 116 ("225 Baronne
I "). To provide a framework for analyzing the
issues presented by this appeal, we provide the following
chronology of the relevant factual and procedural events:
• November 8, 2013: 225 Baronne entered
into a design-build contract with RAC for the Project (the
"Contract"); on the same date, the Contract was
recorded in the Orleans Parish mortgage records.
• October 23, 2015: Having achieved
substantial completion of the Project, 225 Baronne recorded a
Notice of Termination in the Orleans Parish mortgage records.
• December 18, 2015: RAC signed a
Confirmation of No Default, which indicated that 225 Baronne
was not in default of any previously billed payment
obligations; and 225 Baronne paid RAC $2, 941, 725.28.
• December 22, 2015: RAC recorded a
Statement of Lien and Privilege pursuant to La. R.S. 9:4802
of the PWA, stating that 225 Baronne owed it $15, 401, 300
(the "Lien") and that the balance owed
"represents material, labor, equipment, and services
provided to Owner in connection with the [Project]."
• December 28, 2015: 225 Baronne sent a
demand letter to RAC requesting that it immediately-within
ten days-direct the Recorder of Mortgages for Orleans Parish
(the "Recorder") to remove the Lien.
• January 12, 2016: 225 Baronne
instituted a summary mandamus proceeding pursuant to La. R.S.
9:4833 and La. R.S. 44:114 to remove the Lien (the "Lien
Lawsuit"). The Lien Lawsuit petition-styled as a
"Petition for Removal of Statement of Claim and
Privilege and for Damages"-was filed against the
Recorder and RAC.
• February 22, 2016: The trial court
ruled in 225 Baronne's favor and ordered the Recorder to
remove the Lien. The trial court deferred ruling on 225
Baronne's request for attorney's fees and damages.
• April 21, 2016: The Recorder removed
• December 14, 2016: On RAC's
appeal, this court, in 225 Baronne I, held that the
Lien met the statutory requirements of a valid lien.
Accordingly, this court reversed the trial court's
judgment and ordered the Recorder to reinstate the Lien.
• December 21, 2016: RAC filed an
ordinary proceeding (the "Enforcement
Lawsuit")-styled as a "Petition to Enforce Lien and
for Damages." In its petition, RAC alleged that 225
Baronne had failed to pay RAC the total amount due for the
work it had performed on the Project.
• April 7, 2017: The Louisiana Supreme
Court denied 225 Baronne's writ application in 225
• May 1, 2017: 225 Baronne answered
RAC's petition in the Enforcement Lawsuit and reconvened
against RAC seeking costs and attorney's fees.
• September 1, 2017: The Recorder
reinstated the Lien.
• November 13, 2017: 225 Baronne filed
an amended reconventional demand, asserting the following six
causes of action against RAC: (i) racketeering; (ii) fraud;
(iii) breach of contract, (iv) negligent misrepresentation;
(v) gross negligence; and (vi) abuse of rights (the
"Reconventional Demand"). 225 Baronne also filed a
third party demand against the Surety Defendants, seeking to
recover from them under the performance and payment bonds
they issued regarding the Project (the "Third Party
• February 2, 2018: 225 Baronne filed a
fourth supplemental and amended reconventional demand and
third party demand, again raising the same six claims against
RAC as in the Reconventional Demand and the same claims
against the Surety Defendants as in the Third Party Demand.
• March 15, 2018: RAC filed
prescription and res judicata exceptions, and the
Surety Defendants filed no right of action and no cause of
action exceptions (collectively the "Exceptions").
• June 25, 2018: A hearing was held on
the Exceptions, and the trial court took the matter under
• July 24, 2018: The trial court
granted the Exceptions.
noted at the outset, 225 Baronne appeals the trial
court's judgment granting the Exceptions. Although 225
Baronne asserts multiple assignments of error, we frame the
issue presented as whether the trial court erred in granting
the Exceptions. We organize our analysis around each of the
Exceptions-prescription, res judicata, no right of
action, and no cause of action.
appeal, 225 Baronne raises multiple theories in support of
its position that the trial court erred in sustaining
RAC's prescription exception, including contra non
valentum, relation back, suspension, and interruption.
Because we find the interruption theory dispositive, we do
not reach the other theories.
evidence is introduced on the prescription exception, but the
case presents no dispute regarding the material facts, only
the determination of a legal issue, a de novo
standard of review applies, "giving no deference to the
trial court's legal determination". Wells Fargo
Fin. Louisiana, Inc. v. Galloway, 17-0413, p. 8 (La.App.
4 Cir. 11/15/17), 231 So.3d 793, 800; see also Kirt v.
Metzinger, 19-0180, p. 4 (La.App. 4 Cir. 6/19/19), 274
So.3d 1271, 1273 (citing Wells Fargo, supra, and
observing that the legal correctness of a trial court's
ruling on a prescription exception is reviewed under a de
novo standard). Such is the case here.
prescriptive period is interrupted "when the obligee
commences action against the obligor, in a court of competent
jurisdiction and venue." La. C.C. art. 3462.
Prescription is interrupted by the filing of suit "even
when the petition fails to state a cause of action."
Velazquez v. Landcoast Insulation, Inc., 08-804, p.
7 (La.App. 3 Cir. 12/10/08), 999 So.2d 318, 323. "An
action commenced in a court of competent jurisdiction and
venue, or with service of process within the prescriptive
period, continues to interrupt prescription for as long as
the suit remains pending." Ansardi v. Louisiana
Citizens Prop. Ins. Corp., 11-1717, 12-0166, p. 20
(La.App. 4 Cir. 3/1/13), 111 So.3d 460, 471-72 (citing La.
C.C. art. 3463). When prescription is interrupted, the time
that has elapsed is wiped out; "[p]rescription commences
to run anew from the last day of interruption." La. C.C.
art. 3466. Prescriptive statutes are construed liberally in
favor of maintaining the obligation sought to be
extinguished. Succession of Tompkins, 32, 405, p. 5
(La.App. 2 Cir. 12/8/99), 747 So.2d 1251, 1254.
these principles, we find that the trial court erred in
granting the prescription exception. Prescription commenced
running on December 22, 2015, when RAC recorded the Lien,
prescription was interrupted when 225 Baronne filed the Lien
Lawsuit on January 16, 2016. The Lien Lawsuit remained
pending until the Louisiana Supreme Court denied 225
Baronne's writ application on April 7, 2017; prescription
began to run anew at that time. Given that 225 Baronne filed
the Reconventional Demand on November 13, 2017, its claims
are not prescribed.We, thus, reverse the trial court's
judgment granting RAC's prescription exception.
exception of res judicata is based on this
court's 2016 decision in 225 Baronne I, which
reversed the trial court's judgment in the Lien Lawsuit
and ordered that the Lien be reinstated. The gist of
RAC's position is that this court's decision in
225 Baronne I precludes any and all claims by 225
Baronne arising out of RAC's work on the Project. Ruling
in RAC's favor, the trial court, in its written reasons
for judgment, stated that "[225 Baronne's
Reconventional Demand] should have been filed along with the
lien dispute, and as such, is barred by res judicata."
appeal, 225 Baronne contends that the trial court erroneously
found that it should have brought its Reconventional Demand,
which asserted a $20 million tort claim via ordinary
proceeding, with the summary mandamus proceeding to remove
the lien-the Lien Lawsuit. It emphasizes that, under
Louisiana law, it could not have cumulated an ordinary
proceeding with a summary proceeding. For this reason, among
others, 225 Baronne contends that res judicata is
inapplicable here. RAC counters that the trial court
correctly concluded that res judicata applies here
and that there was no procedural bar to 225 Baronne asserting
its damage claims in the Lien Lawsuit. Indeed, RAC emphasizes
that 225 Baronne prayed for damages in the Lien Lawsuit and
that the Lien Lawsuit was captioned a "Petition for
Removal of Statement of Claim and Privilege and for
exception of res judicata presents a question of law
and is reviewed de novo. See Barrie v. City of
New Orleans, 17-1001, p. 8 (La.App. 4 Cir. 5/23/18), 248
So.3d 483, 488, writ denied, 18-1041 (La. 10/15/18),
253 So.3d 1306. Stated otherwise, the standard of review of
an exception of res judicata requires an appellate
court to determine if the trial court's decision is
legally correct or incorrect. Bd. of Sup'rs of
Louisiana State Univ. v. Dixie Brewing Co., 14-0641, p.
6 (La.App. 4 Cir. 11/19/14), 154 So.3d 683, 688 (collecting
cases). Any doubt as to whether res judicata applies
is to be resolved against its application. Dixie