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Landco Construction, LLC v. Precision Construction & Maintenance, LLC

Court of Appeals of Louisiana, First Circuit

November 15, 2019

LANDCO CONSTRUCTION, LLC
v.
PRECISION CONSTRUCTION & MAINTENANCE, LLC, MAPP CONSTRUCTION, AND KRISHMAN, LLC

          Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 652004 Honorable Timothy E. Kelley, Judge Presiding

          BEFORE: WHIPPLE, C.J., GUIDRY, AND CRAIN, J J.

          WHIPPLE, C.J.

         Landco Construction, LLC (Landco) appeals a judgment sustaining the peremptory exception raising the objections of prescription and no cause of action filed by MAPP Construction, LLC (MAPP) and dismissing Landco's claims against MAPP with prejudice. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On October 10, 2016, Landco filed a petition for damages for breach of contract and unjust enrichment, naming as defendants MAPP, Precision Construction & Maintenance, LLC (Precision) and Kirshman, LLC (Kirshman). According to the allegations of the petition, Kirshman owned property on Siegen Lane, in Baton Rouge, on which it planned to construct a CarMax Center (the project). Kirshman hired MAPP to be the contractor on the project. MAPP then entered into a contract with Precision to complete certain work needed to fulfill MAPP's contractual obligations, and in turn, Precision entered into a contract with Landco for performance of those obligations, with MAPP's consent. Landco further alleged in its petition that the work it performed on the project consisted of cutting lime and soil cement, amounting to $40, 383.00 in costs, which it was never paid. Landco alleged that MAPP, Precision, and Kirshman were solidarity liable for this obligation and that MAPP had failed to pay Precision or Landco for work done on the project, even though MAPP had been paid by Kirshman for this work. Landco asserted that MAPP was also liable to pay it for all amounts in which MAPP was unjustly enriched by failing to pay Landco for work performed that benefitted MAPP and for which MAPP was paid.

         In response to Landco's petition, MAPP filed the peremptory exceptions of no cause of action and prescription. Therein, MAPP contended that Landco had failed to state a cause of action against MAPP for breach of contract as it was evident that no contractual relationship existed between the two. MAPP further contended that Landco had failed to effectively plead a claim based on unjust enrichment. MAPP argued that because Landco had two remedies available to it for nonpayment, which included a breach of contract claim against Precision, and a Private Works Act claim against MAPP, a claim for unjust enrichment was not available. Finally, MAPP contended that any claim Landco may have had against MAPP under the Private Works Act was prescribed. Thus, MAPP sought the dismissal of Landco's claims against it with prejudice.

         After a hearing, the trial court sustained both exceptions and dismissed Landco's claims against MAPP with prejudice; a written judgment was signed thereafter on April 25, 2017. Landco appealed that judgment. This court affirmed the trial court's ruling sustaining the exception of no cause of action, vacated the trial court's ruling sustaining the exception of prescription and dismissing Landco's claims against MAPP, and remanded the matter to the trial court to afford Landco the opportunity to amend its petition to state a cause of action. See Landco Construction, LLC v. Precision Construction and Maintenance, LLC, 2017-1060 (La.App. 1st Cir. 2/21/18), 2018 WL 1007343 (unpublished).

         On March 22, 2018, Landco filed its first supplemental and amended petition. In this petition, Landco set forth its claim under the Private Works Act by specifically alleging: (1) that MAPP entered into a contract with Kirshman to build the CarMax Center on Siegen Lane, which Notice of Contract was recorded on October 7, 2010 with the Recorder and Clerk for the Parish of East Baton Rouge; (2) that MAPP entered into a contract with Precision to complete certain work needed to fulfill MAPP's contractual obligations; and (3) that in turn, Precision entered into a contract with Landco for performance of those obligations, with MAPP's consent. The amended petition further reasserted that Landco was never paid for the services it provided on the project, in the amount of $40, 383.00, and that MAPP, Precision, and Kirshman were solidarity liable for this obligation. Landco alleged that on March 24, 2011, it sent a statement of claim under the Private Works Act by certified mail to Precision, MAPP, and Kirshman, and that on May 24, 2011, Landco recorded a lien with the Recorder and Clerk for the Parish of East Baton Rouge. Landco also asserted that MAPP, as the general contractor, failed to pay the amounts due to Landco for the work performed, even though MAPP received money for the work provided by Landco. Landco further alleged that MAPP owed Landco attorney's fees, costs, and penalties in conjunction with the Private Works Act.

         On June 13, 2018, MAPP once again filed exceptions of no cause of action and prescription. Although MAPP argued that Landco had not stated a cause of action for breach of contract, unjust enrichment, or stipulation pour autrui, it made no mention of whether Landco stated a cause of action under the Private Works Act. As for its exception of prescription, MAPP focused on Landco's Private Works Act claim, asserting that Landco's claim had prescribed because the lien recorded by Landco lacked a proper legal description of the property, thereby making it invalid, and Landco had never filed a valid lien within the time limit provided by statute to preserve its claim. MAPP further contended that even if the lien had been perfected, Landco only had one year from that filing date to file suit, which time had long since lapsed. Therefore, MAPP once again prayed that Landco's claims against it be dismissed with prejudice. In support of its exceptions, MAPP attached the lien that Landco recorded.

         Landco opposed MAPP's exceptions, contending that it had removed all claims of breach of contract and unjust enrichment from its amended petition, and that therefore, any arguments regarding those claims were moot. Landco further argued that it had clearly alleged a cause of action for a stipulation pour autrui in its amended petition, which defeated the exception of no cause of action.

          As for the exception of prescription, while Landco conceded that the statement of claim it recorded was invalid, Landco argued that it was enough to give notice to MAPP of its obligation to pay Landco and to preserve Landco's claim under a different section of the Private Works Act. Additionally, Landco contended that as MAPP never filed a notice of termination of work, as required by statute, Landco's time delays to file its lien and suit never began to run, thus, Landco's claims were not prescribed. In support of its argument, Landco attached the notice of nonpayment it sent by certified mail on March 24, 2011, to Precision, MAPP, and Kirshman, which set out the specific work Landco performed on the project, the municipal address of the project, the value of the services provided, and the fact that it was not paid, along with the invoice for the project.

         MAPP filed a reply memorandum, asserting that Landco's amended petition was devoid of any allegations of fact sufficient to support a cause of action arising under a stipulation pour autrui, as there was no allegation of MAPP entering into a stipulation in Landco's favor.

         Addressing the exception of prescription, MAPP argued that the certificate of substantial completion that it filed into the mortgage records equated to a notice of termination as it included all of the requirements necessary of such notice, as outlined in LSA-R.S. 9;4822(E). A copy of the certificate of substantial completion that was recorded on March 16, 2011 was attached by MAPP to this memorandum.

         A hearing was held on the exceptions on September 24, 2018, during which all of the evidence attached to the memoranda was filed into the record. After the parties concluded their arguments, the trial court orally ruled, finding that the filing of the certificate of substantial completion satisfactorily met the requirements of a notice of termination under the Private Works Act, and that, accordingly, Landco's Private Works Act claim was prescribed. The exception of prescription was granted, and Landco's claim against MAPP was dismissed with prejudice. A written judgment was signed by the court on November 28, 2018, reflecting its oral ruling sustaining the exception of prescription. The written ...


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