Ascension Ready Mix, Inc. v. Gee Constr., LLC
| Decision Date | 23 December 2014 |
| Docket Number | NUMBER 2014 CA 0357 |
| Parties | ASCENSION READY MIX, INC. v. GEE CONSTRUCTION, LLC AND ROBYN FOSTER |
| Court | Court of Appeal of Louisiana — District of US |
NOT DESIGNATED FOR PUBLICATION
Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
The Honorable Kay Bates, Judge Presiding
Stephen H. Watterson
Baton Rouge, LA
Counsel for Plaintiff/Appellee
Ascension Ready Mix, LLC
David C. Clement
Leslie J. Hill
New Orleans, LA
Defendants/Appellants
Gee Construction, LLC &
Robyn Foster
W. Michael Stemmans
Michael J. Teffaro
Baton Rouge, LA
Defendants/Appellees
R.L. Hall & Associates, Inc. &
Endurance American Specialty
Insurance Co.
Charles E. Spedale
Baton Rouge, LA
Defendants/Appellees
Elvin C. Simpson, Jr. &
Geaux Tiger Mart, LLC
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
This matter is before us on appeal by defendant/third-party plaintiff, Gee Construction, LLC, from a judgment of the district court maintaining the exceptions raising objections of no right of action, no cause of action, and improper cumulation of actions filed by third-party defendants, R.L. Hall & Associates, Inc. and Endurance American Specialty Insurance Company, and dismissing the third-party demand. For the following reasons, we reverse and remand.
Gee Construction, LLC ("Gee") alleges that at some time in 2010, Elvin Simpson and Geaux Tiger Mart, LLC entered into a contract ("the design agreement") with R.L. Hall & Associates, Inc. ("Hall") for Hall to design a new service station called "Geaux Tiger Mart" in Baton Rouge. Simpson and Geaux Tiger Mart, LLC subsequently entered into a separate contract ("the construction agreement") with Hall for Hall to construct the service station. Hall then subcontracted Gee to perform certain work required under the construction agreement.
On July 20, 2012, Ascension Ready Mix ("Ascension") filed the instant lawsuit, naming Gee and Robyn Foster as defendants and alleging that Gee had failed to pay Ascension for concrete materials and supplies used in the construction of the Geaux Tiger Mart.1 In response, Gee and Foster filed an answer and lengthythird-party demand, naming Hall, ABC Insurance Company, Simpson, and Geaux Tiger Mart, LLC as third-party defendants.2
Gee alleged in the third-party demand, among other things, that: (1) Gee's progress on the project was interrupted as a result of errors, omissions, and conflicts on the project plans that Hall certified as being final; (2) Gee's progress on the project was interrupted as a result of Hall's failure to participate in the project as both a designer and supervising contractor; (3) Hall violated its professional duty to avoid conflicts of interests, as it could not act impartially as the architect/engineer on the project due to its financial interests in the outcome of the project as the general contractor; (4) Hall failed to timely process change orders; (5) Hall wrongfully invoked a concursus proceeding after the project was completed, naming subcontractors, including Gee, who did not file a lien as defendants; and (6) the lawsuit filed by Ascension is a direct result of Hall improperly withholding Gee's contract funds, and wrongfully invoking a concursus proceeding.
In response to the third-party demand, Hall filed peremptory and dilatory exceptions, raising the objections of no right of action, no cause of action, improper cumulation of actions and improper joinder of parties, and vagueness and ambiguity. In support of the objections of no right of action and no cause of action, Hall noted that Gee had submitted an application for payment in the amount of $63,797.00, which stated that site concrete for the job was one hundred percent complete. Hall also noted that it then issued a check to Gee for the full amount requested in the payment application, and Gee had accepted the check. Hall further averred that attached to the payment application was a partial waiver of lienand release of claims, wherein Gee waived and released any future claims. Hall contended that this evidence establishes that Hall paid Gee for the concrete provided by Ascension, and that the debt owed to Ascension is a direct result of Gee's own actions, as Gee should have paid its bills with the contract funds it had sought and obtained.
In support of the objection of improper cumulation of actions and improper joinder of parties, Hall averred that there was no "community of interest" between the third-party demand and Ascension's primary demand, as Hall paid Gee for the concrete, but Gee then failed to pay Ascension from the contract funds it received. Thus, Hall contended, Gee's failure to pay Ascension broke any connection between Hall's actions and Ascension's payment. Last, in regard to the objection of vagueness, Hall averred that Gee failed to allege any specific facts as to how, when, and to what extent Hall violated its professional duties and obligations and, moreover, how the purported violation of professional duties and obligations led to Gee's inability to repay the debt owed to Ascension.
A hearing on Hall's objections to Gee's third-party demand was conducted on March 4, 2013, after which the trial court sustained the objection of no right of action, and granted Gee fifteen days to amend its third-party demand to assert a valid claim. In so ruling, the trial court found that all other objections raised by Hall were moot. A written judgment reflecting the trial court's ruling was signed on March 26, 2013.
On April 11, 2013, Gee filed an amended and supplemental third-party demand. Gee's amended petition adopted all prior allegations and further added that Hall had refused to pay Gee the $99,440.98 retainage amount due, and that ten percent of this amount belongs to Ascension and is a direct part of Ascension's claims against Gee in the underlying lawsuit. The amended petition further allegedthat due to Hall's incomplete construction plan drawings, a change order was required to complete the construction of the car wash at the service station, and Hall had refused to pay the costs associated with this change order. Gee alleged that the costs incurred from this change order totaled $7,509,05, approximately $3,415.06 of which is owed to Ascension for concrete and is part of Ascension's principal demand against Gee.
In response to the amended and supplemental petition, Hall and its insurer, Endurance, re-urged the objections of no right of action, no cause of action, improper cumulation of actions, and vagueness and ambiguity, contending that Gee's amended thirty-party demand failed to amend the allegations of the original demand to properly assert a valid claim or right of action against Hall.
Following a hearing on Hall and Endurance's re-urged objections, the trial court signed a judgment on December 9, 2013, sustaining the exceptions raising objections of no right of action, no cause of action, and improper cumulation of actions and dismissing Gee's third-party demand.
Gee then filed the instant appeal, seeking review of the December 9, 2013 judgment of the trial court.
In sustaining the exceptions of no right of action and no cause of action, the trial court commented that Hall clearly paid Gee for what was owed and Gee clearly released Hall from liability. In reaching this conclusion, the trial court discussed: (1) "pay application eight" for $63,797.00, wherein Gee stated that the concrete for the job was one hundred percent complete; (2) the subsequent check issued by Hall to Gee for $63,797.00; and (3) the alleged waiver of claims signed by Gee.
Generally, no evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. LSA-C.C.P. art. 931. However, an exception to this rule has been recognized by the jurisprudence, and a court may consider evidence admitted without objection to enlarge the pleadings. Maw Enterprises, L.L.C. v. City of Marksville, 2014-0090 (La. 9/3/14) 149 So. 3d 210, 215, citing City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La. 3/2/99), 739 So. 2d 748, 756. Moreover, evidence supporting or controverting an objection of no right of action is admissible. Niemann v. Crosby Development Co., L.L.C., 2011-1337 (La. App. 1st Cir. 5/3/12), 92 So. 3d 1039, 1046. Here, the trial court did not separately address the objections of no cause of action and no right of action. Thus, we are unable to determine whether the trial court considered the above-mentioned evidence in relation to both objections, or only as to the objection of no right of action.
Moreover, regardless of whether the evidence was considered in relation to both objections or only considered as to the objection of no right of action, the evidence was required to be properly offered and introduced into the record before it could be considered. Here, the evidence that the trial court discusses in its reasons for judgment was attached to Hall's memorandum in support of the objections. However, it is well-established that documents attached to memorandums do not constitute evidence for purposes of an exception and cannot be considered on appeal. Quinn v. Louisiana Citizens Property Ins. Corp., 2012-0152 (La. 11/2/12), 118 So. 3d 1011, 1017, n. 5, citing Denoux v. Vessel Management Services, Inc., 2007-2143 (La. 5/21/08), 983 So. 2d 84, 88.
Thus, upon recognizing this potential evidentiary problem, which could affect our review of this case, we issued an order for the record in this appeal to besupplemented by a certain date with the transcript of the hearing on the objections, so that a determination could be made as to whether the relied-upon evidence was properly introduced into the record and if so, whether an objection was made to the introduction of this evidence. The time delays set forth in this order have expired and the record has not been supplemented with...
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