S.K. Whitty and Co., Inc. v. Laurence L. Lambert & Associates

• Decision Date: 30 December 1993
• Docket Number: No. 93-CA-0486,93-CA-0486
• Citation: 632 So.2d 364
• Parties: S.K. WHITTY AND COMPANY, INC. v. LAURENCE L. LAMBERT & ASSOCIATES, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 364

632 So.2d 364

S.K. WHITTY AND COMPANY, INC. v. LAURENCE L. LAMBERT & ASSOCIATES, et al.

No. 93-CA-0486.

Court of Appeal of Louisiana Fourth Circuit.

Dec. 30, 1993.

Rehearing Denied March 17, 1994.

Writ Denied June 3, 1994.

Normand F. Pizza, Richard Ernest Santora, Elsa Mildred Ward, Brook, Morial, Cassibry, Pizza & Adcock, New Orleans, for appellant.

Stephen R. Remsberg, Kenneth A. Mayeaux, Robert P. Hutchinson, Lemle & Kelleher, New Orleans, for appellees.

Before CIACCIO and WALTZER, JJ., and JAMES C. GULOTTA, J. Pro Tem.

CIACCIO, Judge.

Plaintiff, S.K. Whitty ("Whitty"), appeals from a trial court judgment granting the City of New Orleans' motion to change venue. For the reasons stated, we reverse and remand for further proceedings.

Facts

In August of 1989, the City of New Orleans, through the New Orleans Aviation Board ("the City"), published an Invitation to Bid for the construction of a multi-level parking garage at the New Orleans International Airport ("the project"). In June of 1988, the City entered into a written construction contract with Laurence L. Lambert and Associates, architectural engineers, for the design of the project. Landis and James Construction Co. was selected as general contractor for the project. Highlands Insurance Company executed performance and payment security bonds in connection with this project. The contract and accompanying bonds were duly filed into the mortgage records in Orleans and Jefferson in accordance with the Public Works Act, La.R.S. 38:2241(A).

Numerous subcontractors were engaged in connection with the construction of this facility. Plaintiff, S.K. Whitty and Company, Inc. was awarded a subcontract for pile driving on the project by Landis in September, 1988.

On July 28, 1989, plaintiff filed the present lawsuit against Lambert, Landis and the City for negligence and breach of contract. Plaintiff's domicile as well as that of the City was stated to be Orleans Parish and the suit was filed in that parish.

In its petition, Whitty alleged that defendants were negligent in preparing and submitting the requisite specifications for the pile driving project, that the specifications were defective and incomplete, that defendants were negligent in the administration of the project and that they were in bad faith. Whitty also asserted a claim for unpaid retainage due on the contract and for additional compensation due as a result of additional work and delays caused by defendants.

Defendants filed an exception of no cause of action to plaintiff's petition which was granted by the trial court, but reversed by a panel of this court and remanded for further proceedings. Defendants subsequently answered plaintiff's petition, and both the City and Landis filed cross-claims against one another.

Landis substantially completed construction of the project on July 23, 1991. The City filed and recorded an acceptance of the work in the mortgage records in both Orleans and Jefferson Parish. Before or within 45 days after the recordation of the acceptance by the City, several of the subcontractors on the project, with the exception of S.K. Whitty, recorded lien claims against the City in the mortgage records in both parishes.

Thereafter, on November 12, 1991, over two years after the filing of the Whitty suit, the City filed a Petition for Damages and Concursus pursuant to La.R.S. 38:2243 of the Public Works Act. The concursus was brought in the Twenty-Fourth Judicial District Court for the Parish of Jefferson, the venue of the construction project. Landis and Highlands subsequently filed a reconventional demand in this action seeking indemnification for any liability to S.K. Whitty arising from the Orleans Parish suit.

S.K. Whitty filed a motion to set for trial in the Orleans Parish suit on April 27, 1992. On June 3, 1992, the City filed a Motion to Change Venue, or in the alternative, for Leave to File Amended Cross-Claim. The City argued that Whitty's claims were more properly asserted in the concursus proceeding filed in Jefferson Parish. S.K. Whitty opposed the transfer.

On December 23, 1992, the trial court, with written reasons for judgment, granted the City's motion and transferred Whitty's suit to the Twenty-Fourth Judicial District Court for Jefferson Parish. It is from this judgment that Whitty now appeals.

In rendering judgment in favor of the City, the trial court relied on the official comments to Louisiana Code of Civil Procedure Article 1561 and on La.C.C.P. art. 4653(B). On appeal, Whitty argues that the trial court's reliance on these two articles in granting the transfer was misplaced. We agree.

La.C.C.P. art. 1561 provides:

When two or more separate suits involving a common issue of law or fact are pending in the same court, the court, at any time prior to trial, may order the consolidation of the suits for trial or may order a joint trial of any of the common issues.

The comments to this article provide in part:

(a) Despite the narrow wording of Arts. 422 and 423 of the Code of Practice, the jurisprudence permitted the consolidation of suits involving the same issues, even though the parties were different, and hence did not fall within the letter of these articles. Union Garment Co. v. Newburger, 124 La. 820, 50 So. 740 (1909); Fried v. New York Life Ins. Co., 177 La. 132, 148 So. 5 (1933); Riggin v. Watson-Aven Ice Cream Co., 192 La. 469, 188 So. 144 (1939); Clifton v. Tri-State Transit Co. of Louisiana, 197 La. 222, 1 So.2d 84 (1941); Olivedell Planting Co. v. Town of Lake Providence, 209 La. 898, 25 So.2d 735 (1946); Maddox v. Pattison, 186 So. 894 (La.App.1939 [1938] ). The courts were held to have inherent judicial power to consolidate. Union Garment Co. v. Newburger, supra.

The trial court reasoned that as courts have expanded upon the narrow wording of article 1561, transfer of the Whitty suit to a different court is permissible. The court further noted that the inherent judicial power to consolidate is an additional basis for the transfer.

While we agree that the trial court has wide latitude with regard to consolidation of suits pending in the same court even where the parties are different, article 1561 does not support a conclusion that the trial court may order the transfer or consolidation of cases pending in different courts. We fail to find any authority, statutory, jurisprudential or otherwise, which permits the trial court to transfer a case from one district court to another without the consent of the parties and in the absence of the inability to obtain a fair and impartial trial contemplated by La.C.C.P. article 122. Accordingly, we conclude that the trial court erred in relying on article 1561 in granting the transfer to the Jefferson Parish court.

Further, although cited by the trial court, La.C.C.P. art 4653(B) does not provide a basis for the transfer of Whitty's action to the Jefferson Parish court. That article merely governs venue for the filing of a general concursus proceeding. Whitty's action is clearly not a concursus, and there has been no dispute that the City's concursus proceeding was filed in the parish of proper venue. The trial court's reliance on article 4653 was misplaced.

The City...