Opinion
21-C-715
12-08-2021
CHERYL AND BILLY CATO v. SPS SERVICES, LLC D/B/A PREMIER POOLS & SPA IN RE DENEX OF LOUISIANA, INC.
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE NANCY A. MILLER, DIVISION "I", NUMBER 786-282
Panel composed of Judges Robert A. Chaisson, Stephen J. Windhorst, and John J. Molaison, Jr.
WRIT DENIED
In this action based upon the alleged faulty installation of a pool and sauna, the relator, Denex, who is a third party defendant and sub-contractor, asserted in an exception of no cause of action that defendant/contractor, SPS Services, LLC ("SPS"), is prohibited from seeking indemnity from it because SPS has not yet been cast in judgment for any damages payable to the plaintiffs. After a hearing on November 4, 2021, the trial court denied Denex's exception in an order dated November 17, 2021.
Exception of no cause of action
The function of an exception of no cause of action is to test the legal sufficiency of a petition by determining whether the law affords a remedy on the facts alleged in the pleadings. City of New Orleans v. Board of Dirs. of La. State Museum, 98-1170 (La. 3/2/99), 739 So.2d 748, 755. The burden of showing the plaintiff cannot state a cause of action is on the mover. Id.; Woods v. St. Charles Parish Sch. Bd., 00-1350 (La.App. 5 Cir. 1/23/01), 783 So.2d 387, 391. Well-pleaded facts are taken as true, and every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the litigant the opportunity to present his evidence. Id.; Dixie Federal Sav. and Loan Ass'n v. Pitre, 498 So.2d 112, 114 (La.App. 5th Cir. 1986).
Evidence on the exception
Since the evaluation of an exception of no cause of action is performed solely on the face of the pleadings, the court may not go beyond the petition to the merits of the case. New Orleans Craft Temple, Inc. v. Grand Lodge of Free & Accepted Masons, 13-525 (La.App. 5 Cir. 12/19/13), 131 So.3d 957, 963. The instant application contains a copy of the original petition, which generally alleges damages based upon "poor workmanship, defects in material, improper installation" and "improper supervision of subcontractors and contractors" in the construction of the plaintiff's pool area. The third-party demand filed by SPS alleges that the purportedly defective work and resulting damages to the pool, spa, plumbing system, and decking fall within the scope of work of Denex. Assignment of error
As stated above, Denex argues that SPS is barred from bringing a third party indemnification claim against it because SPS "has not been required to pay anything" to the plaintiffs and that "damages are an essential element of any cause of action." Accordingly, Denex contends that the trial court erred in denying its exception of no cause of action.
Law and analysis
The defendant in a principal action by petition may bring in any person, including a codefendant, who is his warrantor, or who is or may be liable to him for all or part of the principal demand. La. C.C.P. art. 1111; La. C.C.P. art. 1031. As noted by the First Circuit Court of Appeal in Burns v. McDermott, Inc., 95-0195 (La.App. 1 Cir. 11/9/95), 665 So.2d 76, 79:
It is true that liability on the third party demand is contingent upon the result of the main demand, but this does not lead to the conclusion that such third party demands are prohibited. The codal provision authorizing third party demands, La. C.C.P. art. 1111, refutes this inference. Article 1111 permits the defendant to bring into the suit "any person ... who is or may be liable to him." (Emphasis added.) The contingent nature of some third party demands is specifically recognized and authorized.
In Moreno v. Entergy Corp., 10-2268 (La. 2/18/11), 64 So.3d 761, the Louisiana Supreme Court rejected a similar argument as the one presently raised by the relator, and specifically found that there is not an exception of no cause of action based on prematurity. Cases subsequent to Moreno have accordingly held that an exception of prematurity does not lie simply because a third party plaintiff has not been cast in judgment. See, Pizani v. St. Bernard Par., 12-1084 (La.App. 4 Cir. 9/26/13), 125 So.3d 546, 550, writ denied, 13-2601 (La. 2/7/14), 131 So.3d 863.
The sufficiency of a petition subject to an exception of no cause of action is a question of law, and a de novo standard is applied to the review of legal questions; this Court renders a judgment based on the record without deference to the legal conclusions of the lower courts. Foti v. Holliday, 09-93 (La. 10/30/09), 27 So.3d 813, 817. If the allegations of the petition state a cause of action as to any part of the demand, the exception must be overruled. Pitre v. Opelousas General Hosp., 530 So.2d 1151, 1162 (La. 1988). In this case, after our de novo review of the original and third party petitions, both of which allege that Denex may be liable to the plaintiffs and to SPS because of its performance as a subcontractor, and based upon the jurisprudence cited above, we find no error in the trial court's ruling which denied the exception of no cause of action.
Accordingly, the relator's writ application is denied.
JJM
RAC
SJW
SUSAN M. CHEHARDY CHIEF JUDGE FREDERICKA H. WICKER JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON STEPHEN J. WINDHORST HANS J. LILJEBERG JOHN J. MOLAISON, JR. JUDGES
NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 12/08/2021 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW: