Opinion
24-C-554
12-18-2024
H&O INVESTMENTS, LLC v. PARISH OF JEFFERSON, THROUGH IT'S PARISH PRESIDENT, CYNTHIA LEE SHENG AND OPTERRA SOLUTIONS, INC. F/K/A NATRURECHEM, INC.
IN RE PARISH OF JEFFERSON
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DONALD A. ROWAN, JR., DIVISION "L", NUMBER 838-871.
Panel composed of Susan M. Chehardy, John J. Molaison, Jr., and Scott U.Schlegel, Judges.
WRIT DENIED.
In this writ application, relator, the Parish of Jefferson (the "Parish"), seeks reversal of the trial court's October 15, 2024 judgment rendered in favor of respondent, H&O Investments, LLC ("H&O), overruling the Parish's dilatory exception of vagueness and peremptory exceptions of no cause of action and no right of action. For the following reasons, we deny the Parish's writ application.
To the extent H&O, in its opposition memorandum to the Parish's writ application, attempts to invoke this Court's supervisory jurisdiction to review the October 15, 2024 judgment, insofar as it sustained the peremptory exceptions of no cause of action and no right of action filed by Opterra Solutions, Inc. f/k/a NaturChem, Inc. ("OS"), thereby dismissing H&O's claims as to OS, that application is not considered.
FACTUAL AND PROCEDURAL BACKGROUND
On March 20, 2023, H&O filed its original petition for damages against the Parish and OS, and on November 8, 2023, filed its first amended petition for damages. H&O's petition, as amended, alleged that the Parish is responsible for the maintenance and upkeep of drainage canals, ditches, servitudes and levees, within its geographical boundaries. This work is administered, directed and coordinated through the Parish's Drainage Department, which oversees the maintenance of "some 340 miles of drainage canals, drainage ditches, cross drains, and levees."
On January 5, 2021, the Parish advertised for public bid a two-year contract to supply the labor, materials, and equipment to control weeds and undesired vegetation in the drainage canals, ditches, and servitudes for the east and west banks of Jefferson Parish. The contract was ultimately awarded to OS on February 24, 2021. OS's agreement with the Parish (the "OS Agreement"), attached to H&O's petition and amended petition, refers to the Parish as the "Owner of the Project," OS (then NaturChem) as the contractor for the Project, and designates the Director of the Drainage Department ("Director") as the "Owner's Representative." Specifically, the Director is referred to as the "Manager/Design Professional," "who is to act as Owner's representative, and who is to assume all duties and responsibilities and have the rights and authority assigned to the Manager/Design Professional in General Conditions in connection with the completion of the Work in accordance with the General Conditions." Pursuant to OS's agreement with the Parish, the scope of OS's work was to "supply herbicides, labor &equipment to control weeds &other undesired vegetation in the canals, ditches &servitudes for the east and westbank for the drainage department..." OS started its work in March 2021, and "agreed to comply with a designated schedule or sequence for applying future applications." H&O alleged that if any area within OS's work showed "poor control" or "no effect," the Director was authorized to require that the areas be retreated within five days following notification.
In March 2021, soon after OS began its work for the Parish pursuant to the OS Agreement, the Parish advertised for public bid a three-year contract for "grass cutting of rough cut areas (sloped and flat)" on the east and west bank of Jefferson Parish in accordance with certain plans and specification sheets. H&O was ultimately awarded the contract and entered into its agreement with the Parish on April 28, 2021 (the H&O Agreement). Similar to the OS Agreement, the H&O Agreement refers to the Parish as the "Owner of the Project," H&O is referred to as the "Contractor" for the "Project," and the Director for the Drainage Department was designated as the "Owner's Representative." Additionally, like the OS Agreement, in the H&O Agreement, the Director was made responsible for the "Project," and is referred to as the "Manager/Design Professional, 'who is to act as Owner's representative,' and who is to assume all duties and responsibilities and have the rights and authority assigned to the Manager/Design Professional in General Conditions in connection with the completion of the Work in accordance with the General Conditions."
The H&O Agreement sets forth the work to be performed by H&O during its three-year term to include "grass cutting of rough cut areas (sloped and flat) for the Drainage Department" in accordance with the General Conditions, the drawings and specifications, and H&O's bid proposal. H&O made its first cut in May of 2021, and agreed to comply with a designated schedule or sequence for future cuts, "which were timed by the Contract Documents to follow [OS's] appliance of the herbicides."
As "Owner of the Project," the Parish appointed the Director of the Drainage Department as its "Manager/Design Professional, who is to act as Owner's representative" and "to assume all duties and responsibilities," and charged him to "oversee the Project" and to "enforce compliance with the Contract Documents." The rights and responsibilities of the Director are the same in both the OS Agreement and the H&O Agreement. Specifically, the Director was responsible for: deciding questions regarding the quality and acceptability of the work performed by "Contractors on the Project," i.e., OS and H&O, and rejecting defective work; deciding questions regarding interpretation of the contract documents; overseeing OS's compliance with the methods, techniques, schedules, sequences and procedures set forth in the contract documents; inspecting the work, including the "effect" and "control" achieved by each of OS's applications of herbicide and require "spot treatment (retreatment) applications" when evidence of poor control or no effect was achieved; daily communications with OS and reviewing its weekly written progress to assure compliance with the Contract Documents, which "reports were to include the names of the canals, ditches, servitudes, and levees H&O cut and [OS] sprayed" along with the areas covered, as well as the "names of herbicides used and gallons of spray mix used." Pursuant to the terms of the OS Agreement and the H&O Agreement, the Director had the authority to suspend operations and/or to terminate OS or H&O at any time "if, in the Director's opinion," OS or H&O were not carrying out the operations "in conformity with the Contract Documents." According to H&O, the Director had the control over OS's and H&O's work as if he were the actual Owner, or the Parish.
H&O alleged that the OS Agreement and the H&O Agreement "entailed sequenced work on the same Project, for the same owner, under the supervision of a common project Manager/Design Professional." Pursuant to the provisions of those separate-but complimentary-contracts with the Parish to manage the growth of grass and vegetation "on the canals, ditches, servitudes, and levees on the east and west banks of Jefferson Parish," otherwise, the "Project," OS contracted to spray herbicide to control grass and vegetation growth, and H&O contracted to cut the grass stunted by OS's herbicide applications. The Director designed the Project, wrote the specifications for the Project, determined how the work on the Project would be divided between OS and H&O, and established the schedule each would follow." H&O alleged that the Director, an engineer, "knew, or should have known, that H&O and [OS] would each rely on the other['s] timely performance and compliance with their contractual obligations, in order to properly accomplish their own work in the time that was anticipated when their bids were submitted." The Director's schedule required H&O to cut and OS to spray at designated intervals in order to assure maximum effectiveness and to save the Parish money. Specifically, in the H&O Agreement, the Director reduced the typical frequency for grass cutting because the proper application of the herbicides by OS would substantially reduce the normal rate of growth, requiring fewer cuts each year, at a substantial savings to the Parish.
The Director's designated schedule for OS's herbicide applications followed by H&O's grass cutting, pursuant to their respective agreements, went fine in 2021, but in the early months of 2022, H&O observed "unanticipated growth of weeds and grass" in its (and OS's) area of operation, suggesting that OS's herbicide applications were not having the proper effect to attenuate grass and weed growth. H&O notified the Director of OS's "apparent noncompliance with its contractual obligations."
In July of 2022, H&O received an email from the Department of Drainage indicating the grass was not being cut as close as required, if at all, suggesting that H&O was not in compliance. In response, H&O informed the Parish that its employees were having to sharpen mower blades daily and changing them weekly. The grass, however, was so thick in some areas that it was having to be mowed over multiple times. H&O suggested to the Parish that "the rough-cut frequency be increased" or that the Parish verify OS's chemical application. Over the next several months, OS's noncompliance became apparent, ultimately resulting in an agreement by OS to discontinue its services under the OS Agreement due to its failure to perform. Nonetheless, OS billed and was paid for services in 2022, even though those services were either not performed or were defectively performed.
Due to the actions and/or inactions by the Director in dealing with OS's noncompliance, H&O's work become more onerous and expensive, because the time, equipment and manpower required to cut the undesired weeds and vegetation to the required height was greatly increased each cycle. Despite H&O's photographs and documents provided to the Director, evidencing the conditions and the slowed progress of its work caused by OS's noncompliance, he took no action to require OS to comply. Instead, the Director chose "heightened oversight of H&O's work and require that it cut and recut the same area's multiple times to achieve the required result."
H&O alleged that "it was foreseeable, if not certain, that it would suffer economic harm and incur additional costs, if the Director mismanaged the Project, including the [OS] Agreement and if H&O were delayed in its work, or was required to do additional work to compensate for [OS's] defective performance . . . such knowledge is attributable to [the Parish] as the Owner of the Project and as employer of the Director." Specifically, H&O alleged the Director was negligent in the performance of its duties and responsibilities, under both the OS Agreement and the H&O Agreement, and that as a result of the this negligence, H&O's work was delayed and the costs to perform its work on the Project was substantially increased, which the Director knew or should have known would occur if OS was not required to perform its obligations under the OS Agreement, resulting in an economic loss to H&O of approximately $500,000.
When the Parish refused H&O's request for additional compensation for the increased work it was required to complete due to OS's deficient performance, H&O filed its petition for damages against the Parish and OS. In response, both the Parish and OS filed dilatory exceptions of vagueness, and peremptory exceptions of no cause of action and no right of action. A hearing on the exceptions was held on October 7, 2024, after which the trial court overruled the exceptions filed by the Parish, and sustained the peremptory exceptions of no cause and no right of action filed by OS, thereby dismissing the claims H&O made against it, rendering OS's dilatory exception of vagueness moot. A judgment to this effect was rendered on October 15, 2024.
This writ application filed by the Parish followed.
DISCUSSION
Dilatory Exception of Vagueness
An appellate court reviews an exception of vagueness under the manifest error standard of review because the district court's judgment is based on a factual determination. Succession of Gendron, 17-216 (La.App. 5 Cir. 12/27/17), 236 So.3d 802, 806.
Louisiana Code of Civil Procedure article 891 requires that a petition shall "contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation . . ." One purpose of this requirement is "to place the defendant on notice of the nature of the facts sought to be proved so as to enable him generally to prepare his defense, as well as additionally by a formal pleading to identify the cause of action, in order to bar its future relitigation after determination by the present suit." Spellman v. Discount Zone Gas Station, 07-496 (La.App. 5 Cir. 12/27/07), 975 So.2d 44, 46, writ denied, 08-337 (La. 4/4/08), 978 So.2d 328. However, the defendant is not entitled through the exception of vagueness to require exactitude and detail of pleading beyond those necessary for these aims. Gendron, 236 So.3d at 806. An exception of vagueness will be denied if the petition fairly informs the defendant of the nature of the cause of action and includes sufficient particulars for the defendant to be able to prepare his or her defense. Smart v. Gold, Weems, Bruser, Sues & Rundell, 06-1414 (La.App. 3 Cir. 4/4/07), 955 So.2d 263, writ denied, 07-854 (La. 6/22/07), 959 So.2d 497.
The Parish argues that while H&O alleges the Parish owed it a duty under the terms of the OS Agreement, it fails to show how it is an obligee of that Agreement. H&O's petition, as amended, identifies the "Project," as set forth in both the OS Agreement and the H&O Agreement, as the management of the growth of weeds, grass, and vegetation on the canals, ditches, servitudes, and levees on the east and west banks of the Parish, and alleges that under both the OS Agreement and the H&O Agreement, the Parish, through its Director, was responsible for managing, overseeing, and administering the Project. Further, H&O alleges that under its agreement with the Parish, it was responsible for the growth of grass and cutting in the designated areas, and under OS's separate agreement with the Parish, OS was responsible for taking care of the undesired weeds and vegetation in the same areas. H&O contends that because of the separate, but complimentary, nature of the agreements, the Parish, through its Director, charged with overseeing and managing the Project, owed H&O a duty to compel OS to fulfill its obligation under its agreement to treat the weeds, so that H&O could timely and properly fulfill its obligation under its own agreement to thereafter cut the grass. Despite the Parish's assertion to the contrary, nowhere in its petition does H&O allege that there was only one contract or agreement at issue-rather, it avers H&O and OS were co-contractors performing synchronized work, vegetation management, in the same areas of the Parish, the east and west bank canals.
Further, the Parish contends that because there was no "common" work, there could be no "division" of work for the Director to oversee or manage as asserted by H&O, making those allegations of liability against the Parish vague.
However, a review of the petition, as amended, evidences that H&O's reference to the "division" of work to be managed or overseen by the Director was not to manage a division of the same task as between H&O and OS, but rather, to manage the scheduling of the separate task or work to be performed by OS, followed by the task or work to be done by H&O.
Based on our review of H&O's original and amended petitions, we find that H&O has set forth sufficient facts to place the Parish on notice that it must defend against two causes of action in negligence; that is, negligent professional undertaking and unjust enrichment. The fact that the Parish disputes both of H&O's alleged causes of action demonstrates that the Parish has been able to adequately identify those causes of action. Consequently, we find no error in the trial court's overruling of the Parish's dilatory exception of vagueness.
Peremptory Exception of No Cause of Action
While the dilatory exception of vagueness addresses the detailed sufficiency of the petition, the purpose of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged therein. 5301 Jefferson Hwy, LLC v. A. Maloney Moving & Storage, Inc., 23-211 (La.App. 5 Cir. 5/29/24), 392 So.3d 337, 348. This Court conducts a de novo review of trial court's ruling on an exception of no cause of action because the exception raises a question of law and the court's decision is based solely on the sufficiency of the petition. Id. The peremptory exception of no cause of action is triable on the face of the pleadings, and, for purposes of resolving issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Par. of Jefferson v. Bankers Ins. Co., 11-590 (La.App. 5 Cir. 2/28/12), 88 So.3d 1082, 1088, writ denied, 12-691 (La. 5/4/12), 88 So.3d 466. No evidence may be introduced at any time to support or controvert an exception of no cause of action. Id. Because Louisiana uses a system of fact pleading, a plaintiff is not required to plead the theory of recovery in his petition; however, mere conclusions of the plaintiff unsupported by facts will not set forth a cause of action. Id.
In deciding an exception of no cause of action, a court can consider only the petition, any amendments to the petition, and any documents attached to the petition. Id. In doing so, the court considers whether the plaintiff belongs to a particular class for which the law grants a remedy for a particular grievance. The standard for granting an exception of no cause of action is not the likelihood that the plaintiff will prevail at trial, or that the defendant has a valid defense. 5301 Jefferson Hwy, LLC, 392 So.3d at 349. Rather, the question to be resolved is whether, on the face of the petition, accepting all allegations as true, the petition states a valid cause of action for relief. Am. Rebel Arms, L.L.C, v. New Orleans Hamburger &Seafood Co., 15-599 (La.App. 5 Cir. 2/24/16), 186 So.3d 1220, 1222. Because the trial of the exception is solely on the face of the pleadings, the court may not go beyond the petition to the merits of the case. Wood v. Omni Bancshares, Inc., 10-216 c/w/10-567 (La.App. 5 Cir. 4/26/11), 69 So.3d 475, 480.
In its petition, as amended, H&O asserts two negligence claims against the Parish: negligent professional undertaking and unjust enrichment.
1. Negligent Professional Undertaking
Louisiana Civil Code article 2315 states that "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." Louisiana courts have recognized the existence of a tort based upon "negligent professional undertaking" under La. C.C. art. 2315. Such claims are determined on a case-by-case basis, according to the facts of a certain dispute. A party's specific profession is not determinative of whether a cause of action exists. Lathan Co., Inc. v. State, Dep'tof Educ., Recovery Sch. Dist., 16-913 (La.App. 1 Cir. 12/6/17), 237 So.3d 1, 9; Colbert v. B.F. Carvin Const. Co., 600 So.2d 719, 725 (La.App. 5 Cir. 1992), writs denied, 604 So.2d 1309 and 604 So.2d 1311 (La. 1992).
For example, in Colbert v. B.F. Carvin Const. Co., supra, this Court held that a subcontractor, who sustained economic damages due to the negligent professional undertaking by an architect working on a mutual project, foreseeably relied on the architect's services creating a duty on the part of the architect to the subcontractor, even though there was no privity of contract between them. According to the architect, the subcontractor had failed to state a cause of action because there was no cognizable contract claim due to the absence of privity. This Court determined that a cause of action existed through "negligent professional undertaking." See also R&R Enter v. Rivers & Gulf Marine Survey, 476 So.2d 12 (La.App. 5th Cir. 1985) (this Court implied such a cause of action exists with regard to a surveyor/appraiser). See also Impressive Builders v. Ready Mix, Inc., 535 So.2d 1344 (La.App. 5th Cir. 1988) (a general contractor was given leave to amend his petition to state a cause of action in negligence against an engineering firm for allegedly designing a defective foundation slab).
In Alley v. Courtney, 448 So.2d 858 (La.App. 2nd Cir. 1984), writ denied, 450 So.2d 360 (La. 1984), the Second Circuit allowed recovery for economic damages for a lender against a professional construction appraiser and inspector who had incorrectly reported information to a builder upon which it was foreseeable that the lender would rely. Similarly, in Standard Roofing Co. v. Elliot Const., 535 So.2d 870 (La.App. 1st Cir. 1989), reconsid. denied, 539 So.2d 627 (La. 1989), the First Circuit recognized an action for negligent professional undertaking by a subcontractor against a project architect. See also S.K. Whitty & Co., L.L. Lambert, 576 So.2d 599 (La.App. 4th Cir. 1991), writ denied, 580 So.2d 928 (La. 1991). The United States Eastern District of Louisiana has recognized the tort of negligent professional undertaking and allowed economic damages to a contractor against an architect on claims that the architect prepared defective and inadequate drawings, plans, and specifications upon which the contracting firm relied in performing its obligations under a construction contract. Because of the architect's negligence, the contracting firm was required to perform work beyond that called for in its contracts, and that negligence caused unreasonably delayed approval of shop drawings and other documents submitted by the contractor. See Farrell Const. v. Jefferson Parish, 693 F.Supp. 490, 491 (E.D. La. 1988), reversed on other grounds, 896 F.2d 136 (5th Cir. 1990).
In the instant case, the factual allegations of H&O's petition, as amended, state that the agreements OS and H&O respectively had with the Parish relative to the Project, while separate, were complimentary, such that if OS did not properly spray in accordance with the required methods and designated schedule in the OS Agreement, then the weeds and undesired vegetation would continue to grow, thereby impacting H&O's ability to timely perform its grass cutting obligations under the H&O Agreement. Because of the complimentary nature of the agreements, H&O foreseeably relied on the Parish, through its Director, to fulfill its obligation to manage and oversee the growth of vegetation and grass on the canals, ditches, servitudes, and levees on the east and west banks of the Parish creating a duty on the part of the Parish to H&O to require OS to comply with its obligations under the OS Agreement, even though H&O was not a party to the OS Agreement. H&O has pled facts indicating that the Director's substandard conduct in performing the obligations it undertook to manage and oversee the Project, particularly its failure to require OS's compliance with the OS Agreement by correctly and timely applying herbicides to ensure eradication of the weeds and undesired vegetation, caused H&O to have to perform additional work on the Project and to sustain economic loss. Further, H&O has alleged facts suggesting that the Parish knew or should have known that H&O would be economically injured as a result of its substandard, negligent actions and its poor management and oversight of the Project. Specifically, H&O alleges facts indicating that it was foreseeable, if not certain, that H&O would be economically injured by the Director's failure to require OS's compliance with the terms of the OS Agreement. The facts as alleged suggest there was a closeness between the economic injury suffered by H&O and the Parish and/or Director's alleged substandard, negligent conduct.
In sum, the factual allegations set forth in H&O's petition, as amended, state the Parish, as Owner of the Project, through its Director, as the Manager/Design Professional, (1) had a duty to H&O to conform to a certain standard of care: (2) which it failed to do; (3) the Parish's substandard conduct was the cause-in-fact and legal cause of H&O's economic harm; and therefore, (4) the Parish is liable to H&O for the damages it incurred as a result of the Parish's negligent actions and/or inactions in connection with the Project. Based upon our de novo review, we find that the factual allegations set forth in H&O's petition, as amended, all presumed to be true and with all reasonable inferences made in favor of H&O, are sufficient to state a claim for negligent professional undertaking against the Parish, through its Director of Drainage. The trial court did not err in overruling the Parish's exception of no cause of action as to this claim.
2. Unjust Enrichment
According to H&O, it raised the claim of unjust enrichment in an alternative should the trial court ultimately determine that the Parish is not liable to it in negligence. Under Louisiana law, the requisite elements of a claim for unjust enrichment are: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) an absence of justification or cause for the enrichment and impoverishment; and (5) no other remedy available at law. Pinegrove Elec. Supply Co., Inc. v. Cat Key Const., Inc., 11-660 (La.App. 5 Cir. 2/28/12), 88 So.3d 1097, 1100-01. Pursuant to La. C.C. art. 2298, the remedy of unjust enrichment is subsidiary in nature, and "shall not be available if the law provides another remedy." Id., citing Walters v. MedSouth Record Management, LLC, 10-353 (La. 6/4/10), 38 So.3d 243. The unjust enrichment remedy is "only applicable to fill a gap in the law where no express remedy is provided." Id.
In support of its claim for unjust enrichment, H&O's petition alleges that the Parish received a "substantial benefit" from the additional work that H&O had to perform in maintaining the drainage canals, ditches, servitudes and levees, made more onerous and expensive due to the Parish's actions and/or inactions. H&O alleged that the Parish has been enriched by H&O's work, by relieving itself of the financial burden to pay OS and by not hiring another vendor or contractor to replace OS. Additionally, H&O's petition, as amended, alleged that while the Parish has been enriched, it is been impoverished due to the more onerous nature of the work it was required to perform resulting from the Parish's actions and/or inactions. Thus, according to H&O, if it is determined that H&O has no other remedy against the Parish for the economic damages it has incurred, it has sufficiently stated a cause of action for unjust enrichment.
In its writ application, citing federal jurisprudence, the Parish argues the trial court erred in overruling its exception of no cause of action as to H&O's claim for unjust enrichment because in Louisiana, there can be no claim for unjust enrichment if a contract exists between the parties, such as here. In response, H&O refers to this Court's decision in Deubler Elec. v. Knockers of La., 95-372 (La.App. 5 Cir. 11/15/95), 665 So.2d 481, 484-85, wherein we stated:
The existence of a claim on an express or implied contract precludes application of the unjust enrichment theory, because the potential claim constitutes a practical remedy at law available to the party conferring the enrichment.
Thus, according to H&O, it is not the mere existence of a contract between the parties that runs afoul of the fifth element of an unjust enrichment claim, but whether a claim exists on the contract between the parties. H&O avers that although a contract-the H&O Agreement-existed between itself and the Parish, both parties fulfilled their obligations as set forth in the contract "bringing the contract to fulfillment." Consequently, H&O avers that if the Parish is not found liable to H&O in negligence, then an unjust enrichment claim under the facts as alleged is proper. We agree and find the trial court did not err in overruling the Parish's exception of no cause of action as to H&O's claim for unjust enrichment.
Exception of No Right of Action
In its writ application, the Parish argues the trial court erred in overruling its exception of no right of action based on the fact that H&O is not a party to the OS Agreement and, thus, cannot assert any rights thereunder. Additionally, the Parish argues that H&O is not the right party to assert-and has no right to assert-"that the Parish must state claims against [OS]" regarding OS's performance under the OS Agreement. According to the Parish, H&O "has no right to do so, and is not the party to do so."
The exception of no right of action is directed to showing that a plaintiff has no legal right or interest in enforcing the matter asserted, based upon the facts and evidence submitted. La. C.C.P. art. 927. This Court reviews an exception of no right of action de novo. 321 Magazine, L.L.C. v. Lloyds of London, 08-727 (La.App. 5 Cir. 2/25/09), 10 So.3d 242, 245. Evidence is admissible in support of, or against, the exception of no right of action. Id.
H&O argues that it has a legally protectable interest because H&O suffered economic harmed caused by the Parish's negligent conduct in failing to "inspect, observe, require that [OS] submit weekly reports," as the OS Agreement required it to do, and failing to "investigate reports and evidence of [OS's] noncompliance."
Having found that H&O's petition, as amended, states a cause of action for negligent professional undertaking, based on the Parish's failure to properly manage and oversee the Project, particularly failing to require OS to comply with OS's obligations under the OS Agreement, we likewise find that H&O has a right to bring that action for the economic harm it has allegedly suffered. The trial court did not err in overruling the Parish's exception of no right of action.
For the foregoing reasons, the Parish's writ application is denied. Gretna, Louisiana, this 18th day of December, 2024.
We acknowledge that although H&O filed with the trial court a Notice of Intent to seek this Court's supervisory review of the October 15, 2024 judgment, insofar as the judgment sustained the peremptory exceptions of no cause of action and no right of action filed by OS, thereby dismissing H&O's claims against OS, and rendering OS's dilatory exception of vagueness moot, and that the trial court set a return date for H&O's filing of a writ application "in accordance with statute," the record reflects that H&O never actually filed a writ application. H&O cannot attempt to do so by circumventing the Uniform Rules-Courts of Appeal, pertaining to the timeliness of filing a writ application and the fees associated with doing so, by filing a memorandum in opposition to another party's timely filed writ application, and setting forth arguments therein in support of a writ application it never filed. Notably, at the time H&O contacted this Court on November 19, 2024, requesting an opportunity to file an opposition to the Parish's writ application, the time for filing its own writ application "in accordance with the statute" had already expired. We also note that H&O may still file a devolutive appeal in accordance with La. C.C.P. art. 2087.
SMC
JJM
SCHLEGEL, J., CONCURS IN PART AND DISSENTS IN PART WITH REASONS.
The majority found no error in the trial court's overruling of (1) the Parish's dilatory exception of vagueness, (2) the Parish's exception of no cause of action as to H&O's claim for unjust enrichment or (3) the Parish's exception of no right of action. I concur.
I respectfully dissent though from the majority's finding that the trial court did not err in overruling the Parish's exception of no cause of action as to the claim of negligent professional undertaking against the Parish, through its Director of Drainage. I recognize that this matter is in the early stages of litigation. But I do not agree that this Court should extend the jurisprudentially created cause of action for negligent professional undertaking to situations where a contract exists between the parties. The cases cited by the majority are distinguishable because they involve plaintiffs who experienced damages as a result of their reliance on the faulty work or services of a professional with whom the plaintiffs did not have privity of contract. See, e.g. Lathan Co., Inc. v. State, Dep't of Educ., Recovery Sch. Dist., 16-913 (La.App. 1 Cir. 12/6/17), 237 So.3d 1, 6-10, writ denied, 18-26 (La. 3/9/18), 237 So.3d 1191; Colbert v. B.F. Carvin Const. Co., 600 So.2d 719, 725 (La.App. 5 Cir. 1992.), writs denied, 604 So.2d 1309 and 604 So.2d 1311 (La. 1992)(in adopting the test to determine whether a cause of action for negligent professional undertaking exists, this Court recognized that '"whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves a balancing of various factors. . ."')(Emphasis added.)
In the present matter, a contract clearly existed between the parties. And "[c]ontracts have the effect of law for the parties, and the interpretation of a contract is the determination of the common intent of the parties." Bonilla v. Verges Rome Architects, 23-928 (La. 3/22/24), 382 So.3d 62, 65. Accordingly, I would decline "to establish an extra-contractual duty owed to" H&O by the Parish. See id. at 67, n.l.
SUS
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 12/18/2024 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: