On February 14, 1974, defendant Burkhalter filed exceptions of vagueness, no right or cause of action to the State of Louisiana, no right or cause of action as to both plaintiffs and prescription of one and three years. By judgment of this court dated June 28, 1974 and reported at 297 So.2d 918, this Court erroneously declared that the exception of three years filed by defendant Simoni had been sustained by the lower court. This was error on the part of this Court as the exceptions filed by defendants Burkhalter and Simoni were not heard until November 18, 1974 and on November 22, 1974, the Lower Court rendered judgment maintaining Simoni's exception of prescription and also maintaining Burkhalter's exception of no cause or right of action.
See also an earlier intermediate decision in the matter. 297 So.2d 918 (La.App. 1st Cir. 1974). The issues before us concern:
Under Louisiana law, "[t]he established rule is that, in the absence of a contrary statutory provision, an action ex contractu cannot be maintained against a party to a contract by a person who is not privy thereto." State ex rel. Guste v. Simoni, Heck and Associates, 297 So.2d 918, 924 (La.Ct.App. 1974) (citing Lumber Products, Inc. v. Hiriart, 255 So.2d 783 (La.Ct.App. 1971). The Louisiana courts invoke this rule in cases involving construction contracts.
(“It is a well-accepted principle in Louisiana jurisprudence that, absent a contrary statutory provision, actions ex contractu cannot be maintained against a party by an individual who is not party thereto.”) (citing State ex rel. Guste v. Simoni, Heck and Associates, 297 So.2d 918, 924 (La.App. 1st Cir. 1974); Lumber Products, Inc. v. Hiriart, 255 So.2d 783, 787 (La.App. 4th Cir. 1971)); see also Mose Jefferson Manor v. Market Intern. In. Co., Ltd., 2011 WL 2416378 at *2-3.
See Delta Commercial Fisheries Assoc. v. Gulf of Mexico Fishery Mgmt. Council, 364 F.3d 269, 272 (5th Cir. 2004).State ex. Rel. Guste v. Simoni, Heck Assoc., 297 So.2d 918, 924 (La.App. 1 Cir. 1974). In their opposition, Plaintiffs attach the Affidavit of Jonathan Ruffin wherein Mr. Ruffin states that the mortgage was in favor of Washington Mutual Bank, FA (the "Bank").
As the claim for accelerated rent was not assumed, the First City Bank cannot be held liable for such claims as this defendant is and was not a party to the lease agreement in question. La.C.C. Art. 1901; Colbert v. Mike-Baker Brick of New Iberia, 326 So.2d 900 (La.App. 3d Cir. 1976); State ex rel. Guste v. Simoni, Heck and Associates, 297 So.2d 918 (La.App. 1st Cir. 1974); Lumber Products, Inc. v. Hiriart, 255 So.2d 783 (La.App. 4th Cir. 1971). The claim of plaintiff herein, if any, is properly brought only against the insolvent bank which is, in fact, a defendant in this lawsuit.
In State ex rel. Guste v. Simoni, Heck and Associates, 331 So.2d 478, 484 (La. 1976), this court observed: See also State ex rel. Guste v. Simoni, Heck and Associates, 297 So.2d 918, 920 (La.App. 1st Cir. 1974), writ granted, 320 So.2d 547 (1975), reversed on other grounds, 331 So.2d 478 (La. 1976). There can be no doubt from the clear and unambiguous language of the statute that it was the intent of the Legislature to set forth a precise prescriptive period to govern the filing of suits by the state or any of its agencies, boards or subdivisions on the contract or contract bond, or against the contractor or the surety or both on the bond furnished by the contractor.
Metropolitan Erection v. Landis Construction Company, Inc. 627 So.2d 144 (La. 1993). McInnis contends that the purpose of the statute is to provide a definite, precise period within which the State may bring suit against a contractor for public works, citing State ex rel. Guste v. Simoni, Heck andAssociates, 297 So.2d 918 (La. 1st Cir. 1974). We do not find that the statement in the above cited case indicates that the statute in question here is aimed at extinguishing the cause of action by the State against public works contractors after the passage of five years.
It is a well-accepted principle in Louisiana jurisprudence that, absent a contrary statutory provision, actions ex contractu cannot be maintained against a party by an individual who is not party thereto. See State ex rel. Guste v. Simoni, Heck and Associates, 297 So.2d 918, 924 (La.App. 1st Cir. 1974); Lumber Products, Inc. v. Hiriart, 255 So.2d 783, 787 (La.App. 4th Cir. 1971). In the instant case, there was no privity of contract between Randall and Lloyd's which would give rise to a breach of contract claim against Lloyd's.
See Emond v. Tyler Building and Const. Co., Inc., 438 So.2d 681 (La.App. 2d Cir. 1983); Am. Fid. Fire Ins. v. Pavia-Byrne Engineering, 393 So.2d 830 (La.App. 2d Cir. 1981). Compare State ex rel. Guste v. Simoni, Heck and Associates, 297 So.2d 918 (La.App. 1st Cir. 1974). Plaintiff was eventually called on to pay the loans he had guaranteed.