Roy Anderson Corp. v. 225 Baronne Complex, L.L.C.

ROY ANDERSON CORP. * NO. 2022-CA-0784

VERSUS *
COURT OF APPEAL
225 BARONNE COMPLEX, *
L.L.C. FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-12444, DIVISION “G-11”
Honorable Robin M. Giarrusso, Judge
******
Judge Nakisha Ervin-Knott
******
(Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge
Nakisha Ervin-Knott)

LEDET, J., CONCURS WITH REASONS

William L. Kohler
KOHLER CONSTRUCTION LAW, APLC
110 Veterans Boulevard, Suite 100A
Metairie, LA 70005

COUNSEL FOR INTERVENOR/APPELLANT

Lloyd N. Shields
Allison R. Colon
IRWIN FRITCHIE URQUART & MOORE, LLC
400 Poydras Street, Suite 2700
New Orleans, LA 70130

COUNSEL FOR PLAINTIFF/APPELLEE

Mark W. Frilot
Nicholas R. Pitre
BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC
3 Sanctuary Boulevard, Suite 201
Mandeville, LA 70471

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED
April 11, 2023

4899927

NEK

SCJ

Ronald Franks Construction Company, L.L.C. appeals the trial court’s denial

of its Motion for Leave to File Petition for Intervention and Damages. After

reviewing the record, we affirm the trial court’s ruling.

Relevant Facts and Procedural History

This case involves a dispute arising from a construction project (herein the

“Project”) to convert an existing high-rise building into a mixed-use development.

Appellee, 225 Baronne Complex, L.L.C. (herein “225 Baronne”) is the owner of

the Project. 225 Baronne hired Appellee, Roy Anderson Corporation (herein

“RAC”), as the general contractor for the Project. In turn, RAC hired Appellant,

Ronald Franks Construction Company, L.L.C. (herein “Franks Construction”), as a

subcontractor to furnish labor and materials for the Project. Multiple issues arose

between the parties during the construction of the Project. Of note for purposes of

this appeal, Franks Construction alleges that it is owed damages because RAC

interfered with the performance of its work, thereby increasing the cost of its

performance (herein the “Disruption Claim”).

On December 15, 2016, Franks Construction initiated arbitration

proceedings against RAC, seeking disruption damages as well as monetary

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compensation under the terms of its subcontract. On December 21, 2016, RAC

filed a Petition to Enforce Lien and For Damages against 225 Baronne. Franks

Construction subsequently sought to intervene against both RAC and 225 Baronne,

asserting that it had an interest in the suit to the extent it was entitled to

compensation for any pass-through claims1 RAC asserted against 225 Baronne for

work performed by Franks Construction. RAC did not oppose the intervention. 225

Baronne filed an exception of no right of action in response, and the trial court

granted 225 Baronne’s exception, dismissing RAC’s intervention with prejudice.

Franks Construction appealed, and we affirmed the trial court’s judgment,

specifically finding that Franks Construction did not have a right to assert an action

against 225 Baronne. See Roy Anderson Corp. v. 225 Baronne Complex, L.LC.,

2017-1005 (La. App. 4 Cir. 7/11/18), 251 So. 3d 493. We did not address whether

Franks Construction could intervene against RAC.

On February 22, 2019, RAC filed a Third Amended, Supplemental and

Restated Petition in this case, officially asserting Franks Construction’s Disruption

Claim as a pass-through claim against 225 Baronne. On October 8, 2021, the

Arbitration Panel in the proceeding between Franks Construction and RAC issued

an interim award. While the award disposed of some of the claims between the two

parties, the Arbitration Panel determined that it lacked jurisdiction over Franks

Construction’s claims for certain disruption damages because of 225 Baronne’s

involvement in those claims. The Arbitration Panel ruled that Franks

Construction’s recovery on those claims “must be determined in the CDC

1 As noted in our previous opinion, “pass-through” claims are damage claims that subcontractors

pass through to the contractor to prosecute an action against the project owner to recover those
damages. Roy Anderson Corp v. 225 Baronne Complex L.L.C.., 2017-1005, p. 3 (La. App. 4 Cir.
7/11/18), 251 So. 3d 493, 497, fn. 6 (citing Jeremy Baker, Pass-Through Claims in Construction
Litigation (May 29, 2007), https://www.internationallawoffice.com/).

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Litigation pending between RAC and [225 Baronne].” The Arbitration Panel

stayed any further arbitration proceedings until the litigation between RAC and

225 Baronne has concluded.

Thereafter, on May 27, 2022, Franks Construction once again sought to

intervene in this case.2 Both RAC and 225 Baronne opposed the intervention. The

trial court heard the matter on July 15, 2022 and denied Franks Construction’s

request to intervene. The trial court signed the judgment on August 8, 2022, and

this appeal followed.

Standard of Review

After an answer has been filed in a suit, a third party may petition the court

to intervene. Charia v. Allstate Ins. Co., 1993-1230 (La. App. 4 Cir. 3/29/1994),

635 So. 2d 370, 372 (citing La. C.C.P. art. 1033). “A [trial] court has broad

discretion in deciding whether to allow an intervention after the answer to the

principal demand has been filed.” Id. An appellate court reviews a trial court’s

ruling on an intervention for abuse of discretion. St. Bernard I, LLC v. Williams,

2012-0372, p. 10 (La. App. 4 Cir. 3/13/13), 112 So. 3d 922, 929.

Assignment of Error

Franks Construction’s sole assignment of error on appeal is that the trial

court erred in denying its motion to intervene. In its brief, Franks Construction

presents this Court with nine issues to be reviewed, all of which are questions that

arise from the trial court’s determinations in its written reasons for judgment.

However, it is well-settled in the jurisprudence that appellate courts review

2 Franks Construction had originally filed a Petition for Intervention and Damages on May 6,

2022. However, the petition did not contain a motion for leave. Therefore, on May 27, 2022,
Franks Construction filed a Motion to Withdraw its previously filed petition along with a Motion
for Leave to File Petition for Intervention with a new Petition for Intervention.

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judgments, not reasons for judgment. Wooley v. Lucksinger, 2009-0571, p. 77 (La.

4/01/11), 61 So. 3d 507, 572 (quoting Bellard v. American Cent. Ins. Co., 2007-

1335, p. 25 (La. 4/18/08), 980 So. 2d 654, 671). The written reasons are not a part

of the judgment and do not affect the final judgment being appealed. Id.

The first two issues Franks Construction raises are (1) whether it met the

criteria for intervention under Code of Civil Procedure article 1091 and (2)

whether the trial court abused its discretion in denying the motion to intervene. As

these two issues are dispositive, we limit our review to those questions.

Discussion

A third party with an interest in a pending action may intervene in that

action by either (1) joining with the plaintiff in the original action in order to

demand the same or similar relief, (2) joining with the defendant in the original

action to resist the plaintiff’s demand for relief, or (3) opposing both the plaintiff

and defendant in the original action. La. C.C.P. art. 1091. The jurisprudence holds

that an intervention should be allowed if a justiciable right exists and the justiciable

right has a connexity with the facts, circumstances, and objects of the main

demand. Roy Anderson Corp., 2017-01005, p. 8, 251 So. 3d at 500 (citing

Harrison v. Gaylord's Nat'l Corp., 539 So. 2d 909, 910 (La. App. 4th Cir. 1989)).

A justiciable right is the right of the intervenor “to seek redress or a remedy against

either plaintiff or defendant in the original action or both, and where those parties

have a real interest in opposing it.” Amoco Production Co. v. Columbia Gas

Transmission Corp., 455 So. 2d 1260, 1264 (La. App. 4th Cir. 1984).

Franks Construction’s intervention does not fall under any of the categories

listed under La. C.C.P. art. 1091. Franks Construction does not seek to join with

RAC to demand relief from 225 Baronne. Franks Construction does not seek to

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join with 225 Baronne to defend against RAC’s claims. Finally, Franks

Construction does not seek to oppose both RAC and 225 Baronne.3 To the

contrary, Franks Construction seeks to add a direct claim solely against RAC.

Franks Construction admits in its brief that its petition for intervention “seeks a

recovery from RAC, for RAC’s independent liability for Franks’ damages.” Franks

Construction does not have a justiciable right because it does not seek to join in the

original action of the suit but rather raises a separate cause of action. Therefore,

Franks Construction does not meet the requisite criteria to intervene in this action,

and the trial court did not abuse its discretion in denying the motion to intervene.

Franks Construction argues in its brief that it has the requisite connexity to

intervene in this case. Franks Construction relies on the finding of this Court in the

first appeal, wherein we stated in dicta that Franks Construction demonstrated

connexity and may meet the criteria to intervene. See Roy Anderson Corp., 2017-

1005, p. 9, 251 So. 3d at 500 (emphasis added). However, the only issue we

resolved in that appeal was whether Franks Construction had a right to assert an

action against 225 Baronne and intervene in the case. Id. (“However,

notwithstanding that Franks Construction may meet the criteria to intervene, the

issue before us is whether Franks Construction has a right of action to intervene.

We answer that inquiry in the negative.”) At that time, we did not analyze the

requirements of La. C.C.P. art. 1091 or reach a final decision on the merits of the

intervention. An intervenor must have both a justiciable right and connexity in

order to intervene. Amoco Production Co., 455 So. 2d at 1264 (“If that right does

exist, then, in order to intervene it must be so related or connected to the facts or

3 We previously noted that Franks Construction’s right to assert an action against 225 Baronne

was extinguished when 225 Baronne furnished a bond in accordance with La. R.S. 9:4802(C).
Roy Anderson Corp., 2017-1005, p. 13, 251 So. 3d at 503.

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object of the principal action that a judgment on the principal action will have a

direct impact on the intervenor's rights.”). As noted above, Franks Construction

does not have a justiciable right to intervene in this case. As such, it does not have

the requisite connexity.

Decree

For the foregoing reasons, we affirm the trial court’s August 8, 2022

judgment denying Franks Construction’s Motion for Leave to File Petition for

Intervention and Damages.

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