Michael D'Aquin Versus Garcia Roofing Replacement, LLC

MICHAEL D'AQUIN NO. 23-C-604

VERSUS FIFTH CIRCUIT

GARCIA ROOFING REPLACEMENT, LLC COURT OF APPEAL

STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 843-102, DIVISION "J"
HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING

January 31, 2024

SCOTT U. SCHLEGEL
JUDGE

Panel composed of Judges Jude G. Gravois,
John J. Molaison, Jr., and Scott U. Schlegel

WRIT DENIED; DEFENDANT
GARCIA ROOFING’S REQUEST
FOR SANCTIONS DENIED
SUS
JGG
JJM

COUNSEL FOR PLAINTIFF/RELATOR,
MICHAEL D'AQUIN
George R. Ketry, Jr.
Richard J. Richthofen, Jr.

COUNSEL FOR DEFENDANT/RESPONDENT,
GARCIA ROOFING REPLACEMENT, LLC
Craig L. Kaster
Teresa D. Cop
Nancy A. Richeaux

SCHLEGEL, J.

Plaintiff, Michael D’Aquin, seeks review of the trial court’s

November 6, 2023 judgment granting the exception of improper venue filed by

defendant, Garcia Roofing Replacement, LLC, and transferring the matter to

Zachary City Court in East Baton Rouge Parish. For reasons stated more fully

below, we deny Mr. D’Aquin’s writ application.

This matter involves the validity of a forum selection clause contained in a

contract entered into between Mr. D’Aquin and Garcia Roofing to install a new

roof after Mr. D’Aquin’s home sustained damages following Hurricane Ida. The

forum selection clause provides, in pertinent part, as follows:

3. The parties agree any dispute arising out of or related to this
Agreement shall be decided in accordance with the laws of Louisiana
and agree to venue and jurisdiction in Zachary City Court for all
disputes $35,000.00 or less and agree to venue and jurisdiction in the
20th Judicial District Court, East Feliciana Parish, for all disputes in
excess of $35,000.00.1

Mr. D’Aquin filed this lawsuit on July 18, 2023, in the Twenty-Fourth

Judicial District Court in Jefferson Parish, asserting claims against Garcia Roofing

for breach of contract, negligence, detrimental reliance and violations of the

Louisiana Unfair Trade Practices Act, La. R.S. 51:1401 et. seq., based on Garcia

Roofing’s alleged failure to properly install the roof. In response, Garcia Roofing

filed an exception of lis pendens, and an alternative exception of improper venue

based on the forum selection clause in the roofing contact.2 In opposition to the

exception of improper venue, Mr. D’Aquin argued that the forum selection clause

violates La. C.C.P. art. 44(A), which provides that an “objection to the venue may

1
The cost to install the new roof agreed to by the parties in the roofing contract was $29,477.38.
2
In its exception of lis pendens, Garcia Roofing explained that it obtained a default judgment against Mr.
D’Aquin in Zachary City Court for the unpaid amount due under the roofing contract and Mr. D’Aquin
filed an appeal currently pending in the Louisiana First Circuit Court of Appeal.

23-C-604 1

not be waived prior to the institution of the action.” He also argued that the forum

selection clause should not be enforced because it is a contract of adhesion.

Venue is a question of law, which is reviewed de novo by the appellate

court. Seghers v. LaPlace Equip. Co., Inc., 13-350 (La. App. 5 Cir. 2/12/14), 136

So.3d 64, 69. For purposes of a venue exception, the allegations in the plaintiff's

petition are taken as true; however, when evidence is offered at a trial on the

exception, the court is not bound to accept as true the allegations of the petition.

Ameriprint LLC v. Canon Solution Services, LLC, 21-94, p. 3 (La. App. 5 Cir.

5/24/21), 2021 WL 2093283.3

In Shelter Mut. Ins. Co. v. Rimkus Consulting Grp., Inc. of Louisiana, 13-

1977 (La. 7/1/14), 148 So.3d 871, 881, the Louisiana Supreme Court held that

“[c]ontractual forum selection clauses are prima facie valid” and “should be

enforced in Louisiana unless the resisting party can ‘clearly show that enforcement

would be unreasonable and unjust, or that the clause was invalid for such reasons

as fraud or overreaching ... [or that] enforcement would contravene a strong public

policy of the forum in which suit is brought, whether declared by statute or by

judicial decision.’” (quoting Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct.

1907, 32 L.Ed.2d 513 (1972)); see also Creekstone Juban I, L.L.C. v. XL Ins. Am.,

Inc., 18-748 (La. 5/8/19), 282 So.3d 1042, 1048, wherein the Louisiana Supreme

Court re-emphasized that forum selection clauses are enforceable, except in very

limited circumstances delineated by the Louisiana legislature.

First, with respect to Mr. D’Aquin’s argument that the forum selection

clause violates La. C.C.P. art. 44(A), the Louisiana Supreme Court rejected this

3
Mr. D’Aquin attached a copy of the contract containing the forum selection clause as an exhibit to his
petition and therefore, it can be considered as part of the facts pled in the petition. See Donnaud’s, Inc. v.
Gulf Coast Bank and Trust Co., 03-427 (La. App. 5 Cir. 9/16/03), 858 So.3d 4, 6, writ denied, 03-2862
(La. 1/9/04), 862 So.2d 985. Mr. D’Aquin provided a copy of the petition with his writ application, but
failed to provide the exhibits he attached. However, in its opposition to the writ application, Garcia
Roofing noted Mr. D’Aquin’s failure to include the exhibits and provided a copy of the roofing contract
containing the forum selection clause at issue, which is Exhibit A to the petition.

23-C-604 2

position in Shelter, 148 So.3d at 879-80, and determined that Article 44(A) did not

prohibit “parties from contracting in advance of litigation that suits arising out of

that contract must be brought in a specific venue.”

Further, while Mr. D’Aquin incorrectly references to an arbitration clause in

his writ application, it appears that he intends to argue that the forum selection

clause is a contract of adhesion because it is “buried” in the agreement and the font

is small. He also argues that Garcia Roofing had a superior bargaining position at

the time of entering into the contract at issue because he needed to repair the

hurricane damage to his roof as soon as possible. In response, Garcia Roofing

argues that Mr. D’Aquin’s argument that he was under time constraints is without

merit because the parties did not enter into the roofing contract until November 21,

2021, 11 weeks after Hurricane Ida. Garcia Roofing also argues that the roofing

contract at issue is only two pages and the forum selection clause is not hidden and

is in the same type as all other provisions on the signature page of the contract.

A contract of adhesion is a standard contract, usually in printed form,

prepared by a party of superior bargaining power for adherence or rejection of the

weaker party. Aguillard v. Auction Mgmt. Corp., 04-2804, 04-2857 (La. 6/29/05),

908 So.2d 1, 8-9. The seminal issue in a contract of adhesion analysis is not the

standard form of the contract, but rather whether a party truly consented to all the

printed terms. Id; Kowski v. Five Properties, LLC, 23-87 (La. App. 5 Cir.

5/24/23), 366 So.3d 1262, 1264. Once consent is called into question, the party

seeking to invalidate the contract as adhesionary must then demonstrate the non-

drafting party either did not consent to the terms in dispute or his consent was

vitiated by error, which in turn renders the contract or provision unenforceable.

Aguillard, 908 So.2d at 10.

In Aguillard, the Louisiana Supreme Court considered whether an arbitration

clause was an adhesionary contract. In finding that the clause was enforceable, the

23-C-604 3

court reasoned that while the language was in small font, it did not differ from any

other print or font in the contract. Id. at 16. The court also observed that the

contract was only a two-page document, the provision was contained in a single

sentence, it was not concealed in any way, and the complaining party could have

attempted to negotiate the terms. Id. at 16-17. The Aguillard court further

recognized that “not every contract in standard form may be regarded as a contract

of adhesion.” Id. at 10.

Similarly, in the present matter, the roofing contract is only two pages and

the font of the forum selection clause is the same as all other provisions. Further,

Mr. D’Aquin failed to introduce any evidence to support his argument to invalidate

the forum selection clause and he did not raise any facts regarding this issue in his

petition. It is well settled that a party who signs a written instrument is presumed

to know its contents and cannot avoid its obligations by contending that he did not

read it, that he did not understand it, or that the other party failed to explain it to

him. Accordingly, we find that Mr. D’Aquin failed to show, with alleged facts or

evidence, that enforcement of the forum selection clause would be unreasonable or

unjust, or that enforcement would contravene a public policy or law of the State of

Louisiana.

Mr. D’Aquin finally argues in his writ application that the forum selection

clause is unenforceable under La. R.S. 51:1407(A) contained in the Louisiana

Unfair Trade Practices Act. However, he did not raise this argument with the trial

court. As a general rule, appellate courts do not consider issues that were not

raised with the trial court for the first time on appeal. See Uniform Rules — Courts

of Appeal, Rule 1-3; Lepine v. Lepine, 17-45 (La. App. 5 Cir. 6/15/17), 223 So.3d

666, 673. Furthermore, in Shelter, 148 So.3d at 881, the Louisiana Supreme Court

stated that the prohibition on forum selection clauses in La. R.S. 51:1407(A) is

“limited in scope to transactions or interactions between out-of-state, professional

23-C-604 4

telephone solicitors and Louisiana residents.” Mr. D’Aquin alleged in his petition

that Garcia Roofing is a Louisiana limited liability company, and therefore, this

provision does not apply to the contract at issue.

Finally, we address Garcia Roofing’s answer to the writ application asking

this Court to award it damages, including attorney’s fees, against Mr. D’Aquin

pursuant to La. C.C.P. art. 2164 for filing a frivolous writ application. La. C.C.P.

art. 2164 provides that the “court may award damages, including attorney fees, for

frivolous appeal or application for writs, and may tax the costs of the lower or

appellate court, or any part thereof, against any party to the suit, as in its judgment

may be considered equitable.” La. C.C.P. art. 2164 is penal in nature and must be

strictly construed. Alombro v. Alfortish, 02-1081 (La. App. 5 Cir. 4/29/03), 845

So.2d 1162, 1170, writ denied, 03-1947 (La. 10/31/03), 857 So.2d 486. An

appellate court may award damages for a frivolous appeal or writ application under

La. C.C.P art. 2164 when there is no serious legal question, when the appeal is

taken solely for the purpose of delay, or when it is evident that appellant's counsel

does not seriously believe in the position he advocates. Id. An appeal is not

automatically deemed frivolous simply because it lacks merit. Id.

After considering the writ application, answer to the writ application, and

opposition brief filed by the parties, we do not find that the present matter meets

the requirements of a frivolous writ application and therefore, we decline to award

sanctions under La. C.C.P. art. 2164.

For the reasons stated above, we deny plaintiff Michael D’Aquin’s writ

application and defendant Garcia Roofing Replacement, LLC’s request for

sanctions.

WRIT DENIED; DEFENDANT GARCIA ROOFING’S
REQUEST FOR SANCTIONS DENIED

23-C-604 5

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JANUARY 31, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-C-604
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE)
TERESA D. COP (RESPONDENT)

MAILED
GEORGE R. KETRY, JR. (RELATOR) RICHARD J. RICHTHOFEN, JR. (RELATOR) CRAIG L. KASTER (RESPONDENT)
ATTORNEY AT LAW ATTORNEY AT LAW NANCY A. RICHEAUX (RESPONDENT)
19524 HIGHWAY 36 3900 CANAL STREET ATTORNEYS AT LAW
COVINGTON, LA 70433 NEW ORLEANS, LA 70119 POST OFFICE BOX 815
1215 INDEPENDENCE BLVD.
BUILDING 4 SUITE B
ZACHARY, LA 70791