J. Caldarera & Company, Inc. Versus Triumph Construction Company, LLC. and Atain Specialty Insurance Company

J. CALDARERA & COMPANY, INC. NO. 24-C-451

VERSUS FIFTH CIRCUIT

TRIUMPH CONSTRUCTION COMPANY, COURT OF APPEAL
LLC. AND ATAIN SPECIALTY INSURANCE
COMPANY STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE FORTIETH
JUDICIAL DISTRICT COURT
PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA
NO. 70,409, DIVISION "B"
HONORABLE NGHANA LEWIS, JUDGE PRESIDING

December 18, 2024

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Stephen J. Windhorst

REVERSED AND REMANDED;
STAY ORDERED
SJW
SMC
FHW

COUNSEL FOR PLAINTIFF/RELATOR,
J. CALDARERA & CO., INC.
John W. Waters, Jr.

COUNSEL FOR DEFENDANT/RESPONDENT,
TRIUMPH CONSTRUCTION COMPANY, LLC
Gregory S. Webb

WINDHORST, J.

Relator, J. Caldarera & Company, Inc., seeks review of the trial court’s denial

of its motion to compel arbitration. For the following reasons, we reverse the trial

court’s ruling, grant Caldarera’s motion to compel arbitration, order a stay, and

remand for further proceedings consistent with this disposition.

BACKGROUND

Caldarera contracted with the St. Tammany Parish School Board to construct

Fontainebleau Junior High School. On May 4, 2015, Caldarera and Triumph

Construction Co., LLC entered into a Subcontract Agreement relative to some of the

work for the project, including the furnishing of labor and other services necessary

for the construction and installation of concrete foundation and site pavement work.

A concrete pour was scheduled for Saturday, April 30, 2016, in advance of

on-coming inclement weather. In preparation for the concrete pour, Caldarera dug

and formed below grade trenches and arranged for the concrete delivery. Triumph’s

workers, however, did not appear for the scheduled concrete pour. Rain destroyed

the pre-dug trenches and caused cave-ins of earthen excavations. Triumph did not

return to the construction project.

On March 8, 2017, Caldarera filed a petition for damages, asserting breach of

contract and negligence claims, including failing to show up for the concrete pour.

Caldarera alleged Triumph’s caused it damages, including cost of overhead, cost of

project completion, cost to redo work and repair other parts of the project damaged

by Triumph, and cost of acceleration.

Since Caldarera filed the original petition in 2017, the parties have litigated

this case in the trial court by conducting discovery, engaging in motion practice, and

appellate review involving the dismissal of one defendant. Trial has been continued

multiple times. Because this case has been pending for seven years, recently, in July

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2024, Caldarera filed a motion to compel arbitration based on a clause in the

Subcontractor Agreement. The relevant clause regarding dispute procedure states:

25.2 All matters in controversy between Contractor and Subcontractor
arising out of or related to his Subcontract, or the performance or breach
of thereof ... shall by decided by arbitration . . . OR litigated in court in
the 40th JDC at the option of the Contractor ....

After a hearing on August 2, 2024, the trial court denied Caldarera’s motion

to compel arbitration. Caldarera seeks review of the denial of its motion to compel

arbitration.

LAW and ANALYSIS

Because the relevant facts are not in dispute, this case presents a question of

law subject to de novo review. FIA Card Services, N.A. v. Weaver, 10-1372 (La.

3/15/11), 62 So.3d 709, 712.

The Louisiana Legislature has indicated by statute that arbitration is favored.

La. R.S. 9:4201 states:
A provision in any written contract to settle by arbitration a
controversy thereafter arising out of the contract, or out of the refusal
to perform the whole or any part thereof, or an agreement in writing
between two or more persons to submit to arbitration any controversy
existing between them at the time of the agreement to submit, shall be
valid, irrevocable, and enforceable, save upon such grounds as exist
at law or in equity for the revocation of any contract.
The United States Supreme Court has also long recognized and enforced a “liberal

federal policy favoring arbitration agreements.” Howsam v. Dean Witter Reynolds,

Inc., 537 U.S. 79, 83, 123 S. Ct. 588, 591, 154 L. Ed. 2d 491 (2002). The Louisiana

Supreme Court has held that even when the scope of an arbitration clause is fairly

debatable or reasonably in doubt, the court should construe the clause in favor of

arbitration. Aguillard v. Auction Mgmt. Corp., 04-2804 (La. 6/29/05), 908 So.2d 1,

18. The presumption is heavy and arbitration should not be denied unless it can be

said with positive assurance that an arbitration clause is not susceptible of an

interpretation that could cover the dispute at issue. Id.

24-C-451 2

According to La. R.S. 9:4202, when there is a valid arbitration clause, the trial

court “shall” stay the trial of the action until arbitration is had unless the applicant is

in default in proceeding with the arbitration. Specifically, La. R.S. 9:4202 states:

If any suit or proceedings be brought upon any issue referable to
arbitration under an agreement in writing for arbitration, the court in
which suit is pending, upon being satisfied that the issue involved in
the suit or proceedings is referable to arbitration under such an
agreement, shall on application of one of the parties stay the trial of
the action until an arbitration has been had in accordance with the
terms of the agreement, providing the applicant for the stay is not in
default in proceeding with the arbitration.

The Louisiana Supreme Court has held that La. R.S. 9:4202 allows a trial court to

ascertain only two basic facts before ordering arbitration: (1) whether there is a

dispute as to the making of the agreement and (2) whether a party has failed to

comply with the agreement. International River Center. v. Johns-Manville Sales

Corp., 02-3060 (La. 12/3/03), 861 So.2d 139, 140-42.

Louisiana courts have specifically held the arbitration statute does not allow

the trial court to determine waiver issues. Id. at 144; Bartley, Inc. v. Jefferson Par.

Sch. Bd., 302 So.2d 280, 283 (La. 1974); Nelson v. H20 Hair, Inc., 19-193 (La. App.

5 Cir. 5/22/19), 274 So.3d 747, 749 (issue of whether employer waived its right to

arbitration could only be addressed by arbitrator); Arkel Constructors, Inc. v.

Duplantier & Meric, Architects, L.L.C., 2006-1950 (La. App. 1 Cir. 7/25/07), 965

So.2d 455, 460 (the presumption is that the arbitrator should decide allegations of

waiver, delay, or a like defense to arbitrability).

Guided by jurisprudence from both the United States Supreme Court and the

Louisiana Supreme Court, we find the arbitration panel must decide the waiver issue

in this case. Howsam, 537 U.S. at 84, 123 S.Ct. at 592; International River Center,

861 So.2d at 144; Arkel Constructors, Inc, 965 So.2d at 460. We therefore reverse

the trial court’s ruling denying the motion to compel and grant that motion.

24-C-451 3

DECREE

For the foregoing reasons, we reverse the trial court’s ruling denying the

motion to compel arbitration, grant that motion, and order a stay of the trial court

proceedings until arbitration has been had in accordance with La. R.S. 9:4202. We

therefore remand this case to the trial court for disposition consistent with this

opinion.

REVERSED AND REMANDED;
STAY ORDERED

24-C-451 4

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
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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
DECEMBER 18, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-C-451
E-NOTIFIED
40TH DISTRICT COURT (CLERK)
HONORABLE NGHANA LEWIS (DISTRICT JUDGE)
JOHN W. WATERS, JR. (RELATOR)

MAILED
GREGORY S. WEBB (RESPONDENT)
ATTORNEY AT LAW
POST OFFICE BOX 1738
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