Landis Construction Co., LLC Versus Drp Masonry, LLC

LANDIS CONSTRUCTION CO., LLC NO. 24-C-510

VERSUS FIFTH CIRCUIT

DRP MASONRY, LLC COURT OF APPEAL

STATE OF LOUISIANA

October 31, 2024

Susan Buchholz
Chief Deputy Clerk

IN RE DRP MASONRY, LLC

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JACQUELINE F.
MALONEY, DIVISION "D", NUMBER 847-175

Panel composed of Judges Susan M. Chehardy,
Stephen J. Windhorst, and Scott U. Schlegel

WRIT DENIED

Defendant-relator, DRP Masonry, LLC, seeks supervisory review of the trial
court’s decision overruling its exception of prematurity. For the reasons that
follow, we deny the writ application.

In October of 2022, DRP submitted a bid proposal for a total of $656,853.00
to perform masonry work as a subcontractor to plaintiff-respondent, Landis
Construction. Landis, which was in the process of preparing its own bid to become
the contractor on the Bacteriological and Wet Chemistry Laboratory project for
Jefferson Parish, accepted DRP’s proposal. On March 1, 2023, Jefferson Parish
awarded the contract to Landis, and on March 8, 2023, Landis awarded the
masonry subcontract to DRP. DRP subsequently determined that the Unit Price
Form that Landis had provided DRP for the bidding process contained
inaccuracies. DRP therefore updated its bid proposal and asked Landis to revise the
subcontract to reflect a new bid amount of $1,035,000.00. Landis responded that
the inaccuracies in the Unit Price Form could be addressed in the form of a change
order in the future. DRP did not sign the subcontract with Landis, and Landis
awarded the job to another subcontractor, WT Construction, for $1,025,075.00.

According to DRP, WT began working on the project in June of 2023, but
DRP did not officially decline to do the work until July of 2023.1 On September
15, 2023, Landis filed suit against DRP, alleging that it had detrimentally relied on

1
Landis’s Answer to Interrogatories indicate, however, that on May 23, 2023, DRP informed
Landis that it intended to abandon the project. Nevertheless, on June 7, 2023, DRP submitted a
revised proposal to Landis for $1,035,000.00.

24-C-510

DRP’s bid proposal and that DRP had breached the bid proposal when it refused to
perform the masonry work for the original price stated. Landis’s Petition alleged
that it sustained lost profits on the project and other economic harm. On April 30,
2024, Landis filed a supplemental and amended petition that pled additional facts
in support of its detrimental reliance and breach of contract claims.

On May 20, 2024, DRP filed an exception of prematurity, arguing that
Landis filed suit before its right to recover damages accrued. The trial court denied
the exception. DRP now seeks supervisory review of that ruling.

An exception of prematurity questions whether a cause of action has
matured to the point where it is ripe for judicial determination. Bayou Orthotic &
Prosthetics Ctr., L.L.C. v. Morris Bart, L.L.C., 17-557 (La. App. 5 Cir. 3/28/18),
243 So.3d 1276, 1279. An action is deemed premature when it is brought before
the right to enforce it has accrued. Id. (citing La. C.C.P. art. 423). Prematurity is
determined by the facts existing at the time a suit is filed. Id. at 1279-80. The
burden of proving prematurity is on the mover. Id. at 1280. An exception of
prematurity ordinarily is reviewed for manifest error, unless the exception involves
a question of law, in which case we conduct de novo review. Id.

DRP contends that while Landis’s lawsuit seeks to recover $368,222.00 in
damages, the suit is premature because there are still outstanding payments to be
made and change orders to be reviewed, rendering the final cost of the scope of
masonry unknown. Actual damages are a requisite element of the breach of
contract and detrimental reliance claims that Landis asserts. See Stipp v. MetLife
Auto & Home Ins. Agency, Inc., 17-61 (La. App. 5 Cir. 8/30/17), 225 So.3d 1182,
1189, writ denied, 17-1774 (La. 12/5/17), 231 So.3d 632; Suire v. Lafayette City-
Park. Consol. Gov’t, 04-1459 (La. 4/12/05), 907 So.2d 37, 59. According to DRP,
because Landis may still recover its alleged damages through change orders
submitted to the owner of the project (due to the discrepancies in the Unit Price
Form), Landis had not sustained any damages at the time it filed suit, and the
matter is premature.

In its opposition filed in the trial court, Landis argued that it sustained
damages when it had to renegotiate a contract with another subcontractor for the
masonry scope of work after DRP abandoned the project. Landis further argues
that prescription began to run as soon as it realized that some damages had been
sustained, per Harvey v. Dixie Graphics, Inc., 593 So.2d 351 (La. 1992). In
Harvey, the Louisiana Supreme Court stated that although the damage suffered
“must at least be actual and appreciable in quality[, …] there is no requirement that
the quantum of damages be certain or that they be fully incurred, or incurred in
some particular quantum, before the plaintiff has a right of action.” Id. at 354.
Thus, under Harvey, prescription begins to run from the date on which the plaintiff
suffered actual and appreciable damage. Landis contends that even if its damages
had not been fully determined in September of 2023, the lawsuit is not premature.
Moreover, Landis argued that DRP’s exception is moot, because the masonry work
is now complete, Landis’s damages have been fully realized, and those damages
can be proven with reasonable certainty.

On the showing made, we find no manifest error in the trial court’s denial of
the exception of prematurity, nor in its apparent determination that DRP failed to
meet its burden of proving that Landis had not incurred any damages at the time it
filed suit on September 15, 2023. Even if the exact damages were indeterminate at

2

that time, exact damages are not required when filing a breach of contract claim
and are prohibited from being pled in a tort action. La. C.C.P. art. 893; Harvey,
supra. Accordingly, we deny DRP’s writ application.

Gretna, Louisiana, this 31st day of October, 2024.

SMC
SJW
SUS

3

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

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www.fifthcircuit.org

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 10/31/2024 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:

24-C-510
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Jacqueline F. Maloney (DISTRICT JUDGE)
Alexis N. Coco (Relator)

MAILED
Christopher K. LeMieux (Respondent) Donald J. Anzelmo (Relator)
Patrick A. Talley, III (Respondent) Attorney at Law
Attorney at Law 200 Breard Street
1100 Poydras Street Monroe, LA 71201
Suite 1100
New Orleans, LA 70163