Mary John Family, L.L.C. Versus Stevens Construction & Design, LLC and Adam Stevens

MARY JOHN FAMILY, L.L.C. NO. 24-CA-132

VERSUS FIFTH CIRCUIT

STEVENS CONSTRUCTION & DESIGN, LLC COURT OF APPEAL
AND ADAM STEVENS
STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 835-204, DIVISION "A"
HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING

October 30, 2024

TIMOTHY S. MARCEL
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
John J. Molaison, Jr., and Timothy S. Marcel

REVERSED IN PART; AFFIRMED IN PART
TSM
FHW
JJM

COUNSEL FOR PLAINTIFF/APPELLANT,
MARY JOHN FAMILY, L.L.C.
Albert J. Nicaud
Jeffrey M. Siemssen
Bret D. Guepet, Jr.
Ramsey T. Marcello

COUNSEL FOR DEFENDANT/APPELLEE,
STEVENS CONSTRUCTION & DESIGN, L.L.C. AND ADAM STEVENS
Charles K. Chauvin

MARCEL, J.

In this case arising from purportedly defective renovation of a gas service

station, plaintiff Mary John Family, L.L.C., (“MJF”) appeals a January 17, 2024

district court judgment granting a motion to confirm arbitration award filed by

defendants Stevens Construction & Design, L.L.C. (“SC&D”) and Adam Stevens

and dismissing with prejudice the claims brought against them by MJF. For the

following reasons, we reverse in part and affirm in part the judgment of the trial

court.

BACKGROUND

MJF is the owner of a Chevron gas station located at 3120 Clearview Pkwy.,

Metairie, Louisiana. On May 4, 2020, MJF contracted with SC&D for the

renovation of the gas station. The parties utilized industry standard AIA contract

forms for their agreement. Following the commencement of construction, billing

disputes arose between the parties. MJF alleges that SC&D double-billed MJF and

also failed to pay its subcontractors and suppliers. MJF also alleges SC&D caused

project delays, failed to properly supervise the project, failed to obtain the

necessary inspections and permits, and negligently allowed work to be done in a

manner not in accordance to plans and specifications. MJF claims that it

terminated its contract with SC&D “for cause” prior to the completion of the

project and later hired a third party to complete the project. On November 18,

2022, MJF filed a petition for damages against SC&D and its owner, Adam

Stevens, alleging breach of contract, negligence, and violations of the Louisiana

Unfair Trade Practices Act.

In response to the petition, SC&D filed a dilatory exception of prematurity

in which it argued that, on February 1, 2023, MJF engaged the initial claim

resolution process pursuant to the terms of their construction contract. The

contractual dispute resolution procedure provided for a first step of submitting

24-CA-132 1

claims to an Initial Decision Maker before being mediated. In this case, the project

architect was selected as the Initial Decision Maker. SC&D argued that because

MJF’s claims were still under review by the project architect at the time of the

filing of the petition, MJF’s action was premature. MJF opposed the dilatory

exception, arguing that it was not bound by the terms of the construction contract

requiring an initial review process, because the parties, by their oral statements and

actions, had modified the written terms of the agreement.

The matter was set for hearing on April 11, 2023, at which time the trial

court orally granted the exception of prematurity and ordered the parties to

participate in the Initial Decision Maker’s review process. The project architect

issued his Initial Decision Maker report on April 20, 2023. On June 27, 2023, the

trial court issued its written judgment granting the exception of prematurity and

stayed the litigation on MJF’s petition during the pendency of the Initial Decision

Maker review process and any subsequent mediation invoked by the parties as

provided for by the construction contract.

Days later, on June 30, 2023, MJF filed a motion to lift the stay of the

proceedings. Its motion noted that the Initial Decision Maker report had been

issued and SC&D, in response to MJF’s written demand, had elected not to initiate

mediation proceedings in accordance with the terms of the construction contract.

Following a September 12, 2023 hearing, the trial court issued a judgment on

September 26th denying the motion to lift the stay on the proceedings.

Prior to the hearing on the motion to lift the stay, on September 4, 2023,

SC&D filed a “motion to confirm arbitration award” wherein it asked the court to

confirm the initial decision of the project architect as final. SC&D’s motion

averred that MJF had waived its rights to pursue litigation in a court of competent

jurisdiction because MJF failed to file for mediation. In particular, SC&D pointed

to the provisions of the construction contract that require mediation as a condition

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precedent for binding dispute resolution. SC&D attached copies of the

construction contract and the initial decision maker’s report in support of its

motion.

Following a December 6, 2023 hearing on the matter, the trial court issued a

judgment on January 17, 2024 in which it confirmed the initial decision of the

architect as final and binding, dismissed with prejudice all claims brought by MJF

arising from the contract, and ordered MJF to pay SC&D multiple sums (as stated

in the initial decision) totaling $174,077.61.

On appeal, MJF raises multiple assignments of error: 1) the trial court erred

in its interpretation of the terms of the construction contract; 2) the trial court erred

in finding the appellant waived its right to litigate its claims; 3) the trial court erred

in finding the decision of the Initial Decision Maker was an arbitration award; 4)

the trial court erred in failing to compel the parties to mediation; 5) the district

court erred in confirming an arbitration award despite SC&D’s failure to introduce

a valid arbitration agreement; 6) the trial court erred in dismissing all of the claims

against SC&D and Adam Stevens. We address these assignments of error en globo

in our discussion below, beginning with whether the trial court erred in granting

the motion to confirm the arbitration award before proceeding to discussion of

whether the trial court properly dismissed MJF’s claims pursuant to waivers

contained in the contract.1

1
As part of its arguments relating to the alleged arbitration proceedings, though not as a specific
assignment of error, MJF has claimed that the initial decision process violated MJF's due process rights.
This claim was not argued before the trial court. In light of the longstanding rules that litigants must raise
constitutional attacks in the trial court, not the appellate courts, and that the constitutional challenge must
be specifically pleaded and the grounds for the claim particularized, we pretermit any discussion of MJF's
due process claims. FMT Shipyard & Repair, LLC v. Normand, 18-292 (La. App. 5 Cir. 5/30/19), 274
So.3d 868, 871.

24-CA-132 3

DISCUSSION

Motion to Confirm Arbitration

Under Louisiana Binding Arbitration Law, a provision in any written

contract to settle by arbitration a controversy arising out of the contract must be

construed as valid, irrevocable, and enforceable. La. R.S. 9:4201. However, before

a judgment may be entered on a motion to confirm an arbitration award, the court

must first determine whether there is a valid agreement to arbitrate. FIA Card

Servs., N.A. v. Weaver, 10-1372 (La. 3/15/11), 62 So.3d 709, 713. It is the burden

of the party seeking to enforce a contract to show the contract exists. Id. at 719;

La. C.C. art. 1831. Whether a valid agreement to arbitrate exists is decided by

application of principals that govern the formation of contracts. NCO Portfolio

Mgmt. v. Gougisha, 07-604 (La. App. 5 Cir. 04/29/08), 985 So.2d 731, 735.

In this case, the AIA documents provide the written expression of the

parties’ contractual agreement, and these are the documents offered by SC&D as

evidence of the arbitration agreement. We examine these documents mindful of

the principles of contract interpretation set forth in the Civil Code. Interpretation

of a contract is the determination of the common intent of the parties. La. C.C. art.

2045. When the words of a contract are clear and explicit and lead to no absurd

consequences, no further interpretation may be made in search of the parties’

intent. La. C.C. art. 2046. The words of a contract must be given their generally

prevailing meaning; words of art and technical terms must be given their technical

meaning when the contract involves a technical matter. La. C.C. art. 2047. Each

provision in a contract must be interpreted in light of the other provisions so that

each is given the meaning suggested by the contract as a whole. La. C.C. art.

2050.

The documents utilized by the parties to confect their agreement are

construction industry standard contract forms, AIA Document A101 - 2017

24-CA-132 4

(Standard Form Agreement between Owner and Contractor) and AIA Document

A201 - 2007 (General Conditions of the Contract for Construction). Together, the

terms of these documents set forth a three step process for the resolution of

disputed claims arising from the construction agreement. First, the claim must be

submitted to an Initial Decision Maker for review. In this case, the project

architect was selected as the Initial Decision Maker. Following the initial decision,

dissatisfied parties may file for mediation administered by the American

Arbitration Association in accordance with its Construction Industry Mediation

Procedures. Should mediation fail to resolve the parties’ dispute, the parties may

then proceed to binding dispute resolution as specified in A101 § 6.2 Binding

Dispute Resolution. That section states:

§ 6.2 Binding Dispute Resolution
For any Claim subject to, but not resolved by, mediation pursuant to
Article 15 of AIA Document A201-2017 [sic], the method of binding
dispute resolution shall be as follows:
(Check the appropriate box.)

[ ] Arbitration pursuant to Section 15.4 of AIA Document A201-
2017 [sic]
[ X ] Litigation in a court of competent jurisdiction
[ ] Other (Specify)

If the Owner and Contract do not select a method of binding dispute
resolution, or do not subsequently agree in writing to a binding
dispute resolution method other than litigation, Claims will be
resolved by litigation in a court of competent jurisdiction.

The language of this section sets forth a clear choice between arbitration and

litigation as the third and final step in the dispute resolution process.2 Just as

clearly, it is only by selecting and checking the box do the parties agree to the

arbitration of their disputed claims rather than default to litigation. SC&D’s

argument that the parties had an agreement to arbitrate their dispute merely by

2
Additionally, A201 §15.4.1 states, “(i)f the parties have selected arbitration as the method for binding
dispute resolution in the Agreement, any Claim subject to, but not resolved by, mediation shall be subject
to arbitration which, unless the parties mutually agree otherwise, shall be administered by the American
Arbitration Association in accordance with its Construction Industry Arbitration Rules in effect on the
date of the Agreement.” Further, A201 §15.4.3 states, “(t)he foregoing agreement to arbitrate … shall be
specifically enforceable under applicable law in any court having jurisdiction thereof.”

24-CA-132 5

submitting their claims to the project architect for an initial decision must fail in

light of the language of the agreement. Arbitration is clearly defined and was just

as clearly rejected by the parties. There is no valid agreement to arbitrate here, and

therefore the trial court erred in granting SC&D’s motion to confirm an arbitration

award.

Dismissal of MJF’s Claims

Next, we examine whether the trial court erred in dismissing MJF’s claims

against defendants. It has long been recognized that a court will look to the import

of a pleading and not be bound by the title. Every pleading is to be construed so as

to do substantial justice. La. C.C.P. at. 865. The caption of the pleading does not

control. Rather, courts are obligated to look through the caption of a pleading in

order to ascertain its substance. Atchley v. Atchley, 01-67 (La. App. 5 Cir.

5/30/01), 788 So.2d 690, 693, writ denied, 01-1915 (La. 2/8/02), 808 So.2d 349.

See also La. C.C.P. art. 865. It is also well settled that the articles of the Code of

Civil Procedure are to be construed liberally and to implement the substantive law

and are not an end in themselves. La. C.C.P. art. 5051; Atchley, 788 So.2d at 693.

The question of MJF’s right to litigate its disputed claims was argued and

litigated before the trial court on the motion to lift the stay of proceedings and the

motion to confirm the arbitration award. We believe such argument is best

considered as a peremptory exception of no right of action which this Court may

consider on its own motion. La. C.C.P. art. 927(B); Khoobehi Properties, LLC v.

Baronne Dev. No. 2, L.L.C., 16-506 (La. App. 5 Cir. 3/29/17), 216 So.3d 287, 296,

writ denied, 17-0893 (La. 9/29/17), 227 So.3d 288. Determination of whether a

plaintiff has a right of action is a question of law. Aucoin-Hart Jewelers, Inc. v.

Metairie Shopping Ctr., L.L.C., 18-36 (La. App. 5 Cir. 5/30/18), 249 So.3d 1011,

1015.

24-CA-132 6

To determine MJF’s rights to proceed with litigation, we turn our attention

again to the language of the contract. As noted above, it is clear that the parties

elected litigation in a court of competent jurisdiction as the final step in their

contractual dispute resolution process. The question before us is whether a party

may be allowed to entirely skip the second step of this process, mediation, in favor

of litigation.

First, turning again to A101 §6.2, we note the language for selection of

binding dispute resolution applies to “any Claim subject to, but not resolved by,

mediation…”. This indicates that litigation is to be pursued only after mediation,

not before.

Next, A201 §15.2.5 states, “(t)he initial decision shall be final and binding

on the parties but subject to mediation and, if the parties fail to resolve their

dispute through mediation, to binding dispute resolution.” Again, this language

indicates that the final binding dispute resolution, here litigation, is only to be

engaged in following the initial decision and mediation.

Finally, A201 §15.2.6 and §15.2.6.1 state:

§15.2.6 Either party may file for mediation of an initial decision at
any time, subject to the terms of Section 15.6.1.

§15.2.6.1 Either party may, after the date of an initial decision,
demand in writing that the other party file for mediation within 60
days of the initial decision. If such a demand is made and the party
receiving the demand fails to file for mediation within the time
required, then both parties waive their rights to mediate or pursue
binding dispute resolution proceedings with respect to the initial
decision.
(Emphasis supplied.)

SC&D argues that these terms create a condition precedent for litigation.3

MJF argues that these terms are ambiguous, and that ambiguity should be resolved

3
The common law “condition precedent” is analogous to the civilian “suspensive condition.” States
Masonry, Inc. v. J.A. Jones Const. Co., 507 So.2d 198, 204 fn 15 (La.1987) (citing City of New Orleans v.
Texas and Pacific Railway Co., 171 U.S. 312, 18 So.Ct. 875, 43 L.Ed. 178 (1898)).

24-CA-132 7

in favor of maintaining the litigation.4 In particular, MJF argues that the language

of §15.2.6.1 in which a party may demand in writing that the other party file for

mediation is contradictory to the permissive language of §15.2.6 that allows that a

party may file for mediation at any time. MJF argues, in effect, that the language

of §15.2.6.1 supersedes that of§15.2.6 in that, once the demand letter was sent,

only SC&D could have filed for mediation. We disagree with MJS’s proposed

interpretation of the contract and find no ambiguity in the language there.

The underlying logical presumption of the AIA contract is that the parties

will proceed to mediation if one or both are dissatisfied with the initial decision of

the project architect. If neither party is dissatisfied, then the disputed claim is

resolved and there is no need to engage in the process any further. If either party is

dissatisfied with the initial decision, then they may file for mediation. §15.2.6.

The language of §15.2.6.1 allows for a party (presumably one satisfied with the

initial decision) to demand that the other (presumably dissatisfied) party instigate

the next step in the alternative dispute resolution process by filing for mediation

within a specified time frame or otherwise relinquish all rights to pursue resolution

of the claim. In other words, the demand letter triggers a timeline for the

advancement or termination of the entire dispute resolution process. Such a

provision encourages finality to the ADR process so that parties either agree to a

resolution of their dispute or proceed to the next stage of resolving their dispute in

a timely manner.

MJF’s argument that §15.2.6.1 only allows for the receiver of the demand

letter to file for mediation is illogical and unsupported by both the permissive

language of that section and the language of §15.2.6. The sending of the demand

4
In its appellant brief, MJF claims that the interpretation of these sections is a matter of first impression,
and that “(a)fter scouring case precedent in every date and federal court in America” counsel was “unable
to locate one case that interpreted whether these sections are ambiguous.” Arguably, if true, this would
seem to indicate that the many parties utilizing these well-litigated and well-tested contracts do not find
the language to be ambiguous. See 2 Bruner & O’Connor Construction Law § 5:26 (“Mediation as a
prerequisite to further dispute resolution process”).

24-CA-132 8

letter is not a prerequisite for participation in mediation, as indicated by the use of

the word “may”: “(e)ither party may … demand in writing…” and “(e)ither party

may file for mediation…”. Such language indicates that parties have three choices

following the initial decision: 1) do nothing and accept to initial decision as a final

and binding resolution of their dispute; 2) file for mediation; or, 3) send a written

demand to the other party demanding that they file for mediation, thus triggering a

timeline for advancement or termination of the entire dispute resolution process.

To interpret the contract, as MJF suggests, such that the party sending the demand

letter relinquishes its right to file for mediation would have the absurd consequence

of placing an unnecessary prohibition that would prevent a party that genuinely

wants to participate in the mediation process from doing so if the receiving party

decides against mediation.

The facts here are undisputed: following the April 20, 2023 initial decision

of the project architect, instead of filing for mediation itself, MJF sent a letter to

SC&D on April 26 demanding that SC&D file for mediation within 60 days of the

initial decision. On the same day, SC&D informed MJF that it was electing not to

file for mediation. At any time thereafter prior to the 60 day deadline, MJF could

have initiated the mediation process. It elected not to do so. The language of

§15.2.6.1 is very clear that if the 60 day timeline is triggered and neither party files

for mediation, then both parties waive their right to mediate or pursue binding

dispute resolution proceedings with respect to the initial decision.

MJF argues that its actions in filing its petition and sending the demand

letter to SC&D reflected a true intent that the parties agreed to resolve their

disputes via litigation. We decline to consider such parole evidence in face of the

clear and unambiguous language of the contract5, though we do not disagree that

parties intended litigation in a court of competent jurisdiction as the final step in

5
See La. C.C. art. 2046.

24-CA-132 9

the dispute resolution process as indicated by their selection in A101 §6.2. The

language of the contract is the best reflection of the parties’ intent, and the contract

sub judice shows that the parties agreed to resolve any disputes arising from the

contract by engaging in a three step dispute resolution process. The contract

makes no provision for skipping to the final step, here litigation in a court of

competent jurisdiction. Instead, the contract indicates there is to be a progression

from an initial decision to mediation to litigation. Mediation is a prerequisite to

litigation, and MJF elected not to pursue mediation. In so doing, it waived its right

to proceed with the litigation.

In light of the above, we find no error in the trial court’s dismissal of MJF’s

petition, and, on an exception of no right of action, find that MJF contractually

waived its right to litigate its claims against SC&D when it failed to file for and

participate in mediation. We also find no error in the trial court’s decision to

dismiss the claims instead of forcing them to participate in mediation, as this is

also consistent with the language of the contract.

Accordingly, we reverse that part of the trial court judgment granting

SC&D’s Motion to Confirm Arbitration Award. In all other respects, the judgment

of the trial court is affirmed.

REVERSED IN PART; AFFIRMED IN PART

24-CA-132 10

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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JUDGES 101 DERBIGNY STREET (70053)
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OCTOBER 30, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
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24-CA-132
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. RAYMOND S. STEIB, JR. (DISTRICT JUDGE)
ALBERT J. NICAUD (APPELLANT) JEFFREY M. SIEMSSEN (APPELLANT) CHARLES K. CHAUVIN (APPELLEE)

MAILED
BRET D. GUEPET, JR. (APPELLANT)
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