Thompson Tree & Spraying Service, Inc. D/B/A Live Oak Landscapes v. White-Spunner Construction, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-1187

THOMPSON TREE & SPRAYING SERVICE, INC., D/B/A LIVE OAK
LANDSCAPES

VERSUS

WHITE-SPUNNER CONSTRUCTION, INC., ET AL.

**********
APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 236,974
HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
John D. Saunders, Judges.

REVERSED AND REMANDED.

John M. Madison, III
Kracht, Frazier, Madison, LLP
5149 Bluebonnet Boulevard
Baton Rouge, LA 70809-3076
Telephone: (225) 293-4568
COUNSEL FOR:
Plaintiff/Appellant - Thompson Tree & Spraying Service, Inc., d/b/a
Live Oak Landscapes

Kevin P. Riche
Watson, Blanche, Wilson & Posner
P. O. Drawer 2995
Baton Rouge, LA 70821-2995
Telephone: (225) 387-5511
COUNSEL FOR:
Defendants/Appellees - Wal-Mart Stores, Inc., Hartford Fire
Insurance Company, and White-Spunner Construction, Inc.

THIBODEAUX, Chief Judge.

In this dispute between a general contractor and a sub-contractor over

the payment for the work completed, the sub-contractor (Appellant), Thompson Tree

& Spraying Service, Inc., doing business as Live Oak Landscapes (Live Oak), asserts

that the trial court erred by granting a summary judgment and an exception of

improper venue in favor of Appellees, White-Spunner Construction, Inc. (the general

contractor), Hartford Fire Insurance Company (the insurer), and Wal-Mart Stores, Inc.

(the owner of the project). Appellees filed a motion to dismiss Live Oak’s appeal but

did not file an answer to the appeal. Because we find that the trial court rendered an

immediately-appealable final judgment in this matter, we deny the Appellees’ motion

to dismiss the appeal. Because we find that Live Oak timely filed a statement of

claim or privilege, we reverse the trial court’s summary judgment. Finally, because

we find that the forum selection clause in the contract between Live Oak and White-

Spunner is against Louisiana public policy, we reverse the grant of exception of

improper venue.

I.

ISSUES

(1) We shall consider whether the trial court’s grant of
Appellees’ motion for “partial” summary judgment
was a partial final judgment requiring designation of
“final judgment” to be appealable, where all the
parties and all the claims in this suit have been
dismissed;

(2) After concluding, for the reasons expressed below,
that the judgment in this matter was final and
immediately-appealable, we shall consider whether
the sub-contractor filed its statement of claim or
privilege timely where a notice of contract and, what
could be considered a notice of termination, were
filed, but both lacked the legal description of the
property and where the contractor filed his statement

of claim or privilege over a year after the purported
notice of termination;

(3) We shall finally consider whether Louisiana has a
strong public policy against enforcement of forum
selection clauses thereby limiting the freedom of the
parties to contractually select the venue before
litigation begins where the selected venue is in
violation of Louisiana Code of Civil Procedure.

II.

FACTS AND PROCEDURAL HISTORY

This dispute arises out of the Wal-Mart Super-Center project in

Alexandria, Louisiana. The general contractor for the project, White-Spunner,

entered into a construction contract with Wal-Mart and filed a notice of the contract

in August of 2007 in the mortgage records of Rapides Parish.

Then, White-Spunner entered into a sub-contract with Live Oak for

landscape and irrigation works. In June of 2008, White-Spunner filed a document,

titled “Certificate of Substantial Completion” in the mortgage records. In September

of 2009, Live Oak filed a statement of claim or privilege (lien) against the project in

the mortgage records because, allegedly, it was not paid for the work it satisfactorily

performed. In December of 2009, Live Oak filed this suit. Live Oak alleged a breach

of contract against White-Spunner. Live Oak sought to enforce its claims under the

Louisiana Private Works Act (LPWA) against Wal-Mart and Hartford.

Appellees filed, in addition to other alternative exceptions, an exception

of improper venue and a motion for partial summary judgment. In support of the

exception, Appellees pointed to the forum selection clause in the contract between

White-Spunner and Live Oak. The clause identifies Mobile County, Alabama, as the

place of contract formation and Mobile County Circuit Court as the forum “for any

litigation between the parties.”

2

Without an explicit ruling as to whether the venue was proper for the

LPWA claims, the trial court held that Live Oak did not timely file its statement of

claim or privilege. It reasoned that because both the notice of contract and the notice

of termination were equally defective in that neither contained a legal description of

the property, Live Oak had sixty days from the substantial completion of the work to

file the lien. Because more than sixty days elapsed from the substantial completion

before Live Oak filed its lien, the filing was untimely. Thus, the trial court dismissed

the LPWA claims.

After this dismissal, only the breach of contract claim remained. The

trial court then held that under the forum selection clause, the proper venue lies in an

Alabama court and, thus, dismissed the contract breach claim. These rulings

dismissed all of the parties and all of Live Oak’s claims.

III.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo. Guilbeaux v.

Times of Acadiana, Inc., 96-360 (La.App. 3 Cir. 3/26/97), 693 So.2d 1183, writ

denied, 97-1840 (La. 10/17/97), 701 So.2d 1327. Summary judgment shall be

rendered if the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue of material

fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art.

966(B).

3

IV.

LAW AND DISCUSSION

(1) Motion to Dismiss the Appeal

An interlocutory judgment “does not determine the merits but only

preliminary matters in the course of the action.” La.Code Civ.P. art. 1841. A final

judgment “determines the merits in whole or in part.” Id.

A. A final judgment may be rendered and signed by
the court, even though it may not grant the successful party
or parties all of the relief prayed for, or may not adjudicate
all of the issues in the case, when the court:

(1) Dismisses the suit as to less than all
of the parties, defendants, third party
plaintiffs, third party defendants, or
intervenors.

....

B. (1) When a court renders a partial judgment or
partial summary judgment or sustains an exception in part,
as to one or more but less than all of the claims, demands,
issues, or theories, whether in an original demand,
reconventional demand, cross-claim, third party claim, or
intervention, the judgment shall not constitute a final
judgment unless it is designated as a final judgment by the
court after an express determination that there is no just
reason for delay.

La.Code Civ.P. art. 1915 (emphasis added). The statute further provides that if the

trial court does not make such a determination and designation, the judgment may not

be immediately appealed. Id.

As this court has already explained, generally, La.Code Civ.P. art.

1915(A) applies to the dismissal of parties, and La.Code Civ.P. art. 1915(B) applies

to the resolution of issues. Jeansonne v. New York Life Ins. Co., 08-932 (La.App. 3

Cir. 5/20/09), 11 So.3d 1160. Thus, when one party receives a partial relief and is not

dismissed from the suit, the judgment is interlocutory in the absence of the court’s

designation as final. Id. Yet, “[a] judgment that dismisses a party from a suit without
4

adjudicating all of the issues in a case is a partial final judgment subject to an

immediate appeal without the need of the trial court’s certification as such.” Id. at

1168 (citing La.Code Civ.P. art. 1915(A)(1); Cavalier v. Rivere’s Trucking, Inc.,

03-2197 (La.App. 1 Cir. 9/17/04), 897 So.2d 38).

For example, a plaintiff filed suit against multiple parties. Jeansonne,

11 So.3d 1160. The trial court granted a summary judgment and an exception of

peremption in favor of some parties, dismissing them from the suit. Id. The court

granted motions for summary judgment in favor of the other parties several years

later. Id. Plaintiff appealed seeking review of the recently-granted motions and the

ones granted several years previously. Id. Plaintiff maintained that because the trial

court did not designate the old rulings as final judgments, they were interlocutory and

not immediately-appealable. Id. This court disagreed stating that to follow the

plaintiff’s reasoning would negate La.Code Civ.P. art. 1915(A)(1). Id. Thus, a

judgment that dismisses a party from the suit is an immediately-appealable judgment.

Id.

Here, the only causes of action Live Oak filed against Wal-Mart and

Hartford were based on LPWA. The trial court found that Live Oak did not timely

file its statement of claim or privilege and dismissed the causes of action. Thus, the

trial court dismissed all of the claims against Wal-Mart and Hartford, thereby

dismissing them from the suit. The court then, relying on the forum selection clause,

dismissed the contract breach claim because of improper venue. Because the correct

venue, according to the trial court, lies outside of Louisiana making it impossible to

transfer the action to the court of proper venue, the court dismissed the contract

breach claim. Thus, according to the trial court’s judgment, all parties and all claims

in this suit have been dismissed. Therefore, the judgment was final and did not

5

require a designation to be immediately-appealable. Based on these considerations,

we deny Appellees’ motion to dismiss the appeal.

(2) Timeliness of the Statement of Claim or Privilege

A. If a notice of contract is properly and timely filed in the
manner provided by R.S. 9:4811,1 the persons to whom a
claim or privilege is granted by R.S. 9:4802 shall within
thirty days after the filing of a notice of termination of the
work:

1
La.R.S. 9:4811 provides:

A. Written notice of a contract between a general contractor and an owner shall be filed as
provided in R.S. 9:4831 before the contractor begins work, as defined by R.S. 9:4820, on the
immovable. The notice:

(1) Shall be signed by the owner and contractor.

(2) Shall contain the legal property description of the immovable
upon which the work is to be performed and the name of the project.

(3) Shall identify the parties and give their mailing addresses.

(4) Shall state the price of the work or, if no price is fixed, describe
the method by which the price is to be calculated and give an estimate
of it.

(5) Shall state when payment of the price is to be made.

(6) Shall describe in general terms the work to be done.

B. A notice of contract is not improperly filed because of an error in or omission from the
notice in the absence of a showing of actual prejudice by a claimant or other person acquiring rights
in the immovable. An error or omission of the identity of the parties or their mailing addresses or
the improper identification of the immovable shall be prima facie proof of actual prejudice.

C. A notice of contract is not improperly filed because a proper bond is not attached.

D. A general contractor shall not enjoy the privilege granted by R.S. 9:4801 if the price of
the work stipulated or reasonably estimated in his contract exceeds twenty-five thousand dollars
unless notice of the contract is timely filed.

E. If a notice of contract is mutually released by the owner and contractor, then the contract
will have no effect, provided no work has begun on the land or materials placed on the site. The
recorder of mortgages shall immediately cancel the contract upon the filing of the mutual release and
an affidavit made by a registered or certified engineer or surveyor, licensed architect, or building
inspector employed by the city or parish or by a lending institution chartered under federal or state
law, that states he inspected the immovable at a specified time subsequent to the filing of the contract
and work had not been commenced and no materials placed at the site. If the contract, or a certified
copy, is then refiled, the refiling date shall become the effective date for privilege for work done
pursuant to the contract in accordance with R.S. 9:4820(A)(1).

6

(1) File a statement of their claims or
privilege.

(2) Deliver to the owner a copy of the
statement of claim or privilege. If the address
of the owner is not given in the notice of
contract, the claimant is not required to
deliver a copy of his statement to the owner.

B. A general contractor to whom a privilege is granted by
R.S. 9:4801 of this Part, and whose privilege has been
preserved in the manner provided by R.S. 9:4811, shall file
a statement of his privilege within sixty days after the filing
of the notice of termination or substantial completion of the
work.

C. Those persons granted a claim and privilege by R.S.
9:4802 for work arising out of a general contract, notice of
which is not filed, and other persons granted a privilege
under R.S. 9:4801 or a claim and privilege under R.S.
9:4802 shall file a statement of their respective claims and
privileges within sixty days after:

(1) The filing of a notice of termination of the
work; or

(2) The substantial completion or
abandonment of the work, if a notice of
termination is not filed.

La.R.S. 9:4822. Other Louisiana courts, as well as the federal appeals court, fifth

circuit, have considered the above statute. These courts concluded that if the notice

of contract is filed, but the notice of termination is not filed or is deficient, neither the

sixty-day, nor the thirty-day period start to run. Bernard Lumber Co., Inc. v. Lake

Forest Constr. Co., Inc., 572 So.2d 178 (La.App. 1 Cir. 1990); Rowley Co., Inc. v.

Southbend Contractors, Inc., 517 So.2d 1260 (La.App. 4 Cir. 1987); In re Whitaker

Constr. Co., Inc., 439 F.3d 212 (5th Cir. 2006).

For example, where the notice of contract and the notice of termination

were both filed, but neither one contained a legal description of the property, the

fourth circuit held that the time period under the LPWA never commenced. Rowley,

7

517 So.2d 1260. Relying on La.R.S. 9:4822(E)2 and La.R.S. 9:4831(C)3 the fourth

circuit concluded that a notice of termination must contain a legal description of the

property to be effective. Id. Because the notice of termination did not contain the

legal description it was ineffective. Id. The court further found that the notice of

contract was not ineffective even though it did not contain the legal description of the

property. Id. The court supported this conclusion with La.R.S. 9:4811(B). Id. The

statute stated that a notice of contract is not improperly filed because of an error or

omission unless an actual prejudice is shown by a claimant.4 Rowley, 517 So.2d

1260.

Where the notice of contract was filed but the notice of termination was

not, the first circuit held that the tolling period for filing a statement of claim or

privilege was not activated. Bernard Lumber Co., Inc., 572 So.2d 178. The party

2
A notice of termination of the work:

(1) Shall reasonably identify the immovable upon which the work was performed and
the work to which it relates. If the work is evidenced by notice of a contract, reference to the
notice of contract as filed or recorded, together with the names of the parties to the contract,
shall be deemed adequate identification of the immovable and work.

La.R.S. 9:4822(E)(1)
3
La.R.S. 9:4831 reads:

A. The filing of a notice of contract, notice of termination, statement of a claim or privilege,
or notice of lis pendens required or permitted to be filed under the provisions of this Part is
accomplished when it is filed for registry with the recorder of mortgages of the parish in
which the work is to be performed. The recorder of mortgages shall inscribe all such acts
in the mortgage records.

B. For purposes of this Part, the recorder of mortgages includes the office of the clerk of
court and ex officio recorder of mortgages.

C. Each filing made with the recorder of mortgages pursuant to this Part which contains a
reference to immovable property shall contain a description of the property sufficient to
clearly and permanently identify the property. A description which includes the lot and/or
square and/or subdivision or township and range shall meet the requirement of this
Subsection. Naming the street or mailing address without more shall not be sufficient to
meet the requirements of this Subsection.
4
The current version of the statute also reads that “[a]n error or omission of the identity of
the parties or their mailing addresses or the improper identification of the immovable shall be prima
facie proof of actual prejudice.” La.R.S. 9:4811(B).

8

who failed to file the notice of termination argued that the legislature did not intend

for there to be an indefinite period for filing the statement of claim or privilege. Id.

The legislature intended, the party argued, La.R.S. 9:4822(C) with its sixty-day time

limit to apply in situations where the notice of contract but no notice of termination

have been filed. Id.

The court rejected this argument. First, quoting the official comments

to La.R.S. 9:4822, the court stated: “[i]f a notice of contract is filed, a notice of

termination is always required to commence the 30 day time for filing.” Id. at 181.

The first circuit then reasoned that the statutory procedure of filing the notice of

contract and the notice of termination was designed to cut off “valid assertions of any

potential claims of privilege.” Id. (emphasis added). Thus, to take advantage of the

statute, the statute requires the owner to take affirmative actions. Id. Failure to take

the appropriate actions places the burden of consequences on the party responsible

for the failure. Bernard Lumber Co., Inc., 572 So.2d 178.

In another case, after finding an ambiguity in the statute, the federal fifth

circuit, relying on the Louisiana jurisprudence and the official comments to the

statute, also concluded that where the notice of contract has been filed but the notice

of termination has not, the tolling period never started to run. In re Whitaker Constr.

Co., Inc., 439 F.3d 212. The federal court rejected the suggestion that La.R.S.

9:4822(C) is a “catch-all” category and should apply in this situation. Id. The fifth

circuit concluded that such “interpretation does not follow directly from the statutory

language, and it is inconsistent with” the Louisiana jurisprudence and the official

comments to the statute. Id. at 226.

On the other hand, where the notice of contract that did not contain the

legal description of the property was filed but the notice of termination was never

filed, more recently, the first circuit applied a sixty-day tolling period which
9

commenced on the date of substantial completion. Norman H. Voelkel Constr., Inc.

v. Recorder of Mortgages for E. Baton Rouge Parish, 02-1153 (La.App. 1 Cir.

6/27/03), 859 So.2d 9, writs denied, 03-1962, 03-2133 (La. 10/31/03), 857 So.2d 486,

488. The court did not distinguish the case from the previous jurisprudence (and,

under the civilian tradition, it does not have to) but relied on La.R.S. 9:4811(B). Id.

That section states that although an error in the notice of contract does not make the

filing of the notice improper unless there is a showing of actual prejudice, an

improper identification of the immovable is a prima facie proof of actual prejudice.

La.R.S. 9:4811(B). In the footnote the court stated that the plaintiff sub-contractor

did not rebut the presumption of actual prejudice. Norman H. Voelkel Constr., Inc.,

859 So.2d 9.

The court found that in the absence of legal description, the notice of

contract was improper, and, therefore, the court applied La.R.S. 9:4822(C). Id.

Under this section, in situations where no notice of contract and no notice of

termination have been filed, persons may file a claim or privilege within sixty days

from the date of substantial completion or abandonment of the work. La.R.S.

9:4822(C). Because the sub-contractor did not file his claim or privilege within sixty

days of substantial completion, the court held the filing untimely. Norman H. Voelkel

Constr., Inc., 859 So.2d 9.

We find that in this case La.R.S. 9:4822(A) applies. This subsection of

the statute governs situations in which a notice of contract has been filed. The

language of this subsection, the official comments to the statute, and the above-cited

jurisprudence, all lead to the conclusion that if the notice of termination has not been

filed or was deficient, then the tolling period never starts to run.

Louisiana Revised Statutes 9:4822(C) governs those situations where the

notice of contract has not been filed. Louisiana Revised Statutes 9:4811(B) states
10

that an improper identification of an immovable is prima facie proof of actual

prejudice which would make the filing of the notice of contract improper.

Nevertheless, the effect of a presumption is to relieve “him in whose favor it exists

from the necessity of any proof; but may none the less [sic] be destroyed by rebutting

evidence.” La.R.S. 15:432 (emphasis added).

Under the LPWA, the owner of the immovable has unlimited personal

liability to those who perform the work on the property unless the owner timely files

a notice of contract and the general contractor files a proper bond. La.R.S.

9:4802(C). Thus, the primary purpose of a notice of contract is to relieve the owner

of potentially unlimited liability under the LPWA. To take advantage of this limit on

liability, the owner must timely file a proper notice of contract. The notice of contract

must contain a proper identification of the property. Failure to properly identify the

property creates a presumption in favor of the person who is protected under LPWA,

here the sub-contractor, that the notice of contract was improperly filed. This means

that the owner, presumptively, is not relieved of unlimited personal liability.

Therefore, the presumption is there for the benefit of the claimant, here the sub-

contractor, against the owner.

Thus, in situations where the sub-contractor wants to reach the owner for

the purposes of liability, La.R.S. 9:4811(B) allows him to dispense with proof of

actual prejudice to himself where the notice of contract did not properly identify the

immovable. What Appellees propose to do is to use the presumption that was created

in favor of the sub-contractor to his detriment. In essence, they argue that because

they did not properly do what they were supposed to do, i.e., to include the legal

description of the immovable in the notice of contract, they should benefit from their

own failure. This court declines to accept such a position.

11

Even if we were to construe the presumption against Live Oak, that

presumption is rebuttable by proof that the facts are actually otherwise. La.R.S.

15:432. Here, Live Oak submitted proof that it was not prejudiced by the failure to

include a legal description in the notice of contract. Therefore, even if we were

inclined to apply the presumption against Live Oak, that action would be of no avail

to Appellees.

Based on the above discussion, this court concludes that the failure to

include a proper identification of the immovable in the notice of contract does not

make the notice ineffective under the facts of this case.5

We agree with our sister-jurisdictions which concluded that where the

notice of contract was filed, but the notice of termination was not filed or was

defective, the applicable tolling period for filing a statement of claim or privilege is

in La.R.S. 9:4822(A). To begin the tolling period, a notice of termination must be

filed. If a notice of termination was not filed or was defective, then the tolling period

does not begin to run. As the first circuit aptly pointed out, because the filing

procedures specified in La.R.S. 9:4822 were designed to cut off valid claims, to take

advantage of the statute the owner must take affirmative actions. Failure to take the

actions places the burden of the consequences on the party responsible for the failure.

Based on these considerations, Live Oak’s statement of claim or

privilege was timely.

5
We caution a potential inference that the failure to include a proper identification of the
immovable would not make the notice of contract ineffective with respect to the owner’s personal
liability. The statute is very clear that the presumption would be in favor of the claimant that he
suffered actual prejudice from the failure to include the proper identification. Thus, under the
statute, it would be the owner’s burden to rebut that presumption and to make the notice of contract
filing effective to limit the owner’s personal liablity.

12

(3) Forum Selection Clause and Venue

Because Appellees did not answer the appeal, we do not consider

whether the venue was proper for Live Oak’s claims under LPWA.6 Because we

reverse the trial court’s dismissal of Live Oak’s claims under LPWA and because the

trial court held that the contract claims should be litigated in Alabama, we now need

to consider whether the forum selection clause is enforceable.

“An objection to the venue may not be waived prior to the institution of

the action.” La.Code Civ.P. art. 44(A).7

It being against the public policy of the state of Louisiana
to allow a contractual selection of venue or jurisdiction
contrary to the provisions of the Louisiana Code of Civil
Procedure, no provision of any contract which purports to
waive these provisions of venue, or to waive or select
venue or jurisdiction in advance of the filing of any civil
action, may be enforced against any plaintiff in an action
brought in these courts.

La.R.S. 51:1407(A).

The legislature finds that, with respect to construction
contracts, subcontracts, and purchase orders for public and
private works projects, when one of the parties is domiciled
in Louisiana, and the work to be done and the equipment
and materials to be supplied involve construction projects
in this state, provisions in such agreements requiring
disputes arising thereunder to be resolved in a forum
outside of this state or requiring their interpretation to be
governed by the laws of another jurisdiction are inequitable
and against the public policy of this state.

La.R.S. 9:2779(A).

There are several appellate courts which have concluded that forum

selection clauses are legal and binding in Louisiana unless the resisting party clearly

6
Because the trial court issued a judgment on the merits, it implicitly held that the venue was
proper with respect to these claims.
7
An interesting historical perspective regarding the evolution of La.Code Civ.P. art. 44(A)
from Article 162 of the Code of Practice of 1870 and the associated jurisprudence can be found in
Eric Michael Liddick, Give Me Freedom of Contract or Give Me Death: The Obscurity of Article
44(A) of the Louisiana Code of Civil Procedure, 54 LOY . L. REV . 602 (2008).

13

shows that the enforcement would be unreasonable and unjust, that the clause arises

from fraud or overreaching, or that the enforcement would contravene a strong public

policy. E.g., Case Atl. Co. v. Blount Bros. Constr., Inc., 42,251 (La.App. 2 Cir.

6/20/07), 960 So.2d 1274, writ denied, 07-1541 (La. 10/12/07), 965 So.2d 403. The

supreme court has not addressed the issue explicitly, but has touched upon it in two

cases. In Lejano v. Bandak, 97-388 (La. 12/12/97), 705 So.2d 158, cert. denied,

Lejano v. K.S. Bandak Assuranceforeningen Gard, 525 U.S. 815, 119 S.Ct. 52 (1998),

the supreme court addressed a forum selection clause in an admiralty action. Citing

Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522 (1991), the court

held that “in admiralty cases, federal law governs the enforceability of forum

selection clauses.” Lejano, 705 So.2d 158, 166. Thus, applying the federal law, the

court held that forum selection clauses are generally enforceable. Id.

In Power Marketing Direct, Inc. v. Foster, 05-2023 (La. 9/6/06), 938

So.2d 662, the court cited Lejano for the proposition that in Louisiana forum

selection clauses are generally enforceable. This case is challenging for two reasons.

First, Lejano applied the federal law and, therefore, cannot be cited for the statement

of Louisiana law. Thus, the supreme court is “announcing” the new law without a

citation to anything. Second, this pronouncement in Power Marketing is dictum. The

court did not have to decide whether the clause was or was not enforceable because

the party claiming unenforceability of the clause has already admitted the allegations

of jurisdiction and venue in the forum selected under the contract. Thus, the party

waived the objection to venue after the litigation commenced.

This circuit also made a statement that forum selection clauses are

generally enforceable in Calahan v. Haspel, 99-44 (La.App. 3 Cir. 5/5/99), 732 So.2d

796. The case involved a rental of residential property. Id. The court had to consider

whether the forum selection clause conferred personal jurisdiction over the defendant
14

on this court. Id. Holding that it did not, because the defendant did not have enough

contacts with this State, this court stated that forum selection clauses are legal and

binding, unless held unreasonable under the circumstances. Id. The forum selection

clause selecting venue in Louisiana was held unenforceable in this case for the same

reasons the court could not assert personal jurisdiction over the defendant. Id.

One of the examples from our sister-jurisdictions on which Appellees

relied heavily in their brief is Case Atlantic Co., 960 So.2d 1274. There, the contract

was between the Department of Transportation and Development (DOTD) and Blount

to build a bridge. Id. The contract incorporated by reference a provision that any

litigation related to the contract, bidding, or award thereof shall be in Baton Rouge

Parish. Id. Blount sub-contracted with Case Atlantic. Id. Case sent lien notices to

DOTD, alleging Blount failed to pay. Id. DOTD withheld two payments from

Blount. Case Atlantic Co., 960 So.2d 1274. Case filed a concursus proceeding,

naming Blount, DOTD, and DOTD’s surety as defendants. Id. DOTD deposited the

money withheld. Id. Blount filed a cross-claim against DOTD, claiming DOTD

wrongly withheld the payment. Id. DOTD responded with an exception of improper

venue. Id. Blount contended that the venue for concursus proceedings was in Caddo

Parish and was mandated by the statute (citus of the immovable), thus, the cross claim

should also be litigated there. Id.

The court disagreed: “Blount’s cross-claim is not a concursus but a

breach of contract claim.” Case Atlantic Co., 960 So.2d 1274, 1278. The court was

cognizant of the competing policy interests. Id. It noted that the law disfavors

multiplicity of actions and piecemeal litigation. Id. The court weighed this policy

against the following considerations: concursus is a summary proceeding and a

contract claim is an ordinary action; thus, Case Atlantic would be inconvenienced if

its summary proceeding were converted into an ordinary action. Id. The court also
15

noted the enormous benefit accrued to Blount from contracting with DOTD. Id. This

benefit dwarfed Blount’s potential inconvenience of litigation in another parish. Id.

There are two sources of law in Louisiana: legislation and custom, with

legislation superceding custom in every instance. Doerr v. Mobil Oil Corp., 00-947

(La. 12/19/00), 774 So.2d 119 (citing La.Civ.Code arts. 1, 3). “Judicial decisions, on

the other hand, are not intended to be an authoritative source of law in Louisiana.”

Id. at 128 (citing A.N. YIANNOPOULOS, LOUISIANA CIVIL LAW SYSTEM § 35 (1977)).

Because “‘one of the fundamental rules of [the civil law tradition] is that a tribunal

is never bound by the decisions which it formerly rendered: it can always change its

mind,’ 1 Marcel Planiol, Treatise on the Civil Law § 123, (La. State Law Inst.

trans.1959) (12th ed.1939), prior holdings by this court are persuasive, not

authoritative, expressions of the law.” Id. at 128-29 (citing A.N. YIANNOPOULOS,

LOUISIANA CIVIL LAW SYSTEM § 35 (1977)). Thus, “a prior judicial

(mis)construction of a statute does not ‘insulate’ the Louisiana judge . . . from

returning to the legislation itself to ascertain its correct meaning and application.”

Albert Tate, Jr., Civilian Methodology in Louisiana, 44 TUL. L. REV. 673, 678 (1976).

As Justice Dennis explained, in Louisiana, legislation “is the primary

source of law, and precedent serves merely as an example of a prior judge’s

interpretation and application of legislated law.” James L. Dennis, Interpretation &

Application of the Civil Code & the Evaluation of Judicial Precedent, 54 LA. L. REV.

1, 3 (1993). The function of every legal concept contained in the statutes “is to

delimit contradictory or competing interests, and to decide the contest between two

or more such interests.” Id. at 9.

In creating a legal rule or concept, the legislator also
considers ethical, religious, moral interests, the interest of
justice, of equity, of the public, and the highest interests of
human kind. Although we may disagree vigorously over
which interest should prevail or be vanquished in a
16

particular case, it is self-evident that every statute affects
these kinds of interests.

Id. at 9-10 (footnotes omitted). When the legislature has weighed the involved

interests and formed a rule based on this evaluation, “the judge is absolutely bound

by the legislator’s delimitation of those interests, no matter if the judge himself would

reach a different result.” Id. at 10.

Justice Dennis concluded that “[i]t should be evident that the common-

law or case-law theory of precedent is incompatible in many ways with the legal

method of deciding a case . . . .” Id. at 14. Furthermore, the civil law method should

be applied to determine “whether the case should be imitated in a subsequent

decision.” Id. at 15. Thus, “if a judge ignores a clearly applicable Code rule and

follows another jurisdiction’s case, his example of using the wrong starting point or

source of law should not be influential at all.” James L. Dennis, Interpretation &

Application of the Civil Code & the Evaluation of Judicial Precedent, 54 LA. L. REV.

1, 15 (1993).

The law should be applied as written if it is clear, unambiguous and does

not lead to absurd consequences. Martin v. Safeway Ins. Co. of La., 08-1419

(La.App. 3 Cir. 4/15/09), 26 So.3d 777. “Laws on the same subject matter must be

interpreted in reference to each other.” La.Civ.Code art. 13. This means that where

statutory provisions are in conflict, laws in pari materia should be construed together

and harmonized, if possible. Killeen v. Jenkins, 98-2675 (La. 11/5/99), 752 So.2d

146.

The courts presume that the legislature “enacted the law with full

knowledge of all other laws pertaining to the same subject matter” and that “every

provision of law was intended to serve some useful purpose . . . .” Martin, 26 So.3d

at 780 (quoting Ransome v. Ransome, 01-2361 p. 8 (La.App. 1 Cir. 6/21/02), 822

17

So.2d 746, 754). Courts do not presume that “the lawmaker intended for any part

of a law to be meaningless . . . .” Id.

The public policy of the State is a limit on one’s freedom to form an

enforceable contract. See M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct.

1907 (1972). Our legislature, the primary and superior source of the law in this state,

has declared: “[a]n objection to the venue may not be waived prior to the institution

of the action.” La.Code Civ.P. art. 44(A). In addition, our legislature stated in

La.R.S. 51:1407(A) (emphasis added):

It being against the public policy of the state of Louisiana
to allow a contractual selection of venue or jurisdiction
contrary to the provisions of the Louisiana Code of Civil
Procedure, no provision of any contract which purports to
waive these provisions of venue, or to waive or select
venue or jurisdiction in advance of the filing of any civil
action, may be enforced against any plaintiff in an action
brought in these courts.

The public policy stated in La.R.S. 51:1407(A) is not being declared in

that statute. Instead, the legislature refers to the already-existing public policy and

applies it to the situations the Unfair Trade Practices Act (UTPA) addresses: “it

being against the public policy . . . .” The Louisiana Code of Civil Procedure Article

44(A) by stating that an objection to venue may not be waived prior to the institution

of an action is an explicit expression of the legislative will from which La.R.S.

51:1407(A) derives its policy statement. Therefore, that the restatement of the policy

appears in the UTPA does not mean it is not a public policy outside of UTPA.

Moreover, the language in La.R.S. 51:1407(A) such as “any contract,” “any civil

action,” and “any plaintiff” indicates that the policy is far from being limited to the

claims based on the UTPA.

The question remains, nevertheless, of the significance of La.R.S. 9:2779

where the legislature declared forum selection clauses against public policy when the

18

construction contract involves a Louisiana domiciliary and the work is to be done in

Louisiana. At first blush, this statute implies that forum selection clauses are

unenforceable as against public policy only under certain circumstances. In the case

of La.R.S. 9:2779, only when one of the parties is a Louisiana domiciliary and the

work is to be done in Louisiana is it so.

Yet, this interpretation would render La.Code Civ.P. art. 44(A)

nugatory.8 This interpretation, by implicitly making all forum selection clauses

generally enforceable, would also conflict with the explicit pronouncement in La.R.S.

51:1407(A) that it is against public policy of Louisiana to allow contractual selection

of venue contrary to the Code of Civil Procedure.

On the other hand, if La.Code Civ.P. art. 44(A), which is clear and

unambiguous, means exactly what it plainly states, why would the legislature enact

La.R.S. 9:2779? Louisiana Code of Civil Procedure Article 44(A)’s prohibition of

forum selection has a temporal component to it; it prohibits waiver of the objection

to venue “prior to the institution of the action.” (Emphasis added). Thus, the Code

of Civil procedure allows the waiver of objections to venue after the suit is filed,

unless it is one of the actions specified in La.Code Civ.P. art 44(B).

On the other hand, if the requirements of La.R.S. 9:2779 are satisfied,

then the venue selection outside of this state is against public policy. “The cause of

an obligation is unlawful when the enforcement of the obligation would produce a

result prohibited by law or against public policy.” La.Civ.Code art. 1968. “An

obligation cannot exist without a lawful cause.” La.Civ.Code art. 1966. Thus, the

parties whose circumstances fit under La.R.S. 9:2779 may not consent to venue

8
In their supplemental brief, Appellees would limit La.Code Civ.P. art. 44(A) to those
situations listed in La.Code Civ.P. art. 44(B). This interpretation would also render La.Code Civ.P.
art. 44(A) nugatory. Moreover, La.Code Civ.P. art. 44(A) disallows waiver of objection to venue
before an action is instituted. On the other hand, La.Code Civ.P. art. 44(B) covers those situations
in which venue may never be waived whether before or after the litigation commences.

19

outside of this state even after the litigation has started as such an agreement would

violate the public policy of this State.

Moreover, unlike La.Code Civ.P. art. 44(A) which controls only venue

issues, La.R.S. 9:2779, in addition to prohibiting the selection of forum outside of

Louisiana, forbids application of another state’s laws to decide the case. Thus, while

La.R.S. 9:2779 and La.Code Civ.P. art. 44(A) address similar issues, La.R.S. 9:2779

has a more comprehensive coverage while including only a certain class of litigants,

and La.Code Civ.P. art. 44(A) applies to all litigants but covers the limited area of

venue. Unlike La.R.S. 9:2779, La.Code Civ.P. art. 44(A) does not address the

conflict of laws issues.

Because our goal, under the statutory interpretation principles, is not to

render a statute nugatory and to construe together and harmonize, if possible, laws in

pari materia, we conclude that the legislature broadened the policy clearly stated in

La.Code Civ.P. art. 44(A) by enacting La.R.S. 9:2779 but applied that broad policy

to the litigants that satisfy its requirements. The litigants who do not satisfy the

requirements of La.R.S. 9:2779 may not claim its broad protection; nevertheless, they

may rely on the more limited in scope La.Code Civ.P. art. 44(A).

This case does not fall within La.R.S. 9:2779 because none of the parties

in this case is a Louisiana domiciliary. Thus, the general provisions of the Code of

Civil Procedure with respect to venue apply. La.Code Civ.P. art. 44(A) clearly and

unambiguously prohibits waiver of the Code’s venue provisions prior to the

institution of the action. The contract at issue here purported to waive the venue

provisions of Louisiana Code of Civil Procedure in advance of the litigation.

Therefore, the waiver is not enforceable.

We decline to accept the holdings from our sister-jurisdictions that make

forum selection clauses enforceable in this state. None of those decisions examined
20

the primary source of law of this state, i.e., La.Code Civ. P. art. 44(A), and relied,

instead, on the Supreme Court’s pronouncements. Yet, it is the Supreme Court which

declared that forum selection clauses are unenforceable when the “enforcement would

contravene a strong public policy of the forum in which the suit is brought, whether

declared by statute or by judicial decision.”9 M/S Bremen v. Zapata Off-Shore Co.,

407 U.S. 1, 92 S.Ct. 1907, 15, 1916 (1972).

Thus, the starting point of any judicial decision on the issue must begin

with the examination of whether there exists a public policy prohibiting enforcement

of forum selection clauses in Louisiana. This court has failed to find any such case.

Thus, we adopt the words of Justice Dennis: “if a judge ignores a clearly applicable

Code rule and follows another jurisdiction’s case, his example of using the wrong

starting point or source of law should not be influential at all.” James L. Dennis,

Interpretation & Application of the Civil Code & the Evaluation of Judicial

Precedent, 54 LA. L. REV. 1, 15 (1993).

The examination of the two supreme court cases which touched upon the

issue of forum selection clauses, leads to the conclusion that they are also of limited,

if any, consequence. First, in Lejano, 705 So.2d 158, the supreme court applied the

federal law, not Louisiana law, as it was an admiralty action. Second, in Power

Marketing Direct, Inc., 938 So.2d 662, there is one sentence that forum selection

clauses are enforceable in Louisiana with a citation to Lejano. This pronouncement

in Power Marketing Direct was a dictum because the party insisting on the

unenforceability of the forum selection clause consented to the jurisdiction of another

court after the litigation began.

9
In fact, there are several states where the enforcement of forum selection clauses is against
public policy.

21

Finally, consistent with the civil law tradition where the tribunal can

always change its mind, this court disavows its statements made in Calahan, 732

So.2d 796. The specific issue in that case was whether the forum selection clause

conferred personal jurisdiction on this court in the absence of any other contacts with

the State. Id. Nevertheless, this court implicitly held and explicitly stated that forum

selection clauses are generally enforceable even though the clause at issue was not

enforceable under the factual circumstances of the case. Id. We now declare that the

statement relating to the enforceability of forum selection clauses in Callahan was

inaccurate.10

10
Even if we were to follow the jurisprudence instead of the solemn expression of the
legislative will, the conclusion will, nevertheless, be the same. First, because Appellees failed to
answer the appeal, we need not consider the implicit trial court’s holding that the venue for the lien
actions is proper in Louisiana. Thus, the issue is whether the lien cause of action and the contract
breach claim should be split. We conclude that even if forum selection clauses were not against
public policy, the clause’s enforcement under the circumstances of this case would be against public
policy. This is because the enforcement would require to split the litigation between two states.

Unlike Case Atlantic Co., 960 So.2d 1274, an action involving summary and ordinary
proceedings, this case would involve two ordinary proceedings, i.e, the contract breach and lien
enforcement. Moreover, unlike Case Atlantic where both actions were within the state of Louisiana
and, therefore, the inconvenience associated with the enforcement of the clause was small compared
to the benefit derived, enforcement of the forum selection clause here would require two separate
lawsuits in two different states arising out of the same dispute. Very similar factual issues would
have to be determined in both the lien action and the contract breach action, i.e., what Live Oak did
on the project, how much the materials and labor cost, etc. In addition, the court in Case Atlantic
was concerned about the inconvenience to the party who brought the concursus proceeding and
whose summary action would have to be converted to the ordinary one. Here, no such parties exist.

Furthermore, the inconvenience in this case would, indeed, be considerable. Unlike cases
where the litigant simply had to go to another state to litigate under the forum selection clause, our
litigant would have to litigate here and in another state.

We also note that the subject of the dispute is located in Louisiana. All of the work involved
in the dispute was performed in Louisiana. Thus, almost all evidence and witnesses would be
located in Louisiana. Based on the totality of circumstances and that Louisiana disfavors multiplicity
of actions and piecemeal litigation, it would be against public policy to enforce the forum selection
clause in this case even if forum selection clauses were generally enforceable.

22

V.

CONCLUSION

Summary judgment in favor of White-Spunner Construction, Inc.,

Hartford Fire Insurance Company, and Wal-Mart Stores, Inc. is reversed. The grant

of exception of improper venue is reversed. The case is remanded to the trial court

for further proceedings consistent with this opinion. Costs of this appeal are assessed

to White-Spunner Construction, Inc., Hartford Fire Insurance Company, and Wal-

Mart Stores, Inc..

REVERSED AND REMANDED.

23