South La. Contractors, LLC v. Kraus Construction, Inc.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-672 consolidated with 21-792

SOUTH LA. CONTRACTORS, LLC

VERSUS

KRAUS CONSTRUCTION, INC., ET AL.

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. C-2021-0351
HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE

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CANDYCE G. PERRET
JUDGE

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Court composed of Elizabeth A. Pickett, Candyce G. Perret, and Jonathan W. Perry,
Judges.

AFFIRMED.

Emile Joseph, Jr.
Robert A. Robertson
Allen & Gooch
Post Office Box 81129
2000 Kaliste Saloom Rd, Suite 400
Lafayette, LA 70598-1129
(337) 291-1330
COUNSEL FOR PLAINTIFF/APPELLANT:
South LA Contractors, LLC

Billy E. Loftin, Jr.
Loftin & LeBlanc, LLC
410 E. College Street, Suite A
Lake Charles, LA 70605
(337) 310-4300
COUNSEL FOR DEFENDANTS/APPELLEES:
Kraus Construction, Inc.
Cincinnati Insurance Company

PERRET, Judge.

The plaintiff, South LA Contractors, LLC (“South LA”), appeals from a trial

court judgment sustaining a dilatory exception of prematurity filed by defendant,

Kraus Construction, Inc. (“Kraus”), based on a finding that South LA’s claims are

subject to arbitration.1 For the following reasons, we affirm the trial court judgment.

FACTS:

On August 21, 2020, Kraus, as the general contractor, entered into a contract

with Beauregard Parish School Board to construct a classroom building addition for

the South Beauregard Elementary School, located at 12380 Highway 171, Longville,

Louisiana 70652. South LA was the subcontractor on the project and the Cincinnati

Insurance Company (“Cincinnati Insurance”) provided the statutory labor and

material payment bond to Kraus in connection with the project.

On May 20, 2021, South LA filed a Petition for Monies Due, Enforcement of

Lien and Breach of Contract against Kraus and Cincinnati Insurance seeking to

recover amounts outstanding and owed for work performed on the project. South

LA alleges it “entered into a Subcontract Agreement with Kraus Construction and

served as a subcontractor to Kraus Construction” and that it “agreed to provide the

necessary labor, equipment, and materials associated with the demolition, site work

and drainage work at a lump sum cost of One Hundred Ninety-Eight Thousand One

Hundred Seventy and 25/100 ($198,170.25) Dollars.” South LA avers that Kraus

has an outstanding balance of $135,660.02 and that Kraus and Cincinnati Insurance

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The dilatory exception of prematurity filed by defendant, the Cincinnati Insurance
Company, was denied.

are liable, in solido, for all sums due to it in connection with the materials and

services provided by it.

On July 21, 2021, Kraus and Cincinnati Insurance filed a Dilatory Exception

of Prematurity asserting that South LA’s claims are premature because it agreed to

arbitrate the claims alleged in its petition against Kraus pursuant to a written and

signed arbitration agreement. In support of the exception of prematurity, defendants

attached a copy of the “Standard Form of Agreement between Contractor and

Subcontractor,” which was signed by Kraus and South LA on November 10, 2020.

On September 8, 2021, South LA filed an opposition to defendants’ exception

of prematurity arguing that the arbitration provision is ambiguous because the

“Arbitration Rules of Better Business Bureau” do not exist. Additionally, South LA

argues it does not have a signed arbitration agreement with Cincinnati Insurance.

After a hearing on September 16, 2021, the trial court found there was a

binding arbitration agreement between Kraus and South LA and dismissed the

claims against Kraus, without prejudice. The exception of prematurity filed by

Cincinnati Insurance was denied.

The trial judge provided the following oral reasons for granting Kraus’s

exception of prematurity:

THE COURT:

Okay. The Court finds that there is a binding arbitration
agreement, I believe that there are -- the contract calls them the
“Arbitration Rules of Better Business Bureau.”

....

I don’t think the general interpretation of contracts is so technical that
because it’s called the rules of arbitration, rather than arbitration rules,
as the contract for arbitration calls for between these parties that throws
the whole document out and throws the whole binding arbitration out.
So, I’m going to rule that there is binding arbitration and the except[ion]

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of prematurity as to Kraus Construction Inc. is granted and I’m going
to stay these proceedings pending that arbitration. As to the Cincinnati
Insurance Company, I’m simply going to stay the proceedings pending
the results of the arbitration, because as stipulated between the parties,
the Cincinnati Insurance Companies liability arises out of any liability
of Kraus Construction.

....

And I think that contracts are to be given ordinary common sense
meaning and if the parties call something arbitration rules and the
technical title of the document is Rules of Arbitration, I believe legally
those are one in the same thing. I think that the law requires that you
give the words of a contact their normal common sense meaning and
not so hyper technical that you would say that that’s not the same thing.

Now whether it specifically applies every provision of it to this
dispute, I don’t disagree that it’s generally was perhaps a poor choice
of rules picked in a construction contract between a contractor and sub-
contractor as opposed to a buyer and seller in a typical store front
business. I don’t dispute that but I don’t find that’s reason enough to
throw out the arbitration.

On October 7, 2021, the trial court signed a written judgment in accordance

with its oral ruling.

Thereafter, South LA filed both an application for writs and an appeal from

the trial court’s ruling. Because the ruling at issue constitutes a final appealable

judgment as it determines the merits of the case, this court, on January 10, 2022,

granted the writ application “for the limited purpose of ordering the consolidation of

the writ application with the appeal[.]” See La.Code Civ.P. art. 1841.2

On appeal, South LA assigns the following three assignments of error:

1. The trial court abused its discretion and/or committed legal
error in sustaining Defendant’s exception of prematurity, dismissing
[South LA’s] claims without prejudice, finding the parties are obligated
to arbitrate their disputes in accordance with the Subcontract Section
11 titled “Disputes.”

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Louisiana Code of Civil Procedure Article 1841 states that “[a] judgment that determines
the merits in whole or in part is a final judgment.”

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2. The trial court abused its discretion and committed legal error
when it failed to find that Section 11 of the Subcontract was ambiguous
negating its application?

3. The trial court abused its discretion and committed legal error
when it adopted the BBB “Rules of Arbitration -- Post Dispute” and
ruled these rules would govern the arbitration between the parties.

STANDARD OF REVIEW:

In Abshire v. Belmont Homes, Inc., 04-1200, pp. 7-8 (La.App. 3 Cir. 3/2/05),

896 So.2d 277, 283, writ denied, 05-862 (La. 6/3/05), 903 So.2d 458 (second and

fourth alterations in original), this court addressed the proper standard for reviewing

a trial court’s judgment sustaining an exception of prematurity based on an

arbitration provision, stating, as follows:

The dilatory exception of prematurity is provided for in La.Code
Civ.P. art. 926(A)(1), and its function is to raise the issue that a judicial
cause of action does not yet exist because of some unmet prerequisite
condition. Blount v. Smith Barney Shearson, Inc., 96-0207 (La.App. 4
Cir. 2/12/97), 695 So.2d 1001, writs denied, 97-0952, 97-0970 (La.
5/30/97), 694 So.2d 246, [694 So.2d] 247. “It usually is utilized in
cases where the law or a contract has provided a procedure for one
aggrieved of a decision to seek relief before resorting to judicial action,”
and “[t]he exceptor has the initial burden of showing that an
administrative remedy was available, thus making the judicial action
premature.” Id. at 1003. Thus, the burden is upon [the defendant] to
establish that a valid and enforceable arbitration agreement exists. See
id. In determining whether a party is bound by an arbitration agreement,
we apply ordinary contract principles, and a party cannot be required to
submit to arbitration a dispute that he has not agreed to submit. Tresch
v. Kilgore, 03-0035 (La.App. 1 Cir. 11/7/03), 868 So.2d 91. Whether
a court should compel arbitration is a question of law. Dufrene v. HBOS
Mfg., 03-2201 (La.App. 4 Cir. 4/7/04), 872 So.2d 1206. Therefore,
“[a]ppellate review of questions of law is simply to determine whether
the trial court was legally correct or incorrect.” Id. at 1209.

Thus, in the matter sub judice, the issue as to whether or not the trial court

properly maintained the exception of prematurity hinges on a question of law –

whether the trial court was legally correct in its finding that Kraus established that a

valid and enforceable arbitration agreement exists between it and South LA.

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DISCUSSION:

The Louisiana Arbitration Law “reflects a legislative policy favoring

arbitration as a tool for speedy resolution of contract disputes[,]” and states that

provisions for arbitration “in valid contracts shall be irrevocable.” Willis-Knighton

Med. Ctr. v. S. Builders, Inc., 392 So.2d 505, 507 (La.App. 2 Cir.1980). In support

of this policy, Louisiana has enacted the Louisiana Binding Arbitration Law, which

is found at La.R.S. 9:4201 - 4217. Louisiana Revised Statutes 9:4201 provides:

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.

“[T]he threshold inquiry is whether the parties have agreed to arbitrate the

dispute in question. This determination involves two considerations: (1) whether

there is a valid agreement to arbitrate between the parties; and (2) whether the dispute

in question falls within the scope of that arbitration agreement.” Traders’ Mart, Inc.

v. AOS, Inc., 52,592, p. 8 (La.App. 2 Cir. 4/10/19), 268 So.3d 420, 427, writ denied

sub nom., Trader’s Mart, Inc. v. AOS, Inc., 19-694 (La. 10/21/19), 280 So.3d 1165

(internal citations omitted).

In this case, Kraus provided the written and signed agreement between it and

South LA that contained an arbitration clause under article eleven, which states

(emphasis added): “DISPUTES. Any controversy or claim between the Contractor

and the Subcontractor arising out of or related to this Subcontract, or the breach

thereof, shall be settled by arbitration conducted in accordance with the

Arbitration Rules of Better Business Bureau currently in effect unless the parties

mutually agree otherwise.”

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The parties agree that there is an arbitration clause in their contract; however,

South LA argues that because there are no such rules titled “Arbitration Rules of

Better Business Bureau,” the arbitration provision is ambiguous and thus, not

binding. Although the parties and the trial judge acknowledged at the hearing that

there are Better Business Bureau Rules titled “Rules of Arbitration – Post Dispute,”

South LA argues that these are not the same as “Arbitration Rules of Better Business

Bureau.”

Louisiana Civil Code Article 2045 provides the “[i]nterpretation of a contract

is the determination of the common intent of the parties.” “The reasonable intention

of the parties to a contract is to be sought by examining the words of the contract

itself, and not assumed.” Prejean v. Guillory, 10-0740, pp. 6-7, (La. 7/2/10), 38

So.3d 274, 279. As stated in La.Civ.Code. art. 2046, “[w]hen 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.” Further, “[c]ontracts must be

construed in such a way as to lead to logical conclusions and to give effect to the

obvious intention of the parties.” Lambert v. Maryland Cas. Co., 418 So.2d 553,

559 (La.1982).

In this case, we find the language used in the “Standard Form of Agreement

Between Contractor and Subcontractor,” signed by the parties on November 10,

2020, to be clear and reflects the parties’ intent to submit any dispute arising out of

the contract to an arbitrator. We also find the dispute at issue arises from the contract

between the parties and is, therefore, an issue referable to arbitration. As stated

previously, Louisiana law reflects a strong legislative policy that favors arbitration

and the jurisprudence dictates that “[a]ny doubt as to whether a controversy is

arbitrable should be resolved in favor of arbitration.” Woodson Constr. Co., Inc. v.

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R.L. Abshire Constr. Co., Inc., 459 So.2d 566, 569 (La.App. 3 Cir. 1984). We also

find jurisprudence supports the trial judge’s oral reasons wherein he states that a

court must ascertain the common intent of the parties rather than adhering to the

literal sense of the terms. See Polozola v. Garlock, Inc., 343 So.2d 1000 (La.1977).

For these reasons, we affirm the trial court judgment sustaining the exception

of prematurity in favor of the defendant, Kraus Construction, Inc. ordering the claims

asserted by South LA Contractors, LLC to arbitration. All costs of this appeal are

assessed to the plaintiff, South LA Contractors, LLC.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

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