River House Partners, LLC v. Clark Construction Inc. of Mississippi, Rader's Insulation Express, LLC, M&R Builders, LLC of Mississippi, First Specialty Insurance Corporation, Navigators Insurance Company & State National Insurance Company ( 2022 )

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
RIVER HOUSE PARTNERS LLC NO. 2022 CW 0658
VERSUS PAGE 1 OF 2
CLARK CONSTRUCTION INC. OF
MISSISSIPPI, RADER’S
INSULATION EXPRESS, L.L.C.,
M&R BUILDERS, LLC OF
MISSISSIPPI, FIRST SPECIALTY
INSURANCE CORPORATION,
NAVIGATORS INSURANCE COMPANY
& STATE NATIONAL INSURANCE AUGUST 12, 2022
COMPANY, INC.
In Re: Clark Construction, Inc. of Mississippi, applying for
supervisory writs, 19th Judicial District Court,
Parish of East Baton Rouge, No. 695503.
BEFORE : WHIPPLE, C.J., GUIDRY AND WOLFE, JJ.
WRIT DENIED. The transcript of the March 15, 2022 hearing
on the Motion to Compel Arbitration and to Stay proceedings
filed by defendant, Clark Construction Inc. of Mississippi,
reveals no evidence was introduced or admitted during the
hearing, including the subject arbitration agreements. The party
seeking to enforce an arbitration agreement carries the burden
of proving the existence of a valid arbitration agreement. See
Alfortish v. GreenSky, LLC, No. CV 16-15084, 2017 WL 699830, *3
(E.D. La. 2/22/17) (citing FIA Card Services, N.A. v. Weaver,
2010-1372 (La. 3/15/11), 62 So.3d 709, 719); Duhon v. Activelaf,
LLC, 2016-0818 (La. 10/19/16), _ So.3d =, 2016 WL 6123820,
cert. denied, U.S. _, 2268 L.Ed.2d 700 (2017); see also
Landis Construction Co., L.L.C. v. State, 2015-1167 (La. App.
Ist Cir. 2/29/16), 199 So. 3d 1, 2-3 (“Evidence not properly and
officially offered and introduced cannot be considered, even if
it is physically placed in the record.”). Accordingly, the
trial court did not err in denying defendant’s motion.
JMG
EW
Whipple, C.J., dissents and would grant the writ.
Defendants/cross-claim defendants, Rader’s Insulation Express,
LLC (“Rader’s”) and M&R Builders, LLC of Mississippi (“M&R”), in
their respective subcontracts with Clark, agreed to arbitrate
“TaJil claims, disputes, and other matters in controversy
between the Contractor, Subcontractor, and all individual
Signatories hereto, arising out of or relating to this
Subcontract” “in accordance with the current and applicable
Construction Industry rules and procedures of the American
Arbitration Association ..” Additionally, by incorporating the
American Arbitration Association’s Construction Industry
Arbitration Rules into the arbitration agreement in their
contract, Clark Construction Inc. of Mississippi and plaintiff,
River House Partners, LLC (“River House”), agreed that “[t]he
arbitrator shall have the power to rule on his or her own
STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
NO. 2022 CW 0658
PAGE 2 OF 2
Jurisdiction, including any objections with respect to the
existence, scope, or validity of the arbitration agreement.”
See e.g. Florida Gas Transmission Co., LLC v. Texas Brine Co.,
LLC, 2018-0075 (La. App. lst Cir. 7/1/19), 285 So.3d 1093, 1099-
1100, writ denied, 2019-01124 (La. 7/17/19), 277 So.3d 1180, and
writ denied, 2019-01405 (La. 11/12/19), 282 So.3d 225; Crawford
Professional Drugs, Inc. v. CVS Caremark Corp., 748 F.3d 249(5th Cir. 2014). Under the circumstances presented herein, the
issue of whether a party to an arbitration agreement has waived
arbitration is for the arbitrator to decide. See Arkel
Constructors, Inc. v. Duplantier & Meric, Architects, L.L.C.,
2006-1950 (La. App. lst Cir. 7/25/07), 965 So.2d 455, 461
{citing International River Center v. Johns-Manville Sales
Corp., 2002-3060, (La. 12/3/03), 861 So.2d 139); see also
Florida Gas Transmission Co., LLC, 285 So.3d at 1099-1100;
(citing Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84,
123 S.Ct. 588, 592, 154 L.Ed.2d 491 (2002) (“the presumption is
that the arbitrator should decide ‘allegation[s] of waiver,
delay, or a like defense to arbitrability’”)). Accordingly, I
would grant the Motion to Compel Arbitration and Stay
Proceedings filed by Clark Construction Inc. of Mississippi as
to the claims between River House and Clark, the claims between
Clark and Rader’s, and the claims between Clark and M&R.
COURT OF APPEAL, FIRST CIRCUIT
As)
DEPUTY CLERK OF COURT
FOR THE COURT