SATCO, Incorporated v. Professional Application Services, Inc. and Suretec Insurance Company ( 2023 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2023 CA 0012
SATCO, INCORPORATED
W I L'- F' VERSUS
PROFESSIONAL APPLICATION SERVICES, INC. AND SURETEC
INSURANCE COMPANY
DATE OF JUDGMENT.• OCT 19 ZR3
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT,
PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA
NUMBER 697203, SECTION 23
HONORABLE KELLY BALFOUR, JUDGE
Andrew G. Vicknair Counsel For Plaintiff A
- ppellant
Ashley B. Robinson SATCO, Incorporated
Adrian A. D' Arcy
Christopher D. Joseph
Peter Raymond Graffeo
New Orleans, Louisiana
Edwin Allen Graves, Jr. Counsel for Defendants -Appellees
David Carlyle Voss Professional Application Services, Inc.
David Warren Carley and United States Fire Insurance
Baton Rouge, Louisiana Company
R. Gray Sexton Counsel for Defendant -Appellee
Blane A. Wilson
Suretec Insurance Company
Baton Rouge, Louisiana
BEFORE: GUIDRY, C. J., CHUTZ, AND LANIER, JJ.
Disposition: REVERSED AND REMANDED.
CHUTZ, J.
Plaintiff-appellant, SATCO, Incorporated ( SATCO), appeals the trial court' s
judgment, sustaining peremptory exceptions objecting on the basis of no cause of
action and no right of action raised by defendant -appellee, Suretec Insurance
Company ( Suretec), and dismissing with prejudice SATCO' s claims against
Suretec under the Louisiana Public Works Act (LPWA).' We reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
NCMC, LLC (NCMC) entered into a contract with the City of Baton Rouge
and Parish of East Baton Rouge ( the City/Parish) in which NCMC agreed to
perform construction services on the public works project SWWTP Primary
Settling Tanks Protective Coating (the project). Suretec was the surety that issued a
payment bond for principal, NCMC, the project general contractor, in favor of
obligee, the City/Parish, the project owner (the statutory payment bond).
NCMC entered into a subcontract with Professional Application Services,
Inc. ( PASI), who agreed to perform services for the project. PASI entered into a
sub -subcontract with SATCO to perform construction services and labor for the
project.
A payment dispute arose between PASI and SATCO. As a result, SATCO
filed a sworn statement of amount due ( lien claim) into the East Baton Rouge
Parish mortgage records, which was recorded on May 26, 2020. SATCO
subsequently instituted this lawsuit on June 1$, 2020, naming PASI and Suretec as
defendants. PASI answered the lawsuit and asserted a reconventional demand
against SATCO. Effective July 1, 2020, SATCO voluntarily cancelled the
inscription of the May 26, 2020 lien claim filed in the East Baton Rouge Parish
mortgage records.
See La. R.S. 38: 2241- 2249.
2
SATCO filed a second sworn statement of lien claim, which was recorded
into the East Baton Rouge Parish mortgage records on August 26, 2021. On
September 22, 2021, PASI deposited into the East Baton Rouge Parish mortgage
records a release of lien bond, issued by surety U.S. Fire Insurance Company
USFI)
guaranteeing payment of SATCO' s lien claim and naming PASI as
principal and the City/Parish as obligee ( the ROL bond). The Clerk and Recorder
of Court for the Parish of East Baton Rouge issued a cancellation of encumbrance,
which cancelled the inscription/recordation of the August 26, 2021 lien claim filed
by SATCO, noting that the ROL bond was placed in lieu of the lien. SATCO
subsequently filed an amended petition, which added USFI as a defendant, restated
its original allegations, but set forth the August 26, 2021 statement of claim as the
basis for its assertion of a lien claim on the project.
On March 14, 2022, Suretec filed peremptory exceptions of no cause of
action and no right of action, claiming entitlement to dismissal from SATCO' s
lawsuit. After a hearing, the trial court ruled in favor of Suretec. On September 29,
2022, the trial court signed a judgment, sustaining the exceptions of no cause of
action and no right of action and dismissing Suretec from the lawsuit with
prejudice. SATCO appeals.
DISCUSSION
The objections of no cause of action and no right of action are " separate and
distinct" under Louisiana law. The objection that a petition fails to state a cause of
action is properly raised by the peremptory exception of no cause of action. See
La. C.C. P. art. 927( A)(5). The objection that a particular plaintiff has no right to
assert the cause of action raised is properly brought through the peremptory
exception of no right of action. LeBlanc v Alfred, 2015- 0397 ( La. App. 1st Cir.
12/ 17/ 15), 185 So. 3d 768, 773. See La. C. C. P. art. 927(A)( 6).
3
The peremptory exception of no cause of action questions whether the law
affords any relief to the plaintiff if the plainitff proves the factual allegations in the
petition and annexed documents at trial. For purposes of determining the issues
raised by the exception of no cause of action, all well -pleaded facts in the petition
must be accepted as true. Ordinarily, no evidence may be introduced to support or
controvert the exception of no cause of action. LeBlanc, 185 So. 3d at 773. See La.
C. C. P. art. 931.
The purpose of the peremptory exception of no right of action is to
determine whether the plaintiff belongs to the class of persons to whom the law
grants the cause of action asserted in the suit. Evidence is admissible on the trial of
an exception of no right of action to support or controvert the objections pleaded
when the grounds for the objection do not appear in the petition. LeBlanc, 185
So. 3d at 774. See La. C. C.P. art. 931.
The de novo standard of review applies to the trial court' s ruling, sustaining
peremptory exceptions of no cause of action and no right of action. Thus, appellate
review of the trial court' s rulings on exceptions of no cause of action and no right
of action involves determining whether the trial court was legally correct in
sustaining the exceptions. LeBlanc, 185 So. 3d at 773.
Under the LPWA, whenever a public entity enters into a contract in excess
of twenty- five thousand dollars per project, the public entity shall require of the
general contractor a bond with a good, solvent, and sufficient surety in a sum of
not less than fifty percent of the contract price
for the payment by the
subcontractor to claimants. See La. R.S. 38: 2241( A)(2). A claimant includes any
person to whom money is due pursuant to a contract with a subcontractor for doing
work, performing labor, or furnishing materials or supplies for the construction of
any public work. La. R.S. 38: 2242( A).
11
Any claimant may, after the maturity of his claim and within forty- five days
after the recordation of acceptance of the work by the governing authority or of
notice of default of the subcontractor, file a sworn statement of the amount due him
with the governing authority having the work done and record it in the office of the
recorder of mortgages for the parish in which the work is done. La. R. S.
38: 2242( B).
For purposes of the exceptions, Suretec does not challenge SATCO' s status
as a claimant and acknowledges that SATCO complied with the provisions of the
LPWA by filing a statement of lien claim against subcontractor PAST. But Suretec
points to the provisions of La. R.S. 38: 2242.2 to support its assertion that SATCO
does not have either a cause of action or a right of action against Suretec as a
matter of law. According to La. R.S. 38: 2242.2:
A. If a statement of claim or privilege is filed, any interested
party may deposit with the recorder of mortgages either a bond of a
lawful surety company authorized to do business in the state or cash,
certified funds,
or a federally insured certificate of deposit to
guarantee payment of the obligation secured by the privilege or that
portion as may be lawfully due together with interest, costs, and
attorney' s fees to which the claimant may be entitled up to a total
amount of one hundred twenty- five percent of the principal amount of
the claim as asserted in the statement of claim or privilege. A surety
shall not have the benefit of division or discussion.
B. If the recorder of mortgages finds the amount of the cash,
certified funds, or certificate of deposit or the terms and amount of a
bond deposited with him to be in conformity with this Section, he
shall note his approval on the bond and make note of either the bond
or of the cash, certified funds, or certificate of deposit in the margin of
the statement of claim or privilege as it is recorded in the mortgage
records and cancel the statement of claim or privilege from his
records by making an appropriate notation in the margin of the
recorded statement. The bond shall not be recorded but shall be
retained by the recorder of mortgages as a part of his records.
Emphasis added.]
Suretec maintained that because USFI issued the ROL bond in favor of
PAST, which conformed to the requirements of La. R.S. 38: 2242. 2( A), and the
recorder of mortgages for the Parish of East Baton Rouge cancelled SATCO' s lien
5
claim pursuant to La. R.S. 38: 2242. 2( B), SATCO' s right of action was
extinguished as a matter of law, and Suretec was relieved of any liability or
obligation to SATCO. In light of its role as the surety issuing the statutory payment
bond required of NCMC, Suretec reasoned Haat no privity of contract exists
between SATCO and Suretee' s principal, NCMC, and SATCO' s sole basis for
recovery, which was under the LPWA, was extinguished by operation of law with
the filing of the ROL bond and acceptance of the bond by the recorder of
mortgages. Thus, SATCO lost any right of action it had against Suretec. Surtec
contended that SATCO' s petition failed to state a cause of action because, by
operation of law, with the issuance of the ROL bond and the cancellation of the
lien claim by the recorder of mortgages pursuant to La. R. S. 38: 2242. 2, SATCO is
unable to allege a recorded lien claim is pending against PAST.
In L& A Contracting Co. v. ,State Through Dept of Transp. & Dev , 2022-
1301 ( La. App. lst Cir. 8/ 16123), --- So. 3d ----, 2023 WL 5281846, this court
addressed the extinguished -by -operation -of l-aw assertion Suretec presently
advances. Before the court therein was the lien of a claimant who brought an action
against the general contractor and the statutory payment bond surety in a public
construction project under the Louisiana DOTD Public Works Act (DOTD PWA).2
MA Contracting Co., --- So. 3d at ----, 2023 WL 52$ 1846, at * 1- 3. Noting the
similarities between the requirements and procedure of the DOTD PWA and the
LPWA, see L& A Contracting Co., --- So. 3d at ---- n. 18, 2023 WL 5281846, at * I 1
n. 18, this court concluded the nearly identical procedure for the furnishing ofa
ROL bond and the cancellation of the lien claim by the recorder of the mortgages
z See La. R.S. 48: 256.3 through 48: 256. 12.
Gl
under the DOTD PWA3 did not expressly provide that the statutory payment bon&
would be cancelled or otherwise rendered null when a ROL bond was deposited.
This court pointed out that nothing in the language of the DOM PWA indicated
the legislature intended to release the statutory payment bond surety from the
litigation and that the clear and unambiguous wording of the DOTD PWA statute,
which provided for the filing of the ROL bond or other security and the
cancellation of the statement of lien claim, stated only that the statement of claim
or privilege would be cancelled. L& A Contracting Co., ---- So. 3d at ----, 2023 WL
5281.846, at * l 1.
This court in L&A Contracting Co., --- 5o. 3d at ----, 2023 WL 5281846, at
11, explained:
If the legislature intended for a [ ROL] bond ... to cancel the
statutory payment bond ..., it could have expressly stated this in the
statutory provisions. However, it did not. We have found nothing in
the [ DOTD PWA],
or in case law interpreting and applying the Act, to
support the [
general contractor' s and the statutory payment bond
surety' s] argument. Consequently, the statutory payment bond ...
remained viable after [ the general contractor] deposited [ the ROL)
bond and, therefore, [ the statutory payment bond surety] may be liable
for payment of the outstanding amount owed to [ claimant].
Relying on Woodrow Wilson Construction, LLC a Amtek of Louisiana, Inc.,
2017- 1156 ( La. App. 1st Cir, 816/ 18), 256 So -3d 345, 311, this court further
explained that statutes like the DOTD PWA and the LPWA are intended to protect
laborers and suppliers of materials on public works and that this objective is
accomplished by requiring a statutory payment bond, which serves as an additional
fund or security to assure that those who perform work on public projects receive
payment for their work in the event of a contractor' s inability to fulfill its payment
obligations, thereby insuring against unpaid claims from parties supplying labor
and materials for the construction of public works. Therefore, this court concluded
3 See La. R.S. 48: 256. 7.
4 See La. R.S, 48: 256. 3.
V1
that finding the statutory payment bond was no longer in effect or was cancelled by
operation of law when a RUL bond was deposited and the statement of claim or
privilege is cancelled is contrary to the purpose of protecting claimants and would
deprive laborers and suppliers of materials of a statutorily provided protection and
source of recovery. L& A Contracting Co., --- So. 3d at ----, 2023 WL 5281846, at
12.
Like the panel in L& A Contracting Co., --- So. 3d at ----, 2023 WL 52818461)
10- 11,
at *
which looked to the statute explaining how the DOTD PWA is to be
construed,' we look to the provisions of La. R.S. 38: 2247, which direct, " Nothing
in [ the LPWA] shall be construed to deprive any claimant, as defined in [ the
LPWA] and who has complied with the notice and recordation requirements of
R. S. 38: 2242( B), of his right of action on the RUL bond furnished pursuant to [ the
LPWA]." s Since the bond described in La. R. S. 38: 2242. 2( A) is not statutorily
required but is an option that may be utilized by an " interested party" to cancel the
lien, we find that La. R.S. 38: 2247 necessarily refers to the statutory payment bond
required by La. R. S. 38: 2241( B). See L& A Contracting Co., - w- So. 3d at ---- n. 19,
2023 WL 5281846, at * 11 n. 19, relying on D & J Construction Co. v. Mid -
5 See La. R.S. 48: 256. 12.
6 La. R.S. 38: 2247 further provides:
1BIefore any claimant having a direct contractual relationship with a
subcontractor but no contractual relationship with the contractor shall have
a right of action against the contractor or the surety on the bond furnished
by the contractor, he shall in addition to the notice and recordation required
in R.S. 38: 2242( B) give written notice to said contractor within forty-five
days from the recordation of the notice of acceptance by the owner of the
work or notice by the owner of default, stating with substantial accuracy the
amount claimed and the name of the party to whom the material was
furnished or supplied or for whom the labor or service was done or
performed. Such notice shall be served by mailing the same by registered or
certified mail, postage prepaid, in an envelope addressed to the contractor at
any place he maintains an office in the state of Louisiana. [ Emphasis added.]
For purposes of these exceptions, because Suretee does not dispute that SATCO -- a claimant
which has a direct contractual relationship with subcontractor PAST but no contractual
relationship with general contractor MCMC -- has complied with all notice and recordation
requirements under the LPWA, we presume SATCO has complied with the provisions of La.
R. S. 38: 2247.
I.
Continent Stone Co., 571 So -2d 762, 765 ( La. App. 1 st Cir. 1990) ("
The giving of
the [ ROL] bond is at the option of the contractor or owner and stands for the
lien.").
Accordingly, because ( 1) the clear and unambiguous language of La. R.S.
38: 2242. 2( B) fails to provide that the depositing of the ROL bond ( or other
security) and the cancellation of statement of a lien claim by the recorder of
mortgages will release the statutory payment bond surety; ( 2) La. R.S. 38: 2247
directs that nothing in the .LPWA shall be construed to deprive any claimant of its
right of action on the statutory bond; and ( 3) the LPWA' s policy objective of
protecting laborers and suppliers of materials on public works, in conformity with
this court' s holding in L& A Contracting Co., --- So -3d at ----, 2023 WL 5281846,
at *
11- 12, we conclude that Suretec has not been released from its statutory bond
obligations to SATCO with the deposit of the ROL bond by PAST and the
cancellation of the statement of lien claim by the recorder of mortgages pursuant to
La. R. S. 38: 2242.2. Thus, SATCO' s petition has stated a cause of action and
SATCO has a right of action, and the trial court erred in sustaining the exceptions
and dismissing Suretec from SATCO' s lawsuit.
DECREE
For these reasons, the trial court' s judgment, sustaining the peremptory
exceptions raising the objections of no cause of action and no right of action and
dismissing Suretec from SATCO' s lawsuit, is reversed. This matter is remanded
for further proceedings. Appeal costs are assessed against defendant -appellee,
Suretec Insurance Company.
REVERSED AND REMANDED.
k