118 So. 3d 459
La. Ct. App.2013Background
- Landry, a contractor, contracted to build a home for the Giardinas in Thibodaux under a contract totaling $531,000.
- Landry received draws totaling $489,273 during construction; occupancy occurred June 2, 2008.
- Landry signed a Waiver and Release of Liens on June 26, 2008 acknowledging a final payment of $33,992.39.
- Landry later sued on February 13, 2012 for breach of contract and damages, seeking the $33,992.39 as due.
- The Giardinas answered and reconvened, asserting the waiver discharged Landry’s right to further payment; they then moved for an exception of no right of action.
- The trial court sustained the exception and dismissed Landry’s petition with prejudice; on appeal, the judgment was reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Landry's petition capable of surviving an exception of no right of action? | Landry asserts Landry has a contractual right to payment and thus a right of action. | Giardinas contend the waiver released all Landry claims and bars the action. | No; the exception was misapplied because it addresses Landry's right to sue, not liability on the merits. |
Key Cases Cited
- Robertson v. Sun Life Financial, 40 So.3d 507 (La. App. 1 Cir. 2010) (determines when a plaintiff has a right of action and uses de novo review for such questions)
- Babineaux v. Pemie-Bailey Drilling Co., 262 So.2d 328 (La.1972) (no right of action concerns plaintiff's class of interest, not defenses)
- Brown v. Associated Ins. Consultants, Inc., 714 So.2d 939 (La. App. 1 Cir. 1998) (objections in no-right-of-action cannot be used to raise defenses on the merits)
- Falco Lime, Inc. v. Plaquemine Contracting Co., Inc., 672 So.2d 356 (La. App. Cir. 1996) (no-right-of-action is not a substitute for a merits defense)
- Duplessis Cadillac, Inc. v. Creative Credit Services, Inc., 597 So.2d 1155 (La. App. 1 Cir. 1992) (limits use of no-right-of-action to genuine plaintiff-interest questions)
- Gibbs v. Delatte, 927 So.2d 1131 (La. App. 1 Cir. 2005) (clarifies de novo review on right-of-action questions)