Saulsbury Industries, Inc. v. Cabot Corporation and Cleco Power, LLC ( 2022 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2021 CA 0679
SAULSBURY INDUSTRIES, INC.
VERSUS
CABOT CORPORATION AND CLECO POWER, LLC
MAY 17 anon
Judgment Rendered: 1 20a
Ce
J |} On Appeal from the
Cv) vf } Sixteenth Judicial District Court
of LAN / In and for the Parish of St. Mary
ee State of Louisiana
No. 133910
The Honorable Anthony Thibodeaux, Judge Presiding
% ok ok ok ok
John M. Madison, III Attorneys for Plaintiff/Appellant,
Baton Rouge, Louisiana Saulsbury Industries, Inc.
Russel J. Cremaldi
James B. Supple
Franklin, Louisiana
David L. Guerry Attorneys for Defendant/Appellee,
Albert Dale Clary Cabot Corporation
J. Weston Clark
Baton Rouge, Louisiana
R. Gray Sexton Attorneys for Defendant/Appellee,
Blane A. Wilson Cleco Power, LLC
Blair Naquin Green
Alesia M. Ardoin
Baton Rouge, Louisiana
OK OK Ok ok
BEFORE: WHIPPLE, C.J., PENZATO, AND HESTER, JJ.
PENZATO, J.
Saulsbury Industries, Inc. appeals a judgment granting exceptions raising the
objection of lis pendens in favor of Cleco Power, Inc. and Cabot Corporation and
dismissing Saulsbury’s claims against these parties without prejudice. For the
following reasons, we reverse the portion of the trial court’s judgment granting the
exception of lis pendens in favor of Cabot and remand the matter to the trial court
for further proceedings. We affirm the portion of the judgment granting the
exception of lis pendens in favor of Cleco.
FACTS AND PROCEDURAL HISTORY
In 2017, Cleco and Cabot contracted with Saulsbury to serve as the prime
contractor on a project to construct and develop a 50-mega-watt renewable energy
waste heat power plant and emissions control system at Cabot’s carbon black
manufacturing facility in Franklin, St. Mary Parish, Louisiana. Delays began early-
on in the project, which Saulsbury attributed to Cabot and Cleco and, conversely,
Cleco and Cabot attributed to Saulsbury. By late 2018, Cleco and Cabot issued a
“Notice to Demobilize” to Saulsbury, effectively terminating Saulsbury from the
project.
Cleco filed suit against Saulsbury in October 2018, seeking delay damages for
Saulsbury’s alleged breach of its “material obligations” under the contract.
According to the petition, Saulsbury failed to timely complete various milestones set
forth in the project schedule. Cleco further alleged that it “incurred damages in
supplementing Saulsbury’s workforce” on site due to safety incidents and resulting
personnel restrictions. Cleco filed suit in the 9th Judicial District, Rapides Parish,
where it executed the contract at issue. See La. C.C.P. art. 76.1.
Nine months later, in July 2019, Saulsbury filed suit against Cleco and Cabot
concerning the construction project and sought damages from both defendants for
breach of contract, amounts due on open account, and unjust enrichment/quantum
meruit.' Saulsbury also sought judgment declaring that its termination by Cleco and
Cabot was “termination for convenience” under Section 10.1 of parties’ “Special
Conditions” contractual agreement. Finally, Saulsbury sought “[r]ecognition and
enforcement of its privilege upon and against the property upon which its work was
performed” pursuant to the Louisiana Private Works Act.
According to the petition, Saulsbury filed a statement and amended statement
of claim and privilege on September 5, 2018 and April 17, 2019, respectively, in St.
Mary Parish against Cabot’s immovable property located there. It also filed a
statement and amended statement of claim and privilege on December 5, 2018 and
April 17, 2019, respectively, in St. Mary Parish against Cleco’s leasehold interest.
All statements of claim and privilege were attached to and became a part of
Saulsbury’s petition. See La. C.C.P. art. 853.
Saulsbury’s suit was filed in the 16th Judicial District, St. Mary Parish. In its
petition, Saulsbury asserted that venue is proper in St. Mary Parish because a
substantial portion of the events or omissions that are the subject of its suit occurred
there. It also alleged that venue is proper in St. Mary Parish “under the provisions
of the Louisiana Private Works Act, La. R.S. 9:4201, et seq.”
Cleco filed an exception of lis pendens in Saulsbury’s St. Mary Parish
proceeding in August 2020, alleging that its suit in Rapides Parish was the first filed
suit and that Saulsbury’s St. Mary Parish suit against it should be dismissed, since
the suit involves the same parties, in the same capacities, and the same transaction
or occurrence, i.e., the construction of the power plant and emissions control system
and related contract dispute.
Cabot moved to intervene in Cleco’s suit and filed its own exception of lis
pendens, adopting and incorporating by reference the arguments made in Cleco’s
' It appears that, before filing in St. Mary Parish, Saulsbury filed a suit against Cleco and Cabot in
federal court, which was subsequently remanded as to Cleco and dismissed against Cabot.
exception of lis pendens as well as Cleco’s evidence in support. Cabot offered no
additional argument and failed to address the fact that, at the time it was named in
Saulsbury’s St. Mary Parish suit, it was not a party to Cleco’s Rapides Parish
proceeding.
Saulsbury set forth several arguments in opposition to the exceptions,
including that venue is mandatory in St. Mary Parish under the Private Works Act,
as the parish where Cabot’s property and Cleco’s leasehold interest are located.
Saulsbury also argued that the Rapides Parish court lacked jurisdiction over the
subject matter and the parties because Cabot, a party needed for just adjudication
pursuant to La. C.C.P. art. 641, was not joined as a party in the proceeding initiated
there by Cleco. Saulsbury asserted that lis pendens only applies when the court
where the first suit was filed has valid jurisdiction over the subject matter and the
parties. Since Cabot and Cleco were both named together for the first time in its
suit, Saulsbury maintained that the St. Mary Parish court was the first to acquire
jurisdiction and was, consequently, the “first filed” suit for purposes of lis pendens.
Finally, Saulsbury argued that Cabot’s exception should be denied, because it filed
“independent” claims against Cabot in St. Mary Parish before Cabot intervened in
Cleco’s suit. At the time the St. Mary suit was filed, there were no pending claims
between Saulsbury and Cabot.
A trial on the exceptions was held in St. Mary Parish on October 16, 2020.
The trial court granted the exceptions asserted by Cleco and Cabot and dismissed
Saulsbury’s claims against both defendants without prejudice. The court concluded
that Saulsbury’s St. Mary Parish suit concerns the same transaction and occurrence
at issue in Cleco’s first filed suit in Rapides Parish. It further noted that Cabot,
incorrectly identified as Cleco, was allowed to intervene in the Rapides Parish
proceeding and that both suits involve the same parties — Saulsbury, Cleco, and
Cabot. A written judgment in conformity with the court’s ruling was signed on
November 23, 2020.
The instant appeal followed. Saulsbury asserts that the trial court erred by:
(1) granting Cabot’s exception of lis pendens when there was no state court suit
pending between Saulsbury and Cabot when Saulsbury filed suit against Cabot in
St. Mary Parish; (2) granting Cleco’s exception where the Rapides Parish court
lacked jurisdiction because the suit failed to join Cabot, a party needed for just
adjudication; and (3) granting the exceptions of lis pendens because Saulsbury was
required to file suit in St. Mary Parish to preserve and enforce its claims under the
Private Works Act.
EXCEPTION OF LIS PENDENS AND STANDARD OF REVIEW
A declinatory exception of lis pendens declines jurisdiction over a second suit
where a prior suit is pending between the same parties, in the same capacities, on the
same transaction or occurrence. La. C.C.P. arts. 531, 923, and 925(3). If two or
more essentially identical suits are pending in Louisiana courts, the defendant may
have all but the first filed action dismissed. La. C.C.P. art. 531; Harris v. Breaud,
2017-0421 (La. App. Ist Cir. 2/27/18), 243 So.3d 572, 577. The party pleading lis
pendens has the burden of proving the facts necessary for the exception to be granted.
Crosstex Energy Services, LP v. Texas Brine Company, LLC, 2018-1323 (La. App.
Ist Cir. 8/8/19), 282 So.3d 234, 236. The crucial inquiry is not whether the second
suit is based on the same cause of action as the first suit, but whether the second suit
asserts a cause of action that arises out of the same transaction or occurrence that is
the subject matter of the first suit. Jd. at 236-237. A trial court's ruling on an
objection of lis pendens, pursuant to La. C.C.P. art. 531, presents a question of law;
thus, it is reviewed de novo. Patten/Jenkins BR Popeyes, L.L.C. v. SRG Baton Rouge
H, L.L.C., 2019-1160 (La. App. 1st Cir. 6/16/20), 306 So.3d 453, 457-458.
EVIDENTIARY ISSUES
During the trial of a declinatory exception, evidence may be introduced to
support or controvert any of the objections pleaded, when the grounds thereof do not
appear from the petition, the citation, or return thereon. La. C.C.P. art. 930. If
evidence is admitted at a hearing on a declinatory exception, the exception must be
resolved on the evidence presented, rather than on the allegations in the petition.
Johnson v. Byrd, 48,411 (La. App. 2nd Cir. 9/25/13), 125 So.3d 1220, 1226;
Ameriprint, LLC vy. Canon Financial Services, Inc., 21-110 (La. App. 5th Cir.
5/24/21) 125 So. 3d 1220, 1226.
As an initial matter, we note that the evidence introduced by Cleco during the
trial on the exception differs from the exhibits attached to its memorandum in
support of the exception. For instance, Cleco attached pleadings from a federal
proceeding initiated by Saulsbury in January 2019 purportedly concerning the same
issues raised in the Rapides and St. Mary Parish litigation and Saulsbury’s
opposition allegedly filed in response to Cabot’s motion to intervene in the Rapides
Parish litigation. These exhibits were not introduced into evidence during the trial
on the exception. Instead, Cleco introduced four exhibits without objection: its
Rapides Parish suit, the transcript from a September 2020 hearing conducted by the
Rapides Parish court, a related Rapides Parish judgment signed on October 5, 2020
granting Cabot leave to intervene and denying Saulsbury’s peremptory exception of
non-joinder and dilatory exception of improper venue, and Saulsbury’s notice of
intent to seek supervisory writs from the Third Circuit Court of Appeal regarding
the October 5, 2020 Rapides Parish judgment.
Additionally, Saulsbury attached documents to its opposition filed with the
trial court but failed to introduce those exhibits into evidence during the trial on the
exceptions of lis pendens. Therefore, we do not consider the documents attached to
the memoranda filed by Cleco and Saulsbury, which were not introduced into
evidence. Denoux v. Vessel Management Services, Inc., 2007-2143 (La. 5/21/08),
983 So.2d 84, 88 (Evidence not properly and officially offered and introduced cannot
be considered, even if it is physically placed in the record. Documents attached to
memoranda do not constitute evidence and cannot be considered as such on appeal.)
Conversely, we consider the exhibits admitted into evidence by Cleco, noting that
Cabot offered no evidence in support of its exception of lis pendens.
DISCUSSION
Saulsbury’s Suit is the First Filed Suit Against Cabot
Saulsbury maintains that, at the time it filed suit in St. Mary Parish, there was
no other pending state court suit between Saulsbury and Cabot. The evidence in the
record supports this assertion. Cabot was not named as a defendant in Cleco’s
Rapides Parish proceeding filed in October 2019, and it did not intervene there until
July or October 2020.” By that time, Cabot was named as a defendant in Saulsbury’s
St. Mary Parish suit, filed in July 2019.
In their joint appellee brief, Cabot and Cleco assert that, once Cabot was
allowed to intervene in the Rapides Parish litigation, both suits involved the same
parties in the same capacities. Therefore, they maintain that all three requirements
for lis pendens are met. The trial court similarly concluded that the Rapides and St.
Mary Parish proceedings involve the same parties. However, neither the defendants
nor the trial court address the issue of timing as it relates to Cabot, particularly the
fact that Cabot was not a party to the Rapides litigation at the time it was named as
a defendant in St. Mary Parish. To the extent the trial court determined that Cabot’s
subsequent intervention was sufficient to satisfy the requirements of lis pendens, we
2 An incidental demand that requires leave of court to file, such as an intervention, shall be
considered as filed as of the date it is presented to the clerk of court for filing if leave of court is
thereafter granted. La. C.C.P. arts. 1033, 1091. The evidence in the record does not reflect the
date the motion to intervene was filed. However, the parties do not dispute that the motion was
filed in July 2020. Accepting this contention as true, Saulsbury’s St. Mary Parish suit was still the
first pending litigation between Saulsbury and Cabot.
7
find the trial court legally erred. Saulsbury’s suit was undisputedly the first filed suit
against Cabot. Therefore, Cabot failed to establish it was entitled to the relief
provided by La. C.C.P. art. 531 (When two suits are pending in a Louisiana court on
the same transaction or occurrence, between the same parties in the same capacities,
the defendant may have all but the first suit dismissed). Thus, we reverse the portion
of the November 23, 2020 judgment granting the exception of lis pendens filed by
Cabot.
Next, we consider the remaining assignments of error as they relate to Cleco’s
exception of lis pendens.
Rapides Parish Court Lacked Jurisdiction
Saulsbury contends that Cabot was a party needed for just adjudication in the
Rapides Parish suit pursuant to La. C.C.P. art. 641 and that the failure to join Cabot
deprived the Rapides court of subject matter jurisdiction over the action, citing
Hernandez v. State, ex rel. Department of Transportation & Development, 2002-
0162, 2002-0163 (La. App. 4th Cir. 10/16/02), 841 So.2d 808, 818, on rehearing en
banc in part (12/30/02), writs denied, 2003-0261, 2003-0307 (La. 4/25/03), 842
So.2d 399 (a party’s failure to join an indispensable party to a declaratory judgment
action deprives the trial court of subject matter jurisdiction over that action.) Thus,
Saulsbury maintains that, at the time it filed suit in St. Mary Parish, the Rapides
Parish court did not have jurisdiction because Cabot was not yet a party to that
proceeding. It contends that St. Mary Parish was the first court to have competent
jurisdiction over the subject matter and the first to have jurisdiction over both Cleco
and Cabot.
We need not address the merits of Saulsbury’s jurisdictional argument,
because we conclude that Saulsbury failed to make the threshold showing needed to
succeed on its own assertion — that Cabot is a party needed for just adjudication in
Cleco’s Rapides Parish proceeding.
Louisiana Code of Civil Procedure Article 641(1) pertinently provides that a
person shall be joined in an action when, in its absence, complete relief cannot be
accorded among those already parties. Alternatively, a person shall also be joined
under this article if it claims an interest relating to the subject matter of the action
and is so situated that the adjudication of the action in its absence may either impair
or impede its ability to protect that interest or leave any of the parties subject to a
substantial risk of incurring multiple or inconsistent obligations. La. C.C.P. art.
641(2)(a) and (b). Courts are to determine whether a party should be joined by a
factual analysis of all the interests involved. Cohen v. Cohen, 20-352 (La. App. Sth
Cir. 10/13/21), 329 So.3d 1057, 1062.
Saulsbury failed to present evidence to establish that Cabot is a party needed
for just adjudication in the Rapides Parish proceeding pursuant to these criteria.
Instead, Saulsbury relies on a purported judicial confession made by Cleco and
Cabot in the Rapides Parish proceeding that Cabot is a party needed for the just
adjudication of that suit. However, a judicial confession must be applied by the court
in the proceeding in which it is made. An admission made in another proceeding is
not considered a judicial confession. Hebert v. Richard, 2015-8 (La. App. 3d Cir.
6/17/15), 166 So.3d 1265, 1275, writs denied, 2015-1390, 2015-1391 (La. 10/2/15),
178 So.3d 991. Admissions in proceedings other than the one currently being
adjudicated are considered extrajudicial admissions, which may be used as evidence
but which do not create conclusive presumptions or operate as an estoppel against
the party making them. Gnagie v. Department of Health & Human Resources, 603
So.2d 206, 211, n.3 (La. App. Ist Cir. 1992), writ denied, 608 So.2d 174 (La. 1992).3
See La. C.C. art. 1853 (A judicial confession is a declaration made by a party ina
> The only instance where an extrajudicial confession will operate as an estoppel against the party
making it is if the party claiming the benefit of the estoppel was deceived by the admission or
relied on it to his prejudice. Gnagie, 603 So.2d at 211, n.3. Saulsbury does not allege deception
or prejudice.
judicial proceeding. That confession constitutes full proof against the party who
made it.) Therefore, this argument fails.
The evidence properly admitted contains minimal details of the relationship
between Saulsbury, Cleco, and Cabot. The parties make various factual assertions
regarding their contractual agreement, particularly that Cleco and Cabot’s respective
obligations and the obligations owed by Saulsbury to each are separate and distinct.
As noted, the contract excerpt attached to Saulsbury’s opposition to the exceptions
was not introduced into evidence and may not be considered by this court. Argument
of counsel, no matter how artful, is not evidence. Tour Holdings, L.L.C. v. Larre,
2018-0503 (La. App. Ist Cir. 12/6/18), 267 So.3d 735, 738. Additionally, Cabot’s
reasons for intervening in the Rapides proceeding and its asserted interest in the
matter are not evident from the documents admitted.
Cleco’s Rapides Parish petition sets forth a demand for damages against
Saulsbury alone. The pleading identifies Cabot as a “developer” and an additional
party to the contract wherein Saulsbury was hired to construct the waste heat power
plant and emissions control system “at Cabot’s carbon black manufacturing facility
in Franklin, Louisiana.” Cleco does not allege any wrongdoing by Cabot and seeks
judgment against Saulsbury only for damages sustained solely by Cleco as a result
of project delays purportedly caused by Saulsbury and other personnel issues related
to “Saulsbury’s workforce.” There are no allegations to suggest that complete relief
cannot be granted in Cabot’s absence, that Cleco or Saulsbury will be exposed to a
substantial risk of incurring multiple or inconsistent obligations, or that Cabot’s
ability to protect its interest will be impaired or impeded in anyway. See La. C.C.P.
art. 641(2)(a) and (b).
While it is evident that Cabot has some involvement in the project at issue in
the Rapides Parish suit, Saulsbury failed to demonstrate that Cabot is a party needed
for just adjudication pursuant to La. C.C.P. art. 641. A person should be deemed
10
needed for just adjudication only when absolutely necessary to protect substantial
rights. Industrial Companies, Inc. v. Durbin, 2002-0665 (La. 1/28/03), 837 So.2d
1207, 1217. Thus, we find no merit in this assignment of error.
Venue is Mandatory in St. Mary Parish Pursuant to the Private Works Act
Finally, Saulsbury argues that it filed lien claims against Cabot and Cleco in
St. Mary Parish where the immovable property at issue is located pursuant to the
provisions of the Private Works Act codified as La. R.S. 9:4801, et seg. Saulsbury
maintains that, under the Private Works Act, venue is mandatory where the work is
performed and where the lien rights arise. According to Saulsbury, mandatory venue
is considered jurisdictional venue; therefore, its suit may not be brought in any other
parish. Thus, Saulsbury asserts that the St. Mary Parish court has exclusive
Jurisdiction and venue over its lien claims, which cannot be pursued in Rapides
Parish. Notably, Saulsbury does not cite a provision of the Private Works Act to
establish that venue is mandatory in a particular parish. Instead, it relies on La.
C.C.P. art. 72, which pertinently provides that an action to enforce a privilege by an
ordinary proceeding may be brought in the parish where the property, or any portion
thereof, is situated. Saulsbury also relies on Gurtler, Hebert & Co. v. Marquette
Casualty Co., 145 So.2d 145, 148 (La. App. 4th Cir. 1962), stating that, although
Article 72 uses the permissive “may,” this venue provision should be deemed
mandatory. For reasons discussed below, we disagree with Saulsbury’s assertion
that venue was mandatory in St. Mary Parish and to the extent this holding is
inconsistent with Gurtler, we decline to follow it.
As contractor, Saulsbury was entitled to assert a privilege on an immovable
to secure the owners’ obligations arising out of work performed on the immovable.
La. RS. 9:4801, prior to Acts 2019, No. 325, § 1, eff. Jan. 1, 2020. At the time
Saulsbury filed the statements of claim and privilege in 2018 and 2019, La. R.S.
9:4831(A) provided that the filing of a statement of claim or privilege required or
1]
permitted to be filed under the provisions of the Private Works Act is accomplished
when it is filed for registry with the recorder of mortgages of the parish in which the
work is to be performed.* This provision clearly sets forth a mandatory filing
requirement for the statement of claim or privilege, which Saulsbury complied with
by filing the statements in St. Mary Parish.°
In 2018 and 2019, La. R.S. 9:4823(A)(2) stated that a privilege provided by
La. R.S. 9:4801 is extinguished if the “claimant or holder of the privilege does not
institute an action against the owner for the enforcement of the claim or privilege
within one year after filing the statement of claim or privilege to preserve it...’
The statute did not (and currently does not) state that the action must be filed in any
particular parish, in contrast to La. R.S. 9:4831, which dictates where the statement
of claim or privilege must be filed.
We have found no jurisprudence establishing a “mandatory venue” for
purposes of an action to enforce a claim or privilege granted by the Private Works
Act, and the parties cite none. Nevertheless, we find guidance in the Louisiana
Supreme Court’s consideration of the Louisiana Oil Well Lien Act in Guichard
Drilling Co. v. Alpine Energy Services, Inc., 94-1275 (La. 7/3/95), 657 So.2d 1307,
1313, which creates a privilege similar to the Private Works Act. At the relevant
time, the Oil Well Lien Act provided that a notice of claim or privilege setting forth
the nature and amount thereof shall be filed and inscribed in the mortgage records
of the parish where the property is located. La. R.S. 9:4862(A)(1);7 Id. The Oil Well
Lien Act further provided that the privilege shall be extinguished if a claimant or
* Louisiana Revised Statutes 9:4831 was amended by Acts 2019, No. 325, § 1, eff. Jan. 1, 2020.
> We make no finding concerning the validity or enforceability of the lien or privilege claimed by
Saulsbury.
° Louisiana Revised Statutes 9:4823 was also amended by Acts 2019, No. 325, § 1, eff. Jan. 1,
2020.
7 This provision was subsequently amended and reenacted by Acts 1995, No. 962, $1 and then
amended by Acts 2012, No. 394, § 2, eff. Aug. 1, 2012.
12
holder of the privilege fails to institute an action thereon within one year after the
date of recordation of notice of the privilege. La. R.S. 9:4865;° /d. Like the Private
Works Act, this provision did not expressly require the lien claimant to file suit in a
particular parish.
The Supreme Court noted that Guichard performed the acts required by La.
R.S. 9:4865. It properly recorded its lien by filing an affidavit in the mortgage
records of St. Martin Parish, where the well was drilled. Guichard Drilling Co., 657
So.2d at 1310, 1318. It then instituted an action in Plaquemines Parish seeking a
judgment for the debt owed and a judgment recognizing its lien on the subject
property. /d. at 1318. One of the defendants, whose property was potentially affected
by the lien, argued that Plaquemines Parish was not the proper venue for Guichard’s
suit for recognition of its lien. /d. at 1317, n.11. The court noted that venue was no
longer subject to challenge because no objection to venue was made in the
Plaquemines proceeding, which had been reduced to final judgment. Although it
did not rule on the issue, the court noted that “venue of the Plaquemines Parish
judgment appear[ed] to be proper under La.Code Civ.P. arts. 72, 45, and 42.” Id.
This supports Cleco’s argument that, pursuant to La. C.C.P. art. 45(3), venue
under Article 72 is not mandatory. Article 45 specifically identifies the venue
articles that govern “exclusively” if a conflict exists between the venue provisions.
Article 45(3) provides that if the “exclusive” venue articles are not applicable, none
of which apply here, and there is a conflict between two or more of Articles 42 and
71 through 77, including Article 72 at issue, the plaintiff may bring the action in any
venue provided by any applicable article. Had Saulsbury been the first to file suit
against Cleco concerning the construction project, it would have had the option to
file suit in the venue of its choosing pursuant to any applicable venue article.
® This provision was also amended and reenacted by Acts 1995, No. 962, §1 and then amended by
Acts 2001, No. 128, § 4, eff. July 1, 2001; Acts 2012, No. 394, § 2, eff. Aug. 1, 2012.
13
However, Cleco filed first and, at its discretion, elected to proceed in Rapides Parish
as allowed by La. C.C.P. art. 76.1. Cleco correctly argues that Saulsbury, as a
defendant in the plaintiffs chosen venue, is not without recourse. Instead, Saulsbury
is required to file a compulsory reconventional demand against Cleco in the Rapides
Parish proceeding to assert “all causes of action” that it may have against Cleco that
arise out of the transaction that is the subject of the principle action, including a
claim to enforce a lien or privilege. La. C.C.P. art. 1061(B).
We agree with Cleco and reject Saulsbury’s argument that venue is mandatory
in St. Mary Parish such that its lien enforcement action pursuant to the Private Works
Act cannot proceed against Cleco in Rapides Parish.’ See Guichard, 657 So.2d at
1314 (‘while the general rule of strict construction applies to the substantive
provisions which create a lien, once it is determined that the substantive provisions
provide for a lien, provisions relative to the enforcement of the lien are construed
liberally because of their remedial nature.”). We find no error in the trial court’s
judgment granting the exception of lis pendens in favor of Cleco, dismissing the
claims filed against it by Saulsbury in St. Mary Parish, and decline to reverse this
portion of the November 23, 2020 judgment. While we recognize that our ruling
results in piecemeal litigation and does not promote judicial efficiency, we must
apply the law to the facts and evidence before us, taking the record and the status of
the proceedings as we find them.
” Cleco also asserts that the doctrine of issue preclusion applies to Saulsbury’s challenge to venue
and jurisdiction made before this court, because the October 5, 2020 Rapides Parish judgment
denied Saulsbury’s exceptions of non-joinder and venue. We disagree that issue preclusion applies
here. While it appears the Rapides Parish trial court denied an exception of non-joinder filed by
Saulsbury, it is not evident from the face of the October 5, 2020 judgment that the exception
identified Cabot as the party needed for just adjudication. Additionally, the venue issue presented
here concerns Saulsbury’s lien enforcement action, a claim not pending before the Rapides Parish
court.
14
CONCLUSION
For the foregoing reasons, the portion of the November 23, 2020 judgment
granting the exception raising the objection of lis pendens in favor of Cabot
Corporation is reversed and the matter is remanded to the trial court for further
proceedings. The portion of the November 23, 2020 judgment granting the
exception raising the objection of lis pendens in favor of Cleco Power, LLC is
affirmed. Costs of this appeal are assessed equally between Saulsbury Industries,
Inc. and Cabot Corporation, with each party to pay one-half of the total costs.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
15