text:
    Lyle TOOMER v. A-1 FENCE & PATIO, INC. and Travelers Property Casualty Company of America.
    No. 2008 CA 2197.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 27, 2009.
    Writ Denied Feb. 5, 2010.

      John S. Lawrence, Jr., Charles W. Farr, Mandevilie, LA, for Plaintiff-Appellant, Lyle Toomer.
    David J. Bourgeois, Philip G. Watson, Duplass, Zwain, Bourgeois, Pfister & Weinstock, Metairie, LA, for Defendant-Appellee, A-l Fence & Patio, Inc.
    George D. Fagan, Marc E. Devenport, Leake & Andersson, LLP, New Orleans, LA, for Defendant-Appellee, Travelers Property Casualty Company of America.
    Before PARRO, McCLENDON, and WELCH, JJ.
   PARRO, J.

|2Lyle Toomer appeals a judgment sustaining exceptions raising the objection of prescription filed by A-l Fence & Patio, Inc. (A-l) and its liability insurer, Travelers Property Casualty Company of America (Travelers), dismissing his claims against both defendants for fire damage to buildings he owned that were leased to and occupied by A-l when a fire occurred. For the following reasons, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In late March 2006, a fire destroyed several buildings owned by Toomer; A-l was the lessee/occupant of the buildings when the fire occurred and was insured by Travelers. On March 5, 2007, Toomer and A-l filed suit against Travelers in the Twenty-Second Judicial District Court, Parish of St. Tammany (22nd JDC), to recover property damages that they believed were covered under the policy. Travelers removed the suit to the United States District Court for the Eastern District of Louisiana, where, on April 23, 2008, Judge Sarah S. Vance dismissed the suit on summary judgment. She concluded that Toomer was not a named insured and, therefore, was not covered under the policy, and that the policy did not provide coverage to A-l for the fire damage, because A-l had not purchased business owner’s property coverage or coverage for loss of business income. Moreover, the comprehensive general liability provision of the policy did not provide first-party coverage. Therefore, Travelers would be liable for damage to the leased building only if A-l had a legal obligation to pay for the fire damage. However, tho judge noted that Toomer and A-l had only sought to recover against Travelers as first-party insureds; no claim was advanced for A-l’s negligence. In reasons for judgment, Judge Vance stated, “Toomer might be able to recover against A-l and Travelers if he obtains a judgment that A-l was negligent, but he has asserted no such claim here, and the Court would not have jurisdiction over it if he did.”

On March 27, 2008, while the first suit was still pending in federal court, Toomer hailed this suit against A-l and Travelers, alleging that the fire was caused by the negligence of A-l and/or its employee(s) and that liability coverage was provided to A-l under the Travelers policy, including coverage for the risk of fire damage to property leased by A-l. Both defendants filed exceptions raising the objection of prescription on the grounds that the second suit was prescribed on its face and that Toomer’s first suit for contractual coverage of property losses and breach of contract against Travelers did not interrupt the running of prescription on his second suit for tort damages against A-l and Travelers. The district court sustained the defendants’ exceptions of prescription and dismissed this lawsuit with prejudice in a judgment signed July 10, 2008.

In reasons for judgment, the district court explained:

The final judgment in [the federal] suit found that Travelers, in its capacity as first party insurer of A-l, was not liable for its damages caused by the fire.
There was no solidary liability of Travelers and A-l in that federal litigation. In the case at bar, the plaintiff argues that A-l and Travelers are solidarity liable, and that prescription was interrupted by the federal litigation. However, in the federal suit, Travelers was not sued in its capacity as the liability insurer of A-l due to the negligence of A-l.
$ $ ⅜
The filing of the original lawsuit, removed to federal court, did not interrupt prescription on the claims now asserted by Toomer against Travelers and A-l. Travelers was sued in the federal suit in a capacity different from that for which it is sued in this lawsuit. That claim involved Travelers in a totally different legal status, as the alleged insurer of the contents, property and assets belonging to its insured A-l.
This lawsuit against A-l Fence & Patio, Inc. and Travelers Property Casualty Company of America is prescribed.

Toomer timely appealed the judgment. The issue on appeal is whether Toomer’s first suit against Travelers interrupted the running of prescription on his tort claims against A-l, such that this suit against A-1 and Travelers is timely.

APPLICABLE LAW

Liberative prescription is a mode of barring of actions as a result of inaction for a period of time. LSA-C.C. art. 3447. Delictual or tort actions are subject to a liberative prescription of one year, which commences to run from the day injury or damage is sustained. LSA-C.C. art. 3492. Generally, prescription statutes are strictly construed against prescription and in favor of the claim sought to be extinguished by it. Bailey v. Khoury, 04-620 (La.1/20/05), 891 So.2d 1268, 1275. Prescription is interrupted when the obligee commences an action against the obligor in a court of competent jurisdiction and venue. See LSA-C.C. art. 3462. A civil action is a demand for the enforcement of a legal right. It is commenced by the filing of a pleading presenting the demand to a court of competent jurisdiction. LSA-C.C.P. art. 421. An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. See LSA-C.C. art. 3463. When interruption occurs, prescription begins to run anew from the last day of the interruption. See LSA-C.C. art. 3466; LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, 1229; Bordelon v. Medical Ctr. of Baton Rouge, 03-0202 (La.10/21/03), 871 So.2d 1075, 1083.

Articles 1799 and 3503 of the Civil Code provide that the interruption of prescription against one solidary obligor is effective against all solidary obligors. An obligation is solidary for the obligors when each obligor is liable for the whole performance. A performance rendered by one of the solidary obligors relieves the others of liability toward the obligee. LSA-C.C. art. 1794. An obligation may be solidary though it derives from a different source for each obligor. LSA-C.C. art. 1797. A liability insurer and its insured are solidary obligors, such that interruption of prescription against one is effective against the other. See LSA-R.S. 22:1269(B)(1); Stogner v. Allbritton, 06-1863 (La.App. 1st Cir.6/8/07), 965 So.2d 408, 413.

Generally, the burden of proving that a cause of action has prescribed rests with the party pleading prescription; however, when the plaintiffs petition shows on its face that the prescriptive period has run, and the plaintiff contends there is a suspension or interruption of prescription, the burden is on the plaintiff to prove suspension or interruption. St. Romain v. Luker, 00-1366 (La.App. 1st Cir.11/9/01), 804 So.2d 85, 88, writ denied, 02-0336 (La.4/19/02), 813 So.2d 1083. Moreover, when the plaintiffs basis for claiming an interruption of prescription is solidary liability between two or more parties, the plaintiff bears the burden of proving that a solidary relationship exists. See Younger v. Marshall, 618 So.2d 866, 869 (La.1993); Waguespack v. Richard Waguespack, Inc., 06-0711 (La.App. 1st Cir.2/14/07), 959 So.2d 982, 985.

ANALYSIS

The fire that destroyed Toomer’s buildings occurred on March 26, 2006. This suit was filed on March 27, 2008, and is prescribed on its face. Toomer, therefore, had the burden of proving a suspension or interruption of prescription. Since Toomer claims the interruption of prescription was based on the solidary liability of A-l and Travelers, he has the burden of proof on this issue also.

Toomer contends A-l and Travelers are solidarily liable for the damages claimed in this suit, because those damages were caused by the negligence of A-l and/or its employee, and as A-l’s liability insurer, Travelers is solidarily liable with A-l for those damages. For this reason, Toomer argues that the running of prescription on this suit naming A-l as a defendant was interrupted by the timely filing of the first suit against Travelers in the 22nd JDC, which, after being removed to federal court, was still pending when this suit was filed. Toomer’s assignment of error claims the trial court erroneously concluded that Travelers was not solidarily liable with its insured, A-l, and thus erred by finding that the timely filed suit against Travelers in a court of competent jurisdiction and venue did not interrupt the running of prescription as to the later suit against A-l and Travelers arising out of the same occurrence. Toomer claims the district court incorrectly interpreted the federal court’s judgment in the first suit, because although that judgment concluded there was no coverage for the specific contractual claims asserted in that suit, it did not rule on the issue of Travelers’ ultimate liability for the fire damages claimed in both suits. He also argues that because the original suit put Travelers and A-l on notice of his claim for property damages due to the fire, that notice sufficed to interrupt prescription as to the claim for damages based on negligence in the second suit, which was based on the same material facts as the first suit. Toomer contends this is not a case in which claims are made in a second suit|(iagainst a previously unnamed third party with no knowledge of the underlying factual situation giving rise to the claims. He notes that A-l knew that Travelers had conducted an investigation into the origin of the fire to determine whether the negligence of an A-1 employee had caused it. Therefore, Toomer concludes the first suit against Travelers interrupted prescription against A-l.

Travelers and A-l disagree and make the following argument. Toomer and A-l filed a lawsuit against Travelers based on fire damage to their property, for which they claimed Travelers was contractually obligated to provide coverage. That suit was dismissed, because Toomer was not an insured under the Travelers policy, and Travelers did not have a contractual obligation to A-l under its policy to pay for the fire losses A-l claimed in the first suit. While that suit was pending, Toomer sued Travelers again for the same damages, adding A-l as a defendant and claiming the damages were due to the fault of A-l. A-l was not a defendant in the first suit, and there were no allegations in the first suit that any fault of A-l might have caused the fire damage. Therefore, suit against A-l was prescribed, unless the running of prescription was interrupted by the first suit against Travelers. Because Travelers was not solidarity liable with A-1 in the first suit, that suit did not interrupt prescription on the tort claim against A-l in the second suit. Moreover, the filing of the first suit, in which A-l was a plaintiff, certainly gave A-l no notice that Toomer would assert a liability claim against it.

This court has thoroughly reviewed the facts and law, as discussed in oral arguments and in the well-written briefs of the parties. Under the circumstances of this case, we conclude that Toomer’s claim against A-l in this suit is prescribed, and the trial court correctly dismissed his claims against A-l and Travelers. As noted by the trial court, based on the claims made in the first suit, Travelers and A-l were not solidary obligors. The first suit made no allegations that A-l might be liable for the fire damages, nor did it allege that Travelers might be liable because of the negligence of its insured, A-l. That suit claimed only that Travelers should pay for the fire damages because of its contractual obligation to A-l. Therefore, although Travelers had notice in 17the first suit that it might be required to pay for some of the fire losses incurred by A-l under some provision of its insurance contract with A-l, A-l did not have notice in that suit that it might be required to pay for the fire damages.

Toomer cites Allstate Ins. Co. v. Theriot, 376 So.2d 950 (La.1979), in which an allegedly untimely intervention was based on the same accident, the same injuries, and the same negligence of the same defendants as the original petition. Therefore, even though the original petition was dismissed for no cause of action, those defendants had notice of the material facts out of which the intervenor’s claim arose and of their potential liability as negligent tort-feasors. Toomer contends that because Travelers knew, before the expiration of the prescriptive period, that legal demands were made upon it from the occurrence described in the petition in the first suit, prescription was interrupted as to the second suit based on the same occurrence. However, although the allegations in the first suit certainly put Travelers on notice of its possible contractual obligation, it did not put A-l on notice that it might be subject to potential tort liability arising out of the fire.

The key factor in this case is whether the first suit was filed against a party who was solidarily liable with the party added as a defendant in the second suit. It is clear that, as the federal court found and the district court in this case reiterated, there was no solidary liability between Travelers and A-l in the first suit, nor could there have been, on the basis of the claims asserted there. Those claims could only have been brought against a party with an actual or potential obligation to a particular claimant (or claimants) stemming from a particular contract with that claimant. Travelers may have been obligated to reimburse A-l for some or all of its losses under the terms of its insurance contract. As to Toomer, who was not an insured under the policy, there was no such contractual obligation at all. So Travelers was not and could not have been obligated to Toomer for reimbursement of any of his losses claimed in the first suit. And, based on those contractual claims, A-1 certainly could not have had any liability to Toomer.

It is equally clear that based on the allegations in the second suit, Travelers and |sits insured, A-l, were potentially sol-idarily liable for the claims asserted by Toomer. If A-l, through the acts of its employee(s), were found to have negligently caused the fire, then A-l would be obligated to reimburse Toomer for the losses he sustained. By the terms of Travelers’ policy with A-l, Travelers would pay any sums that its insured was legally obligated to pay as damages. Therefore, both A-l and Travelers were potentially liable to Toomer for payment of the same losses, and payment by one would relieve the other of its obligation to him.

What distinguishes this case from those cited in support of a finding of solidary liability is that in the first suit, the allegations against Travelers were such that its potential obligation could only be in favor of a claimant who was an insured under the policy, whereas in the second suit, the allegations are such that its potential liability is to another claimant and is brought on a completely different legal premise. Toomer relies on the case of Hidalgo v. Dupuy, 122 So.2d 639 (La.App. 1st Cir.1960), in which the plaintiff suffered personal injuries in a motorcycle accident and brought suit in federal court only against the tortfeasor’s insurer. Based on a policy provision that did not allow a direct action against the insurer until a judgment had been obtained against the insured, the case was dismissed. Nine months later, the plaintiff sued the tortfeasor for the same injuries, the same accident, and the same negligence as was claimed in the first suit. This court held that the second suit was interrupted by the filing of the first, because under the policy, the insurer and the insured were both liable for the same debt. Obviously, in the Hidalgo case, the defendant sued in the first suit was solidarily liable, based on the claims made in the first suit, with the defendant sued in the second suit. In the matter before us, Travelers and A-l were not solidarily liable, based on the claims made in the first suit, which did not allege that the insurer’s liability was based on the negligence of its insured. Therefore, we do not agree that Hidalgo is controlling in this case.

Rather, we find support for Travelers’ and A-l’s position in the case of Trahan v. Liberty Mut. Ins. Co., 314 So.2d 350 (La.1975). There, the widows and children of four salt mine workers killed in a mining accident brought a tort suit against the liability 1¡¿usurers of six executive officers of the mining company. After a trial, all six were found not liable and the case was dismissed. Within a year after judgment in the first suit, two of the original plaintiffs filed a second suit, based on the negligence of two of the deceased workers whose families were their co-plaintiffs in the first suit, along with the same liability insurers named as defendants in the first suit. Explaining its judgment that the case was prescribed, the supreme court stated:

Liberty Mutual and INA were defendants in the first suit only as insurers of the six named executive officers and are defendants in the instant suit only as insurers of [the deceased worker]. Article 2097 being applicable only between solidary debtors, there must be a soli-dary obligation to plaintiff of a defendant of the first suit and a defendant of the second suit as to the claim asserted in the first suit. Stated another way, there must be a solidary obligation to plaintiff of one or more of the six named executive officers (and, as a consequence, their insurers) and [the deceased employee], as in this case the insurers are liable only in their capacities as insurers of their respective insureds. The judgment in the first suit absolving the six named executive officers (and, as a result, their insurers) means that those executive officers (and their insurers, in that capacity) cannot be solidary debtors with [the deceased employee] (and accordingly his insurers in that capacity) as they are not liable to plaintiff on the claim asserted in the first suit. (Footnote and emphasis added).

Trahan, 314 So.2d at 355-56. This case clearly states that there must be solidary liability between a defendant in the first suit and a defendant in the second suit, as to the claim asserted in the first suit. In the matter before us, there was no such solidarity as to the contract claim asserted by Toomer in the first suit. As to that claim, Travelers and A-l were not, and could not have been, solidarity liable to Toomer. Therefore, his suit against Travelers did not interrupt prescription as to A-l, and the second suit against A-l is prescribed.

CONCLUSION

Based on the foregoing, we affirm the judgment of July 10, 2008, dismissing as prescribed Toomer’s suit against A-l and Travelers. All costs of this appeal are assessed to Toomer.

AFFIRMED.

      . The petition also alleged breach of contract and arbitrary and capricious violation of Travelers' obligations under LSA-R.S. 22:1220, entitling the plaintiffs to statutory penalties.

      . A-1 Fence & Patio, Inc. v. Travelers Prop. Cas. Co. of America, No. 07-1855 (E.D.La. Apr. 23, 2008), 2008 WL 1835200.

      . This statute was renumbered from LSA-R.S. 22:655 by 2008 La. Acts, No. 415, § 1, effective January 1, 2009.

      . There is no dispute that the 22nd JDC had jurisdiction and was a court of proper venue. See LSA-C.C. art. 3463.

      . There is also no dispute that if the first suit interrupted the running of prescription, the interruption continued as long as that suit was pending.

      . Former Civil Code article 2097 stated, "A suit against one of the debtors in solido interrupts prescription with regard to all.” Its substance is now found in Articles 1799 and 3503.


source: Caselaw Access Project

author: DOWNING, J.

license: Public Domain

text:
    Vanessa Faye BATTISTE v. DOLGENCORP d/b/a Dollar General.
    No. 2009 CA 0683.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 27, 2009.
    Allen J. Myles, Plaquemine, LA, for Plaintiff/Appellant, Vanessa Faye Battiste.
    Michael M. Meunier, Stephen C. Resor, Adrienne L. Black, New Orleans, LA, for Defendant/Appellee, Dollar General.
    Before DOWNING, GAIDRY and McClendon, jj.
   DOWNING, J.

|2In this workers’ compensation suit, the employee, Vanessa Faye Battiste, appealed; the employer, Dolgencorp, Inc. d/b/a Dollar General, answered the appeal. The Office of Workers’ Compensation Judge (WCJ) rendered judgment in favor of Ms. Battiste and against Dollar General. In pertinent part, the WCJ ruled that Ms. Battiste suffered a work-related accident/injury on April 28, 2006, and also suffered an aggravation to a pre-existing back condition which lasted from April 28, 2006 to July 28, 2006. The WCJ, however, found that Ms. Battiste did not meet her burden of proof in establishing that her current medical condition was related to the April 28, 2006 accident. The WCJ found that Dollar General reasonably controverted the claim and therefore was not assessed penalties, attorney fees or costs. Ms. Battiste appealed, alleging that the WCJ erred in failing to consider the facts in light of the “working-in-pain” jurisprudence. For the following reasons, we affirm the WCJ judgment.

Factual findings in workers’ compensation cases are subject to the clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. An appellate court cannot set aside the WCJ’s factual findings unless it determines there was no reasonable basis for those findings, or if there is support in the record for the findings, that the record as a whole shows the findings are clearly wrong. See Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

Ms. Battiste argues that the court ignored the jurisprudence associated with “working in pain.” She contends that [s]he presented ample evidence that she continued working even while experiencing severe back pain, which was a direct result of the work-related injury.

|⅜A careful review of the record indicates that the WCJ heard medical testimony that Ms. Battiste’s injury could have caused her aggravation of back pain for up to a three month period. The medical records also show that she sought treatment and was compensated during that time frame. In the WCJ’s oral reasons, she stated that although Ms. Battiste appeared credible, “she was very inconsistent” and “basically, a bad historian.” The WCJ commented that Ms. Battiste had a really bad flare-up prior to the accident. It also noted that Ms. Battiste was complaining of the exact symptoms now that she complained of prior to her work-related injury. Thus, after a thorough review of the record, we conclude that the WCJ had a reasonable basis to reach her decision. The record supports that conclusion. The WCJ therefore, was not clearly wrong in concluding that the aggravation of Ms. Battiste’s pre-existing condition ended three months after her on-the-job accident. Ms. Battiste’s assignment of error is without merit.

Dollar General, citing LSA-C.C.P. art. 2133, answered the appeal requesting additional attorney fees for the work involved in defending this appeal. We conclude however, that Dollar General was not awarded attorney fees below and has cited no valid authority to be awarded attorney fees on appeal. This request is denied.

As this appeal involves no more than an application of well-settled rules to a recurring fact situation, we affirm the WCJ judgment by summary disposition in accordance with Uniform Rules — Courts of Appeal, Rule 2 — 16.1(B). Vanessa Faye Bat-tiste is assessed with the costs of these proceedings.

AFFIRMED, ANSWER TO APPEAL DENIED.


author: McClendon, j.

text:
    STATE of Louisiana in the Interest of A.L.
    No. 2009 CJ 1085.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 27, 2009.
    Randall A. Fish, Lacombe, Louisiana, for Plaintiff/Appellant, M.F., Maternal Grandmother.
    Sherry Watters, Dept, of Social Services, OCS, Harahan, Louisiana, for Ap-pellee, State of Louisiana, Department of Social Services, Office of Community Services.
    Before DOWNING, GAIDRY and McClendon, jj.
   McClendon, j.

|2In this “child in need of care” case, the maternal grandmother appeals the trial court’s judgment that denied her petition to intervene in the proceedings. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 25, 2007, three-year-old A.L. was adjudicated a child in need of care due to the neglectful lifestyle of her mother and the absence and neglect of her father. The judgment of adjudication and disposition was signed on October 10, 2007. With certain restrictions, A.L. was allowed to remain in the custody of her mother, S.L., and her maternal grandmother, M.F.

On October 18, 2007, the district court issued an instanter order, taking A.L. into the temporary custody of the state through the Department of Social Services’ Office of Community Services (OCS), after finding that S.L. was unable to provide independently for the needs of A.L. Based on the affidavit submitted in support of the order, the court determined the following. S.L. was in a relationship with Joshua Sicard involving domestic violence and substance abuse. S.L. had been admitted to a psychiatric facility in July 2007 due to a suicide attempt after a violent altercation with Sicard. Also, S.L. and her mother, M.F., were involved in a physical altercation in the presence of A.L. that involved hitting, cursing, and yelling. S.L. had moved several times in the past few months, and at the time of the order was living in a home with Sicard and two other people. At the insistence of M.F., S.L. had previously signed a temporary transfer of custody of A.L. to M.F. The court determined that S.L. was not able to provide for the daily needs of her daughter. J.S., the biological father of A.L., was absent and never involved in A.L.’s life.

Additionally, A.L. was living in the home of M.F., who had been the subject of several valid investigations by OCS for lack of supervision and dependency. M.F.’s children were removed from her care in 1987 and in 2001 |sdue to grave concerns about her mental and emotional functioning. OCS was also involved with M.F.’s son, P.L., due to valid allegations of lack of supervision, sexual fondling, and exposure toward his own children and a step-child. S.L. also reported that she was sexually abused by P.L. as a child and that her mother knew about it but told her not to say anything. Evaluations from a licensed social worker and a clinical psychologist both indicated that M.F. was unable to protect A.L. from harm due to her mental functioning and her denial that her son had engaged in any inappropriate sexual behavior with children. There were also concerns that A.L. may have been sexually abused. Both reports indicated that A.L. should not be placed in the home of M.F.

Periodic review hearings followed, continuing A.L. in the custody of OCS, but always with the goal of reunification between A.L. and S.L. However, in a twelvemonth case review letter to the court on October 1, 2008, OCS requested a goal change to adoption. Apparently in response thereto, M.F. filed a petition for intervention on October 23, 2008. Therein, she stated her belief that at the next case review hearing OCS would be recommending adoption and that her desire was for A.L. to be returned to her in the event she was not returned to S.L. M.F. also stated that she was willing to adopt A.L. if parental rights were terminated. M.F. contended that she could provide a permanent, safe and stable home and meet all of A.L.’s needs, and asked that she be given preferential consideration in the permanency planning for A.L. Thus, M.F. urged, good cause existed for the intervention pursuant to LSA-Ch.C. art. 697, as her interest in the case was to facilitate the permanent placement of A.L.

Following a hearing on March 17, 2009, the district court denied M.F.’s request for intervention finding no good cause why the intervention should be allowed. Thereafter, M.F. timely appealed.

14APPLICABLE LAW

Article 697 of the Louisiana Children’s Code provides:

A. For good cause shown, the court or administrative review body may allow any interested person, agency, or organization to intervene in the case review proceedings to facilitate the permanent placement of the child and to insure that the best interests of the child are protected.
B. Upon motion of a party and for good cause shown, the court or administrative review body may limit the nature and extent of intervener’s participation in the case review hearing.

Thus, intervention is discretionary with the court and is limited “to facilitate the permanent placement of the child and to insure that the best interests of the child are protected.” LSA-Ch.C. art. 697 A.

DISCUSSION

On appeal, M.F. argues that the district court committed reversible error in denying the petition for intervention because the court did not consider M.F.’s home a suitable placement, rather than considering whether “good cause” existed for the intervention. We disagree.

M.F. contends that because she is A.L’s grandmother, her relationship with A.L. should be given preference and be sufficient to constitute “good cause” for purposes of the intervention. The Children’s Code does require that placements with relatives be given preference, unless the court has made a specific finding that such placement is not in the child’s best interest. LSA-Ch.C. art. 683 B. In this matter, following a case review hearing on October 23, 2007, the district court issued an order of continued custody with OCS finding it necessary for the child’s safety and protection. The court further found that although OCS had attempted to find suitable relatives for placement, “said relative placement is not in the best interest of the child for the reason that: the immediate and extended family have a long child protection history which prevented the agency from immediately considering relatives.” Thus, the court had made a specific finding that relative placement was not in A.L.’s best interest.

| bAt the hearing, M.F. had trouble remembering the number of valid investigations by OCS regarding her parenting. She remembered four, two of which resulted in her children being placed in foster care. She acknowledged that one of the reasons S.L. had been placed in foster care as a child was because of the allegations of sexual abuse made by S.L. against P.L. M.F. also acknowledged that P.L. was currently in jail for alleged sexual abuse of his girlfriend’s daughter. However, M.F. had trouble acknowledging any wrongdoing by P.L. and was unable to acknowledge that P.L. may have abused A.L. She could only say that P.L. was never left alone with A.L. M.F. also testified that she was living in the home of her employer, providing him care since he was disabled.

The OCS case manager testified that A.L.’s disclosure of sexual abuse by P.L. led to her removal from M.F.’s home. She also stated that OCS was against the placement of A.L. with M.F.

The district court concluded that A.L. would be at risk in M.F.’s home. Discussing M.F.’s history with OCS and her own children, the physical altercation between M.F. and S.L., M.F.’s psychological diagnosis of bi-polar disorder, and M.F.’s reaction to the allegations of sexual abuse by P.L., the court found that M.F. would not act differently than she had in the past and therefore would not protect A.L. The court also stated that M.F. had no permanent place to live and no adequate living situation for A.L. Based on M.F.’s testimony alone, the court found that M.F. was not a valid placement.

Upon a thorough review of the record, we cannot say that the district court erred in finding that M.F. failed to meet her burden of showing “good cause” for an intervention. Intervention by M.F. would neither assist in facilitating the permanent placement of A.L. nor insure the child’s best interests. Thus, we cannot say that the distinct court abused its discretion in denying M.F.’s petition to intervene.

| fiFor the above and foregoing reasons, the judgment of the district court is affirmed. Costs of this appeal are assessed to M.F.

AFFIRMED.

      . Two of those restrictions were that there was to be no contact between A.L. and her uncle, P.L., and that there was to be no contact between A.L. and Joshua Sicard.

      . After several continuances, the twelvemonth dispositional case review and permanency review hearing was held on March 17, 2009. The court ordered that A.L. be continued in the custody of OCS, that reunification was impossible at that time, but that reunification was the plan for permanent placement of A.L.

      . A.L.'s father, J.S., surrendered his parental rights by a voluntary act of surrender dated February 9, 2009.


author: GUIDRY, J. CARTER, C.J.,

text:
    ROOF TECHNOLOGIES, INC. v. STATE of Louisiana, DIVISION OF ADMINISTRATION, OFFICE OF FACILITY PLANNING AND CONTROL.
    No. 2009 CA 0925.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 28, 2009.
    Paul J. McMahon, III, Lafayette, LA, for Plaintiff/Appellee, Roof Technologies, Inc.
    Pamela Miller Perkins, Jason Bonaventure, Carlos Romanach, Karen A. Loftin, Baton Rouge, LA, for Defendant/Appellant, State of Louisiana, Division of Administration, Office of Facility Planning and Control.
    Before CARTER, C.J., WHIPPLE, KUHN, GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

|2The State of Louisiana, Division of Administration, Office of Facility Planning and Control (OFPC), appeals a trial court judgment granting injunctive and declaratory relief to a rejected bidder on a public works project. Considering the facts and evidence presented, we reverse.

FACTS AND PROCEDURAL HISTORY

Roof Technologies, Inc. (Roof Tech), a corporation duly organized and existing under the laws of Louisiana, with its principal place of business in Jefferson Parish, submitted a bid for a public works project in New Orleans described as “Repair and Restoration of Historic Garrison Roofs at Jackson Barracks.” By a letter dated February 5, 2009, OFPC notified the president of Roof Tech that the company’s bid was rejected for “several typographical correction tape or liquid paper corrections or erasures on pages B3-7, and B4-7 of the bid form that you failed to initial, as required by the Instructions to Bidders in 5.1.4 and [La. R.S.] 38:2212(A)(l)(b).”

Roof Tech contested this finding and action by the OFPC, and upon receiving notice that the OFPC was rebidding the project, Roof Tech filed a petition for in-junctive relief to enjoin the OFPC from awarding the contract for the project to any other bidder and for declaratory relief to be declared the lowest, responsive bidder for the project. Following a hearing, the trial court rendered judgment as prayed for by Roof Tech in its petition. It is from this judgment that the OFPC appeals.

ASSIGNMENTS OF ERROR

The OFPC alleges that the following findings and actions by the trial court resulted in the trial court erroneously granting Roof Tech injunctive and declaratory relief as prayed for:

|31. By focusing on “typographical errors” instead of Roof Tech’s failure to initial its alterations and/or erasures as required by the bid documents;
2.In reading Instruction to Bidder 5.1.3 that pertained to discrepancies between numbers and written words in pari materia with Instruction to Bidder 5.1.4 that pertains to erasures and alteration needing to be initialed;
3. In finding that the law prohibiting waiver of the requirements of the bid document was not implicated in this factual situation; and
4. In enjoining the State from rebidding this Project when all bidders exceeded the amount available for construction.

DISCUSSION

The primary issue to be resolved in this appeal is whether Roof Tech’s bid could validly be rejected because several corrections contained in its bid joroposal were not initialed. Instruction 5.1.4 of the “Instructions to Bidders” contained within the contract documents for the project states “[a]ny interlineations, alteration or erasure must be initialed by the Signer of the bid or his authorized representative.” Furthermore, La. R.S. 38:2212 A(l)(b)(i) states “[t]he provisions and requirement of this Section,[] those stated in the advertisement for bids, and those required on the bid form shall not be waived by any entity.”

At the hearing on this matter, the president of Roof Tech, William Luebbert, who signed the bid proposal on behalf of Roof Tech, and Tiffany Griffin, the administrative assistant who typed the bid proposal submitted by Roof Tech, testified. Ms. Griffin acknowledged that while typing the bid proposal she corrected some typing errors she made by using the “word-out” function key on the typewriter. The errors are clearly visible as faint shadows beneath the correctly typed characters on pages nine and ten (alternately labeled as pages B3-7 and B4-7 in the lower right-hand corner of the pages) of the bid proposal Roof Tech submitted. Ms. Griffin testified that she only gets Mr. Luebbert to initial a change l4to a “whole” number, not just one correction made by the typewriter. Mr. Luebbert further explained that typically he does not initial an error “that is being corrected by a machine,” but a handwritten correction of an error he does initial.

The OFPC submitted copies of pages from The American Heritage Dictionary of the English Language defining the terms interlineation, alteration, and erasure. According to Instruction 5.1.4, “[a]ny interlineation, alteration or erasure must be initialed by the signer of the bid.” Of the actions listed in Instruction 5.1.4 that must be initialed, the corrections made on the bid proposal submitted by Roof Tech would unquestionably be considered an “alteration,” which is defined, in part, as the “condition resulting from altering; a modification; change.” The American Heritage Dictionary of the English Language 37 (William Morris ed., New College ed., Houghton Mifflin Co.).

In granting Roof Tech injunctive and declaratory relief as prayed for, the trial court basically concluded that because Roof Tech’s bid proposal did not contain any errors, its bid should not have been rejected by the OFPC. As it explained in its reasons for judgment:

After reviewing the original bidding forms in this case, however, I am not convinced that there were any typos that would necessitate rejecting Roof Tech’s bid. While I understand the law requires the OFPC to scrupulously uphold the bidding requirements to prevent favoritism, I do not believe that policy is implicated under these circumstances. As counsel for the OFPC acknowledged at the hearing, under the OFPC’s own bidding rules, the bidder is required to fill in the form by hand or type on the form using a manual typewriter. There are bound to be occasional infinitesimal irregularities in the printed characters. Additionally, I agree with Roof Tech’s argument that the rule requiring all bid sums to be expressed in both words and figures removes any doubt that may arise based on some printed irregularity in the numerical characters. In this case, the printed words are crystal clear and no reasonable person could seriously doubt Uthe amount of the bids that are literally spelled out next to the Arabic numerals. See Instruction to Bidders, Rule 5.1.3.[]

As it pertains to projects let for public bid, form matters as much as substance. As observed by the Louisiana Supreme Court, “[t]he legislature changed the wording of [La. R.S. 38:2212 A(l)(b) ] several times in an attempt to change the law, and to make clear that the requirements of the advertisement for bids and the bid form, as well as the Public Bid Law, shall not be waived.” Hamp’s Construction, L.L.C. v. City of New Orleans, 05-0489, p. 9 (La.2/22/06), 924 So.2d 104, 110. Further, as this court stated in Barriere Construction Co., LLC v. Terrebonne Parish Consolidated Government, 99-2271, pp. 5, 7-8 (La.App. 1st Cir.2/18/00), 754 So.2d 1123, 1126 and 1127-1128, writ denied, 00-0801 (La.5/5/00), 761 So.2d 546:

A public entity may reject any and all bids for just cause. [La. R.S.] 38:2214 B. The statute defines certain situations that constitute “just cause,” but states the definition is not limited to those circumstances. [La. R.S.] 38:2214 B. The “just cause” provision must be read in pari materia with the provision stating that the Public Bid Law’s requirements, along with those required by the advertisement for bids and the bid form, cannot be considered as informalities and cannot be waived. [La. R.S.] 38:2212 A(l)(b).
The statutory requirements, advertisement requirements, and bid form requirements, including those included by reference to other documents, must be completely and accurately observed. The Public Bid Law could not be more clear in stating that a bidder’s failure to comply with every detail can invalidate the bid. The consequences of such defects should be on the bidder who prepares the bid. It would put public entities in a totally untenable situation if this court were to require the waiver of certain irregularities in the face of the statutory prohibition. There could never be any certainty for the public entity during the bid opening procedure if a court could simply second-guess the process and state that a particular kind of defect should have been waived.

In this case, while Roof Tech’s bid proposal may be clear, unambiguous, and, because of the corrections made, error free, Roof Tech, nevertheless, failed to comply with Instruction 5.1.4 to initial the corrections or alterations made in the Lbid proposal. And pursuant La. R.S. 38:2212 A(l)(b)(i), the OFPC was required to reject Roof Tech’s bid because of its failure to comply with Instruction 5.1.4. While such an application of the Public Bid Law may not readily appeal* to further the policy of preventing public officials from awarding contracts on the basis of favoritism or at possibly exorbitant prices, see Capital City Towing & Recovery, Inc. v. City of Baton Rouge, 97-0098, p. 4 (La.App. 1st Cir.2/20/98), 709 So.2d 248, 250, it nonetheless does foster and sustain public trust in that strict enforcement of Instruction 5.1.4 would establish that any changes made to a submitted bid proposal were made by the actual bidder and not an employee or representative of the public entity to favor or assist a bidder. See also Hamp’s Construction, L.L.C., 05-0489 at 10, 924 So.2d at 110. Thus, we find that the trial court erred' in granting Roof Tech’s request for injunctive and declaratory relief.

CONCLUSION

The OFPC properly rejected Roof Tech’s bid in accordance with La. R.S. 38:2212 A(l)(b)(i), based on Roof Tech’s failure to initial the corrections made in its bid proposal in violation of Instruction 5.1.4 of the “Instructions to Bidders.” Accordingly, we reverse the judgment of the trial court granting Roof Tech injunctive and declaratory relief. All costs of this appeal are assessed to Roof Technologies, Inc.

REVERSED.

CARTER, C.J., Dissents and Assigns Reasons.

WHIPPLE, J. Dissents for the Reasons Assigns by Chief Judge CARTER.

CARTER, C.J.,

dissenting.

| J respectfully disagree with the majority in this case. In my opinion, Roof Tech’s bid proposal was clear and error-free in every particular and left no room for misinterpretation. The unambiguous dollar amounts were set forth both numerically and in written words as required by the Instructions to the Bidders. I submit that the rejection of Roof Tech’s bid in this case is a hyper-technical interpretation of Instruction 5.1.4 that does nothing to further the overall purpose of fostering public trust in the Public Bid Law. For this reason, I respectfully dissent.

      . The Section is entitled "Advertisement and letting to lowest responsible bidder; public work; electronic bidding; participation in mentor-pro tégé program.”

      . The exhibit does not include the date of publication of the dictionary for inclusion in the citation. The exhibit also included the following definitions for the remaining two terms: "erasure” means "[ajn act of erasing” or "[tjhe trace mark remaining on a surface from which something has been erased.” "Interlineation” means "[l]o insert words between the lines of La textj.” The American Heritage Dictionary of the English Language at 444 and 684.

      . Instruction 5.1.3. of the "Instructions to Bidders” states "[b]id sums shall be expressed in both words and figures, and in case of discrepancy between the two, the written words shall govern.”


author: GAIDRY, J. KUHN, J.,

text:
    BONVILLAIN BUILDERS, LLC and Bonvillain Construction Company, Inc. v. Charon E. GENTILE, M.D. and La Donna, LLC. Charon E. Gentile, M.D. and La Donna, LLC. v. Bonvillain Builders, LLC and Bonvillain Construction Company, Inc.
    Nos. 2008 CA 1994, 2008 CA 1995.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 30, 2009.
    Rehearing Denied Dec. 9, 2009.

      Douglas H. Greenburg, Houma, Louisiana, for Plaintiff/Appellee Bonvillain Builders, LLC and Bonvillain Construction Co., Inc.

      Randall M. Alfred, Houma, Louisiana, for Defendants/Appellants Charon E. Gentile, M.D. and La Donna, LLC.
    Before KUHN, GUIDRY, GAIDRY, McDonald, and McClendon jj.
   GAIDRY, J.

| .¿The owners of a professional medical office appeal a judgment against them and in favor of the contractors who constructed the office. The contractors answer the appeal, seeking damages, attorney fees, costs, and interest. For the following reasons, we affirm the judgment in part and reverse it in part, and deny the answer to the appeal.

FACTS AND PROCEDURAL HISTORY

Charon E. Gentile, M.D. is a physician practicing in Houma, Louisiana, and the sole member of a limited liability company, La Donna, L.L.C. La Donna, L.L.C. owned a municipal lot in Houma. (For convenience, we refer hereafter to Dr. Gentile and La Donna, L.L.C. jointly as “Dr. Gentile.”) Dr. Gentile obtained three bids from contractors for the construction of a medical office on the lot. She ultimately chose that submitted jointly by Bonvillain Builders, L.L.C. and Bonvillain Construction Company, Inc. (the Bonvillains). The total contract price was $323,819.00. The final plans for the Bonvillains’ proposal were dated October 7, 2003. The parties executed the contract on November 25, 2003, but by its terms it was effective as of its date, November 12, 2003.

The Bonvillains retained a drafting service to prepare the office floor plans and an engineering firm to prepare the structural project plans needed for the approval of the fire marshall. The latter plans bore the notation, “For Fire Marshall Approval Only.” The Bonvillains submitted the plans to the Terrebonne Parish Planning Commission of the Terrebonne Parish Consolidated Government (the parish), and a building permit was approved. However, in January 2004, before the foundation concrete was poured, the |aparish issued a cease-and-desist order, advising the Bon-villains that the construction plans did not conform to the parish building code requirement relating to drainage systems for commercial buildings. The Bonvillains again consulted their engineering firm to prepare the drainage study, which cost $5,490.00 and was completed sometime pri- or to April 13, 2004.

The drainage system’s total completed cost, including that of the drainage study, amounted to $47,422.02. Although Dr. Gentile was informed of the need for a drainage system, its final cost was not disclosed to her until the construction project was nearly complete. A dispute arose as to who was responsible for that cost, as well as certain unfinished “punch list” and other items.

On August 30, 2004, a notice of termination of work, verifying the “substantial completion” of the office pursuant to La. R.S. 9:4822(E), was executed by Bonvillain Builders, L.L.C. and La Donna, L.L.C. On October 26, 2004, the Bonvillains filed a statement of their contractor’s privilege relating to the alleged unpaid balance due in the mortgage records of Terrebonne Parish.

On April 29, 2005, the Bonvillains instituted this litigation against Dr. Gentile, filing a “Petition to Rescind Sale and for Damages.” They alleged an unpaid balance due of $32,381.90 under the contract, representing the final 10% payment of the original contract price. They further alleged that they “abided by Terrebonne Parish codes, procedures, and governmental regulations, which required a drainage system which was not [originally] contemplated,” and that the parties “agreed upon the additional drainage system project and its costs to comply with appropriate Terrebonne Parish codes and regulations,” as well as a change order to that effect. (Emphasis added.) They claimed a net balance due for that additional cost, after a |4 credit attributable to changes in other items, in the amount of $45,813.55. Additionally, the Bonvillains alleged that Dr. Gentile “acted with artifice and misrepresentation” in failing to perform her obligations, and thus was liable to them for damages, attorney fees, and costs. They also alleged entitlement to “rental value of the property” from the time Dr. Gentile took occupancy. Finally, they sought rescission of the contract.

Dr. Gentile filed a peremptory exception, raising objections that the petition failed to state a cause of action or a right of action of the Bonvillains to seek rescission, as no contract of sale was alleged. Although the disposition of the exception is not evident from the record, on September 30, 2005, the scheduled date of hearing, the Bonvillains filed a supplemental and amending petition, clarifying that the contract was a construction contract and reiterating their demand that the contract should be rescinded or dissolved.

On March 2, 2007, Dr. Gentile answered the petition, admitting the existence and nature of the contract, but denying that she agreed to any change order relating to the drainage system. She also affirmatively alleged the Bonvillains’ failure to complete their work, as well as various defects or omissions in construction that constituted breaches of the warranty of workmanlike performance.

On April 10, 2007, Dr. Gentile instituted a separate legal action for damages against the Bonvillains, alleging that there were numerous defects in her office, all attributable to defective construction and unfinished work by the Bonvillains. The Bon-villains answered the suit, denying liability. On Dr. Gentile’s motion, her action was consolidated for trial with the earlier action instituted by the Bonvillains.

15This matter was tried on the merits on May 29, 2007. Prior to trial, the Bonvil-lains stipulated to entry of judgment requiring them to pay for reconstruction of entrance and exit driveways based upon the bid amount of a subcontractor. At the conclusion of the trial, the trial court issued its ruling and oral reasons for judgment, finding in favor of the Bonvillains on the issue of Dr. Gentile’s liability for the cost of the drainage system. The trial court’s judgment was signed on June 13, 2007. Both parties filed motions for new trial, which were denied by judgment signed on October 5, 2007. This appeal followed.

ASSIGNMENTS OF ERROR

Dr. Gentile contends that the trial court committed error in its interpretation of the construction contract by not enforcing the contract according to its terms, which required the Bonvillains’ work to meet the requirements of prevailing construction codes, thereby obligating the Bonvillains to bear the additional cost of the drainage system.

In their answer to the appeal, the Bon-villains contend that the trial court erred in failing to award them nonpecuniary damages, attorney fees, and costs, and they also seek attorney fees and expenses associated with defending Dr. Gentile’s appeal and then- answer to that appeal.

STANDARD OF REVIEW

Whether a contract is ambiguous or not is a question of law. Borden, Inc. v. Gulf States Utilities Co., 543 So.2d 924, 928 (La.App. 1st Cir.), unit denied, 545 So.2d 1041 (La.1989). Where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown. Id. However, when appellate review is not premised upon any factual findings made at the trial level, but is, instead, [ (¡based upon an independent review and examination of the contract on its face, the manifest error rule does not apply. In such cases, appellate review of questions of law is simply whether the trial court was legally correct or legally incorrect. Id. This determination of a legal question is made de novo. See Bennett v. Ragon, 04-0706, p. 5 (La.App. 1st Cir.3/24/05), 907 So.2d 116, 120.

DISCUSSION

General Principles of Contractual Interpretation

Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. This is an objective inquiry; thus, “a party’s declaration of will becomes an integral part of his will.” La. C.C. art. 2045, Revision Comments-1984, (b).

When 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. La. C.C. art. 2046. The words of a contract must be given then- generally prevailing meaning. La. C.C. art. 2047. Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. La. C.C. art. 2048. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050.

Louisiana Civil Code article 2056 provides:

In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text.
A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party.

Similarly, La. C.C. art. 2057 sets forth an analogous rule:

|7In case of doubt that cannot be otherwise resolved, a contract must be interpreted against the obligee and in favor of the obligor of a particular obligation.
Yet, if the doubt arises from lack of a necessary explanation that one party should have given, or from negligence or fault of one party, the contract must be interpreted in a manner favorable to the other party whether obligee or obligor.

The Construction Contract

The construction contract at issue contains the following provisions pertinent to the issues on appeal:

ARTICLE 1: CONTRACTOR RESPONSIBILITIES SITE WORK;
The contractor will supply all site work necessary for the construction of the proposed project.
ALSO INCLUDED IN THIS PROPOSAL ARE THE FOLLOWING;
1. Submittal of plans for Building Permit, Fire Marshall, and any other Necessary agencies
Please note that any material and/or labor not mentioned in the above specification is to be considered not included in this contract proposal. Except as required to complete the project in a manner to meet prevailing codes.
ARTICLE 3; CHANGE AUTHORIZATION
Any changes in either the plans or specifications encompassing methods, materials, workmanship, etc. shall be authorized by implementing a change order describing the change and ratified in writing.
Any changes in the work that may add or delete from the contract total cost will be handled in the form of a written change order and signed by both the Owner and the Contractor prior to the work being performed.
Extra work ordered shall constitute a part of the work to be done under this contract, and the provisions and conditions of this contract shall apply to the said extra work. Payment for |8extra work shall be due to Contractor only when the said extra work has been authorized by Owner.
AR TICLE 4: HIDDEN CONDITIONS
Should conditions arise after construction begins that have been hidden from view and hampers or prevents the intent of this project, such as buried concrete, pipes, cables or any type item, the contractor shall notify the owner for a decision as to the disposition of such item(s). The intent of this paragraph is not to place undue expenses or delays upon the contractor because of unforeseen conditions.
ARTICLE 5; CONTRACTORS GUARANTEE
Contractor expressly agrees that all facilities shall be installed, constructed, and assembled in accordance with the final design approved by Owner. All workmanship throughout is to be performed by skilled mechanics and workmen in accordance with the best practice.
ARTICLE 6: INDEPENDENT CONTRACTOR
... The Contractor shall be responsible to the Owner for the faithful completion of the work herein contracted for and in accordance with the specification and drawings attached hereto and according to prevailing construction codes.
ARTICLE 7: GENERAL TERMS AND CONDITIONS
This contract contains all of the terms and conditions agreed by the parties hereto with the [sic ] respect to the woi'k to be performed hereunder and on all matters which in any way affect said work, and no other agreements, oral or otherwise, regarding the subject matter of this contract, shall be deemed to exist or to bind any of the parties hereto. No alteration, modifications, changes, amendments, extra work or variations of the terms and conditions of this contract shall be binding on the parties hereto in any respect.
The undersigned has read and understands the whole of the above contract ....

(Emphasis added.) There is no provision in the contract addressing the issue of recoverable attorney fees in the event of any party’s default or failure to perforin. Finally, it is undisputed that the contract was prepared at the request of and on behalf of the Bonvillains by an attorney (not the Bonvillains’ present counsel).

| <)The Parish Building Code

The pertinent portion of Section 22-168 of the Terrebonne Parish Code (Parish Code 1979, § 7-4), entitled “Commercial or industrial development impeding rainfall absorption; approval and conformity required,” was originally adopted in 1979, and provides as follows:

For the approval of a building permit application, all proposed commercial or industrial developments shall have submitted adequate plats, plans, calculations and approvals necessary to demonstrate that they meet the following requirements.
(1) All commercial and industrial development:
a. Which will result in making impervious to rainfall more than twenty percent (20%) of a lot or more than five thousand (5,000) square feet of a lot; and
b. Which is not in a development that has received engineering approval for commercial or industrial development from the planning commission after the passage of Ordinance No. 5293 (8/25/04)....
shall be submitted to the TPCG [Ter-rebonne Parish Consolidated Government] Department of Public Works for approval. The development of the property shall conform to the requirements of the TPCG’s Storm Drain Design Manual, as amended.

The lot at issue measured 90.41 feet by 172 feet, thus having a total area of 15,-550.52 square feet. The total area of the office, including its carport and porch, was 3,890 feet, representing just over 25% of the area of the lot. It is undisputed that the construction woi*k at issue was subject to the above-quoted requirements.

Analysis

Legal agreements have the effect of law upon the parties, and as they bind themselves, parties shall be held to a full performance of the obligations flowing therefrom. L & A Contracting Co., Inc. v. Ram Indust. Coatings, Inc., 99-0354, p. 10 (La.App. 1st Cir.6/23/00), 762 So.2d 1223, 1230, writ denied, 00-2232 (La.11/13/00), 775 So.2d 438. A contract may be modified only by mutual consent. Id., 99-0354 at p. 15, 762 So.2d at 1232. Written contracts for construction may be modified by oral contracts and by the conduct of the parties, and this is true even when the written contract contains the provision that an owner is liable only if the change orders are in writing. Id., quoting Pelican Elec. Contractors v. Neumeyer, 419 So.2d 1, 5 (La.App. 4th Cir.), writ denied, 423 So.2d 1150 (La.1982).

The total cost of the drainage system was $47,422.02, representing a nearly 15% increase to the original contract price of $323,819.00. It is only logical and reasonable to conclude that such a substantial increase in the contract price would likely be memorialized in a change order as contemplated by the contract, if the parties mutually agreed that Dr. Gentile was to bear such cost. The Bonvillains contend that changes in materials and additional work for various items made at Dr. Gentile’s oral request somehow serve to obviate the need for a change order relating to the drainage system. The fallacy in the Bonvillains’ argument is that the parties do not dispute the fact that the other changes in materials and associated labor were mutually agreed upon, and that none of those oral changes related to work necessary to conform to mandatory building code requirements. Additionally, after those changes were implemented, Dr. Gentile was admittedly due a credit of $1,608.47, a net difference of only 0.5% of the total contract price.

The party who asserts that an obligation has been modified must prove the facts or acts giving rise to the modification. La. C.C. art. 1831. The Bonvillains produced an undated, unsigned document purporting to be a “change order” for the construction of the required drainage system. Their | x preparation of that document might reasonably be viewed as tacit recognition of the necessity for a written change order. At any rate, the supposed change order was never signed by Dr. Gentile, and there was no evidence showing or suggesting that she ever agreed to pay the stated amount of the claimed additional cost.

Nothing in the trial court’s oral reasons for judgment suggests that the trial court found that an oral modification of the contract relating to the drainage system cost was mutually agreed upon the parties, and our review of the record demonstrates that the overwhelming preponderance of the evidence militated in favor of the opposite conclusion. Such being the case, the determination of the contested issue must rest upon the language of the written contract itself, read in light of the applicable law.

The drainage study ultimately prepared by the engineer, Shaw Coastal, Inc., at the Bonvillains’ request stated that the study’s objective was “to provide a drainage plan for the Dr. Charon Gentile Medical Office to comply with the Terrebonne ravish codes and to the Parish Storm Drainage Design Manual.” (Emphasis added.) Under any reasonable interpretation of the contract language, compliance of the building plans and construction work with the parish building code requirement cannot be considered “extra work” or “hidden conditions” warranting additional payment by Dr. Gentile. Rather, the contract unambiguously and expressly contemplated that the Bonvillains would be responsible for the completion of the described work “according to prevailing construction codes,” and that “any material and/or labor not mentioned” in the contract was included if “required to complete the contract in a manner to meet prevailing codes.” Thus, the drainage study and the drainage system clearly fell within the scope and price of the work contemplated by the original written building contract.

|12It is an established principle that laws that exist at the time of execution of a contract form a part of that contract and are incorporated in it. These laws form part of the contract as though expressly written therein. Morton Bldgs., Inc. v. Redeeming Word of Life Church, Inc., 97-2251, p. 7 (La.App. 1st Cir.11/6/98), 744 So.2d 5, 9, writ denied, 99-0687 (La.4/30/99), 741 So.2d 16. Thus, where a parish or city has in effect a building code, the provisions of that building code form a part of every construction contract executed in that parish or city. Such a contract contemplates a building constructed in compliance with local building code requirements, as though expressly written into the contract. Id.; see also Mut v. Newark Ins. Co., 289 So.2d 237, 240 (La.App. 1st Cir.1973), units denied, 290 So.2d 910, 912 (La.1974).

Despite the Bonvillains’ admitted ignorance of the existence of the building code’s drainage requirement, there is nothing to suggest that the parish ordinance was not properly adopted and promulgated. The building code’s drainage requirement formed an implied part of the construction contract, with the same force and effect as if it had been expressly stated thei’ein. In their brief, the Bonvillains emphasize that they personally informed Dr. Gentile after the cease-and-desist order from the parish was received, and explained the mandatory nature of the drainage system. They claim that their “only other course of action was to abandon the project if Dr. Gentile did not agree to the drainage system.” The Bonvillains might arguably have relied, to their detriment, on the parish’s initial issuance of the building permit based upon their original plans. But such reliance cannot serve to relieve the Bonvillains of their contractual duties to Dr. Gentile, nor does it justify the transfer of the financial consequences of them professional neglect to her.

11 Jn its oral reasons for judgment following trial, the trial court explained the basis for its ruling relating to the drainage system:

The Court is convinced, through the testimony of both sides, that this was an unforeseen item ....

I am of the opinion, after hearing the facts, that this major problem with the drainage issue that has to be addressed teas not foreseen, that has to be done to meet code, to meet the neiv code regulations, or whatever, and that’s going to have to be borne by the doctor.

(Emphasis added.) Thus, the trial court may have concluded that the mandatory building code requirement relating to the drainage system was a “hidden condition” as contemplated by Article 4 of the contract.

We do not agree with the trial court’s reasoning, in light of both the plain, unambiguous wording of the contract and the applicable law on this issue. The trial court’s interpretation is plainly wrong, and constitutes legal error. Even if the relevant contract language could somehow be considered ambiguous, our law would require that it be interpreted against the Bonvillains, who supplied it. Accordingly, the trial court’s judgment must be reversed insofar as it holds Dr. Gentile liable for the costs related to the drainage system.

When the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the tune it is due. La. C.C. art. 2000. The trial court awarded the Bonvillains legal interest from the date of judicial demand on the judgment amount related to the drainage system, but no interest related to the final 10% interim payment, which was paid by Dr. Gentile prior to trial. Because we reverse the judgment awarding the amount claimed for the drainage system, the Bonvillains are of course not entitled to any interest thereon.

114Pamages for nonpecuniary loss arising from contract may be recovered only in limited circumstances: (1) when the contract by its nature was intended to gratify a nonpecuniary interest and the nonpecu-niary damages were foreseeable to the ob-ligor; or (2) when the obligor’s failure to perform was intended to aggrieve the obli-gee’s feelings. See La. C.C. art. 1998. The contract at issue was obviously not intended to gratify any nonpecuniary interest of the Bonvillains. While we give the Bonvillains the benefit of the doubt that their feelings might possibly have aggrieved by the delay in receiving the final interim payment of 10% due, the evidence does not support any claim that any delay was intended by Dr. Gentile to do so. And as we have already determined that Dr. Gentile had no contractual or legal duty to pay any additional costs attributable to the drainage system, we deny the Bonvillains’ claim for nonpecuniary damages in their answer to the appeal.

Because we reverse the judgment in favor of the Bonvillains on the merits, we also reverse the trial court’s award of $8,000.00 in attorney fees. In doing so, we also emphasize that such an award would not be justified even had our decision on the merits been different. The trial court’s judgment stated that its award was made pursuant to the Louisiana Private Works Act, La. R.S. 9:4801, ei seq., but we have found no statutory authority authorizing recovery of attorney fees by a general contractor under the facts alleged by the Bonvillains. The trial court rejected the Bonvillains’ claim that Dr. Gentile acted in bad faith or committed fraud, and its judgment did not grant rescission to the Bonvillains. Thus, they |cannot properly invoke La. C.C. art. 1958 as a basis for an award of damages or attorney fees. Because there was no legal basis shown to justify the award of attorney fees, the trial court’s award of attorney fees was also legal error.

The judgment of the trial court is affirmed in part, insofar as it orders the plaintiffs-appellees, Bonvillain Builders, L.L.C. and Bonvillain Construction Company, Inc., to comply with the consent portion of the judgment. The judgment is reversed in all other respects, and the clerk of the 32nd Judicial District Court is hereby ordered to cancel and remove the contractor’s lien filed by the plaintiffs-ap-pellees in the mortgage records of the Parish of Terrebonne. The answer of the plaintiffs-appellees, Bonvillain Builders, L.L.C. and Bonvillain Construction Company, Inc., to the appeal is denied. All costs of this appeal are assessed to the plaintiffs-appellees, Bonvillain Builders, L.L.C. and Bonvillain Construction Company, Inc.

AFFIRMED IN PART AND REVERSED IN PART; ANSWER TO APPEAL DENIED.

KUHN, J., dissents and assigns reasons.

GUIDRY, J., concurs in the result.

KUHN, J.,

dissenting.

U disagree with the reversal of the damages awarded to the Bonvillains. While I do agree that the trial court may have based its ruling that the Bonvillains were entitled to damages under Article 4 of the construction contract, having stated that the drainage requirement “was an unforeseen item,” it is not the only basis that supports the ruling and the opinion’s reversal does not dispose of the matter of plaintiffs’ entitlement to damages in its entirety.

Initially, I note the trial court was not manifestly erroneous in concluding that the drainage requirement was a “hidden condition” that arose after construction began which, under Article 4, requires the Bonvillains to notify Dr. Gentile for a decision as to disposition and supports the trial court’s conclusion imposing the costs of the drainage requirements onto Dr. Gentile. But more importantly, the record also supports the trial court’s finding that the parties agreed to alter any obligation the plaintiffs had (either under the terms of the contract or | ¡¡the jurisprudence) to conform to the parish building code requirement relating to drainage systems for commercial buildings.

In the transcribed reasons for judgment, the trial court stated:

Well, [plaintiffs] see how [the drainage issue] can be worked out and present to the Doctor, hey, this is what it’s going to take to make it right. And from what I heard is they were willing to do everything they can to expend the money, pay me later, let’s just get this done.

After review of the entire transcript, it should be noticed that the trial court’s comments amount to a finding that Dr. Gentile agreed to pay the costs of the drainage project, and this finding is not manifestly erroneous.

Introduced into evidence was a letter from Bonvillain Construction Co., Inc., dated January 26, 2004 and signed by Michael Bonvillain. It was a petition to the parish’s representative, Pat Gordon, requesting permission to pour the foundation and simultaneously engage an engineering firm to develop a drainage system subsequent to the parish’s issuance of the cease-and-desist order. The pertinent provisions of the letter stated, “All requirements due to the drainage ordinance will be passed on to the owner.” Although Dr. Gentile denied having received the letter, Michael Bonvillain testified that he hand delivered it to her. He stated the only thing they discussed at the time was that the parties had to go through more negotiating, and Dr. Gentile replied that they would take care of the matter at the end of the project. Michael Bonvillain also said that Dr. Gentile wanted the Bonvillains to proceed and never advised them that they should not continue if doing so would cost her more. Kirby Bonvillain explained that the drainage noncompliance would have caused a stoppage of the project if the letter had not been sent to Mr. Gordon expressing the manner in which the drainage issue would be resolved. He stated that Michael hand delivered the letter to Dr. Gentile’s office and that the Bonvillains decided to continue with the project and notified Dr. Gentile of their intent. Kirby testified that he communicated to Dr. Gentile that ^without her “agreement” the job would stop, and that she agreed they needed to continue so they could complete the building.

Based on this summarized testimony, it is evident that the trial court concluded that Dr. Gentile received the letter petitioning the Parish to continue the project, which apprised her, “All requirements due to the drainage ordinance will be passed on to the owner.” With this knowledge, she asked the Bonvillains to continue with the project to completion.

As a reviewing court, we are not permitted to reweigh the evidence. The trial court resolved the conflict in the testimony about whether Dr. Gentile received a copy of the January 26, 2004 letter — advising the parish that the requirements of the drainage ordinance were to be passed onto the owner — in favor of the Bonvillains. As such, Dr. Gentile’s notice of the Bonvil-lains’ intent, coupled with her request that the project be continued to completion, was an acquiescence that, at a minimum, amounted to a tacit consent. See La. C.C. art. 1927. Thus, a conclusion that the parties consented to the alteration of the terms of the contract also supports the trial court’s award of damages. Accordingly, I dissent from the reversal.

      . As of the time of trial, Michael Bonvillain, the principal of Bonvillain Construction Company, Inc., had been a licensed commercial and residential contractor in Louisiana for eight or nine years. His brother, Kirby Bon-villain, was the owner of Bonvillain Builders, L.L.C., and was a licensed pharmacist. He was not a licensed contractor.

      . That portion of the trial court's judgment is not contested by any party.

      . Allhough La. R.S. 9:4822(L)(2) provides for recovery of attorney fees by subcontractors, material sellers, and others asserting claims under La. R.S. 9:4802, it does not authorize the recovery of attorney fees by a general contractor against the owner. See Burdette v. Drushell, 01-2494, p. 22 (La.App. 1st Cir. 12/20/02), 837 So.2d 54, writ denied, 03-0682 (La.5/16/03), 843 So.2d 1132.


author: GUIDRY, J.

text:
    Sherie Landry wife of/and Raymond C. BURKART, Jr. v. Elaine L. Williamson wife of/and James R. WILLIAMSON; William L. Dunford; Rhonda Hemelt wife of/and Christopher J. Aubert; Group Integrity, L.L.C. d/b/a Keller Williams Realty; Jackie E. Staley; Jean Brown; William Stone Hatchett, III; John J. Henry; John J. Henry & Associates, L.L.C. d/b/a Hatchett Inspection Services, L.L.C. d/b/a Henry & Hatchett Inspection Services; AB Insurance Company; and EF Insurance Company.
    No. 2009 CA 0294.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 13, 2009.
    Katherine Ogburn Burkart, Raymond C. Burkart, Jr., Covington, LA, for Plaintiffs/Appellants, Sherie Landry wife of/and Raymond C. Burkart, Jr.
    Charles M. Hughes, Jr., Gary L. Hanes, Mandeville, LA, for Defendants/Appellees, Elaine L. Williamson wife of/and James R. Williamson.
    John P. Wolff, III, Christopher K. Jones, Baton Rouge, LA, for Defendants/Appellees, Christopher J. Aubert, Rhonda Hemelt Aubert, and Great Northern Insurance Company.
    William J. Jones, Jr., Howard R. Fus-sell, Leland R. Galaspy, Covington, LA, for Defendants/Appellees, LCV Partnership, Lee Road Development Co., Crowne Colony Builders, Inc. and Viking Land, Inc.
    Gus A. Fritehie, III, Edward W. Trapo-lin, New Orleans, LA, for Defendants Ap-pellees, Jackie E. Staley, Jean Brown & Group Integrity, L.L.C. d/b/a Keller Williams Realty.
    Mariah N. Rabieh, Jay Russell Sever, New Orleans, LA, for Defendant/Appellee, Scottsdale Insurance Company.
    William L. Dunford, Jonestown, TX, Defendant/Appellee, Pro Se.
    Francis R. White, III, Covington, LA, for Defendant/Appellee, John E. Bruce d/b/a Advanced Design Group, Inc.
    Before CARTER, C.J., PARRO, GUIDRY, PETTIGREW, and GAIDRY, JJ.
   GUIDRY, J.

| sAppellants, Sherie Landry wife oi/and Raymond Burkart, Jr. (the Burkarts), appeal from a judgment of the trial court granting a peremptory exception raising the objection of prescription filed by defendant, John E. Bruce, and dismissing their claim against him with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 28, 2002, the Burkarts purchased a home in Highlands Subdivision in Covington, Louisiana, from defendants, Elaine and James Williamson. On or about September 26, 2002, water started leaking into the home during periods of rainfall. Consequently, on August 1, 2003, the Burkarts filed a petition for damages naming the Williamsons, as well as other prior homeowners in the chain of title, realtors, and unidentified insurance companies as defendants, asserting claims in redhibition and tort.

Rhonda Hemelt wife of/and Christopher Aubert (the Auberts), who originally purchased the home at issue from the contractors, LCV Partnership (LCV), filed a third party demand on October 9, 2003, naming LCV and its sole partners Lee Road Development Company; Crowne Colony Builders, Inc.; and Viking Land, Inc. as third party defendants. The Auberts asserted that LCV designed and built the home and sold the home to them in May 1995. The Auberts stated that they had previously filed suit against these same defendants under the New Home Warranty Act to compel LCV to complete punch list items on the house; however, when the work was completed, the Auberts dismissed this first suit against LCV without prejudice. Finally, the Auberts contended that in the event the court found the defendants liable to the plaintiffs, the incident sued upon occurred as a result of LCVs defective design, construction, and repair of the home.

Sometime in 2004 the Burkarts retained a civil engineer who, upon examining the home and performing moisture testing, determined that the exterior walls of the | .¡home were not constructed with a secondary water barrier, and that this improper method of construction caused the widespread water intrusion throughout the Burkarts’ home. Additionally, he determined that improper flashing of the windows, roof penetrations, and chimney and roof valleys created leaking problems or the potential for leaking problems.

Thereafter, the Burkarts filed a first supplemental and amending petition on August 2, 2005, naming LCV and its insurers as defendants and asserting claims for negligence, negligent supervision, respondent superior, and claims under the Louisiana New Home Warranty Act and La. C.C. art. 2545. The Burkarts subsequently filed a second supplemental and amending petition on April 11, 2008, naming John E. Bruce d/b/a Advanced Design Group, Inc. as a defendant for his negligence in failing to properly design the plans for the home. The Burkarts’ three petitions alleged that all of the defendants were liable jointly, severally, and in solido.

On June 12, 2008, Mr. Bruce filed a peremptory exception raising the objection of prescription, asserting that the Bur-karts’ claim against him had prescribed one year from the date his design drawings were completed, or sometime in 1996. Following a hearing, the trial court signed a judgment sustaining Mr. Bruce’s exception and dismissing the Burkarts’ claim against him with prejudice. The Burkarts now appeal from this judgment.

DISCUSSION

Ordinarily, the party pleading prescription bears the burden of proving the claim has prescribed. However, when the face of the petition reveals that the plaintiffs claim has prescribed, the burden shifts to the plaintiff to demonstrate prescription was interrupted or suspended. Kirby v. Field, 04-1898, p. 6 (La.App. 1st Cir.9/23/05), 923 So.2d 131, 135, writ denied, 05-2467 (La.3/24/06), 925 So.2d 1230.

| aThe Burkarts’ original petition for damages stated that they purchased their home in August 2002 and that they began to experience problems with water leaking into the home in September 2002. The second supplemental and amending petition naming Mr. Bruce as a defendant was not filed until April 11, 2008. As such, it would appear on the face of the petition that their claim against Mr. Bruce is prescribed.

On appeal, the Burkarts assert that the ten-year prescriptive period applicable to architects applies to their claim against Mr. Bruce, and as such, their claim is not prescribed, because it was filed within ten years of their discovery of the defects in their home. See La. C.C. art. 3500. Alternatively, the Burkarts argue that if the one-year prescriptive period applicable to delictual actions applies to their claim, then their claim is still timely, because the one-year period was interrupted by the timely filing of their petition against other defendants who they assert are liable jointly, severally, and in solido with Mr. Bruce. See La. C.C. arts. 2324 and 3492.

However, a determination of which prescriptive period applies to the instant case is not necessary for resolution of this matter, because we find sua sponte that the Burkarts’ claim against Mr. Bruce is preempted in accordance with La. R.S. 9:2772. See La. C.C.P. art. 927(B).

Louisiana Revised Statute 9:2772 provides, in part:

A. No action, whether ex contractu, ex delicto, or otherwise, including but not limited to an action for failure to warn, to recover on a contract, or to recover damages, or otherwise arising out of an engagement of planning, construction, design, or building immovable or movable 'property which may include, without limitation, consultation, planning, designs, drawings, specification, investigation, evaluation, measuring, or 1 r,administration related to any building, construction, demolition, or work, shall be brought against any person performing or furnishing land surveying services, as such term is defined in R.S. 37:682, including but not limited to those services preparatory to construction, or against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of im-movables, or improvements to immovable property, including but not limited to a residential building contractor as defined in R.S. 37:2150.1(9):
(l)(a) More than five years after the date of registry in the mortgage office of acceptance of the work by owner.
(b) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than five years after the improvement has been thus occupied by the owner.

(Emphasis added.)

The legislature established the peremptive period in La. R.S. 9:2772 to protect “any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of immovables” from liability for past construction projects, which could extend for an indefinite period of time. See Lasseigne v. Schouest & Sons, Builders, 563 So.2d 371, 373 (La.App. 1st Cir.1990). To achieve this purpose, La. R.S. 9:2772 establishes a definite time period from which the peremptive period starts to run, which is not dependent on the discovery of the defect. Lasseigne, 563 So.2d at 373. Because the period is peremptive, it cannot be renounced, interrupted, or suspended. La. C.C. art. 3461; see In re Succession of James, 07-2509, p. 4 (La.App. 1st Cir.8/21/08), 994 So.2d 120, 123, writ denied, 08-2302 (La.12/12/08), 996 So.2d 1119. Furthermore, exceptions to prescription, such as contra non valen-tem, do not apply to a peremptive period. Succession of James, 07-2509 at p. 4, 994 So.2d at 123.

| ./Therefore, according to La. R.S. 9:2772(A)(1), the peremptive period for filing an action against Mr. Bruce commenced to run from either the date the acceptance of the work by the owner was filed for registry, or if no acceptance was filed within six months from the date the owner occupied or took possession of the improvement, then from the date the improvement was thus occupied by the owner. In the instant case, there is no evidence as to when or if an acceptance of the work was filed in the mortgage office by the original owners. However, it is undisputed that the Auberts, the original owners of the home at issue, purchased and occupied the home in May 1995. The Bur-karts did not file their second supplemental and amending petition naming Mr. Bruce as a defendant until April 2008, some thirteen years after the original owners took possession of the home. Therefore, under any time period pursuant to any and all versions of La. R.S. 9:2772, the Burkarts’ claim against Mr. Bruce is preempted.

Accordingly, we find no error in the trial court’s judgment dismissing the Burkarts’ claim against Mr. Bruce with prejudice.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court, dismissing the Burkarts’ claim against Mr. Bruce with prejudice. All costs of this appeal are to be borne by the appellants, Sherie Landry wife of/and Raymond Burkart, Jr.

AFFIRMED.

      . In 2008, La. C.C.P. art. 927(A) was amended to add peremption as an objection that may be raised by peremptory exception. Further, paragraph B was amended to permit the trial court or the appellate court to supply the objection of peremption on its own initiative. See La. C.C.P. art. 927, Revision Comments— 2008 (c) and (d).

      . Louisiana Revised Statute 9:5607 sets forth a similar peremptive period for actions against professional engineers and architects. However, because the Burkarts failed to introduce any evidence at the hearing to support their contention that Mr. Bruce is an architect, and the allegations in their petition unequivocally state that Mr. Bruce is not a registered and/or licensed architect, we find that La. R.S. 9:2772 applies to the instant case.

      . Louisiana Revised Statute 9:2772 originally had a ten-year period when it was added by 1964 La. Acts, No. 189, § 1. In 1999, the period was decreased to seven years by 1999 La. Acts, No. 1024, § 1. The period was shortened to the current five-year period in 2003 by 2003 La. Acts, No. 919, § 1. For purposes of this discussion, however, it is not necessary to determine which version of La. R.S. 9:2772 applies to the instant case, because under any time period — ten, seven, or five years — the Burkarts’ claims are preempted.