ROSEMARY LEDET, Judge.
This is a homeowners' suit for defective installation and maintenance of a residential heating, ventilation, and air conditioning ("HVAC") system. The home owners, James Wadick, III, and his wife, Susan Wadick, filed this suit against the company that performed the allegedly defective work, General Heating and Air Conditioning, LLC ("General"), and its insurers. The Wadicks alleged that General breached its contract to properly install components of the HVAC system in their home and to maintain the system. As a result of those breaches, they alleged that mold and mildew developed in their house. Seeking to enforce an exculpatory clause for mold damages contained in the installation contract, General filed a motion for partial summary judgment. From the trial court's judgment granting General's motion, the Wadicks' appeal. The Wadicks
As noted, the Wadicks' motion for leave to amend is interrelated with General's motion for partial summary judgment seeking to enforce the exculpatory clause. Before addressing the jurisdictional issue raised by the motion for leave to amend, it is thus necessary to summarize the factual and procedural background of this case.
The relevant facts in this case are virtually undisputed. Since 1989, the Wadicks have jointly owned and resided in a house located at 1663 Soniat Street in New Orleans, Louisiana. Beginning in 2003, the Wadicks entered into annual maintenance contracts with General for the regular maintenance of their residential HVAC system. In December 2006, General recommended that the Wadicks replace three components of their HVAC system — the older, existing five-ton furnace; the existing evaporator coil; and the return air transition duct work connected to those components. General generated, and provided the Wadicks with, a written proposal dated December 29, 2006. On January 5, 2007, Mr. Wadick signed the proposal (also referred to as the installation contract); Mrs. Wadick never signed it.
On March 2, 2011, the Wadicks commenced this suit against General alleging, among other things, that it breached its contractual obligations under the installation and maintenance contracts. In their first and second supplemental and amending petitions, the Wadicks added General's liability insurers, Lafayette Insurance Company and Republic Fire and Casualty Insurance Company, as defendants.
After answering the petition, General filed a motion for partial summary judgment seeking to enforce the exculpatory provision for mold damages printed on the reverse side of the proposal. The provision read as follows:
Immediately above Mr. Wadick's signature on the front side of the proposal was the following language:
Based on the above provisions, General contended that the trial court should dismiss any and all mold claims asserted by the Wadicks against it that rely upon the proposal (the installation contract) as the source of an obligation owed by it. General's motion for summary judgment rested upon the contractual provision and its lack of knowledge that the Wadicks had any complaints regarding the installation of the HVAC components, which was completed in 2007.
Opposing the motion, the Wadicks contended that summary judgment was inappropriate for the following four reasons:
Although the trial court denied General's motion for partial summary judgment, it granted General leave to re-file its motion after additional discovery was conducted.
Following additional discovery, General re-filed its motion for partial summary judgment. In its second motion, General alleged that "[b]ecause the contracts (and numerous other written documents memorializing this understanding between the parties) are plain and unambiguous, and because plaintiff James Wadick has an extensive background in the HVAC business, it is apparent that General is entitled to such a partial summary judgment." The trial court granted General's motion.
Seeking reconsideration of the trial court's ruling, the Wadicks filed a "Motion for New Trial and/or Reconsideration," which the trial court denied. In so doing, the trial court, in its October 15, 2013 judgment, stated that its ruling was based on its finding that "Plaintiff, James Wadick's claim regarding allegedly defective installation work sounds only in contract not tort law and is thus subject to the exclusionary language on the reverse side of the installation contract." In the same judgment, the trial court denied the Wadicks' "Motion for Leave to File Third Amended Petition," based on its finding that "the claims of Plaintiff, James Wadick, sound strictly in contract and that Plaintiff, Susan Wadick, has not pled a cause of action in tort against General."
As stated in their notice of appeal, the Wadicks' appeal is from the following two judgments:
Before addressing the merits, we first address a preliminary issue regarding this court's appellate jurisdiction.
At the parties' request, the trial court certified the rulings from which the Wadicks appeal as final appealable judgments under La. C.C.P. art. 1915. A trial court's certification, however, is not determinative of this court's appellate jurisdiction. Mandina, Inc. v. O'Brien, 13-0085, p. 4 (La.App. 4 Cir. 7/31/13), ___ So.3d ___, ___, 2013 WL 3945030 (citing Roundtree v. New Orleans Aviation Bd., 04-0702, p. 6 (La.App. 4 Cir.2/4/05), 896 So.2d 1078, 1083). Insofar as the trial court's certification of its ruling granting General's motion for partial summary judgment and denying the Wadicks' motion to reconsider that ruling, we find no error in the certification. See La. C.C.P. art. 1915 B(l). In contrast, we find the trial court's certification of its judgment denying the Wadicks' motion for leave to amend is legally erroneous.
In their notice of appeal, the Wadicks cite the principle that an interlocutory ruling
Id.
In this case, however, there is no "unrestricted appeal from a final judgment." To the contrary, the other judgment from which the Wadicks appeal is an interlocutory ruling, granting a motion for partial summary judgment on one issue, that the trial court properly certified as final for purposes of appeal. La. C.C.P. art. 1915 B(1). The trial court's certification of the judgment granting the motion for partial summary judgment did not encompass its other interlocutory ruling denying the motion for leave to amend. The Wadicks' reliance on the principle that an interlocutory judgment is reviewable on appeal from a final judgment is thus misplaced.
Nonetheless, the trial court, at the parties' request, separately certified, on two occasions, its ruling denying the Wadicks' motion for leave to amend as a final appealable judgment. First, in its October 15, 2013 judgment, the trial court ordered as follows: "the Court finds no just reason for delay and this Court's Judgment denying plaintiffs' Motion for Leave to File Third Amended Petition is hereby designated as a final, appealable judgment pursuant to La. C.C.P. art. 1915 B". Second, in its November 6, 2013 order, the trial court certified that ruling as final. As noted at the outset, a trial court's certification of a judgment as final is not dispositive of the question of this court's appellate jurisdiction. Mandina, supra.
The denial of a motion for leave to file an amended petition is an interlocutory judgment that it not subject to being designated as final pursuant to La. C.C.P. art. 1915.
Delahoussaye, 12-0906 at pp. 4-5, ___ So.3d at ___.
Both circumstances are present here. The Wadicks' motion for appeal was filed within the thirty-day period applicable to supervisory writs contained in Rule 4-3 of the Uniform Rules, Courts of Appeal; thus, an application for supervisory writs would have been timely. Second, given the interrelated nature of the two rulings at issue — the motion for partial summary judgment and the motion for leave to amend — an immediate decision of the issue sought to be appealed is necessary to avoid re-litigation. Converting the appeal to a writ will therefore promote fundamental fairness and judicial efficiency. We thus exercise our discretion and convert the instant appeal of the judgment denying the motion for leave to amend to an application for supervisory writ.
On appeal, the Wadicks assert the following two assignments of error:
For ease of discussion, we separately address each of the two assignments of error before us in reverse order.
The governing statutory provision is La. C.C.P. art. 1151, which allows the amendment of a pleading at any time before the answer is served. After the answer is served, the petition "may be amended only by leave of court or by written consent of the adverse party." La. C.C.P. art. 1151.
In this case, the trial court denied the Wadicks' motion for leave to amend to allege four additional theories of liability against General — negligence, gross negligence, redhibition, and products liability. In support of their motion for leave to amend, the Wadicks alleged that in their lengthy original petition, which included fifty-three paragraphs of factual allegations, they pled not only breach of contract claims, but also tort claims. On appeal, the Wadicks contend that the trial court erred in denying their motion for leave to amend their petition based on a finding that the facts alleged in their original petition did not sound in tort, but only in contract. They further contend that their amended petition added neither any new parties nor new facts to this litigation.
The Wadicks emphasize that pleading specific theories of liability, such as gross negligence, is unnecessary given the elimination of the "theory of the case" doctrine. See First South Production Credit Ass'n v. Georgia-Pacific, 585 So.2d 545 (La.1991) (holding that "[a]s long as the facts constituting a claim are alleged, the party may be granted any relief to which he is entitled under the pleadings and the evidence; the `theory of the case' doctrine, under which a party must select a theory of his case or defense and adhere to it throughout the litigation, has been abolished."); see also La. C.C.P. art. 862 (providing that a party may be granted any relief to which they are entitled "even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief")
The Wadicks further contend that their amended petition, filed on July 1, 2013, was filed well in advance of the scheduled December 2, 2013 trial date. They submit that allowing them leave to amend would neither have caused any delay in the proceedings nor otherwise disturbed the scheduled trial date.
General counters that because the facts of this case and the jurisprudence reveal this is a breach of contract suit and because the Wadicks' original pleadings echo these facts, the trial court correctly denied the Wadicks' motion for leave to amend to assert any tort claims. In support of its position, General cites the following factors: discovery had closed; trial was imminent; and the Wadicks were seeking to add brand new, previously un-pled claims.
Although the Wadicks alleged in their motion that "[t]he theories sought to be inserted in the amended and supplemental Petition are based on and arise out of facts that have already been pled," the trial court disagreed. Agreeing with General's contention, the trial court found that the theories sought to be added had never been plead before July 2013. Contrary to the Wadicks' contention, the trial court neither ruled on an exception of no cause of action, nor invoked the theory of the case doctrine. Rather, the trial court, noting that Louisiana is a fact pleading state, reasoned that the factual allegations in the original petition did not include any of the claims the Wadicks were seeking to add. The trial court also reasoned that "this case has been going on since 2011. It's arising out of an installation contract that began in 2006, 2007, and all of a sudden I've got a negligence claim in a case that was for actions that took place in 2005 and 2007, and where a lawsuit was filed in
The jurisprudence has identified the following relevant factors that trial courts consider in determining whether to permit or to refuse to permit leave to amend: the length of time since the original petition was filed; if either a discovery cutoff date or trial date or both have been set; the length of time before the scheduled trial date; the number of prior amendments; if the amended pleading is factually connected to the original petition; if the amended petition asserts new factual allegations; and if the opposing party has relied to its detriment on the original pleadings. 2 Judge Steven R. Plotkin and Mary Beth Akin, Louisiana Civil Procedure, Article 1151 (2013) (collecting cases).
Applying the factors set forth above, we find no abuse of discretion in the trial court's denial of the Wadicks' motion for leave to amend. The motion was filed over two years after the original petition was filed. Two prior amendments to the petition were allowed, which added General's insurers. The motion was filed after the completion of key discovery and only four months before the scheduled trial date. The third amended petition included four new causes of action that, as General alleged and the trial court found, were not based on the allegations of the original pleadings. Taken together, these factors establish that the trial court did not abuse its discretion in denying the motion for leave to amend.
The narrow issue presented on appeal is the enforceability of the exclusionary provision in the installment contract to bar Mr. Wadick's claims for mold damages. "[W]hen a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law and summary judgment is appropriate." Iteld v. Four Corners Const., L.P., 12-1504, p. 16 (La.App. 4 Cir. 6/5/13), ___ So.3d ___, ___, 2013 WL 2443261 (citing Sims v. Mulhearn Funeral Home, Inc., 07-0054, p. 10 (La.5/22/07), 956 So.2d 583, 590). The trial court found that to be the case here. Based on its construction of the language on the reverse side of the proposal, the trial court granted General's motion for partial summary judgment, enforced the exclusionary provision, and dismissed Mr. Wadick's claims for mold damages arising out of that installment contract.
This court recently summarized the general standard of review of a trial court's ruling granting a motion for summary judgment, pursuant to La. C.C.P. arts. 966 and 967 and the jurisprudence, in Mandina, Inc. v. O'Brien, 13-0085, p. 5 (La.App. 4 Cir. 7/31/13), ___ So.3d ___, ___ 2013 WL 3945030 (collecting cases). Simply stated, the standard of review of a trial court's grant of a motion for summary judgment is de novo using the same criteria applied by the trial court to determine whether summary judgment is appropriate. Id.
In its judgment, the trial court cited as its reason for finding the exculpatory clause valid — and La. C.C. art. 2004 inapplicable — its finding that Mr. Wadick's claims under the installment contract sounded only in contract. On appeal, the Wadicks contend that regardless of whether Mr. Wadick's claims sound in contract, negligence, gross negligence, or intentional tort, the exclusionary provision is absolutely
In Ostrowiecki, the federal court addressed the following two issues regarding the effect of La. C.C. art.2004 on the waiver provision: "1) whether the waiver provision offends article 2004; [and] 2) whether the existence of offending language nullifies the entire provision, or merely the offending language." Id. at p. 11.
Id. As to the second issue, the court in Ostrowiecki reasoned that "[t]he waiver provision of the Release Agreement cannot retain its meaning once those aspects which offend article 2004 are nullified." Id. at p. 14. The federal court thus nullified the entire waiver provision.
By analogy, the Wadicks point out that the same two issues are presented in this case. First, they contend that the exclusionary provision in the installment contract violates both parts of La. C.C.
General counters that the trial court correctly enforced the contractual provision excluding mold damage, which was signed by Mr. Wadick. General acknowledges that it is contrary to public policy and in contravention of Louisiana law, La. C.C. art.2004, for a contracting party to prospectively absolve itself from liability for injuries through its intentional or grossly negligent acts. See Broom v. Leebron & Robinson Rent A Car, Inc., 626 So.2d 1212, 1216 (La.App. 2d Cir.1993). General, however, construes La. C.C. art.2004 to mean only that "a party may not contract away his right to pursue damages for physical injuries resulting from intentional or gross fault." General thus contends that La. C.C. art.2004 only "protects tort victims who have entered into a contract which purports to limit another's liability for intentionally causing the tort victim some physical injury."
According to General, the Wadicks are not tort victims; rather, they are contractual claimants. General emphasizes the Wadicks' failure to plead a tort claim arising out of the installment contract, and the trial court's decision, addressed above, denying their motion for leave to amend to assert such torts claims. In support of its contention that the Wadicks' claims sound solely in contract, General cites jurisprudence for the proposition that there are no tort duties owed by a contractor in this context; there are only contractual duties. See Everett v. Philibert, 08-2270, p. 6 (La. App. 1 Cir. 5/8/09), 13 So.3d 616, 620; Mentz Const. Services, Inc. v. Poche, 11-1474, p. 8 (La.App. 4 Cir. 3/14/12), 87 So.3d 273, 278. Moreover, General points out that the Wadicks failed to prove any intentional acts on its part or that it caused physical harm to the Wadicks. General thus contends that the trial court correctly granted its motion for partial summary judgment and enforced the exculpatory clause as written.
A review of the Wadicks' original petition supports the trial court's finding that Mr. Wadick's claims arising out of the installation contract are based solely in contract. The duties allegedly breached by General arise solely out of contractual obligations. Mentz, supra. All of Mr. Wadick's claims under the installation contract stem from General's contractual duty to properly and timely install the HVAC components. "There is no showing of a breach of a general duty. The only allegations in the petition are for breaches of duty confected by contract." Everett, 08-2270 at p. 6, 13 So.3d at 620. Nonetheless, contrary to General's contention, which the trial court accepted, the finding that Mr. Wadick's claims sound solely in contract is not dispositive of the issue of whether La. C.C. art. 2004 applies.
Neither of the two separate parts of La. C.C. art. 2004 is limited to tort claims. The first part of the article addresses "fault" and provides that "[a]ny clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party." La. C.C. art. 2004. Although "fault" is generally associated with tort
Under Louisiana law, liability, in both the contractual and delictual context, is "incurred because of fault." Saul Litvinoff, Stipulations As To Liability And As To Damages, 52 Tul. L.Rev. 258, 274 (1978) ("Litvinoff").
Former La. C.C. art. 3556(13) defined the concept of gross fault as "that which proceeds from inexcusable negligence or ignorance; it is considered as nearly equal to fraud." This concept of gross fault, which the Legislature incorporated into La. C.C. art. 2004, includes both contractual and delictual fault. See Litvinoff, 52 Tul. L.Rev. at 279 (noting that "[t]he French jurisprudence has asserted that gross fault, either contractual or delictual, because it can be assimilated to fraud, makes the wrongdoer liable for the full reparation of the damage caused, a liability of which he may not be relieved by any clause.") Gross fault thus includes not only gross negligence, but also bad faith breach of contract or fraud. See La. C.C. art. 2004, cmt. (a) (noting that "such clauses are against public policy because the overriding principle of good faith would be destroyed if it were possible to contract away for liability for fraud"); see also La. C.C. art. 1997, cmt. (b) (noting that "[a]n obligor is in bad faith if he intentionally and maliciously fails to perform his obligation").
Like the first part of La. C.C. art. 2004, the application of the second part of this article is not limited to tort claims. The second part of this article nullifies any clause excluding or limiting liability "for causing physical injury." La. C.C. art. 2004; see Litvinoff, 52 Tul. L.Rev. at 281 (noting that "[w]here injury to the physical integrity of persons is involved, a clause excluding liability for nonperformance is invalid, even when the damage is the consequence of slight fault[, which former La. C.C. art. 3556(13) defined as that want of care which a prudent man usually takes of his business].") As the Louisiana Supreme Court has noted, La. C.C. art. 2004 applies "when a party to the contract relinquishes future rights of action arising from his or her physical injury." Daigle v. Clemco Industries, 613 So.2d 619, 623 (La. 1993) (citing Ramirez v. Fair Grounds Corp., 575 So.2d 811 (La.1991)).
In this case, the trial court based its finding that neither part of La. C.C.
The exculpatory provision is also invalid under La. C.C. art. 2004 to the extent it excludes General's liability for physical injuries arising out of the breach of the installment contract. As a general rule, physical injuries are not recoverable in a breach of contract case; however, there are exceptions. See, e.g., La. C.C. art. 1998 (providing for the recovery of nonpecuniary damages for breach of contract in limited circumstances). Regardless, to the extent the exclusionary provision absolves General of liability for such physical injury claims it is invalid.
Although we find merit to the Wadicks' contention that the exclusionary provision violates both parts of La. C.C. art. 2004, we reject their contention that this finding dictates that the entire exculpatory provision be declared invalid.
Applying these principles in the context of agreements not to compete, the jurisprudence has held that "[c]ourts are free to recognize, by interpretation of the will of the parties, that the provision inserted in the agreement is only an accessory clause to which the agreement was not subject for its existence. In that case, the offending provision is deleted and the remainder of the agreement stands." Henderson Implement Co., Inc. v. Langley, 97-1197, pp. 5-6 (La.App. 3 Cir. 2/4/98), 707 So.2d 482, 486. Applying these principles in the context of the instant case, we find it possible to delete from the exculpatory provision the offending claims — claims for physical injury or claims for property damages as a result of the bad faith breach of contract or fraud — and to allow the remainder of the exculpatory provision to stand — claims for property damages as a result of the good faith breach of the installment contract.
Summarizing, we hold that the exclusionary provision on the reverse side of the proposal precludes neither Mr. Wadick's claims for physical injury nor his
For the foregoing reasons, we convert the Wadicks' appeal of the trial court's judgment denying their motion for leave to amend to an application for supervisory writ, grant the writ, and deny relief. As to the trial court's judgment granting General's partial motion for summary judgment, we reverse the judgment to the extent it finds the exculpatory provision in the installment contract enforceable to bar Mr. Wadick's claims for physical injuries and claims for bad faith breach of contract or fraud. In all other respect, we affirm the trial court's judgment granting the motion for partial summary judgment and enforcing the exculpatory provision; and we remand for further proceedings consistent with the views expressed in this opinion.
