ROSEMARY LEDET, Judge.

This is a breach of contract suit. The narrow issue presented is whether the payment provision in the construction contract between the parties is a "pay-when-paid" clause — a term of payment — or a "pay-if-paid" clause — a suspensive condition.1 The trial court, finding that the contract contained a suspensive condition, sustained the dilatory exception of prematurity filed by the defendant, Rotolo Consultants, Inc. ("RCI"), and dismissed without prejudice the suit filed by the plaintiff, Tymeless Flooring, Inc. ("Tymeless"). From this judgment, Tymeless appeals. For the reasons that follow, we find that the contract contains a term of payment — a "pay-when-paid" clause. Accordingly, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND2

This case arises out of a construction contract between Dryades Young Men's Christian Association ("Dryades") and Ellis Construction, Inc. ("Ellis"), the prime contractor, for a project known as the Dryades YMCA Natatorium and Wellness Center in New Orleans, Louisiana (the "Project"). After contracting with Dryades, Ellis entered into a subcontract with RCI for certain portions of the work on the Project. RCI, in turn, entered into a subcontract with Tymeless to perform additional work, as an extra to the contract (the "Subcontract"). Tymeless was thus a subcontractor of a subcontractor on the Project.

After fully performing the work under the Subcontract, Tymeless invoiced RCI. Although RCI made a partial payment, it failed, despite amicable demand, to make full payment. On November 16, 2012, Tymeless filed a Statement of Claim and Privilege with the Orleans Parish Recorder of Mortgages in the principal amount of $24,595.00. On November 15, 2013, Tymeless commenced this suit against RCI.3 In its petition, Tymeless alleged that RCI was liable to it for the full amount of its lien claim, plus interest, attorneys' fees, and costs. In support of its claim, Tymeless cited the Subcontract; the Private Works Act, La. R.S. 9:4801, et seq; and the Open Account statute, La. R.S. 9:2781.

In response, RCI filed a dilatory exception of prematurity. The sole basis for RCI's exception was the payment provision contained in Section 5 of the Subcontract,4 which provides as follows:

RCI's position was that the underlying proceeding is premature because the payment provisions contained in the contract have not been triggered. Stated otherwise, RCI's position was that the Subcontract specified that the amounts Tymeless was seeking to recover from RCI were not owed by RCI "unless and until" RCI itself was paid by Ellis. Given that Ellis had not yet paid RCI these amounts, RCI contended that Tymeless' suit to secure payment from RCI was premature.

Agreeing with RCI, the trial court granted RCI's exception of prematurity and dismissed Tymeless' suit without prejudice. Tymeless then filed a motion for new trial, which the trial court summarily denied. This appeal followed.

DISCUSSION

An exception of prematurity poses the question of "whether the cause of action has matured to the point where it is ripe for a decision by the court." 1 Frank L. Maraist and Harry T. Lemmon, LOUISIANA CIVIL LAW TREATISE: CIVIL PROCEDURE § 6.6 (1999). An exception of prematurity is governed by La. C.C.P. art. 423, which sets forth the following pertinent rules:

La. C.C.P. art. 423.

In this case, the dispositive facts are not disputed. The only dispute presented is a legal one. When, as in this case, "there is no dispute as to the dispositive facts, the issue can be decided as a matter of law and the review is de novo." Demma v. Automobile Club Inter-Insurance Exch., 08-2810, p. 7, n. 4 (La.6/26/09), 15 So.3d 95, 100 (citing Kevin Associates, L.L.C. v. Crawford, 03-0211, p. 15 (La. 1/30/04), 865 So.2d 34, 43).

The narrow legal issue presented in this case is whether, under the provisions of the Subcontract, the non-payment by Ellis (a primary contractor) to RCI (a subcontractor) is a suspensive condition — a "pay-if-paid" clause — to RCI's obligation to pay Tymeless (RCI's subcontractor). If so, then, as RCI contends and the trial court found, Tymeless' suit is premature. If not, then, as Tymeless contends, the provision is a term of payment — a "pay-when-paid" clause — and the trial court erred in granting the exception of prematurity and dismissing the suit.7

In order to provide a framework for addressing the issue, we first summarize the jurisprudence distinguishing two types of payment clauses commonly inserted into construction contracts — "pay-when-paid" and "pay-if-paid" clauses. "The difference between a `pay-when-paid' clause and a `pay-if-paid' clause is vast." BMD Contractors, Inc. v. Fidelity and Deposit Co. of Maryland, 828 F.Supp.2d 978, 985 (S.D.Ind.2011).8

Explaining the vast difference between these two type of clauses, a commentator notes:

Ronald P. Friedberg, "PAY-IF-PAID" CONTRACT PROVISIONS, Providing Some Enforcement Consistency and Predictability in an Unsettled Area of Law, 57 No. 2 DRI For Def. 23 (2015).

A "pay-when-paid" clause is susceptible to the following two interpretations: "(1) as setting a condition precedent to payment or (2) as fixing the point in time when payment would ordinarily occur." Evans, Mechwart, Hambleton & Tilton, Inc. v. Triad Architects, Ltd., 196 Ohio App.3d 784, 794, 965 N.E.2d 1007, 1014 (2011). The majority view nationwide is that "pay-when-paid" clauses are timing mechanisms, not condition precedents. William M. Hill, Mary-Beth McCormack, Pay-If-Paid Clauses: Freedom of Contract or Protecting the Subcontractor from Itself?, 31 Construction Law. 26 (Winter 2011). Explaining the rationale behind the majority view, a commentator notes:

Id. at 26-27. "Courts that have enforced such ["pay-if-paid"] provisions uphold the parties' freedom to contract in such a way that those least able to control or minimize the risk are nevertheless the ones most likely to suffer the consequences of its realization." 3 Bruner & O'Connor, CONSTRUCTION LAW § 8:47 (2014).

The seminal nationwide case on "pay-when-paid" clauses is Thos. J. Dyer Co. v. Bishop Intern. Engineering Co., 303 F.2d 655 (6th Cir.1962), which espouses the majority view outlined above. The subcontract in Dyer provided that "no part of [the subcontract price] ... shall be due until five (5) days after Owner shall have paid Contractor therefor." Dyer, 303 F.2d at 656. Rejecting the contractor's argument that the subcontract made payment by the owner a condition precedent to the contractor's obligation to pay the subcontractor, the court in Dyer reasoned as follows:

Dyer, 303 F.2d at 661. Thus, the court's reasoning in Dyer regarding "pay-when-paid" clauses was premised upon its analysis of the usual relationships among the parties to the subcontract.

The seminal Louisiana case on "pay-when-paid" clauses is Southern States Masonry, Inc. v. J.A. Jones Const. Co., 507 So.2d 198 (La.1987), which adopted the majority view outlined above and cited Dyer with approval. The Southern States case involved claims by subcontractors against general contractors for payment in connection with the Louisiana World's Fair (the "Fair"). The dispute was prompted by the bankruptcy of the Fair's owner, the Louisiana World Exposition, Inc. ("LWE"). As a result of its bankruptcy, LWE defaulted on its debts to multiple contractors on the Fair project, which spawned multiple subcontractors to file claims. Defending these claims, the general contractors relied upon the "pay-when-paid" clauses in their subcontracts.

One of the Fair's general contractors was J.A. Jones; the J.A. Jones subcontract provided:

Southern States, 507 So.2d 198, 200 (emphasis supplied). Relying on the language in the subcontract, J.A. Jones filed an exception of prematurity, which the trial court sustained and the appellate court affirmed. The Louisiana Supreme Court granted writs in the J.A. Jones case and consolidated it with another case, from this court, involving a similar factual scenario.9

Reversing both appellate court decisions and ruling in the subcontractors' favor, "the Louisiana Supreme Court concluded that the contract provisions reciting essentially that the subcontractor would receive payment after receipt of payment by the general contractor from the owner (the so-called `pay when paid' clauses) are not suspensive conditions, but rather terms for payment which only delay the execution of the respective general contractors' obligations to make payment, and then only for a reasonable time." Southern States, 507 So.2d at 200 (emphasis supplied). In so holding, the Supreme Court cited multiple rationales in support of its decision, including the following:

The Southern States case stands for the proposition that to create an enforceable "pay-if-paid" clause the parties' intent to do so must be explicitly expressed in their agreement. Including conditional expressions, such as "if" or "unless or until,"11 aids in alleviating the ambiguity and making the parties' intent explicit; "[f]urthermore, where the parties intend to share any risk arising from an owner's unanticipated insolvency, the contract should provide explicitly for this contingency." Susan R. Laporte, Casenote, "Pay When Paid": Reasonable Time Term or Conditional Obligation? Southern States Masonry, Inc. v. J.A. Construction Co., 34 Loy. L.Rev. 431, 447 (1988).

Tymeless cites the Southern States case as dispositive. In support, Tymeless contends that the language in the Subcontract in this case is indistinguishable from the language in the J.A. Jones subcontract in the Southern States case. Tymeless further contends that there is no difference in the meaning of "after payment by the owner" — the language in the Subcontract in this case — and "upon receipt of payment from the owner" — the language in the J.A. Jones subcontract in the Southern States case. Tymeless thus contends that, like the contract in the Southern States case, the Subcontract in this case contains a "pay-when-paid" clause; hence, it submits that the trial court erred in dismissing its suit as premature.

RCI counters that the trial court correctly found the payment provision in the Subcontract operates as a suspensive condition — a "pay-if-paid" provision. RCI further counters that the Subcontract expressly provides that payments — both progress and final — by RCI to Tymeless are "subject to the conditions following": (i) receipt of payment by the Owner for the Subcontractor's work; and (ii) release of final payment by the Owner. In support, RCI cites the following two cases in which Louisiana courts have found conditional payment arrangements fit the model of "pay-if-paid" provisions: Imagine Const., Inc. v. Centex Landis Constr. Co., 97-1653 (La.App. 4 Cir. 2/11/98), 707 So.2d 500; and Coastal Development Group, L.L.C. v. International Equip. Distributors, Inc., 10-1202 (La.App. 1 Cir. 2/11/11) (unpub.), 2011 WL 766608.

RCI contends that this court's reasoning in the Imagine case regarding the parties' recognition and acknowledgement of the possibility that the owner could fail to make payments is equally applicable in this case. The language of the Subcontract, RCI contends, anticipates the reasonably foreseeable possibility that Dryades, the owner, would fail to make payment under the general contract to Ellis, the general contractor; and that payment to RCI, Ellis' subcontractor, would be delayed, if not, completely denied. (As noted earlier, Tymeless is RCI's subcontractor.) According to RCI, the language of the Subcontract provides that its payment obligation does not arise "unless and until 1) it is paid by Ellis [the general contractor], who is paid by Dryades [the owner] and 2) Dryades releases final payment." Under these circumstances, RCI contends that since it has not been paid, its payment obligation has not been triggered. RCI thus submits that Tymeless's suit seeking payment from it is premature.

The determinative factor in interpreting whether a payment provision is a "paid-when-paid" clause — a term of payment — or a "pay-if-paid" clause — a suspensive condition — is the language in the contract. Solomon & Filipowski, Inc. v. Boes Iron Works, Inc., 621 So.2d 882, 884 (La. App. 4th Cir.1993). Because of the harsh consequences of enforcing "pay-if-paid" clauses, the jurisprudence has imposed a requirement that to be enforceable, such clauses must contain "`clear and unequivocal language set forth unambiguously on the face of the contract.'" Sloan & Co. v. Liberty Mut. Ins. Co., 653 F.3d 175, 181, n. 9 (3d Cir.2011); Southern States, 507 So.2d at 206. Although no particular language is necessary, the jurisprudence has enforced "pay-if-paid" clauses that expressly include the following language: (1) payment to the contractor is a condition precedent to payment to the subcontractor; (2) the subcontractor is to bear the risk of the owner's nonpayment; or (3) the subcontractor is to be paid exclusively out of a fund the sole source of which is the owner's payment to the subcontractor. Evans, Mechwart, Hambleton & Tilton, 196 Ohio App.3d at 791, 965 N.E.2d at 1012-13; see also Sloan & Co., supra.

Illustrative, this court in the Imagine case relied on the inclusion of the term "condition precedent" in the subcontract to find it contained a "pay-if-paid" clause. See Southern States, supra (noting that a condition precedent is the common law equivalent to the civilian concept of a suspensive condition).12 We reasoned that the most important language in the subcontract was the condition precedent language — the statement that "the subcontractor agrees that full payment from the owner shall be a condition precedent to the bringing of any action by a subcontractor against the defendants." Imagine, 707 So.2d at 502 (emphasis in original). The condition precedent language, we noted, specifically recognized and acknowledged the possibility of the owner's complete failure of making either progress or full payments. Distinguishing the Southern States case, we reasoned that the subcontract before us "more specifically and explicitly sets forth language which particularizes that payment is to be made to the subcontractor only if actual payment is made to the contractor by the owner." Id. (emphasis in original). The possibility of the owner failing to make payment, we concluded, was reasonably foreseen and intended to be addressed by the language of the payment provision. Until actual receipt of payment from the owner, we held that any action by the subcontractor against the contractor was premature.13

Unlike in the Imagine case, but like in the Southern States case, the Subcontract in this case does not contain "condition precedent" language. Nor does the Subcontract contain additional language that specifically recognizes the possibility that there may be a complete failure of payment — that the subcontractor is to bear the risk of the owner's nonpayment. Nor, contrary to RCI's suggestion, does the Subcontract contain "unless and until" language. If the Subcontract did contain "unless and until," "condition precedent," or similar conditional language, RCI's argument might be persuasive.14

In sum, the Subcontract contains no language that would qualify it as a "pay-if-paid" clause; it is a classic "pay-when-paid" provision. Indeed, as Tymeless points out, the language in the Subcontract is indistinguishable from the language in the J.A. Jones subcontract in Southern States. We thus find the trial court erred in construing the language in the Subcontract as a "pay-if-paid" clause. Southern States, supra. (holding equivalent language is a "pay-when-paid" clause). Accordingly, we reverse the trial court's ruling, overrule the exception of prematurity, and remand for the trial court to determine whether a reasonable time for the contractor to pay has elapsed.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed; and the case is remanded to the district court for further proceedings.

REVERSED AND REMANDED.