Gilbert v. Angel; Writ Copy; Good citations

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Gilbert v. Angel; Writ Copy; Good citations

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SECOND CIRCUIT COURT OF APPEAL

IN AND FOR THE STATE OF LOUISIANA

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DOCKET NO.
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ROBERT ANGEL BUILDERS, INC., PLAINTIFF-RESPONDENT

VERSUS

TIMOTHY CLARK GILBERT, ET AL, DEFENDANTS-APPLICANTS

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ON APPEAL FROM THE
26TH JUDICIAL DISTRICT COURT IN
THE PARISH OF BOSSIER, STATE OF LOUISIANA
DOCKET NO. 119,258-A
HONORABLE DEWEY BURCHETT, DISTRICT JUDGE

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APPLICATION FOR WRIT OF CERTIORARI AND REVIEW
BY DEFENDANTS-APPLICANTS, TIMOTHY CLARK GILBERT and KAREN ROCKETT GILBERT

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APPLICATION ON BEHALF OF
TIMOTHY CLARK GILBERT and KAREN ROCKETT GILBERT
APPLICANTS

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Submitted by:

Bodenheimer, Jones & Szwak, LLC


By: ________________________________
David A. Szwak LBR# 21157
509 Market St., 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
[318] 221-6444
FAX 221-6555
ATTORNEYS FOR TIMOTHY CLARK GILBERT and KAREN ROCKETT GILBERT, APPLICANTS


THIS IS A CIVIL CASE TABLE OF CONTENTS
Pages
___________________________________________________________________

TABLE OF AUTHORITIES iv

CASE LAW iv

STATUTORY LAW v

STATEMENT OF THE GROUNDS ON WHICH THE JURISDICTION
OF THIS COURT IS INVOKED 1

SPECIFICATIONS OF ERROR 3

ISSUES PRESENTED FOR REVIEW 3

STATEMENT OF THE CASE 4

ACTION OF THE TRIAL COURT 7

ARGUMENT:

1. The contract between Applicants and Respondent
provided for arbitration of disputes between the parties and the
trial court erred in refusing to enforce arbitration between
the parties. 8

2. Applicants properly sought consolidation of Applicant’s lawsuit
against Respondent [breach of contract to build a custom
home] with Respondent’s later and separately filed [this] lawsuit
against Applicants contending failure to pay sums under the same
contract to build 9

3. Respondent failed to assert its compulsory counter-claims in
Applicant’s lawsuit as required by La. C.C.P. Article 1061 10

4. The lower court erred in failing to consolidate suits numbered
115,871-B and 119,258-A [this lawsuit] although the lawsuits
both involve the identical parties, same contract, same proof,
same witnesses, same occurrences, same transactions, and
same defenses. 11

5. The trial court has refused to stay lawsuit number 119,258-A
[this lawsuit] despite severe prejudice to Applicants in being
forced to litigate the issues in a trial forum which lacks
jurisdiction 12

6. Applicants respectfully submit the subject arbitration
clause is substantively unconscionable and cannot be enforced

ii.
if read to allow Respondent to utilize the court system to
redress its claims while confining Applicants to exclusive
use of Respondent’s hand-picked arbitration litigate in a trial
court that lacks jurisdiction.. 12

7. Applicants respectfully submit this Application and request
treatment either as a supervisory writ or as an appeal based
upon clear authority from this Honorable Court showing that
irreparable injury will result from Applicants being forced to
litigate in a trial court that lacks jurisdiction.. 13

CONCLUSION 15

CERTIFICATE 16

VERIFICATION 17

TABLE OF EXHIBITS 18
































iii. TABLE OF AUTHORITIES
Pages
___________________________________________________________________
CASE LAW:

Allen v. Valero Energy Corp.,
--- So.2d ----, 2007 WestLaw 60523 [La. App. 5 Cir. 2007] 14

Austin Homes, Inc. v. Thibodeaux,
821 So.2d 10 [La. App. 3 Cir. 2002] 10

Bridwell v. Louisiana Patients' Compensation Fund,
847 So.2d 686 [La. App. 4 Cir. 2003] 10

Carner v. Carner,
698 So.2d 34 [La. App. 3 Cir. 1987]. 14

CBD Docusource, Inc. v. Franks,
934 So.2d 307 [La. App. 5 Cir. 2006] 13

Classen v. Hofmann,
— So.2d ----, 2006 WestLaw 3420302 [La. App. 5 Cir. 2006] 11

Dahiya v. Talmidge Intern. Ltd.,
931 So.2d 1163 [La. App. 4 Cir. 2006] 2

Iberia Credit Bureau, Inc. v. Cingular Wireless LLC,
379 F.3d 159, 169 [5th Cir.2004] 12

Johnson v. Blue Haven Pools of Louisiana, Inc.,
928 So.2d 594 (La. App. 1 Cir. 2006)] 14

Shroyer v. Foster,
814 So.2d 83 [La. App. 1 Cir. 2002].. 14

Sosa v. PARCO Oilfield Services, Ltd.,
Slip Copy, 2006 WestLaw 2821882 [U.S.D.C. E.D.Tex. 2006]
[Hon. T. John Ward, Judge] 13

Stadtlander v. Ryan's Family Steakhouses, Inc.,
794 So.2d 881 [La. App. 2 Cir. 2001]. 14

Tower Hill Trading Co. v. Howard, Weil, Labouisse, Friedrichs Inc.,
687 So.2d 1096 [La. App. 4 Cir. 1997]. 10

Vartech Systems, Inc. v. Hayden,
— So.2d ----, 2006 WestLaw 3734368 [La. App. 1 Cir. 2006] 13

Wied v. TRCM, LLC,
698 So.2d 685 [La. App. 2 Cir. 1997] 13

iv.
Wisconsin Auto Title Loans, Inc. v. Jones,
290 Wis.2d 514, 550 [FN 56] 714 N.W.2d 155 [Wis. 2006] . 13

STATUTORY LAW:

Louisiana Const. Art. 5, sec. 10 2

Louisiana Code of Civil Procedure Article 425 10

Louisiana Code of Civil Procedure Article 1061 10,11

Louisiana Code of Civil Procedure Article 1061[B] 10,11

Louisiana Code of Civil Procedure Article 1561 2

Louisiana Code of Civil Procedure Article 2201 2

Louisiana Revised Statutes 9:3143 et. seq. 5,8,10

Louisiana Revised Statutes 9:3149 5

Louisiana Revised Statutes 9:3150. 5,8

Rule X, Section 5[b] of the Rules of the Louisiana Supreme Court 2


























v. STATEMENT OF THE GROUNDS ON WHICH
THE JURISDICTION OF THIS COURT SHOULD BE INVOKED

Applicants respectfully show that this case should be reviewed. Applicants hired Respondent to build a custom home on Applicants’ lot in Oak Alley Subdivision in Bossier City, Bossier Parish, Louisiana. A written Residential Construction Contract was executed between the parties. EXH. A. The subject home was not built correctly and Respondent failed and refused to cure the many defects and problems despite numerous demands. Applicants filed suit against Respondent, in suit number 115,871-B, in the 26th Judicial District Court, Bossier Parish, Louisiana. EXH. B. Applicants alleged breach of a contract to build and resulting damages due to defects and failure to complete the construction. Respondent filed a Dilatory Exception of Prematurity asserting that the Residential Construction Contract required arbitration of the claims in suit 115,871-B. EXH. C. The parties actually agreed that the claims should be arbitrated however the parties failed to be able to schedule and arbitrate or mediate the case, for several reasons.
On February 10, 2006, Respondent filed suit against Applicants in suit number 119,258-A, in the 26th Judicial District Court, Bossier Parish, Louisiana. EXH. D. Respondent claimed that Applicants owed Respondent additional monies under the Residential Construction Contract and that Applicants provided unreasonable punch lists. Respondent essentially alleged numerous facts constituting his purported defenses to Applicants’ suit, number 115,871-B. Applicants filed Dilatory Exception of Prematurity, Motion to Consolidate, and Rule to Show Cause in February, 2006. EXH. E. In September, 2006, after more delays, the Rule in connection with the exceptions in both lawsuits was set for hearing on November 6, 2006. EXH. F.
On November 1, 2006, Respondent served its Response to Applicants’ Exception of Prematurity, Motion to Consolidate, and Rule to Show Cause. EXH. G. On November 6, 2006, the trial court held oral argument and trial of the exceptions. In very unusual rulings, the trial court ordered Applicants’ suit, number 115,871-B, to proceed in arbitration and “the parties are hereby ordered to comply with the arbitration requirements contained in the Residential Construction Contract between them.” EXH. H. Indeed, the court “compelled” the arbitration in that ruling. Id. In a separate order, the same judge, in the same hearing, denied Applicants’ Exception of Prematurity and denied the Motion to Consolidate the two lawsuits. EXH. I. Both orders were signed by Judge Stinson in chambers on January 18, 2007. Id. Applicants filed their Motion and Order to Seek Supervisory Writs of Review. EXH. J.
Applicant requests that this Honorable Court exercise its powers to issue supervisory writs and grant this Application and further reverse the Trial Judge's Judgment in this lawsuit, and render judgment in favor of Applicants based on the evidence submitted in the lower court, the suit record introduced in evidence, and law. Alternatively and in the event this Honorable Court decides to reverse but not render, as this Court would be permitted to do, Applicants seek to have this action remanded with directions to the lower court for further proceedings, including a stay of proceedings pending completion of the arbitration ordered in suit number 115,871-B. The Trial Court's decision in rendering Judgment in suit number 119,258-A [this lawsuit] was erroneous.
Supervisory jurisdiction of this Honorable Court is found in La. C.C.P. art. 2201, LSA-Const. Art. 5, sec. 10, and Rule X, Section 5[b] of the Rules of the Louisiana Supreme Court. In reviewing the denial of Applicants’ exception of prematurity, to compel arbitration, and denial of the motion to consolidate, this Honorable Court conducts a de novo review. Dahiya v. Talmidge Intern. Ltd., 931 So.2d 1163 [La. App. 4 Cir. 2006] [and cases cited therein].
SPECIFICATIONS OF ERROR
1. The Trial Court erred in failing to find that the contract between Applicants and Respondent provided for arbitration of disputes between the parties.
2. The Trial Court erred in refusing to enforce arbitration between the parties.
3. The Trial Court erred in failing to require Respondent to assert its compulsory counter-claims in Applicant’s lawsuit, number 115,871-B, as required by La. C.C.P. Article 1061.
4. The Trial Court erred in refusing to consolidate Applicant’s lawsuit, number 115,871-B, against Respondent [breach of contract to build a custom home] with Respondent’s later and separately filed [this] lawsuit, number 119,258-A, against Applicants contending failure to pay sums under the same contract to build.
5. The Trial Court erred in failing to find that both lawsuits, numbered 115,871-B and 119,258-A, involve the identical parties, same contract, same proof, same witnesses, same occurrences, same transactions, and same defenses.
6. The Trial Court erred in finding that the arbitration clause was substantively conscionable despite Respondent’s assertion that the clause permitted Respondent to use the court system to address its claims while confining Applicants to arbitration through Respondent’s chosen forum listed in Respondent’s contract.
7. The Trial Court erred in refusing to stay lawsuit number 119,258-A [this lawsuit] despite severe prejudice to Applicants in being forced to litigate the issues in a trial forum which lacks jurisdiction.
ISSUES PRESENTED FOR REVIEW
1. Did Applicants show that a binding arbitration clause existed and that the parties are required to arbitrate the issues presented in both lawsuits, numbered 115,871-B and 119,258-A?
2. Did Applicants show that the lower court erred in denying Applicant-Plaintiff’s exception of prematurity and motion to compel arbitration?
3. Did Applicants show that Respondent’s claims in suit number 119,258-A [this lawsuit] are compulsory counter-claims required to be filed as such in suit number 115,871-B?
4. Did Applicants show that the lawsuits, numbered 115,871-B and 119,258-A, involved the same occurrences or transactions, and are filed in the same court between the same parties?
5. Did Applicants show that the trial court was bound to consolidate the lawsuits, numbered 115,871-B and 119,258-A?
6. Is the arbitration clause substantively conscionable if it is read to permit Respondent to use the court system to address its claims while confining Applicants to arbitration?
7. Did the trial court err in refusing to stay lawsuit number 119,258-A [this lawsuit] despite severe prejudice to Applicants in being forced to litigate the issues in a trial forum which lacks jurisdiction?
STATEMENT OF THE CASE
The facts in this case are very simple. Applicants hired Respondent to build a custom home on Applicants’ lot in Oak Alley Subdivision in Bossier City, Bossier Parish, Louisiana. A written Residential Construction Contract, drafted solely by Respondent, was executed between the parties. EXH. A. The Residential Construction Contract contains a provision which reads: “13. Arbitration of Claims Under the Act. Any and all claims, disputes and controversies arising under this Agreement and governed by the Act shall be submitted to arbitration by a single arbitrator pursuant to the rules of Construction Arbitration Services, Inc. [“CAS”] in effect at the time of the request for arbitration. If CAS, for any reason, shall be unable or unwilling to conduct the arbitration, the arbitration shall be conducted by and pursuant to the rules of the American Arbitration Association applicable to home warranty arbitration proceedings in effect at the time of the request for arbitration. The decision of the arbitrator shall be final and binding and may be entered as a judgment in any state or federal court of competent jurisdiction. The fees and expenses of the arbitration shall be borne equally by the Purchasers and Seller, and each party shall bear his own attorney fees. This arbitration provision shall only apply to claims arising under and governed by the Act, and other claims arising under this Agreement shall not be subject to this binding arbitration clause.” Par. 13, EXH. A. The “Act” is described as the “Louisiana New Home Warranty Act (La. R.S. 9:3143 et. seq.). Par. 12, EXH. A.
The contract illegally sought to preclude the Applicants’ rights to recover attorneys’ fees as provided for in La. R.S. 9:3149. It is contrary to law and must be struck. Further, La. R.S. 3:3150 provides that the Act “provides the exclusive remedies, warranties, and peremptive periods as between builder and owner relative to home construction and no other provisions of law relative to warranties and redhibitory vices and defects shall apply.”
The bulk of the Act addresses warranty periods for various categories of defects in new home construction. The Act is designed to cover any and all types of defects. The Act addresses the written punch list demand process and sets forth a buyer’s remedies against the builder for defective construction. The Act specifically provides for a cause of action for Applicants, for which Applicants have offset monies due Respondent under the Residential Construction Contract. La. R.S. 9:3149.
According to Respondent, the Residential Construction Contract, which he drafted, was designed to force buyers into arbitration of the buyer’s warranty claims while allowing Respondent to freely use the court system to make claims. Of course, this would effectively force the Applicants into Respondent’s hand-picked forum, as listed in Respondent’s contract.
The subject home was not built correctly and Respondent failed and refused to cure the many defects and problems despite numerous demands. Applicants filed suit against Respondent, in suit number 115,871-B, in the 26th Judicial District Court, Bossier Parish, Louisiana. EXH. B. Applicants alleged breach of a contract to build and resulting damages due to defects and failure to complete the construction. Respondent filed a Dilatory Exception of Prematurity asserting that the Residential Construction Contract required arbitration of the claims in suit 115,871-B. EXH. C. The parties actually agreed that the claims should be arbitrated however the parties failed to be able to schedule and arbitrate or mediate the case, for several reasons.
On February 10, 2006, Respondent filed suit against Applicants in suit number 119,258-A, in the 26th Judicial District Court, Bossier Parish, Louisiana. EXH. D. Respondent claimed that Applicants owed Respondent additional monies under the Residential Construction Contract and that Applicants provided unreasonable punch lists. Respondent essentially alleged numerous facts constituting his purported defenses to Applicants’ suit, number 115,871-B. Applicants filed Dilatory Exception of Prematurity, Motion to Consolidate, and Rule to Show Cause in February, 2006. In September, 2006, after more delays, the Rule in connection with the exceptions in both lawsuits was set for hearing on November 6, 2006. EXH. F. On November 1, 2006, Respondent served its Response to Applicants’ Exception of Prematurity, Motion to Consolidate, and Rule to Show Cause. EXH. G. On November 6, 2006, the trial court held oral argument and trial of the exceptions. In very unusual rulings, the trial court ordered Applicants’ suit, number 115,871-B, to proceed in arbitration and “the parties are hereby ordered to comply with the arbitration requirements contained in the Residential Construction Contract between them.” EXH. H. Indeed, the court “compelled” the arbitration in that ruling. Id. In a separate order, the same judge, in the same hearing, denied Applicants’ Exception of Prematurity and denied the Motion to Consolidate the two lawsuits. EXH. I. Both orders were signed by Judge Stinson in chambers on January 18, 2007. Id. Applicants filed their Motion and Order to Seek Supervisory Writs of Review. EXH. J.
Applicant requests that this Honorable Court exercise its powers to issue supervisory writs and grant this Application and further reverse the Trial Judge's Judgment in this lawsuit, and render judgment in favor of Applicants based on the evidence submitted in the lower court, the suit record introduced in evidence, and law. Alternatively and in the event this Honorable Court decides to reverse but not render, as this Court would be permitted to do, Applicants seek to have this action remanded with directions to the lower court for further proceedings, including a stay of proceedings pending completion of the arbitration ordered in suit number 115,871-B. The Trial Court's decision in rendering Judgment in suit number 119,258-A [this lawsuit] was erroneous.
ACTION OF THE TRIAL COURT
The trial court ordered Applicants’ suit, number 115,871-B, to proceed in arbitration and “the parties are hereby ordered to comply with the arbitration requirements contained in the Residential Construction Contract between them.” EXH. H. Indeed, the court “compelled” the arbitration in that ruling. Id. In a separate order, the same judge, in the same hearing, denied Applicants’ Exception of Prematurity and denied the Motion to Consolidate the two lawsuits. EXH. I. Both orders were signed by Judge Stinson in chambers on January 18, 2007. Id.


ARGUMENT
1. The contract between Applicants and Respondent provided for arbitration of disputes between the parties and the trial court erred in refusing to enforce arbitration between the parties.
Applicants brought New Home Warranty Act [La. R.S. 9:3143, et. seq.] claims against Respondent based upon its failure to properly construct and complete Applicants’ home. The defects are numerous. Applicants complied with the requirement of Act and provided Respondent with detailed punch lists prior to filing suit. Respondent breached its construction contract with Applicants. The contract provides that “Any and all claims, disputes and controversies arising under this Agreement and governed by the Act shall be submitted to arbitration...” Par. 13, EXH. A. The claims asserted by Respondent do arise under the agreement. That cannot be reasonably disputed by Respondent. The agreement is the contract to build which was breached and is the basis of the defectively built home. Are Respondent’s claims “governed by the Act”? Yes. Applicant’s claims, defenses and disputes in response to Respondent’s lawsuit, number 119,258-A, are based upon Applicants’ rights under the Act and duties of Respondent’s duties and liabilities under the Act. In fact, Respondent did not deny that Applicants’ claims, including damage claims, in suit number 115,871-B, are covered by the arbitration clause. Applicants assert that the first sentence of the clause makes clear that arbitration should apply to both lawsuits.
The last sentence of the arbitration clause provides: “This arbitration provision shall only apply to claims arising under and governed by the Act, and other claims arising under this Agreement shall not be subject to this binding arbitration clause.” Plainly, the Act provides that the Act is the exclusive set of rights and remedies available to Applicants-Home Buyer-Owners. La. R.S. 9:3150. That means that Applicants are confined to that law. Respondent apparently sought, through its arbitration clause to restrain Applicants to the exclusive use of Respondent’s hand-picked arbitrator while allowing Respondent to freely use the court system to assert claims. It seems this sentence conflicts with the earlier sentence by restricting the scope of mandatory arbitration to only Applicants’ claims. At least that is what Respondent has argued. Applicants assert that the clause cannot be read in that manner and must be read to apply to claims, disputes and contentions of each party under the agreement and Act. Otherwise, substantive unconscionability results as address later in this Application.
2. Applicants properly sought consolidation of Applicant’s lawsuit against Respondent [breach of contract to build a custom home] with Respondent’s later and separately filed [this] lawsuit against Applicants contending failure to pay sums under the same contract to build.
Consolidation is proper under Article 1561 as the subject matter, occurrences and transactions encompassed in both lawsuits, 115,871-B and 119,258-A, are the same. EXHS. B,D. Both suits involve the same, exact parties. Both suits allege the existence of the Residential Construction Contract. Both suits allege the construction of the subject home and terms of that agreement. Both suits allege that Applicants were the buyers-Owners and Respondent is the Builder. Both suits allege the facts of the dispute which arose between the parties leading to Applicants refusal to release the final payment to the Respondent, for failure to build the home correctly and failure to address the numerous items on the timely submitted punch lists. Both lawsuit address the same occurrences and transactions which belie both conflicting sets of claims. Applicants seek damages for breach of the contract to build under the Act while Respondent seeks monies under the contract to build and based upon correlative duties under the Act.
In Austin Homes, Inc. v. Thibodeaux, 821 So.2d 10 [La. App. 3 Cir. 2002], the court noted that the lower court had consolidated the Builder’s suit claiming monies due from the home buyer with the home buyer’s counter-suit for damages for claims under the New Home Warranty Act and breach of construction contract.
Since res judicata will attach to the arbitrator’s decision, much like to the court’s potentially parallel decision, it is essential to consider the effect of res judicata. Louisiana law clearly requires that a party “shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.” La. C.C.P. art. 425 An arbitration award carries the same res judicata effect as a judgment. Tower Hill Trading Co. v. Howard, Weil, Labouisse, Friedrichs Inc., 687 So.2d 1096 [La. App. 4 Cir. 1997].
It appears that, under Respondent’s interpretation of the arbitration clause, Respondent may proceed to try to collect the balance of the construction contract in court while forcing Applicants to arbitrate their construction defect claims. Contrary decisions may result which would lead to potential claims of res judicata. Article 1561 is designed to prevent this precise problem. Are there common facts and law to be applied in each case? Yes. Are these cases closely connected on the facts? Yes. Do they involve the same parties, witnesses, proof, and court? Yes. The court has wide latitude to order consolidation. Bridwell v. Louisiana Patients' Compensation Fund, 847 So.2d 686 [La. App. 4 Cir. 2003].
3. Respondent failed to assert its compulsory counter-claims in Applicant’s lawsuit as required by La. C.C.P. Article 1061.
Respondent was required to assert its claims, as compulsory counter-claims, in suit number 115,871-B. Respondent was not permitted to unilaterally file its own separate lawsuit in an effort to duplicate litigation and create separate actions to create confusion and conflict. Article 1061[B] states: “The defendant in the principal action, except in an action for divorce under Civil Code Article 102or 103 or in an action under Civil Code Article 186, shall assert in a reconventional demand all causes of action that he may have against the plaintiff that arise out of the transaction or occurrence that is the subject matter of the principal action.” Article 1061[B] is not discretionary. It is mandatory. This issue again goes back to the basic facts of both suits are the same. Do the causes of action in each suit “arise out of the [same] transaction or occurrence...”? The plain answer is “Yes.”
Failure to assert compulsory counter-claims results in res judicata. Classen v. Hofmann, — So.2d ----, 2006 WestLaw 3420302 [La. App. 5 Cir. 2006]. The problem here is that Respondent claims that Applicants can only assert their claims in arbitration. Otherwise, Applicants are now required to assert the same claims in suit 119,258-A [this lawsuit] once Applicants file a responsive pleading. What then? Respondent will assert arbitration again and claim Applicants can only pursue “claims” in arbitration? It seems Respondent’s arbitration clause results in a bizarre procedural tail-spin.
4. The lower court erred in failing to consolidate suits numbered 115,871-B and 119,258-A [this lawsuit] although the lawsuits both involve the identical parties, same contract, same proof, same witnesses, same occurrences, same transactions, and same defenses.
As touched upon above, the two lawsuits involve the same parties. The same construction contract. EXH. A. The same proof of the contract, payments sue, construction made, proof/arguments about completion of the object of the contract, identical witnesses, the same facts, same transactions, same occurrences and the same defenses. Of course, we have to add that Applicants will be forced to file compulsory counter-claims mirroring the claims that are presented in suit 115,871-B. That is required by the Code. Article 1061. Respondent cannot use its arbitration clause to prevent proper presentment of claims in front of a single “judge” resulting in one, consistent outcome. Justice dictates one result. The Code requires it. The arbitration clause, as argued by Respondent, creates a substantively unconscionable reading and result.
5. The trial court has refused to stay lawsuit number 119,258-A [this lawsuit] despite severe prejudice to Applicants in being forced to litigate the issues in a trial forum which lacks jurisdiction.
Applicants sought an order staying this lawsuit, number 119,258-A, while this Application was on file with this Honorable Court however Judge Burchett rejected that request. A stay of the lawsuit best serves justice and afford a review of the lower court decision against consolidation, against forced arbitration of this lawsuit [arguable an appealable, interlocutory ruling based on irreparable harm of being forced to litigate in a trial court which lacks jurisdiction], and creating potentially conflicting results/rulings in the two lawsuit/proceedings. The failure to render a stay further highlights the need for appellate intervention.
6. Applicants respectfully submit the subject arbitration clause is substantively unconscionable and cannot be enforced if read to allow Respondent to utilize the court system to redress its claims while confining Applicants to exclusive use of Respondent’s hand-picked arbitration litigate in a trial court that lacks jurisdiction.
As addressed herein below, Respondent would have the court enforce an arbitration clause under an interpretation that allowed Respondent free use of the court system while restraining and confining Applicants to the sole and exclusive use of the Respondent’s chosen and hand-picked arbitrator.
In Iberia Credit Bureau, Inc. v. Cingular Wireless LLC, 379 F.3d 159, 169 [5th Cir.2004], the United States Fifth Circuit examined an arbitration provision which required any claim that the customer was likely to bring to be raised in arbitration while allowing the cellular telephone provider [contract drafter] to raise its claims against the customer in a court of law. The Fifth Circuit refused to enforce that clause and found that the arbitration clause was unconscionable under Louisiana law. Also, see Wisconsin Auto Title Loans, Inc. v. Jones, 290 Wis.2d 514, 550 [FN 56] 714 N.W.2d 155 [Wis. 2006] [collecting a number of cases on point]. Courts have consistently and uniformly held such clauses to be unconscionable and unenforceable. Id.
Of course, the construction contract at hand has no severability clause so if the arbitration clause is invalid in part then the entire clause must be struck. Sosa v. PARCO Oilfield Services, Ltd., Slip Copy, 2006 WestLaw 2821882 [U.S.D.C. E.D.Tex. 2006] [Hon. T. John Ward, Judge]. Consistent with other courts, Louisiana courts have refused to reform an agreement containing a defective clause, such as an arbitration clause, when the contract lacks a severability clause. Vartech Systems, Inc. v. Hayden, — So.2d ----, 2006 WestLaw 3734368 [La. App. 1 Cir. 2006]; CBD Docusource, Inc. v. Franks, 934 So.2d 307 [La. App. 5 Cir. 2006]; Wied v. TRCM, LLC, 698 So.2d 685 [La. App. 2 Cir. 1997].
If the arbitration clause is as defective as the home Respondent built, then the clause must be struck entirely and Applicants must be permitted to pursue their litigation in the trial court, in one suit, not two suit.
7. Applicants respectfully submit this Application and request treatment either as a supervisory writ or as an appeal based upon clear authority from this Honorable Court showing that irreparable injury will result from Applicants being forced to litigate in a trial court that lacks jurisdiction.
Applicants are aware that the Louisiana courts have treated review of a denial of an exception of prematurity as both an interlocutory, appealable order in that irreparable harm may result from a trial in a forum which lacks jurisdiction, and as an interlocutory ruling subjecting Applicant to file an ordinary writ application. Stadtlander v. Ryan's Family Steakhouses, Inc., 794 So.2d 881 [La. App. 2 Cir. 2001]. Indeed, an interlocutory judgment may be amended or appealed at any times. Id.; citing Carner v. Carner, 698 So.2d 34 [La. App. 3 Cir. 1987]. Applicants respectfully submit that they have filed this Application for Supervisory Writs in the belief that it is the proper procedural vehicle to bring these matters before the court for review however should this Honorable Court deem this Application improper, Applicants seek an Order converting the matter to an appeal under the review of an interlocutory, appealable order. Compare the apparent conflicting sister court authorities: Johnson v. Blue Haven Pools of Louisiana, Inc., 928 So.2d 594 (La. App. 1 Cir. 2006) [holding denial of arbitration exception is an appealable, interlocutory judgment]; Allen v. Valero Energy Corp., --- So.2d ----, 2007 WestLaw 60523 [La. App. 5 Cir. 2007] [denial of exception of prematurity based on arbitration is not appealable but is merely interlocutory judgment]. One panel of the First Circuit held that an order compelling arbitration is not appealable but an order denying arbitration is appealable. Shroyer v. Foster, 814 So.2d 83 [La. App. 1 Cir. 2002]. The last pronouncement by this Honorable Court on this issue was in Statlander, supra, a case where Applicants’ counsel [in this case] represented the consumers-respondents in Statlander. This Honorable Court converted Ryan’s Steakhouse’s writ application to an appeal. It was more than a little confusing how the case resulted in an appeal in Statlander but a published decision was handed down and that conversion is mentioned in that decision.
In sum, Applicants respectfully seek appellate review.


CONCLUSION

Applicants respectfully submit that the Judgment of the lower court should be reversed and either: [1] the two lawsuits should be consolidated for all purposes; [2] arbitration should be ordered in both lawsuits/actions; [3] the exception of prematurity and to compel arbitration should be granted and enforced; OR [a] the arbitration clause should be deemed unenforceable and the entire clause struck; [b] the arbitration clause be deemed substantively unconscionable for lack of mutual access/rights of access to the court, as argued. Regardless all claims in both suits should be tried together and not separate.

C E R T I F I C A T E

I hereby certify that a copy of the above and foregoing writ application was served upon Jeff Thompson, Counsel for Respondent, and upon Honorable Ford Stinson, Trial Judge, 26th Judicial District Court, Bossier Parish, Louisiana, and Clerk of Court, Second Circuit Court of Appeal by first class mail properly addressed and postage pre-paid on this the ____ day of ____________________, 2007.

_______________________________________
OF COUNSEL V E R I F I C A T I O N

STATE OF LOUISIANA

PARISH OF CADDO

BEFORE ME, THE UNDERSIGNED NOTARY PUBLIC, personally came and appeared David A. Szwak, attorney for Applicants-Defendants TIMOTHY CLARK GILBERT and KAREN ROCKETT GILBERT, herein, who after being sworn, did depose and state: That a copy of the above and foregoing writ application was served upon Jeff Thompson, Counsel for Respondent-plaintiff, and upon Honorable Ford Stinson, Trial Judge, 26th Judicial District Court, Bossier Parish, Louisiana, and Clerk of Court, Second Circuit Court of Appeal by first class mail properly addressed and postage pre-paid on this the ____ day of _______________________, 2007. Further, that he has prepared and read this writ application and all statements made therein are true and correct to the best of his knowledge.

________________________________
David A. Szwak

SWORN TO AND SUBSCRIBED BEFORE ME THIS THE __ DAY OF ___________________, 2007.


_________________________________
NOTARY PUBLIC
Counsel:
Jeff Thompson
1005 Benton Rd.
Bossier City, Louisiana 71111

and

Trial Judge:
Honorable Ford Stinson
Trial Judge, 26th Judicial District Court, Bossier Parish
Courthouse
Benton, Louisiana 71006.
TABLE OF EXHIBITS

A Residential Construction Contract was executed between the parties.

B Petition filed by Applicants against Respondent, in suit number 115,871-B, in the 26th Judicial District Court, Bossier Parish, Louisiana.

C Respondent’s Dilatory Exception of Prematurity asserting that the Residential Construction Contract required arbitration of the claims in suit 115,871-B, in the 26th Judicial District Court, Bossier Parish, Louisiana.

D Petition filed by Respondent against Applicants, in suit number 119,258-A, in the 26th Judicial District Court, Bossier Parish, Louisiana.

E Applicants’ Dilatory Exception of Prematurity, Motion to Consolidate, and Rule to Show Cause, in suit number 119,258-A, in the 26th Judicial District Court, Bossier Parish, Louisiana.

F Rule in connection with the exceptions in both lawsuits was set for hearing on November 6, 2006.

G Respondent’s Response to Applicants’ Exception of Prematurity, Motion to Consolidate, and Rule to Show Cause, in suit number 119,258-A, in the 26th Judicial District Court, Bossier Parish, Louisiana.

H Judgment in suit number 115,871-B, in the 26th Judicial District Court, Bossier Parish, Louisiana.

I Judgment in suit number 119,258-A, in the 26th Judicial District Court, Bossier Parish, Louisiana.

J Applicants’ Motion and Order to Seek Supervisory Writs of Review.
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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