Public-domain · open source
OpenJurist

404 So. 2d 528

Docket No. 11737.

Cohen v. AUDUBON CONST. CORP.

Stanley COHEN, M. D. and Louis Kenneth Cohen, M. D. a Professional Medical Corporation v. AUDUBON CONSTRUCTION CORPORATION.

Louisiana Court of Appeal

Decided September 14, 1981.

Louisiana Court of Appeal · decided 1981-09-14

Key passage — most relied on by later courts

“We reject that argument because the question of prescription must first be resolved before the court can determine if there is a viable contract to arbitrate. If prescribed, the contract is no longer binding and there is no arbitration agreement to enforce.”

quoted by 1 later decision, including Parker v. ST. TAMMANY HOSP. SERV. DIST.

Good law ✅— No negative treatment on recordhow we know

Decided 1981-09-14

How this case has been cited

Cited by 5 later decisions — most recently October 2016

5 state decisions

301981199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Steeg & O'Connor, Randy Opotowsky, New Orleans, for plaintiffs-appellants.

¶2Dodge, Friend, Wilson & Spedale, Joseph E. Friend, New Orleans, for defendant-appellee.

¶3Before SAMUEL, SCHOTT and GARRISON, JJ.

¶4GARRISON, Judge.

¶5This is an appeal from a judgment of the district court dismissing plaintiff's suit to compel arbitration on a construction contract. The judgment contains a statement that the case was dismissed on an exception of no right of action. The reasons for judgment, however, refer to an exception of prescription.

¶6Plaintiffs contend that the question of prescription must be decided by the arbitrator and not by the court. They rely on jurisprudence which holds that the only issues properly before the court are:

¶71. whether the parties have agreed to arbitration, and

¶82. whether or not the other party refused to submit to arbitration.

¶9We reject that argument because the question of prescription must first be resolved before the court can determine if there is a viable contract to arbitrate. If prescribed, the contract is no longer binding and there is no arbitration agreement to enforce.

¶10Appellant alleges that when the hearing was held at the trial court level, no argument, testimony, or evidence were presented on the issue of prescription, so that the trial court rendered this judgment without a hearing on the exception. Additionally, there is no transcript of the April 10 hearing contained in the record.

¶11On appeal, both parties argue the law of prescription and the facts and merits of the case in their briefs. There is some indication that there were prior repairs to the building by defendant over a period of time and that the damages complained of *529 may not have been immediately apparent but rather of a slowly developing nature. Either of these conclusions will have a bearing on the issue of prescription; however, no facts are in evidence in the record. If this case has prescribed, then it should, of course, be dismissed; however, there are no facts in the record which show that the case has prescribed.

¶12Due to the lack of evidence, the judgment of the district court is vacated, annulled and set aside and the case is remanded.

¶13ANNULLED, SET ASIDE AND REMANDED.

/404/so2d/528 · .json · Public domain