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Owens v. Boh Bros. Construction Co.2/6/2002
lows an appellate court to notice this exception if justice so requires. Accordingly, we are not foreclosed from considering the exception of no right of action even though the Defendants failed to answer the appeal. Therefore, we shall address this issue.
As we have already observed, the language in the settlement agreement is clear. Under the terms of the agreement, Boh Bros. remained a real party in interest with respect to the third-party claim. Boh Bros. is to receive the first $250,000.00 of any recovery against the Defendants in the third-party claim. Additionally, the settlement agreement specifically states that the third-party claim is to be prosecuted "in the name of Boh Bros."
Moreover, we find that Boh Bros. is a solidary obligor with the Defendants. As a solidary obligor having paid the claim, Boh Bros. has a claim that it may assert against other solidary obligors for contribution. La.Civ.Code art. 1805. Although the amount of the contribution must await judicial determination, the right to assert the claim presently exists. Accordingly, we affirm the trial courts decision to deny the Defendant's exception of no right of action.
Decree
Based on the foregoing reasons, we reverse the trial court's granting of the Defendant's peremptory exception of no cause of action, affirm the trial court's denial of the peremptory exception of no right of action, and remand. All costs of appeal are assessed to the Defendants.
REVERSED IN PART; AFFIRMED IN PART; AND REMANDED.
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