Lamar Contractors, LLC Versus Srf Group Consulting, LLC ( 2023 )

LAMAR CONTRACTORS, LLC NO. 22-CA-212
VERSUS FIFTH CIRCUIT
SRF GROUP CONSULTING, LLC COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ST. JAMES, STATE OF LOUISIANA
NO. 36,600, DIVISION "E"
HONORABLE ALVIN TURNER, JR., JUDGE PRESIDING
February 01, 2023
JOHN J. MOLAISON, JR.
JUDGE
Panel composed of Judges Robert A. Chaisson,
Stephen J. Windhorst, and John J. Molaison, Jr.
REVERSED; REMANDED
JJM
RAC
SJW
COUNSEL FOR PLAINTIFF/APPELLEE,
LAMAR CONTRACTORS, LLC
Steven B. Loeb
Jacob E. Roussel
COUNSEL FOR DEFENDANT/APPELLANT,
ST. JAMES PARISH
Victor J. Franckiewicz, Jr.
MOLAISON, J.
The appellant, St. James Parish, seeks review of the trial court’s granting of
a partial summary judgment which struck several of its reconventional demands
brought against the appellee, Lamar Contractors, L.L.C. For the reasons that
follow, the trial court’s ruling that granted Lamar’s motion for summary judgment
on the issue of the Parish’s reconventional demands is reversed.
FACTS AND PROCEDURAL HISTORY
The basis of the underlying lawsuit pertains to the construction of a public
recreation building (“the building”)1 owned by, and located within, St. James
Parish (“the Parish”). On July 30, 2013, the Parish entered into a written contract2
with Lamar Contractors, L.L.C. (“Lamar”) to serve as the general contractor for
the project and to construct the building, which was designed by SRF Group
Consulting, L.L.C. (“SRF”). Following a dispute over the design and
specifications for the roof decking, Lamar stopped work on the project. On July
15, 2015, pursuant to the general contract between the parties, Lamar filed a
required “Notice of Termination.” Lamar then filed the underlying lawsuit, which
later named the Parish in an amended petition.3 The Parish filed a reconventional
demand against Lamar on January 19, 2016, alleging that Lamar had performed
defective work and had breached the general contract in unilaterally deciding to
stop work on the building.
Lamar’s motion for a partial summary judgment on the Parish’s
reconventional demands was held on December 6, 2021. In its judgment dated
December 22, 2021, the trial court granted Lamar’s motion for partial summary
1
The record shows that the official name of the project was “St. James Parish District 5 Multi-
Purpose Recreation Building Welcome Park.”
2
The contract used a pre-drafted form with the designation of “Document A101-2007.”
3
Lamar’s original petition and its amended petition have not been made part of the designated
record on appeal.
22-CA-212 1
judgment as to the Parish’s claims for “defective work” as “asserted in Paragraph
36, Subparts (a) through (aa) of the Reconventional Demand,” and “reasserted in
Paragraph 36, Subparts (a) through (z) and (bb) of the Amended Reconventional
Demand.” The judgment also dismissed the Parish’s claim against Lamar for
“stopping work and walking off the job.” This appeal followed.
ASSIGNMENTS OF ERROR
On appeal, the Parish assigns two errors:
1. The trial court committed legal error in misconstruing the
construction contract and applying the Article 15 claims procedure to the
Parish’s reconventional demand without considering that article in context,
and without applying the provisions of the contract as a whole.
2. The trial court committed legal error by granting summary
judgment when material facts remain in dispute.
LAW AND ANALYSIS
Standard of review
Appellate courts review summary judgments de novo, using the same criteria
that govern the trial court’s consideration of whether summary judgment is
appropriate. Vill. Shopping Ctr. P'ship v. Kimble Dev., L.L.C., 18-740 (La. App. 5
Cir. 4/24/19), 271 So.3d 376, 381; Lincoln v. Acadian Plumbing & Drain, LLC,
17-684 (La. App. 5 Cir. 5/16/18), 247 So.3d 205, 209, writ denied, 18-1074 (La.
10/15/18), 253 So.3d 1302. A motion for summary judgment is a procedural device
used to avoid a full-scale trial when there is no genuine issue of material fact, and
is favored and designed to secure the just, speedy, and inexpensive determination
of every action. Id. A motion for summary judgment shall be granted if the motion,
memorandum, and supporting documents show that there is no genuine issue as to
material fact and that the mover is entitled to judgment as a matter of law. La.
C.C.P. art. 966. If only one conclusion could be reached by reasonable persons,
summary judgment is appropriate, as there is no need for a trial on that issue. Id.22-CA-212 2
First assignment of error
In its motion for partial summary judgment, Lamar argued that the
Parish failed to preserve its reconventional claims in the manner mandated
by the contract under Article 15.4 The relevant provisions that Lamar relied
upon state:
§ 15.1.1 DEFINITION
. . .
A Claim is a written demand or assertion by one of the parties
seeking, as a matter of right, payment of money, or other relief with
respect to the terms of the Contract. The term "Claim" also includes
other disputes and matters in question between the Owner and
Contractor arising out of or relating to the Contract. The responsibility
to substantiate Claims shall rest with the party making the Claim.
Claims must be initiated by written notice. Verbal communications
shall not constitute claims.
§ 15.1.2 NOTICE OF CLAIMS
. . .
Claims by either the Owner or Contractor must be initiated by
written notice to the other party and to the Initial Decision Maker with
a copy sent to the Architect, if the Architect is not serving as the
Initial Decision Maker. Claims by either party must be initiated within
21 days after occurrence of the event giving rise to such Claim or
within 21 days after the claimant first recognizes the condition giving
rise to the Claim, whichever is later.
In its first assignment of error, the Parish contends that the trial court erred in
finding that a failure to follow the procedures in Article 15 of the contract served
as a bar to its reconventional demands.
The interpretation of a contract’s provisions is typically a matter of law that
may properly be decided on a motion for summary judgment. Hall v. Malone, 12-
0264 (La. App. 4 Cir. 11/7/12), 104 So.3d 593, 596. In analyzing contracts, certain
fundamental legal principles apply. According to the rules of construction, the
4
The only specific examples provided in the contract which pertain to notice are: 15.1.4- Claims
for additional cost, and; 15.1.5- Claims for additional time.
22-CA-212 3
responsibility of the judiciary in interpreting contracts is to determine the parties’
common intent. See, La. C.C. art. 2045. Courts begin their analysis of the parties’
common intent by examining the words of the contract itself. See, La. C.C. art.
2046. In ascertaining the common intent, words and phrases in a contract are to be
construed using their plain, ordinary and generally prevailing meaning, unless the
words have acquired a technical meaning, in which case the words must be
ascribed their technical meaning. See, La. C.C. art. 2047.
A contract is to be construed as a whole, and each provision in the contract
must be interpreted in light of the other provisions. One provision of the contract
should not be construed separately at the expense of disregarding other provisions.
See, La. C.C. art. 2050. Neither should a contract be interpreted in an unreasonable
or a strained manner so as to enlarge or to restrict its provisions beyond what is
reasonably contemplated by its terms or so as to achieve an absurd conclusion.
Edwards v. Daugherty, 03-2103 (La. 10/1/04), 883 So.2d 932, 941. Courts lack the
authority to alter the terms of contracts under the guise of contractual interpretation
when its provisions are couched in unambiguous terms. Cadwallader v. Allstate
Insurance Co., 02-1637 (La. 6/27/03), 848 So.2d 577, 580. The rules of contractual
interpretation simply do not authorize a perversion of the words or the exercise of
inventive powers to create an ambiguity where none exists or the making of a new
contract when the terms express with sufficient clarity the parties’ intent. Edwards,
883 So.2d at 941.
Lamar’s obligations created in the July 30, 2013 contract
It is clear from the contract that Lamar’s overall obligation was to supply
any work, labor and materials required to produce a “functionally complete
project.”5 To further this goal, the contract outlines a process for identifying
5
Contract, Article 1, section 1.2.
22-CA-212 4
unsatisfactory work, through the use of a “punch list.”6 The contract states that the
“Architect” is responsible for preparing a punch list to deliver to the owner, which
in this case is the Parish.7 Identification of items on the punch list are not identified
as “claims” in the contract. The final payment to Lamar, as the contractor, is
conditioned upon its obligation to correct work under 12.2.2.8 A one year period
for correction of work is provided to Lamar. 9 The contact provides that the Parish
could terminate the contract if Lamar fails to timely complete the punch list.10
Finally, section 3.20 contract states, in part, that “[t]he Contractor shall be liable to
the Owner for all costs and/or damages that the Owner incurs as result of the
Contractor’s failure to perform the Work…”
The contract is clear on its face that the Parish has the right to redress in the
event that Lamar’s work is deemed unsatisfactory, through the process described
above. The contract also states that a failure by the Parish to use that process does
not result in a waiver of those claims. As provided in section 13.4.2, “[N]o action
or failure to act by the Owner, Architect or Contractor shall constitute a waiver of a
right or duty afforded them under the Contract, nor shall such action or failure to
act constitute approval of or acquiescence in a breach there under, except as may
be specifically agreed in writing.” This would specifically apply to Lamar’s claim
that the Parish waived its right to recover for a defect in Lamar’s workmanship.
We would reach this same conclusion even if we were to find 15.1.2 applicable, as
argued by Lamar. That section also does not specifically state that the Parish
waives legal recourse otherwise provided under the contract11 by failing to give
notice.
6
Contract, Article 3, section 3.4. The term “punch list” is not defined in the contract. In common
usage, we understand the term to mean “[l]ists of jobs that have not been completed by a contractor before
he is due to be paid,” as defined in the Black Law Dictionary 2nd Ed.
7
Contract, Article 5, section 5.1.8.
8
Contract, Article 5, section 5.2.1.
9
Contract, Article 12, section 12.2.2.
10
Contract, Article 14, section 14.2.1.
11
Contract, Section 3.20 correlates to La. C.C. art. 2769, which states:
22-CA-212 5
The Parish’s obligation after Lamar’s termination of the contract
The notice and remediation procedures detailed in the contract are logical in
the context of a continuing construction project. The next question is what, if any,
obligation the Parish had to report defects to Lamar once the contract was
terminated.
When Lamar terminated or ended the project, it also ended any obligations
the Parish had except those which were provided for in the contract, which was to
pay Lamar “for Work properly executed, including reasonable overhead and profit
on that portion of the Work properly executed, installed, performed or completed.”
The alleged defects are relevant, however, to show the Parish’s entitlement to a
potential offset for the remaining payment left to Lamar after its termination of the
contract. The Parish’s only recourse at that time was to assert these claims in
district court, as per the Binding Dispute Resolution clause of 6.2.12
The Parish’s reconventional demands are also permissible under La. C.C.P.
art. 424, which states:
A person who has a right to enforce an obligation also has a
right to use his cause of action as a defense.
Except as otherwise provided herein, a prescribed obligation
arising under Louisiana law may be used as a defense if it is incidental
to, or connected with, the obligation sought to be enforced by the
plaintiff.
Under this article, Louisiana courts have allowed reconventional demands to stand,
even when they otherwise would have been prescribed, as long as they are
incidental to, and directly connected with the obligation sought to be enforced.
If an undertaker fails to do the work he has contracted to do, or if he does not execute it
in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses
that may ensue from his non-compliance with his contract.
12
Contract, Article 6, section 6.2 provides that an optional mediation between the parties is a
precursor to litigation. In its brief, the Parish asserts that prior to the filing of its reconventional demand, all
parties to Lamar’s lawsuit went through mediation and even sought the appointment of a special master to
assist in re-starting construction.
22-CA-212 6
Dixie Bldg. Materials Co., Inc. v. Bob L. Whittington & Associates, Inc., 588 So.2d
78 (La.1991); Hennessey Const. Corp. v. Halpern, 06-1099 (La. App. 4 Cir.
1/31/07), 952 So.2d 739, 741. In the instant case, because Lamar’s main demand
pertains to the construction of a building, we find the Parish’s reconventional
demands regarding defects in the work to be connected.
In conclusion, upon de novo review, and construing the contract as a whole,
we find that the trial court erred as a matter of law in finding that Article 15 could
be used to preclude the Parish’s reconventional demand. We reverse the trial
court’s granting of Lamar’s motion for summary judgment. As noted above, even
if the Parish’s claims for damages were prescribed, La. C.C.P. art. 424 allows them
to use these claims as a reconventional demand.
Because we have granted relief on the Parish’s first assignment of error, we
pretermit discussion on its second assignment as moot.
CONCLUSION
For the foregoing reasons, the trial court’s ruling that granted Lamar’s
motion for summary judgment on the issue of the Parish’s reconventional demands
is reversed. This matter is remanded for further proceedings consistent with this
opinion.
REVERSED; REMANDED
22-CA-212 7
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
FEBRUARY 1, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-CA-212
E-NOTIFIED
23RD JUDICIAL DISTRICT COURT (CLERK)
HONORABLE ALVIN TURNER, JR. (DISTRICT JUDGE)
STEVEN B. LOEB (APPELLEE) VICTOR J. FRANCKIEWICZ, JR. ELLIOT W. SCHARFENBERG (APPELLEE)
(APPELLANT)
MAILED
DARREN A. PATIN (APPELLEE) KEITH J. BERGERON (APPELLEE) JACOB E. ROUSSEL (APPELLEE)
ATTORNEY AT LAW TERRENCE L. BRENNAN (APPELLEE) ATTORNEY AT LAW
3445 NORTH CAUSEWAY BOULEVARD ATTORNEYS AT LAW POST OFFICE BOX 3197
SUITE 800 755 MAGAZINE STREET BATON ROUGE, LA 70821
METAIRIE, LA 70002 NEW ORLEANS, LA 70130