Mount Calvary Baptist Church VS Williams Construction Company of Port Allen, Louisiana
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2006 CA 1674 MOUNT CALVARY BAPTIST CHURCH ffI A VERSUS P Y1J WILLIAMS CONSTRUCTION COMPANY OF PORT ALLEN LOUISIANA fhrfy Judgment Rendered AUG Appealed from the Twentieth Judicial District Court In and for the Parish of East Feliciana State of Louisiana Suit Number 36079 Honorable William G Carmichael Counsel for Plaintiff Appellee Mount Calvary Baptist Church Alexis A St Amant II Baton Rouge LA Counsel for Defendant Ali Zito Shields Baton Rouge Presiding Appellant Williams Constluction Co of LA Port Allen Louisiana BEFORE 1 9 P ARRO j GUIDRY AND McCLENDON JJ d J Id 1 2007 McCLENDON J In this suit Company court s on construction a of Port Allen contract Louisiana Williams Construction appellant appeals the trial Williams Construction judgment in favor of appellee Mount Calvary Baptist Church of Norwood Mount For the Calvary reasons that follow we affirm as amended FACTS AND PROCEDURAL HISTORY On March 1 constluction church to for Mount the days On May 17 2004 asse1iing that it was entitled Williams Constluction and roof 2001 Mount s in Norwood Calvmy substantial contract from March 1 240 Calvmy and Williams Construction entered into whereby Williams Constluction agreed contract building According 2001 Mount and filed suit Williams system was to failure to of later than day 16 300 00 for time provided workmanship in installing the air conditioning system answered the petition electrical system Construction defective new Construction against Williams complete constluction within the s no 100 00 per set at amount a 577 175 00 be achieved were liquidated damages in the damages for Williams Construction alarm system Louisiana for liquidated damages Calvmy to completion to constluct a and plumbing asserted several and affirmative defenses A bench trial trial Williams Construction answer file the addendum Calvary to attempted file a 2005 On the supplemental morning of and amending wherein it asselied the additional affirmative defenses of arbitration and The trial waiver of claims to scheduled for November 30 was s pleading to the s request for leave to into evidence AlA Document A20 1 1997 Because the addendum during discovery and Constluction the denied Williams Construction however it allowed Williams Constluction contract objection court was not provided introduce over to Mount an Mount Calvary admittedly had only been discovered by Williams day before trial the trial 2 comi held the record open for two weeks to Calvary an opportunity to respond to this evidence allow Mount December 9 2005 Mount At defense of waiver of claims denied Mount Calvary the addendum s motion 48 200 00 which motion strike Williams Construction Janumy 23 2006 the trial on strike but ruled that neither party court signed a judgment on was for represented damages s court bound February Calvmy and against Williams Construction in the Williams Construction cOUli binding on 1 ened in by 2 2006 amount of delay replacement of the defective now appeals from this judgment asserting that the ruling that the addendum the parties the construction contract 2 in were was liable Calvary did nothing Williams Constluction liable for Calvary more provides for liable for no than one damages because of to replace remove the the contract to Mount a was to repaired for a year and 5 completion in 4 in finding to when the Mount contract holding Williams Construction faulty alaml system when faulty system but in considerably lesser mitigate its damages substantial 3 Calvary for replacement of damages for defects complained of by year after remedy after the choice not to technician one the construction due to the fault of Williams Construction the entire roof when the roof could have been and Mount to finding that all of the delays in the completion of finding that Williams Construction amount to on repair of the defective alarm system roof and not to a hearing a Thereafter the trial in favor of Mount trial filed Calvmy Thereafter Mount Calvmy made follow the recommendation of its digital voice recorder DISCUSSION Williams Constluction first contends that the trial find that AlA Document A20l 1997 was binding on Williams Construction introduced this addendum terms and conditions of the constluction contract 3 the court parties ened in failing to As stated above which contained the into evidence at general trial The addendum is referenced on the first page and is As into a times in the construction specifically listed under Article 8 as a general rule of contract law separate documents a contract by attachment Ram Industrial v numerous Inc Coatings 99 0354 p 1234 writ denied 00 2232 La So 2d 1223 L reference thereto or La 19 13 11 A contract document may be incorporated Inc Contracting Co 1 Cir 6 23 00 App 775 So 2d 438 00 762 Further contents of writings they have affixed their signatures and the parties will be held to the consequences Louisiana law presumes that of their signatures Aguillard pp 22 23 137 38 was pmiies Auction v 908 So 2d 1 La 6 29 05 La are aware signed by both parties clearly incorporates was aware provisions are of the addendum affirmative defense of definition an s terms prior to allegations on in the Construction Inc The purpose of defense so the merits can even are pleading a at not contract based on party that it did a new matter La Buck App surprised s not have or by to at tria1 1 plead the By contract issue that will defeat the 1 Cir to Enterprises Run 16 2 01 Webster v 808 So 2d 428 La See App has raised the defense of vice of consent 4 431 nature of plead an affirmative 607 So 2d 747 751 Mapp v the Rushing 316 So 2d 111 trial in support of the defense the inclusion ofthis document Inc give fair notice of the if the defendant fails to Farm Automobile Insurance Co We note that neither AlA Document A201 1997 nonperformance of the or special defense is Accordingly be offered issue which assuming that the claim is valid and that the true 99 3054 p 4 that the plaintiff is 114 La 1975 proof noncompliance petition contract at its introduction into evidence asserts affirmative defense raises claim plaintiff s Brasseaux 433 So 2d 133 v binding on the parties despite the fact that neither pmiy Williams Construction further I Tweedel 17 which to 04 2804 04 2857 Management Corp Therefore because the construction 1983 reference its no of the particularly contract as See LSA C C P art 1005 Hogan defense v State 1 Cir 1992 to the construction However Williams Construction show to prerequisites that for noncompliance because Mount part of its in chief that it complied as asserting party suing upon a bring him within the contract sued upon is terms defendant s answer App 1 Cir 1962 contract terms does In the instant Ca1vmy s not La App Union Tank Car v Therefore we to Mount with the Calvary 2 specially pleaded 140 So 2d 397 s failing s to terms a 403 failure to noncompliance with the denied the allegations in binding of which contract of the one Having on the parties determine whether Mount and conditions in terms s a in the under by the defendant generally AlA Document A201 1997 is contract Williams Construction bringing we Calvary its claims against 2 general conditions of the specify the obligation under of this issue Williams Construction find that the trial court erred in 1997 an Security v 649 So 2d 37 petition and asserted several affirmative defenses already determined that The be Company asserted that Williams Construction fulfilled the complied Odom find that Williams Construction preclude consideration case must which may be raised matter a was It is well settled 1 Cir 12 22 94 the plaintiff of defense which special a Calvmy prove every fact necessary to relied upon contract nonperformance by affirmative defense related asseli any Mount of the to required with the contractual Construction allege and 94 0433 p 3 but is Baker general denial La not against Williams contract must a It is also settled that case claim a Industrial Insurance Co 39 not was the defense of affirmatively plead required contends that it contractor s Williams Constmction does not contract contained in AlA Document A201 warranty of its work and provide assign 1 procedure for the issue of arbitration and mediation have been waived having failed to raise them of prematurity or by way of an affinnative as error on appeal the apparently recognizing that those arguments through a dilatory exception raising the objection defense See LSA C C P mis 926 A a 928 A 5 and 1005 resolution of claims and disputes Subparagraph 3 The Contractor equipment materials and and quality walTants Contract Documents required good permitted by the or that the work will be free from defects quality required conform requirements the the Owner and Architect that to otherwise inherent in the to states Wananty filluished under the Contract will be of unless new 1 5 entitled or permitted not and that the Work will Work of the Contract Documents not conforming to these requirements including substitutions not properly The approved and authorized may be considered defective Contractor s wananty excludes remedy for damages or defect caused by abuse modifications not executed by the Contractor improper or insufficient maintenance improper operation or normal wear and tear and normal usage If required by the Architect the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment A claim is defined in demand A adjustment or Contract by one of the interpretation extension of time 4 3 1 of Article 4 Subparagraph parties seeking as as a matter of right payIllent of money of Contract terms other relief with respect to the terms of the claim also includes other disputes and matters in or The term arising out of or relating to the Contract The Claims must be initiated by written notice responsibility to substantiate Claims shall rest with the party making question between the Owner and Contractor the claim According Subparagraph to 4 3 2 claim a architect and the other party within twenty giving rise to such claim or recognizes the condition giving rise 4 1 also one decision whose decision shall be owner and required contractor as a writing OCCUlTence of the to the event days after the claimant first the claim whichever is later that claims shall be refened provides claims between the to be initiated in days after one within twenty must initially condition arising prior to the architect for precedent to the Subparagraph to litigation of date final payment is due In the instant case roof and alarm system Veal testified 3 In its petition at appeal contesting were Calvary has asselied that the installation of the defective trial that Mount Mount the roof and alann Mount 3 With to be defective the trial court s to the roof Reverend George Calvary notified Williams Construction orally Calvary asserted additional system regard defects however the trial court and Mount determination 6 Calvary did not file only an answer found to the and in of the writing dated June 6 2002 stated that the roof the problems However in was still Additional problem with the letter dated a leaking leaking roof The first written notice was and August 17 2003 Mount Calvary requested Williams Construction to COlTect from Franklin Lassiter the architect in conespondence charge of this project and from counsel for Mount Calvary indicated that the roof leakage was a continuing problem that needed 2004 Mr Lassiter issued his recommendations Construction for to to Mount relief under the 2 12 2 1 states Calvary and because the contract Calvary did one year not to Williams establish period following substantial a 17 2003 letter August completion right June 6 2002 specific leak referenced in the letter had been conected and because the claim in the outside of the On March 17 conecting the problems with the roofing system Williams Construction contends that Mount to be addressed was Subparagraph in part obligations under Paragraph 3 5 if within one year after the date of Substantial Completion of the Work or designated portion thereof or after the date for In addition to the Contractor s commencement of wananties established under or 9 9 1 Subparagraph by terms of an applicable special wananty required by the Contract Documents any of the Work is found to be not in accordance with the requirements of the Contract Documents the Contractor shall conect it promptly after receipt unless the Owner has of written notice from the Owner to do previously given the Contractor a so written acceptance of such condition Subparagraph Paragraph 12 other 12 2 5 further that states 2 shall be construed to establish obligations which the these According to addition to those which is a Contractor provisions relating to the a othing contained in this n period of limitation with respect might have under the Contract one year the contractor s period Subparagraph 3 1 5 and therefore clearly are not 7 Documents for conection of work is in wananty under Subparagraph 3 5 1 separate obligation Because Mount Calvary of the roof was defective its claims to come asserts that the installation within the wananty subject to the one provision of year limitation of 12 2 2 1 Subparagraph evidence admitted As such trial at we we the on find that Mount conformity with the contract terms Further based find that Mount and testimony Calvary documentary instituted its claim in 4 Calvary presented evidence establishing that the roof leaked almost continuously from the date of substantial completion through the date of trial Mr testified that damaged Lassiter and Mount they visually inspected the roof roof panels evidenced as testimony the roof had testified that he made that he did not replace satisfactorily repaired The building to place the See damages 564 New Zion 1985 Baptist years to 4 been case to give March 2 2004 but cases is of leaks to be in when the Realty 775 Inc of replacement is 478 So 2d 1364 1366 La La Mount Calvary only a one 4 Cir 3 Cir 1985 App lasting year proper 1990 App Mr Blackwell testified that the roof could be temporary fix a Shamrock Construction v 1035 La App replacement writ denied 569 So 2d 982 Mecco Inc La generally the cost However when the cost not generally what it the recovery is 775 at 5 Cir a their Frank Williams complaints at most repaired eight to ten repair warranty as opposed twenty five year warranty from the manufacturer that it otherwise do not address the issues of mediation and arbitration assigned According to Burgess 486 So 2d 769 v McDaniel 479 So 2d 1029 v and would we App to he deserved repaired T Williams v still were the defects then the repairs would only be the twenty Again Guy Church In the instant but that the cure 689 694 La 2d So Hebert to trial subsequent position in the Degeneres 486 So 2d of the roof is necessary Co owner at repaired correctly damages in such If a defective roof can be repairs element of of March 2 2004 and observed the damaged panels and admitted he had completed See Degeneres was 1 Cir 1986 of the measure Carl Blackwell expert s admitted the roof to any of the or the roof because there appropriate would take repairs some on by pictures been installed not Calvary as error 8 as those arguments have not would have court properly installed roof Finding no manifest error on a new factual determination that s and that the of the roof would not render it like repair of the roof replacement in the trial necessary to was the defects cure we new affirm the award of 31 100 00 for the replacement of the roof With it sent regard to the alarm system Mount Williams Constluction 4 3 1 Further required by Subparagraph Mount Calvary removed recorder 3 1 5 at written notice a a the instruction of Calvary failed damages for the to faulty the defective alarm system to as evidence that no the evidence at as trial established that part of the alarm system namely the digital voice a technician and the warranty under clearly excludes modifications Mount Calvary presented establish alarm executed not a by the Subparagraph contractor Accordingly claim under the construction system and we amend the contract judgment to for delete 800 00 for the repair of the alarm system Finally Mount Calvary seeks damages for Williams Construction completing the construction date of commencement contract for the completion of the entire work date of commencement achieved until was not rain during the project firewall 2002 and that Reverend Veal stated that Particularly with regard Calvary to a different brick Calvary decided to use workers of these the construction March 1 no 2001 contract arose with a days from were was some in subcontractors insurance installation of DEMCO and brick selection delays the completion of the work change compensation the and substantial later than 240 substantial delay in attributable However to Mount Calvary the brick selection Reverend Veal stated that Mount had selected the brick delivered to Reverend Veal testified that there electricity by none case problems s was achieved to be In the instant April 8 connection of contract was proof of Williams Construction a According s to prior the to construction but Williams Construction building site and after consideration Mount the brick that had been delivered 9 Williams Construction introduced evidence not the fault of Williams Construction Mr Williams testimony were Mount Calvary Reverend Veal s we find conclusion that Mount pursuant to the in several his a sewer plant enor for each show that the the fault of were on this issue for the length of delay testimony differed from to the color choice and location of in the trial to the was establish when the respects particularly with regard Calvary is entitled contract account Additionally manifest no definitively not accurately causes testimony Iocation of He could could he nor different to re However others began attributable Therefore or and inconsistent contradictory constluction to but rather delays selection attempting court firewall a findings of fact and s IOO OO brick day stipulated amount day beyond the 240 day completion period or 16 300 00 CONCLUSION For the award of foregoing reasons damages in the amount replacement of the roof and construction contract court court representing 400 47 00 s judgment the to reflect cost an of the damages for the delay in the completion of the In all other All costs of this amend the trial of we appeal respects are to Construction AFFIRMED AS AMENDED 10 we affirm the be borne judgment by the appellant of the trial Williams NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2006 CA 1674 MOUNT CALVARY BAPTIST CHURCH VERSUS WILLIAMS CONSTRUCTION COMPANY OF PORT ALLEN LOUISIANA iJL r GUIDRY J GUIDRY J I trial of dissenting in assigns reasons part respectfully disagree with the majority court Calvary dissents in part and s award for the s replacement cost s decision insofar 5 700 00 but that the repairs are a very labor intensive repair warranty as manufacturer that In the instant of the roof opposed to temporary fix only lasting and would repaired the twenty to Mount Accordingly replace the roof see 564 So 2d 689 694 wherein the measure See also because on a new of damages in this Guy La v T Williams Burgess Realty App 5th Cir damage case 486 So Inc v to eight a one year that the roof the roof could not necessary to is the cost 2d 769 to repair 775 La cure and not App 1st Shamrock Construction Co writ denied 569 So 2d 982 testimony presented established repaired by replacement of the roof the most properly installed replacement of the roof is Degeneres at cost twenty five year warranty from the it otherwise would have the defects the proper Cir 1986 case only give Mount Calvary However Mr Blackwell reiterated several times that the to it affim1s the expeli Mr Blackwell testified that the roof could be repaired for a to ten years be as La 1990 alleged defects could only be
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