Quality Design and Construction Inc. VS City of Gonzales Through Its Duly Elected Mayor Johnny Berthelot
Annotate this Case
Download PDF
STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2006 CA 2211 QUALITY DESIGN AND CONSTRUCTION INC VERSUS CITY OF GONZALES THROUGH ITS DULY ELECTED MAYOR JOHNNY BERTHELOT Judgment rendered NOV 2 8 2007 Appealed from the 23rd Judicial District Court in and for the Parish of Ascension Louisiana Trial Court No 81794 Honorable Thomas J Kliebert Jr Judge RICK A ALESSI ATTORNEYS FOR CHRISTIAN T AVERY PLAINTIFF APPELLANT GONZALES LA QUALITY AND CONSTRUCTION DESIGN AND INC JOSEPH C WILEY BATON ROUGE LA ROBERT RYLAND PERCY III ATTORNEYS FOR KATHERINE TESS PERCY DEFENDANT APPELLEE GORDON DALLON BUSH II CITY OF GONZALES GONZALES LA ATTORNEYS FOR W P Wray Jr Russel W Wray AMICUS CURIAE LA ASSOCIATED Chris P Pierce GENERAL BEFORE CARTER C J CONTRACTORS PETTIGREW AND WELCH JJ PETTIGREW J The instant appeal arises out of appellant contractor the successful low bidder on was completion of the project A date for the substantial not construction contract in which public works a a municipal was park for children fixed and when the completed by the deadline the city withheld payment retainage water on a project portion of the was contract as 1 The contractor subsequently filed suit items not contained in the contract had increased costs and The trial court rendered to a deduction for 14 judgment awarding days of liquidated unforeseen obstacles and claiming that or construction time lengthened the contractor the amount retained subject damages From this judgment the contractor has appealed FACTS In late 2003 the for the construction of at a a City solicited bids City of Gonzales children s were written around water fixtures and however Manufacturing the public sprayground and other improvements public recreational facility located within the City known specifications on a as works the project facility Jambalaya Park The bid products manufactured by Raindrop bid specifications allowed a contractor to substitute equivalent engineering approved products The City ultimately received three bids for the construction of the facility with the bid submitted by Quality Design and Construction Inc lower than the other two contract with the City on As the successful low bidder January 14 2004 The total the construction of the facility was Throughout the course of its construction the other obstacles that caused construction process On 1 Retainage is a or being considerably Quality entered into a written price specified in the contract for 390 663 00 additional about Quality August portion or percentage of payments job is completed satisfactorily facility was plagued with delays and expenses to be 4 2004 Quality presented due for the work back until the entire 2 incurred completed and an delayed the application for on a contract that is held final payment to the City and thereafter submitted Number 1 the total price of the adjusted 350 246 70 leaving 57 240 54 sixty On August 6 2004 Quality contract final a was punch list prepared and the a Said certificate was August 20 2004 on as The It is project in this the project undisputed project engineer substantially was mortgage records of Ascension litigation has been continuously about the date of substantial on or list that identified punch signed by the date that the facility at issue price of punch list thereafter recorded in the used for its intended purpose since The the a contract to set forth an estimate of the City failed on of the to the Certificate of Substantial Completion City s mayor fixed July 30 2004 complete Parish behalf of the complete the items identified costs necessary to Ultimately on balance respect Quality received 407 487 24 was presented with six items that needed to be addressed with that the clear lien certificate obtained from Following the City s approval of Change Order the Ascension Parish Clerk of Court payments totaling a completion City thereafter refused to pay the outstanding balance and made no payments subsequent to the date of substantial completion ACTION OF THE TRIAL COURT Quality filed On October 20 2005 City in the 23rd Judicial District Court Louisiana Public Works statutes that 10 percent of the substantial completion of the contract reasonable 38 2191 contract a Petition for Mandatory Injunction against the Quality alleged that the City prohibit a was in violation of public entity from withholding Quality sought to the full amount of the recover attorney fees based upon the City s failure and for all costs of these ordered to appear and show to make than price after the expiration of forty five days from the date of unpaid balance price together with legal interest from the date payment ordering the City more proceedings cause why the full final to pay as set forth due in La RS Quality further prayed that the City be mandatory injunction should a was payment owed pursuant to the not be issued public works contract at issue The funds in City answered the lawsuit and put forth excess of 15 000 00 that the City alleged 3 a reconventional demand to it was required to expend recover in order to complete the project liquidated in a timely 14 2005 December it alleged that 60 000 00 in excess of damages complete the project On The City further as a result of delay entitled to was Quality s failure to properly Quality re filed an Supplemental Amended and Petition asserted the demands set forth in its original Petition Mandatory Injunction and sought additional expenses documented in an amount to be determined change orders and all or manner against the City wherein Quality for and by the court the written on Quality further sought any to applicable statutory penalties based upon the Citys failure comply with the provisions of the Louisiana Public Works Act together with damages representing the additional costs and financial losses occasioned by Quality s attempts to satisfy the unreasonable demands of the City Following a 9 2006 respect ruled that the for the of the requested that the to the twenty 2 800 00 from recover completion date reasons 21 or by claim to recover Finally on Quality liquidated damages as judgment the trial court noted that the work was done in a timely days for which liquidated damages the March 9 noting 2006 by the City performed by Quality with manner were to an yet to court reserved absence reasonableness of the fees Similarly the trial judgment amounts it had however the March City together with all with the exception of awarded remedy or The court repair defective workmanship would be considered warranty work which would covered action judgment Following rendition of this judgment both parties further ruled that any future work authorized products rendered City s reconventional demand against Quality the trial court sprayground facility one court 54 000 00 from the court issue written reasons for its In its written the to the entitled to was City was entitled to overrun respect January 30 2006 the trial on ruling that Quality With costs trial of court ruled City s right evidence in the to pursue said record that requested the trial court denied Quality fees 4 a separate warranty claims would s be that the City s expend for warranty work constituted the not support the request for attorney Quality filed evidence a motion for to the as total amount on the reasonable a that ground of seeking an it legal fees that attorney fee same was not The opportunity to present incurred court render R S no evidence of the as the judgment new trial timely filed a judgment finding that while Substantial Completion had been recorded for the construction project could find well as City opposed the motion for a partial May 2 2006 the trial court issued On trial new Quality further prayed that the trial reasonableness of such fees awarding partial a a Certificate of at issue the court City s formal final acceptance of the work as required by La 38 2191 for the recovery of attorney fees Quality s request for attorney fees From this For this the trial court denied reason judgment Quality has appealed ASSIGNMENTS OF ERROR In connection assignments of with appeal in this its error for review Quality speCified the following matter and consideration by this court The trial court erred in denying Quality reasonable attorney fees based upon the City s failure to make timely payment pursuant to the Public Works 1 Law 2 The trial court erred in assessing liquidated damages when the project engineer was responsible for a lengthy delay in resolving the issue of brand name vs or equal products 3 The trial court erred in that the proving 4 failing to find that Quality carried its burden of multiple change orders should have been approved and The trial court erred in failing to award awarded from the date of substantial which it was due and legal completion interest on the sum which is the date from owing STANDARD OF REVIEW The Louisiana Constitution of 1974 courts of appeal finding appeal extends may not overturn that is provides that the appellate jurisdiction of the to both law and facts a manifestly judgment of a erroneous or trial La Const art V 10 8 court absent an error of See clearly wrong law A court of or a factual v State Stobart Department of Transportation and Development 617 So 2d 880 882 1993 its If the trial court entirety an appellate or jury findings are reasonable court may not reverse even 5 in light n 2 La of the record reviewed in though convinced that had it been sitting as are two be the trier of fact it would have permissible manifestly Where there weighed the evidence differently views of the evidence the factfinder s choice between them cannot erroneous or Rosell clearly wrong ESCO v 549 So 2d 840 844 La 1989 ANALYSIS AND DISCUSSION Denial of Attornev Fees The initial reasonable to the assigned by Quality error In its brief to this court in denying it Quality recognized the precept of Louisiana law which holds that attorney fees recoverable unless provided by statute Company 94 0362 p As court erred that the trial attorney fees based upon the City s failure to make timely payment pursuant provisions of the Public Works Law well settled is n a La App its claim for support for which states that 14 ny or contract 1 Cir Tassin 12 22 94 to generally 649 So 2d 1050 1058 RS 38 2191 8 make any final payments after formal final acceptance and within forty five days following receipt of public entity shall be liable for reasonable attorneys fees a clear lien certificate Quality also argued has been forced to incur considerable legal fees in order to obtain the contract balance a which has been judgment awarding Quality retainage owed to Quality for over two years and in fact has still not been paid The Trial Court made no reference whatsoever to Qualitys prayer for In response attorneys fees in the judgment rendered on March 9 2006 to Quality s request for written reasons for judgment specifically as to the attorney fee issue the Trial Court stated no attorneys fees were awarded because there was no evidence in the record that the requested fees were When the Court the record was that the reminded that there was bills submitted an legal by Quality were subsequent hearing on reasonableness would be held if Quality prevailed a second set of written reasons was sent out The Trial Court s reasons for judgment provide in its sic entirety as follows agreement on introduced into evidence and nl trial he a in this matter was held In January 30 2006 addition to the Reasons for Judgment rendered by this Court on March 24 2006 the Court makes the following findings of fact and on law Although there Certificate of Substantial recorded for the construction project at issue there is was a in the record that there was ever a formal 6 final Completion no evidence acceptance of the by the in its brief that it reasonable not Golden Rule Insurance v attorney fees Quality relied upon La public entity failing are by the City of Gonzales as required by La R S 38 2191 in Therefore in accordance with order to recover attorney fees Diamond B Constr Co v City of Plaquemine 673 So 2d 636 La App 1 Cir 4 30 96 and All Seasons Constr Inc v City of Shreveport 742 SO 2d 626 La App 2 Cir 8 18 99 review or rehearing denied by 752 So 2d 168 La 12 17 99 Quality s j fees is deniedJ request for attorney work further Quality Inc Construction Company 4 30 96 673 So 2d 636 distinguishable the although the retained trial courts of misplaced as presented in the court did not was award 95 1979 case mayor argued that the children the s playground facility had never trial courts award of was presented therein facility has been since August 2004 been accepted as Thus as to case is the is Completion open to the quality of the devoid of evidence to substantially complete the Certificate of Substantial sprayground Cir 1 App attorney fees presumably because the City of City disagreed that the facility personally signed La ordered to pay to the contractor the funds it had Quality argued that the record in the instant indicate that the B Diamond Quality asserted that at bar Plaquemine and its project engineer expressed differing opinions finished work upon the factual scenario was Plaquemine reliance City of Plaquemine v the facts from City the argued that as the City s In addition Quality publiC and used as a Quality asserted that the argument that complete was untenable Quality urged attorney fees be reversed and the matter remanded for that the a proper determination of the fees owed In response the City argued that in correspondence dated September 30 2 2005 Quality acknowledged that the facility remained incomplete and that this fact supported the City s decision to withhold formal final acceptance Upon review of this matter we note that La R S 38 2241 1 provides as follows public entity enters into a contract for the construction alteration or repair of any publiC works in accordance with the provisions of R S 38 2241 the official representative of the public entity shall have recorded in the office of the recorder of mortgages in the parish where the work has been done an acceptance of said work or of any specified area thereof upon substantial completion of the work The recordation of an acceptance in accordance with the provisions of this Whenever 2 Quality s the letter of September 30 2005 was introduced 7 as Oty s Exhibit 11 Section upon substantial completion shall be effective all purposes under this Chapter The this in record representative the mayor executed Ascension Parish was 1 2241 R S 38 with La effective the work that the City certificate of substantial August 16 2004 which 3 was La acceptance for authorized its through completion filed into the in accordance mortgage records of Thus said certificate of substantial completion acceptance for all purposes including required by as a August 20 2004 on as an on reflects matter as an 5 R 38 2191 B a formal final acceptance of to an award of thereby entitling Quality attorney fees It is further evident within 45 days following its receipt of formal final the from the record that the acceptance trial court s denial of reasonable make failed to tender final payment clear lien certificate and after what amounted to Based upon the is liable for the reasonable City a City mandatory provisions of La Accordingly the attorney fees incurred by Quality attorney fees to 38 2191 B RS Quality based upon the City s failure timely payment pursuant to the provisions of the Public Works Law is reversed hereby remand this matter to the trial court for hearing and determination a as to We to the appropriateness and reasonable nature of the attorney fees incurred by Quality Entitlement to Liauidated Damaaes The second error assigned by Quality is that the trial court erred in assessing liqUidated damages when the City s project engineer in resolving the issue of brand name vs was project for a period of liquidated damages in the the a lengthy delay equivalent product line that facility project delayed Quality from starting time well in excess of the 14 its subsequent receipt of project engineer for the City The Certificate of Substantial Completion a 8 letter dated advising was introduced as on days that the trial court assessed Quality argued that this delay between the awarding of the January 2004 and Shaheen 3 use on an for In its brief to this court equal products Quality alleged that the project engineers consideration of Quality proposed for responsible Quality April 1 4 as contract 2004 from Glen that the alternate s Exhibit the equipment proposed by Quality would not be equipment necessary to begin meaningful work this initial delay of approximately 90 days penalized in liquidated damages 200 00 per more the on 14 day constituted reversible ordering the requisite Quality contended that project than offset the 14 rate of at the contended the trial courts assessment of rate of from accepted prevented Quality 200 00 per days that Quality was Quality further day it at the days of liquidated damages against error City responded to this assertion with the argument that although Quality The no evidence challenging the validity of the liquidated damages provision of the construction contract contested the trial court s assessment of liquidated damages that it entered into with the Quality offered City The City further pointed out that the evidence adduced at trial established that the initial deadline for substantial completion of the project was July 16 2004 but that Quality did not substantially complete construction of the project until July 30 2004 The construction contract subjected it to the City further asserts that pursuant to the explicit Quality an assessment City 2 800 00 200 00 per day as failure to s of which the City claimed represents the our review in the trial court s assessment of failure to meet the substantial Pursuant to its 2 800 00 for substantial liquidated damages and the trial prayed for in Again following meet the court properly awarded days of delay of the record in this matter at a rate of we find no manifest error liquidated damages against Quality occasioned by its on liquidated damages completion deadline City s reconventional demand completion deadline judgment signed 14 terms of the March 9 however set forth in its contract with the 2006 the trial court awarded the in written reasons for City City judgment signed March 24 2006 the trial court noted that the work performed by Quality with respect the manner sprayground twenty one 21 facility was done in an pursuant timely days for which liquidated damages In its brief to this court the award a amount for the remaining seven days was of to exception of the awarded City also claimed that the trial court erred by failing to the trial court s written reasons for finding that Quality were with the on delay that judgment were In to attributed to Quality light of the trial courts responsible for 21 days of delay the City argued that the trial 9 court failed to award amount for the an that it should be awarded seven 1 050 00 additional an 150 00 per day for at a rate of damages remaining Quality days of delay The City asserted representing s days of delay seven failure to meet the deadline for completion and readiness for final payment taken of the record in this matter our review Upon separate appeal from the trial a judgment to seek nor City has neither has it answered the modification courts in this court we are barred from consideration of this issue Civ P art Accordingly 2133 Failure to ADDrove The third that we find this or La Code to be without merit assignment Multiple ChanGe Orders error assigned by Quality carried its burden of Quality appeal revision of the trial Inasmuch judgment City failed note that the filed by Quality as the court s we is that the trial court erred in proving that its numerous failing to conclude change order requests represented valid requests for additional contract time and additional funds necessary address issues that Quality pointed president present as on and were not attributable to out that at the trial of this matter well the arose as jobsite its as The City argued evidence and in findings showing of manifest The at trial Accordingly to we the were reasons its for project denying review of file documents made determinations City argued that said findings as to documentary credibility and must not be overturned error We cannot say that the trial court judgment impression of the was response that the trial court reviewed the testimony presented reached its factual its to his change order requests based upon his a testimony of its directly with the problems giving rise to the change order engineer who Quality claimed testified absent the presented Quality also pointed out the only witness called by the City requests various it In its brief to this court Quality asserted that these individuals project manager and dealt Quality to City s denial of also find this assignment manifestly erred Quality s to in numerous be without merit 10 failing to make reference in change order requests Failure to Award Leaallnterest The final legal interest on the retainage the judgment was legal interest be awarded on court ruled in its favor with silent with Quality pointed out that further cited and relied In its brief to awarded from the date of substantial completion sum respect to the issue regard legal to the interest on part of its original petition it had prayed as from the date that such La Civ Code art of to award failing is that the trial court erred in assigned by Quality the amount awarded that Sum Awarded Quality pointed out that while the trial this court contract error on 2000 which payment provides in was due Quality pertinent part object of the performance is a sum of money damages for delay in performance are measured by the interest on that sum from the time it is due at the rate agreed by the parties or in the absence of agreement at the rate of legal interest as fixed by R S 9 3500 Underscoring supplied When the The its City responded with the argument that Quality offered contention that completion and courts for this judgment should trial court s award of 54 000 00 did not a United States 480 SO 2d 920 Dupont 611 Insurance on In the alternative the equal the 57 240 54 925 So 2d Company writ denied the trial City argued that as the in its presumed that the trial court made adjustments to the stipulated Fidelity La La Civ Code art 20004 formerly Guaranty Company App 2 Cir 1985 792 v 795 796 La App Henry Contracting 511 So 2d 1156 La 1987 subject and eliminates others as 3 Inc Cir unnecessary 11 Civ Code art 481 So 2d 1337 1992 1339 United States reproduces La completion Ortego American Druggists La 505 So 2d 734 740 41 It does not involved in this case La Southern Excavation Inc v writs denied As the comment to Article 2000 indicates this article the proof and prayed for by Quality The time the debt becomes due is the date of substantial 1986 4 burden of contractual situation interest is recoverable from the time the debt becomes due unless otherwise Cir to meet its sought by Quality In 1938 Quality failed not be disturbed it must be original petition amount reason argument to support from the date of substantial interest should be awarded legal no Fidelity v App 3 Guaranty the substance of several former articles change the law with respect to the issue Company v Southern Excavation Inc Siding Co Inc v Accordingly the 480 So 2d at 925 Gros 433 So 2d 403 405 06 La we awarded from the date of substantial sum Roofing 4 Cir 1983 App find that the trial court erred in National failing to award legal interest on of the contract completion CONCLUSION For the above and fees to foregoing reasons the trial court s denial of reasonable Quality based upon the City s failure to make timely payment pursuant to the provisions of the Public Works Law is hereby reversed matter to the trial court for reasonable nature of the court s judgment a hearing and determination legal interest on its award of 30 2004 the date of the substantial completion of the judgment of the trial court is affirmed assessed Accordingly as to attorney fees incurred by Quality to include attorney the we remand this appropriateness and We further amend the trial 54 000 00 to contract Quality from July In all other Costs in the amount of respects the 3 609 50 shall be against defendant appellee City of Gonzales REVERSED IN PART AND REMANDED AMENDED IN PART AND AS AMENDED AFFIRMED 12
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
