Team Contractors, L.L.C. v. Waypoint NOLA, L.L.C. et al, No. 2:2016cv01131 - Document 284 (E.D. La. 2017)
Court Description: ORDER AND REASONS: ORDERED that Defendants' 129 Motion for Partial Summary Judgment on Team's total cost calculations is hereby DENIED. FURTHER ORDERED that Defendant's 230 Motion in Limine to preclude evidence of Team's total cost claims and lost profits claims is hereby DENIED. Signed by Judge Susie Morgan on 10/5/2017. (clc)
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Team Contractors, L.L.C. v. Waypoint NOLA, L.L.C. et al Doc. 284 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A TEAM CON TRACTORS, L.L.C., Plain tiff CIVIL ACTION VERSU S N O. 16 -113 1 W AYPOIN T N OLA, L.L.C., ET AL., D e fe n d an ts SECTION : “E”( 2 ) ORD ER AN D REAS ON S Before the Court is a Motion for Partial Sum m ary J udgm ent by Defendant KLG, L.L.C., now known as Salas O’Brien South, L.L.C. (“KLG”), seeking partial sum m ary judgm ent dism issing Plaintiff Team Contractor, L.L.C.’s (“Team ”) “total cost claim dam age calculations” on the basis that Team im properly em ployed a “total cost theory.”1 The m otion is opposed. 2 On August 31, 20 17, KLG filed a reply. 3 KLG has also filed a Motion in Lim ine, asking the Court to exclude from trial any and all evidence supporting Team ’s claim for dam ages using total cost calculations, as well as any and all evidence supporting Team ’s claim for lost profits. 4 The m otion is opposed. 5 The Court has considered the briefs, record, and applicable law, and now issues its ruling. For the reasons that follow, both the Motion for Partial Sum m ary J udgm ent and the Motion in Lim ine are D EN IED . 1 R. Doc. 129. R. Doc. 18 0 . 3 R. Doc. 20 5. 4 R. Doc. 230 . 5 R. Doc. 245 2 1 Dockets.Justia.com BACKGROU N D This case involves the developm ent and construction of the Hyatt House hotel in downtown New Orleans, Louisiana (“the Project”). It is undisputed that Team Contractors, L.L.C. (“Team ”) entered into a contract with Waypoint, the owner of the Project, for the construction and/ or renovation of seven floors of the property located at 1250 Poydras Street, New Orleans, Louisiana. 6 Waypoint also entered into an agreem ent by which HCA would serve as the Project’s architect (“HCA Contract”), and additionally provide “all norm al Architectural, Civil, Structural, and [m echanical, electrical, an d plum bing] engineering services.”7 HCA, in turn, subcontracted the m echanical, electrical, and plum bing (“MEP”) design work to KLG. 8 HCA delivered a com plete set of specifications, including KLG’s MEP plans, to Team on Septem ber 26, 20 14. 9 It was later discovered that several com ponents of KLG’s MEP system design did not com ply with New Orleans code requirem ents. For exam ple, the original plum bing designs did not com ply with ventilation requirem ents in the New Orleans plum bing code, 10 and the m echanical designs om itted m ore than 150 sm oke dam pers, in violation of other applicable m unicipal codes. 11 Because construction had begun on the MEP system s before the parties recognized the code deficiencies, Team had to rem ove the faulty system s and rebuild the MEP system s from revised plan s before continuing its work as scheduled. 12 6 R. Doc. 1 at 2. R. Doc. 53-3. 8 R. Doc. 157-18 (KLG Proposal). 9 R. Doc. 155-2 at ¶ 9 (Affidavit of Tom Hogan ). 10 R. Doc. 123-2 at 5. 11 R. Doc. 123-2 at 6. 12 R. Doc. 1 at 4. 7 2 Team filed suit in this Court in February 20 17, alleging breach of contract by Waypoint and negligence on the part of Waypoint, HCA, an d KLG. 13 Team alleges that it incurred dam ages during construction in the form of additional subcontractor work, hourly labor, increased supervision, and other recurring expenses, when it was directed to rem ove deficient MEP system s and re-install revised system s pursuant to two construction change directives. 14 Team ’s expert, Rittiner & Associates (“R&A”), issued a report on J une 5, 20 17, which in cluded opinions with respect to Team ’s dam ages claim s. 15 R&A calculated the additional supervisory costs, additional recurring expenses, and subcontractor costs incurred by Team as a result of the construction change directives, as well as lost profits m ade unavailable due to the Project’s delay. 16 Later, R&A retracted its conclusions regarding the lost profits claim . 17 The Court ruled that expert testim ony is not required for a lost profits claim . 18 The present m otions involve Team ’s claim s for dam ages related to increased supervision costs and additional recurring expenses, R&A’s separate calculations of those dam ages, and Team ’s claim for lost profits. AN ALYSIS A. Partial Sum m ary J udgm ent KLG argues that Team has em ployed a “total cost” m ethod to calculate its dam ages resulting from the construction change directives, and thus the Court should grant partial 13 R. Doc. 1. R. Doc. 129-1. 15 R. Doc. 129-3. 16 Id. 17 R. Doc. 119-3. 18 R. Doc. 255. 14 3 sum m ary judgm ent “dism iss[ing] Team ’s total cost claim calculations.”19 Whatever the m erits of the total cost m ethod, KLG’s m otion does not raise an issue appropriate for sum m ary judgm ent. Federal Rule of Civil Procedure 56 provides that a party m ay m ove for sum m ary judgm ent identifying each claim or defense on which sum m ary judgm ent is sought. A party m ay seek partial sum m ary judgm ent to dism iss a single claim or defense, without seeking dism issal of the entire case. 20 Further, a party m ay seek partial sum m ary judgm ent on the am ount of only one elem ent of dam ages. 21 However, a trial court cannot on a m otion for sum m ary judgm ent consider the m erits of the case, m ake credibility determ inations, evaluate testim ony, or weigh the eviden ce. 22 In its m otion, KLG does not argue that Team ’s claim for dam ages should be dism issed entirely. Instead, KLG asks only that the Court preclude Team from using a particular m ethod of calculating dam ages. 23 Sum m ary judgm ent is not, however, an appropriate procedural device to challenge the sufficiency of the evidence, the credibility of Team ’s expert witnesses, or the m ethod of their dam ages calculations. Sum m ary judgm ent as prayed for by KLG would not resolve any dispositive issues related to Team ’s claim . Team ’s claim for dam ages for additional supervision costs and additional recurring expen ses would rem ain at issue in the case, and the Court would have neither granted nor denied “any part of the relief claim ed by any party.” 24 19 R. Doc. 129-6 at 2, 9. La. Civ. Code art. 966. 21 McPherson v. Lake Area Medical Center, 99-977 (La. App. 3 Cir. 12/ 29/ 99); 755 So. 2d 972, 974 (upholding district court’s denial of sum m ary judgm ent when claim ants sought partial sum m ary judgm ent on am ount of loss of earn in g capacity). 22 Read v. W illw oods Com m unity , 11-222 (La. App. 5 Cir. 2/ 14/ 21); 88 So. 3d 534. 23 R. Doc. 129-6 at 9. 24 Quality Environ m ental Processes, Inc. v . Energy Dev elopm ent Corporation, 20 16-0 171 (La. App. 1 Cir. 4/ 12/ 17), 218 So. 3d 10 45, 10 60 . 20 4 KLG fails to raise an issue appropriate for sum m ary judgm ent, and its Motion for Partial Sum m ary J udgm ent m ust be denied. B. Motion in Lim ine KLG also separately m oves to exclude any and all evidence Team m ay offer to support its total cost claim 25 and its claim for lost profits. 26 In its m otion regardin g the total cost evidence, KLG relies on the sam e argum ents em ployed in its Motion for Partial Sum m ary J udgm ent. For exam ple, KLG avers that the total cost m ethod is disfavored, and that other m ethods of calculating Team ’s dam ages would be m ore appropriate. 27 KLG cites two cases in support, W underlich Contracting v. U.S. 28 and T.L Jam es & Co., Inc. v. Tray lor Bros., Inc. 29 Neither case, however, persuades the Court that Team should not be able to present evidence regarding its claim s for additional supervision and recurring expenses resulting from the construction change directives. In T.L. Jam es & Co., the Court allowed the contractor to present its evidence at trial, but found that the evidence did not support “reliable proof of its claim ed dam ages.”30 Sim ilarly, in W underlich Contracting, the court found that the plaintiffs, using a total cost m ethod, failed to prove their dam ages at trial because the plaintiffs did not provide sufficient evidence of causation. 31 While both cases articulate an evidentiary standard for asserting claim s using the total cost m ethod, they do not support KLG’s Motion in Lim ine. Indeed, in both cases the 25 R. Doc. 130 . KLG also filed a Motion for Partial Sum m ary J udgm ent on the issue of Team ’s claim for lost profits, R. Doc. 119, which the Court denied, R. Doc. 255. 27 R. Doc. 230 -1 at 6-7. 28 351 F.2d 956, 963-63 (Ct. Cl. 1965). 29 20 0 0 WL 322777 *4 (E.D. La. Mar. 27, 20 0 0 ). 30 T.L. Jam es & Co., 20 0 0 WL 322777 at *4. 31 W underlich Contracting, 351 F.2d at 965. 26 5 eviden ce at issue was subm itted to the fact-finder for consideration. Sim ilarly, Team ’s eviden ce supporting its claim s for additional supervision costs and recurring expen ses— whether or not that evidence uses the total cost m ethod—m ay be presented to the jury. With regard to the evidence of the total profits claim , KLG argues that Team failed to include its claim for lost profits in its initial Rule 26 disclosures, and that Team had a duty to supplem ent those disclosures after R&A am ended its expert report to exclude the lost profits calculations. Under Rule 26(e), a party m ust supplem ent its initial disclosures when it learns its disclosures are “incom plete and incorrect, and if the additional or corrective inform ation has not otherwise been m ade known to the other parties during the discovery process.”32 KLG avers that, after R&A’s retraction of the lost profits calculation, Team ’s claim “has no evidentiary support whatsoever.” Team acknowledges that its in itial disclosures did not include its claim for lost profits, but argues that it has subsequently provided sufficient evidence to satisfy its Rule 26 obligations. 33 Team points to docum entary and testim onial evidence supporting its claim for lost profits, including loan an d credit statem ents, tax returns, and an affidavit by Brett Fortner identifying projects on which Team was unable to bid. 34 This eviden ce has been in the possession of the parties since August, 20 17. 35 The Court finds that Team has satisfied its obligations under Rule 26, and that the presentation of Team ’s evidence of its lost profits claim s will not prejudice the parties. Any and all evidence that Team has produced to support its claim for lost profits m ay be presented at trial. 32 Moore v. BASF Corp. 20 12 WL 4344583 at *3 (E.D. La. Sept. 21, 20 12). R. Doc. 245 at 5. 34 R. Doc. 245 at 6. 35 Id. 33 6 CON CLU SION Accordingly; IT IS ORD ERED that Defendants’ Motion for Partial Sum m ary J udgm ent on Team ’s total cost calculations is hereby D EN IED . IT IS FU RTH ER ORD ERED that Defen dant’s Motion in Lim ine to preclude eviden ce of Team ’s total cost claim s and lost profits claim s is hereby D EN IED . N e w Orle a n s , Lo u is ian a, th is 5th d ay o f Octo be r, 2 0 17. ______________________ ______ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 7
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