Barber Brothers Contracting Company, L.L.C. VS East Baton Rouge City-Parish, Department of Public Works
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 0329 S BARBER BROTHERS CONTRACTING COMPANY LLC VERSUS EAST BATON ROUGE CITY PARISH DEPARTMENT OF PUBLIC WORKS Judgment Rendered September 10 2010 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 569 723 The Honorable Wilson Fields Judge Presiding John M Madison III Christopher R Rutzen Baton Rouge LA Counsel for PlaintiffAppellee Barber Brothers Contracting Company LLC Gwendolyn K Brown Randy B Ligh Baton Rouge LA Counsel for Defendant Appellant City of Baton Rouge of East Parish Baton Rouge Scott E Frazier BEFORE WHIPPLE McDONALD AND McCLENDON JJ 4 r X04 1109s 9b WHIPPLE J This matter is before us on appeal by the defendant the City of Baton Parish Rouge of East Baton Rouge hereinafter referred to as the City Parish from a judgment in a suit for declaratory judgment rendered in favor of plaintiff Barber Brothers Contracting Company LLC hereinafter referred to as Barber Brothers For the following reasons the judgment of the trial court is affirmed in part and vacated in part FACTS AND PROCEDURAL HISTORY In 2007 the City advertised for bids for the construction of and Parish or improvements to Burbank Drive in East Baton Rouge Parish Louisiana which were designated as City Project Nos 06 CSHC0008 and 06CSHC Parish 0009 The low bidder Barber Brothers was awarded the contract for the project by the City Parish Subsequent to the acceptance of its bid Barber Brothers contended that there was a significant unexpected increase in the price for asphaltic cement and fuel Thus Barber Brothers sought a price adjustment pursuant to the Supplemental Specifications for Street and Road Rehabilitation hereinafter Supplemental Specifications which Barber Brothers contended applied to all construction projects awarded by the City The City Parish Parish denied that the Supplemental Specifications were applicable to this particular project and refused to grant Barber Brothers the price adjustment On August 13 2008 Barber Brothers filed a Petition for Declaratory Relief seeking a judicial declaration that the Supplemental Spec applied and cations were to be used in conjunction with the Standard Specifications for Public Works Construction hereinafter referred to as the Standard Specifications with respect to the project at issue and that the City should thus be ordered to Parish Project No 06CS HC0008 pertaining to the bid proposal and contract for Burbank Drive Segment 1 and Project No 06CS HC0009 pertaining to the bid proposal and contract for Burbank Drive Segment 2 were bid and awarded jointly Thus for ease throughout the opinion we refer to them collectively as the project 2 grant a price adjustment according to the contract The matter was heard before the trial court on July 9 2009 At the conclusion of the hearing the trial court took the matter under advisement On August 24 2009 the trial court rendered oral reasons for judgment in favor of Barber Brothers declaring that the Supplemental Specifications were incorporated into the contract with the Parish City and applied to the project A written judgment was signed by the trial court on December 21 2009 containing the following declaration IT IS ORDERED ADJUDGED AND DECREED that the January 1998 Supplemental Specifications for Street and Road Rehabilitation are to be used in conjunction with the 1997 Standard Specifications for Public Works Construction and as such are applicable to those certain contracts for the public works projects designated as City of Baton RougeParish of East Baton Rouge Project Nos 06CSHC0008 06CSHC0009 and further the City of Baton Rouge of East Baton Rouge be and it is hereby Parish ordered to grant a price adjustment in accordance with the terms of the contracts and to pay all costs of these proceedings The City appeals assigning the following as error Parish 1 The trial court erred as a matter of law by declaring that the Supplemental Specifications for Street and Road Rehabilitation were a part of the Contract Documents when they were not so specified in the exclusive list of documents which did comprise the Contract Documents 2 Although the meaning of the contract was clear on its face and should have been decided upon the contents within its four corners if the court found that the contract was ambiguous it should have entertained relevant extraneous evidence to assist its understanding of the intent of the parties to the contract Thus it should not have granted the Motion in Limine 3 The trial court erred by signing a judgment directing the Parish City to make a price adjustment Not only was such an adjustment not permitted under the Contract Documents incorporated into it even if the provision of the Supplemental Specifications for Street and Road Rehabilitation were applicable the materials upon which Barber Brothers sought an adjustment were not within the eligible items for price adjustment as set forth in that document Since the court was silent on this issue in its oral reasons for judgment it may have understood this Regardless this portion ofthe judgment is in error 3 DISCUSSION Assignment of Error Number Two In its second assignment of error the City contends that the trial Parish court erred in granting Barber Brother motion in limine s If a trial court commits an evidentiary error that interdicts its fact finding process this court must conduct a de novo review Wright v Bennett 20041944 La App 1 51 Cir 9 924 So 2d 178 182 Thus any alleged evidentiary errors must 05 28 be addressed first on appeal inasmuch as a finding of error may affect the applicable standard of review See Bolton v B E K Construction 2001 0486 La App I Cir 6 822 So 2d 29 32 02 21 Louisiana Code of Evidence article 103 provides in part that Error A may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected The proper inquiry for determining whether a party was prejudiced by a trial court alleged erroneous ruling on the s admission or denial of evidence is whether the alleged error when compared to the entire record had a substantial effect on the outcome of the case If the effect on the outcome of the case is not substantial reversal is not warranted LSA C art 103 The party alleging prejudice by the evidentiary ruling of E A the trial court bears the burden of so proving Emery v Owens Corporation 2000 2144 La App I Cir 11 813 So 2d 441 449 writ denied 2002 01 9 0635 La 5 815 So 2d 842 Generally the trial court is granted broad 02 10 discretion in its evidentiary rulings and its determinations will not be disturbed on appeal absent a clear abuse of that discretion Turner v Ostrowe 2001 1935 La App I Cir 9 828 So 2d 1212 1216 writ denied 2002 2940 La 02 27 03 7 2836 So 2d 107 When the terms of a written contract are susceptible to more than one interpretation or there is uncertainty or ambiguity as to its provisions or the intent El of the parties cannot be ascertained from the language employed parole evidence is admissible to clarify the ambiguity or show the intention of the parties Hawco Manufacturing Company Inc v Superior Chain Inc 981037 La App V Cir 99 24 9 754 So 2d 1062 1065 The intent of the parties constitutes an issue of fact that can be inferred from all the surrounding circumstances Hawco Manufacturing Company Inc v Superior Chain Inc 754 So 2d at 1066 The rules of interpretation of a contract however establish that when the words of a written agreement are clear and explicit and lead to no absurd result no further interpretation as to the intent of the parties can be made Martin Exlporation Company v Amoco Production Company 93 0349 La App 1 Cir 5 94 20 637 So 2d 1202 1205 writ denied 94 2003 La 11 644 So 2d 1048 A 94 4 determination of the existence or absence of an ambiguity in a contract entails a question of law Hawco Manufacturing CompM Inc v Superior Chain Inc 754 So 2d at 1066 At the hearing on the petition the parties stipulated to the introduction of Exhibits No 1 and No 2 which are the bid proposals and contracts for Project No 06 CS HC0008 and Project No 06 CSHC0009 Exhibit No 3 the Standard Specifications and Exhibit No 4 the Supplemental Specifications Prior to the hearing on the petition for declaratory judgment however Barber Brothers filed a motion in limine seeking to prohibit the introduction of parole evidence or other documentary or testimonial evidence by the City as a Parish purported aid in interpreting the contracts for the project arguing that the terms of the contracts are clear and unambiguous and that the matter should be decided on the face of the contracts The City objected to the motion in Parish limine arguing that the testimony and evidence it sought to introduce was going to show that the Supplemental Specifications were not a part of the project contract The trial court granted the motion in limine and sustained Barber 5 s Brother objection thereby refusing to allow the City to present the Parish testimony of Bryan Harmon the Deputy Director of the Department of Public Works and Chief Engineer for the CityParish for the purpose of providing an interpretation of the contract documents at issue herein Thus the CityParish proffered excerpts of other contracts entered into by the City and the Parish deposition testimony of Harmon Therefore also before us is the City motion to supplement the s Parish appellate record with the proffered deposition testimony of Harmon which motion was referred to the merits of this appeal On appeal the City Parish argues that it sought to introduce evidence in the form ofother contracts that the Parish City had previously entered into with Barber Brothers as well as stestimony to show that the City only incorporated or included Harmon Parish by specific reference the Supplemental Specifications in its contracts when the subject of the contract was street or road rehabilitation not in cases of new road construction It further contends that i trial court found any fthe ambiguity to the contract at issue then it should have entertained this evidence Implicit in the trial court grant of Barber Brothers motion in limine and s denial ofthe City attempts to present evidence of the parties intent is the s Parish s court finding that the contract documents herein are unambiguous Notably on appeal the City continues to argue that the contract is clear a position Parish that it contends it has consistently held Also the City does not point to Parish any ambiguities in the contract documents that would presumably require either party to present evidence of contractual intent Nonetheless the City urges Parish on appeal that the trial court erred in failing to allow parole evidence We disagree On review we find that the contract documents at issue herein contain no ambiguities Accordingly we find that the trial court was correct in D determining that such parole evidence was unnecessary See LSAC art 2046 C Bridges v Mosaic Global Holdings Inc 20080113 La App V Cir 10 08 24 23 So 3d 305 312313 writ denied 2008 2738 La 2 1 So 3d 496 09 20 Accordingly we find no merit to this assignment of error and further deny the City motion to supplement the record on appeal s Parish Assignment of Error Number One In the City sfirst assignment of error it contends that the trial court Parish erred in determining that the Supplemental Specifications were a part of the contract documents for the project at issue when the bid Construction Proposal form and Agreement did not enumerate the Supplemental Specifications as a document that the parties were bound by The Construction Proposal for the project herein provides as follows I We hereby agree to furnish all materials tools equipment and labor to perform the work required for the construction of the project as set forth in the following documents 1 Notice to Contractors 2 Construction Proposal 3 Special Provisions Specifications Technical 4 Agreement 5 The Construction Drawings 6 The Standard Specifications 7 The following enumerated addenda Nos 1 2f The Agreement similarly provided The following Contract Documents are all hereby made a part ofthis Agreement to the same extent as if incorporated herein in full I Notice to Contractors 2 Construction Proposal 3 Special Provisions Specifications Technical 4 The Construction Drawings 5 The Standard Specifications 6 The following enumerated addenda The 2 Construction Proposal for Project No 06 CS HC0009 is identical except that it states No I in the blank following number seven i Nonetheless both the Agreement and the Construction Proposal listed the Standard Specifications as one of the documents that the parties were bound by According to Standard Specifications Section 5 entitled Control of Work Subsection 5 7 entitled Coordination of Plans and Specifications Specifications and plans referred to in the contract documents shall be considered as being included in the document in which such reference is made When a particular specification or standard is referred to such reference shall be to the specification or standard including officially adopted revisions and amendments thereto which is in force at the time ofadvertising for bids Emphasis added The above mentioned amendments to the Standard Specifications i the e Supplemental Specifications which were in effect at the time this project was advertised for bids provide as follows THESE SPECIFICATIONS SUPPLEMENT AND AMEND THE STANDARD 1997 SPECIFICATION FOR PUBLIC WORKS CONSTRUCTION AND MUST BE USED IN CONJUNCTION WITH THEM Emphasis added Moreover Section 57 of the contract for the project herein corresponds to Section 5 7 of the Standard Specifications and provides in part as follows COORDINATION OF PLANS AND SPECIFICATIONS This sub section of the Standard Specifications is deleted and replaced by the following The plans specifications and other Contract Documents will govern the work to be done Anything mentioned in the specifications and not shown on the plans or shown on the plans and not mentioned in the specifications shall be of like effect as though shown or mentioned in both Specifications and plans referred to in the Contract Documents shall be considered as being included in the document in which such reference is made When a particular specification or standard is referred to such reference shall be to the specification or standard including officially adopted revisions and amendments thereto which is in force at the time ofadvertising for bids In case of conflict the order of precedence of the following documents in controlling the work shall be 0 1 Permit from outside agencies required by law 2 Issued addendums 3 Special provisions 4 Plans 5 Supplemental specifications 6 Standard specifications 7 Standard plans Emphasis added The price adjustment sought by Barber Brothers was based on Subsection 10 8 of the Supplemental Specifications which according to the contract 1 language herein takes precedence over the Standard Specifications and provides for a payment adjustment for asphalt cement and fuels as follows Payment for contract items indicated herein will be adjusted to compensate for cost differentials of asphalt cement gasoline and diesel fuel when such costs increase or decrease more than 5 from the Louisiana Department of Transportation and Development s established base prices for these items The base price index for fuels and asphalt will be the monthly price index in effect at the time bids are opened for the project Payment adjustments will be made each monthly estimate period when the price index for this period varies more than 5 from the base price index The monthly price index to be used with each monthly estimate will be the price index for the month in which the estimate period begins The City contends that Barber Brothers request for a price Parish adjustment pursuant to Subsection 10 8 of the Supplemental Specifications was 1 denied because the Supplemental Specifications were not a part of the contract documents as they were not enumerated as such in the Construction Proposal or Agreement Despite the above noted contract language set forth in Section 5 the CityParish further argues that the Supplemental Specifications clearly are only applicable to road rehabilitation projects not new construction projects We disagree On review we note that the Supplemental Specifications specifically state that they must be used in conjunction with the Standard Specifications 0 Moreover the contract at issue herein provides that any reference to the Standard Specifications include officially adopted revisions and amendments thereto s which is in force at the time of advertising for bids Although the City Parish argues that the Supplemental Specifications only apply to road rehabilitation contracts the City contention is contrary to the contract documents at s Parish issue herein Clearly based on the apparently mandatory language noted above where the bid documents refer to the Standard Specifications such reference encompasses all officially adopted revisions and amendments thereto including the Supplemental Specifications Thus we find that the trial court correctly determined that the Supplemental Specifications are to be used in conjunction with the Standard Specifications and as such are applicable to the project herein Accordingly we find no merit to this assignment of error Assignment of Error Number Three In its final assignment of error the City contends that the trial court Parish erred in directing the CityParish to make a price adjustment In support the Parish City contends that although the written judgment prepared by Barber Bothers containing the ordered adjustment was signed by the trial court the trial court was silent as to any such order in its oral reasons for judgment Moreover relying on the underlying contract documents Barber Brothers disputes that such an adjustment is allowed The function of a declaratory judgment is simply to establish the rights of parties or to express the opinion of the court on a question of law without ordering anything to be done See LSAC arts 1871 and 1881 Mull P C Mull v Kozak 2003 0668 La App I Cir 6 878 So 2d 843 846 writ denied 04 25 2004 2332 La 12 888 So 2d 866 04 17 The distinctive characteristic of a declaratory judgment is that the declaration stands by itself with no executory 10 process following as a matter of course so that it is distinguished from a direct action in that it does not seek execution or performance from the defendant or opposing litigants Billingsley v City of Baton Rouge 95 2162 La App I Cir 96 30 4 673 So 2d 300 302 writ denied 96 1490 La 9 679 So 2d 96 20 439 Because the function of a declaratory judgment is simply to establish the rights of the parties or to express an opinion of the court on a question of law without ordering anything else to be done the December 21 2009 judgment of the trial court could not as a matter of law include an order to grant a price adjustment in accordance with the terms of the contracts See Mull Mull v Kozak 878 So 2d at 846 As stated above the purpose of a declaratory judgment is merely to establish the rights between the parties or express the opinion of the court on a question of law LSA C arts 1871 and 1872 Here the trial court P determined as a matter of law that the Supplemental Specifications were part and parcel of the contract and were to be used in conjunction with the Standard Specifications However to the extent that the trial court further ordered the Parish City to grant Barber Brothers a price adjustment we conclude that such an order was not proper in this proceeding Thus pretermitting further discussion of the merits of the arguments urged by the City in support of this assignment we find that the trial court erred Parish in ordering the City to grant a price adjustment in accordance with the Parish terms of the contracts in this declaratory judgment proceeding Finding merit to 1n 3 doing so we express no opinion as to the merits of any claim for an adjustment or the amount of adjustment if any is ultimately due We simply recognize that the relief granted exceeded the scope of permissible relief via declaratory judgment We also note that at oral arguments reference was made to an amending and supplemental petition purportedly filed herein subsequent to the rendition of the judgment before us on appeal seeking an amount allegedly due as a price adjustment under the terms of the contract as determined by the trial court Although the record before us is devoid of any such petition we specifically note that by vacating this portion of the trial court action in the declaratory s judgment proceeding we express no opinion as to the validity or lack thereof of any claim demand or defense which may be asserted by the parties 11 this assignment of error we must vacate the portion of the December 21 2009 judgment which specifically ordered the City to grant Barber Brothers a Parish price adjustment in accordance with the terms of the contracts CONCLUSION For the above and foregoing reasons the portion ofthe December 21 2009 declaratory judgment of the trial court ordering the City to grant a price Parish adjustment is hereby vacated In all other respects the December 21 2009 declaratory judgment in favor of Barber Brothers is affirmed Costs ofthis appeal in the amount of 2are assessed one halfeach to the parties 61 517 AFFIRMED IN PART VACATED IN PART MOTION TO SUPPLEMENT DENIED 12 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0329 BARBER BROTHERS CONTRACTING COMPANY LLC VERSUS G EAST BATON ROUGE CITYPARISH DEPARTMENT OF PUBLIC WORKS McCLENDON J concurs and assigns reasons Even if we were to conclude that ambiguity existed in the language of the documents at issue the rules of contract construction require that said ambiguity be interpreted against the CityParish who supplied the language See LSAC C art 2056 Campbell v Melton 01 2578 pp 6 7 La 5 817 So 69 02 14 2d 75 Therefore I respectfully concur in the result reached by the majority
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.
