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Appealed from the Nineteenth Judicial District Court, In and for the Parish of East Baton Rouge, State of Louisiana. Suit Number C5 82450. Honorable Janice Clark, Judge.
Scott E. Frazier, Baton Rouge, LA, Counsel for Plaintiff/Appellee, Gilchrist Construction Company, LLC.
Craig L. Kaster, Teresa D. Cop, Zachary, LA; Kirk A. Bergeron, D.Jeddie Smith, Jr., Baton Rouge, LA, Counsel for Defendant/Appellant, Louisiana Department of Transportation and Development.
BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ.
[2013 2101 La.App. 1 Cir. 2]
In this dispute concerning the scope of work and payment of delay damages on a public highway project, the Louisiana Department of Transportation and Development (DOTD) appeals an adverse judgment holding it liable for additional compensation.
FACTS AND PROCEDURAL HISTORY
This dispute arises out of a public works contract executed on February 6, 2007, by the defendant public entity, the DOTD, and the plaintiff contractor, Gilchrist Construction Company, LLC, for the performance of work necessary to widen Interstate 10 east of Lake Charles, Louisiana, in accordance with plans and specifications provided by the DOTD. Gilchrist completed the project ahead of time and was paid the contract price, plus additional compensation for change orders and an early completion bonus, for a total payment of $76,558,550.55.
Nonetheless, on September 10, 2009, Gilchrist filed suit seeking to recover additional " construction delay costs" in the
amount of $5,230,672.00, which Gilchrist alleged were incurred due to the DOTD's gross miscalculation of the quantity of embankment required to perform the project properly. Gilchrist alleged that but for the gross miscalculation by the DOTD, it would have bid 180 more days to complete the project. Additionally, Gilchrist alleged that " acts or omissions" by the DOTD caused Gilchrist increased costs, " including daily project overhead, acceleration costs, freight costs, home office overhead and bond costs." On October 2, 2009, the DOTD answered the suit, denying Gilchrist's allegations and asserting as affirmative defenses: (1) that the issues had been compromised by [2013 2101 La.App. 1 Cir. 3] the parties during the project by plan changes or amendments to the contract; and (2)that any indebtedness to Gilchrist by the DOTD had been extinguished. Thereafter, on July 5, 2012, the DOTD filed a motion for leave to file a supplemental answer that included a request for a jury trial. In that motion, the DOTD alleged that through discovery, it had obtained information that it did not have at the time of filing its original answer, based upon which it sought to assert additional exceptions and defenses to Gilchrist's petition. The DOTD asserted that discovery provided a better understanding of Gilchrist's claims, as well as revealed Gilchrist's own negligent mismanagement of the project, resulting in extensive construction delays for which Gilchrist, and not the DOTD, was liable. In a memorandum in support of the motion for leave to file a supplemental answer, the DOTD asserted the matter had not yet been set for trial and that the parties were preparing the pre-trial order, so Gilchrist would not be prejudiced by allowing the supplemental answer.
As to the new defenses, the DOTD claimed to have discovered, during Gilchrist's deposition, that there were allegations of negligence being levied against the DOTD to which the DOTD sought to assert that it owed no legal duty to warrant the estimates of embankment quantities, and in the alternative, to the extent that the DOTD would be found negligent, that Gilchrist was comparatively negligent. Additionally, the DOTD asserted that during Gilchrist's deposition, it was revealed that Gilchrist was seeking recovery of extra costs associated with the alleged increase in embankment work, to which it sought to assert the affirmative defense of extinguishment of debt. Following a hearing on the motion, the trial court denied the DOTD's motion for leave to file a supplemental answer, and this court denied the DOTD's writ application seeking supervisory review of that ruling. See Gilchrist Construction Company, LLC v. Department of Transportation and Development, State of Louisiana, 12-1459 (La.App. 1st Cir. 12/17/12) [2013 2101 La.App. 1 Cir. 4] (unpublished writ action). The DOTD then filed a motion for summary judgment seeking dismissal of Gilchrist's suit, which was likewise denied.
Thus, the matter proceeded to a six-day bench trial on the merits. At the conclusion of the trial, the trial court instructed the parties to submit proposed findings of facts and conclusions of law, along with post-trial memoranda. Thereafter, in a judgment signed August 21, 2013, the trial court rendered judgment in favor of Gilchrist and against the DOTD for the full sum of $4,195,127.00, for the reasons articulated by Gilchrist in its proposed findings of fact and conclusions of law. The DOTD sought and was granted a suspensive appeal of the August 21, 2013 judgment.
ASSIGNMENTS OF ERROR
The DOTD appeals the August 21, 2013 judgment based on the following alleged errors:
A. The trial court's denial of [DOTD's] motion for leave to file a supplemental answer with request for trial by jury is clear and reversible legal error.
B. The trial court's denial of the [DOTD's] motion for summary judgment is clear and reversible legal error.
E. The trial court's evidentiary ruling, rejecting [DOTD's] tender of Daryl Ivy, P.E., as an expert witness and finding that Mr. Ivy is not qualified to testify with respect to the Critical Path Method of construction scheduling, is clear and reversible legal error.
F. The trial court's adoption of [Gilchrist's] legal argument that [Gilchrist] is seeking recovery of damages for construction delay and, therefore, the provisions of La. R.S. 38:2216 H apply to the contractual defenses asserted by the [DOTD], is clear and reversible legal error.
G. The trial court's adoption of [Gilchrist's] legal argument that the [DOTD's] estimate of the embankment material quantity is an error or deficiency in the plans and specifications for the project is clear and reversible legal error.
[2013 2101 La.App. 1 Cir. 5] H. The trial court committed manifest error in finding that the evidence of record, consisting exclusively of so-called " impacted" Critical Path Method Schedules based on false information and incorrect data, established, by a preponderance of the evidence, a one hundred and eighty (180) day construction delay for which [Gilchrist] was entitled to recover delay damages.
I. The trial court committed manifest error in finding that embankment work or Type C Lime Treatment Work controlled the duration of the project after June of 2007.
J. The trial court committed manifest error in finding that the extra work performed by [Gilchrist] extended the duration of the project.
K. The trial court committed manifest error by failing to find that [Gilchrist's] mismanagement of the work, rather than the performance of the extra embankment work, extended the duration of the project.
L. The trial court's adoption of [Gilchrist's] claim for recovery of home office and other overhead costs, is clear and reversible legal error.
M. The trial court committed manifest error [in] finding that the evidence of record established by a preponderance that [Gilchrist] sustained any loss in connection with operation of [Gilchrist's] asphalt plant. [Record references omitted.]
In its first assignment of error, the DOTD argues that the trial court erred in failing to grant it leave to file a supplemental answer and thereby denied it the opportunity to assert a request for a jury trial. We find no merit in this assignment of error.
A request for a jury trial must be made in a pleading filed no later than ten days after either service of the last pleading directed to any issue triable by jury or the granting of a motion to withdraw a demand for a trial by jury. La. C.C.P. art. 1733(C). Absent the filing of the supplemental answer, the time for the DOTD to have filed its request for trial by jury would have been in its answer to Gilchrist's petition..
A supplemental pleading differs from an amended pleading in that an amended pleading involves matters that occurred before the original complaint was [2013 2101 La.App. 1 Cir. 6] filed, which were either overlooked by the pleader or were unknown to him at the time, while a supplemental pleading covers issues or causes of action that have arisen since the filing of the original petition, which relate to the issues or actions contained in the original petition, Gaines v. Bruscato, 30,340, p. 8 (La.App. 2d Cir. 4/8/98), 712 So.2d 552, 557-58, writ denied, 98-1272 (La. 6/26/98), 719 So.2d 1059. The discretionary authority of the court to grant leave to file a supplemental answer is outlined in La. C.C.P. art. 1155, which statute provides, in pertinent part:
The court, on motion of a party, ... may permit mover to file a supplemental ... answer setting forth items of damage, causes of action or defenses which have become exigible since the date of filing the original petition or answer, and which are related to or connected with the causes of action or defenses asserted therein. [Emphasis added.]
In its motion for leave to file a supplemental answer, the DOTD vaguely claimed that it obtained information during discovery that was not available at the time it filed its original answer, but did not specifically identify the new information allegedly obtained in discovery. On appeal, the DOTD does not raise this same argument, but instead, the DOTD maintains its assertion that had it been allowed to file a supplemental answer, it would have been able to assert Gilchrist's comparative fault as well as what it claims to be " a second completely new defense: compensation and set-off."
At trial, the DOTD extensively argued and offered evidence to support its allegation that Gilchrist mismanaged and poorly performed the embankment and follow-up activities in the median for construction of the new travel lanes, as well as improperly submitted documentation regarding the embankment overrun, thereby delaying the issuance of a change order to account for the overrun. Thus, to the extent evidence of Gilchrist's alleged comparative fault was presented at [2013 2101 La.App. 1 Cir. 7] trial, the pleadings are deemed enlarged to encompass the defense of comparative fault pursuant to La. C.C.P. art. 1154.
Moreover, " compensation and set-off' was not a wholly new defense that the DOTD sought to assert. That defense was more than adequately asserted by the DOTD in its original answer when it pled the compromise of the issues presented in Gilchrist's petition via plan changes or amendments to the contract and compensation as extinguishment of any indebtedness. Accordingly, we find no abuse of the trial court's discretion in denying the DOTD's motion for leave to file a supplemental answer.
In its second assignment of error, the DOTD argues that the trial court's denial of its motion for summary judgment was clear and reversible error. Generally, an appeal may not be taken from the trial court's denial of a motion for summary judgment. See La. C.C.P. art. 968. However, it may be reviewed on an appeal of a final judgment in the suit. Parish National Bank v. Wilks, 04-1439, p. 4 n.6 (La.App. 1st Cir. 8/3/05), 923 So.2d 8, 11 n.6.
The DOTD moved for summary judgment urging that Gilchrist's claim was simply for compensation for work performed placing the extra quantity of embankment needed to complete the project. The argument and evidence submitted by the DOTD in support of the motion did not address whether a delay was caused by the extra embankment work, but simply pointed out that Gilchrist had been compensated at the unit price provided in the contract for performance of the extra embankment work.
Louisiana Revised Statute 38:2216(H) provides, in pertinent part:
Any provision contained in a public contract which purports to waive, release, or extinguish the rights of a contractor to recover cost damages, or obtain equitable adjustment, for delays in performing such contract, if such delay is caused in whole, or in part, by acts or omissions within the control of the contracting public entity or persons acting on behalf thereof, is against public policy and is void or unenforceable. [Emphasis added.]
[2013 2101 La.App. 1 Cir. 8] Thus, under the express language of La. R.S. 38:2216(H), to the extent Gilchrist established that it incurred damages due to a delay in performing the project, caused in whole or in part by the DOTD, Gilchrist is entitled to recover those damages, irrespective of any contractual provisions to the contrary. As the DOTD's motion for summary judgment failed to address this issue, which is the cornerstone of Gilchrist's claim, we find no error in the trial court's denial of the DOTD's motion for summary judgment. Additionally, as will be discussed later in this opinion, a determination of whether Gilchrist established that it incurred damages due to a delay in performing the project caused by the DOTD is, in part, a factual determination. Thus, as there remained genuine issues of ...