LAMAR CONTRACTORS, INC.
[Copyrighted Material Omitted]
APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT. NO. 118-073, DIVISION " B" . Honorable Jeanne Nunez Juneau, Judge.
Gerard G. Metzger, Charles T. Curtis, Jr., GERARD G. METZGER, APLC, New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLANT.
Michael C. Ginart, Jr., Joyce D. Young, Nicholas N.S. Cusimano, LAW OFFICE OF MICHAEL C. GINART, JR., Chalmette, LA, COUNSEL FOR DEFENDANT/APPELLEE.
Court composed of Judge Dennis R. Bagneris, Sr., Judge Roland L. Belsome, Judge Joy Cossich Lobrano.
Roland L. Belsome, J.
[2014-1360 La.App. 4 Cir. 1] In this construction case, Lamar Contractors, Inc., the general contractor, filed a breach of contract suit against Kacco, Inc., the subcontractor. In response, Kacco filed a reconventional demand against Lamar. Lamar now appeals the trial court's award in favor of Kacco. On cross-appeal, Kacco challenges the trial court's damages award in favor of Lamar. For the following reasons, we affirm.
Lamar was selected as the general contractor in the construction of the YMCA in Plaquemines Parish. After a bid-selection process, Kacco was awarded a subcontract in the amount of $164,500.00 to perform framing and drywall work on certain portions of the building. Kacco began working on the job site at the end of October, 2010. In early February, 2011, Lamar placed Kacco in default and officially terminated the contract on
February 5, 2011.
Subsequently, Lamar filed this suit against Kacco for breach of the Subcontract, and Kacco responded by filing a reconventional demand against Lamar. After a trial on the merits, the trial court rendered a judgment in favor of [2014-1360 La.App. 4 Cir. 2] Lamar in the amount of $24,116.67. It additionally awarded Lamar attorney's fees and costs in the amount of $7,681.75 and $3,105.81, respectively. The trial court further rendered a judgment in favor of Kacco in the amount of $60,020.00. Both Lamar and Kacco filed appeals.
The following evidence was deduced, through witness testimony and exhibits, at trial. Kacco officially worked at the job site from October 26, 2010 through February 5, 2011. The project consisted of two major phases: framing work and the drywall work. Before Kacco began working, there were two change orders. The first change order resulted in a $585.00 decrease in the price of the subcontract based on a change in the size of studs to be used for the rear wall.
Kacco had recurring issues related to providing manpower and materials. On November 9, 2010, Steve Louque, Lamar's representative and project manager, sent a certified letter on behalf of Lamar to Noel Buras, the owner of Kacco, expressing concerns regarding the lack of manpower and materials to timely complete the project.
On November 16, 2010, Mr. Buras responded by email and explained that the supply company put his account on hold. Mr. Buras expressed that Kacco could not pay the balance down, because it did not have sufficient funds. Mr. Buras requested that Lamar issue a joint check to Kacco and the supplier. Lamar agreed to issue a joint check, but only if Kacco agreed to a 10% back charge for the cost of the materials purchased. Kacco declined. In the interim, Mr. Buras was able to pay the supply company debt down; thus, enabling Kacco to purchase more supplies and continue the framing work.
[2014-1360 La.App. 4 Cir. 3] Kacco worked through November and December. Towards the end of November, Kacco submitted an invoice for work performed that month. The invoice submitted at the end of December reflected that forty-five percent of the work had been performed. Lamar received payment for Kacco's November invoice on December
28, 2010, and issued a check to Kacco in the amount of $32,022.11 on December 30th.
Mr. Buras deposited the check; however, Kacco's bank dishonored the check due to his failure to properly endorse the check. Mr. Buras mistakenly believed the check was returned for insufficient funds, and informed some of his employees and suppliers to hold checks he had issued due to the returned check. Once Lamar ...