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ETI, Inc. v. Buck Steel, Inc.

Court of Appeals of Louisiana, Fourth Circuit

February 1, 2017

ETI, INC.
v.
BUCK STEEL, INC.

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2012-10894, DIVISION "I-14" Honorable Piper D. Griffin, Judge

         AFFIRMED

          David C. Clement Leslie J. Hill CLEMENT GATES & MAY COUNSEL FOR PLAINTIFF/APPELLANT.

          Daniel E. Davillier Charles F. Zimmer, II DAVILLIER LAW GROUP COUNSEL FOR DEFENDANT/APPELLEE.

          Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano

          DANIEL L. DYSART, JUDGE

         This matter arises from a contractual dispute between ETI, Inc. ("ETI") and Buck Steel, Inc. ("Buck Steel"). For the reasons that follow, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         In November, 2011, the State of Louisiana entered into a contract with ETI for the latter to serve as the general contractor for the construction of an addition to the central plant at the University of New Orleans North Campus ("the Project"). ETI then subcontracted with Buck Steel for certain tasks related to the construction of a metal building system required for the Project. Included among these tasks was the preparation of engineered stamped drawings.

         After issues arose over the drawings prepared by Buck Steel, ETI terminated its contract with Buck Steel and filed a Petition against it on November 23, 2012, alleging the following facts. According to ETI, it provided Buck Steel with a copy of the plans, specifications and addenda for the Project on February 1, 2012. Buck Steel then submitted a quote for the metal building system on February 2, 2012, which ETI accepted on February 3, 2012. Thereafter, ETI instructed Buck Steel to prepare the "submittals necessary to obtain the approval of …[the] Metal Building System by the Engineer and Architect of record for the project." ETI issued a payment to Buck Steel in the amount of $17, 500.00 on February 22, 2012.

         On March 9, 2012, Buck Steel issued a submittal to the Project's architect, who rejected it for the reason that "the submittal and shop drawings failed to comply with the plans and specifications for the Project." The architect provided "extensive notes" for Buck Steel to use in order to revise its submittal.

         On June 4, 2012, ETI issued another payment to Buck Steel in the amount of $28, 129.00 and, on June 18, 2012, Buck Steel issued its second submittal to the Project's architect. This submittal was again rejected "for the same reason that the first submittal was rejected."

         In this lawsuit, ETI alleged that, because of Buck Steel's failure to properly and timely prepare the necessary submittals, there was a delay in the Project and ETI incurred delay damages. ETI further alleged that it had to obtain the metal building system from another vendor. ETI sought the return of the funds paid to Buck Steel, in addition to damages, including delay damages, costs and other equitable relief.

         By way of a First Amended and Supplemental Petition, filed on May 2, 2014, ETI amended its original petition so as to specify the damages it sought, as follows:

- Return of the two payments ($17.500.00 and $28, 129.00)
- Increased contract amount of $21, 155.32 which ETI incurred in "hir[ing] an alternate contractor to prepare the necessary submittals and provide the metal building that Buck Steel failed to provide"
- Unusable Boes Iron Works mezzanine steel valued at $25, 039.00
- Delay damages of $70, 800.00
- ETI's additional overhead of $141, 012.00
- Payments to "Bonding Company Administrator" of $27, 000.00
- Payments to "the paymaster for the bonding company" of $6, 000.00
- Olympic Group price increase of $7, 060.00

         On September 12, 2014, Buck Steel filed a Reconventional Demand against ETI in which it alleged that ETI breached the contract with it when it "unilaterally rescinded… and canceled the Sales Contract on or before August 16, 2012." Buck Steel sought liquidated damages pursuant to the sales contract in the amount of 33% "of the entire contract, " collection costs, attorney's fees and other costs and fees.

         The matter proceeded to trial from May 4 - 6, 2015, and by judgment dated November 3, 2015, the trial court awarded ETI damages of $46, 194.32 (on the basis that ETI "carried its burden of proving a breach of contract).[1] The judgment also found that Buck Steel, "a vendor under Louisiana law, is allowed to bring its breach of contract claim, BUT that the Court finds no breach of the Sales Contract in question." The Court also concluded that Buck Steel "is entitled to retain the $45, 629 in deposits paid by ETI, Inc." The judgment then stated that ETI was "entitled to the difference of the two amounts or a total of $565.32 in damages."

         On November 12, 2015, ETI filed a Motion for New Trial on the basis that the trial court's November 3, 2015 judgment was inconsistent with the Reasons for Judgment and because the judgment contained a mathematical error with respect to awarding ETI the difference between the sums awarded to ETI and Buck Steel.[2] After a hearing on the motion held on January 8, 2016, the trial court issued a judgment on March 7, 2016. The judgment denied ETI's motion for new trial but corrected its prior judgment so as to read as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that ETI, Inc. carried its burden of proving a breach of contract action on the part of Buck Steel AND is entitled to damages in the amount of $46, 194.32. Under the evidence presented, Buck Steel is ...

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