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Direct Tech Drilling, LLC v. Danrik Construction, Inc.

Court of Appeals of Louisiana, Third Circuit

November 23, 2017

DIRECT TECH DRILLING, LLC
v.
DANRIK CONSTRUCTION, INC., ET AL

         APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2015-1335 HONORABLE SHARON DARVILLE WILSON, DISTRICT JUDGE

          Teresa D. Cop Kaster & Cop, LLC COUNSEL FOR PLAINTIFF/APPELLEE Direct Tech Drilling, LLC

          Richard Mary, Richard Mary and Associates COUNSEL FOR DEFENDANT/APPELLANT: Danrik Construction, Inc.

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and Shannon J. Gremillion, Judges.

          SYLVIA R. COOKS, JUDGE.

         Danrik Construction, Inc. entered into an agreement with Bellsouth in December of 2012 to install approximately 27, 000 feet of cable. This endeavor involved laying cable and innerduct underneath the Calcasieu River, which necessitated boring under the river to lay a polyvinyl pipe through which the cable and innerduct would be fitted.

         After one unsuccessful attempt with a different subcontractor, Danrik subcontracted with Direct Tech Drilling, LLC, to install pipe for the purpose of running communications cable across the Calcasieu River. The original quote for the job was $23, 000.00. However, after beginning the project, Direct Tech determined it would have to use a more expensive process to complete the job. Thus, the parties agreed that Direct Tech was to receive $46, 000.00 as the contract price. These facts were undisputed.

         Direct Tech eventually bored and placed a pipe under the Calcasieu River. This process occurred on August 22 and 23, 2014. The pipe installed was not purchased by Direct Tech, but was provided to them by Danrik. Direct Tech did not "proof" the pipe to determine if the pipe was open and could be used to run cable under the river.[1] Danrik eventually determined that cable could not be pulled through the pipe; thus, the pipe, after installation, was unusable for its intended purpose.

         Danrik attempted to resolve the matter themselves, trying to blow air and water through the pipe to clear any possible obstruction. These attempts were unsuccessful. They also attempted to drill another bore on two occasions. During these attempts, Danrik also contacted K-Jon Sewer and Septic to clear the pipe. Using a waterjet and ordering hose to insert into the pipe, K-Jon was partially able to clear the pipe. However, testimony established the diameter within the cleared portion of the pipe was only sufficient to get the cable through, but would not fit the innerduct.

         Danrik acknowledged despite the fact the pipe would only be able to accommodate the cable and not the innerduct, it was paid in full by Bellsouth. Rick Judice, one of the owners of Danrik, testified they likely "were going to get caught with that one day." Because of the fact the pipe was not usable after Direct Tech finished laying it, Danrik refused to pay the invoice it received from Direct Tech. In response, Direct Tech proceeded to file a Materialman's Lien against Danrik and notice letters were sent to all parties, putting them on notice of Direct Tech's claim.

         After suit was filed by Direct Tech, Danrik filed a reconventional demand claiming it had incurred expenses in order to make the pipe usable. Direct Tech claimed this was the first time it was given notice or had knowledge of such a claim by Danrik.

         The matter came to trial on June 27, 2016. After trial, judgment was rendered in favor of Direct Tech and against Danrik in the amount of $46, 000.00, the full amount of the contract. In its oral reasons for judgment, the trial court focused on the fact that the pipe eventually was able to be used by Danrik and that Danrik was paid in full by Bellsouth. The trial court stated, because there was no specific provision in the contract requiring Direct Tech to proof the pipe, Danrik "can't hold them responsible for something the parties never agreed to, that there never was a meeting of the minds." Attorney fees were also awarded to Direct Tech in the amount of $6, 500.00 and $350.00 was awarded for the cost of filing suit and recording the lien. The trial court denied Direct Tech's request for penalties, finding Danrik had "genuine concerns, and they thought that was a valid defense to paying, " thus their actions were not malicious. The trial court denied Danrik's reconventional demand against Direct Tech. A motion for new trial was filed by Danrik and denied.

         This appeal followed, wherein Danrik asserts the following issues ...


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