THE LATHAN COMPANY, INC.
STATE OF LOUISIANA, DEPARTMENT OF EDUCATION, RECOVERY SCHOOL DISTRICT & JOHN WHITE IN HIS OFFICIAL CAPACITY AS THE STATE OF LOUISIANA SUPERINTENDENT OF EDUCATION GUARANTEE COMPANY OF NORTH AMERICA
STATE OF LOUISIANA, DEPARTMENT OF EDUCATION, RECOVERY SCHOOL DISTRICT
Appeal from the Nineteenth Judicial District Court In and for
the Parish of East Baton Rouge State of Louisiana No. 612,
067 c/w 635, 780 Honorable R. Michael Caldwell, Judge
N. Shields, Elizabeth L. Gordon, Andrew G. Vicknair, Adrienne
C. May Counsel for Plaintiff/Appellant The Lathan Company,
B. Dunlap, III Jennifer A. Fiore, Hunter R. Bertrand, Baton
Rouge Counsel for Plaintiff/Appellee Guarantee Company of
F. Griffith, Jr. Benjamin W. Janke, Carnalla M. Kimbrough
Counsel for Defendants/ Appellees Jacobs/CSRS Consortium,
Marvin Daniels & Nick Amort
C. Templet, Aaron J. Lawler, Douglas K. Foster Counsel for
Defendant/ Appellee Progressive Insurance Company
A. Castex, Jr. Scott J. Hedlund, Brian S. Schaps Counsel for
Defendant/Appellee Billes Partners, LLC
Crawford White, Michael E. Botnick, J. Douglas Rhorer Counsel
for Defendant/ Appellee State of Louisiana, Department of
Education, Recovery School
BEFORE: WHIPPLE, C.J., GUIDRY, McCLENDON, CHUTZ, and PENZATO,
The Lathan Company, Inc., appeals a judgment of the trial
court granting summary judgment in favor of Jacobs Project
Management Co./CSRS Consortium and dismissing with prejudice
plaintiffs claims against this defendant. For the following
reasons, we reverse and remand.
AND PROCEDURAL HISTORY
August 13, 2010, The Lathan Company, Inc., entered into a
public works contract with the State of Louisiana, Department
of Education, Recovery School District ("the RSD")
to renovate William Frantz School in New Orleans, Billes
Partners, LLC ("Billes") served as architect on the
project. Jacobs Project Management Company/CSRS Consortium
("Jacobs"), through a contract with the RSD, served
as the construction manager on the project.
14, 2012, Lathan filed a "Petition for Mandamus, "
naming the RSD and John White, in his official capacity as
the Louisiana Superintendent of Education, as defendants,
seeking an order requiring the RSD to make payment of all
undisputed amounts owed for Lathan's work. In an amended
petition filed on August 1, 2014, Lathan added Billes and
Jacobs as defendants.
lengthy amended petition, consisting of twenty-five pages and
two hundred eighteen paragraphs, alleged, in pertinent part,
that Jacobs owed a duty to Lathan to conduct constructability
reviews and to oversee and administer the project according
to the standard of care of similar professionals in the
industry, which Jacobs did not do. In pertinent part, the
amended petition alleged:
(1.) The original bid documents and design drawings contained
flaws, including the failure to disclose certain mold
conditions and an underground fuel tank, which resulted in
Lathan performing additional work, and for which Lathan's
contract was not adequately extended for the time required to
address these undisclosed conditions;
(2.) As a result of the faulty design documents, Lathan
submitted in excess of 400 requests for information
("RFIs") to Billes and despite numerous promises to
timely respond by Billes and Jacobs, Lathan's RFIs were
not timely responded to, resulting in project delays;
(3.) Billes and Jacobs did not perform inspections in the
manner prescribed by industry standards; and
(4.) Billes and Jacobs failed to review, certify and/or
approve the amounts due to Lathan, causing Lathan to incur
additional costs, delaying the project, and preventing Lathan
from having access to contract funds to pay subcontractors
summarized Jacobs's wrongful acts as: (1.) its
unreasonable refusal to approve Lathan's payment
applications and schedules; (2.) its extremely delayed
responses to Lathan's questions and submittals; (3.) its
refusal to give needed responses to reasonable questions;
(4.) its refusal to properly recommend substantial
completion; (5.) its refusal to properly manage the oversight
of the project; and (6.) its overall interference with the
progress and completion of the project. Accordingly, Lathan
alleged that it was entitled to damages under general tort
law for Jacobs's negligent professional undertaking and
under the Louisiana Unfair Trade Practices Act
response, Jacobs filed a motion for summary judgment, seeking
a dismissal of Lathan's claims against it. In its
memorandum in support of its motion, Jacobs asserted that
Lathan's general negligence claims must fail because
Jacobs owed no duty to Lathan, since Lathan was not a party
to the contract between Jacobs and the RSD. Jacobs
additionally urged that because it owed no duty to Lathan,
Lathan's LUTPA claims must fail as a matter of law.
Notwithstanding whether a duty was owed, Jacobs also argued
that Lathan's allegations did not rise to the level of an
unfair trade practice that is actionable under LUTPA.
Alternatively, Jacobs argued that a majority of Lathan's
claims against it were prescribed.
opposed the motion, contending that Jacobs owed it a duty
given the high degree of control and power that Jacobs, as a
learned professional, held and had exercised (or failed to
exercise) over Lathan, Additionally, Lathan argued that its
claims against Jacobs were timely because: (1) Billes and
Jacobs are joint tortfeasors and thus, the 2012 suit against
Billes interrupted prescription as to Jacobs; and (2) Jacobs
was still performing work on the project and thus,
Lathan's claims against Jacobs are governed by the
continuing tort doctrine.
argument, the trial court granted Jacobs's motion for
summary judgment, finding that Jacobs owed Lathan no duty. As
such, the trial court concluded that in the absence of a
duty, Lathan could not recover under its negligence theory or
September 24, 2015, the trial court signed a judgment
granting Jacobs's motion for summary judgment and
dismissing Lathan's claims against Jacobs with prejudice.
However, the written judgment was silent as to the
prescription argument that was raised by Jacobs in support of
the motion of summary judgment, and which the trial court
stated, in its oral reasons for judgment, that it would deny.
Lathan subsequently filed a motion for new trial, which was
denied by the trial court.
then filed the instant appeal, assigning the following as
(1) The trial court improperly granted Jacobs's motion
because Jacobs, being and acting as a licensed construction
professional, and under the facts of this case, owed a duty
(2) The trial court improperly granted Jacobs's motion by
making a credibility determination as to the record evidence.
(3) The trial court improperly granted Jacobs's motion by
making an improper factual determination of disputed evidence
on summary judgment concerning Jacobs's scope of duties
properly reserved for the trier of fact - here, a jury.
(4) The trial court erred in failing to deny Jacobs's
motion as premature considering the woefully inadequate state
(5) The trial court erred in denying Lathan's motion
because the underlying summary judgment ruling was contrary
to binding First Circuit authority.
(6) The trial court erred in denying Lathan's motion by
finding that newly-discovered evidence on the issue of
Jacobs's professional duties did not present an ...