ABS SERVICES, INC.
JAMES CONSTRUCTION GROUP, L.L.C. AND THE CONTINENTAL INSURANCE COMPANY LOUISIANA DEPARTMENT OF TRANSPORTATION &DEVELOPMENT
PROFESSIONAL SERVICES INDUSTRIES, INC.
Appeal from the Nineteenth Judicial District Court In and for
the Parish of East Baton Rouge State of Louisiana No. 541,
834 c/w 542, 671 Honorable Wilson Fields, Judge Presiding.
J. Foster, III John T. Andrishok Jacob E. Roussel Baton
Rouge, Louisiana Counsel for Defendants/ Appellants James
Construction Group, L.L.C., Continental Insurance Company,
ABMB Engineers, Inc., Professional Service Industries, Inc.,
and State of Louisiana, Department of Transportation and
J. Walters, Jr. Baton Rouge, Louisiana Co -Counsel for
Defendants/Appellants ABMB Engineers, Inc. and Professional
Service Industries, Inc.
D. H. Olinde, Jr. Scott E. Mercer Douglas S. Smith, Jr. Baton
Rouge, Louisiana Counsel for Plaintiff/Appellee ABS Services,
J. Krebs Elliott W. Scharfenberg New Orleans, Louisiana
Counsel for Defendant/Appellee St. Paul Guardian Insurance
P. Landreneau Johanna R. Landreneau Baton Rouge, Louisiana
Counsel for Defendant/Appellee Premier Concrete Products,
C. Voss E. Allen Graves, Jr. David W. Carley Baton Rouge,
Louisiana Counsel for Defendant/Appellee Big River
M. Madison, III Charles E. Tabor Baton Rouge, Louisiana
Counsel for Defendant/Appellee Keystone Retaining Wall
BEFORE: WHIPPLE, C.J., GUIDRY, PETTIGREW, McDONALD, WELCH,
HIGGINBOTHAM, CRAIN, THERIOT, HOLDRIDGE, CHUTZ, AND PENZATO,
matter is before us on appeal by defendants, James
Construction Group, L.L.C. ("JCG"), The Continental
Insurance Company ("Continental"), State of
Louisiana, Department of Transportation and Development
("DOTD"), ABMB Engineers, Inc. ("ABMB
Engineers") and Professional Services Industries, Inc.
("PSI"), from a trial court judgment rendered
following a jury trial.
the appeal was pending, this court ex proprio motu
set this matter for oral argument before an en banc
panel of this court, to resolve and determine, inter
alia, whether or not the award of "reasonable
attorney's fees" in an otherwise final judgment
renders the judgment, in whole or in part, nonappealable as
uncertain or indefinite in nature. The court subsequently
granted a "Motion for Limited Remand" filed by
appellee, ABS Services, Inc. ("ABS"), for the sole
purpose of allowing the trial court to sign an order
certifying the December 1, 2015 judgment as a partial
judgment that is final and appealable pursuant to LSA-C.C.P.
art. 1915(B). The trial court, finding no just reason for
delay, signed an order on August 23, 2018, certifying the
December 1, 2015 judgment as final and appealable pursuant to
LSA-C.C.P. art. 1915(B).
court, sitting en banc, has carefully considered and
reviewed the pending motions and exceptions, as well as the
merits of the appeal. Due to a recusal, eleven of the twelve
judges of this court have participated, and a majority of the
en banc panel has voted to deny the pending motions
and the exception raising the objection of no clause of
action filed by JCG and Continental. Also, as will be
discussed further herein, a majority concurs in finding that
some of the various assignments of error raised by the
appellants lack merit. While a majority concludes that the
award of $477, 569.00 in favor of St. Paul Guardian Insurance
Company ("St. Paul-Travelers") and against JCG
should be affirmed on appeal and that JCG's claims
against St. Paul-Travelers and ABS, thus should be dismissed,
there is no majority consensus on each of the remaining
portions of the trial court's judgment. Because there is
no majority consensus on the issues raised in the challenges
to the remaining portions of the trial court's judgment
on the merits, there is no executable majority as to those
portions of the judgment. Accordingly, except as set forth
below, the remainder of the trial court's judgment
stands. Parfait v. Transocean Offshore, Inc.,
2007-1915 (La. 3/14/08), 980 So.2d 634, 639.
AND PROCEDURAL HISTORY
outset, we deem it worth noting that although this court is
unable to agree on every issue and claim presented herein, we
have carefully considered the matters before us in this
voluminous and procedurally complicated litigation.1 The
instant matter arises out of a road construction project on
Interstate 10 in East Baton Rouge Parish, which was known as
the Picardy Avenue Interchange Project (the
"Project"). As the owner of the Project, DOTD
contracted with JCG to be the general contractor on the
Project. JCG subcontracted a portion of the work to ABS,
which work included the installation of approximately 214,
000 square feet of Key System  mechanically stabilized earth
("MSE") walls and leveling pads. The Project,
however, was fraught with numerous complications and problems
impacting the MSE walls, including delays in construction and
materials, geotechnical problems, and inspection issues,
which eventually resulted in the instant litigation.
the Project began, Mika McKee Lawson, JCG's project
manager, notified all subcontractors that the start date was
delayed from March 1, 2004 until mid-April 2004. According to
Ms. Lawson, she informed ABS that JCG would be ready for it
by June, but she would confirm the start date. According to
ABS, ABS was instructed to mobilize on the Project on April
15, 2004, by both Rodney James, who was JCG's division
manager, and Chet Chautin, a superintendent for JCG, and ABS
mobilized on the Project on April 16, 2004. On April 21,
2004, however, ABS's work was delayed due to the lack of
approved shop drawings for the MSE walls and lack of approved
materials needed for the construction of the MSE walls, and
notice of such was sent to JCG. Pursuant to ABS's
Subcontract with JCG, JCG was obligated to provide the
approved shop drawings and the necessary materials for the
MSE wall construction. Premier Concrete Products, Inc.
("Premier"), a licensee of Keystone Retaining Wall
Systems, Inc. ("Keystone"),  was responsible
for providing JCG with the shop drawings it acquired from
April 2004, following a partial approval, ABS was able to
begin installing the leveling pads on the Project, but was
ordered by JCG to stop operations. In fact, DOTD issued a
letter on April 28, 2004, requiring the construction to stop
due to the shop drawings not being fully approved. This was
the start of a 45-day delay on the Project, during which ABS
was unable to work. ABS requested permission from JCG to
demobilize from the site, but the request was denied.
Eventually, ABS began losing key employees. By June 9, 2004,
ABS had only built about 300 linear feet of leveling pad of
the 10, 000 feet that were buildable, notwithstanding the
Subcontract provision stating that ABS would construct 300
feet per day. Additionally, both JCG and ABS sought
compensation from DOTD as a result of this 45-day delay;
however, their attempts were unsuccessful.
to ABS and JCG at the time ABS mobilized, there were
foundation issues at the site of the Project, which involved
both ABMB Engineers and PSI's engineering work and
geotechnical analysis performed at the site. These issues
first became known in June 2004, when the DOTD project
engineer indicated that new foundation designs for the walls
were being proposed. During the course of this litigation,
ABS eventually discovered that DOTD was actually considering
eliminating the retaining walls on the Project altogether at
the same time that ABS was mobilized, but idle on the Project
and waiting on approvals. Ultimately, to resolve the issues
with the foundation, geopiers were added to the design of the
walls as per the request of ABMB Engineers and PSI, which
design changes also caused additional delays and
the Project, ABS encountered issues with not having the
approved materials required for constructing the MSE walls.
Further, the addition of the geopiers caused the entire
sequence of production of the MSE walls as planned by ABS and
JCG to be completely disrupted. The sequence of production of
the MSE walls was critically important to ABS's planned
work as agreed upon by both ABS and JCG. ABS and JCG both
attempted to receive compensation from DOTD for the
out-of-sequence work delays, but were unsuccessful.
addition to the delays and out-of-sequence work, ABS
encountered multiple problems related to inspections of its
work. One of the inspection issues began in February of 2005,
when the inspectors for DOTD utilized what was referred to as
"the teeter-test." The inspectors would examine the
block units used to build the MSE wall and see if the block
teetered or wobbled. If there was movement, the block would
be rejected. According to ABS, the use of the teeter-test
resulted in numerous blocks being incorrectly rejected by the
inspectors, which impeded the progress of ABS's work.
Further, the teeter-test being used by the DOTD inspectors
was not an acceptable inspection technique according to
Keystone. On April 15, 2005, ABS shut down its operations due
to this inspection issue. A meeting was held at the Project
site, where Richard Brown, the inventor of the Key System 1
MSE wall system, was in attendance. After having the
inspectors demonstrate their inspection procedure, Mr. Brown
came up with a compromise inspection method for the
inspectors to use. The compromise method involved part of the
teeter-test used by the inspectors, but also incorporated a
measuring tool. However, the compromise inspection method was
only used for a short time. An additional inspection issue
arose in April or May of 2005, involving the steel
reinforcements installed by ABS around the abutments, but
only arose after ABS had completed the MSE walls at four of
the six abutments. The last two abutments were about halfway
or more than halfway finished. As a result of the inspection
issues, ABS was further delayed and incurred financial
the relationship between ABS and JCG deteriorated. ABS's
position was that JCG was in material breach and default of
its Subcontract with ABS. Accordingly, ABS provided seven
days' notice of the breach and default to JCG in a letter
dated July 27, 2005, giving JCG an opportunity to cure. ABS
set forth that as a result of the material breach and
default, it had sustained damages in the estimated amount of
$1, 680, 622.70, for which recovery was sought from JCG. JCG
and ABS were unable to resolve their issues, and ABS
demobilized from the Project on August 9, 2005, prior to the
completion of the MSE walls. JCG maintained that as a result
of ABS's demobilization, ABS was in breach of the
Subcontract. Thus, JCG sought recovery from St.
Paul-Travelers, which had furnished ABS's performance
bond on the Project. Ultimately, St. Paul-Travelers paid to
JCG the sum of $477, 569.00, which payment was characterized
as an advance for completion costs on the Project as a result
of ABS's demobilization. However, the payment was made by
St. Paul-Travelers with a full reservation of rights.
March 28, 2006, ABS filed the instant suit against JCG and
its surety, Continental, contending that JCG breached the
Subcontract and seeking damages, including, but not limited
to, increased costs for labor, equipment, overhead, and lost
profits, in addition to interest, attorney's fees, court
costs, and expenses. More than a year later, on November 13,
2007, ABS added ABMB Engineers and PSI as defendants and
supplemented and amended the claims and allegations set forth
in the original petition. ABS supplemented and amended its
petition for a second time on April 4, 2008, with respect to
the claims asserted against ABMB Engineers and PSI only.
the following years, numerous reconventional demands, cross
claims, and third-party claims were filed. In 2008, JCG filed
a reconventional demand against ABS, alleging that ABS was in
material breach of the Subcontract. JCG also asserted cross
claims against ABMB Engineers and PSI, alleging their fault
and responsibility for the damages JCG incurred, as well as a
third-party demand against DOTD, alleging its fault and
responsibility for JCG's damages. Further, JCG asserted a
third-party demand against St. Paul-Travelers, alleging that
St. Paul-Travelers had failed to timely and adequately pay
JCG for ABS's breach of contract, that St. Paul-Travelers
breached the terms of the bond, and that St. Paul-Travelers
was in bad faith. Meanwhile, St. Paul-Travelers filed a
reconventional demand against JCG, alleging that JCG was not
entitled to the payment it had received from St.
Paul-Travelers and that St. Paul-Travelers was entitled to
reimbursement plus interest on the amount previously remitted
2009, ABMB Engineers asserted cross claims against JCG, ABS,
DOTD, and PSI. ABMB Engineers also filed third-party demands
against Keystone, Premier (which provided certain component
materials used for the Key System 1 MSE walls and was a
licensee of Keystone), and Big River Industries, Inc.
("Big River") (which provided other materials for
use in the installation of the MSE walls). Soon thereafter,
ABS filed a third-party demand against Keystone, alleging
that if ABS is liable to JCG or any other party, then ABS is
entitled to indemnity from Keystone. After leave was granted
by the trial court, JCG amended its cross claim and asserted
claims against Premier, Keystone, and Big River. PSI then
filed cross claims against ABMB Engineers, DOTD, JCG, and ABS
as well as third-party demands against Premier, Keystone, and
Big River on October 7, 2009.
2010, Premier filed a reconventional demand against JCG, as
well as cross claims against ABMB Engineers and PSI.
Additionally, Big River asserted reconventional demands
against ABMB Engineers, PSI, and JCG, in addition to a
third-party demand against DOTD.
November 5, 2012, ABS filed a motion and order for leave to
file its third supplemental and amending petition, which
order was signed on November 13, 2012. ABS's supplemental
pleading added direct claims against DOTD, Keystone, Big
River, and Premier and also added a direct action against
PSI's insurer (Lumbermen's), which was later
dismissed from the suit due to the insurer's liquidation
September 10, 2013, the trial court signed an order
dismissing with prejudice all claims between and among JCG,
PSI, ABMB Engineers, and DOTD. This order also granted leave
for JCG, PSI, ABMB Engineers, and DOTD to file certain
amended pleadings and to withdraw certain previously filed
pleadings. The amended and supplemental pleadings essentially
removed all allegations between and among JCG, PSI, ABMB
Engineers, and DOTD, and these parties then concentrated
their claims against ABS (and its surety when appropriate)
and against Keystone, Premier, and Big River.
early 2015, an order was signed dismissing with prejudice
JCG's claims against Keystone, and a subsequent order was
signed dismissing with prejudice ABMB Engineers and PSFs
claims against Keystone. Later that same year, judgments were
signed dismissing ABS's claims against Big River and
Premier. A jury trial in this matter was held on August 31
-September 11, 2015. According to the pretrial order, the
following parties with the following claims were to be tried:
ABS's contract claims against JCG; ABS's negligence
claims against ABMB Engineers, PSI, DOTD, and Keystone;
JCG's breach-of-contract claims against ABS; JCG's
claim for recovery against the bond and bad faith claims
against St. Paul-Travelers; JCG's indemnity and direct
claims against Premier and Big River; ABMB Engineers and
PSI's indemnity claims against Premier and Big River; St.
Paul-Travelers' claims against JCG for refund of amounts
previously paid to JCG; St. Paul-Travelers' indemnity
claims against ABMB Engineers and PSI; Premier's payment
claims against JCG; Premier's indemnity and negligence
claims against ABMB Engineers and PSI; and Big River's
damage claims against DOTD, ABMB Engineers, and PSI. However,
immediately prior to trial, an order was signed dismissing
Big River's incidental demands against JCG, PSI, ABMB
Engineers, and DOTD.
close of JCG's case, the trial court granted Premier and
Big River's motions for directed verdict. JCG, ABMB
Engineers, and PSI moved to sever Premier's claims
against JCG, ABMB Engineers and PSI, which was granted, but
those claims were subsequently dismissed pursuant to joint
motion of those parties.
the presentation of St. Paul-Travelers' case and closing
arguments, the case was submitted to the jury for decision.
The jury returned a verdict finding that JCG had breached the
Subcontract with ABS and that ABS did not breach the
Subcontract. The jury further determined that $3, 174, 160.00
was the amount necessary to fairly compensate ABS for the
damages it had incurred as a result of JCG's breach of
the Subcontract. JCG was also found to be liable to ABS for
penalties and reasonable attorney's fees in addition to
the damages awarded, and 5% was awarded for penalties. The
jury found that DOTD, ABMB Engineers, and PSI were negligent
and apportioned 50% of the fault to DOTD, 25% of the fault to
ABMB Engineers, and 25% to PSI. Neither Keystone nor ABS were
found to be negligent. The jury determined that ABS was
entitled to $3, 174, 160.00 for the damages it sustained as a
result of the total negligence of the parties. The jury further
determined that neither ABMB Engineers nor PSI's
negligence was the legal cause of damage to St.
Paul-Travelers. Lastly, the jury found that $302, 000.00
should be refunded to St. Paul-Travelers from JCG.
a lack of agreement among the parties regarding the final
written judgment, the trial court simply adopted the jury
verdict form as its judgment on September 28, 2015.
Thereafter, numerous post-trial motions were filed. JCG, ABMB
Engineers, PSI, and DOTD filed a motion for new trial,
asserting the various arguments now raised in the instant
appeal, among others. ABS filed a motion for new trial to
amend the judgment in order to include a provision holding
Continental, the surety for JCG, solidarity liable with JCG
for all amounts due ABS for JCG's breach of the
Subcontract. St. Paul-Travelers filed a motion for judgment
notwithstanding the verdict, noting that the jury had only
awarded it a refund of $302, 000.00, when the uncontroverted
evidence established that St. Paul-Travelers paid JCG $477,
569.00, which it was not obliged to pay in light of the jury
finding no fault by ABS. Accordingly, St. Paul-Travelers
argued that it was entitled to a refund of the total amount
paid to JCG plus interest. St. Paul-Travelers also filed a
motion for new trial for re-argument only, regarding the
substance of the judgment, contending that the September 28,
2015 judgment was contrary to law in that it lacked the
proper decretal language, did not identify the parties in
whose favor the judgment was rendered, and did not plainly
identify the amount of judgment or extent of each party's
motion for new trial to amend the judgment and St.
Paul-Travelers' motion for judgment notwithstanding the
verdict were granted, and the remaining motions were denied.
On December 1, 2015, a final judgment was signed by the trial
court reflecting the court's rulings on these motions.
The December 1, 2015 judgment also "retract[ed] and
replace[d]" the September 28, 2015 judgment, and
provided as follows:
• JCG is to pay to ABS $3, 174, 160.00 plus judicial
interest from the date of judicial demand, March 28, 2006,
• Continental is solidarity liable with JCG to ABS up to
the sum of $3, 174, 160.00 plus judicial interest from the
date of judicial demand, March 28, 2006, until paid.
• DOTD is solidarity liable with JCG to ABS for the sum
of $1, 587, 080.00 plus judicial interest from the date of
judicial demand, March 28, 2006, until paid.
• PSI is solidarity liable with JCG to ABS for the sum
of $793, 540.00 plus judicial interest from the date of
judicial demand, March 28, 2006, until paid.
• ABMB Engineers is solidarity liable with JCG to ABS
for the sum of $793, 540.00 plus judicial interest from the
date of judicial demand, March 28, 2006, until paid.
• Pursuant to LSA-R.S. 9:2784, JCG shall pay to ABS
penalties in the full amount of $158, 708.00 plus reasonable
attorney's fees, which penalties and attorney's fees
shall bear judicial interest from the date of the judgment
• JCG shall pay to St. Paul-Travelers the sum of $477,
569.00 plus judicial interest on that amount from August 7,
2006 until paid.
• All claims of JCG against ABS and St. Paul-Travelers
are dismissed with prejudice. St. Paul-Travelers' claims
against PSI and ABMB ENGINEERS are dismissed with prejudice.
• All claims against Keystone are dismissed with
• JCG, Continental, DOTD, PSI, and ABMB ENGINEERS are
solidarity liable for all costs of the proceedings, which
costs include reasonable expert fees and shall bear judicial
interest from the date of the judgment until paid.
JCG, Continental, DOTD, ABMB Engineers, and PSI timely
requested a suspensive appeal of the December 1, 2015
judgment and posted the appeal bond as ordered by the trial
the pendency of the appeal, other procedural issues have
developed, which will be addressed first. JCG and Continental
filed a peremptory exception raising the objection of no
cause of action in this court on July 14, 2016, asserting for
the first time that ABS failed to assert a cause of
action. DOTD filed peremptory exceptions with this
court, arguing that ABS's claim against it was both
perempted under LSA-R.S. 48:251.3 and LSA-R.S. 9:2772 and
prescribed pursuant to LSA-C.C. art. 3492. JCG, Continental,
and DOTD filed a motion to strike certain pleadings filed in
response to the exceptions. Additionally, ABS and St.
Paul-Travelers filed a motion to supplement the record with
the transcripts of the opening and closing arguments, which
motion was referred to this panel for consideration.
to Strike Oppositions to Exceptions and Motion for Leave to
File Response Thereto
filing exceptions herein, JCG, Continental, and DOTD filed a
motion to strike all forms of opposition to their exceptions
filed by ABS, contending that ABS's oppositions were
filed late and without first seeking leave of court and that
this court should strike ABS's oppositions as untimely
or, alternatively, permit JCG, Continental, and DOTD to file
exceptions were filed on July 14, 2016. On October 3, 2016,
ABS filed its appellee brief, which contained arguments
relative to the issues raised in the exception filed by DOTD,
but no arguments relative to JCG and Continental's
exception raising the objection of no cause of action. St.
Paul-Travelers filed an opposition to JCG and
Continental's exception on October 3, 2016.
October 24, 2016, JCG and Continental, and DOTD filed reply
briefs, arguing therein that JCG and Continental's
exception should be deemed unopposed by ABS. Thereafter, ABS
filed an opposition to JCG and Continental's exception of
no cause of action on November 4, 2016. On November 16, 2016,
JCG, Continental, and DOTD filed a motion to strike as well
as reply memoranda in response to the oppositions filed by
only reference in the Uniform Rules of the Louisiana Courts
of Appeal to peremptory exceptions filed on appeal appears in
Rule 2-7.2, which is entitled "Requirements of Other
Motions," and merely provides that "[a]ll other
motions or pleadings (e.g., peremptory exceptions and answers
to appeals) filed originally in a Court of Appeal shall be
typewritten and double-spaced ...." Notably, Rule 2-7.2
does not establish a time limit for filing oppositions or
reply briefs in response to exceptions. In this matter, all
memoranda submitted in connection with JCG, Continental, and
DOTD's exceptions were permitted to be filed in this
court and were filed prior to the submission of the case to
the court. Accordingly, the motion to strike ABS's
oppositions is denied, and the motion for leave to file
responses thereto is denied as moot.
& Continental's Peremptory Exception of No
Cause of Action
Continental's peremptory exception raising the objection
of no cause of action relies on Pierce Foundations, Inc.
v. JaRoy Const., Inc., 2015-0785 (La. 5/3/16), 190 So.3d
298, which was decided during the pendency of this appeal.
JCG and Continental assert that the Louisiana Supreme
Court's ruling in Pierce is dispositive of all
of ABS's claims in this litigation. Specifically, JCG and
Continental argue that ABS cannot maintain a cause of action
pursuant to LSA-R.S. 48:256.3, et seq., the Public
Works Act for the Department of Transportation and
Development ("DOTD-PWA"), because ABS failed to
comply with the mandatory requirements of LSA-R.S.
48;256.5(B) to recover amounts claimed to be owed pursuant to
a contract on a DOTD project. JCG and Continental allege that
they are immune under the DOTD-PWA from the claims brought by
ABS because ABS never raised a cause of action pursuant to
Title 48, and there is no evidence of ABS's compliance
with the DOTD-PWA in the record.
differing grounds, a majority of the panel concludes that the
exception of JCG and Continental raising the objection of no
cause of action should be overruled. Accordingly, JCG and
Continental's exception raising the objection of no cause
of action is hereby overruled.
Peremptory Exception of Peremption and Prescription
peremptory exception, DOTD argues that ABS's claims
against DOTD were both perempted and
prescribed. DOTD contends that ABS's claims are
perempted pursuant to LSA-R.S. 48:251.3 and LSA-R.S. 9:2772
because ABS did not file suit against DOTD within five years
after recordation of the acceptance of the project. According
to DOTD, it issued final acceptance of the Project on April
3, 2007, and the acceptance was recorded in the East Baton
Rouge Parish mortgage records on May 8, 2007. DOTD argues that
ABS's claims against it therefore were perempted on May
8, 2012, as ABS did not file suit against DOTD until six
months later, namely, in November 2012.
to its argument that ABS's claims are also prescribed,
DOTD maintains that the prescriptive period commenced on
August 9, 2005, the date that ABS demobilized from the
Project site. ABS filed suit against JCG and Continental
less than a year later on March 28, 2006. However, DOTD
undisputedly was not added to the suit until November 2012,
which was over seven years after ABS left the Project.
Because ABS asserted only tort claims against DOTD, which
have a prescriptive period of one year, ABS's claims
against DOTD prescribed on August 9, 2006, unless the
prescriptive period was otherwise interrupted or suspended.
While ABS alleged that all defendants were solidarity liable
unto ABS for all damages, DOTD argues that the suit timely
filed against JCG and Continental did not interrupt
prescription as to DOTD because the defendants are neither
solidary obligors nor joint tortfeasors.
noted above, DOTD filed a peremptory exception raising
objections of both peremption and prescription. Although five
judges agree that the claims are prescribed, there is no
majority vote to grant the exception on this basis. Further,
as to peremption, there is no clear majority consensus that
the exception should be granted on this basis. Absent a
majority vote to grant the peremptory exception on either
ground, the exception must be overruled. Accordingly,
DOTD's peremptory exception raising the objections of
peremption and prescription is hereby denied.
to Supplement Record
final preliminary matter, ABS and St. Paul-Travelers filed a
motion to supplement the record with transcripts of the
opening and closing arguments with this court, which was
referred to the merits panel for determination. The motion to
supplement, however, is denied as moot, in light of our
disposition of JCG and Continental's Assignment of Error
OF THE APPEAL
Constitution Article V, § 8(B) requires that "[a]
majority of the judges sitting in a case must concur to
render judgment." As noted above, as to the merits of
the appeal in the instant case, a majority consensus has been
reached as to only some of the issues raised herein. Although
based on differing rationale or reasoning, a majority of the
panel concurs in concluding that there was no manifest error
in the jury's findings that JCG breached the Subcontract
and that ABS did not, and in rejecting as meritless
appellants' contention that the pay-if-paid clause in the
Subcontract bars any recovery by ABS. Moreover, a majority of
the en banc panel rejects as meritless
appellants' arguments that ABS compromised a portion of
its claims through a change order, as well as their
contention that a number of trial irregularities caused them
such prejudice as to warrant the granting of a new trial
herein. However, there is no majority vote or agreement as to
whether the amount awarded to ABS in the trial court's
judgment should be affirmed or modified.
majority of the panel does concur that the portions of the
judgment rendering a money judgment in favor of St.
Paul-Travelers and dismissing all of JCG's claims against
ABS and St. Paul-Travelers should be affirmed, as discussed
the remaining portions of the judgment, however, a majority
consensus cannot be reached as to whether those portions
should be affirmed, reversed, or modified. Accordingly, the
remainder of the trial court's judgment stands. Parfait,
980 So.2d at 639.
to Jury's Factual Finding of Breach of Subcontract (JCG
and Continental's Assignment of Error No. III)
stated above, a majority concurs or agrees that there was no
manifest error by the jury in its finding that JCG breached
the Subcontract and that ABS did not breach the Subcontract.
Clause (JCG and Continental's Assignment of Error No.
a majority of the en banc panel likewise concurs in
rejecting JCG's defense premised on the pay-if-paid
clause and finds that appellants' fourth assignment of
error also lacks merit.
for Delay Due to Soil and Geotechnical Issues (JCG and
Continental's Assignment of Error No. VI)
assignment of error, appellants contend that they are
entitled to further relief in their favor on the basis that
ABS compromised a portion of the claims made in this suit
through Change Order No. 4. According to appellants, Change
Order No. 4 addressed delays due to soil condition and the
installation of geopiers on the Project. ABS signed Change
Order No. 4 and received $15, 747.67 in additional
compensation as a result. Appellants contend that this
portion of ABS's damages was compromised and that ABS is
not entitled to receive the $216, 437.75 in damages it
attributed to the soil and geotechnical issues in the July
24, 2005 seven-day notice letter to JCG.
Order No. 4, which indisputably altered the Subcontract, was
signed by ABS on October 24, 2004, and referenced Plan Change
No. 18, which modified the Prime Contract between JCG and
DOTD. The stated purpose for Plan Change No. 18 was "to
incorporate a design change requested by the original
engineering design consultants ABMB Engineers and PSI,"
as the "original design did not account for soft soils
beneath the MSE wall" in certain areas. Accordingly,
Plan Change No. 18 provided that "Geopiers will be used
as soil reinforcement to increase the soil strength for MSE
Wall at Westbound Frontage Road." Plan Change No. 18
further stated that the "pricing for this work includes
a lump sum price for the installation of the Geopiers, of
which includes pricing for an increase in leveling pad with
and the installation of [s]lip joints in the MSE wall needed
to account for settlement." Notably, Change Order No. 4
for the Subcontract referenced geopier slip joints and
leveling pads, which was the portion of Plan Change No. 18
that affected ABS's Subcontract. Further, the $216,
437.75 in total damages claimed in ABS's July 27, 2005
letter to JCG are described as the "[a]dded cost and
lost profit due to ABS' operations being [s]hut down as a
result of subsoil improvements underlying MSE retaining walls
C-2 and West Bound Frontage Road, Geopier installation"
for the period of April 2004 through June 30, 2005.
on a plain reading of the documents relied upon by appellants
in support of the argument that this claim was compromised,
we are unable to find merit to their argument that Change
Order No. 4, pertaining to geopier slip joints and increased
leveling pads, had the effect of compromising the entirety of
ABS's delay and shut-down claims related to the subsoil
improvements. Pursuant to LSA-C.C. art. 3076, "[a]
compromise settles only those differences that the parties
clearly intended to settle, including the necessary
consequences of what they express." Moreover, as the
parties asserting the existence of a compromise, appellants
had "the burden of proof to show that the requirements
of a valid compromise are present, including that the parties
intended to settle." Suire v. Lafayette
City-Par. Consol. Gov't, 2004-1459 (La. 4/12/05),
907 So.2d 37, 55. Appellants failed to establish that ABS
intended to settle the entirety of its delay and shut-down
claims related to the subsoil improvements by way of Change
Order No. 4. Accordingly, we reject as meritless
appellants' sixth assignment of error.
Due by JCG Under Performance Bond (JCG and Continental's
Assignment of Error No. VIII)
argue that St. Paul-Travelers is not entitled to a refund of
the amounts paid to JCG pursuant to the performance bond and
that St. Paul-Travelers acted in bad faith pursuant to
LSA-R.S. 22:1892 and 1973. However, appellants'
assignment of error is premised on a finding that JCG did not
breach the Subcontract and ABS did. In light of the fact that
a majority of the en banc panel concurs in finding
no error in the determination that ABS was not in breach of
the Subcontract and that JCG was, we find no merit in
appellants' eighth assignment of error. Thus, the
portions of the judgment ordering JCG to pay St.
Paul-Travelers the sum of $477, 569.00 with judicial interest
from August 7, 2006, until paid and dismissing JCG's
claims against ABS and St. Paul-Travelers with prejudice are
Trial Errors Warranting a New Trial (JCG and
Continental's Assignment of Error No. IX)
argue that a number of irregularities at the trial caused
such prejudice to them that a new trial is warranted.
Appellants first point out that ABS presented its case
through the afternoon of the seventh day of a nine-day jury
trial. By comparison, JCG, Continental, DOTD, ABMB Engineers,
PSI, and Keystone had only two and a half days to present
their cases. However, we note that while the trial court was
insistent that the trial would only last two weeks, the trial
court permitted more hours of testimony per day after the
close of ABS's case, thereby allowing appellants
additional time on those days to present testimony.
appellants argue on appeal that they were prejudiced by the
order of examination of the witnesses employed by the trial
court, which permitted ABS to conduct direct examination,
appellants to cross-examine the witness, then allowed St.
Paul-Travelers, Premier and/or Big River to conduct a direct
examination of ABS's witnesses, and to thereafter
conclude with ABS conducting re-direct examination. Notably,
when appellants challenged the order in which the parties
were allowed to examine the witnesses, which challenge
occurred after ABS had called its second witness to
testify, the trial court stated:
I'm going to - the order and the normal procedure has
kind of been thrown out of wack in this trial. Not
purposefully by either party, but its [sic] just the
alignment of the case. We're in cross-examination right
now and - However, the parties, at least the way it has been
presented to the jury and the way it has been in the
court's mind is that all of you are aligned with one
another on one side of the "V" and everybody on
this side is on the other side of the "V". So that
being said, although I will allow you to question him - if
this would have been brought up... early on, then I probably
would have let that side go before you got up to cross. But
since I'm in cross now, direct questions.
the trial court permitted the remaining parties to conduct
direct examination of ABS's witnesses after JCG was
allowed to cross-examine the witnesses.
Code of Civil Procedure article 1631(A) provides that the
"court has the power to require that the proceedings
shall be conducted with dignity and in an orderly and
expeditious manner, and to control the proceedings at the
trial so that justice is done." Also, LSA-C.C.P. art.
1632 provides for the normal order of trial, but expressly
permits the trial court to vary the order "when
circumstances so justify." "It is only upon a
showing of a gross abuse of discretion that appellate courts
have intervened, as the trial judge has great discretion in
conducting a trial. Louisiana Safety Ass'n of
Timbermen v. Carlton, 2012-0775 (La.App. 1st Cir.
12/21/12), 111 So.3d 1076, 1081 (citing Pino v.
Gauthier, 633 So.2d 638, 648 (La.App. 1st Cir. 1993),
writs denied, 94-0243, 94-0260 (La. 3/18/94), 634
So.2d 858, 859). After a review of the record, we are unable
to find that the trial court grossly abused its discretion in
conducting the order and timing of the trial.
also argue that the video deposition of an expert witness,
Dr. Barry Christopher, was impermissibly allowed when the
witness was present in court and that the video constituted
hearsay. In response, ABS and St. Paul-Travelers argue that
LSA-C.C.P. art. 1450(A)(5) permits any party to use "the
deposition of an expert witness for any purpose upon notice
to all counsel of record, any one of whom shall have the
right within ten days to object to the deposition, thereby
requiring the live testimony of an expert."
we note that Article 1450(A)(5) provides that "the court
may permit the use of the expert's deposition,
notwithstanding the objection of counsel to the use of that
deposition, if the court finds that, under the circumstances,
justice so requires." Additionally, LSA-C.C.P. art.
1450(C) expressly permits the trial court, in its discretion,
to resolve any conflicts between the Article and LSA-C.E.
art. 804 regarding the use of depositions. At trial, the
video deposition was presented during ABS's case in chief
and, thereafter, Dr. Christopher took the stand at trial for
cross-examination by appellants.
review, we find no error or abuse of discretion. "The
trial court has much discretion under Article 1450 in
determining whether to allow the use of deposition testimony
at trial, and its decision will not be disturbed on review in
the absence of an abuse ... of that discretion."
Sullivan v. City of Baton Rouge, 2014-0964 (La.App.
1st Cir. 1/27/15), 170 So.3d 186, 193. A review of the
record, including appellants' Motion in Limine seeking to
prevent the use of Dr. Christopher's video deposition by
ABS at trial and related filings, does not support a finding
that the trial court abused its discretion in permitting the
video deposition of Dr. Christopher to be shown at trial.
also argue that the trial court improperly limited the
parties to two jury charges. Appellants note that JCG,
Continental, DOTD, ABMB Engineers, and PSI were jointly
represented by counsel, and collectively were limited to only
two charges. Appellants argue that as a result, the jury was
only instructed as to a fraction of the legal issues
presented in this case.
unclear from the record whether appellants objected to the
trial court's limits on the jury charges. Further, in
this assignment of error, appellants do not provide any
argument or indication as to the legal issue upon which the
trial court failed to instruct or inadequately instructed the
jury. A trial judge has no obligation to give any particular
jury instruction provided by a party; rather, the judge is
obligated to correctly charge the jury. Adams v. Rhodia,
Inc., 2007-2110 (La. 5/21/08), 983 So.2d 798, 804. As
noted by the Supreme Court in Adams:
Louisiana jurisprudence is well established that an appellate
court must exercise great restraint before it reverses a jury
verdict because of erroneous jury instructions. Trial courts
are given broad discretion in formulating jury instructions
and a trial court judgment should not be reversed so long as
the charge correctly states the substance of the law. The
rule of law requiring an appellate court to exercise great
restraint before upsetting a jury verdict is based, in part,
on respect for the jury determination rendered by citizens
chosen from the community who serve a valuable role in the
judicial system. We assume a jury will not disregard its
sworn duty and be improperly motivated. We assume a jury will
render a decision based on the evidence and the totality of
the instructions provided by the judge.
Id. As to this argument, we again find no error or
abuse of discretion by the trial court.
also argue that the trial court erred in failing to advise
the jury regarding the effect of the trial court's grant
of Premier's directed verdict with respect to JCG's
contractual indemnity claims. However, appellants failed to
object to the lack of the instruction and they did they
request that the trial court give such an instruction after
Premier's directed verdict was granted. Appellants waived
their objection as to any error predicated upon this failure.
Autin's Cajun Joint Venture v. Kroger Co.,
93-0320 (La.App. 1st Cir. 2/16/94), 637 So.2d 538, writ
denied, 94-0674 (La. 4/29/94), 638 So.2d 224.
appellants claim that repeated references to JCG's
settlements with DOTD, ABMB Engineers, and PSI during the
trial were prejudicial, irrelevant, and in violation of
LSA-C.E. art. 408. However, we find that the trial court was
careful not to have any settlements mentioned when such usage
was deemed prejudicial. At one point during trial, the trial
court specifically directed counsel for Premier to instruct
Anthony Bertas, the owner of ABS, not to mention anything
about settlement in his answering of questions, which was
done in the presence of all counsel. The first mention of the
JCG settlements by counsel for ABS was during the
cross-examination of Mrs. Lawson. Mrs. Lawson was asked if
both of her depositions were taken prior to JCG settling with
PSI, JCG, ABMB Engineers, and Keystone, and she responded
affirmatively. No objection was made at this time. Later
during the cross-examination of Mrs. Lawson, counsel for ABS
referenced "the deposition you gave before you settled
with PSI" in counsel's attempt to impeach the
witness. Counsel for appellants then made an objection, to
which counsel for ABS responded that such reference was
permissible under LSA-C.E. 408 to show alignment and bias of
the witness. In response, the trial court stated:
...in terms of these parties have settled with [JCG] and now
[JCG] is representing the parties, I think that is perfectly
fine. But not the details of the settlement, what was paid,
what was not paid, but those parties was [sic] a party of the
suit. Now they have settled and [JCG] have [sic] taken over
their claims against ABS. I think that is fine.
the trial court overruled the objection.
for ABS next referred to the settlement of PSI and JCG in his
cross-examination of one of appellants' experts, who was
first hired by PSI and then retained by JCG. At this
instance, counsel stated that "I'm asking you about
... after the settlement and after [JCG] took over the
defense and indemnity of PSI is when you issued this March
30, 3015 report, right?" Appellants' counsel
objected and argued that the trial court had already ruled
that the specifics or terms of the settlements could not be
mentioned, which includes defense and indemnity. The trial
court overruled the objection. The settlement of JCG and DOTD
was mentioned in the cross-examination of a JCG employee, but
no objection was lodged.
Code of Evidence article 408(A) provides:
In a civil case, evidence of (1) furnishing or offering or
promising to furnish, or (2) accepting or offering or
promising to accept, anything of value in compromising or
attempting to compromise a claim which was disputed as to
either validity or amount, is not admissible to prove
liability for or invalidity of the claim or its amount.
Evidence of conduct or statements made in compromise
negotiations is likewise not admissible. This Article does
not require the exclusion of any evidence otherwise
admissible merely because it is presented in the course of
compromise negotiations. This Article also does not
require exclusion when the evidence is offered for another
purpose, such as proving bias or prejudice of a
witness, negativing a contention of undue delay, or
proving an effort to obstruct a criminal investigation or
prosecution. [Emphasis added.]
this court has stated that "while evidence of compromise
is not admissible to prove liability, it may be properly
admissible to prove bias of a witness pursuant to LSA-C.E.
art. 408." Stockstill v. C.F. Indus., Inc.,
94-2072 (La.App. 1st Cir. 12/15/95), 665 So.2d 802, 812, writ
denied, 96-0149 (La. 3/15/96), 669 So.2d 428. On
review, we find the trial court adequately limited the
references to JCG's settlements with other parties and
allowed only limited references in accordance with LSA-C.E.
art. 408. Accordingly, this assignment of error has no merit.
the remaining issues and assignments of error, after careful
consideration and deliberation, there is no agreement by a
majority to otherwise modify, reverse or affirm;
consequently, the remainder of the judgment of the trial
court stands. Parfait ...