LEIGH OF ALL TRADES, L.L.C. D/B/A BY LAND OR SEA CONSTRUCTION, LLC
NON-FLOOD PROTECTION ASSETS MANAGEMENT AUTHORITY, CONSTRUCTION MANAGEMENT ENTERPRISES, LLC, AND HUDSON INSURANCE COMPANY
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-12188,
DIVISION "N-8" Honorable Ethel Simms Julien, Judge
C. Higgins Daniel Aubry Ranson GAUDRY RANSON HIGGINS &
GREMILLION, L.L.C. COUNSEL FOR PLAINTIFF/APPELLEE
Joseph Nicaud Jeffrey M. Siemssen Will C. Griffin NICAUD
& SUNSERI Law Firm, L.L.C. COUNSEL FOR
composed of Chief Judge James F. McKay, III, Judge Joy
Cossich Lobrano, Judge Paula A. Brown
A. BROWN, JUDGE
appeal arises out of a contract dispute between
Appellant/Contractor, Construction Management Enterprises
("CME"), its bond surety, Hudson Insurance Group
(collectively, "CME"), and Appellee/Sub-Contractor,
Leigh of All Trades, L.L.C. d/b/a By Land or Sea
Construction, LLC ("LSC"), regarding sums owed on a
public works construction contract. CME appeals the district
court's grant of partial summary judgment in favor of
LSC, finding CME liable for $29, 072.19, the balance due on
the subcontract. Finding no error of law, we affirm the
AND PROCEDURAL HISTORY
February 23, 2017, the Non-Flood Protection Assets Management
Authority (the "Management Authority") entered into
a $350, 000.00 public works contract ("the prime
contract") with CME for the demolition of certain
boathouses and improvements (the "Project"). CME
obtained a payment and performance bond from Hudson Insurance
Group for the Project.
September 30, 2017, CME and LSC entered into a subcontract,
valued at $75, 000.00, for LSC to perform designated portions
of the demolition work. The subcontract provided for LSC to
commence work within 24 hours after LSC was notified to do so
by CME, and the work was required to be completed within 22
days from the notice to proceed. The subcontract required
payment of $10, 000.00 upon signing, $10, 000.00 upon
completion of the first week of demolition, and $55, 000.00
within thirty days after completion of LSC's work.
started work on the Project on or about October 5, 2017. CME
paid LSC the initial $20, 000.00 owed on the subcontract.
Thereafter, LSC submitted invoices for the remaining work
completed in accordance with the original terms of the
subcontract and for additional work requested by CME that
allegedly went beyond the scope of the subcontract. CME made
partial payments on these invoices.
Management Authority, on November 15, 2017, executed its
Notice of Substantial Completion of the Project; and on
November 17, 2017, it filed the Notice of Substantial
Completion in the Orleans Parish Mortgage Records.
CME's failure to pay LSC's outstanding invoices, on
November 20, 2017, LSC filed a Sworn Statement of Claim and
Privilege ("Statement of Claim") with the Recorder
of Mortgages in the amount of $186, 550.00. On December 14,
2017, LSC amended its Statement of Claim to $189, 080.00,
which included an additional $2, 530.00 for additional work
performed on the Project on November 29, 2017, at CME's
December 20, 2017, LSC filed a petition against the
Management Authority and CME to recover the outstanding
amounts owed under the subcontract, sums for the additional
work performed beyond the scope of the subcontract, and for
damages allegedly caused by CME's delays.
denied the allegations of the petition and pled affirmative
and alternative defenses that included CME's entitlement
to an offset.
of its response to LSC's petition, the Management
Authority filed a petition for concursus, depositing $52,
454.50, the remaining balance of the prime contract, into the
registry of the court. On June 11, 2018, the Management
Authority, CME, and LSC entered a consent judgment, which
permitted LSC to withdraw $25, 927.81 out of the deposited
funds. Afterwards, on August 8, 2018, LSC filed a motion for
partial summary judgment against CME to recover the remaining
$29, 072.19 owed under the subcontract.
opposition, CME argued that its offset defense barred
LSC's right to partial summary judgment. CME offered as
evidence the 1442 deposition testimony of its corporate
representative and a statement of back charges attached
thereto, which itemized CME's offset damages.
response, asserted that CME's offset defense was for
unliquidated damages; and, as such, the unliquidated damages
could not be used to offset LSC's liquidated claim for
payment. LSC, also, specifically objected to the
admissibility of CME's statement of back charges. LSC
argued the statement of back charges was unsupported by an
affidavit and LSC disputed CME's assertion that CME's
corporate representative properly authenticated the charges
listed in the statement of back charges during his 1442
deposition. LSC argued that the deposition revealed the
corporate representative did not actually prepare the
statement of back charges, nor was he sure when it was
district court heard argument on the motion on October 26,
2018. After oral argument, the district court granted
LSC's motion for partial summary judgment and sustained
LSC's objection to the statement of back charges,
excluding it from evidence. The district court designated the
judgment as a final judgment pursuant to La. C.C.P. art.
1915(B)(1), finding no just reason to delay.
timely appeal followed.
Court delineated the standard of review for a motion for
summary the standard of review for a motion for summary
judgment in SBN v. FNBC LLC v. Vista Louisiana,
LLC, 2018-1026, pp. 5-6 (La.App. 4 Cir. 3/27/19), 267
So.3d 655, 660 as follows:
Summary judgments are reviewed de novo one appeal,
with the reviewing court using the same criteria that govern
the trial court's determination of whether summary
judgment is appropriate; whether there is any genuine issue
of material fact, and whether the movant is entitled to
judgment as a matter of law." Smith v.
Robinson, 18-0728, p. 5 (La. 12/5/18), 265 So.3d
740, 744, 2018 WL 6382118, (citing La. C.C.P. art. 966;
Louisiana Safety Ass'n of Timbermen Self-Insurers
Fund v. Louisiana Ins. Guar. Ass'n, 09-0023, p.
5 (La. 6/26/09), 17 So.3d 350, 353). Likewise, "when a
matter involves the interpretation of a statute, it is a
question of law, and a de novo standard of review is
applied." New Orleans Fire Fighters Pension &
Relief Fund v. City of New Orleans, 17-0320, p. 5
(La.App. 4 Cir. 3/21/18), 242 So.3d 682, 688 (citing Red
Stick Studio Dev., L.L.C. v. State ex rel. Dep't. of
Econ. Dev., 10-0193, p. 9 (La. 1/19/11), 56 So.3d 181,
The summary judgment procedure is favored. La. C.C.P. art.
966(A)(2). The standard for obtaining a summary
judgment is set forth in La. C.C.P. art. 966(A)(3), which
provides that "[a]fter an opportunity for adequate
discovery, a motion for summary judgment shall be granted if
the motion, memorandum, and supporting documents show that
there is no genuine issue as to material fact and that the
mover is entitled to judgment as a matter of law."
Whether a fact is material is a determination that must be
made based on the applicable substantive law. Roadrunner
Transp. Sys. v. Brown, 17-0040, p. 7 (La.App. 4 Cir.
5/10/17), 219 So.3d 1265, 1270 (citing Smith v. Our Lady
of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94),
639 So.2d 730, 751).
argues the district court erred in granting LSC's motion
for partial summary judgment relief in the following
respects: (1) genuine issues of material fact remain
regarding CME's defense of offset or
compensation; and (2) CME's statement of back
charges should have been admitted into evidence. We will
address each argument in turn. Offset Defense
contends that it is entitled to a legal offset in the amount
of $29, 072.19, pursuant to La. C.C. art. 1893. La. C.C. art.
1893 states, in relevant part:
Compensation takes place by operation of law when two persons
owe to each other sums of money or quantities of fungible
things identical in kind, and these sums or ...