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Lou-Con, Inc. v. Trans-Vac Systems, LLC

Court of Appeals of Louisiana, Fourth Circuit

December 4, 2019

LOU-CON, INC.
v.
TRANS-VAC SYSTEMS, LLC AND PHILADELPHIA INDEMNITY INSURANCE COMPANY

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-03803, DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE

          Paula M. Wellons Travis B. Wilkinson TAYLOR WELLONS POLITZ & DUHE, APLC COUNSEL FOR PLAINTIFF/APPELLANT

          Keith J. Bergeron Brian S. Schaps DEUTSCH KERRIGAN, L.L.P. COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Paula A. Brown

          DANIEL L. DYSART JUDGE

         This is an appeal of a trial court judgment granting a motion to confirm an arbitration award. For the reasons that follow, we affirm the trial court's judgment.

         FACTS AND PROCEDURAL HISTORY

         In 2011, the State of Louisiana retained Skanska USA Building, Inc., and MAPP Construction, LLC (collectively "Skanska/ Mapp) to construct a new Hospital in New Orleans - the University Medical Center. Skanska/MAPP, the general contractor on the project, then entered into a subcontract with defendant, Trans-Vac Systems, L.L.C., to develop an automated waste and linen system for the hospital. In turn, Trans-Vac subcontracted with plaintiff, Lou-Con, Inc., to "perform all the work necessary to install the Trash and Linen Piping System Work."

         On December 22, 2015, Lou-Con filed a Sworn Statement and Claim under the Louisiana Public Works Act in the sum of $304, 895.11, the amount it claimed was owed by Trans-Vac under the subcontract, as well as expenses it incurred when it was required to store excess materials ordered by Trans-Vac.

         Lou-Con then instituted this action on April 14, 2016, seeking those sums set forth in its lien, legal interest, attorney's fees and costs. In response, Trans-Vac and its surety, Philadelphia Indemnity Insurance Company (collectively, "Trans-Vac"), filed an exception of prematurity, seeking to invoke a mandatory arbitration provision in the subcontract. The trial court held a hearing on the exception and by judgment dated July 25, 2016, granted the exception, staying the proceeding pending arbitration.

         The parties then participated in an arbitration proceeding during which a final hearing was held from February 27-28 and on March 1, 2018. Thereafter, the parties provided closing spreadsheet submissions to the arbitrator and had argument from March 5-6, 2018. A final award was made by the arbitrator on March 7, 2018, "fully resolving all claims submitted in arbitration," and awarding $8, 767.05 to Trans-Vac and against Lou-Con.[1]

         On June 7, 2018, Lou-Con filed a "Motion to Lift Stay and to Modify and Correct the Arbitrator's Final Award Pursuant to LSA- R.S. §9:4211" in the pending matter. In this motion, Lou-Con sought to lift the stay so that the trial court could "correct an evident material miscalculation of figures" and enter judgment modifying and correcting the arbitration award. Trans-Vac opposed the motion, asserting that the motion was not served within the time period set forth in the Louisiana Binding Arbitration Law, and more specifically, La. R.S. 9:4213. The trial court denied Lou-Con's motion by judgment dated November 14, 2018.

         In the interim, on November 8, 2018, Trans-Vac filed a Motion with incorporated memorandum to confirm the arbitration award. Lou-Con opposed the motion on the same basis that it previously sought, unsuccessfully, to modify the arbitration award for "material miscalculations," attaching its June 7, 2018 motion and memorandum in support of its position. In reply, Trans-Vac, again, asserted that the motion to modify the arbitration award was untimely.

         The trial court held a hearing on the motion February 15, 2019 and rendered judgment on March 7, 2019, granting Trans-Vac's motion, confirming the arbitration award and entering ...


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