NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
2018 CA 1528 and 2018 CW 1120
BOYKIN BROTHERS, LLC
VERSUS
LABORDE CONSTRUCTION INDUSTRIES, LLC, JOHN LABORDE, CATAMOUNT CONSTRUCTORS, INC., LMK BATON ROUGE CONSTRUCTION, LLC, AND THE STANDARD OF BATON ROUGE, LLC
CONSOLIDATED WITH
2018 CA 1529
CATAMOUNT CONSTRUCTORS, INC.
LMK BATON ROUGE CONSTRUCTION, LLC AND THE STANDARD AT BATON ROUGE, LLC
Judgment rendered ' JAN 2 12020
On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No. C637569 c/ w 639816, Sec. D
The Honorable Janice Clark, Judge Presiding
Russel W. Wray Attorneys for Plaintiff/Appellee Jacob A. Altmyer Boykin Brothers, LLC St. Francisville, Louisiana
Jacob B. Huddleston Attorneys for Defendant/ Appellee Scott Edward Frazier Catamount Constructors, Inc. Baton Rouge, Louisiana
James A. Hatch Attorneys for Intervenor/ Appellee
h Paul E. Mayeaux Osman Construction, LLC Metairie, Louisiana
Jeanne C. Comeaux Attorneys for Defendant/Appellee Druit G. Gremillion Laborde Constructions Industries, John T. Andrishok LLC, and John Laborde Jordan L. Faircloth Baton Rouge, Louisiana
Kelsey K. Funes Attorneys for Defendant/Appellant # 1 Amanda W. Messa Hanover Insurance Company H. Alston Johnson, III Baton Rouge, Louisiana
Kelsey K. Funes Attorneys for Defendant/Appellant #2 Amanda W. Messa LMK Baton Rouge Construction, H. Alston Johnson, III LLC Baton Rouge, Louisiana and
Patrick Schwedler Athens, Georgia
BEFORE: McDONALD, GRAIN,' AND HOLDRIDGE, JJ.
i Justice Will Crain is serving as judge ad hoc by special appointment of the Louisiana Supreme Court. HOLDRIDGE, J.
LMK Baton Rouge Construction, LLC ( LMK) and The Hanover Insurance
Company ( Hanover) appeal a partial summary judgment entered in favor of
Boykin Brothers, LLC ( Boykin) in this action to enforce a lien perfected pursuant
to the Louisiana Private Works Act ( PWA). LMK also seeks supervisory review
of the trial court' s denial of its motion for summary judgment. We reverse the trial
court' s ruling granting the partial summary judgment. We affirm the denial of
LMK and Hanover' s motion for summary judgment and deny LMK' s writ
application as moot.
FACTUAL AND PROCEDURAL BACKGROUND
In 2014, an apartment complex known as the Standard at Baton Rouge was
constructed pursuant to the PWA ( herein referred to as " the Project"). LMK
served as a contractor and later as the general contractor on the Project. LMK
entered into a subcontract with Catamount Constructors, Inc. ( Catamount) to
perform foundation work for the Project. Laborde Construction Industries, LLC
Laborde) entered into a subcontract with Catamount to furnish all labor, materials,
tools, and equipment necessary to furnish and install a complete " Driven Piles
P] ackage" for the Project. Laborde solicited a quote from Boykin to fabricate and
deliver concrete pilings, to be furnished by Boykin and incorporated by Laborde on
the Project. On or about March 14, 2014, Boykin issued a " Written Proposal" to
Laborde, which set forth the price for the fabrication of 858 pieces of 14" pilings,
each measuring 65 linear feet, and 281 pieces of 18" pilings, each measuring 95
linear feet. The proposal sets forth separate delivery charges, with the 14" pilings
charged a delivery fee of $2. 05 per linear foot and the 18" pilings charged at $ 7. 37
per linear foot. The Written Proposal was not signed by Boykin or Laborde.
t3 On March 3, 2014, LMK and the owner of the project executed a Standard
Form Agreement, pursuant to which, LMK became the general contractor on the
project. On July 21, 2014, Laborde' s subcontract with Catamount was assigned to
LMK.
Boykin was paid $ 1, 549,230. 11 for its work on the Project. Payments to
Boykin for its work on the Project were made by checks issued by Catamount to
both Laborde and Boykin, which were endorsed by Laborde to Boykin. Boykin
claimed that it had not been paid in full for the materials it furnished on the Project
and that $ 589, 548. 99 remained unpaid for the amounts Boykin invoiced to
Laborde. On January 28, 2015, Boykin filed a " Lien Affidavit Statement of Claim
and Privilege" with the East Baton Rouge Parish Recorder of Mortgages. Therein,
Boykin asserted a privilege pursuant to the PWA for the amount of $589, 548. 99,
together with interest at the legal rate, a recording fee of approximately $ 25. 00,
and all other sums allowed by law for the materials. On February 20, 2015, LMK,
as principal, and Hanover, LMK' s surety on the Project, filed a " Release of Lien
Bond" with the East Baton Rouge Parish Clerk of Court in order to secure the
cancellation of Boykin' s lien in the amount of $736,936.24, representing 125% of
the amount of the lien. The " Release of Lien Bond" was accepted by the Recorder
of Mortgages, and Boykin' s lien was cancelled.2
On March 4, 2015, Boykin filed this lawsuit against Laborde and its agent,
John Laborde, Catamount, and LMK,3 asserting various claims for nonpayment of
sums allegedly due to Boykin for the fabrication and delivery of concrete piles
furnished on the Project. As to LMK, Boykin asserted a claim under the PWA,
2 On September 25, 2015, the owner of the Project filed a notice of termination or substantial completion of the Project.
3 Boykin also sued the owner of the Project, but later dismissed it from the litigation. seeking the enforcement of its lien, along with other relief. Specifically, Boykin
sought to recover $ 589, 548.99 from LMK for the materials supplied, delivered,
and incorporated into the Project which Laborde failed to pay Boykin, as well as 115. 00 to record its lien. Boykin asserted breach of contract and PWA claims
against Laborde.
In an amended and supplemental petition, Boykin added Hanover as a
defendant in the litigation and also asserted breach of contract claims against LMK
and Catamount. Generally, as to LMK, Boykin claimed that: ( 1) LMK promised
to continue to pay Boykin until Boykin had been paid in full for its work on the
Project and breached that agreement; ( 2) LMK assumed a contractual obligation in
its contract with Catamount to make all payments on the Project by joint check to
Boykin and Laborde and breached that agreement by issuing a check in August of
2014 solely to Laborde; ( 3) alternatively, prevailing custom implied an obligation
on LMK' s part to issue joint checks, or at the very least, imposed an obligation on
LMK to give Boykin notice of the issuance of any check to Laborde alone, and
LMK' s failure to do so constituted a breach of the obligation of good faith and fair
dealing.
On May 4, 2017, Boykin filed a motion for partial summary judgment
against LMK and Hanover (sometimes collectively referred to as " LMK") in which
it asked the trial court to determine those defendants' liability under the PWA.
Boykin claimed that it was beyond genuine dispute that the principal sum of
589, 548. 99 remained unpaid to Boykin for amounts invoiced to Laborde for
Boykin' s work on the Project. It further asserted that of that principal sum, it is
beyond genuine dispute that $ 587, 317. 12 ( including delivery/ freight charges)
represents the adjusted principal amount remaining unpaid to Boykin and
associated with the materials/ concrete piles that were delivered to the Project job
5 site ( and presumably incorporated or consumed thereon), and thus subject to
protection under the PWA. Boykin maintained that the prices and expenses agreed
to by Boykin and Laborde are not genuinely disputed. Boykin asked for summary
judgment decreeing that LMK and Hanover are liable in solido for the sum of
587,317. 12, together with interest legally due, and the fees associated with the
filing of its lien under the PWA.
Boykin and LMK submitted considerable evidence in support of and in
opposition to Boykin' s motion for partial summary judgment. LMK urged that
Boykin is not entitled to summary judgment on its claims because Boykin' s own
evidence on the motion showed that there are factual disputes as to the price of and
the number of piles delivered to the Project. Furthermore, LMK asserted, Boykin' s
evidence of delivery of the piles to the job site, consisting of invoices and
accounting documents produced by Boykin and not signed or certified by any
party, is not competent to sustain Boykin' s burden of proof on the summary
judgment. LMK also asserted that the arguments raised and the evidence offered
in opposition to Boykin' s motion defeated Boykin' s motion for summary
judgment.
On October 27, 2017, LMK filed a motion for summary judgment against
Boykin. Therein, it submitted that in November of 2014, LMK made a final
payment on the job to Boykin and Laborde, and as a condition of that final
payment, LMK required Boykin and Laborde to execute a final waiver and release
Final Release) of any claims they might have had regarding the Project. LMK
maintained that Laborde failed to timely remit payment to Boykin for all of the
materials Boykin supplied to the Project. LMK claimed it had already paid for the
piles in question, and in this lawsuit, Boykin is attempting to force it to pay for
some of those piles a second time. LMK' s motion is predicated on the Final
2 Release, signed by Boykin' s office manager, Linda Ball, on December 5, 2014.
LMK also called into question Boykin' s ability to prove its contract claims.
On October 12, 2017, a hearing was held on the cross motions for summary judgment. During the hearing, Boykin addressed its objections to evidence offered
by LMK in support of its motion for summary judgment; the court declined to rule
on the objections at that time. LMK' s motion for summary judgment was heard by the trial court on March 1, 2018. Both motions were taken under advisement. On
March 5, 2018, the court held a settlement conference, and on June 12, 2018, the
court issued a ruling by minute entry on the cross motions for summary judgment,
granting Boykin' s motion and denying LMK' s motion. The court noted that
voluminous memoranda, depositions, and affidavits had been extensively
reviewed, and that based on the exhibits and affidavits submitted by Boykin, no
genuine issue of material fact existed " as it relate[ d] to the defendant herein having
accepted the price and terms of the written proposal and that the parties and terms
fall under the [ PWA]." The court further concluded that the invoiced amounts ex
contractu could be distinguished from the invoiced amounts under the PWA, and
therefore, LMK and Hanover were solidarily liable to Boykin on Boykin' s PWA
claim. In denying LMK' s motion, the trial court found LMK failed to meet its
evidentiary burden on the motion, citing the lack of authentic evidence of a
compromise or release agreement executed by Boykin' s office manager and LMK.
On June 29, 2018, the trial court signed a judgment memorializing those
rulings. The written judgment granted Boykin' s motion for summary judgment as
prayed for and denied LMK' s and Hanover' s motion for summary judgment. The
judgment granted all of Boykin' s claims against Hanover, and decreed that LMK
and Hanover were liable in solido to Boykin in the amount of $ 587, 317. 12,
h together with all interest due and the fees associated with the filing of Boykin' s
lien.
On July 17, 2018, LMK and Hanover filed a motion to designate the June
29, 2018 money judgment as a final and appealable judgment under La. C. C. P. art.
1915B. The next day, the trial court issued an order designating the June 29, 2018
judgment as final. Two days later, Hanover filed a motion and order for a
suspensive appeal seeking review of the judgment rendered in favor of Boykin.
Therein, Hanover asserted that the June 29, 2018 judgment is final and appealable
pursuant to La. C. C. P. art. 1915A as to Hanover because it granted all of Boykin' s
claims against Hanover. The trial court granted Hanover a suspensive appeal on
August 13, 2018, and on August 17, 2018, Hanover posted a bond in the amount of
675, 466. 98.
LMK sought supervisory writs from this court, seeking review of the trial
court' s grant of the partial summary judgment in favor of Boykin and the denial of
its motion for summary judgment. The writ application was referred to this panel.
Boykin Brothers, L.L.C. v. Laborde Construction Industries, L.L.C., 2018 CW
1120 ( La. App. 1st Cir. 10/ 29/ 18)( unpublished writ action).
LMK, Hanover, and Boykin filed a joint stipulation in connection with LMK
and Hanover' s motion to designate the judgment as final for the purposes of an
immediate appeal under La. C. C. P. art. 1915B. In an order signed on September 6,
2018, the trial court designated the June 29, 2018 judgment as a final judgment for
the purposes of an immediate appeal pursuant to La. C. C. P. art. 1915B.
Thereafter, LMK filed an application for a suspensive appeal in which it sought to
appeal the judgment pursuant to La. C. C. P. art. 1915B as well as all prior
interlocutory rulings or other interlocutory judgments which were adverse to its interests. The trial court granted LMK a suspensive appeal of the June 29, 2018
judgment and other interlocutory rulings or judgments adverse to LMK.
APPELLATE JURISDICTION
Appellate courts have a duty to examine subject matter jurisdiction sua
sponte, even when the parties do not raise the issue. Fils v. Allstate Insurance
Company, 2015- 0357 ( La. App. 1St Cir. 12/ 23/ 15), 186 So. 3d 152, 155. A partial
summary judgment may be rendered dispositive of a particular issue, theory of
recovery, cause of action, or defense, in favor of one or more parties, even though
the grant of the summary judgment does not dispose of the entire case as to that
party or parties. La. C. C. P. art. 966E. A partial summary judgment rendered
pursuant to La. C.C. P. art. 966E may be immediately appealed during ongoing
litigation only if it has been properly designed as a final judgment by the trial
court. La. C. C. P. art. 1915B; Fils, 186 So -3d at 155. However, a trial court' s
certification of a partial judgment as final does not make the judgment immediately
appealable, as that designation is not determinative of this court' s jurisdiction. Id.
LMK' s APPEAL
A joint stipulation was filed by LMK, Hanover, and Boykin in connection
with LMK and Hanover' s motion to designate the judgment as final for the
purposes of an immediate appeal under La. C. C. P. art. 1915B. The parties
stipulated that:
1. The June 29, 2018 judgment granting Boykin' s motion for partial summary judgment against LMK and Hanover and denying LMK and Hanover' s motion for summary judgment holds LMK and Hanover liable in solido to Boykin in the amount of $587, 317. 12, together with all interest legally due and the fees associated with the filing of Boykin' s lien; 2. The June 29, 2018 judgment resolves all of Boykin' s claims against Hanover and the majority ( but not all) of Boykin' s claims, demands, issues, or theories against LMK; 3. Hanover is a surety for LMK, the principal obligor, for the entire amount awarded to Boykin in the judgment; 4. Hanover filed a motion for a suspensive appeal which was granted by the trial court and posted a suspensive appeal bond with the clerk of court in the amount set forth in the trial court' s order; 5. Because of their solidary liability and the suretyship relationship between them, LMK and Hanover share the same defenses to the claims set forth in Boykin' s motion for partial summary judgment making it judicially efficient for the court of appeal to consider the ruling against LMK in conjunction with its consideration of the ruling against Hanover in connection with Hanover' s appeal; 6. Because LMK and Hanover are solidarity liable for the amount awarded by the judgment to Boykin on its PWA claim, no further proceedings against LMK, in connection with that claim, are
needed at the trial court level until the appellate court considers the suspensive appeal taken by Hanover; 7. There are no issues pending at the trial court level which will alleviate the need for appellate review of the judgment; 8. If the judgment' s effects against Hanover and LMK are considered simultaneously, the appellate court will not be obligated to consider these issues a second time once a final judgment is entered against LMK; and 9. There is no just reason to delay appellate consideration _of the judgment as it relates to LMK.
In certifying the judgment as a final one as to LMK pursuant to La. C. C.P.
art. 1915B, the trial court adopted the statements of fact, recited in the joint
stipulations, as its reasons for the designation. The court noted that the judgment
awarding $ 587, 317. 12, to Boykin against LMK is a partial judgment as to one or
more but less than all of Boykin' s claims, demands, or theories against LMK and
thus falls within the purview of La. C. C. P. art. 1915B. The trial court further
found that there was no just reason to delay the review of the grant of summary
judgment against LMK and the denial of LMK' s cross- motion for summary
When, as here, an order designating a judgment as final for appeal purposes
is accompanied by explicit reasons, this court must determine whether the trial
court abused its discretion in certifying the judgment. R. J. Messinger, Inc. v.
Rosenblum, 2004- 1664 ( La. 3/ 2/ 05), 894 So. 2d 1113, 1122. We find no abuse of
10 the trial court' s designation of the judgment granting Boykin' s motion for partial
summary judgment against LMK as an immediately appealable final judgment.
That judgment had the effect of disposing of Boykin' s PWA claims in their entirety. Boykin' s only remaining claims against LMK are based on contract
theories and are separate and distinct from Boykin' s PWA claims. Therefore, this
court has appellate jurisdiction to review the trial court' s grant of Boykin' s motion
for partial summary judgment on its PWA claims.
DISCUSSION
A motion for summary judgment is a procedural device used to avoid a full-
scale trial when there is no genuine issue of material fact. Jones v. Anderson,
2016- 1361 ( La. App. 1St Cir. 6/ 29/ 17), 224 So.3d 413, 417. After 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. La. C. C. P. art. 966A( 3).
The burden of proof rests with the mover. La. C. C. P. art. 9661)( 1). On a
motion for summary judgment, it must first be determined that the supporting
documents presented by the moving party are sufficient to resolve all material
issues of fact. Neighbors Federal Credit Union v. Anderson, 2015- 1020 ( La.
App. 1St Cir. 6/ 3/ 16), 196 So. 3d 727, 734. In ruling on a motion for summary
judgment, the trial court' s role is not to evaluate the evidence or determine the
truth of the matter, but instead to determine whether there is a genuine issue of
triable fact. Id. at 735.
Appellate courts review evidence de novo under the same criteria that
govern the trial court' s determination of whether summary judgment is
appropriate. Jones, 224 So. 3d at 417. This court must ask the same questions a
11 trial court does in determining whether summary judgment is appropriate: whether
there is any genuine issue of material fact, and whether the mover is entitled to
judgment as a matter of law. The applicable substantive law determines
materiality; thus, whether a particular dispute is material can only be seen in light
of the substantive law applicable to the case. Id. A genuine issue is one as to
which reasonable persons could disagree. If reasonable persons could reach only
one conclusion, there is no need for trial on that issue and summary judgment is
appropriate. Thompson v. Center for Pediatric and Adolescent Medicine,
L.L.C., 2017- 1088 ( La. App. 1st Cir. 3/ 15/ 18), 244 So. 3d 441, 445, writ denied,
2018- 0583 ( La. 6/ 1/ 18), 243 So. 3d 1062.
The Louisiana Private Works Act
The PWA was enacted to provide protections for contractors, laborers,
materialmen, and subcontractors engaged in construction and repair projects.
Burdette v. Drushell, 2001- 2494 ( La. App. 11t Cir. 12/ 20/ 02), 837 So.2d 54, 68,
writ denied, 2003- 0682 ( La. 5/ 16/ 03), 843 So. 2d 1132. To that end, La. R.S.
9: 4802 provides as follows:
A. The following persons have a claim against the owner and a claim against the contractor to secure payment of the following obligations arising out of the performance of work under the contract:
3) Sellers, for the price of movables sold to the contractor or a subcontractor that become component parts of the immovable, or are consumed at the site of the immovable, or are consumed in machinery or equipment used at the site of the immovable.
The PWA, which is in derogation of general contract law, must be strictly
construed. Because Louisiana' s lien statutes are stricti juris, the plaintiff in a lien
enforcement action must prove its claim by a " substantial preponderance" of the
evidence. R.L. Drywall, Inc. v. B& C Electric, Inc., 2013- 1592 ( La. App. 1st Cir.
12 5/ 2/ 14)( unpublished) 2014 WL 3559390 * 2; Parish Concrete, Inc. v. Fritz
Culver, Inc., 399 So.2d 694, 696 (La. App. 1" Cir. 1981).
In this case, the parties do not dispute that Boykin took the appropriate
procedural steps to perfect its lien pursuant to the PWA. The primary issue in this
appeal is whether Boykin proved, as a matter of law, that it is entitled to recover
the sum of $587, 317. 12, together with interest and fees associated with filing of its lien.
In support of its motion, Boykin claimed it was undisputed that a " Written
Proposal" provided by Boykin to Laborde, which set forth the price for the
fabrication and delivery of the concrete piles to the Project, along with other terms
and conditions, was accepted by Laborde. According to Boykin, it fabricated,
delivered, and invoiced all concrete pilings as agreed to by Laborde in accordance
with its ordinary course of business and under the terms of the Written Proposal,
which serves as the basis for its PWA claim. In support of its motion, Boykin filed
the following documents: ( 1) LMK, Catamount, and Laborde' s discovery
responses; ( 2) the deposition testimony of Christopher Yancy, Catamount' s
corporate representative, who testified regarding Catamount and LMK' s
relationship and who identified the LMK and Catamount subcontract; ( 3) the
affidavits of: Michael David Boykin, Boykin' s Chief Operating Officer; Dustin
Gaspard, a Boykin sales representative; Linda Ball, Boykin' s office manager
responsible for generating invoices; Amy Kellogg, Boykin' s office employee
responsible for generating production logs; Christopher Boykin, Boykin' s Chief
Technology Officer; and Laurie Pinson, a paralegal at the law firm engaged by
Boykin; ( 4) an excerpt of the deposition testimony of David Boykin; and ( 5)
documents generated by Boykin in connection with the Project.
13 Michael David Boykin, Christopher Boykin, and Mr. Gaspard made
various attestations regarding the agreement between Boykin and Laborde as to the
price of the concrete pilings and other terms of the parties' agreement. Michael
David Boykin and Mr. Gaspard stated that they issued a verbal quote on behalf of
Boykin to Laborde for the fabrication and delivery of 14" and 18" concrete pilings for use on the Project. They also made the following attestations: On or before
March 13, 2014, Boykin was notified by Mr. Laborde that Laborde accepted
Boykin' s verbal quote. The verbal quote given to Laborde did not include
mandatory police escorts for the delivery of the 18" piles. However, the Written
Proposal, provided to Laborde on March 14, 2014 by Boykin, did include a price
for the delivery of the 18" piles that included the mandatory police escorts. Mr.
Boykin attested that shortly after the Written Proposal was transmitted to Laborde,
he and Mr. Laborde had a discussion regarding the delivery price of the 18" piles,
during which Mr. Boykin explained to Mr. Laborde that the delivery price included
the price for police escorts, differing from the verbal quote, and that would be the
rate Laborde would be charged for those piles if Laborde wanted to proceed. Both
Mr. Boykin and Mr. Gaspard attested that Mr. Laborde accepted the price set forth
in the Written Proposal for the freight, Laborde did not subsequently complain
about the price, and Laborde did not express any further objection to them
regarding the terms of the Written Proposal, including the provision for demurrage
charges and interest.
A copy of the Written Proposal was attached to the affidavits of Mr. Boykin
and Mr. Gaspard. This document sets forth a freight charge of $7. 37 per linear
foot for the delivery of the 18" concrete pilings. It further states that any
demurrage incurred by the fault of others will be charged to the general contractor
at a rate of $170. 00 per hour. Finally, the document states that `[ t]his proposal
14 when signed by the Seller and Buyer constitutes a binding contract[.]" The
Written Proposal was not signed by Boykin or Laborde.
In its response to requests for admissions, Laborde flatly denied having
entered into a purchase order with Boykin pursuant to which Laborde would
purchase piles according to the fabrication charges and delivery charges set forth
therein. Laborde stated that the written document provided to it by Boykin was not
signed because it did not reflect the terms agreed upon by Mr. Laborde and Mr. Gaspard and/ or Mr. Boykin. Specifically, Laborde claimed that the price for
delivery of each 18" pile was $ 2 per linear foot more than the parties had agreed.
Laborde also denied that the principal amount of $589, 548. 00 remained due to
Boykin for concrete piles supplied to Laborde for use in the Project, noting that
this balance represented charges that were not agreed upon by the parties, and
further that it contained amounts that could be offset by Laborde' s claims against
Boykin for failing to deliver the concrete pilings to the site where they were to be
installed. Laborde also denied that it had been paid in full by the general
contractor for the concrete piles supplied by Boykin.
Laborde claimed that in August of 2014, Boykin stopped delivering each
pile to the location where it was to be driven, as it had previously done in
accordance with the parties' agreement throughout the entire Project, and began
delivering piles to the entrance of the Project site. Laborde asserted that Boykin' s
actions required Laborde to physically move each pile from the entrance of the
Project site to the location where each pile was to be installed at its own expense,
causing Laborde to incur at least $ 341, 331. 85 in additional expenses. Laborde
claimed that it submitted extra work orders to LMK for payment, resulting from
LMK' s failure to maintain the Project site, which resulted in Boykin' s failure to
deliver the piles to the installation site. According to Laborde, despite assurances
15 from LMK that such additional charges would be paid, no additional payments
were made to Laborde, and a balance exceeding $ 590, 000.00 remains to be paid by
LMK to Laborde. Laborde insisted that Boykin' s failure to deliver the piles to the
proper location constituted a breach of its oral agreement with Laborde, entitling
Laborde to offset these costs against the balance Boykin claims it is owed on the
Project.
The Boykin affiants made numerous statements regarding how Boykin
invoiced Laborde for the concrete pilings furnished for the project. According to
the affiants, Boykin created and regularly updated a production log which served
as a contemporaneous data compilation of the pilings fabricated and delivered for
the Project, and that from this production logs, invoices were generated for the
fabricated piles and for freight upon delivery. The affiants made statements
regarding the amounts invoiced to Laborde, the invoices that were paid by
Laborde, those that were not paid by Laborde and the amounts owed on those
invoices, including charges for demurrage or cancelled loads, and other charges
identified by the affiants. According to Ms. Ball, the total amount of $589,538. 99
invoiced to Laborde remained unpaid and of that amount, $ 587, 317. 12 ( including
freight and delivery) represented the principal unpaid amount associated with the
materials/piles delivered to the Project job site, and of that amount, $ 276, 323. 62
represented the amount unpaid for piles, without freight, but including additional
incorporated bars in the pilings, that had been delivered to the Project.
In his deposition, David Boykin generally discussed Boykin' s charges and
explained the nature of demurrage charges. In her affidavit, Ms. Pinson identified
documents she retrieved from the Clerk of Court' s Office that had been filed in
connection with the Project and Boykin' s lien. Boykin' s voluminous documentary
16 evidence included its production log for the Project and numerous invoices
generated therefrom.
In opposition to Boykin' s motion, LMK argued that Boykin is not entitled to
summary judgment on its claims because Boykin' s own evidence shows the
existence of factual disputes as to the price and the quantity of the piles it delivered
for the Project. LMK traversed Boykin' s statement of undisputed material facts,
specifically contesting Boykin' s claim that Mr. Laborde accepted the terms of the
Written Proposal provided by Boykin to Laborde. It pointed to Laborde' s
discovery responses indicating that Laborde did not pay the full amount of the
purchase order because Boykin charged more than the agreed- upon price for the
pilings. LMK also focused on Laborde' s discovery responses indicating that the
Written Proposal did not reflect Boykin and Laborde' s agreement as to the price
for the piles, as that written agreement set forth a price for the delivery of the 18"
piles that was more than had been verbally agreed to by Laborde.
LMK also insisted that any claims Boykin had for demurrage charges, or
ancillary service charges, reflected in Boykin' s unpaid invoices, and based on
Boykin' s purported written contract with Laborde, are not recoverable by a
supplier against a contractor under the PWA. LMK asserted that under the PWA,
Boykin' s sole claim against LMK is for the price paid for the movables it delivered
and the cost of delivering those movables, but only to the extent that the movables
became component parts of the immovable property that is the object of the work.
According to LMK, Boykin' s motion for summary judgment on its PWA claims
was presented in the same manner as a suit for payment under the purported
Boykin -Laborde contract, with Boykin seeking payments for invoices issues to
LMK pursuant to the terms of that contract regardless of the PWA' s requirements.
LMK urged that Boykin' s unpaid invoices do not reflect the relevant value of
17 Boykin' s PWA claim against LMK, as those invoices do not isolate the amounts
recoverable under the PWA which are included in Boykin' s remaining unpaid invoices. LMK further pointed out that the invoices for which Boykin is seeking payment clearly include charges for piles that were not delivered to the job site,
were never incorporated into the immovable, and are not recoverable from LMK
under the PWA.
In opposition to the motion, the bulk of LMK' s evidence pertained to the
issue of whether Boykin waived its claims against LMK. LMK' s opposition
evidence also includes the deposition testimony of Ms. Ball, who acknowledged
that Boykin invoiced Laborde for freight charges when loads had been cancelled,
then charged freight again when the load was delivered to the job site. She also
was questioned regarding an invoice charging Laborde for freight costs for the
delivery of a broken pile back to the plant; Ms. Ball speculated it was broken at the
job site because Boykin would not have charged Laborde for the return freight if
Boykin was at fault for the broken pile.
In its motion for summary judgment, LMK asserted that Boykin' s PWA
claim is contrary to the clear and unambiguous terms of the Final Release signed
by Boykin' s office manager. LMK' s motion sought a judgment enforcing the
terms of the Final Release and decreeing that Boykin waived and released all of the
claims asserted against LMK in this matter. In support thereof, LMK filed
evidence of various individuals' understanding of that document along with some
of the evidence it had offered in opposition to Boykin' s motion for summary
judgment. LMK also argued that Boykin could not meet its burden of proof on
any of Boykin' s contract claims.
To support its motion, Boykin took issue with LMK' s claim that Boykin
failed to distinguish its contract claim against Laborde and its PWA claim against
V. LMK. Boykin insisted that it has, specifically and in great detail, distinguished its
claim under the PWA versus its contract claim. Evidence of such cited by Boykin
includes the fact that the total amount Boykin invoiced to Laborde is $ 589, 548. 99,
but Boykin is only seeking to recover $ 587, 317. 12 from LMK. Boykin asserted
that the price differential reflects the fact that Boykin acknowledged that all but
two of the piles associated with one of the invoices were delivered to the job site,
and given that Boykin did not deliver these piles, payment for those two piles is
not being sought in its PWA claim against LMK. Boykin claimed that it subtracted
three " non- lienable amounts" from the total amount invoiced to Laborde including:
1) $ 1, 823. 67 for the two piles on one of the invoices that were not delivered to the
project; ( 2) $ 141. 70 for two of the bars associated with an invoice that were not
delivered to the site; and ( 3) a charge of $266. 50 reflected on Invoice NO. 17905 -
IN.
Boykin also urged that its demurrage charges are secured under the PWA on
the basis that such charges were agreed to by Laborde in the Written Proposal and
thus represent amounts owed to Boykin by Laborde for the cost of delivering the
movables that became part of the immovable. This rationale, Boykin posited, also
4 applies to the cancel load expenses incurred by Boykin and owed by Laborde.
In defending the trial court' s grant of the partial summary judgment in its
favor, Boykin insists that it is not genuinely disputed that Laborde accepted the
price and terms of the Written Proposal. Boykin maintains that with great
precision, it meticulously segregated and detailed its PWA claim, distinguishing its
contract claims against Laborde from the amounts secured under the PWA, and
made a prima facie showing of its PWA claim. Boykin claims that it met its
4 Additionally, Boykin objected to numerous exhibits offered by LMK in support of LMK' s motion for summary judgment and argued that LMK failed to meet its burden of proving that Boykin entered into a compromise with LMK so as to defeat Boykin' s lien enforcement action against LMK. 19 burden of proof to establish that no genuine issue of material fact remained for trial
and it is entitled to judgment as a matter of law.
We disagree. Instead, we find that there are numerous genuine issues of
material fact in dispute which precluded the entry of summary judgment in favor of
Boykin on its PWA claim. As a supplier to the Project, Boykin' s PWA lien rights
are limited to the " price of movables" sold to Laborde which " become component
parts of the immovable, or are consumed at the site of the immovable...." La.
R.S. 9: 4802A( 3). It is evident that Boykin' s PWA claim is predicated on the
enforceability of the terms of the Written Proposal, as Boykin is seeking to recover
from LMK unpaid amounts it invoiced to Laborde pursuant to the price and the
terms set forth in in the Written Proposal. However, Boykin' s own evidence calls
into question the enforceability of the very agreement upon which Boykin' s PWA
claim against LMK is based. This evidence showed that the Written Proposal was
never signed by Boykin and Laborde and that Laborde refused to sign that
document because it did not reflect the terms previously allegedly verbally agreed
to by the parties regarding the delivery price of the 18" piles. Further, Boykin' s
evidence showed that Laborde did not agree with other terms of the Written
Proposal, such as demurrage charges, which clearly form part of Boykin' s PWA
claim against LMK.
Because the price Laborde agreed to pay Boykin for furnishing and
delivering the concrete piles to Laborde for use on the Project is disputed, the trial
court erred in granting partial summary judgment to Boykin on its PWA claim
against LMK. Clearly, as reflected by Laborde' s discovery responses, there are
numerous genuine issues of material fact regarding the actual amount owed to
Boykin by Laborde, and thus, the amount owed by LMK to Boykin for Boykin' s
20 work on the Project. Accordingly, the partial summary judgment entered in favor
of Boykin on its PWA claim is hereby reversed.
LMK and HANOVER' S APPEAL OF THE JUDGMENT DENYING THEIR MOTIONFOR SUMMARYJUDGMENT
The trial court certified the judgment denying LMK and Hanover' s motion
for summary judgment as a final appealable judgment pursuant to La. C. C.P. art.
1915B. The trial court clearly erred in so doing. The denial of a motion for
summary judgment is an interlocutory judgment that is not appealable and cannot
be certified as such. Ascension School Employees Credit Union v. Provost
Salter Harper & Alford, L.L.C., 2006- 0992 ( La. App. 1St Cir. 3/ 23/ 07), 960
1St So. 2d 939, 940; Belanger v. Gabriel Chemicals, Inc., 2000- 0747 ( La. App.
Cir. 5/ 23/ 01), 787 So. 2d 559, 563, writ denied, 2001- 2289 ( La. 11/ 16/ 01), 802
So. 2d 612. Therefore, this court lacks appellate jurisdiction under La. C. C.P. art.
1915B to review this ruling.
However, when an unrestricted appeal is taken from a final judgment, the
appellant is entitled to seek review of all adverse interlocutory judgments
prejudicial to him, in addition to the review of the final judgment. Judson v.
Davis, 2004- 1699 ( La. App. 1" Cir. 6/ 29/ 05), 916 So. 2d 1106, 1112- 13, writ
denied, 2005- 1998 ( La. 2/ 10/ 06), 924 So. 2d 167. Pursuant to this general
principle, we shall consider LMK and Hanover' s argument that the trial court
erroneously denied their motion for summary judgment. See Fonseca v. City Air
of Louisiana, LLC, 2015- 1848 ( La. App. Pt Cir. 6/ 3/ 16), 196 So. 3d 82, 85 fn.3.
In their cross motion for summary judgment, LMK and Hanover argued that
Boykin waived and released all of its liens and claims against LMK pursuant to the
terms of a " Final Release" signed by Boykin' s office manager. According to LMK
and Hanover, the terms of the release must be enforced as written because the
21 language is unambiguous and because Boykin' s office manager had authority to bind Boykin to that agreement. However, after a thorough review of the relied -
upon document and all of the evidence submitted in connection with LMK and
Hanover' s motion for summary judgment, we find that there are numerous
disputed factual issues which must be resolved before it can be determined that
Boykin in fact waived all of the claims asserted in this litigation. The presence of
these disputed factual issues preclude the entry of summary judgment in favor of
LMK and Hanover, and the trial court correctly denied their motion for summary judgment.'
CONCLUSION
The June 29, 2018 judgment is reversed insofar as it granted the motion for
partial summary judgment in favor of Boykin Brothers, LLC on its lien
enforcement claim pursuant to the Private Works Act. In all other respects, the
judgment is affirmed. LMK Baton Rouge Construction, LLC' s application for
supervisory writs is denied as moot. The case is remanded for proceedings
consistent with this opinion. All costs of this appeal are assessed equally to
Boykin Brothers, LLC, LMK Baton Rouge Construction LLC, and The Hanover
Insurance Company.
REVERSED IN PART AND AFFIRMED IN PART; WRIT DENIED.
s LMK filed an application for supervisory writs with this court, seeking supervisory review of the trial court' s denial of its motion for summary judgment. Boykin Brothers, L.L.C. v. Laborde Construction Industries, L.L.C., 2018CW1120. We deny the writ application as moot.