Church v. Quick Response Restoration, Inc.

381 F. App'x 408
Court of Appeals for the Fifth Circuit·Decided June 15, 2010·No. No. 09-30414·Published·Cited by 4 cases

Opinion

PER CURIAM: *

The appellant, St. Paul’s Evangelical Lutheran Church, asserts that Quick Re[410] sponse, which the church hired to stabilize its buildings following Hurricane Katrina, performed unnecessary services and overcharged it. Quick Response, in turn, seeks payment for the work that it performed under the parties’ contract. Below, the jury found for Quick Response, and the church now appeals the district court’s instructions to the jury, the sufficiency of the evidence underlying its verdict, and the district court’s awards of interest and attorney’s fees. Having considered the briefs, oral argument, and pertinent parts of the record, we conclude that the district court did not abuse its discretion and that the evidence is plainly sufficient, and we affirm.

St. Paul’s Evangelical Lutheran Church is among New Orleans’s oldest houses of worship. The church owns a parcel of land on which sit its church building and a Fellowship Center. Both were severely damaged in Hurricane Katrina.

On October 12, the church’s pastor, Jones Ertl, signed an agreement with Quick Response, a New York firm specializing in water damage restoration. This agreement, titled “Work Authorization and Direct Payment Request,” provided that Quick Response would “proceed with its recommended procedures to preserve, protect, and secure from further damage the property.” It also stated that Quick Response “shall bill all charges and/or costs direct to the Insurance Company and, as a courtesy only, a copy of these invoices shall be mailed to [the church]” and that, ultimately, the church would be liable for “any and all charges for services not reimbursed by an insurance carrier.” Finally, the agreement stated that, in the event that Quick Response initiated legal proceedings to enforce it, the company would be “entitled to recover the costs of collection including reasonable attorneys’ fees, costs, and disbursements.”

St. Paul’s also retained the services of Acclaim Adjustment, Inc., to represent it as a public adjuster. Acclaim’s employee John Andres handled the project.

Over the course of the following three weeks, Quick Response’s workers installed temporary roofs, boarded up broken windows, gutted the buildings of destroyed materials and debris, and dried their interiors. The job was complete on November 1, and on November 15, Pastor Ertl signed an “Acceptance Agreement” stating that “Quick Response satisfactorily performed all work and that St. Paul’s unconditionally accepted such work.” A week later, Quick Response sent an invoice, in the amount of $875,001.08, to Andres, for the work performed on both buildings. Id. Andres, in turn, submitted the invoice amount to St. Paul’s insurers, and the insurers made payments to Quick Response that ultimately totaled $235,654.06, leaving a $139,347.02 deficiency.

St. Paul’s filed suit against its three insurers and Quick Response. The church settled with the insurers and is represented by an insurer in defending Quick Response’s counterclaim for the balance due on its recovery work. The trial itself was largely a battle of the experts, with each side presenting testimony as to the nature, necessity, and quality of the work performed by Quick Response, as well as the reasonableness of the amount that it charged for its services.

Ultimately, the jury found that Quick Response was due an additional “$139,-347.02 plus the cost of collection, including reasonable attorneys’ fees, cost (sic), and disbursements.” The district court awarded interest from the date of Quick Response’s demand letter, contractual attorney’s fees in the sum of $102,188.61, and [411] expert witness fees, but denied reimbursement for collection fees.

On appeal, St. Paul’s raises three issues: the district court erred when it instructed the jury on agency and estoppel; the jury’s award of damages was not adequately supported by the evidence; and the awards of interest and fees were excessive and in violation of Louisiana law.

1. Jury Instructions

St. Paul’s argues that the district court erred in instructing the jury, at Quick Response’s request, on agency and estop-pel, because neither issue had been pled by Quick Response or raised in the pretrial order.1

A pretrial order supersedes all pleadings and government the issues and evidence to be presented at trial. Elvis Presley Enters., Inc. v. Capece, 141 F.3d 188, 206 (5th Cir.1998). At the same time, “if a claim or issue is omitted from the order, it is waived, even if it appeared in the complaint.” Id.

A. Agency

The issue of agency was mentioned prominently in the pretrial order. The order contained a stipulation that St. Paul’s had retained Acclaim, and by extension Andres, “to represent it as a Public Adjuster.”

The issue was also addressed, at some length, by both parties during trial. Both presented evidence and elicited testimony on Andres’s role in the water restoration project. Pastor Ertl, for example, testified that he expected Andres to evaluate the necessity of the work, at the outset and during its performance, and, ultimately, its quality. Quick Response’s owner, Vince Laurenzo, testified that Andres, who was on the jobsite most days, directed Quick Response at every step of the way. This, he said, was standard practice when a public adjuster has been hired. Agency, then, was clearly at issue throughout the litigation.

Further, the instruction itself was an accurate recitation of Louisiana law. See AAA Tire & Export, Inc. v. Big Chief Truck Lines, Inc., 385 So.2d 426, 429 (La. App. 1st Cir.1980); Houston Exploration Co. v. Halliburton Energy Services, Inc., 359 F.3d 777, 780 (5th Cir.2004). That the jury was instructed on this issue, as subsidiary to the parties’ claims, was no abuse of discretion.

B. Estoppel

The pretrial order clearly identified estoppel as a contested issue of law:

Whether Plaintiff should be barred or estopped from challenging the reasonableness of any work or services performed by Quick Response or charges incurred by reason of Plaintiffs unconditional acceptance of Quick Response’s work for Plaintiff on November 15, 2005 and the partial payments made to date by St. Paul’s.

Whether this defense was pled with precision is irrelevant.

In addition, St. Paul’s challenges the content of the estoppel instruction, arguing that estoppels are not favored under Louisiana law. See, e.g., Twillie v. H.B. Zachry Co., 380 So.2d 747, 750 (La.App.1980) (citing cases); Westenberger v. State Through Dept. of Ed., 333 So.2d 264, 271 [412] (La.App.1976). This is true only to the extent that the party asserting estoppel has the burden of proving its elements and that estoppel, as defined in Louisiana law, fairly lies. Id.; Twillie, 380 So.2d at 750. It is dispositive, then, that the instruction to the jury fairly tracked Louisiana law. See Babin v. Montegut Ins. Agency, Inc., 271 So.2d 642, 645 (La.App.1973); Morgan v. Cedar Grove Ice Co., 215 La. 741, 41 So.2d 521, 523 (1949).

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Church v. Quick Response Restoration, Inc., 381 F. App'x 408 (5th Cir. 2010).

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