DIAMOND B CONST. CO. v. City of Plaquemine

673 So. 2d 636, 95 La.App. 1 Cir. 1979, 1996 La. App. LEXIS 994, 1996 WL 242959
CourtLouisiana Court of Appeal
DecidedApril 30, 1996
Docket95 CA 1979
StatusPublished
Cited by8 cases

This text of 673 So. 2d 636 (DIAMOND B CONST. CO. v. City of Plaquemine) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DIAMOND B CONST. CO. v. City of Plaquemine, 673 So. 2d 636, 95 La.App. 1 Cir. 1979, 1996 La. App. LEXIS 994, 1996 WL 242959 (La. Ct. App. 1996).

Opinion

673 So.2d 636 (1996)

DIAMOND B CONSTRUCTION COMPANY, INC.
v.
The CITY OF PLAQUEMINE.

No. 95 CA 1979.

Court of Appeal of Louisiana, First Circuit.

April 30, 1996.

*637 Randall C. Gregory, Russell W. Wray, Baton Rouge, for Plaintiff-Appellee Diamond B Construction Company, Inc.

L. Phillip Canova, Jr., Plaquemine, for Defendant-Appellant City of Plaquemine.

Before CARTER and PITCHER, JJ., and CRAIN, J. Pro Tem.[1]

PITCHER, Judge.

The City of Plaquemine appeals from the granting of a motion for summary judgment, finding that the City of Plaquemine was obligated to pay Diamond B Construction Company, Inc. the retainage amount of $133,960.64 due on a construction contract.

BACKGROUND AND PROCEDURAL HISTORY

On April 14, 1992, Diamond B Construction Company, Inc. (Diamond B) entered into a contract with the City of Plaquemine (Plaquemine) for the construction project known as the "City of Plaquemine 1992 Road and Drainage Improvement Program, F & T Job No. 91112." Pursuant to the contract, Diamond B was to "cold plane" and overlay the streets of Plaquemine.

On March 30, 1993, a document entitled "Recommendation of Acceptance" was issued by Forte & Tablada, Inc. (Forte), the engineering firm who was Plaquemine's named *638 representative under the contract. The document stated the following: "I certify that, to the best of my knowledge and belief, this project is substantially complete in accordance with the Plans and Specifications to the point where it can be used for the purpose which was intended. It is recommended that it be accepted." The document also set forth a value of $36,200.00 for a punch list of incomplete items and/or corrections. On April 23, 1993, this document was filed in the Iberville Parish Clerk of Court's office.

On July 8, 1993, Forte issued Payment Certificate No. 23, approving payment of the remaining balance of $133,960.64 due under the contract. Subsequently, Diamond B sent an invoice to Plaquemine for payment of the retainage. Following both the issuance of the "Recommendation of Acceptance" and "Payment Certificate No. 23", Plaquemine failed to pay Diamond B any of the retainage.

On October 19, 1993, Diamond B filed a petition, naming Plaquemine as defendant. In the petition, Diamond B alleged that the project had been substantially complete since June 23, 1993, and Plaquemine has refused to pay the $133,960.64 retainage. Diamond B also alleged that a clear lien certificate was filed and that final billing was sent on June 23, 1993.

On October 29, 1993, Plaquemine filed an answer and a reconventional demand, naming Diamond B as defendant. In the answer/reconventional demand, Plaquemine asserted that upon its (Plaquemine's) final inspection, as provided in § 9.10.5 of the supplementary conditions of the contract, it concluded that Diamond B did not perform the work according to the plans and specifications, and therefore, Plaquemine was entitled to withhold payment. Plaquemine further asserted that the street areas worked on by Diamond B exhibited cracks, voids and/or base failure. Plaquemine sought damages to correct, repair and/or rectify Diamond B's work. Thereafter, Diamond B filed an answer to the reconventional demand.

On November 24, 1993, Diamond B filed an amended answer to Plaquemine's reconventional demand and filed a third party demand, naming as third party defendant, Forte. In the third party demand, Diamond B alleged that the streets and construction were done in accordance with the plans and specifications of Forte, and the sole proximate cause of any defects in the roadwork would be the plans and specifications prepared by Forte. On May 24, 1994, Forte filed an answer to the third party demand.

Subsequently, Diamond B filed a motion for summary judgment, alleging that it was entitled to the retainage held by Plaquemine. A hearing was held on June 19, 1995. Following the hearing, the trial court granted the motion for summary judgment in favor of Diamond B, ordering Plaquemine to pay the retainage amount of $133,960.64 with judicial interest and attorneys fees. Plaquemine now appeals and alleges the following specifications of error:

1. The trial court erred in its application of the standard of proof in granting a summary judgment.
2. The trial court erred in its determination that there were no genuine issues of material fact concerning substantial completion.
3. The trial court erred in deciding that, as a matter of law, the actions of Forte and Tablada, Plaquemine's agent, were binding on the city and constituted an acceptance of Diamond B's work.
4. The trial court erred in holding that Plaquemine is liable for attorneys fees as a matter of law.
5. The trial court erred in construing [Plaquemine's] arguments concerning the agent's unauthorized actions as equitable arguments, when they are in fact based upon specific and unambiguous provisions of the Louisiana Civil Code.

On October 11, 1995, Diamond B filed an answer to the appeal, seeking attorneys fees incurred from this appeal and costs incurred from the trial court proceedings and this appeal.

ASSIGNMENT OF ERROR NUMBER TWO

Plaquemine contends that the trial court erred in determining that there were no genuine *639 issues of material fact concerning substantial completion.

It is well settled that the granting of a summary judgment is proper only if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Lewis v. Diamond Services Corporation, 93-1150 p. 5 (La.App. 1st Cir. 5/20/94); 637 So.2d 825, 828, writ denied, 94-1638 (La. 10/14/94); 643 So.2d 159. The burden is upon the mover for summary judgment to show that no genuine issues of material fact exist, and only when reasonable minds must inevitably conclude that the mover is entitled to a judgment as a matter of law is summary judgment warranted. Ledet v. Quality Shipyards, Inc., 615 So.2d 990, 992 (La.App. 1st Cir.1993).

Summary judgments are not favored, and any reasonable doubt should be resolved against the mover. In determining whether material issues have in fact been disposed of, any doubt is to be resolved against granting the summary judgment and in favor of trial on the merits. O'Quinn v. Power House Services, Inc., 633 So.2d 707, 710 (La.App. 1st Cir.1993).

Specifically, Plaquemine argues that Diamond B did not substantially perform its obligations in accordance with the contract documents and is not entitled to the retainage due on the construction contract.

Contracts have the effect of law on the parties thereto and must be performed in good faith. LSA-C.C. art. 1983. Interpretation of a contract is the determination of the common intent of the parties. LSA-C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the intent of the parties. LSA-C.C. art. 2046. Conversely, when the terms of a contract are susceptible to more than one interpretation, it is ambiguous and parol evidence may be used to show the true intent of the parties and various rules of interpretation become applicable. LSA-C.C. art. 2048.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

O'Hara v. Globus Medical, Inc.
181 So. 3d 69 (Louisiana Court of Appeal, 2015)
M.P.W. v. L.P.W.
136 So. 3d 37 (Louisiana Court of Appeal, 2013)
Basin Exploration, Inc. v. Denbury Management, Inc.
5 So. 3d 315 (Louisiana Court of Appeal, 2009)
Cr Humphreys General Contractor, Inc. v. Tangipahoa Parish School System
973 So. 2d 178 (Louisiana Court of Appeal, 2007)
QUALITY DESIGN v. City of Gonzales
977 So. 2d 87 (Louisiana Court of Appeal, 2007)
Holliday v. Holliday
795 So. 2d 423 (Louisiana Court of Appeal, 2001)
L & a CONTRACTING v. Ram Indus. Coatings, Inc.
762 So. 2d 1223 (Louisiana Court of Appeal, 2000)
All Seasons Const. v. City of Shreveport
742 So. 2d 626 (Louisiana Court of Appeal, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
673 So. 2d 636, 95 La.App. 1 Cir. 1979, 1996 La. App. LEXIS 994, 1996 WL 242959, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diamond-b-const-co-v-city-of-plaquemine-lactapp-1996.