Evangeline Parish Sch. Bd. v. ENERGY CONTR. SERVICES, INC.

617 So. 2d 1259, 1993 La. App. LEXIS 1841, 1993 WL 145340
CourtLouisiana Court of Appeal
DecidedMay 5, 1993
Docket92-969
StatusPublished
Cited by14 cases

This text of 617 So. 2d 1259 (Evangeline Parish Sch. Bd. v. ENERGY CONTR. SERVICES, INC.) 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
Evangeline Parish Sch. Bd. v. ENERGY CONTR. SERVICES, INC., 617 So. 2d 1259, 1993 La. App. LEXIS 1841, 1993 WL 145340 (La. Ct. App. 1993).

Opinion

617 So.2d 1259 (1993)

EVANGELINE PARISH SCHOOL BOARD, Plaintiff-Appellee,
v.
ENERGY CONTRACTING SERVICES, INC., Defendant-Appellant.

No. 92-969.

Court of Appeal of Louisiana, Third Circuit.

May 5, 1993.

*1260 Allen Bruce Rozas, Mamou, for Evangeline Parish School Bd.

Joseph B. Dupont, Sr., Plaquemine, Anthony Craig Dupre, Ville Platte, for Energy Contracting Services, Inc.

Before LABORDE, THIBODEAUX and SAUNDERS, JJ.

SAUNDERS, Judge.

In this contract dispute, defendant, Energy Contracting Services, Inc., appeals from the trial court's award of $127,432.00 to plaintiff, Evangeline Parish School Board, and the trial court's finding that the contract between plaintiff and defendant was invalid. We amend and remand.

FACTS

Plaintiff, Evangeline Parish School Board (Board), entered into a contract with defendant, Energy Contracting Services, Inc. (ECS), on November 12, 1985. After inspection and approval with slight modifications by the Board and its attorney, the contract was validly executed by the Superintendent at that time, Sidney Ortego, under the authority of a Board passed resolution. The contract, entitled "Governmental Shared Savings Program, Management Service Agreement," provided for consultation services with respect to the conservation of energy and the reduction of the Board's expenditures for energy consumption and energy expenses. The term consisted of an installation period not to exceed six (6) months, and a billing period of thirty-six (36) months.

The contract provided that ECS would inspect the schools within the Board's school district and determine energy saving techniques. If required, ECS would furnish and install equipment relative to the conservation of energy or simply modify the existing equipment.

In order to determine energy use and savings, the contract set forth the basis for its calculation as follows:

X.
BASIS FOR CALCULATION OF ENERGY SAVINGS. The energy use and/or consumption of the properties described on Exhibit "A" hereof, shall be determined and calculated on a monthly basis for the previous twelve (12) month period immediately prior to the effective date of this Agreement, and as a monthly average for the past two (2) years, utilizing acceptable standards for energy use determination. The higher of the two (2) total energy use figures shall be known as the "Base Monthly Energy Use Figure". These base energy use figures are set forth in an addendum to this Agreement marked Exhibit "B".
Energy use savings shall be calculated on a monthly basis by comparing the current energy use statement with the base monthly energy use figure applicable for the time period reported. In all cases, for the lifetime of this Agreement, actual savings realized mean the difference in fuel cost and KWH consumption and demand as recorded by the public utility serving the owner for any current period under this Agreement compared with the like period in the base year multiplied by the rates applicable to the current period.

*1261 Attached to and made part of the contract, as Exhibit "B", were the base monthly use figures for each school. The exhibit was signed by Max Hamlin, the Assistant Superintendent, on January 30, 1986.

For two and one-half (2½) years ECS billed the Board and the Board paid without objection. Then, in August of 1987, the Board, under the authority of its new Superintendent, Larry Broussard, refused to continue to honor the contract. Broussard testified at trial, to-wit:

ON DIRECT EXAMINATION BY PLAINTIFF'S ATTORNEY
Q. You were superintendant when ya'll quit paying. We already have that in the record, that August the 14th ...
A. That is correct.
Q. Why did the school board stop paying?
A. Well, as I—I think over a period of three or four months, whatever, as I got these bills, and I saw what it was costing the board, then I became concerned about that and at that point in time I talked to our accountant to see what we had been paying and then determined that the best thing to do was take a serious look at that before we continued paying.
Q. Okay. And you came to a decision that to simply quit paying.
A. That is correct.
Q. And eventual litigation. That's where we are today.
ON CROSS-EXAMINATION BY DEFENDANT'S ATTORNEY
Q. You became superintendant in July of '86. Is that correct, sir?
A. That's correct.
Q. For approximately 13 months while you were superintendant you did pay the contract.
A. I would say yes.
Q. Okay. And I believe you testified that you quit paying the contract after you had discussed something with the accountant. Is that correct, sir?
A. No, I think what I did is I discussed—I guess. That's probably correct, because I think what happened is as I kept getting these bills I became increasingly concerned about em, so I'm sure I discussed it with Albert at that point in time.
Q. Yes, sir. And you just thought the bills weren't fair.
A. That is true.
Q. Okay. Why did you think the bills weren't fair?
A. Well, basically, my understanding of the original agreement was that it was to save us money, and I couldn't determine how paying these fees to your company was saving us money, quite frankly.
Q. Okay.

ECS sent notices to the Board regarding its failure to comply with the terms of the contract. On February 9, 1988, the Board filed suit to cancel the contract alleging the following:

That defendants violated the contract in the following nonexclusive particulars:
A. In billing for alleged services prior to the effective date of the contract.
B. In failing to furnish a detailed list of proposed and installed modifications.
C. In failing to furnish the calculations for the base figures and in miscalculating same.
D. In calculating usages on a "per meter basis" versus a "total system basis".
E. In miscalculating the total energy use figures.
F. In using inconsistent billing days.
G. In switching between base month calculation methods.
H. In committing numerous math and energy consumption calculation inaccuracies.
I. In failing to credit for higher energy use.
J. In failing to install or failing to maintain or using inadequate or ineffective energy savings equipment *1262 all in violation of accepted industry standards, the provisions of the contract, and applicable Louisiana law.

ECS reconvened, praying for the past due amounts of $100,942.87 and for specific performance for the duration of the term. ECS further prayed for penalties, interest, and attorney's fees.

Trial was held on April 27 and 28, 1992. The trial judge granted judgment in favor of the Board and against ECS in the amount of $127,432.00, plus interest and costs. Our calculations indicate that the trial court refunded all of the monies the Board paid to ECS. The trial judge dismissed the reconventional demand against the Board.

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Bluebook (online)
617 So. 2d 1259, 1993 La. App. LEXIS 1841, 1993 WL 145340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evangeline-parish-sch-bd-v-energy-contr-services-inc-lactapp-1993.