Falco Lime, Inc. v. PLAQUEMINE CONTRACTING CO.

672 So. 2d 356, 1996 WL 155315
CourtLouisiana Court of Appeal
DecidedApril 4, 1996
Docket95 CA 1784
StatusPublished
Cited by17 cases

This text of 672 So. 2d 356 (Falco Lime, Inc. v. PLAQUEMINE CONTRACTING CO.) 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
Falco Lime, Inc. v. PLAQUEMINE CONTRACTING CO., 672 So. 2d 356, 1996 WL 155315 (La. Ct. App. 1996).

Opinion

672 So.2d 356 (1996)

FALCO LIME, INC. and Live Oak Landscapes
v.
PLAQUEMINE CONTRACTING CO., INC. and the Travelers Indemnity Company.

No. 95 CA 1784.

Court of Appeal of Louisiana, First Circuit.

April 4, 1996.

*357 Gregory E. Bodin, Baton Rouge, for Plaintiff/Appellant, Live Oak Landscapes.

G. Allen Walsh, Emmett E. Batson, Baton Rouge, for Defendants/Appellees, Plaquemine Contracting Company, Inc. and The Travelers Indemnity Company.

Before CARTER, PITCHER and CRAIN,[1] JJ.

CARTER, Judge.

This is an appeal from a trial court judgment, sustaining a peremptory exception pleading the objection of no right of action.

BACKGROUND

Prior to October 24, 1986, Plaquemine Contracting Company, Inc. (Plaquemine) entered into a contract with the Army Corps of Engineers of Fort Polk, Louisiana, to perform certain work in the erection of a storage building.

On October 24, 1986, Plaquemine entered into a sub-contract with Live Oak Landscapes (Live Oak), in which Live Oak agreed to furnish certain materials and perform labor for Plaquemine in association with the Fort Polk project. The sub-contract between Plaquemine and Live Oak was secured by a performance bond issued to Plaquemine by the Travelers Indemnity Company (Travelers).

On May 31, 1988, Live Oak entered into a sub-contract with Falco Lime, Inc. (Falco). Under the terms and conditions of the sub-contract, Falco agreed to furnish 1,500 tons of hydrated lime to the Fort Polk project site.

On November 1, 1988, Falco filed a complaint in the Circuit Court of Warren County, Mississippi, against Live Oak for the unpaid balance due under the contract between Live Oak and Falco. On December 7, 1988, a default judgment was entered in favor of Falco and against Live Oak. On February 3, 1989, in satisfaction of the default judgment, Live Oak and Falco entered into an "Authentic Act of Assignment," which provided that Live Oak conveyed, transferred, assigned, set over, and delivered with "full substitution and subrogation in and to all the rights and actions of warranty to the extent provided for hereinbelow which they have or may have against Plaquemine Contracting Company, Inc., ... unto Falco Lime, Inc., ... all and singular the following described property." The act described the rights so transferred as:

*358 [A]ccounts receivable and/or payments due associated with the sub-contract agreement dated the 24th day of October, 1986, between Plaquemine Contracting Company, Inc. and Live Oak Landscapes in the form of a sub-contract agreement in association with a contract which Plaquemine Contracting Company, Inc. had previously entered into with the Army Corps of Engineers of Fort Polk, Louisiana, to perform certain labor and furnish certain materials for the erection and completion of projection (sic) number DACA 63-87-C-00055CO. Amend and storage building which contain a sub-contract agreement price of approximately $69,000.00, attached hereto and made a part hereof as Exhibit 1.

The act of assignment also provided as follows:

Notwithstanding anything to the contrary herein, Live Oak Landscapes assigns under the above described contract a sum not to exceed $32,457.58 plus interest as set forth hereinabove, of any funds recovered from Plaquemine Contracting Company, Inc., or any other company or entity obligated to Live Oak Landscapes under the above referenced contract. Any funds collected over and above said amount shall be paid to Live Oak Landscapes including any and all interest and penalties which may be recovered against Plaquemine Contracting Company, Travelers Insurance Company or any other company or entity.
Falco Lime, Inc. does hereby agree to authorize and does hereby authorize its attorneys ... to disburse to Live Oak Landscapes any and all funds in excess of the amount set forth hereinabove it receives from Plaquemine Contracting Company, Inc., or any other company or entity for payment under the above contract, other than any attorney's fees that may be awarded by the court in pursuing said claim.

Subsequently, Plaquemine breached its contract with Live Oak by refusing to pay the amount due under the contract. Thereafter, Falco informed Plaquemine that Live Oak had assigned to Falco all of Live Oak's proceeds arising from the contract between Live Oak and Plaquemine. When Falco requested payment from Plaquemine, Plaquemine asserted rights of setoff for expenses which it had incurred in completing the work left unfinished by Live Oak under the terms of the contract, and Plaquemine refused to pay Falco the requested funds.

FACTS

On July 31, 1989, Falco and Live Oak filed the instant action for damages for breach of contract against Plaquemine and Travelers, requesting payment of the balance owed to Live Oak, which had been assigned to Falco, as well as interest from the date of judicial demand, reasonable attorney's fees, and costs.

On September 8, 1989, Plaquemine filed a petition for removal of the action from state to federal court, contending that the action was one arising under the Miller Act, 40 U.S.C. § 270(b), and that the federal court had jurisdiction over the action. According to the petition for removal, the claims of Falco and Live Oak relate to services and/or materials allegedly supplied to Plaquemine in connection with a federal construction project at Fort Polk, Louisiana, where Plaquemine was its Miller Act surety.

Apparently, during the pendency of the federal court action, a settlement agreement was reached between Plaquemine and the attorney representing Falco and Live Oak, whereby Plaquemine agreed to pay the amount of $28,000.00.[2] A joint motion for dismissal was signed and filed with the federal court, dismissing with prejudice Falco's claim against Plaquemine and Travelers. As a result of the dismissal, the claim of Falco against Plaquemine was resolved, and the *359 only remaining claim was that of Live Oak against Plaquemine. On June 26, 1991, the matter was remanded to state court.

On October 28, 1994, Plaquemine and Travelers filed peremptory exceptions pleading the objections of no right of action and res judicata.[3] In their objection of no right of action, Plaquemine and Travelers contended that Live Oak had assigned to Falco all of its rights under the contract with Plaquemine and that Live Oak, therefore, had no right of action against Plaquemine and Travelers. On February 23, 1995, the trial court signed a judgment, sustaining the exception pleading the objection of no right of action and dismissed, with prejudice, Live Oak's action against Plaquemine and Travelers. In written reasons for judgment, the trial court stated that, in the "Authentic Act of Assignment," Live Oak conveyed to Falco all rights of action held by Live Oak against Plaquemine which arose out of the October 24, 1986, sub-contract between Live Oak and Plaquemine. The trial court found that the assignment was not a limited assignment of rights up to $32,457.58 as argued by Live Oak. Rather, the trial court determined that the assignment provided that any amount collected by Falco from Plaquemine in excess of $32,457.58 was to be remitted to Live Oak, and if no amount was collected in excess of $32,457.58, Live Oak was due nothing.

Live Oak appealed from the trial court judgment, assigning the following specification of error:

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Cite This Page — Counsel Stack

Bluebook (online)
672 So. 2d 356, 1996 WL 155315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/falco-lime-inc-v-plaquemine-contracting-co-lactapp-1996.