Heritage International Decorating Services, Inc. v. T.J. Ward General Contractor, Inc.

646 So. 2d 1205, 94 La.App. 5 Cir. 517, 1994 La. App. LEXIS 3231, 1994 WL 665785
CourtLouisiana Court of Appeal
DecidedNovember 29, 1994
DocketNo. 94-CA-517
StatusPublished
Cited by2 cases

This text of 646 So. 2d 1205 (Heritage International Decorating Services, Inc. v. T.J. Ward General Contractor, 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
Heritage International Decorating Services, Inc. v. T.J. Ward General Contractor, Inc., 646 So. 2d 1205, 94 La.App. 5 Cir. 517, 1994 La. App. LEXIS 3231, 1994 WL 665785 (La. Ct. App. 1994).

Opinion

hDUFRESNE, Judge.

This suit was brought against T.J. Ward General Contractor, Inc., the contractor for a new school building, by Heritage International Decorating Services, Inc., a painting subcontractor, for some $21,500.00, which it claimed was still owing for work done at the school. After trial on the merits, the trial judge awarded Heritage the retainage of $6,593.70, with legal interest from date of demand. He rejected its claim for the remaining $14,963.72, however, on the grounds that this charge was actually for the repainting of damaged areas and final toueh'-up at the end of the project, all of which work was included in the original bid price. Ward has now appealed the award of the retainage and particularly the additional award of legal interest from date of demand. Heritage has appealed the dismissal of its demand of $14,-963.72, which it contends was for work beyond |2that contemplated in its bid. For the following reasons, we amend the judgment to provide that judicial interest on the retainage proper should commence on the date Ward was paid the total retainage for the project by the owner. In all other respects the judgment is affirmed.

In January of 1988, Ward contracted with the Orleans Parish School Board to be the general contractor for construction of the new Benjamin Franklin High School on Leon C. Simon Boulevard in New Orleans. The following month, Ward sub-contracted all of the painting work on the job to Heritage for a total bid price of $125,469.00. During the course of the project, certain extra work authorizations and change orders increased the bid price to $134,412.70, and Heritage was promptly paid $128,608.91, of this amount. The remaining $5,803.79, as well as an additional adjustment of $790.00, or a total of $6,593.79, was retained by Ward pending acceptance of the project by the owner and release or satisfaction of any liens relating to Heritage which may have been filed against the project.

Heritage disputed the total price for its job, and claimed that an additional $15,-753.72, had been approved at the end of the project by a Ward representative as per a document identified as Extra Work Authorization Number Three (EWA #3). There was no evidence to establish who actually drew up the document, but it was signed on May 4,1990, by John Silbernagle, the project manager for Ward. The ^document consists of a list of items which make reference to work which Heritage had to re-do or touch-up because its original work had been damaged by workers from other trades. Included with each item is a “backcharge” indicating which other contractors were allegedly responsible for the damage. The document also purports to show that Silbernagle approved an increase in the overall sub-contract price by the $15,753.72, figure sued upon.

At trial of the matter, the parties stipulated to introduction of the contract, subcontract, painting specifications, various change orders, and the EWA #3 described above. Only two witnesses appeared: T.J. Ward, president and owner of Ward, and Ernest Swibel, Ward’s project superintendent for this job. Both men were asked to explain what “extra work authorizations” actually were, and how they were generated. Both gave the same basic explanation about these documents, which is as follows. On occasion during the course of any construction project situations arise where work has to be re-done because of damage done to completed work by other sub-contractors, or where work becomes more difficult because of altered conditions brought about by the order in which other sub-contractors have done their work. Generally in such situations, the sub-contractors involved agree to some shifting of the costs of these changes by way of an “extra work authorization.” These documents typically show the work involved, an additional credit in favor of the sub-contractor having to |4re-do old work or do extra work, and a “backcharge” or debit to the account of the sub-contractor responsible for the problem. Where the parties involved agree to the changes, the contractor [1207]*1207makes the appropriate adjustments to their various accounts.

Mr. Swibel further testified that as a rule any proposed “backcharges” submitted to Ward would be sent out for approval to the sub-contractor whose account was to be debited. If that approval was not forthcoming, then the “backcharge” would not be made. He stated that when the EWA #3, at issue • here, was presented to the other listed subcontractors, they refused to accept these “backcharges” because they did not feel responsible for any of the extra work. He further testified that the work referred to in EWA #3 was actually for normal repair and touch up work which any painter should expect at the end of any job and should take into account when submitting a bid. Mr. Ward similarly testified that because of the disagreement about the “backcharges” the matter eventually reached his desk. He further said that his discussions with the other sub-contractors and review of their various sub-contracts, including the one with Heritage, convinced him that neither they nor Ward were liable to Heritage for the alleged extra work. He therefore refused to adjust the accounts of these sub-contractors in favor of Heritage for the disputed amount. It was agreed at trial, however, that a few of the sub-contractors had decided to accept their “backcharges” as per |SEWA #3 in the aggregate amount of $790.00, and that these funds had also been withheld by Ward in addition to the retainage of $5,803.79. Thus, of the $15,753.72 figure claimed as to EWA #3, only $14,963.72 remained in dispute at the time of trial.

The Heritage painting sub-contract incorporated by reference Section 09900 (the painting specifications) of the general contract for the school. In regard to the obligations of the painter, that section pertinently provided:

At completion of work of other trades, touch up and restore all damaged or defaced surfaces.

After hearing the above testimony, particularly that of Mr. Swibel, and reviewing the contract provisions, the trial judge determined that the work referenced in EWA #3 was indeed remedial in nature as per the above contract clause, and thus was included in the original bid price. He further stated that because the work was a part of the original bid, there was no additional consideration in favor of Ward which would support an award to Heritage of additional payment. In other words, he found as a matter of fact that Heritage had already been paid for the work, and was in effect seeking to be paid twice for the same work. He therefore ruled in favor of Ward as to the $14,963.72 remaining on the EWA #3 claim.

As to the retainage, there was no dispute at trial as to the amount being withheld under the provisions Paragraph 12 of the original sub-contract. That paragraph provided that the retainage |6would be paid upon 1) satisfactory completion of the work, 2) acceptance of the work by the school board, 3) payment of the retainage to the contractor by the school board, and 4) provided that the sub-contractor furnished a release to the contractor and school board of all claims and liens relating to its work. In his reasons for judgment, the trial judge simply stated that he “finds that [$6,593.79] is presently due and owing.” He thus entered judgment for this amount, with legal interest from date of judicial demand, in favor of Heritage. Both parties now appeal.

As to Heritage’s claim for the $14,-963.72, it urges two grounds upon which the dismissal of this claim should be reversed. It first asserts that the trial judge erred early in the proceedings in denying its motion for summary judgment.

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Bluebook (online)
646 So. 2d 1205, 94 La.App. 5 Cir. 517, 1994 La. App. LEXIS 3231, 1994 WL 665785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heritage-international-decorating-services-inc-v-tj-ward-general-lactapp-1994.