Jb Talley & Co. v. Vilaret Const.

722 So. 2d 9, 1998 WL 690676
CourtLouisiana Court of Appeal
DecidedOctober 7, 1998
Docket98-395
StatusPublished
Cited by4 cases

This text of 722 So. 2d 9 (Jb Talley & Co. v. Vilaret Const.) 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
Jb Talley & Co. v. Vilaret Const., 722 So. 2d 9, 1998 WL 690676 (La. Ct. App. 1998).

Opinion

722 So.2d 9 (1998)

J.B. TALLEY & CO., INC., Plaintiff-Appellee,
v.
VILARET CONSTRUCTION SERVICES INC. and International Fidelity Insurance Company, Defendant-Appellant.

No. 98-395.

Court of Appeal of Louisiana, Third Circuit.

October 7, 1998.
Rehearing Denied January 7, 1999.

*10 Paul Joseph McMahon, III, Esq., Lafayette, for J.B. Talley and Co., Inc.

Lindsey James Leavoy, Esq., Baton Rouge, for Vilaret Const. Services, Inc., et al.

Herman C. Hoffmann, Jr., Esq., New Orleans, for Intern. Fidelity Ins. Co.

Robert W. Fenet, Baton rouge, for The Fidelity & Deposit Co. of Maryland.

Before DOUCET, C.J., and GREMILLION and PICKETT, JJ.

DOUCET, Chief Judge.

This appeal arises out of the dismissal of a subcontractor by the general contractor on a state highway construction project.

In late 1994 or early 1995, Vilaret Construction Services, Inc. (Vilaret) was awarded a state highway construction contract on State Project No. 390-02-0008-FAP, Project No. 3RS-256-2(004) Junction La. 1097— Junction La. 98 Bridge. Vilaret subcontracted with J.B. Talley and Co., Inc. (Talley) for performance of part of the construction.

Part of Talley's work involved replacing a bridge with concrete box culverts. Talley was to divert the existing water course and prepare a bed for the culverts. By April 19, 1995, Talley built a diversion canal and a dam. It excavated the bed and laid down a limestone base for the culverts. On April 19, 1995, heavy rain caused the dam to break and flooded the construction site. On April 21, 1995, Vilaret acting through its president, Jos Gonzales, sent Talley a letter terminating their subcontract. Vilaret then completed the work subcontracted to Talley.

Talley filed this suit alleging wrongful termination and seeking to recover its actual expenses on the job and the profit it would have made had it finished the job. Made defendants were Vilaret and International Fidelity Insurance Company, who issued a contract retainage bond insuring payment to those furnishing labor and/or materials to the project. Vilaret filed a reconventional demand to recover the difference between the amount bid for the subcontract and the amount it had to spend to complete the work. Named defendants in reconvention were Talley and Fidelity & Deposit Company of Maryland, Inc., who issued a bond insuring Talley's performance of its subcontract. The court rendered judgment dismissing Talley's claims on the main demand and dismissing Vilaret's claims on the reconventional demand. Vilaret appeals. Talley has answered the appeal.

TALLEY'S CLAIM

Talley contends that the trial court erred in denying its claims for improper termination and for sums due and owed under *11 the subcontract. Talley argues that the breach of the dam was not sufficient cause for its dismissal. The question of whether Talley's performance was so defective as to allow its dismissal is one of fact. Therefore, we must review the trial court's determination using a manifest error standard of review. The trial court outlined the reasons for its determination in this regard as follows:

First, the Court finds J.B. Talley and Co., Inc. did breach its obligation to complete the work in a workmanlike manner. There is ample evidence that the problems with the diversion canal were directly related to poor construction. Furthermore, after numerous warnings from DOTD and Vilaret representatives, no remedial action was attempted other than to repair the breaches. The job was behind schedule. By Talley's own admission, its job foreman, a Mr. Leger, was not properly performing his job. The Court notes that delay damages were not assessed by DOTD; however, the "Silver Book" does provide for it.

After reviewing the evidence elicited at trial, we conclude that it is susceptible of more than one interpretation. The testimony of record reflects the following facts: William J. Oliver, a project engineer with the State of Louisiana, Department of Transportation and Development (DOTD) testified concerning the Mire project. He stated that he handles contract management of construction projects in Acadia Parish. DOTD inspectors who oversee the work on various projects report to him. On the Mire project, the DOTD inspectors were Doucet and Richard. Their job was to oversee the work on the project, make sure that everything was done according to the plans and specifications, record when work was completed, keep a tally of quantities and report to Oliver orally and in writing. Oliver recalled that Vilaret was the first company on the site. Vilaret removed a bridge and cleared some brush. Talley moved onto the site on approximately April 7, 1995. He stated that the work for Talley included diverting the existing water course by damming both sides of the channel, building a diversion canal, excavating the existing channel and using an excavator to place bedding material for the box culverts which were to come later. He testified that the DOTD has no specification for the construction of such temporary dams or diversion canals and that the method of construction is left to the discretion of the contractor doing the actual work. Oliver further stated that there were many problems with the diversion including seeping and breakage—he stated that the dam broke on three occasions, including the April 19 incident. The project was behind schedule. Doucet and Richard reported to him that the dams were not constructed according to normal standards. They further reported that, although warned, Talley failed to bring the dam up to normal standard because Talley's project manager, Lawrence Leger, thought the construction was adequate. Oliver testified that he received the impression that the inspectors felt that it was not adequate. Oliver stated that on April 19,1995, he received a call from Richard. Richard reported that the filter cloth under the bedding material was torn and that there had been no attempt to repair it. According to Oliver, the DOTD requires repair of a torn filter cloth. Talley's refusal to repair it would constitute an infraction requiring action from him or his inspectors. However, the dam broke before they could take action concerning the filter cloth. Oliver testified that he was on the phone with Jos Gonzales when the word came in that the dam had broken. That afternoon Oliver heard from Ray Franks, superintendent on the project for Talley. A meeting was held the next day to discuss the problem. Present were Oliver, Doucet, Richard, Jack Gremillion and Kevin Fontenot from Talley, and Franks, Bernie Young and another person from Vilaret. Oliver testified that Talley's representatives agreed that the dam was their problem and agreed to correct the problem. Oliver testified that Franks stated at the meeting that Talley would develop a plan to correct the problem, get back to him and go on with the project. Later that day, Oliver was informed that Talley had removed Lawrence Leger from the project. On Friday, April 21, 1995, Oliver received a call from Gonzales, who felt something should be done to get the project moving forward. Talley had not contacted Gonzales regarding *12 the dam breaking and this concerned him. In testimony, Oliver opined that failing to contact the general contractor for that long a period after a situation this serious is not normal for a subcontractor. Oliver reported that Gonzales called him again later that day and stated that he would give Talley until Monday to go on with the project and, if Talley did nothing by Monday, Vilaret would assume Talley's responsibilities and do the work.

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Bluebook (online)
722 So. 2d 9, 1998 WL 690676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jb-talley-co-v-vilaret-const-lactapp-1998.