Judice Industrial Blasting & Coating Co. v. SBM Environmental, Inc.

827 So. 2d 584, 2002 La. App. LEXIS 2996, 2002 WL 31207157
CourtLouisiana Court of Appeal
DecidedOctober 2, 2002
DocketNo. 02-0064
StatusPublished

This text of 827 So. 2d 584 (Judice Industrial Blasting & Coating Co. v. SBM Environmental, 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
Judice Industrial Blasting & Coating Co. v. SBM Environmental, Inc., 827 So. 2d 584, 2002 La. App. LEXIS 2996, 2002 WL 31207157 (La. Ct. App. 2002).

Opinion

h GREMILLION, Judge.

The defendant-in-reconvention, Judice Industrial Blasting & Coating Company, Inc., appeals the judgment of the trial court awarding the plaintiff-in-reconvention, SBM Environmental, Inc. (Specialties), damages and attorney’s fees for the wrongful attachment of its property pursuant to a writ of attachment. For the following reasons, we affirm in part as amended.

FACTS

In May 1999, Universal Fabricators contracted with Judice Industrial for industrial painting and sandblasting to be performed on a job for Exxon Company, U.S.A., known as the “Diana Project.” As part of the contract, Judice Industrial was to perform 34,500 square feet of thermal spray coating, with specifications of ten mils DFT of 99.5% OIT pure aluminum to 51-inch internal diameter piping. Judice Industrial, in turn, subcontracted with SBM to perform the thermal spray applications (TSA) for $125,925, which included the cost of the aluminum wire required to carry out the TSA. Prior to the commencement of work by SBM, it requested that Judice Industrial purchase 2,500 pounds of OIT Wire, 1/8, twenty-five pound 99.5% aluminum wire. An invoice from TAFA Inc., reflecting the purchase of the wire in the amount of $7.2981 per pound for a total price of $37,950, was sent to Judice Industrial by SBM. As per its request, Judice Industrial remitted payment of $37,950 to SBM’s funding company, Express Business Funding, Inc., on July 8, 1999.

Exxon specifications for the project stated that blasting during surface preparation “shall not be conducted on steel surfaces that will be wet after blasting or when the surfaces are less than 5 deg. F above dew point or when the relative ^humidity is greater than 85%.” SBM mobilized its equipment and set up at the job location on July 12 and part of July 13, 1999. On July 14th, it was unable to perform any TSA due to rain. It did perform TSA on July 15th, and part of July 16th, before being shut down at 10:45 a.m. due to rain. On Saturday, July 17, 1999, Ken Judice, Judice Industrial’s president, informed Sal Parra, SBM’s president, that the contract between them was terminated due to the fact that SBM was understaffed and had failed to meet the 10 mil requirement on the work performed up to that point. Ju-dice further informed Parra that SBM’s employees would now be working for Judi-ce Industrial. Parra was not allowed to remove SBM’s equipment from the Exxon work site.

On July 28, 1999, Judice Industrial filed a Petition for Attachment alleging that SBM had overbilled it $22,610 for the cost of the aluminum wire and was indebted to it in that amount. Since SBM had refused to remit that amount, Judice Industrial sought a writ of attachment over SBM’s equipment, which was now located at its yard. The equipment consisted of the following items: (1) Double axle trailer, 16"; [586]*586(2) 185 CFM compressor; (3) 12 pieces of aluminum scaffolding with clamps; (4) Al-lis Chalmers forklift; (5) volume tank, six foot by two foot; (6) closed trailer double axle 16"; two blast hoods; (7) tool box with miscellaneous tools; (8) TSA unit; (9) OIT wire, 1/8, 25 lb. aluminum. In addition to the petition, Judice Industrial, as principal, filed an attachment bond of $22,610 with the Iberia Parish Clerk of Court, through its surety, Dorsey Insurance Agency. In response to the writ of attachment, SBM answered and, as plaintiff-in-reconvention, sought to have the writ of attachment dissolved. It sought damages from the defendants-injreconvention,3 Judice Industrial and Dorsey Insurance, based on the illegal seizure of its equipment, to include damages for loss of use, equipment rental expenses, loss of profit, attorney’s fees, and costs. It further sought damages for Judice Industrial’s breach of contract.

On October 13, 1999, SBM filed a Motion to Release Attachments seeking to have the seized property released into its possession. Upon its furnishing of a release bond in the amount of $22,610, the trial court ordered the seized property released into its possession. Following a hearing on the motion, the trial court ordered the writ of attachment dissolved and the bond filed by SBM canceled. It further ordered that SBM’s claims for damages would be reserved and heard at a trial on the merits. Thereafter, SBM filed a first amending reconventional demand adding Western Surety Company to the suit as a defendant. Judice Industrial answered the amended reconventional demand and filed a motion for summary judgment. Western Surety filed an exception of no cause of action, no right of action and/or exception of prematurity and, in the alternative, answered both the original and amending reconventional demands.

Trial on this matter commenced on December 12, 2000. At the start of the hearing, the trial court denied Judice Industrial’s motion for summary judgment. While hearing testimony from Judice, the trial court recessed the matter in order to allow him to obtain records from his office. Trial recommenced on August 28, 2001, after which the trial court issued oral reasons finding that Judice Industrial’s seizure of SBM’s property was illegal. It further awarded SBM $15,000 for damages associated with the dissolution of the writ and $2,910 in attorney’s fees, plus judicial | ¿interest from the date of demand and costs. Judgment was rendered on October 2, 2001. This suspensive appeal by Judice Industrial and devolutive appeal by Western Surety followed. SBM answered these appeals seeking damages for breach of contract and an increase in attorney’s fees.

ISSUES

On appeal, Judice Industrial raises two assignments of error. It argues that the trial court erred in failing to award it damages of $22,610, which represent the amount it was overbilled by SBM for the cost of the aluminum wire. Judice Industrial and Western Surety further argue that the trial court erred in awarding SBM $15,000, since SBM only proved damages totaling $2,149.36.

SBM raises one assignment of error, arguing that the trial court erred in failing to award it damages as a result of Judice Industrial’s breach of contract.

STANDARD OF REVIEW

Appellate courts review the trial court’s findings of fact pursuant to the manifest error — clearly wrong standard. Stobart v. State, Through DOTD, 617 So.2d 880 (La. 1993). This standard of review is well settled and need not be reiterated here.

[587]*587JUDICE INDUSTRIAL

In its first assignment of error, Ju-dice Industrial argues that the trial court erred in failing to award it the $22,610 it was overcharged by SBM on the cost of the aluminum wire.

Judice testified that Judice Industrial entered into a contract with Universal Fabricators to perform work on the Diana Project. Included in this contract was $178,000 for TSA work to be performed by Judice Industrial. However, since | sJudice had never performed any TSA under a contract prior to this time, he testified that he reached an agreement with Parra for SBM to perform the work for $125,925. He stated that the contract provided that work on the project was to be invoiced on a percentage completion basis either weekly or bi-weekly, with terms of the net to be paid forty-five days upon receipt of an invoice.

Prior to the commencement of work, Judice testified that Parra approached him and asked if he would provide SBM funds for the purchase of wire, since this was a big ticket item. He stated that he contacted Universal Fabricators, who agreed to front him the money from their contract. Judice stated that Parra sent him a TAFA, Inc.

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Related

Stobart v. State Through DOTD
617 So. 2d 880 (Supreme Court of Louisiana, 1993)
Holliman v. Griffis
415 So. 2d 306 (Louisiana Court of Appeal, 1982)
Chapman v. Steckler
442 So. 2d 909 (Louisiana Court of Appeal, 1983)
Bice v. Southside Motors, Inc.
344 So. 2d 78 (Louisiana Court of Appeal, 1977)
Oubre v. Hinchman
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Belle v. Chase
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Burton v. Jardell
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Talley v. Bradley
177 So. 2d 624 (Louisiana Court of Appeal, 1965)

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Bluebook (online)
827 So. 2d 584, 2002 La. App. LEXIS 2996, 2002 WL 31207157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/judice-industrial-blasting-coating-co-v-sbm-environmental-inc-lactapp-2002.