MJ Womack, Inc. v. State House of Rep.

509 So. 2d 62
CourtLouisiana Court of Appeal
DecidedMay 27, 1987
Docket86 CA 0405
StatusPublished
Cited by26 cases

This text of 509 So. 2d 62 (MJ Womack, Inc. v. State House of Rep.) 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
MJ Womack, Inc. v. State House of Rep., 509 So. 2d 62 (La. Ct. App. 1987).

Opinion

509 So.2d 62 (1987)

MILTON J. WOMACK, INC.
v.
The HOUSE OF REPRESENTATIVES OF the STATE of Louisiana, et al.

No. 86 CA 0405.

Court of Appeal of Louisiana, First Circuit.

May 27, 1987.
Rehearing Denied July 14, 1987.

*63 Russell L. Dornier, Baton Rouge, for plaintiff-appellant Milton J. Womack, Inc.

Bert K. Robinson, Baton Rouge, for defendant-appellee The House of Representatives of the State of La.

Paul H. Spaht, Baton Rouge, for defendant-appellee Charles E. Schwing & Associates, Inc.

Before LOTTINGER, SHORTESS and CARTER, JJ.

SHORTESS, Judge.

This is a suit by Milton J. Womack, Inc., (plaintiff) against defendants the House of Representatives of the State of Louisiana (House) and Charles E. Schwing and Associates, Inc. (Schwing). Plaintiff, a general contractor, entered into an agreement with the House to renovate portions of the State Capitol building according to plans prepared by Schwing, an architectural firm. That agreement provided that plaintiff would receive a bonus for early completion. Plaintiff brought suit contending that defendants were responsible for delays which prevented it from finishing in time to earn the bonus. The trial court rejected plaintiff's demands against both defendants, and plaintiff has perfected this appeal.

Desiring to modernize some of its facilities, the House had Schwing draw up plans for the renovation of portions of the basement and subbasement of the State Capitol building.[1] The House selected plaintiff as the general contractor, agreeing to pay it $2,314,000.00 for the project. The contract between plaintiff and the House contained the following clause:

Early Completion Incentive Payment/Liquidated Damages: Because timely completion of the work is of the essence of this agreement, the following conditions are a part of this contract:
All work is to be completed by March 15, 1982. For each calendar day before March 15, 1982, that the work is complete, the Owner agrees to pay the Contractor an early completion incentive payment of $5,000.00 per day, not to exceed $100,000.00. If the contract time for the portion of the work is extended for any reason, the date for determining the early completion incentive payment will not be changed from March 15, 1982.

The House gave plaintiff permission to begin the project on July 20, 1981. The plans called for removal of an interior wall in the basement, and, as plaintiff's workers began to demolish it on or about August 8, 1981, they discovered a metal X-brace within. The brace had not appeared on any of Schwing's drawings or in its specifications. Plaintiff notified Schwing of its discovery, and Schwing concluded that the X-brace was a part of the Capitol's wind-bracing system and that it should not be removed. The X-brace was situated in an area that *64 was, in the renovation plan, designed to be an open area. Thus, defendants were called on to rethink their plans in the area of the brace.

Schwing began the redesign and submitted several options to John J. Hainkel, Jr., then Speaker of the House. Hainkel circulated these among interested House members, and eventually one of these proposals was selected. Plaintiff was given the revised plans in late September 1981, and in early October, after consultation with subcontractors and suppliers, he presented a revised price to the House. On October 14, 1981, the House, through Schwing, gave its approval to proceed with the work on that portion of the project involved in the redesign. The project was accepted as substantially complete on April 15, 1982. Because plaintiff had failed to finish by March 15, 1982, the House refused to pay the early completion bonus and plaintiff brought this suit.

The trial court found that plaintiff and the House "fully understood that in no event, would there be an extension of the early completion incentive date." It noted that both parties had an interest in early completion, that unanticipated problems are typical in renovation projects, that the House did nothing unusual to delay completion, and "that plaintiff was advised more than once, that there would be no extension." Given these factors, the court concluded that plaintiff could not recover against the House under the contract.

The trial judge's analysis of the question of Schwing's liability rested on negligence principles. "The duty of an architect is to exercise the degree of skill ordinarily employed, under similar circumstances, by members of his profession in good standing and to use reasonable care and diligence, along with his best judgment, in the application of his skill." Despite its recognition that the original plans for the Capitol showing the X-brace were available in the State archives and that a similar X-brace had been discovered earlier during work on the Senate portion of the basement, the court ruled that Schwing's actions did not fall below the acceptable standard and thus that it was not negligent.

Plaintiff assigns three errors on appeal:
1. The trial court erred in limiting its review to the "early completion incentive" clause in determining the right of plaintiff-appellant to recover under the contract.
2. The trial court erred in finding that the Owner did not take any action out of the ordinary to delay completion of the job.
3. The trial court erred in finding that the Architect was not liable for preparation of the "defective plans."

Plaintiff's asserted errors allege both contract and negligence as grounds for recovery. We will begin with a consideration of the negligence argument.

LIABILITY OF SCHWING

Schwing's specifications indicated the location of all the structural elements that Schwing was aware of. Its architects' knowledge of the building's structure was derived from original framing plans found in the archives. The architects believed that the wall containing the wind brace concealed no structural elements, and their plans reflected that belief. When the wall was demolished, a large committee room was to be created, with, except for structural columns, a clear view from rear to front. Had the architects known of the X-brace, they would not have chosen this configuration, for the brace significantly blocked the view of spectators behind it. Naturally, plaintiff based its bid on the plans provided by Schwing. It is undisputed that these plans were inaccurate. The initial issue to be resolved is whether Schwing's failure to discover the existence of the X-brace is actionable negligence.

Schwing cites a series of "well-settled" rules regarding the standard by which an architect's performance is to be judged. The architect's duty is not to provide perfect plans but to exercise the degree of professional care and skill customarily employed by other architects in the same general area. Calandro Development, Inc. v. R.M. Butler Contractors, *65 Inc., 249 So.2d 254 (La.App. 1st Cir.1971). The one seeking to prove negligence must establish a deviation from the standard of care and skill by expert testimony. Charles Carter & Co., Inc. v. City of Baton Rouge, 344 So.2d 431 (La.App. 1st Cir. 1977).

We accept these propositions—as far as they go. But they must be understood in the light of Hastings v. Baton Rouge General Hospital, 498 So.2d 713 (La.1986). Hastings was a medical malpractice case in which the plaintiffs alleged, inter alia,

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509 So. 2d 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mj-womack-inc-v-state-house-of-rep-lactapp-1987.