Pierce Foundations, Inc. v. Jaroy Construction, Inc.

169 So. 3d 580, 14 La.App. 5 Cir. 669, 2015 La. App. LEXIS 557, 2015 WL 1393224
CourtLouisiana Court of Appeal
DecidedMarch 25, 2015
DocketNo. 14-CA-669
StatusPublished
Cited by4 cases

This text of 169 So. 3d 580 (Pierce Foundations, Inc. v. Jaroy Construction, 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
Pierce Foundations, Inc. v. Jaroy Construction, Inc., 169 So. 3d 580, 14 La.App. 5 Cir. 669, 2015 La. App. LEXIS 557, 2015 WL 1393224 (La. Ct. App. 2015).

Opinion

SUSAN M. CHEHARDY, Chief Judge.

| ¡.This appeal stems from a suit by the subcontractor, Pierce Foundations, Inc. (“Pierce”), against the general contrac[582]*582tor, JaRoy Construction, Inc. (“JaRoy”), and its statutory bond surety, Ohio Casualty Insurance Co. (“Ohio Casualty”) for monies owed under the subcontract. Appellant/second appellee, Ohio Casualty, appeals from a judgment of liability to appellee/second appellant, Pierce, for mo--nies under the subcontract. Pierce appeals seeking modification of the date on which interest began to accrue on the judgment. For the reasons that follow, we reverse the judgment of the trial court and render judgment in favor of Ohio Casualty.

FACTS AND PROCEDURAL HISTORY

In the spring of 2008, Jefferson Parish contracted with JaRoy to construct a public works project, the gymnasium at Terry-town Playground in Terrytown, Louisiana, for the amount of $4,685,307.00. JaRoy furnished to Jefferson Parish the performance and payment bonds required by La. R.S. 38:2241(B). Ohio Casualty was the surety on the bonds.

On June 3, 2008, JaRoy entered into a written subcontract with Pierce to provide and install pilings for the construction of the gymnasium. This contract | aspecifically provided that Pierce would “furnish all labor, materials, installation and equipment per plans, specifications and addendums for all piles and driving of piles.” The contract called for Pierce to drive 615 foundation piles at a cost of $359,987.00 and 6 test piles at a cost of $11,500.00, for a total cost of $371,487.00.

Pierce drove the test piles bn July 30, 2008 and commenced driving the foundation piles on or about August 28, 2008. On November 3, 2008, Pierce completed driving all 621 pilings as called for in the contract. .

Pierce remained unpaid, and on July 23, 2009, filed suit against JaRoy seeking to recover $116,716.96, plus interest, attorney fees, and costs. On July 22, 2010, Pierce amended its petition to add Ohio Casualty as a defendant, alleging that, as the surety of JaRoy under a construction bond, it guaranteed the performance of JaRoy under the contract and therefore was jointly and severally liable.

On December 17, 2010, JaRoy filed a petition for bankruptcy protection in the United States Bankruptcy Court for the Eastern District of Louisiana. Following total completion of the project, Jefferson Parish filed a notice of acceptance of the work in the clerk of court’s office on October 17, 2011.

The matter proceeded to a two-day bench trial on November 13 and 14, 2012. On December 13, 2012, the trial court rendered judgment in favor of Pierce against Ohio Casualty in the amounts of $59,428.96 for monies owed under the contract and $57,000.00 for idle time, plus judicial interest from November 14, 2012 until paid.

Following several motions for new trial, amended judgments, and a premature appeal that this Court dismissed and remanded for lack of jurisdiction,1 the trial court, on remand on May 19, 2014, with all its previous judgments 14vacated, rendered judgment in favor of Pierce against Ohio Casualty in the amounts of $59,428.96 for payment under the contract and $57,000.00 for idle time, plus judicial interest from the date of the original judgment, December 13, 2012, until paid.

On June 26, 2014, the trial court granted Ohio Casualty a suspensive appeal from the court’s May 19, 2014 judgment; and, [583]*583on July 17, 2014, the court granted Pierce a devolutive appeal.

ISSUES ON APPEAL

On appeal, Ohio Casualty raises two assignments of error: (1) the trial court erred in denying Ohio Casualty’s motion for summary judgment; and (2) the trial court erred in awarding damages for delay and contract damages and/or unjust enrichment to Pierce. Pierce argues that the trial court erred by awarding interest from the date of judgment.

DISCUSSION

In Ohio Casualty’s first assignment of error, Ohio Casualty argues that Pierce’s failure to comply with certain provisions of the Louisiana Public Works Act, La. R.S. 38:2241, et seq., was fatal to Pierce’s right of action against Ohio Casualty and that the trial court erred in denying its motion for summary judgment.

In Ohio Casualty’s motion for summary judgment filed on September 7, 2012, Ohio Casualty argued that Pierce’s failure to comply with the notice and recordation requirements of La. R.S. 38:2242(B) was fatal to Pierce’s right of action against Ohio Casualty. After a hearing on October 4, 2012, the trial court rendered judgment on October 11, 2012, granting the motion in part, finding there was no privilege in favor of Pierce and permitting the suit to proceed “as to all other claims and causes of action asserted by Pierce.” Ohio Casualty sought supervisory review with this Court. On November 9, 2012, this Court denied | ¡¿relief, declining to exercise our supervisory jurisdiction on the showing made. See Pierce Founds, v. JaRoy Constr., Inc., 12-859 (La.App. 5 Cir. 11/9/12) (unpublished writ disposition).

On appeal, Pierce argues that this Court is precluded from considering Ohio Casualty’s first assignment of error pursuant to the law of the case doctrine since this Court previously considered this issue in Ohio Casualty’s writ application. In declining to exercise our supervisory jurisdiction on Ohio Casualty’s writ application, this Court did not address the issue on its merits. Therefore, we decline to apply the law of the case and will consider Ohio Casualty’s argument here on appeal. See Eastin v. Entergy Corp., 07-212 (La.App. 5 Cir. 10/16/07), 971 So.2d 374, 379, writ denied, 07-2214 (La.1/11/08), 972 So.2d 1167.

Public contract law provides that when the representative of a governing authority enters into a contract for construction of a public work, a bond must be provided. Wilkin v. Dev. Con Builders, Inc., 561 So.2d 66, 71 (La.1990). Indeed, La. R.S. 38:2241(B) mandates that whenever a public entity enters into a contract in excess of $25,000.00 for the construction, alteration, or repair of any public works,

... the public entity shall require of the contractor a bond with good, solvent, and sufficient surety in a sum of not less than fifty percent of the contract price for the payment by the contractor or subcontractor to claimants as defined in R.S. 38:2242. The bond furnished shall be a statutory bond and no modification, omissions, additions in or to the terms of the contract, in the plans or specifications, or in the manner and mode of payment shall in any manner diminish, enlarge, or otherwise modify the obligations of the bond. The bond shall be executed by the contractor with surety or sureties approved by the public entity and shall be recorded with the contract in the office of the recorder of mortgages in the parish where the work is to be done not later than thirty days after the work has begun.

The instant case concerns La. R.S. 38:2242(B) and La. R.S. 38:2247.

La. R.S. 38:2242(B) provides:

[584]*584|fiAny claimant2

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169 So. 3d 580, 14 La.App. 5 Cir. 669, 2015 La. App. LEXIS 557, 2015 WL 1393224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pierce-foundations-inc-v-jaroy-construction-inc-lactapp-2015.