Tktmj, Inc. v. the Sewerage and Water Board of New Orleans

• Court: Louisiana Court of Appeal
• Decided: January 14, 2021
• Docket: 2020-CA-0154
• Status: Published

Opinion

TKTMJ, INC. * NO. 2020-CA-0154

VERSUS * COURT OF APPEAL THE SEWERAGE AND * WATER BOARD OF NEW FOURTH CIRCUIT ORLEANS * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-11900, DIVISION “I-14” Honorable Piper D. Griffin, Judge ****** Judge Paula A. Brown ****** (Court composed of Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew- Woods, Judge Paula A. Brown)

ON APPLICATION FOR REHEARING

Daniel Lund, III Stuart Glen Richeson Carys A. Arvidson PHELPS DUNBAR, LLP 365 Canal Street, Suite 2000 New Orleans, LA 70130

COUNSEL FOR PLAINTIFF/APPELLEE

John M. Landis Nicholas J. Wehlen STONE PIGMAN WALTHER WITTMANN L.L.C. 909 Poydras Street, Suite 3150 New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLANT

APPLICATION FOR REHEARING GRANTED; ORIGINAL OPINION AFFIRMED AS CLARIFIED 01/14/2021 PAB SCJ RBW

On December 16, 2020, this Court issued an opinion in the above captioned

case along with the Notice of Judgment. TKTMJ, Inc., v. The Sewerage and Water

Board of New Orleans, 20-154 (La. App. 4 Cir. 12/16/2020). TKTMJ, Inc.

(hereinafter “TKTMJ”) filed an application for rehearing on December 30, 2020.

Pursuant to Uniform Rules–Courts of Appeal, Rule 2-18.2, we find TKTMJ’s

application for rehearing timely.

In the original opinion, this Court amended the district court’s judgment and

rendered judgment, awarding certain damages to the parties, respectively. TKTMJ

requests, in its application for rehearing, this Court to clarify the form of its

amended judgment, as rendered in the opinion. Finding merit in the application for

rehearing, we hereby grant TKTMJ’s application for rehearing solely for

clarification of this Court’s opinion.

This Court, in our original opinion, rendered the following judgment:

1. S&WB is awarded liquidated damages in the amount of $92,000.00 to be paid by TKTMJ and Travelers;

2. the total damages award to TKTMJ is reduced by:

a. $22,337.70 (which was improperly awarded to TKTMJ by the district court for installation of the overhead service at Plum Orchard Station); and

1 b. $142,406.52 (the difference between the initial award of delay damages for the injection of the dry well wall at the Dodt Station minus the delay damages TKTMJ was entitled for the delay).

3. the judgment is amended to award TKTMJ total damages in the amount of $1,555,064.02 to be paid by S&WB.

See TKTMJ, Inc., 20-154, p. 35 (footnotes omitted).

In its application for rehearing, TKTMJ argues that the amended judgment

rendered by this Court should be in accord with La. C.C. art. 1893, which provides

that “[c]ompensation takes place by operation of law when two persons owe to

each other sums of money . . . and these sums or quantities are liquidated and

presently due,” and “[i]n such a case, compensation extinguishes both obligations

to the extent of the lesser amount.” Thus, because this Court awarded a greater

sum to TKTMJ than to The Sewerage and Water Board of New Orleans

(“S&WB”), TKTMJ contends that any obligation it had to S&WB was

extinguished by operation of law.1 We agree.

Accordingly, we grant TKTMJ’s application for rehearing for the sole

purpose of clarifying the amended judgment rendered by this Court as follows:

1. S&WB is entitled to liquidated damages in the amount of $92,000.00;

a. $22,337.70 (which was improperly awarded to TKTMJ by the district court for installation of the overhead service at Plum Orchard Station),

b. $142,406.52 (the difference between the initial award of delay damages for the injection of the dry well wall

1 Counsel for TKTMJ certifies that S&WB has no opposition to this Court, clarifying the amendment to the judgment pursuant to La. C.C. art. 1893.

2 at the Dodt Station minus the delay damages TKTMJ was entitled for the delay),2 and

c. $92,000.00 (off-set for liquidated damages owed to S&WB in accordance with La. C.C. art. 1893); 3. the judgment is amended to award TKTMJ total damages in the amount of $1,463,064.02 to be paid by S&WB.3

APPLICATION FOR REHEARING GRANTED; ORIGINAL OPINION AFFIRMED AS CLARIFIED

2 The difference between the initial award of 135 delay days @ $1,249.18 ($168,639.30) and the delay TKTMJ was entitled, 21 delay days @ $1,249.18 ($26,232.78).

3 The initial total award by the district court, $1,719,808.24 - $256,744.22 (total amount of the reduction of the award) = $1,463,064.02.