377 So.3d 304
La. Ct. App.2023Background
- Contract (Dec. 19, 2012) between Clark Homes (owner) and Boone Services (contractor) for Twin Lakes Estates; dispute concerns Phase 1 work (pond excavation, grading, seed/fertilize, progress payments).
- Boone sued (filed 2020) seeking roughly $169,485 for work performed; Clark Homes asserted an affirmative defense/offset of liquidated damages ($300/day) for delay.
- At bench trial the court awarded Boone $21,005.84 but found Clark Homes entitled to $90,000 in liquidated-damage offset; Boone appealed.
- Key factual disputes: contract start/end dates, number of delay days, engineer (Ferris) determinations on weather days and extra pond quantities, whether a unit-price change was agreed, and unpaid line items (seed & fertilize) and late-payment interest.
- On appeal the court (1) corrected plaintiff’s corporate name to Boone Services, LLC; (2) upheld most factual findings but enforced Ferris’s binding weather-delay determination (212 days), reducing the liquidated-damage award to $26,400 (88 excess days); (3) awarded Boone $3,486 for seed/fertilize plus contractual interest and $2,601.13 interest for late payments on certain pay requests; and (4) awarded legal interest on the $21,005.84 award from July 17, 2014.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Admissibility of Clark Homes' evidence on liquidated damages | Boone: evidence of delay damages was never pled; admission prejudiced Boone | Clark: affirmative defense of compensation was pleaded and properly litigated | Court: admission not an abuse of discretion; defense was pled and testimony was cumulative so no prejudice |
| 2) Waiver of liquidated-damage right by final payment | Boone: Clark Homes made a final payment (Aug. 2014) and waived claims per contract Article 90 | Clark: payment was not final; disputes remained and memo indicated "to date balance" | Court: no waiver — payment was not final; factual finding not manifestly erroneous |
| 3) Weather-delay days and engineer's determinations | Boone: entitled to extensive weather days (requested 255) and trial court should credit Ferris | Clark: Ferris recommendations not binding for all matters | Held: contract made Ferris’s weather-delay decision binding; Ferris found 212 weather days → reduce penalty days by 212 (appellate court grants 212 days) |
| 4) Contract start/end dates affecting liquidated damages | Boone: work substantially complete Nov. 8, 2013; earlier completion reduces penalties | Clark: contract requires "complete" not "substantially complete;" Ferris dates control | Court: credited Ferris dates (Dec. 19, 2012–Apr. 14, 2014); manifestly reasonable; totals 480 days → after Ferris days result is 88 excess days |
| 5) Change in unit price for extra pond excavation | Boone: parties agreed (by email/assent) to $3.32/cu yd for deeper ponds | Clark: no meeting of the minds; original unit price still applies | Court: trial court credited Clark; no manifest error — no enforceable agreement to change unit price |
| 6) Quantity of extra dirt removed from ponds | Boone: Ferris computed extra 49,624 cu yd; Boone seeks payment on that basis | Clark: actual excess much smaller; proffered survey shows less | Court: trial court credited surveyor (St. Romaine) over Ferris’ estimate and found only 7,838 cu yd excess; no manifest error |
| 7) Extra contract days for pond work | Boone: should receive 50 days for additional excavation | Clark: no agreement to extend time | Court: Ferris’s informal recommendation was not binding; Boone produced no proof actual extra days were needed — no additional days awarded |
| 8) Seed & fertilize line item and late-payment interest | Boone: entitled to $3,486 for seed/fertilize plus 12% interest and contractual interest on late payments for certain pay requests | Clark: disputed who performed seeding; challenged timing/approval for interest | Court: reversed trial court on seed/fertilize — awarded $3,486 + 12% from March 6, 2014; awarded $2,601.13 contractual interest for late payments on requests 1–6; denied interest for requests 7, 10, 11, 12; awarded legal interest on $21,005.84 from July 17, 2014 |
Key Cases Cited
- Fagan v. LeBlanc, 928 So.2d 576 (La. App. 1st Cir.) (appellate correction of trial-court judgment party identification)
- Lonesome Development, LLC v. Town of Abita Springs, 343 So.3d 831 (La. App. 1st Cir.) (de novo review of contract interpretation)
- Wright v. Bennett, 924 So.2d 178 (La. App. 1st Cir.) (prejudice standard for erroneous evidentiary rulings)
- Unisys Corp. v. La. Office of Motor Vehicles, 270 So.3d 637 (La. App. 1st Cir.) (silence in judgment construed as denial; interest mandatory if claimed)
- Stobart v. State through Dept. of Transp. & Dev., 617 So.2d 880 (La.) (manifest-error standard; deference to factfinder credibility choices)
- Adams v. Rhodia, Inc., 983 So.2d 798 (La.) (evaluating conflicting expert testimony)
- Clovelly Oil Co., LLC v. Midstates Petroleum Co., LLC, 112 So.3d 187 (La.) (common-sense contract interpretation)
- Cajun Constructors, Inc. v. Fleming Construction Co., 951 So.2d 208 (La. App. 1st Cir.) (modification by conduct/silence; burden to prove modification)