Abs Servs., Inc. v. James Constr. Grp.

• Decision Date: 21 December 2018
• Docket Number: NUMBER 2016 CA 0706,NUMBER 2016 CA 0705
• Citation: 269 So.3d 723
• Parties: ABS SERVICES, INC. v. JAMES CONSTRUCTION GROUP, L.L.C. and the Continental Insurance Company Louisiana Department of Transportation & Development v. Professional Services Industries, Inc.
• Court: Court of Appeal of Louisiana — District of US

269 So.3d 723

ABS SERVICES, INC.

v.JAMES CONSTRUCTION GROUP, L.L.C. and the Continental Insurance Company

Louisiana Department of Transportation & Development

v.Professional Services Industries, Inc.

NUMBER 2016 CA 0705

NUMBER 2016 CA 0706

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: DECEMBER 21, 2018

Rehearing Denied January 4, 2019

Murphy J. Foster, III, John T. Andrishok, Jacob E. Roussel, Baton, Rouge, Louisiana, Counsel for Defendants/Appellants, James Construction Group, L.L.C., Continental, Insurance Company, ABMB Engineers, Inc., Professional Service Industries, Inc., and State of Louisiana, Department of Transportation and Development

Edward J. Walters, Jr., Baton Rouge, Louisiana, Co-Counsel for Defendants/Appellants, ABMB Engineers, Inc. and Professional Service, Industries, Inc.

Henry D. H. Olinde, Jr., Scott E. Mercer, Douglas S. Smith, Jr., Baton Rouge, Louisiana, Counsel for Plaintiff/Appellee, ABS Services, Inc.

David J. Krebs, Elliott W. Scharfenberg, New Orleans, Louisiana, Counsel for Defendant/Appellee, St. Paul Guardian Insurance Company

Kevin P. Landreneau, Johanna R. Landreneau, Baton Rouge, Louisiana, Counsel for Defendant/Appellee, Premier Concrete Products, Inc.

David C. Voss, E. Allen Graves, Jr., David W. Carley, Baton Rouge, Louisiana, Counsel for Defendant/Appellee, Big River Industries, Inc.

John M. Madison, III, Charles E. Tabor, Baton Rouge, Louisiana, Counsel for Defendant/Appellee, Keystone Retaining Wall Systems, Inc.

BEFORE: WHIPPLE, C.J., GUIDRY, PETTIGREW, McDONALD, WELCH, HIGGINBOTHAM, CRAIN, THERIOT, HOLDRIDGE, CHUTZ, AND PENZATO, JJ.

PER CURIAM.

This matter is before us on appeal by defendants, James Construction Group, L.L.C. ("JCG"), The Continental Insurance Company ("Continental"), State of Louisiana, Department of Transportation and Development ("DOTD"), ABMB Engineers, Inc. ("ABMB Engineers") and Professional Services Industries, Inc. ("PSI"), from a trial court judgment rendered following a jury trial.

While the appeal was pending, this court ex proprio motu set this matter for oral argument before an en banc panel of this court, to resolve and determine, inter alia, whether or not the award of "reasonable attorney's fees" in an otherwise final judgment renders the judgment, in whole or in part, nonappealable as uncertain or indefinite in nature. The court subsequently granted a "Motion for Limited Remand" filed by appellee, ABS Services, Inc. ("ABS"), for the sole purpose of allowing the trial court to sign an order certifying the December 1, 2015 judgment as a partial judgment that is final and appealable pursuant to LSA-C.C.P. art. 1915(B). The trial court, finding no just reason for delay, signed an order on August 23, 2018, certifying the December 1, 2015 judgment as final and appealable pursuant to LSA-C.C.P. art. 1915(B).

This court, sitting en banc, has carefully considered and reviewed the pending motions and exceptions, as well as the merits of the appeal. Due to a recusal, eleven of the twelve judges of this court have participated, and a majority of the en banc panel has voted to deny the pending motions and the exception raising the objection of no clause of action filed by JCG and Continental. Also, as will be discussed further herein, a majority concurs in finding that some of the various assignments of error raised by the appellants lack merit. While a majority concludes that the award of $477,569.00 in favor of St. Paul Guardian Insurance Company ("St. Paul-Travelers") and against JCG should be affirmed on appeal and that JCG's claims against St. Paul-Travelers and ABS, thus should be dismissed, there is no majority consensus on each of the remaining portions of the trial court's judgment. Because there is no majority consensus on the issues raised in the challenges to the remaining portions of the trial court's judgment on the merits, there is no executable majority as to those portions of the judgment. Accordingly, except as set forth below, the remainder of the trial court's judgment stands. Parfait v. Transocean Offshore, Inc., 2007-1915 (La. 3/14/08), 980 So.2d 634, 639.

FACTS AND PROCEDURAL HISTORY

At the outset, we deem it worth noting that although this court is unable to agree on every issue and claim presented herein, we have carefully considered the matters before us in this voluminous and procedurally complicated litigation.¹ The instant matter arises out of a road construction project on Interstate 10 in East Baton Rouge Parish, which was known as the Picardy Avenue Interchange Project (the "Project"). As the owner of the Project, DOTD contracted with JCG to be the general contractor on the Project. JCG subcontracted a portion of the work to ABS, which work included the installation of approximately 214,000 square feet of Key System 1 mechanically stabilized earth ("MSE") walls and leveling pads. The Project, however, was fraught with numerous complications and problems impacting the MSE walls, including delays in construction and materials, geotechnical problems, and inspection issues, which eventually resulted in the instant litigation.

Before the Project began, Mika McKee Lawson, JCG's project manager, notified all subcontractors that the start date was delayed from March 1, 2004 until mid-April 2004. According to Ms. Lawson, she informed ABS that JCG would be ready for it by June, but she would confirm the start date. According to ABS, ABS was instructed to mobilize on the Project on April 15, 2004, by both Rodney James, who was JCG's division manager, and Chet Chautin, a superintendent for JCG, and ABS mobilized on the Project on April 16, 2004. On April 21, 2004, however, ABS's work was delayed due to the lack of approved shop drawings for the MSE walls and lack of approved materials needed for the construction of the MSE walls, and notice of such was sent to JCG. Pursuant to ABS's Subcontract with JCG, JCG was obligated to provide the approved shop drawings and the necessary materials for the MSE wall construction. Premier Concrete Products, Inc. ("Premier"), a licensee of Keystone Retaining Wall Systems, Inc. ("Keystone"),² was responsible for providing JCG with the shop drawings it acquired from Keystone.

In April 2004, following a partial approval, ABS was able to begin installing the leveling pads on the Project, but was ordered by JCG to stop operations. In fact, DOTD issued a letter on April 28, 2004, requiring the construction to stop due to the shop drawings not being fully approved. This was the start of a 45-day delay on the Project, during which ABS was unable to work. ABS requested permission from JCG to demobilize from the site, but the request was denied. Eventually, ABS began losing key employees. By June 9, 2004, ABS had only built about 300 linear feet of leveling pad of the 10,000 feet that were buildable, notwithstanding the Subcontract provision stating that ABS would construct 300 feet per day. Additionally, both JCG and ABS sought compensation from DOTD as a result of this 45-day delay; however, their attempts were unsuccessful.

Unbeknownst to ABS and JCG at the time ABS mobilized, there were foundation issues at the site of the Project, which involved both ABMB Engineers and PSI's engineering work and geotechnical analysis performed at the site. These issues first became known in June 2004, when the DOTD project engineer indicated that new foundation designs for the walls were being proposed. During the course of this litigation, ABS eventually discovered that DOTD was actually considering eliminating the retaining walls on the Project altogether at the same time that ABS was mobilized, but idle on the Project and waiting on approvals. Ultimately, to resolve the issues with the foundation, geopiers were added to the design of the walls as per the request of ABMB Engineers and PSI, which design changes also caused additional delays and out-of-sequence construction.

Throughout the Project, ABS encountered issues with not having the approved materials required for constructing the MSE walls. Further, the addition of the geopiers caused the entire sequence of production of the MSE walls as planned by ABS and JCG to be completely disrupted. The sequence of production of the MSE walls was critically important to ABS's planned work as agreed upon by both ABS and JCG. ABS and JCG both attempted to receive compensation from DOTD for the out-of-sequence work delays, but were unsuccessful.

In addition to the delays and out-of-sequence work, ABS encountered multiple problems related to inspections of its work. One of the inspection issues began in February of 2005, when the inspectors for DOTD utilized what was referred to as "the teeter-test." The inspectors would examine the block units used to build the MSE wall and see if the block teetered or wobbled. If there was movement, the block would be rejected. According to ABS, the use of the teeter-test resulted in numerous blocks being incorrectly rejected by the inspectors, which impeded the progress of ABS's work. Further, the teeter-test being used by the DOTD inspectors was not an acceptable inspection technique according to Keystone. On April 15, 2005, ABS shut down its operations due to this inspection issue. A meeting was held at the Project site, where Richard Brown, the inventor of the Key System 1 MSE wall system, was in attendance. After having the inspectors demonstrate their inspection procedure, Mr. Brown came up with a compromise inspection method for the inspectors to use. The compromise method involved part of the teeter-test used by the inspectors, but also incorporated a measuring tool. However, the compromise inspection method was only used for a short time. An additional inspection issue arose in April or May of 2005, involving the steel reinforcements installed by ABS around the abutments, but only arose after ABS had completed the MSE walls at four of the six abutments. The last two abutments were about halfway or more than halfway finished. As...