Colbert v. B.F. Carvin Const. Co.

• Decision Date: 28 April 1992
• Docket Number: No. 91-CA-384,91-CA-384
• Citation: 600 So.2d 719
• Parties: Charles R. COLBERT v. B.F. CARVIN CONSTRUCTION CO. and B.F. Carvin. 600 So.2d 719
• Court: Court of Appeal of Louisiana — District of US

Page 719

600 So.2d 719

Charles R. COLBERT v. B.F. CARVIN CONSTRUCTION CO. and B.F. Carvin.

No. 91-CA-384.

600 So.2d 719

Court of Appeal of Louisiana Fifth Circuit.

April 28, 1992.

Rehearing Denied May 21, 1992.

Randall L. Kleinman, Hulse, Nelson & Wanek, New Orleans, for plaintiff/appellant.

William S. Marshall, New Orleans, Robert L. Raymond, Destrehan, for defendant/appellee.

Before GAUDIN, GRISBAUM and WICKER, JJ.

WICKER, Judge.

This appeal arises from a reconventional demand filed by B.F. Carvin, individually, and B.F. Carvin Construction Company alleging Charles R. Colbert's negligence with regard to a public school renovation contract between B.F. Carvin Construction Company and Orleans Parish School Board. The jury found Colbert, the architect for the project, to be 50% negligent in comparison to Carvin, individually, but 47% negligent in comparison to B.F. Carvin Construction Company. The jury award was $29,000.00 to Carvin, individually, and $89,763 to B.F. Carvin Construction Company. The trial judge granted a judgment notwithstanding the verdict and awarded B.F. Construction Company $190,985.10 reduced by 25% representative of its negligence and Carvin $58,000.00 reduced by 25% for Carvin's negligence. Colbert had pled prescription relative to the claim by Carvin, individually, and the trial judge overruled that exception. Colbert suspensively appealed the adverse judgment. We reverse in part and affirm in part.

EXCEPTION OF NO CAUSE OF ACTION:

We note at the outset that Colbert's counsel has filed the peremptory exception of no cause of action in this court. He asserts the reconventional demand states no cause of action on the ground that there is no legally recognized cause of action for negligent interference with contract. As stated in Teachers' Retirement System v. La. St. Employees, 456 So.2d 594, 598 (La.1984), "The peremptory exception may even be noticed by either the trial or appellate court on its own motion." See also La.C.Civ.P. arts. 927, 928, 2163.

The allegations in the reconventional demand are in pertinent part as follows:

XIV.

At all times pertinent herein, Charles R. Colbert was the architect on the project designated as "Interior and Exterior Renovations to McDonough No. 36 Elementary School," on which project B.F. Carvin Construction Company, Inc. was the general contractor.

XV.

At all times pertinent herein, B.F. Carvin was the president of B.F. Carvin Construction Company, Inc.

XVI.

Because of negligent acts or omissions constituting fault on the part of Charles R. Colbert, plaintiffs in reconvention have suffered damages, for the following, to-wit:

XVII.

Defendant in reconvention failed, in surveying the project, to prepare adequate plans and specifications that would reasonably notify a bidding general contractor of the scope of the work to be done.

XVIII.

Defendant in reconvention failed, during the pendency of the project, to furnish, with reasonable promptness, additional instructions and clarifications, by means of drawings or otherwise, necessary for the proper execution of the work.

XIX.

Defendant in reconvention has sought, by economic pressure such as the withholding of his recommendation to the Orleans Parish School Board of payment for amounts due, to compel plaintiffs in reconvention and their subcontractors to perform extra work not included in the plans and specifications and has refused to provide change orders and compensation therefor.

XX.

Defendant in reconvention has refused to timely inspect the areas of the work that have been completed and has caused plaintiffs in reconvention to provide maintenance services not contemplated by the original contract between the Orleans Parish School Board and B.F. Carvin Construction Company, Inc. by utilizing economic pressures such as those described in the preceding paragraph.

XXI.

Plaintiff in reconvention, B.F. Carvin, has personally suffered mental anguish and emotional distress as a result of the action or failures to act of defendant in reconvention as outlined above in Paragraphs XVIII. through XX. and otherwise.

XXII.

Plaintiff in reconvention, B.F. Carvin Construction Company, Inc., itemizes its damages as follows:

Remaining amount due on contract with Orleans Parish School Board that has wrongfully been held for reasons of fault and negligence on the part of defendant in reconvention--$130,629.00

Lost overhead and profit--$90,000.00

Uncompensated for extras--$179,408.00

Loss of anticipated profits from other business in which B.F. Carvin Construction Company, Inc. could not participate because of the added work on the McDonough project resulting from the fault or negligence of defendant in reconvention--$250,000.00

Total--$650,037.00

XIII.[sic]

Plaintiff in reconvention, B.F. Carvin, itemizes his damages as follows:

Mental anguish, emotion distress and frustration and pain and suffering $500,000.00

While plaintiffs in reconvention have pled intentional interference with contract and negligent interference with contract as causes of action, they have also pled a tort based on Colbert's allegedly negligent professional undertaking with Orleans Parish School Board allegedly causing foreseeable economic harm to the Carvin interests. The threshold issue before this court is whether a cause of action exists in Louisiana for any of these theories.

The Louisiana Supreme Court recognized "a corporate officer's duty to refrain from intentional and unjustified interference with the contractual relation between his employer and a third person." 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228 (La.1989) at 234. The Spurney court noted in dicta at 232-234:

Louisiana is now the only American state that does not recognize the action for tortious interference with contractual relations. [citations omitted].

* * * * * *

Moreover, a delictual rule such as Kline v. Eubanks [, 109 La. 241, 33 So. 211 (1902) ] that flatly and without good reason deprives an innocent person of any remedy for damage to his contract right caused intentionally and improperly by a corporate official is discordant with the fundamental civil law principle that obliges a person to repair damage caused another by his fault. La.Civ.Code art. 2315.

* * * * * *

Accordingly, our courts' previous expressions barring absolutely any action based on a tortious interference with a contract are annulled insofar as they conflict with this opinion. [citations omitted]. It is not our intention, however, to adopt whole and undigested the fully expanded common law doctrine of interference with contract, consisting of "a rather broad and undefined tort in which no specific conduct is proscribed and in which liability turns on the purpose for which the defendant acts, with the indistinct notion that the purposes must be considered improper in some undefined way." [citation omitted]. Some aspects of this tort have been subjected to serious criticisms, leaving open a good many questions about the bases of liability and defense, the types of contract or relationship to be protected, and the kinds of interference that will be actionable. [citations omitted].

The Spurney court specified it was only recognizing the duty owed by a "corporate officer" in this regard.

However, it is not so clear whether a broad remedy exists with regard to the tort of intentional interference of contract. The Fourth Circuit has declined to expand such a tort beyond the narrow confines of Spurney. Tallo v. Stroh Brewery Co., 544 So.2d 452 (La.App. 4th Cir.1989), writ denied, 547 So.2d 355 (La.1989).

In his concurring opinion to Tallo, supra, Chief Judge Schott noted at 455:

While the present case does not involve the same situation as the one in 9 to 5, I am not convinced that the Supreme Court's recognition of a cause of action for tortious interference with contract is limited to the narrow situation presented in the case. However, if the cause of action is to be expanded I consider it to be the Supreme Court's function to do so and not ours as an intermediate appellate court.

Even assuming Spurney welcomes the expansion of intentional interference with contract so that the reconventional demand does state a cause of action in this regard our review of the record convinces us that only the theory of negligent interference with contract was placed before the jury. Furthermore, we note that counsel for the Carvin interests stated the following in the "Memorandum In Support of the Motion to Strike Affirmative Defense and to Limit Testimony Accordingly":

The reconventional demand by Carvin against Colbert sounds entirely in negligence and is based on Civil Code Article 2315. [emphasis added].

Additionally, the jury was only charged on negligence pursuant to La.Civ.Code Arts. 2315 and 2316. The jury interrogatories were also addressed to negligence.

We note that there is as yet no remedy in Louisiana for negligent interference with contract. Great S.W. Fire Ins. v. CNA Ins., 557 So.2d 966 (La.1990). In Great S.W. Fire Ins., at 969-970 the Supreme Court explained:

This court recently recognized for the first time in some 87 years the possibility of a narrowly drawn action for intentional interference with contractual rights and indicated that it would proceed with caution in expanding that cause of action. 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228 (La.1989)[.]

Interference with contract, its modern inception lying in "malice," has remained, at common law, almost entirely within the province of intentional torts; and when various forms of negligence have either prevented or rendered more burdensome the performance of a contract, liability has generally not been extended [citations omitted].

[e]xcept for a very few cases to the contrary, there is little authority for negligent interference with contract in general. [Prosser and Keeton on Torts Section 129 at 1000 (5th ed. 1984) ].

This court recently concluded no cause of action existed by a...