Sewell v. St. Bernard Par. Gov't
| Decision Date | 03 February 2023 |
| Docket Number | Civil Action 21-2376-WBV-KWR |
| Parties | BARRY SEWELL v. ST. BERNARD PARISH GOVERNMENT |
| Court | U.S. District Court — Eastern District of Louisiana |
BARRY SEWELL
v.
ST. BERNARD PARISH GOVERNMENT
Civil Action No. 21-2376-WBV-KWR
United States District Court, E.D. Louisiana
February 3, 2023
SECTION: D (4)
ORDER AND REASONS
WENDY B. VITTER UNITED STATES DISTRICT JUDGE
Before the Court is the Motion for Summary Judgment of Plaintiff, filed by Barry Sewell.[1] St. Bernard Parish Government opposes the Motion,[2] and Sewell has filed a Reply.[3] The Court has also allowed both parties to file supplemental memoranda in further support of their respective positions.[4]
After careful consideration of the parties' memoranda and the applicable law, the Motion is GRANTED in part and St. Bernard Parish Government is liable to Sewell for $1,665,661.48, plus pre-judgment and post-judgment interest on that amount, on Sewell's breach of contract claim. The Motion is DENIED to the extent that Sewell seeks an award of attorney's fees.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case involves a contract dispute between Barry Sewell doing business as St. Bernard Trucking and St. Bernard Parish Government (“SBPG”), concerning a contract for emergency drainage and sewage removal.[5] The following facts are
uncontested.[6] On May 20, 2021, St. Bernard Trucking entered into a contract with SBPG for emergency drainage and sewage removal, effective June 1, 2021.[7] Sewell signed the contract as the owner of St. Bernard Trucking.[8] The contract required St. Bernard Trucking to assemble a fleet of trucks, supplies, and manpower sufficient to perform the removal and transport of raw sewage on a “24/7 basis” in the event an emergency rendered the sewer treatment infrastructure inoperable.[9]
On August 29, 2021, Hurricane Ida made landfall in Louisiana and, as a result, Governor John Bel Edwards declared a state of emergency.[10] On August 30, 2021, SBPG notified and directed Sewell to mobilize equipment and vehicles immediately to pump, haul, and dump into designated areas water and sewage.[11] SBPG did not indicate a total price or a total number of hours requested from Sewell, and instead directed Sewell to begin work and to work as directed by SBPG and its field monitors, such as Steve Price.[12] SBPG also did not require Sewell to provide services for a specific time period, since the duration of the project was undetermined at that time.[13] According to the parties, the removal and hauling of water and sewage was necessary because the sewer system pumps were not operational after the storm due to a lack of electricity to the pumps.[14] At SBPG's request, St. Bernard Trucking began mobilizing a fleet of trucks to manually remove sewage from below the ground to be
loaded and transported to functioning facilities, in accordance with the contract, and it hired subcontractors, including Wise Environmental Services, Inc. (“Wise Environmental”), to provide emergency drainage and sewage removal.[15] SBPG neither requested verbally, nor required as part of the contract, that St. Bernard Trucking possess a commercial contractor's license.[16] Neither Sewell nor St. Bernard Trucking possessed a commercial contractor's license from the Louisiana State Licensing Board for Contractors (hereafter, the “LSLBC”) for the period of time that work was performed.[17] Wise Environmental, which rendered emergency drainage and sewage removal services in St. Bernard Parish from August 31, 2021 through September 24, 2021, also did not possess a commercial contractor's license from the LSLBC when it performed these services.[18] On August 31, 2021, Sewell and his subcontractors, including Wise Environmental, began providing the emergency sewage removal services to SBPG.[19] SBPG does not dispute that St. Bernard Trucking performed all services requested by SBPG under the contract, nor is there any dispute regarding the quality of the services provided by St. Bernard Trucking or its subcontractors.[20]
Beginning on September 9, 2021, St. Bernard Trucking submitted three invoices to SBPG totaling $1,802,669.16 for emergency sewage hauling and disposal services performed from August 31, 2021 through September 9, 2021, from September
10, 2021 through September 19, 2021, and from September 20, 2021 through September 24, 2021.[21] In response, SBPG provided St. Bernard Trucking with a spreadsheet from Steve Price of PD Consulting, who purportedly reviewed and reconciled St. Bernard Trucking's invoices. At SBPG's request, St. Bernard Trucking revised its invoices to reflect the reconciled amount of $1,665,661.48 “in order to avoid delay or dispute regarding the charges submitted.”[22] After completing drainage and sewage removal services in St. Bernard Parish, Wise Environmental sent Sewell d/b/a St. Bernard Trucking invoices totaling $381,550.00. Wise Environmental has not been paid for its services.[23]
Sewell alleges that, despite multiple representations by SBPG that St. Bernard Trucking would be paid for its services pursuant to their contract, SBPG has refused to pay St. Bernard Trucking for the work performed.[24] Sewell asserts that on November 5, 2021, through counsel, he sent a letter to SBPG demanding payment under the contract and that SBPG has, to date, refused to pay St. Bernard Trucking for the services performed.[25] SBPG advises that, while processing St. Bernard Trucking's invoices, discrepancies were noticed that led to the discovery that St. Bernard Trucking did not hold a commercial contractor's license.[26] After SBPG made this finding, it determined that the contract was an absolute nullity for failure to comply with La. R.S. 37:2150, and it refused to pay to St. Bernard Trucking's
invoices.[27] As a result, Sewell filed this suit against SBPG asserting that SBPG breached its contract with St. Bernard Trucking in bad faith.[28] Sewell alleges that he has suffered damages as a result of SBPG's breach of contract, and he seeks to recover the costs of labor and materials, lost profits and overhead, the cost of travel and job site visits, other damages resulting from SBPG's action, and attorney's fees.[29]Sewell asserts that a principal balance of $1,802,669.15, plus legal interest from the date due, is due and owing by SBPG or, alternatively, the sum of $1,665,661.48, plus legal interest from the date due, is due and owing by SBPG.[30] Alternatively, if the Court finds that no valid contract exists between Sewell and SBPG, Sewell argues that he is entitled to recover the value by which SBPG has been unjustly enriched under the doctrine of unjust enrichment.[31] Sewell further asserts, in the alternative, that he is entitled to recover the amount owed by SBPG under the contract based upon the doctrine of detrimental reliance.[32]
In its Answer to the First Amended Complaint, SBPG asserts several affirmative defenses, including that the contract is an absolute nullity under Louisiana law, specifically La. R.S. 37:2150, et seq., and La. R.S. 37:2160, because a commercial contractor's license is required for commercial work exceeding $50,000 and neither Sewell nor St. Bernard Trucking held a commercial contractor's license at the time of performance.[33] SBPG also asserts, as an affirmative defense, that
Sewell's alleged damages are due to his own contributory and/or comparative fault and/or the fault of a third party.[34] Finally, SBPG asserts, as an affirmative defense, that any claims asserted by Sewell are subject to a general offset against any amounts already paid to Sewell, its contractors, and/or its vendors.[35]
Thereafter, on June 14, 2022, the Court allowed Wise Environmental to file a Complaint in Intervention against SBPG,[36] in which Wise Environmental seeks the principal balance of $381,550.00, plus legal interest from the date due from SBPG.[37]Like Sewell, Wise Environmental asserts that SBPG has been unjustly enriched as a result of its unjustified failure to pay Wise Environment the amounts owed for the services provided, and further asserts that it is entitled to recover the amount by which SBPG has been enriched under the doctrine of unjust enrichment.[38]
Sewell filed the instant Motion for Summary Judgment on November 2, 2022, asserting that he is entitled to “no less than $1,665,661.48, plus pre-judgment and post-judgment interest on all amounts due, attorney fees, and all other general and equitable relief to which Plaintiff may be entitled” for the services performed at SBPG's request.[39] In doing so, Sewell “adopts and incorporates” the arguments made by Wise Environmental in support of its motion for partial summary judgment, which remains pending before the Court.[40] In his Motion for Summary Judgment, Sewell
asserts that he is the owner of St. Bernard Trucking, a sole proprietorship that entered into an agreement with SBPG to provide emergency sewerage hauling and disposal services made necessary by Hurricane Ida, which made landfall on August 29, 2021.[41] Sewell claims that at no time prior to completing the emergency services requested was he requested to certify that he held an active commercial contractor's license under Louisiana law, and Sewell further asserts that SBPG did not raise the issue until after all of the services were performed.[42] Sewell claims that neither the 2021 contract with SBPG nor the prior contracts between SBPG and St. Bernard Trucking required that St. Bernard Trucking be a licensed contractor.[43]
Sewell argues that he did not act as a contractor and was not required to have a commercial contractor's license under La. R.S. 37:2150, et seq., since he was engaged in an emergency capacity to move water and sewerage to mitigate flooding. Relying upon the definition of “contractor” in La. R.S. 37:2150.1, Sewell asserts that he did not construct, alter, repair, improve, move, demolish, put up, tear down, furnish labor, or install materials or equipment for any sewer or other construction.[44] Sewell contends that the definition of “contractor” “is intended to...
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