State v. Meyer & Associates, Inc.

• Decision Date: 03 October 2007
• Docket Number: No. CA 07-214.,No. CA 07-215.,CA 07-214.,CA 07-215.
• Citation: 967 So.2d 585
• Parties: STATE of Louisiana, through the SABINE RIVER AUTHORITY v. MEYER & ASSOCIATES, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

967 So.2d 585

STATE of Louisiana, through the SABINE RIVER AUTHORITY v. MEYER & ASSOCIATES, INC., et al.

No. CA 07-214.

No. CA 07-215.

Court of Appeal of Louisiana, Third Circuit.

October 3, 2007.

Travis Louis Bourgeois, Degan, Blanchard & Nash, New Orleans, LA, for Third Party Appellee, Mays Construction, LLC.

Carlton Jones, Roedel, Parsons, Koch, Blache, Balhoff, & McCollister, A.L.C., Baton Rouge, LA, for Defendant/Appellant, Pat Williams Construction, Inc.

Craig L. Kaster, Craig L. Kaster & Associates, Zachary, LA, for Defendant/Appellant, Prestridge Painting, LLC.

Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.

SAUNDERS, Judge.

This case arises from the construction of the Cypress Bend Conference Center (hereinafter "the conference center"). Two general contractors were sued by the State of Louisiana, through the Sabine River Authority, for damages related to mold and moisture intrusion. In response, one of the general contractors filed third party demands against various subcontractors. That general contractor had already reached settlement with the two subcontractors party to this appeal on issues stemming from the same conference center project.

Both subcontractors filed Exceptions of Res Judicata based upon the settlements they respectively reached with the general contractor. The trial court granted both exceptions and the general contractor appealed.

We affirm the trial court's granting of the Exceptions of Res Judicata. We assess all costs of this appeal to the general contractor.

FACTS AND PROCEDURAL HISTORY:

This case results from the construction of the Cypress Bend Conference Center located near Many, Louisiana, on property owned by the Sabine River Authority. In 1998, after a public bid, the Sabine River Authority contracted with Pat Williams Construction (hereinafter "Pat Williams") to build the conference center on Toledo Bend Reservoir. Pat Williams thereafter subcontracted with Prestridge Painting, LLC (hereinafter "Prestridge") to provide and install tape, float, corner bead, paint and wall covering at the conference center.

After the conference center project was completed, Prestridge and Pat Williams filed claims against each other and the matter was referred to arbitration. On September 11, 2001, the arbitrator awarded Prestridge $64,207.26 and dismissed Pat Williams' counterclaim related to the conference center project. As a result of Pat Williams failing to voluntarily pay the arbitration award, Prestridge prepared a rule to show cause to enforce the arbitration award. Prior to the hearing on the rule to show cause, Pat Williams and Prestridge reached a settlement.

Pat Williams also subcontracted with Mays Construction, LLC (hereinafter "Mays") to install the suspended ceiling, metal framing, drywall, roof installation and fiberglass reinforced plastic panels at the conference center. After the conference center project was completed, Pat Williams disputed the amount of money that Mays claimed it was owed for work done on the project. Mays filed a Demand for Arbitration on March 21, 2003, seeking payment of $26,740.19, which Mays claimed it was owed for its work at the conference center. Pat Williams filed an answer seeking over $100,000 in delay damages. On May 20, 2003, prior to any arbitration, Pat Williams and Mays reached a settlement.

On November 10, 2004, a petition for damages was filed on behalf of the State of Louisiana, through the Sabine River Authority, against Pat Williams Construction alleging construction defects in the conference center that resulted in development of mold and moisture intrusion. On August 17, 2006, Pat Williams Construction filed a third party demand against both Prestridge and Mays, along with many other subcontractors, seeking indemnification for any damages that the Sabine River Authority was awarded in the principle claim associated with their respective subcontracts.

Both Prestridge and Mays filed a Peremptory Exception of Res Judicata based upon transaction or compromise agreements they had entered into with Pat Williams. Based upon these agreements, the trial court sustained both Peremptory Exceptions of Res Judicata and released Prestridge and Mays from the suit.

Pat Williams filed an appeal alleging the trial court's rulings were in error. We affirm the trial court's rulings and assess all costs of this appeal to Pat Williams.

ANCILLARY MATTER:

Pat Williams has filed a Motion to Supplement the Record or, in the alternative, to remand the case to the trial court for consideration of new evidence. We hereby deny its motion.

Pat Williams' motion is an attempt to supplement the record. Louisiana Code of Civil Procedure article 2132 provides:

A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.

Pat Williams' motion does not seek to correct any facts or misstatements, nor does it allege any deficiencies in the record. Its motion seeks to enter into the record depositions taken after the hearings on Prestridge and Mays' Peremptory Exceptions of Res Judicata. This is a request to enter into the record new evidence not heard by the trial court. An appellate court is not vested with the right to hear new evidence not part of the record in the trial court. See White v. W. Carroll Hosp., Inc., 613 So.2d 150 (La. 1992). Thus, this request to supplement the record is denied.

In the alternative, Pat Williams asked that the case be remanded to the trial court for submission of the new evidence. Remanding a case to the trial level for introduction of evidence is solely discretionary and is "sparingly exercised." Jones v. LeDay, 373 So.2d 787, 789 (La. App. 3 Cir.1979); La.Code. Civ.P. art. 2164. However, in order to prevent a miscarriage of justice, an appellate court should determine whether to use this discretionary power on a case-by-case basis. Jones, 373 So.2d 787.

Here, Pat Williams is seeking to introduce parole evidence to vitiate the meaning of the language used in the settlement compromises it reached with both Prestridge and Mays. Such evidence is only used when the terms of an agreement are ambiguous. We find in both assignments of error that such evidence is not necessary as we find both agreements clear, explicit and unambiguous. As such, Pat Williams' request to remand the case to the trial court for admission of new evidence is also denied.

ASSIGNMENT OF ERROR # 1:

Pat Williams asserts that the trial court erred by sustaining the Exception of Res Judicata filed by Prestridge given that there is no evidence in the record that the claims of mold and moisture intrusion existed when Prestridge and Pat Williams arbitrated issues related to the construction of the Cypress Bend Conference Center. We disagree.

If the Peremptory Exception of Res Judicata is raised prior to the case being submitted, and if evidence is received from both parties, then the standard of review for a ruling on whether to sustain that exception is manifest error. Ortego v. State, through the Dep't. of Transp. and Dev., 96-1322 (La.2/25/97), 689 So.2d 1358.

The Peremptory Exception of Res Judicata is ordinarily based upon a final judgment between the parties, however, when parties put an end to a lawsuit by adjusting their differences and entering into a written transaction or compromise; that written instrument has the effect of a thing adjudged between the parties. Bowden v. State Farm Mut. Auto. Ins. Co., 150 So.2d 655 (La.App. 3rd Cir.1963).

Louisiana Civil Code Article 3078, in pertinent part, states, "Transactions have, between the interested parties, a force equal to the authority of things adjudged." As such, the basis for pleading the Peremptory Exception of Res Judicata can be a valid transaction or compromise entered into by the parties. Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741.

Interpretation of the written transaction or compromise instrument is governed by the rules of construction generally applicable to contracts. Brown, 630 So.2d 741. "Interpretation of a contract is the determination of the common intent of the parties." La.Civ.Code art.2045. In attempting to determine the common intent of the parties, first, a court must look to the language of the written...