Sullivan v. City of Baton Rouge

• Decision Date: 27 January 2015
• Docket Number: No. 2014 CA 0964.,2014 CA 0964.
• Citation: 170 So.3d 186
• Parties: F.G. SULLIVAN, Jr., Contractor v. CITY OF BATON ROUGE and Parish of East Baton Rouge.
• Court: Court of Appeal of Louisiana — District of US

170 So.3d 186

F.G. SULLIVAN, Jr., Contractor

v.CITY OF BATON ROUGE and Parish of East Baton Rouge.

No. 2014 CA 0964.

Court of Appeal of Louisiana, First Circuit.

Jan. 27, 2015.

Rehearing Denied Feb. 19, 2015.

Eric A. Kracht, Scott E. Frazier, John M. Madison, III, Baton Rouge, LA, for Plaintiff/Appellee/Cross–Appellant, F.G. Sullivan, Jr., Contractor.

Mary Roper, Randy B. Ligh, Ashley W. Beck, Baton Rouge, LA, for Defendants/Appellants/Cross–Appellees, City of Baton Rouge and Parish of East Baton Rouge.

Michael D. Fisse, Ryan M. Bourgeois, Covington, LA, for Defendant, Louisiana Department of Transportation and Development.

Before McDONALD, CRAIN, AND HOLDRIDGE,¹ JJ.

Opinion

CRAIN, J.

In this suit to enforce a construction contract, the defendant appeals the trial court's denial of a motion to continue the trial, the sustaining of an objection to the use of a deposition at the trial, and the quantum of damages awarded; while the plaintiff appeals the denial of its claim for certain costs incurred by its subcontractor. We affirm the rulings on the motion to continue the trial and the objection to the use of the deposition, amend the award of damages, and affirm the denial of the claim for the subcontractor's costs.

FACTS AND PROCEDURAL HISTORY

At the conclusion of a public bid process, F.G. Sullivan, Jr., Contractor, and the City of Baton Rouge/Parish of East Baton Rouge (City) entered a contract in March of 2001 for a roadway improvement project on Tiger Bend Road in East Baton Rouge Parish for the sum of $3,997,384.20. The project involved the expansion of approximately one mile of the road from two to four lanes and the installation of an underground storm drainage system, a component of the project that Sullivan subcontracted to RCS Contractors, Inc. Sullivan's construction schedule estimated that the project would require a total of 260 work days to complete. The project would begin with the installation of the drainage system by RCS, followed by Sullivan's construction of the two new lanes (Phase 1) and the removal and replacement of the two previously existing lanes (Phase 2).

Prior to advertising the project for bids, the City had the right of way cleared and began the process of securing the removal or relocation of utility lines that might interfere with the project, particularly with the installation of the drainage system. It was mutually understood by all parties that the utility lines would be removed or relocated prior to the commencement of work by Sullivan and RCS, and the City's construction plans and specifications indicated no utilities in the construction area. The City advised Sullivan and RCS that the removal and relocation of all utilities would be completed by April 1, 2001, and the City thereafter confirmed that construction on the project could commence on April 2, 2001.

RCS began work on the drainage system but soon encountered utility lines that were still located in the right of way. While both parties agree that the removal or relocation of the utilities caused delays in the construction, the date and duration of those delays are the primary points of contention in this litigation. The project was ultimately completed in August of 2003.

The City paid Sullivan the principal contract price, but it refused Sullivan's request for reimbursement of equipment “idle time” for the days when equipment dedicated to the project could not be used because of the delays resulting from the utilities conflicts. For purposes of this appeal, the parties do not dispute that the contract documents provide for reimbursement to Sullivan of a sum, determined by a formula, for such “standby equipment.” After the City refused Sullivan's request for idle-time reimbursement, Sullivan filed this suit seeking recovery of those sums along with additional overhead expense resulting from the utilities delays. Sullivan also sought to recover a “claim” by RCS for the subcontractor's “increased costs and damages” associated with the delays. The City denied any liability and asserted a third-party demand against the State of Louisiana, through the Department of Transportation and Development (DOTD), which was later dismissed on an exception of no cause of action.

Sullivan's claims against the City proceeded to a three-day bench trial. After taking the matter under advisement, the trial court awarded Sullivan $957,736.37 in damages, which was itemized as $889,045.97 in idle equipment costs and $62,690.40 in overhead, and denied Sullivan's claim for RCS's additional costs. A judgment setting forth the trial court's rulings was signed on November 27, 2013. A subsequent motion for new trial was granted only to make a minor change of two cents in the judgment amount, amending the award to $957,736.39, as reflected in an amended judgment signed on March 5, 2014.² The City appealed the judgment and asserts that the trial court erred (1) in denying its motion to continue the trial, (2) by sustaining Sullivan's objection to the use of a deposition at trial, (3) by finding a construction delay of 303 days due to utilities conflicts, and (4) in computing damages using the calculation prepared by Sullivan's expert. Sullivan also appealed and asserts that the trial court erred in failing to award, as an item of damages to Sullivan, the additional costs incurred by RCS as a result of alleged errors in the City's contract documents.

DISCUSSION

Denial of Motion to Continue

In its first assignment of error, the City contends that the trial court erred in denying its motion to continue the trial. After two prior continuances at the joint request of the parties and a third continuance at the request of Sullivan, the claims were scheduled for trial beginning on September 3, 2013. On August 27, 2013, about one week prior to trial, the City filed a motion to continue asserting that its expert on the calculation of damages, Michael Daigle, was unavailable due to health reasons and that the City needed additional time to hire another expert. The City did not request the issuance of a witness subpoena for Daigle and offered no documentation in support of its motion to continue. The trial court denied the motion.

At the beginning of trial, the City renewed its motion to continue, stating on the record that Daigle informed the City's counsel about three weeks prior to trial that he was no longer testifying or handling any litigation on the advice of his cardiologist. The City had no documentation from the physician confirming this information. The trial court again denied the motion, explaining:

So the court has nothing in writing from a cardiologist or any medical records of Mr. Daigle. The court does not know who the cardiologist is, and for what purpose the cardiologist has told Mr. Daigle he cannot testify. And Mr. Daigle was able to communicate that to defense counsel effectively. As I stated, there is no—I find no reason for this court to grant a continuance based off Mr. Daigle's word that his cardiologist, has suggested that he should not do this line of work.

The City argues that the trial court, was obligated to grant a continuance under Louisiana Code of Civil Procedure article 1602, which provides:

A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.

In order to be entitled to a continuance, the moving party has the burden of showing that he met the requirements set forth in Article 1602. Polkey v. Landworks, Inc., 10–0718 (La.App. 1 Cir. 10/29/10), 68 So.3d 540, 551. To meet his burden, the party must establish either (1) that he exercised due diligence, yet was unsuccessful in obtaining material evidence; or (2) that a material witness absented himself contrary to the arrangement made by the party for the witness to appear. McGregor v. Hospice Care of Louisiana in Baton Rouge, Inc., 08–2029 (La.App. 1 Cir. 3/27/09), 2009 WL 838621, p. 3, writ denied, 09–1232 (La.9/18/09), 17 So.3d 980. A party applying for a continuance, although entitled to a reasonable delay and opportunity to procure his witnesses, must show due diligence. La.Code Civ. Pro. art. 1602, 1960 Official Revision Comment (b); Spencer v. Benny's Car Wash, LLC, 11–1708 (La.App. 1 Cir. 5/4/12), 2012 WL 1580601, p. 6, writ not considered, 12–1279 (La.9/28/12), 98 So.3d 824, reconsideration denied, 12–1279 (La.11/9/12), 100 So.3d 826.

When the conditions of Article 1602 are met, the granting of a continuance is mandatory. Carbo v. City of Slidell, 01–0170 (La.App. 1 Cir. 1/8/03), 844 So.2d 1, 9, writ denied, 03–0392 (La.4/25/03), 842 So.2d 400. The policy behind the mandatory continuance is to insure that a party is not deprived of his day in court or his right to properly present his defense when not due to his own fault or delinquency.See American Motorists Insurance Company v. State, Worker's Compensation Second Injury Board, 544 So.2d 595, 598 (La.App. 1 Cir.1989).

The record reflects that Daigle told the City's counsel three weeks before trial that he would not appear as a witness on advice of his physician. The City did not request a trial subpoena for Daigle before or after that notification, and it presented no medical documentation or other evidence substantiating Daigle's claim that he was physically Unable to attend trial. Upon the showing made, the City's failure to take reasonable measures to compel, or at least attempt to compel, the witness's appearance at the trial, combined with its failure to present any proof that the witness's health rendered any such measures futile or unnecessary, does not demonstrate sufficient due diligence to invoke the provisions of Article 1602. See Broussard v. Coleman, 479 So.2d 1016, 1018–1019 (La.App. 3 Cir.1985), writ denied, 481 So.2d 1354 (La.1986) (trial court did...