Watson, Blanche, Wilson & Posner v. Charles Carter & Co., Inc.
| Decision Date | 31 March 1980 |
| Docket Number | No. 13280,13280 |
| Citation | 385 So.2d 359 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | WATSON, BLANCHE, WILSON & POSNER v. CHARLES CARTER & COMPANY, INC. |
Ben L. Guelfo, Baton Rouge, for plaintiff and third party plaintiff, appellee Watson, Blanche, Wilson & Posner.
Walton J. Barnes, Baton Rouge, for defendant, appellant Charles Carter & Co., Inc.
Ray C. Dawson, Baton Rouge, for third party defendant, appellee National Surety Corp.
Before COVINGTON, LOTTINGER and COLE, JJ.
This is a suit by plaintiff, Watson, Blanche, Wilson & Posner, a law partnership, against Charles Carter & Company, Inc. (Carter) for unpaid legal fees. Carter in turn third partied Cliff Hughes Co. of Louisiana, Inc., formerly Hughes-Walsh (Hughes), and its surety, National Surety Corporation (National Surety), for the amount of the attorney fees under the provision of the subcontract existing between Carter and Hughes. Hughes was never served with the third party demand. On motion of plaintiff, the principal demand was severed from the third party demand. Judgment was rendered in favor of plaintiff and against Carter for $4,263.23. On the third party demand, judgment was rendered in favor of National Surety and against Carter. Carter has appealed only the denial of its third party demand.
To better understand this case it is necessary to review the facts leading up to the instant suit. In 1968 Carter contracted with Capitol Construction & Improvement Commission for the construction of a health and physical education building at Southeastern Louisiana College (Southeastern Louisiana University) in Hammond. Subsequently, Carter subcontracted certain mechanical work to Hughes-Walsh of Dallas, Texas. As the subcontract progressed, Hughes reached a point whereby it could not meet its financial obligations. At that time Carter still held some $54,259.42 due under the subcontract. This amount represented some $12,400.74 spent by Carter to complete work not done or repair work improperly done by Hughes. Additionally, some $21,128.30 was retained as the costs of repairing damages to the gymnasium floor caused by the negligence of Hughes. The remainder was retained as a result of Carter being served with a notice of a federal tax lien and levy against Hughes.
Carter was sued in the United States District Court for the Middle District of Louisiana by National to recover the retainage due under the subcontract. The amount sued for was $55,063.69. Plaintiff, Watson, Blanche, Wilson & Posner, was retained as counsel to represent Carter in defense of the federal suit. The federal district court found that the amount that had been retained was $54,259.42, that Hughes was indebted to Carter in the sum of $33,529.04 and that Carter was entitled to this retainage. The balance, $20,730.38, was to be paid by Carter to the United States of America under its lien and levy, and Hughes was granted judgment against Maryland Casualty Company, its liability insurer, for $21,128.30. National was to take nothing in the proceeding. Fireman's Fund Insurance Company v. Charles Carter Construction Company, Inc., 382 F.Supp. 332 (M.D.La.1974).
On appeal the United States Court of Appeal, Fifth Circuit, vacated the judgment of the district court and remanded "with directions to enter judgment permitting Carter to withhold $12,400.74 of the balance due on its subcontract with Hughes-Walsh; requiring Carter to pay into court the balance of the unpaid portion of the contract price, $21,128.30, in addition to the sum of $20,730.38 previously paid in, pending final disposition on remand of the competing claims of National Surety and the United States; granting Carter a judgment for $21,128.30 against Maryland Casualty, * * *." National Surety Corporation v. Charles Carter & Company, Inc., 539 F.2d 450 (5th Cir. 1976).
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Watson, Blanche, Wilson & Posner v. Charles Carter & Co, Inc.
...National Surety Corporation, applying for certiorari, or writ of review, to the Court of Appeal, East Baton Rouge Parish, First Circuit, 385 So.2d 359. ...