Summary
In L&A Contracting Co. v. State Through Dep’t of Transp. & Dev., 2022-1301 (La. App. 1st Cir. 8/16/23), 372 So.3d 14, this court addressed the extinguished-by-operation-of-law assertion Suretec presently advances.
Summary of this case from Satco, Inc. v. Prof'l Application Servs.Opinion
2022 CA 1301 2022 CA 1302 2022 CW 1194
08-16-2023
L&A CONTRACTING COMPANY v. STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF TRANSPORTATION & DEVELOPMENT VECTOR CORROSION TECHNOLOGIES, INC. v. L&A CONTRACTING COMPANY, LIBERTY MUTUAL INSURANCE COMPANY, FIDELITY AND DEPOSIT COMPANY OF MARYLAND, AND LOUISIANA DEPARTMENT OF TRANSPORTATION & DEVELOPMENT and VECTOR CORROSION TECHNOLOGIES, INC. v. L&A CONTRACTING COMPANY, LIBERTY MUTUAL INSURANCE COMPANY, FIDELITY AND DEPOSIT COMPANY OF MARYLAND, AND LOUISIANA DEPARTMENT OF TRANSPORTATION & DEVELOPMENT
Kirk Bergeron Sanettria P. Glasper Lesia B. Warren Baton Rouge, Louisiana Counsel for Defendant/Appellant, Louisiana Dept. of Transportation and Development Murphy J. Foster, III Jacob E. Roussel David C. Fleshman Baton Rouge, Louisiana Counsel for Plaintiff/Appellee, L&A Contracting Company, Liberty Mutual Insurance Company & Fidelity and Deposit Company of Maryland Peter S. Thriffiley, Jr. H. Bruce Shrews Denise C. Puente Douglass F. Wynne, Jr. New Orleans, Louisiana Counsel for Plaintiff/Relator, Vector Corrosion Technologies, Inc.
On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court Docket Number C687732, Sec. 23 c/w Trial Court Docket Number C698681, Sec. 22 Hon. Kelly Balfour, Judge Presiding
Kirk Bergeron Sanettria P. Glasper Lesia B. Warren Baton Rouge, Louisiana
Counsel for Defendant/Appellant, Louisiana Dept. of Transportation and Development
Murphy J. Foster, III Jacob E. Roussel David C. Fleshman Baton Rouge, Louisiana
Counsel for Plaintiff/Appellee, L&A Contracting Company, Liberty Mutual Insurance Company & Fidelity and Deposit Company of Maryland
Peter S. Thriffiley, Jr. H. Bruce Shrews Denise C. Puente Douglass F. Wynne, Jr. New Orleans, Louisiana
Counsel for Plaintiff/Relator, Vector Corrosion Technologies, Inc.
BEFORE: WELCH, PENZATO, AND LANIER, JJ.
PENZATO, J.
Defendant/appellant, State of Louisiana, through Louisiana Department of Transportation and Development (DOTD), appeals from a judgment rendered by the trial court on September 28, 2022, which granted a motion for summary judgment in favor of plaintiff/appellee, L&A Contracting Company, and against DOTD, finding that DOTD owed $968,019.80 to L&A. DOTD also asks this court to grant its cross motion for summary judgment and to dismiss L&A's suit with prejudice.
Plaintiff/relator, Vector Corrosion Technologies, Inc., filed a related writ application, which was referred to the panel assigned to consider the merits of the appeal filed by DOTD. Vector seeks review and reversal of the judgment rendered by the trial court on September 28, 2022, denying its motion for summary judgment.
For the reasons that follow, we affirm the portion of the September 28, 2022 judgment that granted the motion for summary judgment filed by L&A and rendered judgment in favor of L&A and against DOTD. We affirm the portion of the September 28, 2022 judgment that denied the motion for summary judgment filed by DOTD. We grant the writ filed by Vector. We affirm the portion of the September 28, 2022 judgment that denied the motion for summary judgment filed by Vector to the extent that Vector sought an award of attorney fees pursuant to La. R.S. 9:3902. We reverse the portion of the September 28, 2022 judgment that denied the remaining relief sought by Vector in its motion for summary judgment and render judgment in favor of Vector and against L&A, Liberty Mutual Insurance Company, and Fidelity and Deposit Company of Maryland, finding they are individually and solidarily liable to Vector in the amount of $968,019.80, plus legal interest from July 27, 2018, the date Vector sent notice of non-payment to L&A and Liberty Mutual.
UNDISPUTED MATERIAL FACTS
Through a joint statement of undisputed material facts and joint exhibits filed in support of and in opposition to the motions for summary judgment, the parties stipulated to the following undisputed facts:
This litigation arises out of a public construction project, which involved bridge repairs to U.S. Hwy 11 over Lake Pontchartrain, and is governed by La. R.S. 48:256.3, et seq., referred to as the "DOTD Public Works Act."
On January 6, 2016, DOTD, the owner of the project, contracted with L&A to perform the work (the "prime contract"). L&A's scope of work included repairing bridge support pilings. The "Louisiana Standard Specifications for Roads and Bridges," 2006 Edition ("DOTD's Standard Specifications") was made a part of and incorporated into the prime contract as a "contract document." A schedule of items, another "contract document" made a part of and incorporated into the prime contract, stipulated a unit price of $2,845.50 for each completed repair of a bridge support piling (referred to as "pile jacket assemblies"), approximately 2,682 units. The agreed-upon unit price included the cost of materials, labor, and overhead with a markup for profit.
Before L&A submitted its bid for the project to DOTD, L&A obtained price quotes/proposals from Vector and Anders Construction, Inc. for the estimated 2,682 pile jacket assemblies. Vector quoted a price of $1,675 per unit, and Anders quoted $2,625 per unit. The proposals reflected that Anders's price estimate contemplated work to be performed on the project. Specifically, Anders was to "furnish and install" the pile jacket assemblies, which included "all diving, vessels, and support." Conversely, Vector's quote, although for a lesser price, was limited to materials, delivery, and up to 750 days of onsite technical support. Neither quote included a breakdown reflecting the cost for materials, labor, services, etc.
On March 19, 2016, L&A entered into a subcontract with Anders, wherein Anders agreed to perform the work of replacing an estimated 2,682 pile jacket assemblies at $2,625 per unit. Pursuant to the subcontract, Anders agreed to acquire the stockpiled materials for use on the project.
On May 18, 2016, DOTD issued notice to proceed, authorizing L&A to commence work on the project. In accordance with La. R.S. 48:256.3, Liberty Mutual, as surety for L&A, issued the statutory payment bond.
In August 2016, Anders and Vector entered a purchase agreement whereby Vector was to furnish the pile jacket assemblies to Anders for use on the project at a per unit price of $832.
Between October 2016 and March 2018, Vector made five deliveries of pile jacket assemblies to the project site. For these five deliveries, L&A submitted four requests for advanced payment for stockpiled materials to DOTD pursuant to DOTD's Standard Specifications, which contained the following provision:
109.06 PAYMENT FOR STOCKPILED OR STORED MATERIAL.
(a) General: Payment for stockpiled or stored material will be considered only for materials anticipated to be stored for periods in excess of 30 calendar days. When approved, advance payments may be made for fabricated or natural materials that are to be incorporated in the project when stockpiled materials are stored on the project or in a dedicated stockpile at an approved site outside the limits of the project within the State of Louisiana. Payments shall be limited to durable materials described herein and shall represent a significant portion of the project cost. Perishable articles and small warehouse items are not included. These materials shall meet the requirements of the specifications. Payment for stockpiled or stored materials will not constitute acceptance. It shall be the contractor's responsibility to protect the material from damage while in storage.
* * *
Payment may be made for the invoice price for the materials, which shall not exceed 85 percent of the contract price for the items where the materials are to be incorporated. ... The quantity of material for payment will not exceed the total estimated quantity required to complete the project.
The amounts advanced on stockpiled or stored materials will be recovered by [DOTD] through deductions made on payments as the materials are incorporated in the work.
Partial payment for stockpiled materials shall be requested by the contractor in writing and the following documents shall be furnished:
(1) A copy of the invoices from supplier or manufacturer verifying the cost and quantity of material.
(2) If storage is on private property, a copy of the lease or agreement granting [DOTD] right of entry to property.
Within 30 calendar days after payment by [DOTD], the contractor shall submit a certified copy of invoices from the supplier for each item for which payment has been made. All such invoices submitted shall state the amount received by the supplier as payment in full for the materials. If this certification of payment is not presented within the 30-day period, the advanced payment will be deducted from future progress payments.
Title and ownership of materials for which advancements have been made by [DOTD] shall not vest in [DOTD] until such materials are incorporated in the work and the work accepted by [DOTD]. The making of advancements by [DOTD] shall not release the contractor from the responsibility for any portion thereof. (Emphasis added.)
L&A's first three requests for payment for stockpiled materials, made between November 2016 and January 2017, were submitted with Anders's invoices, which reflected a price of $1,675 per pile jacket assembly, and documents identifying Vector as the shipper of the materials. Vector's per unit price of $832 was not reflected on these documents. DOTD paid the first three requests for payment for stockpiled materials in full.
Anders began cleaning the existing pilings and installing the pile jacket assemblies in September 2017. However, Anders discontinued work in February 2018, and the subcontract between L&A and Anders was terminated for reasons not apparent from the summary judgment record.
On August 23, 2018, L&A advised DOTD that the subcontract with Anders was cancelled and that Anders would no longer be performing any work on the project. L&A told DOTD that it would submit the remaining requests for stockpile payments for the pile jacket assemblies with invoices from Vector, not Anders. L&A noted that Vector's invoices were at a lesser price compared to the "marked up price submitted by Anders" for the pile jacket assemblies. L&A also stated its intent to pay Vector directly upon receipt of payment from DOTD. The same day, L&A submitted the fourth and final request for advanced payment for stockpiled materials to DOTD, requesting payment in the amount of $1,252,742.40 for 1,434 pile jacket assemblies. L&A enclosed three invoices from Vector, each reflecting a price of $832 per pile jacket assembly, excluding sales tax.
In response, DOTD issued payment to L&A in the amount of $284,722.60, which was $968,019.80 less than the amount requested by L&A and invoiced by Vector. After learning that Vector charged $832 per unit, while Anders charged $1,675 per unit, DOTD took the position that it overpaid L&A when it (DOTD) paid the full amount of Anders's invoices. Therefore, DOTD deducted the amount of the purported overpayments from the last payment made to L&A for stockpiled materials.
L&A and DOTD were unable to reach an amicable resolution concerning the balance withheld from DOTD's last payment and, in April 2019, they agreed to terminate the project. The notice of termination was recorded in the Orleans Parish mortgage records on August 9, 2019.
The joint stipulation of facts and the joint exhibits do not reflect who retained ownership of the stockpiled materials after the prime contract was terminated. However, the parties do not dispute that the materials supplied by Vector were incorporated into the project.
On September 17, 2019, Vector filed a sworn statement of claim, preserving its lien and right to recover $968,019.80, the outstanding amount owed for materials it provided for the project. See La. R.S. 48:256.5. On July 6, 2020, L&A filed a release of lien bond pursuant to La. R.S. 48:256.7 in connection with Vector's statement of claim. Fidelity served as surety on the release of lien bond.
Vector filed two statements of claim before DOTD filed the notice of cancellation. The parties do not dispute that Vector properly and timely preserved its lien; therefore, we focus on the third and final statement of claim filed by Vector on September 17, 2019.
PROCEDURAL HISTORY
L&A filed a petition for damages against DOTD in September 2019, asserting that DOTD breached the obligations owed to L&A by failing to timely pay $968,019.80, which remains due and owing. In the alternative, L&A asserted causes of action for unjust enrichment and quantum meruit. DOTD filed an answer, denying that L&A was entitled to additional sums.
DOTD asserted a reconventional demand against L&A; however, DOTD's motion for summary judgment did not seek a ruling on the merits of the demand and is not at issue in this appeal.
In August 2020, Vector initiated its own suit by filing a petition against L&A, Liberty Mutual, and Fidelity. Vector asserted that the defendants were individually and solidarily liable for the amount owed and secured by its lien and sought attorney fees pursuant to La. R.S. 9:3902. Vector's suit was subsequently consolidated with the proceeding initiated by L&A.
Vector also asserted claims against DOTD, which were dismissed in a judgment signed on January 11, 2021, wherein the trial court sustained DOTD's exception of no cause of action.
L&A filed a motion for summary judgment in January 2022, seeking judgment in its favor and against DOTD for the unpaid amount of $968,019.80.L&A maintained that DOTD "undertook the obligation to pay L&A for stockpiled materials" as provided in Section 109.06 and failed to pay the full amount due.L&A additionally asserted that Anders's invoices submitted to and paid by DOTD included the cost for materials only, not services or other charges ineligible for advanced payment under Section 109.06.
In its petition for damages and its motion for summary judgment, L&A sought attorney fees pursuant to La. R.S. 48:251.5(B)(3). The September 28, 2022 judgment is silent as to L&A's request for attorney fees. Generally, silence in a judgment of the trial court as to any issue, claim, or demand placed before the court is deemed a rejection of the claim and the relief sought is presumed to be denied. Seale & Ross, P.L.C. v. Holder, 2019-1487 (La.App. 1st Cir. 8/3/20), 310 So.3d 195, 202. L&A did not file an answer to the appeal challenging the denial of its request for attorney fees. Therefore, we do not address that issue. See La. C.C.P. art. 2133.
L&A's motion focused on DOTD's prior assertion that Vector was the "supplier" of the materials, not Anders, for purposes of payment pursuant to Section 109.06. On appeal, DOTD does not assert that Anders's invoices were not eligible for payment for this reason. Therefore, we do not address this issue.
In response, DOTD filed a cross motion for summary judgment, seeking to dismiss L&A's claims. In its motion, which also served as an opposition to L&A's motion for summary judgment, DOTD argued that it was not obligated by Section 109.06 to pay for stockpiled materials. DOTD asserted that it had the discretion to determine whether to make advanced payments and that L&A had no legal or contractual right to recover the outstanding amount.
DOTD alternatively argued that, if the court found it was obligated to pay, the obligation was limited to the "invoice price" or purchase price reflected by the invoice issued by the supplier or manufacturer pursuant to Section 109.06. DOTD maintained that Vector's invoice price of $832 was the "actual cost" of each pile jacket assembly and Anders's invoices were "false." According to DOTD, the per unit price charged by Anders and paid by DOTD included a markup for labor, services, overhead, or profit - costs that were not eligible for advanced payment pursuant to Section 109.06. DOTD argued that it made a payment not owed, and L&A became indebted to it in the amount of the overpayment. See La. C.C. art. 2299 (A person who has received a payment or a thing not owed to him is bound to restore it to the person from whom he received it.) DOTD also relied on legal and contractual compensation to support its argument that it was entitled to reduce the last payment made to L&A to offset the respective debts owed by L&A and DOTD. See C.C. arts. 1893, 1901, and 1902.
DOTD explains on appeal that Anders's invoices were "false" because Anders invoiced L&A for technical field services that Anders did not engage Vector to provide, and Anders knew it was overbilling L&A. DOTD offered no evidence to establish what items were included in Anders's price and, instead, only speculates concerning the price reflected in Anders's invoices. See Hernandez v. Livingston Parish School Board, 2021-0764 (La.App. 1st Cir. 3/30/22), 341 So.3d 680, 686 (Mere conclusory allegations, improbable inferences, and unsupported speculation will not support a finding of a genuine issue of material fact.)
Finally, Vector filed a motion for summary judgment. For the reasons set forth in its petition, Vector sought judgment against L&A, as contractor and principal on the statutory payment bond, and Liberty Mutual and Fidelity, as sureties on the payment bond and the release of lien bond, respectfully, (collectively sometimes referred to as the "L&A defendants") for the principal amount of $968,019.80, plus attorney fees pursuant to La. R.S. 9:3902 and interest from the date each payment became due.
In opposition to Vector's motion, the L&A defendants asserted that DOTD alone owed the outstanding balance due to Vector. The L&A defendants further maintained that a "pay-if-paid" provision in the Anders/Vector purchase agreement conditioned Vector's right to payment on Anders's receipt of payment. A similar provision purportedly contained in the L&A/Anders subcontract conditioned Anders's right to payment on L&A's receipt of payment from DOTD. Since L&A had not received payment from DOTD, the L&A defendants contended that Vector was not owed any additional payment and was not a "claimant" under La. R.S. 48:256.5(A), i.e., "any person to whom money is due pursuant to a contract." Finally, the L&A defendants asserted that the payment bond issued by Liberty Mutual was cancelled as a matter of law by the release of lien bond issued by Fidelity. Thus, they maintained that Liberty Mutual's obligations as surety were extinguished.
Although the L&A/Anders subcontract was a joint exhibit attached to L&A's motion for summary judgment, the exhibit cannot be considered in connection with Vector's motion for summary judgment because it was not attached to Vector's motion or to the L&A defendants' opposition to that motion. Under the applicable version of La. C.C.P. art. 966, an exhibit may not be incorporated by reference. See Huggins v. Amtrust Ins. Co. of Kansas, Inc., 2020-0516 (La.App. 1st Cir. 12/30/20), 319 So.3d 362, 366-67 (recognizing that, pursuant to La. C.C.P. art. 966, this court cannot consider evidence that is not specifically filed in support of or in opposition to a motion for summary judgment, even when that evidence is filed in support of a cross motion for summary judgment.)
Following a contradictory hearing, the trial court signed a written judgment on September 28, 2022, wherein it granted L&A's motion for summary judgment and rendered judgment in favor of L&A and against DOTD in the amount of $968,019.80 plus legal interest; denied the motion for summary judgment filed by DOTD; and denied the motion for summary judgment filed by Vector.
DOTD filed the instant appeal, seeking to reverse the judgment that granted L&A's motion for summary judgment and denied DOTD's cross motion for summary judgment. See Pelle v. Munos, 2019-0549 (La.App. 1st Cir. 2/19/20), 296 So.3d 14, 18 n.2 (recognizing that, when cross motions for summary judgment raise the same issues, the court of appeal may review the denial of a summary judgment in an appeal taken from the granting of the cross motion for summary judgment.) We also consider Vector's writ application, referred to this panel, wherein Vector likewise asks this court to reverse the trial court's judgment and grant its motion for summary judgment.
See L&A Contracting Company v. State of Louisiana, through the Department of Transportation and Development c/w Vector Corrosion Technologies v. L&A Contracting Company, Liberty Mutual Insurance Company, Fidelity and Deposit Company of Maryland, and Louisiana Department of Transportation and Development, 2022-1194 (La.App. 1st Cir. 2/1/23) (unpublished).
LAW AND ANALYSIS
Motions for Summary Judgment and Standard of Review
On a motion for summary judgment, the mover has the burden of proving no genuine issue of material fact remains, and he is entitled to judgment as a matter of law. La. C.C.P. 966(D)(1). Here, the parties stipulated to all material facts. Therefore, the issue presented in each motion for summary judgment is whether the motion, memorandum, and supporting documents (submitted as joint exhibits) show the mover is entitled to judgment as a matter of law. La. C.C.P, art. 966(A)(3) and (D)(1); John M. Floyd &Associates, Inc. v. Ascension Credit Union, 2021-0560 (La.App. 1st Cir. 12/22/21), 340 So.3d 259, 266. To determine whether summary judgment is appropriate, we review the parties' evidence de novo. John M. Floyd &Associates, Inc., 340 So.3d at 266.
DOTD 's Appeal
Although DOTD raises several issues for review, the threshold issue is whether DOTD paid a thing not owed when it paid L&A the full amount charged by Anders and reflected on its invoices. Only if this issue is resolved in favor of DOTD must we address DOTD's secondary argument that it was entitled to recoup the overpayment by exercising its purported right to compensation. See La. C.C. arts. 1893,1901, 1902, and 2299.
On appeal, DOTD asserts that L&A abandoned its prior claims and raised a new estoppel argument during the hearing on the motions for summary judgment. DOTD maintains that, "by process of elimination," it is clear the trial court adopted the "only argument" advanced by L&A - that DOTD should be estopped from denying liability. We find no merit in DOTD's assertion that L&A solely relied on an estoppel argument. We do, however, agree with DOTD that L&A did not move for summary judgment based on unjust enrichment or quantum meruit. The merits of these causes of action are not before this court and are not considered.
DOTD maintains that Section 109.06 applies to the actual cost of materials only, excluding a markup of any kind and for any purpose. DOTD contends that Vector's invoices reflected the cost of materials only, while Anders's invoices reflected the material costs "plus a massive markup for something" not eligible for payment pursuant to Section 109.06. (Emphasis omitted.)
To answer the question of whether a markup is disallowed and DOTD paid a thing not owed, we must determine the meaning of "invoice price" for material or "cost" as used in Section 109.06. Therefore, we apply the rules of contract interpretation to determine the common intent of the parties. La. C.C. Art. 2045.
Rules of Contract Interpretation
When the parties are bound by a valid contract and material facts are not in conflict, the contract's application to the case is a matter of law and summary judgment would be appropriate. Country Club of Louisiana Property Owners Association, Inc. v. Baton Rouge Water Works Co., 2019-1373 (La.App. 1st Cir. 8/17/20), 311 So.3d 395, 399. Additionally, when a contract can be construed from the four comers of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law and summary judgment is appropriate. Sims v. Mulhearn Funeral Home, Inc., 2007-0054 (La. 5/22/07), 956 So.2d 583, 590; John M. Floyd & Associates, Inc., 340 So.3d at 266. If the words in the contract are clear, explicit, and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046; John M. Floyd &Associates, Inc., 340 So.3d at 266-267. The words of a contract must be given their generally prevailing meaning. La. C.C. art. 2047. Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. La. C.C. art. 2048.
Interpretation of Section 109.06
It is undisputed that Section 109.06 is contained in DOTD's Standard Specifications "approved for use on construction contracts awarded" by DOTD. The parties also agree that Section 109.06 does not obligate DOTD to make advanced payments to L&A for stockpiled materials, i.e., materials that have not yet been incorporated into the work. Nevertheless, it is also undisputed that DOTD, in its discretion, paid L&A for stockpiled materials.
L&A contends that, when DOTD determined that stockpiled material payments were warranted, it was bound to issue the payments in the manner set forth in Section 109.06. We agree. A contract is the law between the parties. La. C.C. art. 1983. DOTD agreed to comply with the terms of its own Standard Specifications, particularly Section 109.06, when that document was incorporated into and made a part of the prime contract.
Section 109.06, quoted above, does not define what is meant by "invoice price" or "cost." These terms are not defined anywhere in DOTD's Standard Specifications, in any other "contract document," or in the prime contract. Similarly, these documents do not expressly prohibit a markup on materials. DOTD does not cite a definition for these terms from another source and does not cite any authority, either contractual or legal, to support its position that payment pursuant to Section 109.06 does not or cannot include a markup.
Since the parties did not define the relevant terms, we must rely on each word's generally prevailing meaning. See La. C.C. art. 2047. Black's Law Dictionary (11th ed. 2019) does not define "invoice price." However, "invoice" is defined as "[a]n itemized list of goods or services furnished by a seller to a buyer, usu. specifying the price and terms of sale; a bill of costs." Black's Law Dictionary (11th ed. 2019). According to Merriam-Webster Online Dictionary, "invoice" means "an itemized list of goods shipped usually specifying the price and the terms of sale." See http.www.merriam-webster.com/invoice.
See Turner v. East Baton Rouge Parish School Board, 2017-1769 (La.App. 1st Cir. 6/4/18), 252 So.3d 990, 994, writ denied, 2018-1127 (La. 10/15/18), 253 So.3d 1299 and Kazan v. Red Lion Hotels Corp., 2021-01820 (La. 6/29/22), 346 So.3d 267, 271, citing Merriam-Webster Online Dictionary.
Black's Law Dictionary (11th ed. 2019) defines "price" as "[t]he amount of money or other consideration asked for or given in exchange for something else; the cost at which something is bought or sold." Merriam-Webster Online Dictionary includes a similar definition of "price" and additionally defines "price" as "the cost at which something is obtained." See http.www.merriam-webster.com/price.
Finally, "cost" is defined in Black's Law Dictionary (11th ed. 2019) as "(t]he amount paid or charged for something; price or expenditure." Merriam-Webster Online Dictionary similarly defines "cost" as "the amount or equivalent paid or charged for something." None of these definitions suggest that the seller or supplier of a thing cannot include a markup in the price or cost he sets for his goods. On the contrary, the seller/supplier has the discretion to set the price he deems appropriate. To the extent there is ambiguity as to what the pertinent undefined terms in DOTD's Section 109.06 mean and/or whether a markup may be included on an invoice submitted for payment under this section will be construed against DOTD. See La. Civ. Code art. 2056 (In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text.); Country Club of Louisiana Property Owners Association, Inc., 311 So.3d at 399.
The remaining definitions set forth in Merriam-Webster Online Dictionary for "invoice," "price," and "cost" are inapplicable. See http.www.merriam-webster.com/invoice; http.www.merriam-webster.com/price; and http.www.merriam-webster.com/cost.
The prime contract stated that it "shall not be construed against one party or the other as a result of the preparation, drafting, submittal or other event of negotiation, drafting or execution of the Agreement." The Standard Specifications, a separate contract document, does not contain similar language.
The face of Anders's invoices reflects only a price for materials - it is an itemized list of goods furnished by Anders to L&A at a certain price, i.e., the amount of money asked for in exchange for the pile assembly jackets. The price of $1,675 per pile jacket assembly is the cost assigned to each unit by Anders. There is no explanation for how Anders arrived at this price, and we decline to join DOTD in speculating on what may account for the difference between the price charged by Anders and by Vector. Nothing about the "invoice price" set by Anders made the invoices ineligible for payment pursuant to the clear language of Section 109.06.
DOTD further argues that L&A knew or should have known that the price charged by Anders was inflated and double the price that Vector charged Anders for the same material. But, DOTD cites no contract provision, and we have found none, that obligated L&A to secure the lowest price for each pile jacket assembly. L&A's purported knowledge that a better per unit price was available does not preclude payment eligibility pursuant to Section 109.06. Additionally, DOTD and L&A agreed to a price of $2,845.50 per completed pile jacket assembly, which included "overhead with a markup for profit." The prime contract did not specify where the "markup for profit" was to be added. Nothing prohibited L&A from passing along the permitted overhead or markup option to Anders, as long as the total cost for the completed repair of each pile jacket assembly was below the price stated in the prime contract.
For these reasons, we find no overpayment was made by DOTD and do not address DOTD's arguments concerning La. C.C. art. 2299 and the "voluntary payment doctrine" or compensation pursuant to La. C.C. arts. 1893, 1901, and 1902. We likewise do not address DOTD's arguments that Section 109.06 must be read in conjunction with other sections of the Standard Specifications, which purportedly allow DOTD to adjust sums paid to the contractor when partial payments are made as work is completed.
The "voluntary payment doctrine" holds that, "if a party, with a full knowledge of the facts, voluntarily pays a demand unjustly made on him and attempted to be enforced by legal proceedings, he cannot recover back the money." Leisure Recreation & Entertainment, Inc. v. First Guaranty Bank, 2021-00838 (La. 3/25/22), 339 So.3d 508, 517 (holding the "voluntary payment doctrine" contravenes La. C.C. art. 2299).
L&A satisfied its summary judgment burden of proof - it complied with Section 109.06 by submitting invoices from the entity that supplied L&A with the pile jacket assemblies, verifying the cost and quantity of material. Anders's invoice price for the materials ($1,675) was less than 85% of the contract unit price for each pile jacket assembly ($2,845.50) and the quantity submitted for payment (1,248) did not exceed the total estimated quantity required to complete the project (2,682). After DOTD paid for stockpiled materials pursuant to Section 109.06, it unilaterally reduced future payments to "claw back" funds properly paid under Section 109.06, leaving an outstanding balance of $968,019.80. Finding DOTD failed to show L&A was not entitled to summary judgment as a matter of law, we affirm the judgment granting L&A's motion for summary judgment and denying DOTD's cross motion for summary judgment.
Vector's Writ Application
The joint statement of undisputed material facts and joint exhibits specifically filed in support of Vector's motion for summary judgment established that Vector supplied materials for the project pursuant to its purchase agreement with Anders, that the materials conformed to the construction specifications, and that Vector did not receive full payment due for the materials. It is also undisputed that Vector timely filed a statement of claim and complied with the notice requirements set forth in the DOTD Public Works Act. See La. R.S. 48:256.5(B) and La. R.S. 48:256.12. Therefore, the burden shifted to the L&A defendants to establish that Vector was not entitled to summary judgment as a matter of law. See La. C.C.P. art. 966(D)(1).
Vector filed its third statement of claim on September 17, 2019 and sent notice to L&A and DOTD via certified mail on September 19, 2019, within 45 days from the recordation of DOTD's notice of contract termination (August 9, 2019).
Pay-if-Paid Provisions
The DOTD Public Works Act defines "claimant" as "any person to whom money is due pursuant to a contract with the owner or a contractor or subcontractor for ... furnishing materials or supplies for the construction, alteration, or repair of any public works...." La. R.S. 48:256.5(A). The L&A defendants assert that Vector is not a "claimant" because no amounts are due to Vector under the pay-if-paid provisions in the project contracts. However, it is undisputed that there is no contract between L&A and Vector; therefore, no pay-if-paid provision exists between these parties, which conditions Vector's receipt of payment on L&A's receipt of payment from DOTD.
For this reason, we find L&A defendants' reliance on Coastal Development Group, L.L.C, v. International Equipment Distributors, Inc., 2010-1202 (La.App. 1st Cir. 2/11/11), 2011 WL 766608 (unpublished), is misplaced. There, this court enforced a similar pay-if-paid provision in a contract between the subcontractor and the general contractor. Coastal, 2011 WL 766608, *2 n.4.
The L&A defendants' argument that Vector is not a "claimant" is also contrary to Glencoe Education Foundation, Inc., v. Clerk of Court and Recorder of Mortgages for the Parish of St. Mary, 2010-1872 (La.App. 1st Cir. 5/6/11), 65 So.3d 225, writ denied, 2011-1142 (La. 10/21/11), 73 So.3d 383. In Glencoe, the subcontracts between the contractor and subcontractors contained a pay-if-paid provision, which conditioned payment to the subcontractors on the contractor's receipt of payment from the owner of the public works project. Glencoe, 65 So.3d at 228. Because the contractor had not been paid by the owner, the contractor and the surety on the payment bond asserted that payment was not owed to the subcontractors. This court found that the subcontractors were "claimants" pursuant to the Louisiana Public Works Act, notwithstanding the pay-if-paid provisions. Glencoe, 65 So.3d at 230, 233; see also La. R.S. 38:2241 and La. R.S. 38:2242(A).
The definition of "claimant" in the Public Works Act is materially indistinguishable from the definition contained in the DOTD Public Works Act. See La. R.S. 38:2242(A) and La. R.S. 48:256.5(A).
As to Fidelity, the release of lien bond secured payment for Vector's claim under the DOTD Public Works Act. Filing a release of lien bond should neither enlarge nor diminish the substantive rights of the claimant. See D &J Construction Co. v. Mid-Continent Stone Co., 571 So.2d 762, 765 (La.App. 1st Cir. 1990) (discussing release of lien bonds pursuant to the Public Works Act). Therefore, Vector had no greater or less rights against Fidelity than it did against L&A.
Effect of Fidelity's Release of Lien Bond on Liberty Mutual's Payment Bond
Next, the L&A defendants argue that Liberty Mutual's payment bond was cancelled as a matter of law by the filing of the release of lien bond by Fidelity.
Pursuant to La. R.S. 48:256.3(A)(1), DOTD must require the contractor on a public works project in excess of $50,000 to furnish a bond with a "good, solvent, and sufficient surety in the sum of not less than fifty percent of the contract price for the payment by the contractor or subcontractor to claimants as defined in R.S. 48:256.5." "The bond furnished shall be a statutory bond and no modification, omissions, additions in or to the terms of the contract, in the plans or specifications, or in the manner and mode of payment shall in any manner diminish, enlarge, or otherwise modify the obligations of the bond." La. R.S. 48:256.3(A)(2). Liberty Mutual, as surety, furnished the payment bond for L&A, as principal, pursuant to these requirements.
After Vector filed a statement of claim and L&A deposited Fidelity's release of lien bond, the Clerk of Court for Orleans Parish issued a Certificate of Cancellation (dated July 6, 2020), cancelling Vector's lien from the mortgage records. This was done in accordance with La. R.S. 48:256.7, which states:
A. If a statement of claim or privilege is filed, any interested party may deposit with the recorder of mortgages either a bond of a lawful surety company authorized to do business in the state or cash, certified funds, or a federally insured certificate of deposit to guarantee payment of the obligation secured by the privilege or that portion as may be lawfully due together with interest, costs, and attorney fees to which the claimant may be entitled up to a total amount of one hundred twenty-five percent of the principal amount of the claim as asserted in the statement of claim or privilege. A surety shall not have the benefit of division or discussion.
B. If the recorder of mortgages finds the amount of the cash, certified funds, or certificate of deposit or the terms and amount of a bond deposited with him to be in conformity with this Section, he shall note his approval on the bond and make note of either the bond or of the cash, certified funds, or certificate of deposit in the margin of the statement of claim or privilege as it is recorded in the mortgage records and cancel the statement of claim or privilege from his records by making an appropriate notation in the margin of the recorded statement. The bond shall not be recorded but shall be retained by the recorder of mortgages as a part of his records. (Emphasis added.)
C. Any party who files a bond or other security to guarantee payment of an obligation secured by a privilege in accordance with the provisions of Subsection A of this Section shall give notice to the department, the claimant, and the contractor by certified mail, and shall file a certified copy of the cancellation of the statement of claim or privilege by the recorder of mortgages, showing the recordation data, with the undersecretary of the department by certified mail.
The L&A defendants rely on La. R.S. 48:256.7(B) to argue that Liberty Mutual's payment bond was cancelled as a matter of law when Fidelity's release of lien bond was posted, thus, relieving Liberty Mutual of any liability or obligation to pay Vector. Conversely, Vector cites La. R.S. 48:256.12, focusing on the text bolded below, to support its argument that Fidelity's release of lien bond does not preclude recovery on Liberty Mutual's payment bond. Louisiana Revised Statutes 48:256.12 provides:
Nothing in this Part shall be construed to deprive any claimant, as defined in this Part and who has complied with the notice and recordation requirements of R.S. 48:256.5(B), of his right of action on the bond furnished pursuant to this Part, provided that said action must be brought against the surety or the contractor or both within one year from the registry of acceptance of the work or of notice of default of the contractor; except that before any claimant having a direct contractual relationship with a subcontractor but no contractual relationship with the contractor shall have a right of action against the contractor or the surety on the bond furnished by the contractor, he shall in addition to the notice and recordation required in R.S. 48:256.5(B) give written notice to said contractor and surety within forty-five days from the recordation of the notice of final acceptance by the department of the work or notice by the department of default, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor or service was done or performed. Such notice shall be served by mailing the same by registered or certified mail, postage prepaid, in envelopes addressed separately to the contractor and surety at any place each maintains an office in the state of Louisiana. (Emphasis added.)
Neither party cites jurisprudence applying or interpreting these provisions or similar provisions found in the Public Works Act or the Louisiana Private Works Act, and we have found none. After thorough consideration of the statutory provisions at issue and the purpose of the Public Works Act, we agree with Vector.
See La. R.S. 38:2241 (requiring a bond on certain public works projects) and La. R.S. 38:2242.2 (setting forth a similar procedure for the furnishing of a release of lien bond). See also La. R.S. 9:4812 (requiring a bond on certain private works projects) and La. R.S. 9:4835 (setting forth a similar procedure for the furnishing of a release of lien bond.) L&A cites Pittman Bros. Construction Co. v. First Sewerage Dist. of Lake Charles, 193 La. 307, 314, 190 So. 563, 565 (1939) and State ex rel. Pittman Bros. Const. Co. v. Watson, 199 La. 623, 632, 6 So.2d 709, 712 (1942); however, neither addressed whether a statutory payment bond is extinguished as a matter of law when a release of lien bond is posted.)
Louisiana Revised Statutes 48:256.7 does not state that a statutory payment bond, posted in accordance with La. R.S. 48:256.3, will be cancelled or otherwise rendered null when a release of lien bond is deposited. There is no indication the legislature intended this result, instead, the clear wording of La. R.S. 48:256.7 provides only that the statement of claim or privilege will be cancelled. Additionally, the clear language of La. R.S. 48:256.12 provides that nothing within "this Part" (the DOTD Public Works Act), which includes the posting of a release of lien bond pursuant to La. R.S. 48:256.7, deprives a claimant of its right of action "on the bond furnished pursuant to this Part," i.e., the payment bond required by La. R.S. 48:256.3.
Because the bond described in La. R.S. 48:256.7 is not statutorily required but is an option that may be utilized by an "interested party" to cancel the lien, we find La. R.S. 48:256.12 necessarily refers to the statutory payment bond required by La. R.S. 48:256.3. See D & J Construction Co., 571 So.2d at 765 ("The giving of the [release of lien] bond is at the option of the contractor or owner and stands for the lien."
When a law is clear and unambiguous, and its application does not lead to absurd consequences, it shall be applied as written, with no further interpretation made in search of the legislative intent. La. C.C. art. 9; La. R.S. 1:3; La. R.S. 1:4. Additionally, all laws pertaining to the same subject matter must be read in pari materia, and the legislature is presumed to enact each statute with deliberation and with full knowledge of all existing laws on the same subject. La. C.C. art. 13; Woodrow Wilson Construction, LLC v. Amtek of Louisiana, Inc., 2017-1156 (La.App. 1st Cir. 8/6/18), 256 So.3d 305, 314-15.
If the legislature intended for a release of lien bond furnished in accordance with La. R.S. 48:256.7 to cancel the statutory payment bond required by La. R.S. 48:256.3, it could have expressly stated this in the statutory provisions. However, it did not. We have found nothing in the DOTD Public Works Act, or in case law interpreting and applying the Act, to support the L&A defendants' argument. Consequently, the statutory payment bond furnished by Liberty Mutual remained viable after L&A deposited Fidelity's release of lien bond and, therefore, Liberty Mutual may be liable for payment of the outstanding amount owed to Vector.
We are also mindful that statutes like the DOTD Public Works Act and the Public Works Act, La. R.S. 38:2241, et seq, are intended to protect laborers and suppliers of materials on public works. See Woodrow Wilson Construction, LLC, 256 So.3d at 311. This objective is accomplished by requiring a statutory payment bond, which serves as an additional fund or security to assure that those who perform work on public projects receive payment for their work in the event of a contractor's inability to fulfill its payment obligations. It insures against unpaid claims from parties supplying labor and materials for the construction of public works. Glencoe, 65 So.3d at 230-31. A finding by this court that Liberty Mutual's payment bond was no longer in effect or was cancelled by operation of law when the release of lien bond was filed would be contrary to this stated purpose. Such an interpretation would deprive laborers and suppliers of materials of a statutorily provided protection and source of recovery. See Woodrow Wilson Construction, LLC, 256 So.3d at 316 (The legislative history of an act and contemporaneous circumstances are also helpful guides in ascertaining legislative intent.)
We further note that Liberty Mutual's payment bond states that Liberty Mutual and L&A "bind themselves, their heirs, successors, and assigns, in solido." Additionally, Fidelity "guaranteed payment of the obligation secured by [Vector's] privilege" through its release of lien bond expressly furnished in accordance with La. R.S. 48:256.7. See La. C.C. art. 3035 (Suretyship is an accessory contract by which a person binds himself to a creditor to fulfill the obligation of another upon the failure of the latter to do so.) A surety, or each surety when there is more than one, is liable "for the full performance of the obligation of the principal obligor." La. C.C. art. 3045. See La. C.C. art. 1794 ("An obligation is solidary for the obligors when each obligor is liable for the whole performance"). Motor Parts Service of Company, Inc. v. Colbert, 54,450 (La.App. 2d Cir. 6/15/22), 343 So.3d 282, 287-88. Therefore, L&A, Liberty Mutual, and Fidelity are liable solidary obligors on the debt owed to Vector.
As noted earlier, a release of lien bond posted in accordance with La. R.S. 48:256.7 is optional; therefore, it is not a statutory bond. See Law Enforcement District of Jefferson Parish v. MAPP Construction, LLC, 16-220 (La.App. 5th Cir. 6/30/16), 196 So,3d 896, 897 (finding the bond posted by the subcontractor was a conventional bond because the subcontractor was not required by statute (the Public Works Act) to obtain a bond for its performance.) Thus, we apply the general laws of suretyship to Fidelity's release of lien bond and find that Glencoe is distinguishable in this regard. See Glencoe, 65 So.3d at 233, finding the general principles of suretyship law did not apply to the statutory bond at issue in that case.
For these reasons, we find the trial court erred in denying this portion of the motion for summary judgment filed by Vector. We reverse this portion of the trial court's judgment and grant summary judgment in favor of Vector and against L&A, Liberty Mutual, Fidelity, finding these defendants are individually and solidarily liable to Vector for the sum of $968,019.80.
Interest and Attorney Fees
In its motion for summary judgment, Vector sought interest from the date each payment became due. The evidence offered in support of Vector's motion establishes that Vector sent notice of non-payment to L&A and Liberty Mutual, along with DOTD and Anders, on July 27, 2018. There being no other evidence in the record to establish the date each payment became owed by the L&A defendants, rather than Anders, we find Vector is entitled to interest from July 27, 2018. See La. C.C. art. 2000; La. R.S. 9:3500; La. R.S. 13:4202. See also Carr &Associates, Inc. v. Jones, 2022-0946 (La.App. 1st Cir. 5/10/23) - So.3d -, -, 2023 WL 3336399, *10.
The DOTD Public Works Act provides for an award of attorney fees to a successful claimant in a concursus proceeding brought pursuant to the Act. See La. R.S. 48:256.11. Since this suit is not a concursus proceeding brought pursuant to the Act, Vector does not seek attorney fees under this statute but, instead, relies on La. R.S. 9:3902 as the statutory authority for the award.
Louisiana Revised Statute 9:3902 appears in Book Ill. of the Civil Code Ancillaries concerning suretyship. Since the legislature provided for an award of attorney fees in certain instances under the DOTD Public Works Act, we decline to apply the more general statute relied on by Vector. See Burge v. State, 2010-2229 (La. 2/11/11), 54 So.3d 1110, 1113 (It is well settled that a specific statute controls over a broader, more general statute.) Additionally, because public contract laws grant special rights to claimants, there must be strict compliance with those provisions. Don Bihm Equip. Co. v. Louisiana Department of Transportation and Development, 2010-1997 (La.App. 1st Cir. 5/6/11), 64 So.3d 897, 903.
We also note that the attorney fee provision contained in the Public Works Act, La. R.S. 38:2246, provides for an award of attorney fees to a successful claimant, "whether by concursus proceeding or separate suit." As set forth above, it is presumed that the legislature enacted La. R.S. 48:256.11 (La. Acts 1997, No. 1112, §1, eff. July 14, 1997) with deliberation and with full knowledge of La. R.S. 38:2246 (La. Acts 1991, No. 543, §1, eff. Aug. 1, 1991) and intentionally chose to limit the availability of an award of attorney fees in La. R.S. 48:256.11 (the DOTD Public Works Act). See La. C.C. art. 13; Woodrow Wilson Construction, LLC, 256 So.3d at 314-15. See also, Dixie Building Material Co. v. Liberty Somerset, Inc., 94-1373 (La.App. 4th Cir. 3/29/95), 656 So.2d 1041, 1044, writ denied, 95-1828 (La. 10/27/95), 661 So.2d 1346 (reversing the trial court's award of attorney fees pursuant to La. R.S. 9:3902, a provision "outside of the Public Works Act.")
Therefore, we decline to award attorney fees to Vector pursuant to La. R.S. 9:3902 and affirm the denial of this portion of Vector's motion for summary judgment.
DECREE
For the reasons set forth above, we affirm the portion of the trial court's September 28, 2022 judgment that granted the motion for summary judgment filed by L&A Contracting Company and rendered judgment in favor of L&A and against the State of Louisiana, through Department of Transportation and Development, finding the State of Louisiana, through Department of Transportation and Development, liable to L&A Contracting Company in the amount of $968,019.80.
We affirm the portion of the trial court's September 28, 2022 judgment that denied the motion for summary judgment filed by the State of Louisiana, through Department of Transportation and Development, We affirm the portion of the trial court's September 28, 2022 judgment that denied the motion for summary judgment filed by Vector Corrosion Technologies, Inc. to the extent that Vector sought an award of attorney fees pursuant to La. R.S. 9:3902. We reverse the portion of the trial court's September 28, 2022 judgment that denied the remaining relief sought by Vector in its motion for summary judgment and render judgment in favor of Vector Corrosion Technologies, Inc. and against L&A Contracting Company, Liberty Mutual Insurance Co., and Fidelity and Deposit Company of Maryland, finding they are individually and solidarily liable to Vector Corrosion Technologies in the amount of $968,019.80, plus legal interest from July 27, 2018.
Appeal costs in the amount of $5,116.50 are assessed against the Louisiana Department of Transportation and Development.
JUDGMENT ON APPEAL AFFIRMED.
WRIT GRANTED. JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.
WELCH, J., concurring in part and dissenting in part.
I respectfully concur in part and dissent in part from the majority opinion in this matter. I concur that the portion of the trial court's September 28,2022 judgment denying the relief sought by Vector in its motion for summary judgment should be reversed and that judgment should be rendered in favor of Vector and against L&A, Liberty Mutual, and Fidelity, finding that they are individually and solidarity liable to Vector in the amount of $968,019.80 plus interest from July 27, 2018, the date Vector sent notice of non-payment to L&A and Liberty Mutual. However, I disagree with majority opinion in all other respects.
First and foremost, the September 28, 2022 judgment should be reversed insofar as it granted the motion for summary judgment filed by L&A, rendered judgment in favor of L&A and against DOTD, and denied DOTD's motion for summary judgment. In affirming the judgment of the trial court, the majority has determined that L&A complied with Section 109.06 of DOTD's Standard Specifications by submitting invoices from the entity that supplied L&A with the pile jacket assemblies, verifying the cost and quantity of material. However, this is incorrect-L&A submitted invoices from Anders; the entity that supplied the pile jacket assemblies was Vector-not Anders.
Section 109.06 of DOTD's Standard Specifications provides, in part:
109.06 PAYMENT FOR STOCKPILED OR STORED MATERIAL.
(a) General: Payment for stockpiled or stored material will be considered only for materials anticipated to be stored for periods in excess of 30 calendar days. When approved, advance payments may be made for fabricated or natural materials that are to be incorporated in the project when stockpiled materials are stored on the project or in a dedicated stockpile at an approved site outside the limits of the project within the State of Louisiana. Payments shall be limited to durable materials described herein and shall represent a significant portion of the project cost. Perishable articles and small warehouse items are not included. These materials shall meet the requirements of the specifications. Payment for stockpiled or stored materials will not constitute acceptance. It shall be the contractor's responsibility to protect the material from damage while in storage.
* * *
Payment may be made for the invoice price for the materials, which shall not exceed 85 percent of the contract price for the items where the materials are to be incorporated. ... The quantity of material for payment will not exceed the total estimated quantity required to complete the project.
The amounts advanced on stockpiled or stored materials will be recovered by [DOTD] through deductions made on payments as the materials are incorporated in the work.
Partial payment for stockpiled materials shall be requested by the contractor in writing and the following documents shall be furnished:
(1) A copy of the invoices from supplier or manufacturer verifying the cost and quantity of material.
(2) If storage is on private property, a copy of the lease or agreement granting [DOTD] right of entry to property.
Within 30 calendar days after payment by [DOTD], the contractor shall submit a certified copy of invoices from the supplier for each item for which payment has been made. All such invoices submitted shall state the amount received by the supplier as payment in full for the materials. If this certification of payment is not presented within the 30-day period, the advanced payment will be deducted from future progress payments.
Title and ownership of materials for which advancements have been made by [DOTD] shall not vest in [DOTD] until such materials are incorporated in the work and the work accepted by [DOTD]. The making of advancements by [DOTD] shall not release the contractor from the responsibility for any portion thereof. (Emphasis added.)
Thus, the payments made in advance by DOTD for the cost of stockpiled materials should not include labor or other markup by Anders, a subcontractor. Further, although supplier is not defined, the supplier was undisputedly Vector, and thus, DOTD should not have paid for stockpiled materials or supplies invoiced from Anders, who was neither the supplier nor the manufacturer. Through inflated invoices from Anders, DOTD was induced to pay more than the actual cost of the materials from Vector and should not have to pay more than the amount that those materials cost. Therefore, DOTD made overpayment and was entitled to summary judgment in its favor. By allowing L&A to pass on to DOTD the inflated invoices, including markup and labor from a subcontractor, the majority has sanctioned L&A's conduct and made broadly sweeping policy decisions that are simply not warranted.
Next, the September 28, 2022 judgment should also be reversed insofar as it denied Vector's motion for summary judgment seeking an award of attorney fees pursuant to La. R.S. 9:3902. Although the legislature provided for an award of attorney fees in concursus proceedings under the DOTD Public Works Act, La. R.S. 48:256.11, this matter is not a concursus proceeding under that provision. Furthermore, there is nothing in the legislative history of that provision to suggest, indicate, or otherwise establish that the legislature intentionally chose to limit the availability of an award of attorney fees to the circumstances provided therein. Accordingly, there is no reason why Vector should not be entitled to relief under La. R.S. 9:39022.
recognize that in Dixie Building Material Co. v. Liberty Somerset, Inc., 94-1373 (La.App. 4th Cir. 3/29/95), 656 So.2d 1041, 1041, writ denied, 95-1828 (La. 10/27/95), 661 So.2d 1346, a case involving the Public Works Act (as opposed to the DOTD Public Works Act), the Fourth Circuit Court of Appeal reversed a trial court's award of attorney fees under La. R.S. 9:3902, a provision outside of the Public Works Act, because the Public Works Act provides the exclusive remedy available to parties in public construction work. However, I respectfully disagree with that decision of the Fourth Circuit.
Thus, I respectfully concur in part and dissent in part.