Opinion
NO. 2020-CA-0154
01-14-2021
TKTMJ, INC. v. THE SEWERAGE AND WATER BOARD OF NEW ORLEANS
Daniel Lund, III Stuart Glen Richeson Carys A. Arvidson PHELPS DUNBAR, LLP 365 Canal Street, Suite 2000 New Orleans, LA 70130 COUNSEL FOR PLAINTIFF/APPELLEE John M. Landis Nicholas J. Wehlen STONE PIGMAN WALTHER WITTMANN L.L.C. 909 Poydras Street, Suite 3150 New Orleans, LA 70112 COUNSEL FOR DEFENDANT/APPELLANT
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-11900, DIVISION "I-14"
Honorable Piper D. Griffin, Judge (Court composed of Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods, Judge Paula A. Brown)
ON APPLICATION FOR REHEARING
Daniel Lund, III
Stuart Glen Richeson
Carys A. Arvidson
PHELPS DUNBAR, LLP
365 Canal Street, Suite 2000
New Orleans, LA 70130
COUNSEL FOR PLAINTIFF/APPELLEE John M. Landis
Nicholas J. Wehlen
STONE PIGMAN WALTHER WITTMANN L.L.C.
909 Poydras Street, Suite 3150
New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLANT
APPLICATION FOR REHEARING GRANTED; ORIGINAL OPINION AFFIRMED AS CLARIFIED
PAB
SCJ
RBW
On December 16, 2020, this Court issued an opinion in the above captioned case along with the Notice of Judgment. TKTMJ, Inc., v. The Sewerage and Water Board of New Orleans, 20-154 (La. App. 4 Cir. 12/16/2020). TKTMJ, Inc. (hereinafter "TKTMJ") filed an application for rehearing on December 30, 2020. Pursuant to Uniform Rules-Courts of Appeal, Rule 2-18.2, we find TKTMJ's application for rehearing timely.
In the original opinion, this Court amended the district court's judgment and rendered judgment, awarding certain damages to the parties, respectively. TKTMJ requests, in its application for rehearing, this Court to clarify the form of its amended judgment, as rendered in the opinion. Finding merit in the application for rehearing, we hereby grant TKTMJ's application for rehearing solely for clarification of this Court's opinion.
This Court, in our original opinion, rendered the following judgment:
1. S&WB is awarded liquidated damages in the amount of $92,000.00 to be paid by TKTMJ and Travelers;
2. the total damages award to TKTMJ is reduced by:
a. $22,337.70 (which was improperly awarded to TKTMJ by the district court for installation of the overhead service at Plum Orchard Station); and
b. $142,406.52 (the difference between the initial award of delay damages for the injection of the dry well wall at the Dodt Station minus the delay damages TKTMJ was entitled for the delay).
See TKTMJ, Inc., 20-154, p. 35 (footnotes omitted).
3. the judgment is amended to award TKTMJ total damages in the amount of $1,555,064.02 to be paid by S&WB.
In its application for rehearing, TKTMJ argues that the amended judgment rendered by this Court should be in accord with La. C.C. art. 1893, which provides that "[c]ompensation takes place by operation of law when two persons owe to each other sums of money . . . and these sums or quantities are liquidated and presently due," and "[i]n such a case, compensation extinguishes both obligations to the extent of the lesser amount." Thus, because this Court awarded a greater sum to TKTMJ than to The Sewerage and Water Board of New Orleans ("S&WB"), TKTMJ contends that any obligation it had to S&WB was extinguished by operation of law. We agree.
Counsel for TKTMJ certifies that S&WB has no opposition to this Court, clarifying the amendment to the judgment pursuant to La. C.C. art. 1893.
Accordingly, we grant TKTMJ's application for rehearing for the sole purpose of clarifying the amended judgment rendered by this Court as follows:
1. S&WB is entitled to liquidated damages in the amount of $92,000.00;
2. the total damages award to TKTMJ is reduced by:
a. $22,337.70 (which was improperly awarded to TKTMJ by the district court for installation of the overhead service at Plum Orchard Station),
b. $142,406.52 (the difference between the initial award of delay damages for the injection of the dry well wall
at the Dodt Station minus the delay damages TKTMJ was entitled for the delay), and
c. $92,000.00 (off-set for liquidated damages owed to S&WB in accordance with La. C.C. art. 1893);
3. the judgment is amended to award TKTMJ total damages in the amount of $1,463,064.02 to be paid by S&WB.
The difference between the initial award of 135 delay days @ $1,249.18 ($168,639.30) and the delay TKTMJ was entitled, 21 delay days @ $1,249.18 ($26,232.78).
The initial total award by the district court, $1,719,808.24 - $256,744.22 (total amount of the reduction of the award) = $1,463,064.02. --------
APPLICATION FOR REHEARING GRANTED; ORIGINAL OPINION AFFIRMED AS CLARIFIED