Audubon Commission v. Roy Frischertz Co, et al

Filing

UNPUBLISHED OPINION FILED. [08-30993 Reversed and Remanded08-31052 Reversed and Remanded ] Judge: WED , Judge: PRO , Judge: CH Mandate pull date is 12/01/2010 [08-30993, 08-31052]

Audubon Commission ase: 08-30993 Co, et al C v. Roy Frischertz Document: 00511290584

Page: 1 Date Filed: 11/10/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 10, 2010 N o . 08-30993 Lyle W. Cayce Clerk

I n the Matter of: ROY FRISCHHERTZ CONSTRUCTION CO. INC., D ebtor.

A U D U B O N COMMISSION, A p p e lla n t­ C ro s s -A p p e lle , v. R O Y FRISCHHERTZ CONSTRUCTION CO. INC., A p p e lle e ­ C r o s s -A p p e lla n t, O H I O CASUALTY INSURANCE CO., A p p e lle e .

A p p e a l from the United States District Court for the Eastern District of Louisiana U S D C No. 2:08-CV-89 U S D C No. 2:07-CV-9426

B e fo r e DAVIS, OWEN, and HAYNES, Circuit Judges. P E R CURIAM:*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Dockets.Justia.com

Case: 08-30993 Document: 00511290584 Page: 2 Date Filed: 11/10/2010

No. 08-30993 T h e judgment of the bankruptcy court is reversed in part and we remand fo r the following reasons: 1 . Section 14.1.1 of the construction contract requires only an actual work s t o p p a g e of thirty consecutive days following a government act or acts that r e q u ir e work to be stopped. The bankruptcy court did not clearly err when it d e t e r m in e d that the August 28, 2005, "Promulgation of Emergency Orders," w h ic h instituted a mandatory evacuation of "all of the Parish of Orleans," r e q u ir e d work to be stopped and that "it was not possible for RFCC to man the A u d u b o n project" for thirty consecutive days following the evacuation order. 2 . The bankruptcy court properly denied Audubon its completion costs and p r o o f of claim in the main bankruptcy proceeding. 3 . The bankruptcy court did not abuse its discretion in excluding Roy F r is c h h e r t z , III's video deposition testimony from evidence at trial. 4 . The bankruptcy court did not err in its determination that the evidence w a s insufficient to support RFCC's claim to compensation for lost overhead and p r o fit in addition to recovery of the contract price for work actually completed. 5 . The bankruptcy court erred in determining that RFCC was not entitled t o the retainage withheld by Audubon. "Retainage is a portion or percentage of p a y m e n t s due for the work completed on a contract that is held back until the e n tir e job is completed satisfactorily."1 As is typical in construction contracts,2 t h e agreement between RFCC and Audubon provided for monthly progress p a y m e n t s and withholding of retainage. U n d e r the terms of the contract, RFCC has the right to recover retainage a ft e r termination. Specifically, § 14.1.3 provides:

Quality Design & Constr., Inc. v. City of Gonzales ex rel. Berthelot, 06-2211, p. 2 n.1 (La. App. 1 Cir. 11/28/07); 977 So. 2d 87, 88 n.1.
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See State v. Laconco, Inc., 430 So. 2d 1376, 1381-82 (La. Ct. App. 1983).

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Case: 08-30993 Document: 00511290584 Page: 3 Date Filed: 11/10/2010

No. 08-30993 I f one of the reasons described in Section 14.1.1 or 14.1.2 exists, the C o n t r a c t o r may, upon seven days' written notice to the Owner and A r c h it e c t , terminate the Contract and recover from the Owner p a y m e n t for Work executed and for proven loss with respect to m a t e r ia ls , equipment, tools, and construction equipment and m a c h in e r y , including reasonable overhead, profit and damages. B e c a u s e RFCC properly terminated the contract, this section unequivocally e n tit le s RFCC to "payment for Work executed," irrespective of substantial c o m p le t io n . Therefore, this section allows RFCC to recover the contractually a g r e e d upon compensation for completed work. Because retainage is simply 5% o f the compensation properly due, the plain language of the provision allows R F C C to recover retainage. RFCC is entitled to retainage. * * *

R E V E R S E D in part and REMANDED.

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