Sealevel Construction, Inc. v. Westcoast Corporation et al

Filing 99

ORDER GRANTING IN PART AND DENYING IN PART 97 MOTION to Alter 96 Judgment, or Alternatively, MOTION for New Trial for the reasons set forth herein. Signed by Judge Susie Morgan on 10/6/2014. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SEALEVEL CONSTRUCTION, INC.
Plaintiff

CIVIL ACTION

VERSUS

NO. 12-874

WESTCOAST CORPORATION, et al.
Defendants

SECTION "E"

ORDER
The Court has reviewed Defendants’ Motion to Alter Judgment, or Alternatively
for New Trial under Rule 52(b).1

Defendants’ motion is GRANTED in part and

DENIED in part for the reasons set forth below.
Defendants’ motion to correct a clerical error in Finding of Fact #502 is granted
without objection. The second sentence in Finding of Fact #50 is revised to read as
follows:
Because Sealevel failed to drive any batter piles whatsoever and at no point
was on schedule, the Court concludes that Sealevel breached the contract
and rendered deficient performance.
Defendants’ motion to amend Finding of Fact #31 is granted in part. Finding of
Fact #31 is revised to add the following sentences:
Sealevel’s revised proposal for the Project included costs for jetting the
battered piles, namely $9,450 for equipment and $39,474.46 for labor,
totaling $48,924.46.3 Sealevel did not jet any piles on the Project.
Defendants’ motion to amend Finding of Fact #33 is denied. As the Court has
held, Bo-Mac’s bid did not but should have included the cost of jetting, and Westcoast
was not reasonably mitigating its damages when it issued a change order and paid an
R. Doc. 97.
R. Doc. 94.
3 Exhibit 8-10.
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additional amount for jetting to Bo-Mac. If Westcoast paid twice for jetting the piles it is
through its own fault. Sealevel paid $503,166.89 to Boykin Brothers for the jetted plumb
and battered piles, all of which were used in the Project. 4 Westcoast paid Sealevel
$83,028.16.5 Given the factual circumstances of this case, it can hardly be said that
Sealevel has received a windfall.
Defendants’ motion to reconsider and amend Finding of Fact #27 is denied. The
trial court weighed the credibility of the witnesses and credited the testimony of Henry
R. Whitty, Sr., an expert in the field of pile driving and estimating based on his fifty
years of experience as a pile driving operator, foreman, estimator, manager and
consultant.6 Defendants’ related request for an additional finding of fact that Sealevel is
estopped from disputing Bo-Mac’s subcontract price to mobilize and demobilize is
denied.
The Defendants’ request that the judgment be reduced is denied. Defendants’
motion for a new trial is denied. A Rule 59(e) motion calls into question the correctness
of a judgment. Such a motion must clearly establish either a manifest error of law or
fact or must present newly discovered evidence. Defendants’ motion has done neither.
IT IS ORDERED that Defendants’ motion is GRANTED in part and DENIED
in part as set forth above.
New Orleans, Louisiana, this 6th day of October, 2014.
___________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

Finding of Fact #17.
Finding of Fact #43.
6 R. Doc. 82.
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