Tegrity Contractors, Inc. v. Spectra Group, Inc. et al

Filing 73

ORDER & REASONS granting 45 Motion for Partial Summary Judgment; denying 46 Motion for Summary Judgment; granting in part and denying in part 47 Motion for Summary Judgment and granting 49 Motion for Leave to File Amended Complaint. Signed by Judge Martin L.C. Feldman on 12/18/2013. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TEGRITY CONTRACTORS, INC.

CIVIL ACTION

VERSUS

NO. 12-2555

THE SPECTRA GROUP, INC. ET AL.

SECTION “F”

ORDER AND REASONS
Before the Court are four motions: (1) Boutte Shopping Center,
LLC's motion for partial summary judgment on Tegrity's unjust
enrichment claim; (2) Jeff Farmer's motion for summary judgment;
(3) Tegrity Contractors, Inc.'s motion for leave to file an amended
complaint under Fed. R. Civ. P. 15(c)(1)(C); and (4) The Spectra
Group, Inc.'s motion for summary judgment.

For the reasons that

follow,

for

Boutte

Shopping

Center's

motion

partial

summary

judgment is GRANTED; Jeff Farmer's motion for summary judgment is
DENIED; Tegrity's motion for leave to amend its complaint is
GRANTED; and Spectra's motion for summary judgment is GRANTED in
part and DENIED in part.
Background
This dispute arises out of the construction of a shopping
center.
In

early

2009,

Tegrity

Contractors,

Inc.,

as

general

contractor, entered into a contract with The Spectra Group, Inc.
and Boutte Shopping Center, LLC, for the construction of a shopping

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center and retail store in Boutte, Louisiana. Tegrity alleges that
it completed all the required work and provided all necessary
materials under the terms of the contract; however, Spectra and
Boutte Shopping Center have failed to pay Tegrity the agreed upon
sum.

Tegrity

asserts

that

it

is

still

owed

a

minimum

of

$253,751.74.
On October 19, 2012, Tegrity filed suit in this Court,
invoking the Court’s diversity jurisdiction, naming as defendants
Spectra; Boutte Shopping Center; and Jeff Farmer,1 Spectra’s agent.
Tegrity alleges claims for breach of contract, open account, unjust
enrichment, and statutory and contractual attorney’s fees.

Now

before the Court are four motions: (1) Boutte Shopping Center's
motion for partial summary judgment on Tegrity's unjust enrichment
claim; (2) Jeff Farmer's motion for summary judgment; (3) Tegrity's
motion for leave to amend its complaint; and (4) Spectra's motion
for summary judgment.
I.

Summary Judgment Standard

Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine issue as to
any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine issue of fact exists if

the record taken as a whole could not lead a rational trier of fact
1

Tegrity sues Farmer both in his individual capacity and
in his capacity as the alleged alter ego of Spectra and Boutte
Shopping Center.
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to find for the non-moving party.

See Matsushita Elec. Indus. Co.

v. Zenith Radio., 475 U.S. 574, 586 (1986).

A genuine issue of

fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.

See

id.

Therefore,

"[i]f

the

evidence

is

merely

colorable, or is not significantly probative," summary judgment is
Id. at 249-50 (citations omitted).

appropriate.

Summary judgment

is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).

See Celotex Corp. v. Catrett,

In this regard, the non-moving party

must do more than simply deny the allegations raised by the moving
party.

See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d

646, 649 (5th Cir. 1992).

Rather, he must come forward with

competent evidence, such as affidavits or depositions, to buttress
his claims.

Id.

Hearsay evidence and unsworn documents do not

qualify as competent opposing evidence.

Martin v. John W. Stone

Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987). Finally, in
evaluating the summary judgment motion, the Court must read the
facts

in

the

light

most

favorable

Anderson, 477 U.S. at 255.

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to

the

non-moving

party.

II.
A.

Discussion

Boutte Shopping Center's Motion for Partial Summary Judgment
Local Rule 7.5 of the Eastern District of Louisiana requires

that memoranda in opposition to a motion be filed eight days prior
to the noticed submission date. Tegrity has not filed a memorandum
in opposition to Boutte Shopping Center's motion for partial
summary judgment.

Boutte's motion is therefore deemed to be

unopposed, and further, it appearing to the Court that the motion
has merit, the Court finds that Boutte Shopping Center is entitled
to the relief requested.

As will be discussed further below, a

claim for unjust enrichment under Louisiana law requires that there
be

no

other

remedy

available

at

law.

Louisiana, 702 So. 2d 648, 671 (La. 1996).

Carriere

v.

Bank

of

Because the parties

agree that Tegrity has a substantive claim in contract against
Boutte Shopping Center, Boutte is entitled to summary judgment on
the unjust enrichment claim.

See Morphy, Makofsky & Masson, Inc.

v. Canal Place 2000, 538 So. 2d 569, 572 (La. 1989).
B.

Jeff Farmer's Motion for Summary Judgment & Tegrity's Motion

for Leave to Amend Its Complaint
Jeff Farmer moves for summary judgment based on Tegrity's
alleged misnomer of him, instead of Jeffrey Hines Farmer, Jr., as
defendant.

Apparently, Jeffrey Hines Farmer, Jr. is president of

Spectra and executed the written contract at issue in this case,
while Jeff Farmer is his father and has no association with
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Spectra, Boutte Shopping Center, or the contracts at issue in this
case.

Tegrity opposes Farmer's motion, contending that Farmer has

gone by both names throughout the course of the parties' business
dealings as well as in this and other litigation.

Nonetheless,

Tegrity requests leave to amend its complaint under Fed. R. Civ. P.
15(c)(1)(C), to name Jeffrey Hines Farmer, Jr. as defendant.
Rule 15(c)(1)(C) allows an amendment changing the name of a
party to relate back to the original complaint if the change is the
result of an error such as a misnomer or misidentification.
Jacobsen v. Osborne, 133 F.3d 315 (5th Cir. 1998).

See

Such amendment

will be permitted where:
[T]he party to be brought in by amendment:
(i) received such notice of the action that it will not
be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have
been brought against it, but for a mistake concerning the
proper party's identity.
Fed. R. Civ. P. 15(c)(1)(C). The Court finds that Tegrity is
entitled to leave to amend its complaint as requested, and that
Farmer's request to be dismissed based on the misnomer is therefore
moot.

Jeffrey Hines Farmer, Jr. already accepted service and has

participated considerably in this lawsuit.

It is undisputed that

the proper party received notice, will not be prejudiced, and knew
that but for the misnomer the action would have been brought
against him in the first instance.

Id.

Farmer's argument is

tedious, at best.
If

he

is

not

dismissed

based
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on

the

misnomer,

Farmer

alternatively asserts that he is entitled to summary judgment
because Tegrity cannot establish the material facts required to
impose liability under the alter ego theory.

The Court disagrees.

Farmer's own assertions focus genuinely disputed material issues of
fact.

Summary judgment is inappropriate.

C.

The Spectra Group's Motion for Summary Judgment

1.

Breach of Contract and Contractual Attorney's Fees Claims
A contract is a "legal relationship whereby a person, called

the obligor, is bound to render a performance in favor of another,
called the obligee."

La. Civ. Code art. 1756.

"A contract is

formed by consent of the parties established through offer and
acceptance."

La. Civ. Code art. 1927.

In order to recover for a

breach of contract under Louisiana law, the plaintiff must prove:
(1) the obligor's undertaking of an obligation to perform; (2) that
the obligor failed to perform the obligation (i.e., breach); and
(3) that the breach resulted in damages to the obligee.

Favrot v.

Favrot, 68 So. 3d 1099, 1108-09 (La. App. 4 Cir. 2011).

Notably,

"[t]he existence or nonexistence of a contract is a question of
fact."

Sam Staub Enters., Inc. v. Chapital, 88 So. 3d 690, 693

(La. App. 4 Cir. 2012).
Spectra contends that there is no genuine issue regarding
whether a contract existed between it and Tegrity.
disagrees.

The Court

Although Spectra maintains that it was not a party to

the written construction agreement, the contract itself shows that

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the

agreement

was

between

Tegrity

as

contractor

and

"Boutte

Shopping Center, LLC, The Spectra Group, Inc." as owner. Moreover,
the contract identifies the "owner's representative" as "Jeff
Farmer, Jr., The Spectra Group, Inc." Finally, on the last page of
the contract, the signature of "Jeff Farmer, Jr., Managing Partner"
appears on the "owner" signature line.

Apart from the contract

itself, Tegrity produces a letter sent to it by Jeff Farmer, on
Spectra letterhead, confirming over $250,000 in payments owed to
Tegrity on the shopping center and Rue 21 retail store projects.
It is not at all clear on the record that Spectra cannot be held
liable under the written agreement.

Because Spectra is not

entitled to summary judgment on the breach of contract claim, it is
likewise not entitled to summary judgment on the contractual
attorney's fees claim.

Spectra has wholly failed to meet its

summary judgment burden.
2.

Open Account and Statutory Attorney's Fees Claims
Spectra summarily asserts that because it has no liability in

contract, it cannot be held liable on open account.
Court disagrees.

Again, the

The Court has found that a genuine issue exists

regarding whether Spectra may be liable to Tegrity in contract.
Spectra therefore fails to meet its summary judgment burden with
respect to the open account and statutory attorney's fees claims.
3.

Unjust Enrichment Claim
Louisiana law provides that “[a] person who has been enriched

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without

cause

at

the

expense

of

another

person

is

compensate that person.” La. Civ. Code art. 2298.

bound

to

However,

recovery under this theory “shall not be available if the law
provides another remedy for the impoverishment.”

Id.

To succeed

in a claim for unjust enrichment, a plaintiff must show: (1) an
enrichment, (2) an impoverishment, (3) a connection between the
enrichment

and

resulting

impoverishment,

(4)

an

absence

of

“justification” or “cause” for the enrichment or impoverishment,
and (5) that no other remedy at law is available. Carriere, 702 So.
2d at 671.
At issue here is whether “no other remedy at law” is available
to the plaintiff. Louisiana courts have held that the existence of
a

contract

precludes

recovery

by

a

plaintiff

under

unjust

enrichment. See Land v. Acadian Prod. Corp. of La., 57 F. Supp.
338, 345 (W.D. La. 1944) (citing cases), rev’d on other grounds,
153 F.2d 151 (5th Cir. 1946); Gribble v. McKleroy, 14 La. Ann. 793
(La. 1859).

This is so even if the contract gives rise to an

action against someone other than the one being sued. See Pinnacle
Operating Co. v. ETTCO Enters., Inc., 914 So. 2d 1144, 1150 (La.
App. 2nd Cir. 2005).
Because there is no dispute that Tegrity has a substantive
claim in contract (notwithstanding the dispute concerning against
whom), Spectra is entitled to summary judgment on the unjust
enrichment claim.

See Morphy, 538 So. 2d at 572.
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Accordingly, it is ORDERED that Boutte Shopping Center's
motion for partial summary judgment is GRANTED; Jeff Farmer's
motion for summary judgment is DENIED; Tegrity's motion for leave
to amend its complaint is GRANTED; and Spectra's motion for summary
judgment is GRANTED with respect to the unjust enrichment claim and
DENIED with respect to the contract and open account claims.2
New Orleans, Louisiana, December 18, 2013

_______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

2

The Court acknowledges that motion practice is, and
should be, a part of litigation strategy. However, given the
hesitancy the Court has about the quality of the assertions made
in some of the pending motions, the Court points counsel to the
mandate of 28 U.S.C. § 1927.
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