Cheniere Construction, Inc. v. Hamps Construction, LLC, et al

Filing 75

ORDER AND REASONS: DENYING 46 Motion for Partial Summary Judgment, as set forth in document. Signed by Judge Jane Triche Milazzo on 6/18/2020. (am)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHENIERE CONSTRUCTION, INC.

CIVIL ACTION

VERSUS

NO: 16-16407

HAMP’S CONSTRUCTION, LLC ET AL.

SECTION “H”

ORDER AND REASONS
Before the Court is Plaintiff Cheniere Construction, Inc.’s Motion for
Partial Summary Judgment (Doc. 46). For the following reasons, the Motion is
DENIED.
BACKGROUND
In September 2012, Defendant Hamp’s Construction, LLC (“Hamps”)
entered into a contract with the United States Army Corps of Engineers (“the
Corps”) for the Southeast Louisiana Urban Flood Control Project (“the
Project”). Plaintiff Cheniere Construction, Inc. (“Cheniere”) entered into an
agreement with Hamps to serve as a subcontractor on the Project. Cheniere
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brought this action against Hamps and Harford Fire Insurance Company to
recover unpaid amounts for its work as a subcontractor on the project. In this
Motion, Cheniere seeks payment of the liquidated amounts it alleges are due
to it under its subcontract with Hamps. Defendants oppose.
LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” 1 A genuine issue
of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 2
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor. 3 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.” 4 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.” 5 “In response to a
properly supported motion for summary judgment, the non-movant must
Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
3 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).
4 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
5 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
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identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the non-movant on all issues as to which the nonmovant would bear the burden of proof at trial.” 6 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
necessary facts.” 7 Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.” 8
LAW AND ANALYSIS
Under its agreement with the Corps, Hamps was paid on a unit price
basis in accordance with a schedule of values issued by the Corps. During the
Project, Hamps encountered unforeseen conditions that increased costs and
extended the time required to complete the Project. To recover the additional
costs caused by the unforeseen conditions, Hamps submitted to the Corps three
requests for equitable adjustment (“REA1,” “REA2,” and “REA3”). In January
2016, Hamps received payment as a result of REA1 from the Corps in the
amount of $950,000. In August 2018, Hamps received $975,000 on REA2.
REA3 is not at issue in this Motion.
Cheniere alleges that it is owed $997,048.76 in liquidated damages
pursuant to its agreement with Hamps for its original scope work and its work
in connection with REA1 and REA2. It argues that this amount is supported
by the calculation of Hamps’s own expert, William Connole. Cheniere alleges
John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (internal citations omitted).
7 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
8 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
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that, despite this, Hamps has refused to pay this amount because of claims it
has against Cheniere.
In its Motion, Cheniere relies heavily on Louisiana’s law of
compensation. Under Louisiana Civil Code article 1893, “[c]ompensation takes
place by operation of law when two persons owe to each other sums of money
or quantities of fungible things identical in kind, and these sums or quantities
are liquidated and presently due.” Cheniere argues that because Hamps has
only unliquidated claims for damages against it, those claims cannot offset the
amount owed to Cheniere through compensation. Cheniere argues that under
Louisiana law it is entitled to immediate payment of the liquidated amount
owed to it where Hamps cannot identify any equally liquidated offsets.
However, a threshold issue is whether Hamps owes Cheniere an amount that
is liquidated and presently due. This is a question riddled with material issues
of fact.
A debt is liquid when its “existence is certain and its quantity
determined. A disputed debt is not liquid and cannot be admitted as
susceptible of compensation unless the one who asserts compensation has in
hand the proof of the existence of the disputed debt and is thus in a position to
prove it promptly.” 9 Cheniere relies entirely on the calculations of Hamps’s
expert, and the documents upon which he relied, to establish the liquidated
amount it argues it is owed. Hamps rebuts that Connole’s calculations were
done in connection with its preparation for submission of the REAs and not as
an expert in this lawsuit. It attaches an affidavit from Connole in which he

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Am. Bank v. Saxena, 553 So. 2d 836, 844 (La. 1989) (internal quotation omitted).
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explains that he is not aware of the terms of the agreement between the parties
and does not offer an opinion as to what amounts are owed by Hamps to
Cheniere under their agreement. Indeed, in an email explaining his
calculations, Connole noted that “I am not . . . aware of all obligations between
Cheniere and Hamp’s and if any other significant differences between
Cheniere and Hamps exist. My allocation is made with the understanding that
any differences that I do not know about may change the allocations.” 10 In
addition, Cheniere’s supporting exhibits reveal that even Cheniere had slight
disagreements with Connole’s calculations. 11
Hamps, for its part, sets forth significant arguments against the amount
sought by Cheniere. For instance, it argues that Cheniere is not entitled to any
amount under the parties’ agreement because the amount owed to Cheniere
was tied to the profitability of the Project and the Project was operating at a
loss. It submits an affidavit from its managing member, Charlie Hampton,
stating that Hamps and Cheniere agreed that “any additional profit (above
that incorporated into the bid) earned on the Project would be shared by
Hamp’s and Cheniere, and any losses on the Project would be equally shared
by Hamp’s and Cheniere.” 12 Cheniere vehemently disputes that this was the
parties’ agreement and attaches as proof emails from Hamps to the Corps in
which Hamps explains the parties’ agreement. 13 Accordingly, there is a
material issue of fact regarding whether the amount owed to Cheniere is tied
to the financial status of the Project. This defense is not an “unliquidated
Doc. 46-4.
See Doc. 46-12.
12 Doc 50-1.
13 Doc 53-5.
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claims for damages” as Cheniere argues. Rather, it is a material dispute over
the amount that Cheniere claims is liquidated and due under the parties’
agreement. “If it requires a lawsuit to determine the exact amount due under
a cause of action, certainly it follows that the amount involved in such cause of
action is not liquidated[.]” 14 Accordingly, Cheniere has not shown that its claim
is liquidated and due, and summary judgment is inappropriate.
CONCLUSION
For the foregoing reasons, the Motion is DENIED.
New Orleans, Louisiana this 18th day of June, 2020.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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City of Shreveport v. Curcio, 157 So. 317, 319 (La. App. 2 Cir. 1934).
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