ROSEHILL CONSTRUCTION LLC v. TED HEBERT LLC (2025)

In this construction case, the defendant-subcontractor appeals the trial court judgment rendered pursuant to a jury verdict awarding damages for breach of contract to the plaintiff-contractor. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Rosehill Construction, LLC (“Rosehill”) was the general contractor on a construction project to build the CubeSmart project (the “Project”), a self-storage facility located on Burbank Drive in Baton Rouge, Louisiana. Before the building could be constructed, new sewer lines had to be installed. On September 26, 2017, Rosehill entered into a contract with Ted Hebert, LLC (“Hebert”) for sewer-related work for the lump sum of $221,300.00 (the “subcontract”). Hebert's scope of work was set forth in article 2.01 of the subcontract.¹ Because the sewer system would ultimately be part of the public system and maintained by the City of Baton Rouge/East Baton Rouge Parish (“City Parish”), part of Hebert's scope of work included installing a system that met all of the City Parish requirements and coordinating inspections with City Parish, including a final camera inspection. On November 7, 2017, Rosehill entered into two contracts with the owner of the Project, Chestnut Development (“Chestnut”). One contract was for the sewer relocation portion of the Project (the “prime sewer contract”), and the other contract was for development of the land and construction of the self-storage facility (the “prime construction contract”).

Hebert began work on the Project in November 2017, but started experiencing problems due to weak soil and water intrusion. In January 2018, several persons involved in the Project held a meeting where it was decided to change the sewer installation method to what is referred to as the “burrito method.” On February 23, 2018, a change order in conformance with that decision was executed increasing the contract price by $31,890.11. Around February 27, 2018, Hebert completed the sewer installation using the burrito method, and as required by the subcontract, notified the City Parish to coordinate the City Parish's inspection of the sewer. At the end of March 2018, the City Parish conducted an inspection of the sewer pipe installed by Hebert. Hebert failed this inspection as the City Parish found that there were deficiencies in Hebert's sewer work that had to be remedied. Thereafter, Rosehill gave notice to Hebert to proceed with correcting the deficiencies. Hebert attempted to correct the deficiencies. At the end of May 2018, the City Parish conducted a second inspection and again found deficiencies in the sewer. After Hebert attempted to correct the deficiencies the City Parish identified in the second inspection, in July 2018, the City Parish conducted a third inspection and again found deficiencies in the sewer. Hebert's work never passed a final inspection conducted by the City Parish. On August 30, 2018, Rosehill notified Hebert that it was terminating the subcontract for cause.

After terminating Hebert, Rosehill contracted with Hendrick Construction Inc. (“Hendrick”) to complete the sewer system for the Project. Hendrick removed the sewer line that had been placed by Hebert and completed the sewer installation using the burrito method. On October 25, 2018, after making repairs noted in an October 11, 2018 email from the City Parish, Hendrick passed the City Parish inspection.

On November 30, 2018, Rosehill filed a “Petition for Damages” against Hebert alleging that Hebert breached the subcontract by failing to perform the work in accordance with the subcontract. Specifically, Rosehill contends that Hebert failed three separate City Parish inspections in violation of the subcontract. Hebert answered Rosehill's petition asserting several affirmative defenses and asserting a reconventional demand for breach of contract for nonpayment of work that Hebert performed.²

On October 1, 2021, Rosehill filed a motion for partial summary judgment requesting the trial court to render judgment finding that Hebert's subcontract was terminated for cause. The trial court denied Rosehill's motion in a judgment signed on December 13, 2021. On December 22, 2021, Rosehill filed a motion for reconsideration of the December 13, 2021 judgment that denied its motion for partial summary judgment. Rosehill attached only the December 13, 2021 judgment to its motion. Rosehill also filed for supervisory writs with this court seeking review of the denial of its motion for partial summary judgment.³ Hebert opposed the motion for reconsideration on the merits as well as procedural grounds.

In a judgment signed on February 22, 2022, the trial court granted Rosehill's motion for reconsideration and vacated the December 13, 2021 denial of Rosehill's motion for partial summary judgment. Rosehill then filed an ex parte request for a ruling on its motion for partial summary judgment. Thereafter, on October 3, 2022, the trial court signed a judgment granting Rosehill's motion for partial summary finding, “no genuine issue of material fact, and Hebert was properly terminated by Rosehill for cause” and dismissing Hebert's sixth affirmative defense.⁴

Prior to trial, Hebert filed a “Motion in Limine” requesting that the court grant his motion and allow Hebert to put on evidence in support of all defenses not specifically struck in the October 3, 2022 judgment granting Rosehill's motion for partial summary judgment. Hebert also objected to Rosehill's proposed jury instructions related to liquidated damages and requested that the trial court strike the jury charge regarding liquidated damages. In a judgment signed on April 20, 2023, the parties stipulated that Hebert is entitled to raise its contractor immunity defense under La. R.S. 9:2771, insufficient plan defense, and impossible obligation defense under La. Civ. Code art. 1873 at trial. The trial court also ordered that it would inform the jury in its opening and closing instructions that the court has determined that Rosehill properly terminated Hebert for cause and that is not an issue for the jury. In a judgment signed on April 25, 2023, the trial court denied Hebert's motion to strike Rosehill's jury instruction regarding special damages and liquidated damages.

A six-day trial by jury commenced on April 25, 2023. The remaining issues for trial were Rosehill's quantum of damages, Hebert's reconventional demand, and Hebert's affirmative defenses of immunity under La. R.S. 9:2771 and impossibility of performance under La. Civ. Code art. 1873. On April 29, 2023, the jury returned a verdict awarding Rosehill $48,500.00 for liquidated damages, $306,566.00 for the replacement contractor, and $76,586.88 for extended project overhead. The jury denied Hebert's reconventional demand. A judgment in conformity with the jury's verdict was signed by the trial court on June 1, 2023.

On July 13, 2023, Hebert filed a “Motion for Judgment Notwithstanding the Verdict” contending that the jury's award of liquidated damages and extended project overhead was duplicative. Hebert's motion was denied.

On July 14, 2023, Hebert appealed the June 1, 2023 judgment. On appeal, Hebert asserts the following assignments of error:

1. The trial court erred by awarding liquidated damages to Rosehill.

2. The trial court erred by awarding Rosehill both delay damages and liquidated damages as compensation to Rosehill for Hebert's delay.

3. The trial court erred by considering and granting Rosehill's Motion for Reconsideration to its denied Motion for Partial Summary Judgment.

4. The trial court erred by finding that Hebert was not immune from liability for following the construction plans and specifications and by finding that subsidence of the sewer pipe in the Project's poor soil conditions after proper installation did not make Hebert's work impossible.

DISCUSSION

Assignment of Error No. 3: Rosehill's Motion for Summary Judgment

We first examine Hebert's third assignment of error addressing the trial court's October 3, 2022 judgment granting Rosehill's motion for partial summary finding Hebert was “properly terminated by Rosehill for cause.” Hebert contends that Rosehill's motion for reconsideration of the denial of Rosehill's motion for partial summary judgment was procedurally improper because a motion for reconsideration is treated as a motion for new trial, which is a procedural device applying only to final judgments, not interlocutory rulings such as the denial of a motion for summary judgment. Hebert does not challenge the correctness of the trial court's ultimate ruling that Hebert was “properly terminated by Rosehill for cause.”

Recently, in Koerner v. Certain Underwriters at Lloyd's London, the supreme court addressed a motion for new trial filed in response to an interlocutory judgment. Therein, the court pointed out that it is well-settled that prior to final judgment a trial court may, at its discretion and on its own motion, change the result of interlocutory rulings it finds to be erroneous, and held that “although we have never formally recognized whether a motion for reconsideration was available in cases of interlocutory judgments, we have recognized a party may ask the trial court to exercise its discretion to reconsider an interlocutory ruling.” Koerner v. Certain Underwriters at Lloyd's London, 2024-00134 (La. 3/19/24), 381 So.3d 702, 702-703 (per curiam). In the context of summary judgment, La. Code Civ. P art. 966(B)(5) provides that, “[t]he court shall not reconsider or revise the granting of a motion for partial summary judgment on motion of a party who failed to meet the deadlines imposed by this Paragraph, nor shall the court consider any documents filed after those deadlines.” (Emphasis added.)

In this matter, Rosehill requested that the court reconsider the denial of its motion for partial summary judgment and did not attach any additional document for the court to consider after the deadlines outlined in Article 966. In considering the ruling in Koerner with Article 966(B)(5), we find no error in the trial court's decision to reconsider its prior interlocutory ruling, vacate the denial of Rosehill's motion for partial summary judgment, and grant partial summary judgment in Rosehill's favor.⁵

We now address the remaining assignments of error related to the June 1, 2023 judgment signed in conformity with the jury verdict awarding damages to Rosehill for breach of contract.

STANDARD OF REVIEW FOR THE JURY VERDICT

It is well-settled that a court of appeal may not set aside a jury's findings of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell, 549 So.2d at 844. When there is a jury, the jury is the trier of fact. Eastman v. State Farm Mutual Automobile Ins. Co., 2023-01107 (La. 5/1/24), 384 So.3d 865, 872. Juries are held in high regard, and great deference is accorded to their decisions. Eastman, 384 So.3d at 872. This deference recognizes that the right to a jury is statutorily protected. See La. Code Civ. P. arts. 1731(A), 1736. Thus, overturning a jury's verdict that is reasonably supported by the record is, in essence, the denial of the parties’ right to be heard and judged by the jury. Eastman, 384 So.3d at 872.

Accordingly, appellate review of the factual circumstances and evidence of the case will not be the basis for reversal of the trial court's judgment, in the absence of manifest error, even if the court of appeal is convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell, 549 So.2d at 844. If the factual findings are found to be reasonable and supported by the record, the jury's determinations must be given much discretion, especially in regard to the credibility of witness testimony, for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell, 549 So.2d at 844. Consequently, when there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Stobart v. State, Dep't of Transp. & Dev., 617 So.2d 880, 883 (La. 1993).

The reviewing court must review the record in its entirety to determine whether the factfinder's finding was clearly wrong or manifestly erroneous. Stobart, 617 So.2d at 882-83. Appellate courts are to apply a two-part test to determine if a factfinder's determinations warrant reversal: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Graves v. Page, 96-2201 (La. 11/7/97), 703 So.2d 566, 573.

Legal error exists upon the application of incorrect principles of law that deprives a party of substantial rights. When legal error has restricted or interdicted the fact-finding process, the law carves out an exception to the appellate “manifest error” or “clearly wrong” standard of review of a trial court or jury's finding of fact. Bayham v. State Through Office of Group Benefits, 2018-1708 (La. App. 1st Cir. 8/29/19), 285 So.3d 1111, 1116, writ denied, 2019-01667 (La. 1/14/20), 286 So.3d 1040. In circumstances involving the existence of prejudicial legal errors at the trial level, if an otherwise intact record exists, the appellate court is required to review the record de novo and determine the essential facts pursuant to the correct law by a preponderance of the evidence. Id.

Assignments of Error No. 1 and 2: Liquidated Damages

In its first and second assignment of error, Hebert contends that the trial court erred in awarding Rosehill liquidated damages. During the proceedings, Hebert challenged the award of liquidated damages through its motion to strike Rosehill's jury instructions filed prior to trial, through its motion for directed verdict filed during trial, and through its motion for judgment notwithstanding the verdict filed after trial. Hebert contends that the subcontract does not contain a liquidated damages clause and was signed before the prime sewer contract that contained the liquidated damages provision; the award of liquidated damages and extended project overhead are duplicative; and Rosehill never paid any liquidated damages to Chestnut.

As noted, the trial court rendered summary judgment finding Hebert was properly terminated by Rosehill for cause, and the jury was so instructed. The subcontract in section 9.04 titled “Termination for Cause” specifies the damages due to Rosehill if Hebert is terminated for cause. Section 9.04 provides,

In any of the instances described in Section 9.03[6], or if Subcontractor should fail promptly to correct defective work, Contractor may at its option at any time after serving written notice of such default in accordance with Section 9.03, and upon Subcontractor's failure to cure the default as directed, terminate this Subcontract by delivering written notice of termination to Subcontractor. Thereafter, Contractor may take possession of the Subcontract Work and materials, tools, appliances, and equipment of Subcontractor at the Project site, and either directly or through others provide labor, equipment, and materials to prosecute the Subcontract Work on such terms and conditions as shall be deemed necessary, and shall deduct the cost thereof, including all charges, expenses, losses, costs, damages, and attorneys’ fees, incurred as a result of Subcontractor's failure to perform from any money then due or thereafter to become due to Subcontractor under this Subcontract. In addition, Subcontractor shall be liable for any expenses of Contractor relating to extended project overhead, home office overhead, profit, Contractor's legal fees, consequential damages and any liquidated damages payable by Contractor, all rental charges and other costs incurred in completing the Work. In calculating damages hereunder, the Subcontractor shall have no claim for unpaid labor performed or materials provided or for lost profits. Further, this measure of damages shall not limit, and shall be in addition to, any other damages that Contractor is entitled to under the law or in this Agreement. [Emphasis added.]

The subcontract sets forth the specific damages Rosehill is entitled if Hebert is terminated for cause for failing to carry out the work in accordance with the contract documents. Louisiana Civil Code art. 2005 provides that parties may stipulate the damages to be recovered in case of nonperformance, defective performance, or delay in performance of an obligation. Herein, as the trial court already made a determination that Hebert was terminated for cause, Rosehill was entitled to the damages the parties contractually agreed to in section 9.04 of the subcontract, which expressly provides for extended project overhead and “any liquidated damages payable by Contractor.” The damages assessed were not delay damages as well as liquidated damages, but rather for defective performance under the contract. The damages are what Rosehill actually lost due to Hebert's defective performance. We find no authority to conclude that it is not proper for a prime contractor to pass to the subcontractor through contract, liquidated damages owed to the owner that were caused by the subcontractor when the subcontractor is terminated for cause. For these reasons, we find no legal error in the trial court's decision to deny Hebert's motion to strike Rosehill's jury instructions, motion for directed verdict, and motion for judgment notwithstanding the verdict.

Rosehill, as the party seeking to recover damages under the subcontract bore the burden of proving its entitlement to “any liquidated damages payable by Contractor.” The prime sewer contract was introduced into evidence and provided that Rosehill will pay Chestnut the sum of $500.00 per calendar day for each day that Rosehill exceeds the specified completion time until such time as the work is completed.⁷ The prime sewer contract further provided that Rosehill shall achieve substantial completion of the work not later than sixty days after the date of commencement “subject to adjustments of this Contract Time as provided in the Contract Documents,” Completion of the work was “defined as receipt of a Temporary or Permanent Certificate of Occupancy.”

Danny Montelepre, the president of Rosehill, when asked about liquidated damages testified that Chestnut held out $350,000.00 that Rosehill incurred that had not been paid to Rosehill by Chestnut. He testified that “[Chestnut] will assess liquidated damages upon Rosehill for delaying their project, for them not being able to use their building.” He further stated, “the delays Rosehill incurred were the result of [Hebert].” The evidence reveals that Hebert's work was not completed within sixty days of starting the Project, nor sixty days from the change order, and never passed City Parish inspection, which caused Rosehill to hire a new subcontractor and delayed the project. Mr. Montelepre requested liquidated damages for one hundred and eighty-one days representing the time frame from April 12, 2018, the day that Rosehill received the results from the first City Parish inspection, until October 11, 2018, the date Hendrick received notice from the City Parish regarding items that needed to be repaired. He acknowledged that there were probably some additional days Rosehill could have claimed with rain delays and delays coming up with the burrito method.

The jury found by a preponderance of the evidence that Rosehill was entitled to liquidated damages. The jury determined that Hebert delayed the construction of the Project by ninety-seven days, less than the amount of days requested by Rosehill. Further, the jury determined liquidated damages were due at the daily rate of the rate of $500.00 per day for a total of $48,500.00 in liquidated damages. Based on our review of the record, we find there is a factual basis for the jury's determination that Rosehill proved that there were liquidated damages payable by Rosehill for ninety-seven days because Hebert did not carry out the work as provided for in the subcontract causing the Project to be delayed.

Assignment of Error No. 4: Affirmative Defenses

In its final assignment of error, Hebert contends that the trial court erred by finding that Hebert was not immune from liability for following the construction plans and specifications and by finding that subsidence of the sewer pipe in the Project's poor soil conditions after proper installation did not make Hebert's work impossible.

I. Defense of Contractor Immunity

Louisiana Revised Statutes 9:2771 provides in pertinent part:

No contractor․ shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration, or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration, or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor.

In general, a contractor owes third parties a duty to exercise ordinary care and refrain from creating hazardous conditions in the fulfillment of its contractual obligations; however, a contractor is not the guarantor of the sufficiency of plans and specifications drawn by another, and if it complies with those plans and specifications, it is entitled to statutory immunity. Morgan v. Lafourche Recreation Dist. No. 5, 2001-1191 (La. App. 1 Cir. 6/21/02), 822 So.2d 716, 721 writ denied, 2002-1980 (La. 10/25/02), 827 So.2d 1156. Under the contractor immunity statute, a contractor cannot rely blindly on plans and specifications. Rather, to avoid liability, the contractor must prove either that the condition created was not hazardous or that it had no justifiable reason to believe that its adherence to the plans and specifications created a hazardous condition. Id.

A contractor is not the guarantor of the sufficiency of plans and specifications drawn by another, and if he complies with those plans and specifications, he is entitled to immunity under La. R.S. 9:2771. There is no immunity, however, when a contractor does not follow plans and specifications provided to him by the owners. Likewise, there is no immunity or protection under La. R.S. 9:2771 when the evidence shows that the defects were not the result of the insufficiency of plans and specifications, but were the result of the quality of the work done by a contractor. Cupit v. Hernandez, 45,670 (La. App. 2d Cir. 9/29/10), 48 So.3d 1114, 1119, writ denied, 2010-2466 (La. 12/17/10), 51 So.3d 7. The issue of whether Hebert is statutorily immune under La. R.S. 9:2771 is an affirmative defense that must be proven by Hebert. See e.g., Richard v. State through DOTD, 610 So.2d 839, 841 (La. App. 1st Cir. 1992), writ denied, 614 So.2d 1264 (La. 1993).

By way of background relevant to this assignment of error, Stantec Consulting Services (“Stantec”) was the civil engineering firm that prepared the plans and specifications for the Project. Terracon Consultants, Inc. (“Terracon”) was hired by Rosehill to prepare geotechnical reports that identified soil types on the Project and to provide daily observation reports regarding the installation of the sewer to Rosehill and Stantec. Stephen Greaber, a principal at Terracon, and Erin Tellis, a senior project manager for Terracon, were involved with the Project for Terracon. James Shaffette was Rosehill's superintendent who worked on site each day and observed Hebert's installation of the sewer. Compliance EnviroSystems (“CES”) was the company that the City Parish used to perform the CCTV camera inspection.

The sewer would eventually be public and taken over by the City Parish; therefore, as provided for in the subcontract, the sewer system had to be installed to meet all the City Parish requirements. The first City Parish inspection was done thirty days after Hebert completed installation of the sewer. Nathan Cobb reviewed the videos and CES reports for the City Parish and determined that the sag ⁸ of the sewer pipe was greater than that allowed by the City Parish specifications. Mr. Cobb also performed a sag analysis of the second and third camera inspection after Hebert made corrections and again found that the sewer did not meet the City Parish plans and specifications, and the City Parish again rejected Hebert's work.

In support of its affirmative defenses, Hebert noted Mr. Greaber's deposition testimony that was read into the record at trial stating that Terracon was hired to make “observations with respect to compliance with the project specifications,” which included compliance with the City Parish standard specifications and plans. Hebert presented to the jury Terracon's extensive daily observation reports reviewed and signed primarily by Ms. Tellis, which included a section for “Deviations Noted” and pointed out that there were no noted deviations in any of Terracon's reports. Ms. Tellis testified that there “were not any reports of deviations” that she was aware of at the time of her testimony and acknowledged that she looked through all of the reports and did not find deviations noted. Hebert also pointed out the testimony of Mr. Shaffette agreeing that, while he was watching, he never observed Hebert failing to follow the plans and specifications and never rendered any reports to Rosehill that Hebert was not following the plans and specifications. Hebert also pointed to the testimony of Ted Hebert, owner of Hebert, and Hebert's superintendent, Phillip Woodard who testified that neither Terracon nor Rosehill ever commented on its work or said that Hebert was not following the design requirements.

Hebert had the burden of proving that it followed the plans and specifications and that the defects were the result of the insufficiency of plans and specifications, not a result of the quality of the work done by a contractor.

As noted, Ms. Tellis acknowledged that no deviations were noted in the “Deviations Noted” section of her observation reports, but testified that issues with “means and methods” used by Hebert were recorded in the body of the observation reports rather than in the “Deviations Noted” section. Ms. Tellis testified regarding Terracon's observation reports completed while Hebert was installing the sewer. She pointed out documentation of a manhole that was installed in the wrong location, a trench that was not completely backfilled, a pipe that was damaged and sloped at the wrong angle, ground water that infiltrated the trench possibly because the trench was left open too long, and standing water on more than one occasion. She further pointed to a report where it was noted that, when Hebert was filling the trench with sand, it was making no compactive efforts, and Hebert did not attempt to pump or bail out any of the water entering the excavation and was attempting to install the pipe with water in the excavation.

Terracon remained onsite when Hendrick replaced Hebert. Ms. Tellis also testified about Terracon's observation reports that were completed after the termination of Hebert and what was discovered when Hendrick was pulling up Hebert's work. She noted that the previously installed tie-in to manhole three was placed in the opposite slope of which was required; the pipe was found to be cracked, flattened, and inverted; no vetting material was excavated from this particular run of previously laid pipe; and the second manhole had been stacked and sealed incorrectly as there was a visible 2 inch lip between the base on the first rise of the manhole. Ms. Tellis confirmed during her testimony that these issues would not meet the plans and specifications.

Hendrick also discovered that there was a log buried along the pipe run and that the pipe laid by Hebert was displaced approximately two feet in an effort to go around the log. Mr. Montelepre testified that rather than go around the tree stump, “they should've removed the tree stump.” Ms. Tellis also confirmed that Hendrick backfilled the trench during inclement weather to avoid water from infiltrating the excavation, which is what Terracon recommend that Hebert do in the January meeting, and Hendrick followed Terracon's recommendation.

Andre Rodrigue, the principal at Stantec who signed the plans, testified that he had Barry Doyle, one of Stantec's geotechnical engineers with sanitary sewer expertise, review the plans and specifications, the sewer video, and still photos from the sewer video to consider possible causes of the pipe settlement. In an email to Mr. Rodrigue, Mr. Doyle pointed out several possible causes of pipe settlement as well as pipe deficiencies. Mr. Doyle concluded that the issues were workmanship issues unrelated to ground conditions and found no design issue that could be responsible for the problems reported. Mr. Rodrigue also stated that Hendrick was required to follow the same plans and specifications that Hebert followed, including the burrito method, and completed the sewer work and passed the City Parish inspection.

Justin Hendrick, the owner of Hendrick, also testified that Hendrick used the burrito method and the drawings of Stantec to complete the Project. He observed the work of Hebert when they were removing the pipe. He identified inconsistencies with Hebert's work and the plans and specifications. He further testified that Hendrick excavated the tree stump that was in the line of the pipe, rather than going around it.

Mr. Woodard testified during cross examination that when working for Hebert, he used the burrito method, but acknowledged that he never looked at Stantec's plans and specifications.

During Mr. Cobb's testimony, Rosehill presented to the jury a document Mr. Cobb reviewed that provided a graph showing that the first camera inspection revealed sag in all but one sewer pipe segment outside of the ten percent sag tolerance. Mr. Cobb also testified about a joint that did not meet the specifications, a pipe that was reversed in segment one, and a joint that was not honed. Mr. Cobb discussed his review of the camera inspections and the reasons that Hebert's work never met the City Parish requirements and was never approved by the City Parish as required by the subcontract.

After thorough review of the evidence, considering the deference owed to the jury, we find a reasonable factual basis exists for the jury to conclude that the defects were not the result of the insufficiency of plans and specifications, but were the result of the quality of the work done by Hebert.

II. Impossibility

Hebert contends that the subsidence and pipe movement should be deemed a fortuitous event thereby dissolving the subcontract. In support of its position, Hebert noted that the reports of Terracon and Mr. Shaffette are the only firsthand daily account of Hebert's work, neither noted any defects in Hebert's work, and Hebert's work at the time Hebert installed the sewer was not defective. According to Hebert it was not until the City Parish's first test thirty days later that subsidence and pipe movement in the sewer was found. Hebert raised the question “how can Hebert be responsible for subsidence and pipe movement in soil after it properly installed its sewer?”

Louisiana Civil Code art. 1873 provides that an obligor is not liable for his failure to perform when it is caused by a fortuitous event that makes performance impossible. To relieve an obligor of liability, a fortuitous event must make the performance truly impossible. La. Civ. Code art. 1873, Revision Comments-1984, (d). An obligor is not released from his duty to perform under a contract by the mere fact that such performance has been made more difficult or more burdensome by a fortuitous event. The fortuitous event must pose an insurmountable obstacle in order to excuse the obligor's nonperformance. Payne v. Hurwitz, 2007-0081 (La. App. 1st Cir. 1/16/08), 978 So.2d 1000, 1005, citing 5 Saul Litvinoff, Louisiana Civil Law Treatise: The Law of Obligations, § 16.17, at 476 (2nd ed.2001).

Herein we find no manifest error in the jury's determination that there was no fortuitous event that made Hebert's performance impossible. While both sides acknowledged that Hebert faced some difficult weather and water intrusion issues, there was no evidence to prove that the weather or water intrusion issues were “insurmountable obstacles” when using the burrito method to install the sewer. Further, the evidence reveals that Hendrick was able to complete the Project and pass the City Parish inspection using the same plans as Hebert. For these reasons, we do not find merit to Hebert's final assignment of error.

CONCLUSION

For the foregoing reasons, we affirm the June 1, 2023 judgment rendered by the trial court pursuant to the jury verdict. All costs of the appeal are assessed to appellant, Ted Hebert, LLC.

AFFIRMED.

The subcontract between Rosehill Construction, LLC and Ted Hebert, LLC expressly provided that Hebert would be liable to Rosehill for “any liquidated damages payable by the contractor.” Despite Hebert's argument that no liquidated damages were ever paid, Danny Montelepre testified that payments for liquidated damages had been withheld by the owner, Chestnut Development. The following colloquy occurred between counsel and Mr. Montelepre at trial:

Q. I also want to talk about the damages assessed by the owner, can you explain to the jury [what] this is?

A. So these are the liquidated damages that we talked about. So, there are different costs. The cost that we just went through are costs – if you ignore the owner altogether, he didn't exist, these are costs that Rosehill incurred, costs to Rosehill as a result of Ted Hebert's failure to perform. Separate of that the owner will assess liquidated damages upon Rosehill for delaying their project. For them not being able to use their building. So these are costs that are being pushed down from the owner to Rosehill because the delays that Rosehill incurred were the result of Ted Hebert, we are pushing those costs back to them because it's not – it's not a failure on the part - on Rosehill's part that caused these damages. It was the failure of Ted Hebert to Perform.

Q. Is that the amount of liquidated damages that have been withheld or are still owed –

A. I'm sorry – correct. It's the amount to the owner.

Q. Okay. And has that been held out of amounts that would have otherwise been paid to Rosehill by the owner?

A. Yes, the owner held out the amount I mentioned earlier. It's really a bit more than that because we held back per our contract when we replaced Ted Hebert. I think there was a balance, and that balance, you know, it's something that would go into that 308. So it's 304 to $350,000.00 that we've incurred that hasn't been paid by the owner.

While said testimony could have been more direct, I cannot say that it was insufficient to establish a reasonable basis for the jury's factual finding that there were $48,500.00 in liquidated damages payable by the contractor to Chestnut Development.

Accordingly, I concur in part and agree with the remainder of the majority's opinion.

FOOTNOTES

1.   Hebert's scope of work was set forth in article 2.01 of the subcontract, which provided in pertinent part:Subcontractor shall furnish and pay for all necessary labor, materials, equipment, supervision, use fees, permits, licenses, insurance and sales or use taxes and perform, in and on the Project, in a good and workmanlike manner, and in strict compliance with all of the Contract Documents and all additions, amendments and deletions thereto, all of the work necessary for the satisfactory completion of the part of the Project described below:Provide all labor, tools, materials, equipment, supervision, permits, advance notice to all utilities, sales taxes, use fees, licenses and insurance to accomplish all Sewer relocation work, as required for a complete job per plans, specifications and addenda, to include, but not be limited to:1. Install new sewer system to meet all City of Baton Rouge requirements.2. Provide all labor, materials and supervision needed for this scope including pipe, manholes, sealed bolt down lids, acceptable backfill.* * * * *6. Coordinate inspections with City of Baton Rouge Public Works and Terracon. Including final camera inspection.* * * * *All work is to be completed as per the contract documents and all City, Parish/County, State and Trade Codes. This contract is for a complete project, inspected and certified.

2.   Hebert also filed a third-party demand against Stantec Consulting Services, the engineering firm that designed the plans and specifications for the Project; the City Parish Department of Public Works; and Nathan Cobb, an employee of the City Parish Department of Public Works at the time of the Project who participated in the inspection of Hebert's sewer installation work. The third-party defendants were dismissed from the suit by summary judgment prior to trial.

3.   This court denied Rosehill's writ application as moot noting that the trial court's February 22, 2022 judgment vacated its December 13, 2021 judgment. Rosehill Construction, LLC v. Ted Hebert, LLC, 2022-0039 (La. App. 1st Cir. 4/22/22) (unpublished writ action) 2022 WL 1197826.

4.   Hebert's sixth affirmative defense was “[t]he defendant claims that it is not liable to petitioner as it was terminated without cause.”

5.   Additionally we distinguish Danielle's Legacy, L.L.C. v. Caring Angels Connection Inc, 2022-0268 (La. App. 1st Cir. 12/29/22), 2022 WL 17983137,*2 wherein this court pointed out that there is no procedure provided for in Article 966 that would allow a party to file a motion to reconsider a prior denial of a summary judgment, and to file new documents with the motion that were “mistakenly omitted” from the original motion. Unlike in Danielle's Legacy, L.L.C., Rosehill did not rely on any additional documents in its motion to reconsider the denial of its motion for partial summary judgment. Further, the court in Danielle's Legacy, LLC pointed out that one of plaintiff's remedies was to seek supervisory review of the interlocutory ruling.In this matter, Rosehill did seek supervisory review with this court, and the history of why Rosehill's writ application was denied as moot is relevant. As noted, Rosehill filed a timely application for supervisory review of the denial of its motion for partial summary judgment. In the trial court's denial of Rosehill's motion for partial summary judgment, the trial court adopted Hebert's reasons for judgment, which in part held that the video inspection program used by the City Parish was in violation of separation of powers of the Louisiana Constitution. While Rosehill's writ application and motion for reconsideration were pending, the trial court granted a motion for summary judgment filed in this matter by the City Parish finding that the City Parish video inspection program was constitutional and legally authorized, the opposite of its finding in Rosehill's motion for partial summary judgment. Thereafter, the trial court granted Rosehill's motion for reconsideration and vacated its judgment denying Rosehill's motion for partial summary judgment. This court then denied Rosehill's writ application as moot since the judgment Rosehill's application for supervisory writs was based on was vacated.

6.   Section 9.03 of the subcontract provides that if the subcontractor neglects to carry out the work in accordance with the contract documents, the contractor can terminate the subcontract in accordance with section 9.04.

7.   An “Act of Correction” was later entered into between Rosehill and Chestnut increasing the daily rate for liquidated damages to $1,500.00 per day; however, the jury determined that the appropriate daily rate to use was the $500.00 per day provided for in the original contract.

8.   The City Parish has maximum sag tolerance of ten percent above and below the plan based on the size of the pipe.

HESTER, J.

McClendon, C.J., concurs in part and agrees in part for reasons assigned.