HAMP CONSTRUCTION v. CITY OF NEW ORLEANS (2026)

This is a breach of contract dispute. Defendant-Appellant, Durr Heavy Construction, LLC, (“Durr”), appeals the May 1, 2025 judgment of the trial court which found it liable for breaching its subcontract with Plaintiff-Appellee, Hamp's Construction, L.L.C., (“Hamp's”), and did so in bad faith. For the foregoing reasons, we reverse the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

In 2007, the City of New Orleans (“City”) solicited bids for four categories of demolition services of private homes in Orleans Parish. Hamp's bid on the entire project, but the City rejected its bid as non-responsive, and awarded the contract to Durr as the lowest bid. According to bid proposal 7608-00312, the Comprehensive Demolition Services included four categories of work: (1) Demolition Services Excluding Asbestos; (2) Demolition Services Including Asbestos; (3) Emergency Demolition Services Excluding Asbestos; and (4) Emergency Demolition Services Including Asbestos. The City later executed a contract with Durr on January 29, 2008 for comprehensive demolition services. Shortly thereafter, Hamp's filed suit against the City seeking an award of three of the categories of the demolition work and a rejection of Durr's bid. In February 2008, and before the matter went to trial, Durr settled the matter with Hamp's; in return for a subcontract agreement for work on the project, Hamp's agreed to dismiss the lawsuit.

In March 2012, Hamp's filed a Petition of Mandamus in Civil District Court for the Parish of Orleans, and named the City of New Orleans and Mayor, Mitchell J. Landrieu, as defendants alleging that work on the project was being performed in violation of Louisiana Public Bid Law, La. R.S. 38:2211, et.seq., and the Home Rule Charter. Shortly thereafter, Hamp's filed an Amended and Restated Petition for Mandamus adding Durr as a defendant. After a hearing in April 2012, the trial court denied Hamp's request for mandamus, but found the contract between the City and Durr absolutely null. The court awarded Hamp's attorney's fees and costs.¹

On March 11, 2019, Hamp's filed a Motion and Incorporated Memorandum for Leave to File Supplemental and Amending Petition for Damages for Breach of Contract asserting for the first time that Durr had breached the subcontract between Hamp's and Durr based on the original contract between Durr and the City. Hamp's argued that it was entitled to all demolition work orders issued by the City that were non-emergency and non-asbestos. In April 2022, Hamp's filed a Partial Motion for Summary Judgment alleging that Durr was supposed to hire them to perform all comprehensive demolition services excluding asbestos work orders that Durr received under its public contract with the City. Durr timely filed an Opposition, and the trial court denied Hamp's Partial Motion for Summary Judgment on June 15, 2022.

Hamp's filed a second Partial Motion for Summary Judgment. The matter was reset for hearing twice, but the appellate record does not reflect either a hearing or a judgment on Hamp's second Partial Motion for Summary Judgment. On March 26, 2025, the trial court conducted a one-day bench trial finding Durr liable for breach of the subcontract when it did not send all comprehensive demolition services excluding asbestos work orders to Hamp's. The trial court also found that Durr's breach was in bad faith. The court signed the judgment on May 1, 2025. On June 30, 2025, Durr filed a Motion for Devolutive Appeal, which the trial court granted on July 1, 2025. This timely appeal followed.

DISCUSSION

Durr asserts four assignments of error: (1) Hamp's breach contract claim has prescribed; (2) the trial court erred in interpreting the contract without reference to its express terms; (3) the trial court erred by interpreting the contract in a manner neither party understood; and (4) the lower court erred in finding bad faith.

Prescription

Durr alleges in its brief that Hamp's first asserted breach of contract claim in 2019 has prescribed as Hamp's owner, Charlie Hampton, was aware of alleged breaches to the subcontract beginning in 2008. Pursuant to La. C.C. P. art. 928(B): “[t]he peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision and may be filed with the declinatory exception or with the dilatory exception, or both.” Durr, however, did not file an exception of prescription in the trial court, but it raised the issue of whether Hamp's claims were prescribed in the Contested Issues of Fact and Law in the parties’ Joint Pre-Trial Outline filed on March 17, 2025.

Further, La. C.C.P. art. 2163 states: “[t]he appellate court may consider an exception of prescription filed for the first time in that court and if the exception is pleaded prior to a submission of the case for a decision and if the proof of the ground of the exception appears of record.” Yet, Durr argues that the exception is properly before this Court because it was raised in the Joint Pre-Trial Outline, and the proof of the grounds of prescription are contained in the trial testimony. We do not agree.

A review of the appellate record also reflects that Durr has not filed an exception of prescription in this Court prior to submission of the case for decision. Instead, it only assigns as error that Hamp's breach of contract claims are prescribed in its brief to this Court. In Alomang v. Freeport-McMoran, Inc., 97-1349, p. 1 (La. App. 4 Cir. 3/4/98), 718 So.2d 971, this Court stated:

Defendants suggest in brief that plaintiff's tort claims have prescribed. No exception of prescription was filed below. An exception of prescription may be filed for the first time in this Court. LSA-C.C.P. art. 2163. However, the defendants have not done so. They have only mentioned the issue in their brief. An exception of prescription presented only in argument either orally or by way of memorandum or brief is not sufficient. Rapp v. City of New Orleans, 95-1638, p. 50 (La. App. 4 Cir. 9/18/96), 681 So.2d 433, 457.

In accordance with the above-stated jurisprudence, we decline to consider Durr's exception of prescription. See also Clinkscales v. Columns Rehab. and Retirement Center, 08-1312, p. 4 (La. App. 3 Cir. 4/1/09), 6 So.3d 1033, 1036. This assignment of error lacks merit.

Contract Interpretation

Durr argues that the trial court misinterpreted the contract between the parties, finding it ambiguous and vague without reference to the subcontract's express terms. Specifically, the trial court erred in using extrinsic evidence in interpreting the contract. Hamp's asserts that it had an exclusive subcontract with Durr for Category 1 work orders, all non-emergency demolition work excluding asbestos, while Durr denies any exclusivity in the subcontract.

“The interpretation of the language of the contract is a question of law subject to a de novo standard of review on appeal, while factual determinations are subject to the manifest error standard of review.” 1955 Nola Holdings, L.L.C., v. Windy Hill Pictures, L.L.C., 23-0050, p. 12 (La. App. 4 Cir. 10/2/23), 376 So.3d 200, 209 (quoting TKTMJ, Inc. v. Sewerage and Water bd. of New Orleans, 20-0154, p. 5 (La. App. 4 Cir. 12/16/20), 366 So.3d 276, 283). “Contracts, subject to interpretation from the instrument's four corners without the necessity of extrinsic evidence, are to be interpreted as a matter of law, and the use of extrinsic evidence is proper only where a contract is ambiguous after examination of the four corners of the agreement.” Bodenheimer v. Carrollton Pest Control & Termite Co., 17-0595, p. 7 (La. App. 4 Cir. 2/14/18), 317 So.3d 351, 357 (citations omitted).

In contract interpretation, the court must determine the common intent of the parties. La. C.C. art. 2045. The Louisiana Civil Code further provides that when the language of a contract is clear and explicit, “no further interpretation may be made in search of the parties’ intent.” La. C.C. art. 2046. In the case of doubt that cannot be resolved, “a provision in a contract must be interpreted against the party who furnished its text.” La. C.C. art. 2056. Moreover, “[i]n case of doubt that cannot otherwise be resolved, a contract must be interpreted against the obligee and in favor of the obligor․” La. C.C. art. 2057.

The trial court determined that Durr breached its exclusive subcontract with Hamp's when it did not send all comprehensive demolition services excluding asbestos work orders to Hamp's. The disputed language of the subcontract is as follows:

Demolition Services to be performed in accordance with City of New Orleans Bid Proposal No. 7608-00312 and per the direction of Contractor for a complete project. Actual quantities performed by subcontractor are contingent on a contract from the Owner and subsequent work orders being issued to Contractor for same.

In the reasons for judgment, the trial court stated:

Here, the subcontract does not expressly state whether Hamp's was entitled to all work in the specified category. The Court has determined that this means that the contract does not specifically speak to the alleged agreement between the parties. The subcontract does note that work would be assigned at Durr's direction. However, the Court finds that this discretion was shaped by the parties’ agreement at the time of the settlement. As such, the Court analyzed the purported conversation between the two entities in order to determine what the initial agreement was.

We find that the subcontract does address and solemnize the agreement between the parties. First, Section 20 of the subcontract states, in pertinent part: “[a]ll proposals, negotiations, and representations with respect to this Subcontract, whether oral or written, are hereby superseded and merged into this Subcontract.” The plain language of the subcontract contemplates previous negotiations, and conversations between the parties prior to the subcontract's confection. Therefore, the trial court erred when it looked outside of the four corners of the document to determine the intent of the parties.

Second, the subcontract does not contain an “exclusivity provision,” stating that all of the work it received in Category 1 would be directed to Hamp's. Instead, Durr's Standard Subcontract Agreement notes that any work assigned to Hamp's would happen solely at Durr's direction and discretion. Further, Hamp's assertion that it is entitled to all of the work in Category 1 is belied by the fact that Durr's contract with a different subcontractor on the same project employs the same boiler plate language.² Durr's Standard Subcontract Agreement with Dynamite Demolition Specialists, also states:

Demolition Services to be performed in accordance with City of New Orleans Bid Proposal No. 7608-00312 and per the direction of Contractor for a complete project. Actual quantities performed by subcontractor are contingent on a contract from the Owner and subsequent work orders being issued to Contractor for same.

Hamp's does not dispute that it was aware that Durr was self-performing work on the demolition project as well as working with other subcontractors.

Moreover, Mr. Hampton attested in an affidavit attached to his first motion for summary judgment that he was involved in negotiating and executing the “Standard Subcontract Agreement” between Hamp's and Durr. By his own admission, he and/or his counsel of record had the opportunity to add specific language to the subcontract to formalize an exclusive arrangement with Durr during these negotiations. The evidence in the record reflects that they failed to do so. The language in Section 1 of his subcontract agreement with Durr is identical to the language in Section 1 of Durr's subcontract agreement with Dynamite Demolition Specialists

Despite this evidence, the trial court relied on Mr. Hampton's testimony that he was exclusively entitled to all of the comprehensive demolition work excluding asbestos finding Durr liable for breach and essentially nullifying the plain language of the subcontract. Pursuant to our de novo review, the trial court's interpretation of the contract was erroneous. The subcontract was neither vague nor ambiguous. We find no breach in the subcontract between Durr and Hamp's. Hamp's received all of the work it was entitled to under the subcontract, as the actual quantity of work it received was contingent upon work orders from the City and not a specified amount.

Bad Faith

Having determined that Durr did not breach the subcontract with Hamp's, there can be no finding of bad faith. Therefore, we pretermit discussion of Durr's fourth assignment of error.

DECREE

For the foregoing reasons, we reverse the trial court's May 1, 2025 judgment, and dismiss Hamp's breach of contract claim against Durr with prejudice.

REVERSED

FOOTNOTES

1.   Durr appealed the trial court's ruling, and in Hamp's v. City of New Orleans and Mitchell J. Landrieu, no. 2012-CA-1051, un-pub., this Court reversed finding the trial court erred in declaring the contract absolutely null. The court also remanded the matter to the trial court “ to allow Hamp's the right to amend its complaint to seek declaratory relief against the City and Metro/Durr for any Public Law violation․”

2.   We note for the record that Durr's Standard Subcontract Agreement with Dynamite Demolition Specialists reflects that it was confected on February 8, 2008, and their subcontract agreement with Hamp's was executed on February 11, 2008. However, Mr. Hampton's signature indicates that the subcontract agreement was signed on February 22, 2008.

Judge Monique G. Morial