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E.G. Schafer Construction Co. v. Gallagher Transfer & Storage Co.
Citations: 495 So. 2d 348; 1986 La. App. LEXIS 7648Docket: No. CA-4353
Court: Louisiana Court of Appeal; September 12, 1986; Louisiana; State Appellate Court
In August 1979, Gallagher Transfer, Storage Company, Inc. contracted with E.C. Schafer Construction Company, Inc. and Brown Commercial Construction Inc. for the construction of a metal warehouse in New Orleans for $852,000. By August 1980, most of the work was completed, and Gallagher signed a certificate of acceptance on September 22, 1980, noting eight exceptions, including a gutter repair. A second acceptance certificate was signed on October 28, 1980, stating that the Joint Venture had substantially completed the work, with no remaining items listed. On December 1, 1980, the Joint Venture sought final payment of $76,267.73, but Gallagher only paid $51,848.73, withholding $24,415.00 due to claims of incomplete and defective work. The Joint Venture sued Gallagher, asserting full completion of the job, while Gallagher counterclaimed for breach of contract regarding the unfinished work. After a trial, on April 30, 1984, the court ruled in favor of the Joint Venture, awarding them $24,415.00 minus a $500.00 credit for defective work, resulting in a final judgment of $23,915.00. Gallagher's motion for a new trial was denied on April 29, 1985, prompting Gallagher to appeal both the judgment and the denial. Gallagher contended that it did not accept the work as complete and that the gutter, made of ungalvanized steel, was defective and prone to rust and leakage. The acceptance provisions under Louisiana law indicate that an unqualified acceptance bars recovery for defects, whereas acceptance with conditions allows for recovery if defects are acknowledged. The sole exception mentioning the gutter specified its repair, which was confirmed by both the Joint Venture's president and Gallagher’s consulting engineer. Mr. Masson testified that the building gutter's plans and specifications did not mandate a specific material. The appellant contends that since the roof was specified to be galvanized steel, the gutter, as part of the roof, should also be made from galvanized steel. The trial court determined that the gutter was not considered part of the roof, a factual finding that this court will not overturn absent manifest error (Canter v. Koehring Co., 283 So.2d 716 (La. 1973)). Evidence shows Gallagher failed to substantiate its claim that the Joint Venture did not complete the work or that it was defective. Gallagher's request for a new trial was based on newly discovered evidence, as outlined in LSA-C.Civ. Pro. Art. 1972, which allows for a new trial if new, important, non-cumulative evidence is discovered that could change the case outcome. However, the evidence presented was deemed cumulative, and the trial judge believed it would not alter the case's result. The court agrees with this assessment and affirms the trial court's judgment.