ROLAND A. ALONSO; RCS CONTRACTORS, INCORPORATED, Plaintiffs - Appellees
WESTCOAST CORPORATION, Defendant-Appellant
from the United States District Court for the Middle District
DENNIS, OWEN, and SOUTHWICK, Circuit Judges.
H. SOUTHWICK, CIRCUIT JUDGE
jury trial, Westcoast Corporation was found liable for
breaching a contract it entered with RCS Contractors, Inc.
Among Westcoast's claims of error are the finding of a
bad-faith breach, the language of the verdict form, and the
award of attorney fees. We conclude there was one error,
which was the amount of a penalty determined under the
Louisiana Prompt Payment Act. We VACATE and REMAND for
further proceedings as to the penalty. As a result of that
reversal, we also VACATE and REMAND the award of attorney
fees for reconsideration of the amount after the statutory
penalty is reconsidered. In all other respects, we AFFIRM.
AND PROCEDURAL BACKGROUND
dispute arises out of the Army Corps of Engineers' West
Roosevelt Street Sewer Force Main Relocation Project in Baton
Rouge, Louisiana (the "project"). The Corps
contracted with Garner, who is not a party to this suit.
Garner in turn subcontracted the work to Westcoast, who then
entered a subcontract with RCS. RCS was to "provide all
labor, material, special equipment and supervision required
to install and complete" the project according to the
specifications provided by the Corps, and it was to be paid
$496, 450. The parties expected the subcontract to be
completed in 120 days.
began work in September 2010. Several interruptions slowed
completion and increased the cost of the project. Several
change orders documented increases in the subcontract price,
which were primarily based on unanticipated costs.
first interruption began when it was discovered that certain
existing physical joints on the sewer system would need to be
bypassed and relocated. Work was put on hold in March 2011
pending a full redesign. Even after completion of the
redesign, work could not be resumed until September 2011,
when the flood stage of the Mississippi River fell to a safe
level. The second period of interruption began in December
2011 and continued until January 2012 while a solution was
developed to correct for leaking pipes.
stopped its work on the project in July 2012 without
completing its final "punch list" work. In August
2013, RCS and its president, Roland Alonso, filed suit
against Westcoast in the Middle District of Louisiana,
claiming that Westcoast failed to submit change orders
promptly, which prevented RCS from being compensated for the
additional work it had performed on the project, and that
Westcoast also failed to make prompt payments to RCS under
the change orders it did submit. We will refer to the
plaintiffs jointly as "RCS."
jury trial and post-hearing motions, the district court
entered an amended final judgment. It awarded the plaintiffs
$304, 189 on the claim of a bad faith breach of contract,
$66, 450 under the state Prompt Payment Act, $130, 517.60 in
attorney fees, and $400 in costs.
ruling by the district court from which this appeal was taken
was Westcoast's renewed motion for a judgment as a matter
of law ("JMOL"). "We review de novo
the district court's denial of a motion for judgment as a
matter of law, applying the same standard as the district
court." International Ins. Co. v. RSR Corp.,
426 F.3d 281, 296 (5th Cir. 2005). A JMOL is appropriate when
"a reasonable jury would not have a legally sufficient
evidentiary basis to find for the [nonmoving party] on that
issue." Fed.R.Civ.P. 50(a). "In resolving such
challenges, we draw all reasonable inferences and resolve all
credibility determinations in the light most favorable to the
nonmoving party." Foradori v. Harris, 523 F.3d
477, 485 (5th Cir. 2008).
jury's "verdict should be affirmed 'unless the
facts and inferences point so strongly and overwhelmingly in
the movant's favor that reasonable jurors could not reach
a contrary conclusion.'" EEOC v. EmCare,
Inc., 857 F.3d 678, 683 (5th Cir. 2017) (citation
raises four issues, which we will discuss in the following
the district court correctly enter judgment confirming the
jury's verdict in favor of RCS on its bad faith breach of
the district court correctly decide not to ask on the verdict
form whether RCS substantially breached the subcontract?
Did the district court correctly grant judgment to RCS on
their claim for a penalty payment under the Louisiana Prompt
the district court correctly grant attorney fees to RCS under
the Prompt Payment Act?
Bad Faith Breach of Contract by Westcoast
makes three arguments to support its claim that the district
court erred in entering judgment on RCS's claim of a bad
faith breach of contract: (A) RCS substantially breached the
subcontract, and this constitutes an affirmative defense
under Louisiana law; (B) the language of the subcontract
specifically prohibits the assessment of delay damages; (C)
it was entitled to back-charge RCS for the cost of flagmen
fees and liquidated damages, because the subcontract assigned
the cost of acquiring the flagmen to RCS and Westcoast was
left to complete the work RCS left unfinished. We address
Louisiana law, "one party's substantial breach,
which would preclude his enforcement of the contract, is an
affirmative defense that may be asserted by the other
party." LAD Servs. of La., L.L.C. v. Superior
Derrick Servs., L.L.C., 167 So.3d 746, 756 (La.
Ct. App. 2014). Westcoast alleges that it presented
"uncontroverted evidence" at trial that RCS
substantially breached the subcontract, which it maintains
supported an affirmative defense for its own breach.
Specifically, Westcoast alleges that RCS's failure
"to provide the as-built drawings, lien waivers, and
certifications" as required under the subcontract
constituted substantial breach. Westcoast relies on the
testimony of Dr. Jerry Householder, an expert for RCS, to
show that the president of RCS "abandoned the job"
and "breached the contract by not providing final lien
responds with both a procedural and a substantive argument.
First, it contends Westcoast waived any potential affirmative
defense arising out of RCS's own breach because Westcoast
never presented this argument to the district court. The
principal failure is said to be in Westcoast's motion for
JMOL, which challenged only the jury finding that Westcoast
breached the subcontract. It did not argue that evidence of
RCS's breach of the subcontract required a verdict in
Westcoast's favor. Second, Westcoast's argument is
said to fail on the merits because the ...