Unicorp, L. L. C. v. Bradd, L. L. C.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-229

UNICORP, LLC

VERSUS

BRADD, LLC

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2021-1293
HONORABLE ROBERT L. WYATT, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Charles G.
Fitzgerald, Judges.

REVERSED AND REMANDED.

Jeffrey K Prattini
Prattini Law Firm, L.L.P.
300 Board of Trade Place
New Orleans, LA 70130
(504) 754-6600
COUNSEL FOR PLAINTIFF-APPELLEE:
Unicorp, LLC

Cody C. Bailey (Admitted Pro Hac Vice)
Brunini, Grantham, Grower & Hewes, PLLC
Post Office Drawer 119
Jackson, Mississippi 39205
Telephone: (601) 948-3101
COUNSEL FOR PLAINTIFF-APPELLEE:
Unicorp, LLC

Darren A. Patin
Hailey, McNamara
3445 N. Causeway Blvd, Suite 800
Metairie, LA 70002
(504) 836-6500
COUNSEL FOR DEFENDANT-APPELLANT:
BRaDD, LLC

Timothy O’Dowd
O’Dowd Law Firm, LLC
924 Hodges Street
Lake Charles, LA 70601
(337) 310-2304
COUNSEL FOR DEFENDANT-APPELLANT:
BRaDD, LLC

Merrick “Rick” J. Norman, Jr.
Taylor, Porter, Brooks, & Phillips, LLP
145 East Street
Lake Charles, LA 70601
(337) 436-7781
COUNSEL FOR DEFENDANT-APPELLANT:
BRaDD, LLC

John T. Andrishok
Taylor, Porter, Brooks & Phillips, LLP
450 Laurel Street, 8th Floor
Baton Rouge, LA 70801
(225) 381-0285
COUNSEL FOR DEFENDANT-APPELLANT:
BRaDD, LLC

PICKETT, Judge.

The owner of an apartment complex appeals the trial court’s judgment

granting summary judgment in favor of the contractor that constructed the complex

and ordering the owner to pay the contractor funds retained by the owner’s lender

in accordance with the parties’ contracts. For the following reasons, the trial

court’s judgment is reversed.

FACTS

On December 20, 2017, BRaDD, LLC contracted with Unicorp, LLC to

build the Erdace Apartments in Lake Charles. BRaDD funded construction of the

project with a loan by Greystone Servicing Corporation, Inc. (Greystone) that is

insured by the Federal Housing Administration (FHA), which is overseen by the

U.S. Department of Housing and Urban Development (HUD). BRaDD and

Unicorp signed two contracts with each other that bear on the issues presented

herein: a HUD Construction Contract (the Construction Contract) and AIA®

Document A201–2007 General Conditions of the Contract for Construction (the

General Conditions).1

The Construction Contract included a Retainage Reduction Rider that

provides for “the holdback of ten percent (10%) as set out in Item (4) of Article 5,

paragraph A of the Construction Contract.”2 The ten percent holdback was retained

1
“AIA®” is an acronym for “The American Institute of Architects.”
2
Article 5(A) of the Construction Contract states:

A. Each month after the commencement of Work hereunder, Contractor
shall make a monthly request on HUD-92448 for payment by Owner for Work
done during the preceding month. . . . Subject to the approval of Lender and HUD,
Contractor shall be entitled to payment thereon in an amount equal to (1) the total
value of classes of the Work acceptably completed; plus (2) the value of materials
and equipment not incorporated in the Work, but delivered to and suitably stored
at the site; plus (3) the value of components stored off -site in compliance with
Program Obligations; less (4) ten (10) percent holdback [as this percentage may
be reduced in accordance with the provisions of the Retainage Reduction Rider

as provided in the Retainage Reduction Rider. In March 2020, Unicorp filed a

motion for partial summary judgment seeking to recover immediately retained

funds totaling $3,214,711. Unicorp sought to have BRaDD release the retained

funds pursuant to the terms of Section 9.8.5 of the General Conditions. BRaDD

resisted Unicorp’s demand, arguing that Article 5 of the Construction Contract

governs the release of the retained funds and that Unicorp failed to comply with

the requirements of that provision.

After conducting two hearings on the motion, the trial court granted

Unicorp’s motion and signed a judgment against BRaDD awarding Unicorp

$3,214,711, together with legal interest thereon from March 28, 2022. The trial

court designated the judgment as a final judgment, subject to immediate appeal as

provided in La.Civ.Code art. 1915(B)(1). BRaDD appealed the judgment, asserting

that the trial court erred in granting judgment in favor of Unicorp. On appeal,

BRaDD urges that the judgment violates provisions of the Construction Contract.

STANDARD OF REVIEW

“The determination of whether the words of a contract are clear and explicit

or ambiguous is a question of law.” Admin-Media, LLC v. AC of Lafayette, L.L.C.,

19-691, p. 6 (La.App. 3 Cir. 3/11/20), 297 So.3d 44, 49. Accordingly, appellate

review in a case of contract interpretation is de novo with the appellate court

determining whether the trial court interpreted the contract correctly or incorrectly.

Johnson v. Allstate Prop. & Cas. Ins. Co., 21-552 (La.App. 3 Cir. 4/27/22), 338

So.3d 109. “Contracts have the effect of law for the parties and may be dissolved

only through the consent of the parties or on grounds provided by law. Contracts

must be performed in good faith.” La.Civ.Code art. 1983. “Interpretation of a

attached hereto, if applicable](or as reduced by HUD in writing) and less (5) prior
payments.
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contract is the determination of the common intent of the parties.” La.Civ.Code art.

2045. “When the words of a contract are clear and explicit and lead to no absurd

consequences, no further interpretation may be made in search of the parties’

intent.” La.Civ.Code art. 2046.

DISCUSSION

Unicorp argues that the General Conditions govern the issues presented by

its motion for summary judgment, while BRaDD contends that the Construction

Contract governs these issues. Specifically, Unicorp argues that Section 9.8.5 of

the General Conditions obligated BRaDD to pay immediately the withheld

retainage when the contracted work was substantially complete, as defined by that

provision. Section 9.8.5 states:

The Certificate of Substantial Completion shall be submitted to
the Owner and Contractor for their written acceptance of
responsibilities assigned to them in such Certificate. Upon such
acceptance and consent of surety, if any, the Owner shall make
payment of retainage applying to such Work or designated portion
thereof. Such payment shall be adjusted for Work that is incomplete
or not in accordance with the requirements of the Contract
Documents.

Unicorp and BRaDD accepted the responsibilities assigned to each of them

by a Certificate of Substantial Completion dated June 3, 2020. Additionally,

Unicorp served a List of Material Facts not in Dispute on BRaDD which included

the following:

BRaDD agreed to and accepted the Certificates of Substantial
Completion, and the surety consented to the release of all retainage.
No punch list items were identified at substantial completion.
However, BRaDD has not paid any part of the Retainage to Unicorp.

BRaDD admitted that it accepted the Certificates of Substantial Completion

and that the surety on Unicorp’s bond consented to the release of retainage but

denied the remainder of the asserted material fact, stating “punch list items were

identified at substantial completion and thereafter, and which items remain to be
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completed.” In line with this denial, BRaDD contends that Unicorp is not entitled

to the retainage at this time because Article 5 of the Construction Contract conflicts

with Section 9.8.5 of the General Conditions and, therefore, Article 5 governs the

release of the retainage.

Articles 1 and 2 of the Construction Contract provide that the parties’

contract consists of the Construction Contract and additional documents identified

in Article 2(A)(2), which include the General Conditions. Article 2(A)(2)

(emphasis added) further provides that “If any of the provisions of this Agreement

conflict with the terms contained in the General Conditions, the provisions in this

Agreement shall control.”

Article 5 of the Construction Contract is entitled “Requisition and Payment

Procedures” and provides the procedures for Unicorp to obtain payments for its

work. Article 5(A) provides for monthly requests for work that the contractor

performed “during the preceding month,” while section (B) provides “final

payment” for “all unpaid obligations contracted in connection with the Work

performed under this Contract,” and lastly, section (C) provides for payment of

“the balance due to Contractor.” BRaDD asserts that the “balance due” includes

the retainage and that Unicorp can only collect payment of the “balance due” after

the following conditions set forth in Article 5(C) have been satisfied:

The balance due to Contractor hereunder shall be payable upon
the expiration of thirty (30) days after the Work hereunder is fully
completed, provided the following have occurred: (1) all Work
hereunder requiring inspection by Governmental Authorities having
jurisdiction has been inspected and approved by such authorities and
by the rating or inspection organization, bureau, association or office
having jurisdiction; (2) all certificates of occupancy, or other
approvals, with respect to the Project have been issued by
Governmental Authorities; (3) Permission(s) to Occupy (HUD-92485)
for all units of the Project have been issued by HUD; (4) where
applicable, HUD shall have approved Contractor’s Certificate of
Actual Cost; (5) as-built Drawings and Specifications, the as-built
survey and all warranties shall have been delivered to Owner; and (6)
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all executed final advance documents required by HUD have been
submitted.

Unicorp counters that Article 5(C) pertains to final payment only, not

payment of the retainage. This argument overlooks the construction of Article 5

and treats paragraphs (B) and (C) thereof as a single provision. Article 5(C)

addresses “balance due,” not “final payment.” In other words, Unicorp equates the

term “final payment” to “balance due.” Unicorp further asserts that because Article

5(C) does not contain the term “retainage,” it does not pertain to the retainage

withheld pursuant to the Retainer Reduction Rider as set forth in Article 5(A).

Unicorp then points out that Section 9.8.5 of the General Conditions is the only

provision of the Contract Documents that addresses the release of the “retainage”

and concludes that there is no conflict between the Construction Contract and

Section 9.8.5 of the General Conditions because it specifically uses the term

“retainage.”

Unicorp’s argument overlooks the difference between Article 5’s use of the

terms “final payment” and “balance due.” Article 5(B) governs Unicorp’s request

to receive “final payment,” while Article 5(C) governs the “balance due.” Contrary

to Unicorp’s argument, “balance due” in Article 5(C) has been held to be “retained

amounts,” and, as such, it is not “final payment.” In Trans-Bay Engineers &

Builders, Inc. v. Hills, 551 F.2d 370, 374 (D.C. Cir.1976), as here, “The

Construction Contract authorized the payment of monthly draws incremental

payments based upon completed construction, but minus a 10% retention or

‘holdback’.” The court concluded that these “retained amounts” are “holdback”

that “‘shall be payable’ to the contractor . . . after construction has been completed

provided certain preconditions were met.” Id. at 375, citing Article 3(C) of the

Construction Contract at issue therein, which is identical to Article 5(C) of the

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Construction Contract at issue here. See also, Van-Tex, Inc. v. Pierce, 703 F.2d 891

(5th Cir. 1983).

The court’s determination in Trans-Bay, 551 F.2d 370, gives meaning to all

three terms of payment identified in Article 5(A), (B), and (C), whereas Unicorp’s

interpretation of the terms “final payment” and “balance due” effectively

eliminates one of those terms. For these reasons, we conclude that the terms of

Section 9.8.5 of the General Conditions conflict with the terms of Article 5 of the

Contract and, therefore, Article 5 of the Contract controls the release of the

retainage.

BRaDD established that Section 5 of the Construction Contract governs the

release of the retainage. Having based its claim to obtain partial release of the

retainage solely on Section 9.8.5 of the General Conditions, Unicorp did not prove

that it satisfied the requirements of Section 5 of the Construction Contract.

Accordingly, BRaDD has established that a genuine issue of material fact exists as

to whether Unicorp is entitled to recover $3,214,711 for retainage at this time.

DISPOSITION

For these reasons, the judgment of the trial court granting partial summary

judgment in favor of Unicorp, LLC and against BRaDD, LLC in the amount of

$3,214,711, together with legal interest thereon from March 28, 2022, is reversed.

All costs associated with this appeal are assessed to Unicorp, LLC.

REVERSED AND REMANDED.

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