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

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-176

UNICORP, L. L. C.

VERSUS

BRADD, L. L. C.

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

**********

GARY J. ORTEGO
JUDGE

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Court composed of Gary J. Ortego, Ledricka J. Thierry, and Wilbur L. Stiles,
Judges.

AFFIRMED.

Charles Collins Garrison
Caffrey, Oubre, Campbell, Garriso
100 E Vermillion S. 201
Lafayette, LA 70501
(337) 232-6581
COUNSEL FOR DEFENDANT/APPELLEE:
National Trust Insurance Company

John T. Andrishok
Merrick J. (Rick) Norman, Jr.
Bethany Breaux Percle
Taylor, Porter, Brooks, et al.
450 Laurel Str., 8th Floor
Baton Rouge, LA 70821-2471
(225) 387-3221
COUNSEL FOR DEFENDANT/APPELLANT:
BRaDD, L. L. C.

Timothy O'Dowd
Samuel Ducote
O'Dowd Law Firm
924 Hodges Street
Lake Charles, LA 70601
(337) 310-2304
COUNSEL FOR DEFENDANT/APPELLANT:
BRaDD, L. L. C.

Andre Collins Gaudin
Burglass & Tankersley, LLC
5213 Airline Drive
Metairie, LA 70001-5602
(504) 836-0414
COUNSEL FOR DEFENDANT/APPELLEE:
Kacco, Inc.

Henry Minor Pipes, III
Pipes, Miles & Beckman
1100 Poydras St., #3300
New Orleans, LA 70163
(504) 322-7070
COUNSEL FOR DEFENDANT/APPELLEE:
Shelter Product, Inc.

Joseph E. Bearden, III
Duplass APLC
433 Metairie Road, Ste 600
Metairie, LA 70005
(504) 832-3700
COUNSEL FOR DEFENDANT/APPELLEE:
Mississippi Laminators, Inc.

Jonathan P. Lemann
Couhig Partners, LLC
1100 Poydras St., Suite 1150
New Orleans, LA 70163
(504) 588-1288
COUNSEL FOR DEFENDANT/APPELLEE:
Pensacola Wood Treating Company

Stephen L. Miles
Barrasso, Usdin, et al.
1100 Poydras St. Ste. 3300
New Orleans, LA 70163
(504) 322-7070
COUNSEL FOR DEFENDANT/APPELLEE:
Shelter Product, Inc.

Claire E. Pontier
Couhig Partners, LLC
1100 Poydras Street, #3250
New Orleans, LA 70163
(504) 588-1288
COUNSEL FOR DEFENDANT/APPELLEE:
Pensacola Wood Treating Company

Nicole M. Boyer
Duplass APLC
433 Metairie Road, Ste 600
Metairie, LA 70005
(504) 832-3700
COUNSEL FOR DEFENDANT/APPELLEE:
Mississippi Laminators, Inc.

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

Christopher Burge
Attorney at Law
5213 Airline Drive
Metairie, LA 70001-5602
(504) 836-0401
COUNSEL FOR DEFENDANT/APPELLEE:
Kacco, Inc.

Cody C. Bailey
Brunini, Grantham, Grower & He
PO Drawer 119
Jackson, MS 39205
(601) 948-3101
COUNSEL FOR PLAINTIFF/APPELLEE:
Unicorp, L. L. C.

ORTEGO, Judge.

This appeal involves motions for partial summary judgment filed by BRaDD,

LLC (BRaDD), defendant/owner, and Unicorp, LLC (Unicorp), plaintiff/contractor,

regarding construction work that Unicorp performed for BRaDD on an apartment

building in Lake Charles, LA. On July 19, 2023, the trial court granted Unicorp’s

motion for partial summary judgment regarding payment for certain approved

change orders owed by BRaDD and denied BRaDD’s motion for partial summary

judgment to cancel Unicorp lien and entered its written reasons. From this

judgment, BRaDD appeals. For the following reasons, we affirm the judgment of

the trial court.

FACTS AND PROCEDURAL HISTORY

This matter involves a contract dispute between BRaDD, its owner, and its

contractor, Unicorp, regarding construction work that Unicorp performed for

BRaDD on an apartment building in Lake Charles. The issues presented in this

litigation are fact-intensive and complex. However, this appeal only concerns the

trial court’s granting of a partial summary judgment in favor of plaintiff, Unicorp,

as to the very narrow issue regarding payment for a specific category of work

performed by Unicorp under its contract with BraDD, later referred to in this

opinion as “approved change orders,” and the trial court’s denial of BRaDD’s

motion for partial summary judgment to cancel Unicorp’s lien.

On December 20, 2017, BRaDD, as owner, and Unicorp, as contractor,

contracted to build the Erdace Apartments in Lake Charles, LA. The project was

financed with HUD guaranteeing the loan, thus pay applications were subject to

the prior approval of HUD and BRaDD’s lender.

The contract required Unicorp to substantially complete the work by March

20, 2019, and provided for liquidated damages at the lesser of the rate of $19.10

per unit for each day of delay until substantial completion was achieved or actual

damages.

On November 30, 2020, Unicorp filed a lien with the Calcasieu Parish

Recorder of Mortgages. Thereafter, on April 1, 2021, Unicorp filed suit against

BRaDD for $6,928,914.00 owed under the contract, which included: (1) retainage

of $3,213,711.00, which is not an issue on appeal; (2) approved change orders in

the amount of $1,482,338.46; and (3) disputed change orders of $2,232,864.00,

which is also not an issue on appeal.

On December 13, 2022, BRaDD filed a motion for partial summary

judgment to cancel Unicorp’s lien, arguing that Unicorp contractually waived its

right to file a lien. In response, Unicorp argued, among other things, that BRaDD

materially breached the contract first by not paying Unicorp, which relieved

Unicorp of its obligation to refrain from filing the lien.

On March 21, 2023, Unicorp filed a motion for partial summary judgment to

recover amounts owed by BRaDD for these approved change orders and

supporting brief. In response, BRaDD’s primary argument was that it was entitled

to exercise legal and contractual setoff rights based on unliquidated, unproven, and

disputed claims in its Reconventional Demand relating to alleged defective work

and alleged delay damages.

The trial court heard these motions on February 15, March 8, and May 12,

2023, then took the matter under advisement. On July 19, 2023, the court entered

its written reasons and granted Unicorp’s motion for partial summary judgment

regarding the approved change order sums, finding these approved change orders

were both liquidated and presently due, and determined that Unicorp was also

entitled to legal interest from March 21, 2023. Additionally, the trial court denied

BraDD’s motion for partial summary judgment to cancel Unicorp’s lien, finding it
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failed to establish its right to setoff under their contract, as these setoff claims,

which BRaDD relied on to refuse payment, were unliquidated and disputed,

thereby precluding a legal setoff.

On September 11, 2023, the trial court entered judgment granting Unicorp’s

motion for partial summary judgment and denying BraDD’s motion for partial

summary judgment.

On October 19, 2023, BRaDD filed a motion for a new trial. In opposition,

Unicorp argued that BRaDD raised entirely new issues/arguments. Specifically,

BRaDD for the first time argued that Unicorp breached the separate disbursement

agreement between BRaDD and its lender, which in turn caused BRaDD to breach

the contract and fail to pay Unicorp; BRaDD’s own failure to calculate delay

damages rendered Unicorp’s claims unliquidated; and La.Civ.Code arts. 1993 and

2002 applied to excuse BRaDD’s failure to pay.

The trial court denied BRaDD’s new trial motion. BRaDD appealed the trial

court’s rulings on both Motions.

ASSIGNMENTS OF ERROR

BRaDD’s two assignments of error are listed/stated as follows:

A. THE TRIAL COURT ERRED IN GRANTING A PARTIAL SUMMARY
JUDGMENT AWARDING SUMS ALLEGEDLY DUE.

1. Because the contractor’s material breach of the contract warrants a reduction
in the balance due, the balance due remains uncertain.

2. Because the balance due to the contractor is determined in part by reducing
that sum for delay damages and those damages had not yet been determined,
the balance due remains uncertain.

3. Because the obligee-contractor breached the contract and that breach caused
the obligor-owner to breach, a reduction is necessary or possible pursuant to
La.Civ.Code art. 2003 and thus the balance due remained uncertain.

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4. Because the conditions precedent for payment of the balance due had not yet
been satisfied, the trial court erred.

5. Because the facts would allow the trial court to allow for judicial
compensation, the trial court should not have granted a partial summary
judgment until it tried the facts.

6. Because the parties had only participated in limited discovery, the trial court
erred in not allowing more time for discovery and granting partial summary
judgment.

B. THE TRIAL COURT ERRING IN FAILING TO ORDER THE
CANCELLATION OF UNICORP’S LIEN.

1. In its continuing efforts to collect from BRaDD, Unicorp previously took and
currently takes the position that the contract in question is valid and
enforceable. To avoid cancellation of its lien, Unicorp takes the position that
this same contract is unenforceable because it dissolved the contract. The
trial court erred by not declaring Unicorp judicially estopped from taking this
contradictory position.

2. Unicorp made a choice of remedies that required it to deem the contract
enforceable. Upon realizing this choice of remedy detrimental, Unicorp is
attempting to obtain a remedy dependent on the contract being unenforceable.
The trial court erred in allowing Unicorp to switch choice of remedies.

3. The trial court erred by accepting Unicorp’s position that it unilaterally
dissolved the contract prior to placing BRaDD in default.

4. The trial court erred by accepting Unicorp’s argument that it had the right to
unilaterally dissolve the contract.

STANDARD OF REVIEW

The standard of review in partial summary judgment is de novo. Davis v.

Heniff Transp., LLC, 52,048 (La.App. 2 Cir. 5/23/18), 249 So.3d 183.

LAW AND DISCUSSION

The issues presented in this litigation are complex and fact intensive.

However, in the broadest sense, this dispute between the parties can be

summarized as BRaDD paying Unicorp for some “approved change orders,” but

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denying payment on others. Each party asserts that the other party violated the

contract first, thereby relieving the non-breaching party’s obligations under the

contract. Each party contends their own asserted sums owed to Unicorp and

setoffs claimed by BRaDD were liquidated, due, and owing. BRaDD argues that

both parties are affected by the disbursement terms of BRaDD’s loan agreement,

which it used to finance the construction of the property. Unicorp argues that it is

not bound by the disbursement agreement between BRaDD and its lender, and that

any disbursement issues are solely between BRaDD and its lender.

The circumstances giving rise to this litigation are that on December 20,

2017, BRaDD, as owner, and Unicorp, as contractor, contracted to build the Erdace

Apartments in Lake Charles. The project was financed with HUD guaranteeing the

loan. Pay applications were subject to the prior approval of HUD and BRaDD’s

lender. The contract required Unicorp to substantially complete the work by

March 20, 2019, and provided for liquidated damages at the lesser of the rate of

$19.10 per unit for each day of delay until substantial completion was achieved or

actual damages.

BRaDD’S ARGUMENT:

BRaDD argues that partial summary judgment awarding part of the balance

due in the form of sums referred to as “approved change orders” was not ripe, as

discovery was and is in preliminary stages. BRaDD argues that Unicorp sought

payment for 100% of the approved change orders but failed to complete 100% of

them to meet the applicable standards. Further, due to Unicorp’s breaches of the

contract, the balance due is not determinable. BraDD argues that the balances due

Unicorp are subject to reduction under various Civil Code articles and, separately,

judicially determined compensation is appropriate given the facts.

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Specifically, BRaDD cites La.Civ.Code arts. 1993 and 2022. Those articles

provide:

“In case of reciprocal obligations, the obligor of one may not be put in default
unless the obligor of the other has performed or is ready to perform his own
obligation.”

and

“Either party to a commutative contract may refuse to perform his obligation if the
other has failed to perform or does not offer to perform his own at the same time, if
the performances are due simultaneously.”

BRaDD argues that “Where the owner presents evidence of the cost of

completion of the work or correction of the defective work, the contract price may

be reduced by that amount” citing Mount Mariah Baptist Church, Inc. v. Pannell’s

Associated Electric, Inc., et al., 36,361, p. 13 (La.App. 2 Cir. 12/20/02), 835 So.2d

880.

Additionally, BRaDD argues that not only is the balance due not

determinable, but the balance never became due because Unicorp failed to fulfill

the conditions precedent. BRaDD presented evidence of defective work.

Consequently, Unicorp cannot recover the full contract price when it has not

earned the full contract price. BRaDD contends Unicorp’s claim is not liquidated

because its breaches will necessarily result in a modification of the price (“reduced

by that amount”). In seeking partial summary judgment, Unicorp had the burden

of proving full performance under its commutative contract to justify the full price,

and Unicorp failed to do so. Furthermore, BRaDD notes that Article 3.E of the

construction contract, in pertinent part, provides:

The maximum sum stated in Article 4 [price] . . . shall be reduced
by . . . Therefore, the price, which includes the approved changed
orders, is not just the number calculated pursuant to Article’s 4 and 2
(A) (11) but the sum calculated minus [reduced by] whatever
reductions apply. The balance due is uncertain until this reduction is
determined.

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BRaDD further argues that because the price is yet to be determined by

applying the required reduction set forth in a portion of the contract, the court

should have denied Unicorp’s motion for partial summary judgment, citing

La.Civ.Code arts. 1993 and 2022. Additionally, BRaDD argues that La.Civ.Code

art. 2003 is triggered such that a factfinder must allocate fault before any sum can

be determined. In support, BRaDD cites Lamar Contractors, Inc. v. Kacco, Inc.,

15-1430 (La. 5/3/16), 189 So.3d 394. Furthermore, BRaDD contends the work

that Unicorp failed to fulfill pursuant to contract specifications prevented it from

paying Unicorp. Specifically, the failure of Unicorp to fulfill certain obligations

prevented it from being paid, as these obligations were prerequisites to the

disbursement of funds, including: (1) Unicorp failing to provide “as-built

drawings and specifications”; (2) Unicorp failing to submit “all executed final

advance documents required by HUD...”; and (3) Unicorp failing to provide lien

waivers. BRaDD notes that Unicorp argues that the approved change orders

became due and payable at the moment they were agreed on. BRaDD argues that

Article 5(C) of the contract states “[t]he balance due to Contractor hereunder shall

be payable upon the expiration of thirty, 30, days after the Work hereunder is fully

completed . . . .”

BraDD contends that the construction contract expressly prohibited Unicorp

from filing or maintaining a materialman’s lien or maintaining any claim against

BRaDD’s land or improvements and also required Unicorp to include in each

subcontract a similar clause. Another contract signed by the parties also prohibited

Unicorp from filing liens. BRaDD notes that it never directly paid Unicorp, and

that the funding to fulfill BRaDD’s obligations comes directly from the lender after

compliance with and approval by HUD requirements. BRaDD argues that

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Unicorp’s breaches prevented these payments, thus causing BRaDD’s alleged

breaches.

Thus, BraDD argues that denial of its motion for partial summary judgment,

on this issue of Unicorp’s lien, conflicts with the contract of the parties agreeing

there would be no liens. For this ruling, the trial court relied on Unicorp’s position

that it deemed the contract dissolved. Unicorp’s positions are irreconcilable.

When it is advantageous, Unicorp asserts the contract is valid. When it is

disadvantageous, Unicorp asserts the contract invalid, dissolved. The trial court

erred by not prohibiting Unicorp from taking such inconsistent stances. Further,

even if the courts allow Unicorp to switch its position, it failed to place BRaDD in

default prior to deeming the contract dissolved and it fails to show the law that

allows it to deem the contract dissolved even if it had done so.

UNICORP’S ARGUMENT:

On the other hand, Unicorp contends, as to this narrow issue of the payment

of these approved change orders, that these are due, liquidated, and owing, and the

law, along with a reading of their construction contract, clearly states that BRaDD

owes Unicorp a quantified amount, and that BRaDD could only setoff payment if it

also has an amount owed to it by Unicorp that is due and quantified.

Unicorp further argues that in contrast to BRaDD’s partial summary

judgment response, which focused almost exclusively on setoff, BRaDD’s primary

appeal argument, raised for the first time in this appeal, is that the trial court erred

in granting Unicorp’s motion as the payment for the approved change orders is not

presently due because of Unicorp’s alleged failure to satisfy various conditions

precedent to final payment. Nevertheless, neither argument defeats Unicorp’s

motion, and the trial court could not have committed error in “rejecting” an

argument that BRaDD never even raised before the trial court. Thus, the contract
8

unequivocally establishes that BRaDD presently owes, and has for a long time

owed, Unicorp for these unpaid approved change orders.

Additionally, Unicorp notes that BRaDD paid for 31 of the 99 approved

change orders when Unicorp executed the change orders and performed the work.

Unicorp emphasizes that BRaDD has never complained of the work in the

approved change orders, and that BRaDD has been collecting rent on the work for

four years. Unicorp further underscores that all parties agreed to the approved

change orders in writing and that the amount it seeks is a “mere calculation” of the

68 remaining approved changed orders that have not yet been paid. Moreover,

BRaDD judicially admitted the amount owed for the approved change orders and

that the amount was presently due when it pleaded a setoff as an affirmative

defense and again in its opposition to Unicorp’s motion, when BRaDD agreed with

Unicorp’s List of Material Facts Not in Dispute.

Unicorp argues that BRaDD’s remaining arguments for why payment is not

due and owing, if not waived, rely on what it calls inapplicable provisions of the

contract and irrelevant, non-contract documents and do not defeat Unicorp’s

entitlement to partial summary judgment. For instance, BRaDD argues that

payment is not due and owing because Unicorp failed to satisfy requirements

contained in Articles 5(B) and (C) of the contract. Unicorp argues that Articles

5(B) and (C) of the contract only apply to final payment, and Unicorp’s motion

was not requesting final payment.

Furthermore, Unicorp emphasizes that BRaDD paid 31 of the approved change

orders without issue, and there is no reason it cannot do so now, i.e., the conditions

under which BRaDD seeks to withhold payment existed when BRaDD paid the

previous 31 orders. As to BRaDD’s argument that the disbursement agreement

prevents its payment to Unicorp, Unicorp notes that this argument was raised for
9

the first time in BRaDD’s motion for new trial and can be found in no other

pleading in response to Unicorp. On the substance of the argument, Unicorp

contends that the main construction contract terms apply in this case, as the

disbursement contract states that it should not be construed in a way to affect the

rights and obligations conferred on the parties by the main construction contract.

Unicorp argues that whatever agreement BRaDD has with its own lender does not

affect what it owes Unicorp. Furthermore, Unicorp argues that the disbursement

contract governs only how payments should occur; it does not affect any rights to

payment. Unicorp also argues that BRaDD’s delay damages cannot be due and

owing because the delay damages they calculated were based on an

“unauthenticated and inadmissible” mortgagor’s final cost certification, which

Unicorp objected to at the trial court. Furthermore, BRaDD failed to prove a delay,

quantify delay damages less its operating income, then have HUD certify the actual

damages. Unicorp argues it cannot determine which amount of delay damages is

less, the actual damages or liquidated damages, without these steps being taken.

As to BRaDD’s assertion that La.Civ.Code arts. 1993 and 2022 relieve

BRaDD of its obligation to pay the approved change orders (on the theory that

Unicorp breached the contract first), Unicorp argues this argument is misplaced.

On the contrary, Unicorp argues that BRaDD breached the contract first, as it

approved the change orders along with HUD and the architect. BRaDD also failed

to complain of defective work until long after the substantial completion.

Additionally, Unicorp argues that this argument was first raised in the motion for

new trial and should be considered waived. Likewise, Unicorp asserts that the trip

report identifying minor warranty items does not retroactively justify BRaDD

refusing to pay.

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Unicorp further emphasizes that the judicial setoff is not available to

BRaDD because the debt is not liquidated, and although Unicorp disputes the

existence of the debt at all, but at any rate argues that even if it does exist, the

amount is not certain. As to BRaDD’s argument that more discovery must be

performed before any ruling can be rendered, Unicorp notes that BRaDD did not

file a motion to continue on this basis and that it was two years from the time suit

was first filed and the motion for partial summary judgment was heard.

Furthermore, Unicorp contends that BRaDD failed to raise this issue in the trial

court or motion for new trial.

Finally, Unicorp argues that as BRaDD offered no evidence to contradict

Unicorp’s evidence, the trial court correctly granted Unicorp’s motion.

Next, and as to BRaDD’s motion to cancel Unicorp’s lien, Unicorp argues

that BRaDD incorrectly relies primarily on a lien waiver provision in Article 9 of

the agreement. However, when BRaDD materially breached the contract by,

among other things, failing to pay Unicorp for the approved change orders,

Unicorp was legally excused from its obligations under the contract, including any

obligation to not file the lien. Contrary to BRaDD’s appeal brief, Unicorp did not

argue to the trial court that the entire contract was dissolved or take inconsistent

positions. Rather, Unicorp showed that La.Civ.Code art. 2022 allowed Unicorp to

disregard its contract obligation to not file the lien because BRaDD first breached

its related obligation to pay Unicorp.

In the alternative, Unicorp noted that material issues of fact existed as to

whether there was a dissolution when BRaDD began occupying the project yet

refused to pay Unicorp. Louisiana Civil Code article 2018 states that Unicorp,

regardless of whether the contract dissolved as to one or more provisions, can

enforce its rights under the contract against BRaDD to recover money owed for
11

Unicorp’s performance. Thus, material issues of fact existed that precluded

BRaDD’s motion for partial summary judgment to remove Unicorp’s lien, and the

trial court correctly denied BRaDD’s motion to cancel the lien.

ANALYSIS:

As the issues in these assignments of errors are factually connected, we will

address them collectively under one heading. As previously stated, the

circumstances giving rise to this litigation are that on December 20, 2017, BRaDD,

as owner, and Unicorp, as contractor, contracted to build the Erdace Apartments in

Lake Charles. The project was financed with HUD guaranteeing the loan, and the

contract required Unicorp to substantially complete the work by March 20, 2019,

providing for liquidated damages at the lesser of the rate of $19.10 per unit for

each day of delay until substantial completion was achieved or actual damages.

BraDD contends that Unicorp finished the project late, and that the price or

amount payable to Unicorp equaled the value of the work minus the liquidated

damage clause. The calculation of the liquidated damages required HUD’s

approval. The contract required Unicorp, at its own expense, to correct any work

that deviates from the plans and specifications. BRaDD argues that the

construction contract expressly allows—if not requires—BRaDD to withhold from

final payment any amount satisfactory to the lender and HUD for any work items

that are incomplete at the time of final payment. BRaDD notified Unicorp of the

defective work and demanded that Unicorp repair the items. BRaDD argues that

Unicorp failed and refused to repair the defective work, forcing BRaDD to take on

those repairs at its own expense. Despite its failures, BRaDD argues that Unicorp

seeks 100% of the price of the contract balance as “due,” including retainage and

approved charge orders.

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On the other hand, Unicorp argues that it substantially completed 257 units

and other portions of the project on June 3, 2020, and substantially completed the

remainder of the project on September 10, 2020, and that Certificates of

Substantial Completion were signed, accepted, and agreed to by the project

architect, Unicorp, and BRaDD. Additionally, on June 3, 2020, HUD (the

mortgage insurer) and the City of Lake Charles authorized BRaDD to begin

occupying 257 units and BRaDD began renting those units on June 9, 2020. On

September 10, 2020, HUD and the City of Lake Charles authorized BRaDD to

occupy the 13 remaining units, after which time BRaDD began renting those units,

and BRaDD has rented them ever since. Thus, BRaDD has been continually

collecting rents as the fruit of Unicorp’s work performed, including the several

work change orders at issue herein, since June 9, 2020, for over four years ago, yet

BRaDD has refused to pay Unicorp.

A ruling on a motion for summary judgment is reviewed under
a de novo standard, with the appellate court using the same criteria
that govern the district court’s determination of whether summary
judgment is appropriate, i.e., whether there is any genuine issue of
material fact, and whether the movant is entitled to judgment as a
matter of law. Pursuant to La. Code Civ. P. art. 966(D)(1), the burden
on the party moving for summary judgment “does not require him to
negate all essential elements of the adverse party’s claim, action, or
defense, but rather to point out to the court the absence of factual
support for one or more elements essential to the adverse Party’s
claim, action, or defense.” When a motion for summary judgment is
made and supported, an adverse party may not rest on the mere
allegations or denials of his pleadings, but his response, by affidavits
or otherwise, must set forth specific facts showing that there is a
genuine issue for trial. La. Code Civ. P. art. 967(B). Once a motion
for summary judgment has been properly supported by the moving
party, the failure of the non-moving party to produce evidence of a
material factual dispute mandates the granting of the motion.

Corbajal v. Chris Owens French Quarter Parade, LLC, 24-191, pp. 3-4 (La.

5/21/24), 385 So.3d 236, 237-38 (case citations omitted).

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Article 7.2.1 of the general conditions of this construction contract defines a

change order as a “written instrument prepared by the Architect and signed by the

Owner, Contractor and Architect stating their agreement” to a change in the work

and the amount of adjustment in money and time, if any. Additionally, Article 2 of

the Agreement in the contract provides that any approved change orders become

part of the Contract.

Article 7.3.10 of the general conditions’ states (emphasis added) that once

there is agreement on a change order, the agreement is “effective immediately.”

Thus, once Unicorp completed the work in the approved change orders, which

work on these unpaid change orders were approved in writing by HUD, Greystone,

BRaDD, and its architect, then payment for the approved change orders was

immediately due and liquidated.

Here, a review of the record shows that during the project, BRaDD issued

and approved at least 99 change orders totaling $2,575,550.15 for additional labor

and material provided by Unicorp. Thus, over the course of the project, BRaDD

has paid Unicorp for 31 of those 99 approved change orders, but BRaDD has

refused to pay Unicorp for the remaining 68 approved change orders at issue in

this appeal, totaling $1,482,338.30. Thus, the parties followed this same process

for all of the paid and these unpaid change orders for this project.

Additionally, the record shows that all of these approved change orders at

issue in this appeal, totaling $1,482,338.30, were signed and approved by Unicorp,

the architect, HUD, and BRaDD. We also note that it is undisputed that Unicorp

provided all of the material and labor, along with payment of all labor and material

required for these approved change orders, and Unicorp performed all of the work

described in the approved change orders, yet BRaDD refused to pay Unicorp for

these change orders in dispute.
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Finally, a review of the record shows that these unpaid approved change

orders at issue are not implicated or specifically pled by BRaDD’s in its

reconventional demand or claims of defective construction work, yet BRaDD has

refused to pay these change orders that are due and owing to Unicorp.

Thus, we find that Unicorp carried its burden of proof and presented

evidence sufficient to show that these previously approved unpaid change orders at

issue were in fact both liquidated and presently due.

Even though we have found that Unicorp has made and properly supported

its motion for partial summary judgment, this does not end this court’s review. By

law, the burden of proof then shifted to BRaDD to present specific facts to dispute

Unicorp’s claim and to show that there is a genuine issue of material fact for trial

as to these change orders at issue. La. Code Civ. P. art. 966(D)(1). A review of

the record reflects that BRaDD failed to present any specific facts in dispute, and

further that it has failed to carry its burden to prove the setoff amounts, as alleged

in its reconventional demand and its opposition to Unicorp’s motion, were

liquidated and currently due. Thus, we find that the setoff amounts claimed by

BRaDD in its motion for partial summary judgment are currently unliquidated and

not currently due, as all of BRaDD’s setoff claims are disputed by Unicorp, and

BRaDD’s setoff claims also include BRaDD’s reconventional demand and claims

for allegedly delayed completion, defective work, failure to indemnify, and the

filing of Unicorp’s lien.

We further find that because these alleged setoff claims by BRaDD, at this

time, are unproven and unliquidated, they may not be raised to offset or reduce

Unicorp’s claim for these approved change orders at issue, which we found are

liquidated and presently due and owing. Therefore, we find a material issue of fact

does exist that precluded BRaDD’s motion for partial summary judgment to
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remove Unicorp’s lien. Additionally, at trial on the merits, BRaDD may yet be

able to prove the setoff amounts as alleged in its reconventional demand.

In summary, after a de novo review of the entire record available at this

stage, we find that pursuant to the terms of the contract, along with the relevant

codal and jurisprudential authorities, these approved change orders at issue were in

fact liquidated, due, and owing to Unicorp by BRaDD. Additionally, we find that

BRaDD failed to carry its burden to present sufficient evidence to properly support

its motion for partial summary judgment that Unicorp was prohibited from filing a

lien, violating its construction contract between the parties. Thus, these

assignments of error are without merit.

DECREE

For the reasons stated above, the trial court’s judgment granting Unicorp’s

motion for partial summary judgment and denying BRaDD’s motion for partial

summary judgment is affirmed. All costs, including the costs of this appeal, are

assessed against BRaDD, LLC.

AFFIRMED.

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