                              Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #025


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 3rd day of May, 2016, are as follows:


PER CURIAM:


2015-C -1430      LAMAR CONTRACTORS, INC. v. KACCO, INC. (Parish of St. Bernard)

                  For the reasons assigned, the judgment of the court of appeal is
                  vacated insofar as it affirms the district court’s judgment
                  reducing the award of damages in favor of Lamar Contractors, Inc.
                  The case is remanded to the district court for the sole purpose
                  of entering an amended judgment in favor of Lamar Contractors,
                  Inc. for the full amount of damages previously determined with no
                  reduction for contributory negligence.    In all other respects,
                  the judgment of the court of appeal is affirmed.     All costs in
                  this court are assessed against defendant, Kacco, Inc.

                  JOHNSON, C.J., concurs.
                  CRICHTON, J., additionally concurs and assigns reasons.
05/03/16

                             SUPREME COURT OF LOUISIANA

                                         No. 2015-C-1430

                               LAMAR CONTRACTORS, INC.

                                              VERSUS

                                           KACCO, INC.

             ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
                 FOURTH CIRCUIT, PARISH OF ST. BERNARD

PER CURIAM


        In this case, we are called upon to decide whether the district court erred in

reducing plaintiff’s damage award based on a finding that plaintiff’s actions

contributed to defendant’s breach of contract. For the reasons that follow, we vacate

the judgment insofar as it reduced plaintiff’s award.



               UNDERLYING FACTS AND PROCEDURAL HISTORY

        For purposes of the issue before us, the facts are largely undisputed. Lamar

Contractors, Inc. (“Lamar”) was general contractor on a construction project. Lamar

entered into a subcontract with Kacco, Inc. (“Kacco”) to provide metal framing and

drywall work on a construction project. The subcontract included a “pay-if-paid”

payment provision, which afforded Lamar ten days to remit payment to its

subcontractors after receipt of payment from the owner.

        Kacco began work on the project in October 2010 but experienced recurring

problems with providing manpower and paying for supplies.1 Kacco worked through

        1
             On November 9, 2010, Steve Louque, Lamar’s representative and project manager, sent a
certified letter on behalf of Lamar to Noel Buras, the owner of Kacco, expressing concerns regarding the
lack of manpower and materials to timely complete the project. On November 16, 2010, Mr. Buras
responded by email and explained that the supply company put his account on hold. Mr. Buras expressed
that Kacco could not pay the balance down because it did not have sufficient funds. Mr. Buras requested
that Lamar issue a joint check to Kacco and the supplier. Lamar agreed to issue a joint check but only if
November and December. Toward the end of November, Kacco submitted an invoice

for work performed that month. The invoice submitted at the end of December

reflected that forty-five percent of the work had been performed. Lamar issued a

check to Kacco on December 30, 2010.2 Notably, Lamar made this payment prior

to receiving payment from the owner.3

        On January 13, 2011, Lamar sent another email to Kacco addressing continuing

concerns with Kacco’s ability to perform its work under the contract.                           Kacco

responded to Lamar’s concerns regarding manpower and materials and asked to be

allowed to finish the job. Kacco then continued working on site, completing the metal

framing and stud work. Lamar inspected the work and found some deficiencies,

which were noted on a punch list.

        On January 31, 2011, Kacco notified Lamar that Kacco was waiting on the

payment of its December invoice to pay the supplier and order the necessary supplies

to complete the punch list. Lamar had received payment from the owner on January

26, 2011; however, pursuant to the subcontract, Lamar was not required to make

payment to Kacco until February 9, 2011, ten business days later.

        On February 3, 2011, Lamar sent notice to Kacco stating that Kacco’s

subcontract would be terminated if Kacco did not provide sufficient manpower and

materials within forty-eight hours. Kacco did not respond to Lamar or return to the job


Kacco agreed to a 10% back charge for the cost of the materials purchased. Kacco declined. In the
interim, Mr. Buras was able to pay the supply company debt down; thus, enabling Kacco to purchase more
supplies and continue the framing work.
       2
           Kacco’s owner, Mr. Buras, deposited the check; however, Kacco’s bank dishonored the check
due to his failure to properly endorse the check. Mr. Buras mistakenly believed the check was returned
for insufficient funds and informed some of his employees and suppliers to hold checks he had issued due
to the returned check. Once Lamar learned of these assertions, the business relationship between Lamar
and Kacco declined. At one point, Mr. Lourque of Lamar threatened to file a defamation suit against Mr.
Buras. However, Mr. Buras ultimately apologized, and Lamar did not pursue any legal action.
       3
          The owner’s check was dated December 28, 2010. However, the record reveals Lamar did not
receive the owner’s check until January 7, 2011, eleven days after Lamar issued its check to Kacco.

                                                   2
site. Lamar officially terminated Kacco’s subcontract in a letter dated February 5,

2011.        After termination of the subcontract with Kacco, Lamar hired another

contractor to complete the work.

         Subsequently, Lamar filed a breach of contract suit against Kacco. It alleged

that Kacco breached the contract between the parties and that this breach caused

damages. Lamar also sought attorney’s fees and costs.

         Kacco filed a reconventional demand against Lamar, alleging Lamar failed to pay

Kacco for work performed under the contract. Kacco also alleged Lamar’s failure to

pay Kacco as needed caused Kacco to breach. Kacco also sought attorney’s fees and

costs.

         After a bench trial, the district court entered judgment on the main demand for

Lamar in the amount of $24,116.67 with interest from demand, plus attorney’s fees in

the amount of $7,681.75 and costs in the amount of $3,105.81. Additionally, the

district court entered a judgment in the amount of $60,020.00 plus interest from

demand in favor of Kacco on the reconventional demand.4

         In written reasons for judgment, the district court made a finding of fact that

Kacco breached the contract between the parties by failing to provide sufficient

materials to complete the job. However, citing La. Civ. Code art. 2003, the district

court found Lamar negligently withheld payments for completed work performed by

Kacco, which contributed to Kacco’s breach. As a result, the district court concluded

that Lamar’s negligence contributed to Kacco’s failure to perform and reduced

Lamar’s damages in proportion to this negligence.

         Lamar appealed the judgment. The court of appeal affirmed the judgment in its

entirety. Lamar Contractors, Inc. v. Kacco, Inc., 14-1360 (La. App. 4 Cir. 7/1/15),

         4
          The judgment does not explicitly set forth the amount of the award prior to reduction; however,
the court’s written reasons detail the unreduced damages.

                                                    3
174 So. 3d 82.

        Upon Lamar’s application, we granted certiorari to review the correctness of

this decision. Lamar Contractors, Inc. v. Kacco, Inc., 15-1430 (La. 11/20/15), ___

So.3d ___. The sole issue presented for our consideration is whether the district court

erred in reducing Lamar’s damages for breach of contract based on a finding that

Lamar’s negligence contributed to Kacco’s breach of the contract.5



                                            DISCUSSION

        At the outset, we find no manifest error in the district court’s findings that

Kacco breached its subcontract with Lamar and that Lamar was entitled to damages

as a result of that breach. Rather, our sole focus is on whether Lamar’s actions during

the relevant time frame contributed to that breach for purposes of La. Civ. Code art.

2003. That article provides:

                 An obligee may not recover damages when his own bad
                 faith has caused the obligor’s failure to perform or when, at
                 the time of the contract, he has concealed from the obligor
                 facts that he knew or should have known would cause a
                 failure.

                 If the obligee’s negligence contributes to the obligor’s
                 failure to perform, the damages are reduced in


        5
            The sole assignment of error in Lamar’s writ application was as follows:

                 The Fourth Circuit Court of Appeal erred when it affirmed the Trial
                 Court’s ruling that Lamar negligently withheld payment to Kacco and
                 reduced the damage award in favor of Lamar under Louisiana Civil Code
                 article 2003 when payment was not due by Lamar and Lamar had the
                 right to withhold payment under the subcontract after Kacco defaulted and
                 the subcontract was terminated by Lamar.

         After we granted the writ, Lamar added additional assignments of error in its brief, seeking an
increase in damages and attorney’s fees. In granting the writ under the exercise of our discretionary
certiorari powers, we did not intend to address any additional issues beyond those narrowly raised in
Lamar’s original assignment of error. Accordingly, we limit our consideration in this opinion solely to the
single assignment of error as set forth in Lamar’s writ application. See, e.g., Boudreaux v. State, 01-1329
(La. 2/26/02), 815 So. 2d 7 (declining to “address questions that were neither presented in the application
for certiorari nor fairly included in the questions that were presented”).

                                                     4
              proportion to that negligence. [emphasis added].

       This obligation is correlative to the general duty imposed by La. Civ. Code art.

1983, which requires “[c]ontracts must be performed in good faith.” Professor

Litvinoff discussed the meaning of good faith in a contractual context as follows:

              Another attempt to explain the meaning of good faith
              focuses on the benefits or advantages parties expect to
              derive from their contracts. In that approach, besides
              abstention from malice, good faith demands from each
              party abstention from any action or inaction that may
              prevent the other from obtaining the benefit that the latter
              warrantedly expected to obtain. That view is carried a step
              forward when the assertion is added that the duty of good
              faith may not only proscribe undesirable conduct, but may
              also require each party to take affirmative action to
              cooperate in the attainment of his goals by the other.... In
              sum, a promisee must not only not hinder the rendering of
              performance by his promisor, but also do whatever is
              necessary to enable the promisor to perform.

              In civil-law terminology that view could be expressed by
              saying that an obligee, especially one who is also an obligor
              of a reciprocal obligation, should not only abstain from
              contributing to the failure of the cause of his obligor's
              obligation, but must do as much as he can to allow that
              cause to remain, if possible, intact during the life of the
              contract.

              Saul Litvinoff, Good Faith, 71 TUL. L.REV. 1645 (1997).

       Nonetheless, this general duty of good faith cannot be considered in isolation.

Rather, it is necessarily regulated and circumscribed by the obligations imposed by the

parties’ contract.

       Although we have not had occasion to consider La. Civ. Code art. 2003 since

its enactment in 1985, jurisprudence interpreting the predecessor article, La. Civ. Code

art. 1934 of 1870, emphasized that the obligor must establish that the obligee breached

the contract, thereby making it more difficult for the obligor to perform its obligation.

See, e.g., Board of Levee Com'rs of Orleans Levee Dist. v. Hulse, 120 So. 589, 590,

167 La. 896, 898-99 (1929) (explaining that the plaintiff breached its obligations under

                                            5
the contract, thereby making the performance of the contract much more difficult for

the contractor).

      Similarly, in Favrot v. Favrot, 10-986 at p. 16 (La.App. 4 Cir. 2/9/11), 68 So.3d

1099, 1109, writ denied, 11-636 (La. 5/6/11), 62 So.3d 127, the court of appeal

concluded that the question of a party’s good or bad faith does not become relevant

until there has been a determination that the party failed to perform an obligation under

the contract:

                Judicial inquiry, however, into an obligor’s (or even in some
                cases an obligee’s good-faith performance of the obligation
                is not triggered by the morality of a party’s intentions, but
                is initiated only when the obligee has proven a failure to
                perform an obligation.

                Stated another way, we do not examine a party’s good
                faith (or bad faith) unless and until we find that the
                party has failed to perform an obligation, from which
                the obligee has sustained damages. [emphasis added].

      Taken as a whole, these authorities support the proposition that an obligor

cannot establish an obligee has contributed to the obligor’s failure to perform unless

the obligor can prove the obligee itself failed to perform duties owed under the

contract. Stated in other words, Kacco must demonstrate that Lamar failed to perform

its obligations under the contract, which in turn contributed to Kacco’s breach of the

contract.

      The undisputed facts establish that, on January 31, 2011, Kacco notified Lamar

that Kacco was waiting on the payment of its December invoice to pay the supplier

and order the necessary supplies to complete the punch list. Lamar had received

payment from the owner on January 26, 2011. However, pursuant to the terms of the

contract, Lamar was not required to make payment to Kacco until February 9, 2011,

ten business days later.

      On February 3, 2011, during this ten-day period, Lamar advised Kacco that

                                              6
Kacco’s contract would be terminated if Kacco did not provide sufficient manpower

and materials within forty-eight hours. Kacco did not respond to Lamar or return to

the job site. Lamar officially terminated Kacco’s subcontract in a letter dated February

5, 2011. Thus, the contract was terminated on February 5, 2011, before Lamar’s

obligation to make payment to Kacco became due on February 9, 2011.

       Under these circumstances, it is clear Lamar did not violate any obligation owed

under the contract to make payment to Kacco and could not have negligently

contributed to Lamar’s breach of its obligations under the contract. Accordingly, the

district court erred in applying the provisions of La. Civ. Code art. 2003 to reduce

Lamar’s award of damages.



                                          DECREE

       For the reasons assigned, the judgment of the court of appeal is vacated insofar

as it affirms the district court’s judgment reducing the award of damages in favor of

Lamar Contractors, Inc. The case is remanded to the district court for the sole

purpose of entering an amended judgment in favor of Lamar Contractors, Inc. for the

full amount of damages previously determined with no reduction for contributory

negligence. In all other respects, the judgment of the court of appeal is affirmed.6 All

costs in this court are assessed against defendant, Kacco, Inc.




       6
           By way of clarification, because Lamar’s writ application did not challenge Kacco’s
reconventional demand, the award on Kacco’s reconvention demand remains intact. See footnote 5,
supra.


                                               7
05/03/16



                    SUPREME COURT OF LOUISIANA

                                No. 2015-C-1430

                       LAMAR CONTRACTORS, INC.

                                    VERSUS

                                 KACCO, INC.
       ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
           FOURTH CIRCUIT, PARISH OF ST. BERNARD


CRICHTON, J., additionally concurs and assigns reasons.

      I agree with the per curiam opinion. I write separately to note that this

holding is compelled, in my view, by the Civil Code dictate that “[c]ontracts have

the effect of law for the parties.” La. C.C. art. 1983. Louisiana courts have never

before imposed a theory of negligence upon a contractor where there has been no

underlying finding of breach of contract. Because there was no such finding here,

to hold otherwise would impose a new duty beyond the scope of the contract,

which, in my view, this Court properly declines to do.
