author:
STEWART, J.
      PER CURIAM.

text:
    The NEWMAN MARCHIVE PARTNERSHIP, INC., Plaintiff-Appellee, v. CITY OF SHREVEPORT, Defendant-Appellant.
    No. 41,460-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 2006.
    Opinion Amending Judgment on Rehearing Dec. 8, 2006.

      Weems, Schimpf, Harris, Landry & Car-mouche, by Brian D. Landry, Carey T. Schimpf, Kenneth P. Haines, Shreveport, for Appellant.
    Wiener, Weiss & Madison, by John M. Madison, Jr., M. Allyn Stroud, Shreveport, for Appellee.
   Before STEWART, DREW and MOORE, JJ.

STEWART, J.

|-i This matter arises from a breach of contract suit by The Newman Marchive Partnership, Inc., (“TNMP”), against the City of Shreveport (the “City”). TNMP provided architectural services related to the development of a “Campus Plan” for the city government facilities. The trial court awarded TNMP additional fees and termination expenses totaling $476,146.89. Both parties have appealed the judgment. For the following reasons, we amend the trial court’s judgment to reduce the award to $414,200.45. Also, we remand the matter for the trial court to assess costs against the City in accordance with La. R.S. 13:5112.

FACTS

In August 1994, the City advertised for architectural services for a Campus Plan for the city government facilities located at 1234 Texas Street. After the City’s Architectural Selection Committee reviewed proposals by three applicants, it selected The Newman Partnership, Inc., now TNMP, as the architect for the project. Although the Campus Plan was to involve multiple projects, the parties entered only one agreement for the entirety of the work. Mayor Hazel Beard and Michael Newman, president of TNMP, executed a written contract on September 12, 1994, using the American Institute of Architects’ B141 Standard Form of Agreement Between Owner and Architect, 1987 Edition.

LThe contract identifies the project as “Additions and Renovations to City Hall facilities.” Paragraph 12.4.1 of the contract explains the project as follows:

The project will provide for new buildings, renovations and additions to the existing City facilities located at and adjacent to 1234 Texas Avenue, and adjacent and surrounding properties as may be acquired by the City. The purpose of the project is to provide for facilities for the physical space needs of all the various departments of the City.

Paragraph 12.4.2 describes the services to be provided by TNMP as “programming, site selection consultation, master planning, comprehensive architectural services, ... and extended construction contract services.” Under the contract, the architect’s services are considered either basic or additional. Basic services are comprised of the following five phases of the project — schematic design phase, design development phase, construction documents phase, bidding or negotiation phase, and construction phase (contract administration). The fee for basic services is a fixed percentage of the construction cost — eight percent for new buildings and ten percent for renovations. A percentage of the fee is charged at each phase of the project. Additional services are charged as either a percentage fee or an hourly rate depending on the particular service.

Upon confection of the contract, TNMP provided services to the City under three administrations, those of Mayors Beard, Bo Williams, and Keith Hightower. By letter dated July 17, 2000, the City terminated its contract with TNMP. Paragraph 8.7 of the contract provides for payment of termination expenses in the event of termination not the fault of the architect.

|3On September 19, 2003, TNMP filed suit against the City for breach of contract. TNMP sought damages totaling $1,243,339.23 for payments owed for services, reimbursable expenses, termination expenses, and loss of profits. TNMP amended its petition twice, dropping its claim for loss of profits and otherwise reducing its demand to $793,948.20. A bench trial ensued, after which the trial court rendered written reasons for judgment that thoroughly addressed the issues and claims presented at trial. The trial court’s judgment awarded TNMP the amount of $476,146.89, plus legal interest, and divided costs between the parties by assessing seventy-five percent to the City and twenty-five percent to TNMP. Both parties appealed.

The City asserts that the trial court erred in finding TNMP entitled to the following:

1. Basic services fee for redesign of the police building.
2. Basic services fee for renovation of the engineering and customer service building.
3. Basic services fee for design of the court plaza.
|44. Additional services fee for delays in construction of the court building and central energy plant.
5. Additional services fees for work on punch list items.
6. Termination expenses.

TNMP answered the appeal to assert error in the trial court’s denial of its claims for the following:

1. Basic services fee for design of a proposed new police building.
2. Basic services project management fee for the proposed new police building.
3. Basic services fee for governmental center signage.
4. Additional services fee for a master plan cost comparison.
5. Additional services fee for a campus plan energy study.

TNMP also argues that the trial court erred in failing to assess all costs of the trial court proceedings to the City.

DISCUSSION

Applicable Law

Contracts are the law between the parties and must be performed in good faith. La. C.C. art.1983. Interpretation of a contract requires determination of the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation is needed to determine the parties’ intent. La. C.C. art.2046. Each provision in the contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art.2050. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after formation of the contract, and of other contracts of a like nature between the parties. La. C.C. art.2053. In cases of doubt, contracts executed in a standard form of one party must be interpreted in favor of the other party. La. C.C. art. 2056. However, if doubt arises from lack of a necessary explanation that one party should have given, or from negligence or fault of one party, the contract must be interpreted in a manner favorable to the other party, whether obligee or obligor. La. C.C. art.2057. See also Total Minatome Corporation v. Union Texas Products Corp., 33,433 (La.App.2d Cir.8/23/2000), 766 So.2d 685.

1 sFactual findings pertinent to interpretation of a contract are not to be disturbed in the absence of manifest error. The Neuman Marchive Partnership, Inc., supra; Mount Mariah Bapist Church v. Pannell’s Associated Electric, Inc., 36,361 (La.App.2d Cir.12/20/02), 835 So.2d 880, writ denied, 03-0555 (La.05/02/03), 842 So.2d 1101. The duty of the reviewing court is not to determine whether the trial court was right or wrong, but whether the trial court’s conclusion was a reasonable one based on the entirety of the record. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). Reasonable evalúa-tions of credibility and inferences of fact should not be disturbed where conflict exists in the testimony. Id. Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

The City’s Assignments of Error

Basic Services Fee for Redesign of the Police Building

Although the Campus Plan initially called for construction of a new police building, the Hightower administration opted to move the city hall offices to downtown Shreveport and renovate the old city hall building for use by the police. The budget for the project was $2*250,000; therefore TNMP’s ten percent basic services fee was $225,000. However, the parties agreed that TNMP would not provide contract administration services for the project, thus TNMP deducted twenty percent of the fee that would be attributable to such services. TNMP further agreed to credit the City $19,200 for not having to design the jail stair and jail locks, which had already been done as part of their work in connection with the former plans Ififor a new police building. The credit is shown in the invoice of January 14, 2000. TNMP’s invoices from June 1999 through March 2000 were based on the estimated construction cost. The City paid fees totaling $162,289.64.

Upon filing suit, TNMP recalculated the fees based on the final construction cost of $2,965,512.60. The ten percent fee was $296,512.60, and this amount was reduced by the twenty percent deduction for construction administration ($59,302.50), leaving a total fee owed by the City of $237,210.08. TNMP contended that it was owed $74,920.44, the difference between the full amount owed and the $162,289.64 previously paid by the City. The trial court agreed and awarded the full amount of TNMP’s claim.

The City contends the recalculation of fees does not take into account the credit of $19,200. We agree. While TNMP’s invoice of January 14, 2000 shows that the credit was taken into consideration in billing for the work done in a particular phase of the project, this credit was not taken into consideration in recalculating fees based on the final construction cost. TNMP’s recalculation of fees for this project does not give the City the benefit of the credit agreed to by the parties. Rather, under TNMP’s recalculation, it collects its full fee minus only the twenty percent deduction for the construction administration phase it did not perform. We find that TNMP’s recalculation of fees should have also included the credit of $19,200. The application of this credit results in the City owing TNMP a balance of $55,720.44 ($74,920.44 - $19,200), and we amend the trial court’s judgment accordingly.

_J¿Basic Services Fee for Renovation of the Engineering/CSB Building

This claim dates back to 1997, when TNMP completed preliminary designs for renovations to what is referred to as the old annex building. After TNMP completed thirty-five percent of the architectural work through design development, the project was postponed. TNMP did nothing further and did not invoice the City for its work. The City later completed renovations after terminating its contract with TNMP. At trial, TNMP claimed that the City owed a fee of $69,492.50 (thirty-five percent of a ten percent fee) based on a budgeted construction cost of $1,985,500 for renovation of the entire building.

The City asserts that this claim should have been denied. The City argues the work was never part of the Campus Plan, a budget for the project was never approved, and TNMP was never authorized to proceed with the renovation. If a fee is owed, the City contends that it should be based on the construction cost for renovations of only the top two floors.

Paragraph 10.3.4 of the contract provides:

When compensation is based on a percentage of Construction Cost and any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to the extent services are performed on those portions, in accordance with the schedule set forth in Subpara-graph 11.2.2, based on (1) the lowest bona fide bid or negotiated proposal, or (2) if no such bid or proposal is received, the most recent preliminary estimate of Construction Cost or detailed estimate of Construction Cost for such portions of the Project.

The exhibits in evidence show that renovation of this entire building was included in the master plans for the project presented to the administrations of Mayor Beard in 1994 and Mayor Williams in 1995. The | ^building is also included in the master plan drawing for Phase I of the Campus Plan in 1997, during the time that TNMP was working on the project. The City was aware of the plans for the building and the work being done by TNMP. The City opted to postpone the project due to funding issues. Paragraph 10.3.4 allows TNMP to recover compensation attributable to those portions of the project for which services were performed based on the preliminary estimate of the construction cost. Therefore, this claim for $69,492.50 was properly granted.

Basic Services Fee for the Court Plaza

The trial court granted TNMP’s claim for $14,103.36 for architectural services related to design of the court plaza. The estimated construction cost of this project was $235,056. TNMP completed seventy-five percent of the work and claims seventy-five percent of the eight percent new construction fee ($235,056 x .08 = $18,804.48 and $18,804.48 x .75 = $14,103.36). TNMP’s records include an invoice to the City for this amount on December 16,1998.

The City contends that this project was not included within the scope of the Campus Plan. It argues that TMNP’s records contain discrepancies about whether an invoice for this service was paid. TNMP’s billing journal has both a debit entry and credit entry for the amount claimed, and its records also include a handwritten notation stating that the invoice was not paid. The City argues that TNMP offered no explanation for the contradiction or proved that the invoice was not paid.

bWhen questioned about the discrepancy, Michael Newman testified that his bookkeeper said the invoice had not been paid. He explained that the billings journal showed what bills were sent out and that a cash receipts journal was used to show payments received. He further explained there was no cash receipts journal for projects for which no income was received, thus suggesting that no payment was made on this project by the City. We note that the City offered no proof of payment to rebut Newman’s claim of nonpayment.

It was reasonable for the trial court to accept Newman’s explanation and find that the City had not paid for the design services related to the court plaza. The trial court’s finding that the court plaza project was included as part of the Campus Plan was also reasonable and supported by the record. The contract is broadly worded and does not specify projects. The initial advertisement requesting architectural services included the “development of a landscape plan for the grounds” as part of the plan. Moreover, a plaza is included in the various master plans. We find no error in this award.

Additional Services Fee for Delays

The trial court awarded TNMP $39,373.60 as fees for additional services required by the contractor’s failure to complete the work on the new court building by the contractual substantial completion date. Michael Newman testified that the services provided were contingent additional services. These are described in Paragraph 3.3.6 of the contract as “services made necessary by the default of the Contractor, by major defects or | ^deficiencies in the Work of the Contractor, or by failure of performance of either the Owner or Contractor under the Contract for Construction.” Paragraph 3.1 of the contract requires the architect to notify the owner prior to commencing contingent additional services when they are required by circumstances beyond the architect’s control. The owner is then required to give the architect “prompt written notice” if such services are not deemed to be required. These services are billed according to an hourly rate schedule.

TNMP’s records include a cost analysis of additional services allegedly provided from November 29, 1998, the date the contractor was supposed to have reached substantial completion, until April 12,1999, the actual date of substantial completion. However, Newman admitted that he did not notify the City prior to commencing these services. Moreover, he did not bill the City for these services.

The record does not support the trial court’s finding that the City had notice through its personnel. Neither the testimony nor the exhibits indicate that the city had notice that TNMP was performing these particular additional services. Russell DeLancy, the City’s architect, testified that TNMP’s failure to obtain prior authorization for work was a recurring problem. By letter of March 19, 1998, pertaining to invoicing policies, DeLancy reminded TNMP of the need to follow procedures by informing the City when work exceeds the original contract scope or when additional work is required.

TNMP correctly contends that written contracts are subject to modification, even when the contract states that it must be modified in | ^writing. See Wisinger v. Casten, 550 So.2d 685 (La.App. 2d Cir.1989). However, this record does not establish modification of the contractual notice requirements applicable to contingent additional services. TNMP’s claim that it did as it was told by the City does not establish modification, particularly in light of the letter of March 19,1998.

Because TNMP did not give the City notification prior to commencing these services as required by Paragraph 3.1.1 of the contract, we find that the services were not performed in accordance with the contractual provisions. Parties to a contract are required to perform in good faith, and this entails performance in accordance with the contractual provisions which set forth the parties’ mutual obligations. We observe TNMP’s failure to both abide by the contractual notice provisions and bill for additional services rendered would reasonably suggest to the City that services provided were basic services for which no compensation aside from the percentage fee would be due. The contract required TNMP to notify the City prior to commencing these services so as to give the City the opportunity to decide whether to forgo the additional services. This did not happen. Accordingly, we reverse the trial court’s award.

Additional Services Fee for Punch List Items

The trial court awarded TNMP $39,009.32 for additional services provided more than sixty days after substantial completion of the new court building to address punch list items. Here, too, the City argues that the claim should be denied, because TNMP failed to provide pri- or notice as required by the contract and failed to invoice the City until December 8, [ 122004. The City also contends that these services should be considered as additional project management services rather than as additional services.

Contrary to the City’s latter contention, Paragraph 3.4.18 of the contract clearly states that services provided more than sixty days after the date of substantial completion are optional additional services. An hourly rate applies to these services. The contract also provides in Paragraph 3.1.1 that optional additional services “shall only be provided if authorized or confirmed in writing by the Owner.”

TNMP’s records indicate that services were provided and that the City was not only aware of the services, but was also working with TNMP in getting the contractor to complete the punch list items. Russell DeLancy testified that he knew TNMP was providing services pertaining to the punch list items. These services were provided even after the City terminated its contract with TNMP. Moreover, the record includes correspondence between TNMP and the City pertaining to the work and informing the City of TNMP’s intent to charge for the additional services. The City clearly had notice of the services and actively sought TNMP’s assistance in completing the punch list items. We cannot say that the trial court’s award for this item was manifestly erroneous.

11?,TNMP’s Assignments of Error

Fee for Governmental Center Signage

TNMP seeks payment of $5,043 for work designing a signage concept for the court plaza. The trial court denied the claim upon concluding that TNMP had failed to bill for its services.

TNMP’s records indicate this work was done in June and July of 1998. TNMP asserted this claim as one for a basic services fee but applied an hourly rate to determine the fee due. Michael Newman explained that TNMP had no construction cost estimate on which to base this claim, so he elected to apply an hourly rate. This explanation is somewhat disingenuous for two reasons.

First, as shown by the exhibits, the signage work is clearly part of or related to the court plaza design work. TNMP had an estimate for construction cost of the court plaza in November 1998, charged the City based on this estimate, and was awarded payment on its claim for services related to the court plaza.

Second, the contract does not provide for payment of basic services according to an hourly rate. Newman testified that the signage design could be considered an optional additional service. If so, the contract requires written authorization from the owner prior to providing the service. TNMP did not have written authorization. Although Newman testified that Mayor Williams told him to go ahead with the work, the record does not establish that the mayor authorized the work as an additional service or knew it would be charged separately from the basic services work on the court |14plaza project. Also, prior to this work being done, TNMP had received the letter of March 19, 1998, regarding invoicing policies. TNMP was aware of the need to abide by the notice requirements in the contract before providing additional services and failed to do so. For these reasons, we find no error in the trial court’s denial of this claim.

Additional Services Fee for Master Plan Cost Analysis

TNMP seeks payment of $39,745.66, the fee it claims is owed for a master plan cost comparison analysis. The trial court denied this claim, because TNMP never invoiced the City for the work done.

Michael Newman testified that the study was requested during a City Council meeting by then Councilman Hightower and that the mayor told him to go ahead with the project. However, TNMP provided no proof of written authorization from the City to provide this optional additional service as required by Paragraph 3.1.1 of the contract. Absent such written proof, the record does not establish that the City authorized TNMP to proceed with the cost comparison analysis as an additional service. We find no merit in TNMP’s contention that the provisions requiring prior notice were orally modified by the parties. Newman’s testimony that he did what he was instructed to do by the City does not establish oral modification of the contract. Here, too, the cost comparison analysis was provided after TNMP’s receipt of the March 19, 1998 letter regarding invoicing policies. On this record, we find no oral modification.

Paragraph 10.4.1 requires payments for additional services to be made monthly upon presentation of the statement of services rendered. While |1sthere is no explicit correlative requirement that the architect bill monthly, the requirement for monthly payment implies timely billing upon rendition of additional services. Expert testimony indicated that it is highly unusual to wait for years before trying to collect for services rendered. TNMP’s inexplicable failure to have billed for this additional service when rendered is astounding and calls into question whether TNMP considered the service an additional service when provided or considered it part of the basic services. While the failure to bill may not be sufficient to deny the claim, TNMP’s failure to have obtained authorization as required by the contract supports the trial court’s ruling.

Additional Services Fee for Campus Plan Energy Study

TNMP seeks a fee of $18,751.08 for a campus plan energy study done in 1997 to determine whether a central energy plant for the campus plan facilities would save money. TNMP contracted with John J. Guth Associates, Inc., for the study. TNMP did not bill the City.

Again, TNMP did not have prior written authorization for this optional additional service as required by the contract. Michael Newman testified that the City instructed him to do the work and used the results. However, this does not establish that the City authorized the work as an additional service, nor does it suggest that the City agreed to a modification of the notice requirements in the contract. Notice provisions are not mere window dressing; rather, they assist the parties in clearly understanding their obligations. The notice provisions allow the City to explicitly authorize only those additional services that meet budgetary requirements |1fiand serve the public interest. The notice provisions also protect TNMP by clarifying what additional services are approved by its client. For these reasons and others given in denying the prior claim, we find no error in the trial court’s ruling.

Basic Services Fee for New Police Building

The trial court denied TNMP’s claim for the unpaid balance of fees owed for architectural services rendered for the new police building that was not built. TNMP seeks $134,103.74 for this claim. The trial court found that Newman’s invoices were paid by the City. The trial court also found that Newman failed to bill in a timely manner for amounts it claims are still due.

Article 10.3.4 states that compensation for portions of the project that are deleted or not constructed is to be based on “(1) the lowest bona fide bid or negotiated proposal, or (2) if no such bid or proposal is received, the most recent preliminary estimate of Construction Cost or detailed estimate of Construction Cost for such portions of the Project.” Here, the project was deleted after a construction contract had been confected by the City and Brice Building Co., Inc., for the amount of $5,089,600, on November 17,1998.

TNMP contends that it designed three add alternates that were not accepted by the City. The contractor’s bid on the add alternates was $1,335,600. Even though it did not bill for these, TNMP asserts that the add alternates should be added to the contract amount to determine fees owed. h7The City disputes this and asserts that it paid all invoices submitted by TNMP for services it rendered.

Even though it designed add alternates and received bids for their construction, TNMP invoiced the City based on a construction budget of $5,400,000, slightly above the construction contract price of $5,089,600. We find no basis in the contract for TNMP to have recalculated fees due for trial purposes. In cases of doubt, a contract executed in a standard form provided by one of the parties must be interpreted in favor of the other party. La. C.C. art.2056. TNMP supplied the standard form contract language, so in cases of doubt, the provisions must be interpreted in the City’s favor. Payment under Paragraph 10.3.4 is not based on construction cost as defined in Paragraph 5.1 of the contract. Rather, it is based on the lowest bona fide bid or negotiated proposal as stated in Paragraph 10.3.4. We find that under Paragraph 10.3.4, the construction contract price was the lowest bona fide bid or negotiated proposal. This interpretation is supported by TNMP’s invoices, which were paid by the City, and TNMP’s failure to seek further payment upon deletion of the contract if it believed such payment was due. For these reasons, we find no error in the trial court’s denial of this claim.

Police Building Project Management Fee

Here, too, TNMP seeks additional fees in the amount of $105,474.40 for work on the police building project that the City canceled. TNMP seeks this amount as an additional project management fee. The trial court denied this claim upon noting that the project was not completed, that TNMP had | -^billed the City for work done from the start of the project until it was stopped, and that the City had paid each invoice. For the reasons asserted in appealing the trial court’s denial of the claim for basic services fees for work on the proposed new police building, TNMP appeals the denial of this claim.

According to Paragraph 11.3.1 of the contract, the project management fee is 2.8 percent of the construction cost, and it is compensation for project representation beyond basic services. Because the City decided to discontinue construction of the new police building, the compensation owed to TNMP is governed by Paragraph 10.3.4 of the contract. As previously discussed, compensation under this section is different from that based on the total construction cost of the project. For the reasons given for affirming the trial court’s denial of TNMP’s claim for basic services fees on this same project, we also affirm the trial court’s denial of this claim.

Award of Termination Expenses

Paragraph 8.6 of the contract states:
In the event of termination not the fault of the Architect, the Architect shall be compensated for services performed prior to termination, together with Reimbursable Expenses then due and all Termination Expenses as defined in Paragraph 8.7.
Paragraph 8.7 states, in pertinent part:
Termination Expenses are in addition to compensation for Basic and Additional Services, and include expenses which are directly attributable to termination. Termination Expenses shall be computed as a percentage of the total compensation for Basic Services and Additional Services earned to the time of termination ....

11flParagraph 8.7 goes on to address the percentage of total compensation due as termination expenses at the various stages of the project. TNMP contends that it is due five percent of the total compensation for basic and additional services earned to the date of termination. The trial court agreed.

The City asserts that the termination provisions cannot be applied to the entirety of the contract. It points out that termination expenses are determined based on the phase of the project at the time of termination; thus, they are intended to apply to the individual projects rather than to the whole. TNMP contends the contract language is clear and unambiguous in providing for termination expenses based on services performed prior to termination.

The record shows that the City terminated its contract with TNMP by letter of July 17, 2000. We find no error in the trial court’s finding that this unilateral termination by the City entitled TNMP to termination expenses of five percent of the total compensation for basic and additional services. This finding is supported by the contract language. The parties entered one contract for the entirety of the Campus Plan, thus termination expenses are to be calculated based on the total compensation earned. The trial court awarded termination expenses totaling $129,254.02; however, our amendment of the judgment requires a recalculation of the termination expenses due.

TNMP was paid $2,238,187.47 in fees prior to termination. Termination expenses on this amounts to $111,909.37 ($2,238,187.47 x .05). In this suit, TNMP was awarded the following:

J20I. Basic Services
A. Court Building/CEP Architectural Fee $ 8,225.22
B. Court Building & CEP Project Mgmt. Fee $ 18,217.94
C. Police Building Architectural Fee 0
D. Police Building Project Mgmt. Fee 0
E. Police Building Redesign Architectural Fee $ 55,720.44
F. Electrical Feeder/Data Cable Routing $ 3,822.00
G. Central Energy Plant Extension-Project Mgmt. Fee $ 5,152.00
H. Engineering CSB Renovation Arch. Fee $ 69,492.50
I. Court Plaza Architectural Fee $ 14,103.36
J. Governmental Center Signage Architectural Fee 0
K. Court Building-Specialized Programming Fee $ 29,020.39
L. Police Building-Specialized Programming Fee $ 20,106.10
II. Additional Services
A. Delays-Court Building & CEP 0
B. Punch List Items-Court Building & CEP $ 39,009.32
C. A/E Selection Services $ 25,000
D. Masterplan Cost Comparison 0
E. Campus Plan Energy Study 0
TOTAL $287,896.27

Termination expenses on the amount awarded in this suit ($287,896.27 x .05) total $14,394.81. Therefore, the total termination expenses awarded are $126,304.18.

Court Costs

Lastly, TNMP asserts that the trial court erred in assessing one-fourth of the costs to it and seeks to have the City cast with all cost of the proceedings at trial and on appeal. As provided by La. C.C.P. art.1920, “[t]he court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” The trial court’s allocation of costs between the parties will not be disturbed absent evidence that it constitutes an abuse of discretion. Shreveport Elec. Co., Inc. v. Oasis Pool Service, Inc., 38,776 (La.App.2d Cir.9/29/04), 889 So.2d 274, rehearing denied, writ denied, 2005-0340 (La.4/1/05), 897 So.2d 613; Ark-La-Miss Timber Co., Inc. v. Wilkins, 36,485 (La. App.2d Cir.12/11/02), 833 So.2d 1154.

While TNMP obtained some recovery, not all of its claims were granted. The City partly prevailed. There is no cut-and-dry rule for allocating cost between parties. Rather, the decision is within the court’s discretion. We find no abuse of discretion in the allocation of costs by the trial court in this matter.

However, La. R.S. 13:5112 requires the assessment of costs against a political subdivision to be in a dollar amount. Rogers v. Town of Arcadia, 35,752 (La.App.2d Cir.4/3/02), 813 So.2d 1110. The trial court’s judgment, which assessed costs by percentages, does not comply with La. R.S. 13:5112. Thus, we remand this matter to the trial court to assess any costs against the City in accordance with La. R.S. 13:5112.

CONCLUSION

For the reasons stated, we amend the trial court’s judgment as provided in this opinion to award The Newman-Marchive Partnership a total of $414,200.45. Furthermore, we remand the matter for assessment of costs in accordance with La. R.S. 13:5112. Costs of appeal, which total $1,670.50, are assessed twenty-five percent ($417.62) to The Newman-Marchive Partnership and seventy-five percent ($1252.88) to the City.

AFFIRMED AS AMENDED.

REMANDED FOR ASSESSMENT OF TRIAL COSTS.

PER CURIAM ON REHEARING

Before STEWART, CARAWAY, DREW, MOORE and SEXTON (Pro Tempore), JJ.

PER CURIAM.

| ,The Newman Mar chive Partnership, Inc., applied for rehearing of the judgment rendered November 1, 2006, which reduced the amount awarded by the trial court to $414,200.45. Though we deny the application for rehearing, we have considered the contention that the total award was improperly calculated. This consideration entailed review of the amounts awarded in the trial court and on appeal. As a result, error was found in the calculations of both courts.

On page 25 of its “Findings of Fact and Conclusions of Law,” the trial court set forth the amounts awarded for each claim of basic and additional services.

Municipal Court Building & Central Energy
Plant Arch. Fee $ 8,225.22
Municipal Court Building & Central
Energy
Plant Project Mgmt. $18,217.94
Police Building Arch. Fee $ 0
Police Building Project Mgmt. Fee $ 0
Police Building Redesign Arch. Fee $74,920.44
Electrical Feeder & Data Cable Routing Project Mgmt. Fee $ 3,822.00
Central Energy Plant Service Extension Project Mgmt. Fee $ 5,152.00
Engineering/CSB Renovation Arch. Fee $69,492.50 Court Plaza Arch. Fee $14,103.36
Governmental Center Signage Arch. Fee $ 0
Municipal Court Building Specialized Programming & Planning $29,020.39
Police Building Specialized Programming & Planning $20,106.10
Delays-Court Building & Central Energy Plant $39,373.60
Punch List Items Delay-Court Building & Central Energy Plant $39,009.32
A/E Selection Services $ 25,000
Masterplan Cost Comparison $ 0
Campus Plan Energy Study $ 0

The awards total $346,442.87, and five percent of this amount should have been awarded as part of the termination | gexpenses. However, on page 24, the trial court used the amount of $346,892.87 in calculating the termination expenses due on the claims awarded at trial. The trial court should have calculated termination expenses on the claims awarded as $346,442.87 x .05 = $17,322.14. Termination expenses due on the amount paid by the City was calculated as $2,238,187.47 x .05 = $111,909.38. Therefore, total termination expenses under the trial court’s judgment should have been $111,909.38 + $17,322.14 = $129,231.52, instead of the $129,254.02 awarded by the trial court. The principal amount awarded in the trial court’s judgment should have been $346,442.87 + $129,231.52 = $475,674.39.

The judgment on appeal amended the trial court’s judgment by deducting $19,200 from the award for the Police Building Redesign Architectural Fee and vacating the award of $39,373.60 for the Delays — Court Building & Central Energy Plant. These amounts deducted from the corrected trial court award of $346,442.87 leaves the amount of $287,869.27. Termination expenses on this amount is $287,869.27 x .05 = $14,393.46. Total termination expenses are $111,909.38 + $14,393.46 = $126,302.84. Therefore, the corrected total judgment on appeal is $287,869.27 + $126,302.84 = $414,172.11.

Accordingly, we amend our judgment to reflect a total award of $414,172.11.

JUDGMENT AMENDED.

      . The Newman Partnership, Inc., began transacting business as The Newman Marchive Partnership, Inc., in 2000. See The Newman Marchive Partnership, Inc. v. City of Shreveport, 40,512 (La.App.2d Cir.2/24/06), 923 So.2d 852, footnote 2, writ denied, 2006-1040 (La.6/23/06), 930 So.2d 983.

      . TNMP's Second Amended and Supplemental Petition was not included in the record lodged in this court. However, pursuant to an order granted in response to a motion by the City, the omitted petition has been added as a supplement to the record.

      . The issue of termination expenses asserted by the City will be addressed after consideration of TNMP's assignments regarding the denial of various claims.

      . As suggested by the record, add alternates are optional features that may be added to the project.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    Larry CURTIS, et al. v. BRANTON INDUSTRIES, INC., et al.
    No. 06-675.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.
    Rehearing Denied Jan. 10, 2007.

      Scott R. Bickford, Martzell & Bickford, New Orleans, LA, for Plaintiffs-Appellants, Larry Curtis, Michael Jackson, Ed-man Landry, Billy Kees.
    William Lee Brockman, Attorney at Law, Metairie, LA, for DefendanL-Appel-lee, Andritz Inc.
    David Ross Frohn, Frohn & Thibo-deaux, Lake Charles, LA, for Defendant-Appellee, Chicago Bridge & Iron.

      Glenn Lyle Maximilian Swetman, Ault-man, Tyner, Ruffin, Ltd., New Orleans, LA, for Defendant-Appellee, Andritz Inc.
    Jeffrey Matthew Burg, Attorney at Law, New Orleans, LA, for Plaintiffs-Appellants, Michael Jackson, Billy Kees, Edman Landry, Larry Curtis.
    John W. Martinez, Attorney at Law, New Orleans, LA, for Defendant-Appellee, Zurn Industries.
    Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   PICKETT, Judge.

hThe plaintiffs in these consolidated cases appeal the judgment of the trial court granting the motions for summary judgment of Andritz Inc., Zurn Industries, Inc., and Chicago Bridge & Iron Co., and dismissing the claims of the plaintiffs against the defendants.

STATEMENT OF THE CASE

On October 21, 1993, eight plaintiffs who were employees of a paper mill in Pine-ville, Louisiana, filed suit against twelve defendants alleging exposure to asbestos during their employment from 1968 to the present. The paper mill was originally owned and operated by Bodcaw until 1980, when International Paper became the owner. The defendants were suppliers of material which contained asbestos and/or contractors who constructed immovables which contained asbestos. On December 14, 2000, the plaintiffs amended their petition to add several defendants, including Andritz Inc. (Andritz), Zurn Industries, Inc. (Zurn), and Chicago Bridge & Iron Co. (Chicago Bridge). Andritz was sued as the successor in interest of Kamyr, Inc. Kamyr, Inc. allegedly produced, manufactured, and sold digesters containing asbestos to Bodcaw or International Paper for use in the Pineville mill. Zurn was sued as successor in interest to Erie City Iron Works (Erie). Erie allegedly produced, manufactured, and sold boilers containing asbestos to Bodcaw or International Paper for use in the Pineville mill. Chicago Bridge allegedly produced, manufactured, and sold various tanks containing asbestos to Bodcaw or International Paper for use in the Pineville mill. Several of the plaintiffs and defendants in the original petition have withdrawn or been dismissed from the case. |?At the time the motions at issue in this appeal were heard, only four of the original plaintiffs remained: Larry Curtis, Michael Jackson, Billy Kees, and Edman Landry.

In the companion case, Claude Willis and his wife Bessie Willis filed suit against many of the same companies on December 14, 2000, alleging Mr. Willis was exposed to asbestos while working for an insulation contractor at the Pineville paper mill. An-dritz, Zurn, and Chicago Bridge were among the defendants named in this suit.

The trial court held a hearing on November 21, 2005, to consider Motions for Summary Judgment and Exceptions of No Right of Action filed by Andritz, Zurn, and Chicago Bridge. All of these motions argued that the claims of the plaintiffs in both suits were barred by peremption pursuant to La.R.S. 9:2772. Chicago Bridge also argued that the claims of the plaintiffs were barred pursuant to La.R.S. 9:2771. The trial court consolidated the cases for the purpose of hearing these motions and exceptions. Following a hearing, the trial court ruled in open court that the claims of the plaintiffs were barred by peremption pursuant to La.R.S. 9:2772 and the claims against Chicago Bridge were barred pursuant to La.R.S. 9:2771. Judgments in conformity with this ruling was signed by the trial court on December 8, 2005. The plaintiffs now appeal. These appeals have been consolidated for the purpose of argument only pursuant to a motion by the plaintiffs’ counsel, as all relevant facts and issues of law are identical.

ASSIGNMENTS OF ERROR

The plaintiffs assert two assignments of error:

1. The District Court erroneously granted Defendants’ motion for summary judgment by relying on the current version of La.R.S. 9:2771 and 9:2772 which were not applicable at the time of the Plaintiffs’ tortious exposure 13to asbestos because Plaintiffs’ tortious exposure to asbestos occurred prior to 1990.

2. The District Court erroneously found no right of action for the suit finding Plaintiffs’ claims were precluded by the peremption provisions contained in the current version of La.R.S. 9:2771 and 9:2772.

DISCUSSION

At the outset, we note that the defendants filed motions for summary judgment and exceptions of no right of action and no cause of action which all alleged the same set of facts and were predicated on the same law. While the exception of no cause of action is inapplicable considering the court received evidence, either a summary judgment or a no right of action is an appropriate means for disposing of a peremption issue. See Ewing v. State ex rel. Department of Transportation and Development, 99-1556 (La. App. 3 Cir. 3/15/00), 757 So.2d 843, in which this court reviewed a peremption claim pursuant to La.R.S. 9:2772 using the standard for summary judgment. In order to avoid duplication, we will proceed by analyzing the cases using the standard of review applicable to a motion for summary judgment.

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991). The mover is entitled to judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with supporting affidavits, if any, show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

The predecessor to Andritz, Kamyr, Inc., provided two digesters for use at the Pineville paper mill. Kamyr was involved in the design and supervised the | construction of the digesters and associated structures. There is no dispute that these structures are immovable property. They were completed in 1968.

The predecessor to Zurn, Erie City Iron Works, designed and erected a two-drum boiler for use at the Pineville paper mill. There is no dispute that the boiler is an immovable structure. The project was completed in 1967.

Chicago Bridge built several tanks at the Pineville paper mill. These structures were built between 1966 and 1974. There is no dispute that these structures are immovable property.

All of the structures provided by Kamyr, Erie City Iron Works, and Chicago Bridge contained some asbestos. The plaintiffs allege that they were exposed to asbestos while working at the Pineville paper mill and suffered serious injuries as a result of that exposure.

The defendants claim that La.R.S. 9:2772 is applicable in this case. This statute provides a peremption period for claims against a designer, supervisor, or constructor of immovables or improvements to immovables. While recent legislation has reduced the peremption period, the statute provided for a ten-year per-emption period at the time of the alleged injuries. The statute, before being amended in 1990, stated:

A. No action, whether ex contractu, ex delicto, or otherwise, to recover on a contract or to recover damages shall be brought against any person performing or furnishing land surveying services, as such term is defined in the first paragraph of R.S. 37:682(9), including but not limited to those services preparatory to construction, or against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of an improvement to immovable property:
(1)More than ten years after the date of registry in the mortgage office of acceptance of the work by owner; or
|s(2) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than ten years after the improvement has been thus occupied by the owner; or
(3) If the person performing or furnishing the land surveying services, as such term is defined in the first paragraph of R.S. 37:682(9), does not render the services preparatory to construction, or if the person furnishing such services or the design and planning preparatory to construction, does not perform any inspection of the work, more than ten years after he has completed the surveying or the design and planning with regard to actions against that person.
B. The causes which are perempted within the time described above include any action:
(1) For any deficiency in the performing or furnishing of land surveying services, as such term is defined in the first paragraph of R.S. 37:682(9), including but not limited to those preparatory to construction or in the design, planning, inspection or observation of construction, or in the construction of any improvement to immovable property;
(2) For damage to property, movable or immovable, arising out of any such deficiency;
(3) For injury to the person or for wrongful death arising out of any such deficiency; and
(4) Any action brought against a person for the action or failure to act of his employees.
This peremptive period shall extend to every demand whether brought by direct action or for contribution or indemnity or by third party practice, and whether brought by the owner or by any other person.
C.If such an injury to the property or to the person or if such a wrongful death occurs during the ninth year after the date set forth in Sub-section A, an action to recover the damages thereby suffered may be brought within one year after the date of the injury, but in no event more than eleven years after the date set forth in Sub-section A (even if the wrongful death results thereafter).
lr,D. Actions for the causes enumerated in Sub-section B of this Section, against the persons enumerated in Subsection A of this Section, shall prescribe by the applicable prescriptive periods established by law for such actions.
E. The peremptive period provided by this Section shall-not be asserted by way of defense by a person in possession or control, as owner, lessor, tenant, or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury, damage, or death sued upon with regard to any cause of action arising out of the alleged delict, quasi delict, or obligation of any such person arising out of his possession or control of the property.
F. Nothing in this Section shall be construed as modifying the liability or responsibility otherwise imposed by law on the owner of an immovable or the possessor, lessor or lessee of an immovable, by reason of the design, planning, supervision, inspection or observation of construction, or construction of improvements to immovable property.
G. Causes of action arising from the performing or furnishing of land surveying services, as such term is defined in the first paragraph of R.S. 37:682(9), if not performed preparatory to construction, which exist prior to the effective date of the 1981 Regular Session Amendment to this Section, shall be per-empted one year from said date or by the applicable peremptive period established by this Section, whichever is later.
H. (1) The peremptive period provided by this Section shall not apply to an action to recover on a contract or to recover damages against any person enumerated in Subsection A of this Section, whose fraud has caused the breach of contract or damages sued upon. The provisions of this Subsection shall be retroactive.
(2) In any such action in which fraud is alleged, that issue shall be decided by trial separate from and prior to the trial of any or all other issues.

In 1990, the supreme court issued an opinion which held that the peremption period provided for in La.R.S. 9:2772 did not apply when a contractor acquires knowledge of a dangerous defect and fails to warn the owner. Bunge Corp. v. GATX, Corp., 557 So.2d 1376 (La.1990). The court reasoned that a claim “which charges defendant with knowledge and failure to warn plaintiff of a hazardous condition in the construction asserts a claim based in fraud.” Id. at 1388. This opinion was 17released in March 1990. The legislature acted quickly to amend the statute, and the act was signed by the governor in July 1990. 1990 La. Acts No.712, § 1. The amended statute read as follows (changes in bold):

A. No action, whether ex contractu, ex delicto, or otherwise, including, but not limited to, an action for failure to warn, to recover on a contract or to recover damages shall be brought against any person performing or furnishing land surveying services, as such term is defined in the first paragraph of R.S. 37:682(9), including but not limited to those services preparatory to construction, or against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of an improvement to immovable property:
(1) More than ten years after the date of registry in the mortgage office of acceptance of the work by owner; or
(2) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than ten years after the improvement has been thus occupied by the owner; or
(3) If the person performing or furnishing the land surveying services, as such term is defined in the first paragraph of R.S. 37:682(9), does not render the services preparatory to construction, or if the person furnishing such services or the design and planning preparatory to construction, does not perform any inspection of the work, more than ten years after he has completed the surveying or the design and planning with regard to actions against that person.
B. The causes which are perempted within the time described above include any action:
(1) For any deficiency in the performing or furnishing of land surveying services, as such term is defined in the first paragraph of R.S. 37:682(9), including but not limited to those preparatory to construction or in the design, planning, inspection or observation of construction, or in the construction of any improvement to immovable property;
(2) For damage to property, movable or immovable, arising out of any such deficiency;
|s(3) For injury to the person or for wrongful death arising out of any such deficiency; and
(4) Any action brought against a person for the action or failure to act of his employees.
(5) Deficiency, as used in this Section, includes failure to warn the owner of any danyerous or hazardous condition, reyardless of when knowledye of the danyer or hazard is obtained or should have been obtained.
This peremptive period shall extend to every demand whether brought by direct action or for contribution or indemnity or by third party practice, and whether brought by the owner or by any other person.
C. If such an injury to the property or to the person or if such a wrongful death occurs during the ninth year after the date set forth in Sub-section A, an action to recover the damages thereby suffered may be brought within one year after the date of the injury, but in no event more than eleven years after the date set forth in Sub-section A (even if the wrongful death results thereafter).
D. Actions for the causes enumerated in Sub-section B of this Section, against the persons enumerated in Subsection A of this Section, shall prescribe by the applicable prescriptive periods established by law for such actions.
E. The peremptive period provided by this Section shall not be asserted by way of defense by a person in possession or control, as owner, lessor, tenant, or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury, damage, or death sued upon with regard to any cause of action arising out of the alleged delict, quasi delict, or obligation of any such person arising out of his possession or control of the property.
F. Nothing in this Section shall be construed as modifying the liability or responsibility otherwise imposed by law on the owner of an immovable or the possessor, lessor or lessee of an immovable, by reason of the design, planning, supervision, inspection or observation of construction, or construction of improvements to immovable property.
G. Causes of action arising from the performing or furnishing of land surveying services, as such term is defined in the first paragraph of R.S. 37:682(9), if not performed preparatory to construction, which exist prior to the effective date of the 1981 Regular Session Amendment to this Section, shall be per-empted one year from said date or by the applicable peremptive period established by this Section, whichever is 1 fllater.
H. (1) The peremptive period provided by this Section shall not apply to an action to recover on a contract or to recover damages against any person enumerated in Subsection A of this Section, whose fraud has caused the breach of contract or damages sued upon. The provisions of this Subsection shall be retroactive.
(2) In any such action in which fraud is alleged, that issue shall be decided by trial separate from and prior to the trial of any or all other issues.
(3) Fraud, as used in this Section, shall have the same meaning as provided in Civil Code Article 1953.
I. Nothing in this Section shall be construed as limiting or modifying the non-liability of contractors for destruction or deterioration of, or defects in, any work, as provided in R.S. 9:2771.

The defendants argue that the changes made by the legislature were intended to correct the supreme court's erroneous interpretation. Since the amendments were interpretive, the defendants argue that they should be retroactive. The plaintiffs argue that the amendments changed the law and should only be applied prospectively.

This court discussed the proper method for determining whether a statute is given retroactive or prospective effect in Crooks v. Metropolitan Life Insurance Co., 00-947, pp. 5-7 (La.App. 3 Cir. 1/17/01), 779 So.2d 966, 970-71, judgment vacated on other grounds, 01-466 (La.5/25/01), 785 So.2d 810 (second alteration in original.):

La.Civ.Code art. 6 requires that we conduct a two-fold inquiry. First, we must determine whether the amendment to the article expresses legislative intent regarding retrospective or prospective application. Keith v. U.S. Fidelity & Guar. Co., 96-2075 (La.5/9/97); 694 So.2d 180. If no such intent is expressed, the enactment must be classified as either substantive, procedural or interpretive. Id. Thus, even where the legislature has expressed its intent to give a law retroactive effect, the law may not be applied retroactively if doing so would impair contractual obligations or disturb vested rights. If it does so, then in spite of legislative pronouncements to the contrary, the law is substantive, rather than procedural or interpretive.
hnThe Louisiana Supreme Court has defined substantive law as a law which creates, confers, defines, destroys, or otherwise regulates rights, liabilities, causes of action, or legal duties. Sudwischer v. Estate of Paul C. Hoffpauir, 97-0785 (La. 12/12/97); 705 So.2d 724, cert. denied, 524 U.S. 940, 118 S.Ct. 2347, 141 L.Ed.2d 717 (1998). Louisiana courts have distinguished between substantive, procedural, and interpretive laws as follows:
Substantive laws establish new rules, rights, and duties or change existing ones. Procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of the laws. Interpretive laws merely establish the meaning the interpreted statute had from the time of its enactment.
Willis v. Gray Sales & Service, Inc., 96-748, p. 4 (La.App. 3 Cir. 1/22/97); 689 So.2d 522 [writ denied,] 97-0525 (La.4/18/97); 692 So.2d 450 (quoting Segura v. Frank, 93-1271, 93-1401 (La.1/14/94); 630 So.2d 714, cert. denied, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d 887 (1994)). When an existing law is not clear, a subsequent statute clarifying or explaining the law may be regarded as interpretive, and the interpretive statute may be given retrospective effect because it does not change, but merely clarifies, pre-existing law. Gulf Oil Corp. v. State Mineral Bd., 317 So.2d 576 (La.1974). True interpretive law changes existing standards by redefining and returning laws to their original meaning, thus providing the legislature with the opportunity to pronounce the correct interpretation to be given to existing laws. Adams v. City of Baton Rouge, 95-2515 (La.App. 1 Cir. 4/30/96); 673 So.2d 624, writ denied, 96-1491 (La.9/20/96); 679 So.2d 439. Planiol explains the exception for interpretive laws as follows: “[i]nterpretive laws do not establish new rules. What they do is to determine the meaning of existing laws. It follows that they may apply to facts previous to their promulgation. Their retroactivity is but apparent, because it is not the interpretive law, but the original law, which applies.” 1 M. Planiol, Civil Law Treatise Nos. 249-252 (La.St. L.Inst.Transl.1959) (quoted in St Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809 (La.1992)).

We find that the amendments to La.R.S. 9:2772 passed by the legislature in the 1990 Act are substantive. The purpose of the 1990 Act was to destroy a right that the supreme court found existed in Bunge Corp., 557 So.2d 1376. We find, therefore, that the 1990 amendments are to be given prospective effect only. Thus, the plaintiffs | n may proceed against the defendants insofar as they allege a failure to warn of the dangers of asbestos.

Furthermore, even if we were to find that the amendments were interpretive, we could not give them retroactive effect. In Unwired Telecom Corp. v. Parish of Calcasieu, 03-732 (La.1/19/05), 903 So.2d 392, the supreme court explained that even when a legislature clearly expresses its intention that a law is interpretive and is to be given retroactive effect, the law will be given prospective effect only if the change impermissibly impedes on the judiciary’s constitutional function of interpreting laws. In Unwired Telecom, the legislature amended a statute for the purpose of explaining the original intent of a statute in an effort to change an appellate court decision. The legislature clearly stated in the act that the amendments were to be give retroactive effect. The supreme court found that the amendments could be given prospective effect only because the legislature had infringed on the function of the judiciary of statutory construction and interpretation. This reasoning is applicable in the case before us, even without a specific declaration in the 1990 Act that the amendments are to be applied retroactively.

Finally, Chicago Bridge’s motion for summary judgment included an argument that any claims against it were barred by La.R.S. 9:2771, which states (an amendment added in 2001 has been deleted):

No contractor shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration, or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration, or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The | ^.provisions of this Section shall not be subject to waiver by the contractor.

Chicago Bridge argues that all of the structures it constructed were built according to specifications provided to it by International Paper or Rust Engineering. The plaintiffs allege that Chicago Bridge prepared blueprints for the structures and held them out as their own design. The evidence presented below is not conclusive and creates a genuine issue of material fact. Thus, summary judgment is improper.

CONCLUSION

The judgment of the trial court is reversed, and the case is remanded for further proceedings. Costs of this appeal are assessed to the defendants, Andritz, Zurn, and Chicago Bridge.

REVERSED AND REMANDED.


text:
    Claude WILLIS and Bessie Willis v. COMBUSTION ENGINEERING, INC., et al.
    No. 06-676.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.
    Rehearing Denied Jan. 10, 2007.
    Scott R. Bickford, Martzell & Bickford, New Orleans, LA, for Plaintiff-Appellant, Claude Willis.
    William Lee Brockman, Attorney at Law, Metairie, LA, for Defendant-Appel-lee, Andritz, Inc.
    David Ross Frohn, Frohn & Thibo-deaux, Lake Charles, LA, for Defendant-Appellee, Chicago Bridge & Iron.
    Glenn Lyle Maximilian Swetman, Ault-man, Tyner, Ruffin, Ltd. New Orleans, LA, for Defendant-Appellee, Andritz, Inc.
    Jeffrey Matthew Burg, Attorney at Law, New Orleans, LA, for Plaintiff-Appellant, Claude Willis.
    John W Martinez, Attorney at Law, New Orleans, LA, for Defendant-Appellee, Zurn Industries.
    Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   PICKETT, Judge.

For the reasons discussed in the companion case in this consolidated matter, Curtis v. Branton Industries, 06-675 (La. App. 3 Cir. 11/2/2006), 944 So.2d 716, 2006 WL 3093239, the judgment of the trial court is reversed, and the case is remanded for further proceedings. Costs of this appeal are assessed to the defendants, An-dritz, Zurn, and Chicago Bridge.

REVERSED AND REMANDED.


author: PETERS, J.

text:
    David and Rosalyn RICHARD v. GARY MATTE BUILDERS, INC.
    No. 2006-0808.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 8, 2006.
    Rehearing Denied Jan. 10, 2007.

      Timothy O’Dowd, Lake Charles, LA, for Plaintiffs/Appellants, David & Rosalyn Richard.
    Sharon Kyle, Baton Rouge, LA, for Defendants/Appellees, Gary Matte Builders, Inc.
    Court composed of OSWALD A. DECUIR, JIMMIE (p. PETERS, and GLENN B. GREMILLION, Judges.
   PETERS, J.

| -i This litigation arises from a residential construction contract. The plaintiffs, David and Rosalyn Richard, brought suit against Gary Matte Builders, Inc., the construction company which had contracted to build them a residence on their property, seeking to recover damages for breach of the contract and for violation of the Louisiana Unfair Trade Practices Act. Gary Matte Builders, Inc. answered the petition and reconvened against the Richards, seeking an award for the work performed under the contract. After trial, the trial court rendered judgment dissolving the contract and awarded David $1,500.00 and Rosalyn $3,000.00 in general damages. The trial court also awarded Gary Matte Builders, Inc. judgment against the Richards for $9,573.00. This award represented recovery for work performed under the contract less cost of repair of the defects. The trial court further rejected the Richards’ claim under the Louisiana Unfair Trade Practices Act. The Richards have appealed, asserting that the trial court erred in awarding Gary Matte Builders, Inc. anything for work performed under the contract and in not awarding them additional damages.

DISCUSSION OF THE RECORD

Gary Matte Builders, Inc. (sometimes hereinafter referred to as the “contractor”) is a construction corporation the principal officers of which are Gary Lee Matte and Laura Matte, husband and wife. In the contract at issue in this litigation, Gary-Matte Builders, Inc. agreed to construct a residence on property in Calcasieu Parish owned by the Richards for the sum of $80,960.00. Construction began in April of 2005, and the concrete footings for the foundation were poured on April 5, 2005. Two days later, the construction crew poured the concrete slab over |2the footings. Before the footings and slab were poured, J & J Exterminating Company, Inc. (J & J) performed a termite pretreatment of the soil foundation.

Soon after pouring the slab, the construction crew discovered that they had framed up the slab six inches out of square. In order to correct this error, Mr. Matte ordered that thin pie-shaped concrete slabs be poured the length of the slab on either side to square it up. These additions extended fifty-six feet along each side of the slab and were approximately eight inches wide at the larger end and two inches wide at the smaller end. No one contacted J & J to pretreat the soil foundation under these additions before they were poured. Furthermore, the additions were not anchored to the original slab, and this resulted in an open crack between the original slab and the additions extending the full fifty-six feet along both sides of the slab.

Not only did Gary Matte Builders, Inc. not contact a representative of J & J before pouring the additions, but it also did not inform the Richards of this error or of the proposed correction. In fact, the Richards first became aware of the error on April 19, 2005, when Mrs. Richard observed the construction crew framing up the slab to pour the additions. That same day, the construction crew poured the pie-shaped additions to each end of the slab.

The next day, the Richards met with Mr. Matte and questioned him about this new pour. Mr. Matte explained the initial error and the necessity of the additions to the slab. When questioned about the effect of the additional pours on" the structural stability of the slab, Mr. Matte informed the Richards that, because the additions would now carry the weight of the exterior walls of the residence, they had been poured to the depth of the original footings. Mrs. Richard then placed her hand under one of the additions to show Mr. Matte that his assertion concerning the depth of the |3concrete was not correct. In fact, the additions had been poured to the depth of twelve inches instead of the twenty-four-inch depth of the original footings. Mr. Matte acknowledged this second error and agreed that the additions were inadequate to carry the weight of the exterior walls. However, he then suggested that the footings could be poured beneath the additions without having to remove the additions and start anew.

The Richards were not satisfied with the explanation of Mr. Matte or of the contractor’s performance under the contract, and construction ceased on the residence on that day. Immediately thereafter, the Richards retained counsel to represent their interests and the services of Dr. Janardanan O. Uppot, a Lake Charles, Louisiana civil and geotechnical engineer, to survey the situation and give them some guidance.

Dr. Uppot examined the construction site on April 24, 2005, and on the next day issued a report to the Richards concerning his findings and recommendations. In his report, Dr. Uppot opined that both the original concrete pour and the additions were not completed in a workmanlike manner — the original pour because it was not square and the additions because, as load bearing walls, footings were required. He suggested in his report that the additions be removed and replaced with additions poured to a significant depth to sustain the loads that would be placed on them by the outside walls. Additionally, he suggested that the additions be anchored to the existing slab by two lines of dowel bars extending the length of the slab and that the surface between the existing slab and the additions be sealed by a bonding agent such as “Therobond.”

14Because it had not pretreated the soil under the additions, J & J initially refused to unconditionally guarantee the termite treatment. By a letter dated May 4, 2005, J & J notified the Richards that, unless they signed a waiver which would preclude its liability for termites entering the home through the cracks created by the additions, it would cancel the subterranean termite protection contract on the premises. However, sometime thereafter, J & J forwarded to the Richards a letter which stated that someone with Gary Matte Builders, Inc. had contacted its office to inquire as to what it could do in regard to a termite protection guarantee if the additions were removed and repoured after treatment by J & J. The letter stated that “[t]his would allow us to treat the soil before the slab addition is poured. After discussing the matter with my General Manager he said that we could treat it and warrant it using a perimeter product of choice. This is in an effort to try and meet the needs of both the contractor and home owner.”

Gary Matte Builders, Inc. also retained an expert, Dr. George Monroe Hammitt, to evaluate the slab and to make recommendations concerning remedying the defects. Dr. Hammitt, who is a civil engineer and professor in the Construction Management Department of Louisiana State University in Baton Rouge, Louisiana, examined the initial slab and found it to be in compliance with all appropriate codes and standards. However, he agreed with Dr. Uppot’s finding that the additions were not completed in a workmanlike manner and should be removed completely rather than patched. Additionally, he agreed that Dr. Uppot’s recommended remedy was the appropriate way to remedy the defect and preserve the square footage as contemplated in the original construction plans. With regard to the existence of cracks running the length | sof the slab, Dr. Hammitt asserted that the “Thermabond” would not only make the connection significantly stronger than the existing slab, but it would also seal the crack completely.

On May 26, 2005, the Richards filed the instant suit. Fifteen days later, Gary Matte Builders, Inc. offered the following options to the Richards in an effort to resolve the litigation:

1. Remedy the slab subject to the approval and certification of the completed slab by an engineer, provide proper termite treatment, and complete construction of the residence; or
2. Deduct the costs for repair to the slab, $1,000.00, from the $11,573 payment of the draw currently owed and cancel the contract; or
3. Deduct the price per sq. ft. $55.60 for the square footage loss to your clients from the contract price ($55.60 x 14 = 4778.40 deduction) and complete the residence; or
4. Deduct the price per sq. ft. $55.60 for the square footage loss to your clients from the payment of the draw currently owed ($55.60 x 14 = 4778.40 deduction) and cancel the contract.

The Richards rejected the offer.

After a two-day trial, beginning on January 12, 2006, the trial court rendered judgment as previously described. The Richards then perfected this appeal. In their sole specification of error, the Richards expressed their complaints on appeal as follows:

The court nullified the building contract. However, and although hotly disputed, the court determined that with another patch effort, the slab would be usable at some future point. Based thereon the trial court granted Matte’s request for payment under the contract. The trial court required the Richards to pay for a patchwork slab, a slab they did not contract for and do not want.
| (¡Because the Richards did not contract for nor do they want a patchwork slab, the court erred in forcing them to pay for it.
1.Matte had not substantially completed his obligation under the contract, to build a house. Therefore, when the court nullified the contract, it erred in granting Matte payment under the nullified contract.
2. Additionally, since Matte failed to present any evidence, much less meet its burden of proof, that the Richards were enriched by receipt of the patchwork slab, one they do not want, this court would commit error in granting Matte anything for unjust enrichment.
3. Finally, the court erred in not making the Richards whole after dissolution of the contract.

OPINION

Louisiana Civil Code Article 1906 provides that “[a] contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished.” Additionally, “[a]n obligor is liable for the damages caused by his failure to perform a conventional obligation.” La.Civ.Code art. 1994. Furthermore, “[a] failure to perform results from nonperformance, defective performance, or delay in performance.” Id. (emphasis added). The record clearly establishes that the manner in which the contractor poured the original slab as well as the pie-shaped additions constituted defective performance under the contract.

In addition to the right to recover damages, “the obligee has a right to the judicial dissolution of the contract or, according to the circumstances, to regard the contract as dissolved” when an obligor fails to perform under a contract. La.Civ.Code art. 2013. The general remedies available to the party who has obtained dissolution of a contract are described in La.Civ.Code art. 2018, which provides:

Upon dissolution of a contract, the parties shall be restored to the situation that existed before the contract was made. If restoration in kind is impossible or impracticable, the court may award damages.
|7If partial performance has been rendered and that performance is of value to the party seeking to dissolve the contract, the dissolution does not preclude recovery for that performance, whether in contract or quasi-contract.

However, the measure of damages in a construction contract is “the losses that may ensue from his non-compliance with his contract.” La.Civ.Code art. 2769.

There is no dispute that Gary Matte Builders, Inc. is liable for the damages caused the Richards by its failure to perform under the construction contract. Furthermore, in awarding judgment to Gary Matte Builders, Inc. for its partial performance, the trial court obviously concluded that, although defective, this partial performance was of some value to the Richards.

The Richards presented no evidence of the cost of removing the slab to restore them “to the situation that existed before the contract was made.” La.Civ.Code art. 2018. Instead, they complain that they should not have to pay for a “patchwork slab.” In rejecting this argument, we first note that all of the evidence presented, including that of the Richards’ own expert, established that the original error in pouring the slab out of square could be corrected by tearing out the additions, pretreat-ing the soil for termites, properly pouring new pie-shaped additions, and sealing the cracks between the original slab and the additions with Thermabond. The record contains no evidence that the slab, when corrected using Dr. Uppot’s recommendations, would be anything less than structurally satisfactory for the Richards’ residence. In fact, the use of the dowels and Thermabond would create a bond between the original slab and the additions that would actually be stronger than the bond within the slab itself. This sealed connection would also alleviate any problem with termites entering the dwelling through the space between the addition and the slab. The only evidence to the contrary is Mrs. Richard’s concerns that the advice she and her husband received |sfrom their own expert would not stand the test of time. Thus, given the record as a whole, we cannot conclude that the trial court erred in awarding Gary Matte Builders, Inc. a sum for partial performance as provided in La.Civ.Code art. 2018. We now turn to an evaluation of the award itself.

Mrs. Matte testified that the amount owed by the Richards when the dispute arose totaled $11,572.00. The trial court used this amount in making its award and reached its final award of $9,573.00 by reducing that amount by $2,000.00, or the cost to repair the defect in the slab. We find that the trial court erred in its calculations and reduce that award to the sum of $4,625.32.

We reduce this award because Mrs. Matte testified that neither the statement for termite treatment nor the statement for the supplied concrete had been paid. In fact, the concrete supplier had perfected a materialman’s lien against the Richards’ property in the amount of $4,229.76. When asked to explain the difference between the principal amount of the lien and the charges according to her records, Mrs. Matte concluded that the lien amount did not include the standard discount provided to her company. Additionally, in a number of the expense categories, Mrs. Matte could not separate that which was charged for the original slab and the cost associated with the | Ssubsequent defective additions which must be torn out completely. In deriving the appropriate award, we have reduced the amount awarded ($9,573.00) by the amount of the unpaid termite treatment statement ($204.00) and by the amount of the materialman’s lien filed against the property for concrete ($4,229.76) for a subtotal of $5,139.24. We further reduce that amount by ten percent of that total ($513.92) to account for the charges associated with the defective additions. Subject to this amendment in the amount awarded, we affirm the trial court’s award to Gary Matte Builders, Inc. for partial performance under La.Civ.Code art. 2018.

We next turn to the Richards’ complaint that the trial court did not make them “whole” after dissolution of the contract. In brief, the Richards address this issue simply by stating that they should be awarded certain expenses and lost investments which arose because of the eontractor’s defective performance and which are evidenced by certain exhibits in the record. They refer to these exhibits in globo and make no reference to any statutory or jurisprudential authority for their recovery. Gary Matte Builders, Inc. does not even address this issue in brief.

Louisiana Civil Code Article 1995 provides that “[djamages are measured by the loss sustained by the obligee and the profit of which he has been deprived.” Additionally, “[a]n obligor in good faith is liable only for the damages that were foreseeable at the time the contract was made.” La.Civ.Code art. 1996. Nonpecuniary losses are recoverable “when the contract, because of its nature, is intended to gratify a nonpecuniary interest” and “the obligor knew, or should have known, that his failure to perform would cause that kind of loss.” La.Civ.Code art. 1998.

ImThe Richards make no assertion that the contractor was in bad faith, and Gary Matte Builders, Inc. makes no complaint regarding the nonpecuniary awards. Therefore, La.Civ.Code arts. 1995 and 1996 apply to the degree of recovery in this matter with nonpecuniary awards not being at issue.

The exhibits referred to in the Richards’ brief relate to a number of items which either have been addressed by the award to Gary Matte Builders, Inc., or are expenses that will not reoccur when building resumes, or are expenses which were not necessarily foreseeable to a good faith obli-gor. We find no error in the trial court’s failure to award these expenses as damages.

DISPOSITION

For the foregoing reasons, we affirm the judgment of the trial court awarding Gary Matte Builders, Inc. recovery for partial performance under the contract, but amend the amount awarded by reducing it to $4,625.32. We affirm the trial court’s judgment in all other respects. We assess all costs of this appeal equally between Gary Matte Builders, Inc. and David and Rosalyn Richard.

AFFIRMED AS AMENDED.

      . Laura Matte is the president of the corporation, and Gary Lee Matte is the secretary. Gary Lee Matte also serves as the construetion supervisor on jobs performed by the corporation.

      . Mr. Richard testified that he did not retain Dr. Uppot to do anything more than deter- • mine whether the existing work was performed in a workmanlike manner.

      . "Therobond” is referred to in the testimony of other witnesses as "Thermabond.”

      . He suggested in his testimony that the only other solution would be to cut the slab in such a manner as to square it up. However, this solution would result in the loss of fourteen square feet in the residence itself.

      .The attorney for Gary Matte Builders, Inc. made this offer in a letter addressed to counsel for the Richards.

      . Louisiana Civil Code Article 2013 also provides that, "[i]n an action involving judicial dissolution, the obligor who failed to perform may be granted, according to the circumstances, an additional time to perform.” However, that situation is not now before us.

      . The Richards presented the testimony of two building contractors who were accepted by the trial court as experts in that field. However, their testimony related primarily to the contractor’s initial defective performance, and not to an acceptable remedy.

      . Mrs. Matte indicted this total included expenditures for labor ($2,509.00), sand ($600.00), forming materials ($1,062.00), termite treatment ($204.00), concrete ($3,671.64), plumbing ($2,974.00), and the contractor’s profit ($551.00). These figures actually total $11,571.64, and not $11,573.00.

      . This one dollar difference is unexplained.

      . Dr. Hammitt and Mr. Matte both estimated the cost of effecting Dr. Uppot's remedy to be between $1,000.00 and $1,500.00. However, the trial court increased this amount by $500.00 to take into account the negative effects Hurricane Rita had on the cost of construction in the Calcasieu Parish area.

      . These include the costs of various construction supplies and activities, including concrete, gravel, and pouring activities.

      . These include the costs of preparation of housing plans and a survey, as well as insurance costs.

      .These include expenses related to interim and long-term financing.