“F.R.Civ.P. 9(a) requires that a party desiring to raise the issue of capacity ‘shall do so by specific negative averment.’ It is settled law that failure specifically to plead capacity waives the right to object.”
How later courts described this case
- “F.R.Civ.P. 9(a) requires that a party desiring to raise the issue of capacity ‘shall do so by specific negative averment.’ It is settled law that failure specifically to plead capacity waives the right to object.”
- “Under Fed. R. Civ. P. 9(a), it was incumbent upon Gensco to plead specifically that Ralston lacked the capacity or authority to recover for its absent principals. . . . The failure to plead lack of capacity waives the right to object.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BARRY SEWELL CIVIL ACTION
VERSUS NO. 21-2376-WBV-KWR
ST. BERNARD PARISH GOVERNMENT SECTION: D (4)
ORDER and REASONS
Before the Court is the Motion for Summary Judgment of Plaintiff, filed by
Barry Sewell.1 St. Bernard Parish Government opposes the Motion,2 and Sewell has
filed a Reply.3 The Court has also allowed both parties to file supplemental
memoranda in further support of their respective positions.4
After careful consideration of the parties’ memoranda and the applicable law,
the Motion is GRANTED in part and St. Bernard Parish Government is liable to
Sewell for $1,665,661.48, plus pre-judgment and post-judgment interest on that
amount, on Sewell’s breach of contract claim. The Motion is DENIED to the extent
that Sewell seeks an award of attorney’s fees.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case involves a contract dispute between Barry Sewell doing business as
St. Bernard Trucking and St. Bernard Parish Government (“SBPG”), concerning a
contract for emergency drainage and sewage removal.5 The following facts are
1 R. Doc. 49.
2 R. Doc. 53.
3 R. Doc. 56.
4 See, R. Docs. 87, 88, 89, & 90.
5 See, R. Doc. 6; R. Doc. 80 at p. 7; R. Doc. 49-4.
uncontested.6 On May 20, 2021, St. Bernard Trucking entered into a contract with
SBPG for emergency drainage and sewage removal, effective June 1, 2021.7 Sewell
signed the contract as the owner of St. Bernard Trucking.8 The contract required St.
Bernard Trucking to assemble a fleet of trucks, supplies, and manpower sufficient to
perform the removal and transport of raw sewage on a “24/7 basis” in the event an
emergency rendered the sewer treatment infrastructure inoperable.9
On August 29, 2021, Hurricane Ida made landfall in Louisiana and, as a result,
Governor John Bel Edwards declared a state of emergency.10 On August 30, 2021,
SBPG notified and directed Sewell to mobilize equipment and vehicles immediately
to pump, haul, and dump into designated areas water and sewage.11 SBPG did not
indicate a total price or a total number of hours requested from Sewell, and instead
directed Sewell to begin work and to work as directed by SBPG and its field monitors,
such as Steve Price.12 SBPG also did not require Sewell to provide services for a
specific time period, since the duration of the project was undetermined at that
time.13 According to the parties, the removal and hauling of water and sewage was
necessary because the sewer system pumps were not operational after the storm due
to a lack of electricity to the pumps.14 At SBPG’s request, St. Bernard Trucking began
mobilizing a fleet of trucks to manually remove sewage from below the ground to be
6 See, R. Doc. 80 at pp. 7-10.
7 R. Doc. 80 at p. 7. See, R. Doc. 6 at ¶ 4; R. Doc. 49-4.
8 See, R. Doc. 49-4 at p. 6; R. Doc. 53-7 at p. 4.
9 R. Doc. 80 at p. 7.
10 See, R. Doc. 49-5.
11 R. Doc. 80 at p. 7.
12 Id. at p. 8.
13 Id.
14 Id.
loaded and transported to functioning facilities, in accordance with the contract, and
it hired subcontractors, including Wise Environmental Services, Inc. (“Wise
Environmental”), to provide emergency drainage and sewage removal.15 SBPG
neither requested verbally, nor required as part of the contract, that St. Bernard
Trucking possess a commercial contractor’s license.16 Neither Sewell nor St. Bernard
Trucking possessed a commercial contractor’s license from the Louisiana State
Licensing Board for Contractors (hereafter, the “LSLBC”) for the period of time that
work was performed.17 Wise Environmental, which rendered emergency drainage
and sewage removal services in St. Bernard Parish from August 31, 2021 through
September 24, 2021, also did not possess a commercial contractor’s license from the
LSLBC when it performed these services.18 On August 31, 2021, Sewell and his
subcontractors, including Wise Environmental, began providing the emergency
sewage removal services to SBPG.19 SBPG does not dispute that St. Bernard
Trucking performed all services requested by SBPG under the contract, nor is there
any dispute regarding the quality of the services provided by St. Bernard Trucking
or its subcontractors.20
Beginning on September 9, 2021, St. Bernard Trucking submitted three
invoices to SBPG totaling $1,802,669.16 for emergency sewage hauling and disposal
services performed from August 31, 2021 through September 9, 2021, from September
15 Id.
16 R. Doc. 49-3.
17 R. Doc. 80 at p. 8.
18 Id. at p. 10.
19 Id.
20 Id.
10, 2021 through September 19, 2021, and from September 20, 2021 through
September 24, 2021.21 In response, SBPG provided St. Bernard Trucking with a
spreadsheet from Steve Price of PD Consulting, who purportedly reviewed and
reconciled St. Bernard Trucking’s invoices. At SBPG’s request, St. Bernard Trucking
revised its invoices to reflect the reconciled amount of $1,665,661.48 “in order to avoid
delay or dispute regarding the charges submitted.”22 After completing drainage and
sewage removal services in St. Bernard Parish, Wise Environmental sent Sewell d/b/a
St. Bernard Trucking invoices totaling $381,550.00. Wise Environmental has not
been paid for its services.23
Sewell alleges that, despite multiple representations by SBPG that St. Bernard
Trucking would be paid for its services pursuant to their contract, SBPG has refused
to pay St. Bernard Trucking for the work performed.24 Sewell asserts that on
November 5, 2021, through counsel, he sent a letter to SBPG demanding payment
under the contract and that SBPG has, to date, refused to pay St. Bernard Trucking
for the services performed.25 SBPG advises that, while processing St. Bernard
Trucking’s invoices, discrepancies were noticed that led to the discovery that St.
Bernard Trucking did not hold a commercial contractor’s license.26 After SBPG made
this finding, it determined that the contract was an absolute nullity for failure to
comply with La. R.S. 37:2150, and it refused to pay to St. Bernard Trucking’s
21 Id. at pp. 8-9.
22 Id. at p. 9.
23 Id.
24 R. Doc. 6 at ¶ 8.
25 Id. at ¶ 9. The Court notes that the November 5, 2021 demand letter states that the total balance
due is $1,665,661.48. See, R. Doc. 6-3 at pp. 1-3.
26 R. Doc. 53 at p. 2.
invoices.27 As a result, Sewell filed this suit against SBPG asserting that SBPG
breached its contract with St. Bernard Trucking in bad faith.28 Sewell alleges that
he has suffered damages as a result of SBPG’s breach of contract, and he seeks to
recover the costs of labor and materials, lost profits and overhead, the cost of travel
and job site visits, other damages resulting from SBPG’s action, and attorney’s fees.29
Sewell asserts that a principal balance of $1,802,669.15, plus legal interest from the
date due, is due and owing by SBPG or, alternatively, the sum of $1,665,661.48, plus
legal interest from the date due, is due and owing by SBPG.30 Alternatively, if the
Court finds that no valid contract exists between Sewell and SBPG, Sewell argues
that he is entitled to recover the value by which SBPG has been unjustly enriched
under the doctrine of unjust enrichment.31 Sewell further asserts, in the alternative,
that he is entitled to recover the amount owed by SBPG under the contract based
upon the doctrine of detrimental reliance.32
In its Answer to the First Amended Complaint, SBPG asserts several
affirmative defenses, including that the contract is an absolute nullity under
Louisiana law, specifically La. R.S. 37:2150, et seq., and La. R.S. 37:2160, because a
commercial contractor’s license is required for commercial work exceeding $50,000
and neither Sewell nor St. Bernard Trucking held a commercial contractor’s license
at the time of performance.33 SBPG also asserts, as an affirmative defense, that
27 Id.
28 R. Doc. 1 at ¶¶ 10-11; R. Doc. 6 at ¶¶ 10-11.
29 R. Doc. 6 at ¶ 12.
30 Id. at ¶ 14.
31 Id. at ¶ 17.
32 Id. at ¶ 18.
33 R. Doc. 11 at ¶¶ 20-24.
Sewell’s alleged damages are due to his own contributory and/or comparative fault
and/or the fault of a third party.34 Finally, SBPG asserts, as an affirmative defense,
that any claims asserted by Sewell are subject to a general offset against any amounts
already paid to Sewell, its contractors, and/or its vendors.35
Thereafter, on June 14, 2022, the Court allowed Wise Environmental to file a
Complaint in Intervention against SBPG,36 in which Wise Environmental seeks the
principal balance of $381,550.00, plus legal interest from the date due from SBPG.37
Like Sewell, Wise Environmental asserts that SBPG has been unjustly enriched as a
result of its unjustified failure to pay Wise Environment the amounts owed for the
services provided, and further asserts that it is entitled to recover the amount by
which SBPG has been enriched under the doctrine of unjust enrichment.38
Sewell filed the instant Motion for Summary Judgment on November 2, 2022,
asserting that he is entitled to “no less than $1,665,661.48, plus pre-judgment and
post-judgment interest on all amounts due, attorney fees, and all other general and
equitable relief to which Plaintiff may be entitled” for the services performed at
SBPG’s request.39 In doing so, Sewell “adopts and incorporates” the arguments made
by Wise Environmental in support of its motion for partial summary judgment, which
remains pending before the Court.40 In his Motion for Summary Judgment, Sewell
34 Id. at ¶ 25.
35 Id. at ¶ 26.
36 R. Docs. 23 & 26.
37 R. Doc. 27.
38 Id. at ¶ 16.
39 R. Doc. 49 at p. 1.
40 Id. at p. 1 (citing R. Docs. 36, 36-1, & 44-3). Wise Environmental asserts that Louisiana’s Public Bid
Law does not apply to service contracts, like the contract between SBPG and St. Bernard Trucking, so
St. Bernard Trucking and Wise Environmental were not required to hold commercial contractor’s
asserts that he is the owner of St. Bernard Trucking, a sole proprietorship that
entered into an agreement with SBPG to provide emergency sewerage hauling and
disposal services made necessary by Hurricane Ida, which made landfall on August
29, 2021.41 Sewell claims that at no time prior to completing the emergency services
requested was he requested to certify that he held an active commercial contractor’s
license under Louisiana law, and Sewell further asserts that SBPG did not raise the
issue until after all of the services were performed.42 Sewell claims that neither the
2021 contract with SBPG nor the prior contracts between SBPG and St. Bernard
Trucking required that St. Bernard Trucking be a licensed contractor.43
Sewell argues that he did not act as a contractor and was not required to have
a commercial contractor’s license under La. R.S. 37:2150, et seq., since he was engaged
in an emergency capacity to move water and sewerage to mitigate flooding. Relying
upon the definition of “contractor” in La. R.S. 37:2150.1, Sewell asserts that he did
not construct, alter, repair, improve, move, demolish, put up, tear down, furnish
labor, or install materials or equipment for any sewer or other construction.44 Sewell
contends that the definition of “contractor” “is intended to relate to construction
projects and work ancillary to construction,” and further asserts that there is no
evidence to suggest that he constructed, altered, repaired, improved, moved,
licenses. R. Doc. 36. However, even if the Public Bid Law applies to the contract, Wise Environmental
asserts that Louisiana Governor John Bel Edwards suspended its application before Hurricane Ida
made landfall. Id. at p. 1. Finally, Wise Environmental asserts that neither St. Bernard Trucking nor
Wise Environmental was acting as a contractor when they provided drainage and sewage services to
SBPG, so La. R.S. 37:2150, et seq., does not apply. Id.
41 R. Doc. 49-1 at p. 1 (citing R. Doc. 49-2 at ¶ 1; R. Doc. 49-3 at ¶¶ 3, 5).
42 R. Doc. 49-1 at p. 2 (citing R. Doc. 49-2 at ¶ 5; R. Doc. 49-3 at ¶ 4).
43 R. Doc. 49-1 at p. 2 (citing R. Doc. 49-2 at ¶ 4; R. Doc. 49-3 at ¶¶ 4, 13; R. Doc. 49-4; R. Doc. 36-3).
44 R. Doc. 49-1 at p. 3 (citing R. Doc. 49-2 at ¶ 28; R. Doc. 49-3 at ¶¶ 12, 14); R. Doc. 49-1 at p. 4.
demolished, put up or tore down any construction undertaking, as contemplated by
La. R.S. 37:2150.1(4)(a).45 As such, Sewell argues that the contract with SBPG is not
a nullity and must be enforced in his favor.46
Sewell acknowledges that the definition of “contractor” references “sewer” and
that he was removing water and sewerage from one location and transporting it to
another location for flood mitigation. Sewell, however, claims that he did not move a
sewer or otherwise perform any of the enumerated acts on the sewer that would be
required to meet the definition of a contractor pursuant to La. R.S. 37:2150.1(4)(a).47
Anticipating that SBPG may rely on the opinion of an employee of the LSLBC to
argue that the services provided by Sewell require a commercial contractor’s license,
Sewell asserts that neither the employee nor the LSLBC are permitted to alter or
modify the applicable law.48 Sewell contends that there is no law that requires a
commercial contractor’s license for services that are not within the definition of La.
R.S. 37:2153(A).49 Sewell also asserts that the employee’s opinion is irrelevant and
inadmissible for the reasons asserted by Wise Environmental in its reply brief in
support of its own motion for partial summary judgment.50 Sewell further asserts
that La. R.S. 37:2163 requires an awarding authority to place in their bid
specifications the requirement that a contractor shall certify that he holds an active
45 R. Doc. 49-1 at p. 5 (emphasis in original).
46 R. Doc. 49-1 at pp. 4-5.
47 R. Doc. 49-1 at p. 5.
48 R. Doc. 49-1 at p. 6.
49 R. Doc. 49-1 at p. 6.
50 R. Doc. 49-1 at p. 7 (citing R. Doc. 44-3 at pp. 1-4).
license, and that the absence of any license certification by SBPG “evidences the fact
that no commercial contractor’s license requirement ever existed.”51
SBPG argues that its contract with Sewell is an absolute nullity because La.
R.S. 37:2150, et seq., requires a commercial contractor’s license to engage in the work
set forth in the contract between SBPG and St. Bernard Trucking and none of the
parties at issue (St. Bernard Trucking, Wise Environmental, and Ronda McDaniel)
had the requisite license.52 SBPG clarifies that it is not relying on Louisiana’s Public
Bid Law to invalidate the contract, since it does not apply to contracts for professional
services, such as the contract before the Court, admitting that its reference to the
public bid law in its answer was “an embarrassing cut and paste error.”53 Instead,
SBPG argues that La. R.S. 37:2160 renders any work performed in violation of the
licensing requirements unlawful.54 SBPG cites a Louisiana appellate court decision
for the proposition that a contractor cannot recover damages for breaching an illegal
contract, nor can he recover under the theory of unjust enrichment.55
SBPG also relies upon the Declaration of Brent Templet, an employee of the
LSLBC, who attests that, in his opinion, the work contemplated by the contract and
51 R. Doc. 49-1 at p. 7 (quoting La. R.S. 37:2161(A)(1)) (internal quotation marks omitted).
52 R. Doc. 53 at p. 8; See, Id. at p. 4 (citing R. Docs. 53-10, 53-11, 53-14). While a “Ronda McDaniel” is
included on SBPG’s Witness List (R. Doc. 38 at p. 2), a “Ronda McMichael” is listed on Wise
Environmental’s Witness List (R. Doc. 40 at p. 1) and referenced by the parties in the joint Pre-Trial
Order. R. Doc. 80 at pp. 26, 28
53 R. Doc. 53 at p. 5. The Court notes, however, that SBPG further asserts that even if the Court found
the public bid law applicable to the dispute in this case, the contract would be an absolute nullity for
Sewell’s failure to comply with the public bid law procedure requiring a properly licensed contractor.
See, R. Doc. 53 at pp. 6-7.
54 R. Doc. 53 at p. 8.
55 R. Doc. 53 at pp. 8-9 (quoting Quaternary Resource Investigations, LLC v. Phillips, 2018-1453 (La.
App. 1 Cir. 11/19/20), 316 So.3d 448, 462) (internal quotation marks omitted).
the work performed by St. Bernard Trucking required a commercial contractor’s
license under Louisiana law.56 SBPG claims that Templet’s opinions are based upon
La. R.S. 37:2150.1, which defines “contractor” very broadly, and two bulletins issued
by the LSLBC, 7-55 and 7-89, which concern “Sewer Plants or Sewer Disposal” and/or
“Industrial Cleaning and Material Waste Handling.”57 SBPG argues that the statute
defines “contractor” very broadly and includes “furnishing labor,” and that the work
performed under the contract constituted labor furnished.58 SBPG contends that
Bulletins 7-55 and 7-89 further define “construction undertaking,” as that phrase is
used in the definition of “contractor,” and that it is clear that the work performed by
Sewell constitutes maintenance of a sewer plant and sewer disposal system as
described in Bulletin 7-55.59 SBPG points out that Sewell failed to submit any
countervailing affidavits or expert testimony stating that Templet’s conclusion is
wrong or that his analysis or methodology was flawed.60 SBPG repeatedly states that
it “takes no pleasure in having to deny payment to St. Bernard Trucking or its
subcontractors, vendors, and suppliers,” but claims that St. Bernard Trucking should
have known that a license was required to perform this work.61 SBPG also asserts
“[a]s a brief aside,” that it recently discovered that Sewell did not acquire ownership
of St. Bernard Trucking until September 22, 2022, and further asserts that, “This fact
56 R. Doc. 53 at p. 9 (citing R. Doc. 53-14). The Court notes that SBPG refers to a “Brent Templat with
the Louisiana Licensing Board for Contractors” (R. Doc. 53 at pp. 9-11), but SBPG submitted a
Declaration from “Brent Templet” (R. Doc. 53-14). Because the Declaration is signed by Brent
Templet, the Court will refer to the person as “Templet.”
57 R. Doc. 53 at pp. 9-10 (citing R. Docs. 53-18 & 53-19).
58 R. Doc. 53 at pp. 10-11.
59 Id. at p. 11.
60 Id.
61 Id. at pp. 3 & 12.
alone warrants denial of the instant motion as Sewell was not owner for the period of
August 31, 2022 to September 21, 2022 and Sewell was not the owner of St. Bernard
Trucking when the contract was signed.”62
In response, Sewell maintains that he did not act as a contractor for purposes
of La. R.S. 37:2150.1(4)(a) and, as such, he was not required to have a commercial
contractor’s license.63 Sewell asserts that merely furnishing labor does not satisfy
the definition of “contractor” unless done for a construction undertaking, and Sewell
maintains that he did not furnish labor for a construction undertaking.64 Sewell also
reiterates that if he had been required to hold a commercial contractor’s license under
La. R.S. 37:2150.1(4)(a), SBPG would have been required by La. R.S. 37:2163(A)(1)
to include in its bid specifications that a contractor certify that he holds an active
license, which SBPG did not do.65 Sewell claims that, although SBPG is attempting
to manufacture an excuse for this glaring omission, La. R.S. 37:2163(A)(1) applies to
“contracts either by bid or through negotiations.”66 Sewell also maintains that the
LSLBC is authorized only to enforce and carry out the statutory provisions enacted
by the legislature, and cannot promulgate any rule of law, especially in contravention
of the language of La. R.S. 37:2150.1(4)(a).67 Applying Louisiana laws of statutory
construction, Sewell argues that the statute is clear and unambiguous and should be
62 R. Doc. 53 at p. 2 (citing R. Doc. 53-20).
63 R. Doc. 56.
64 Id. at p. 1.
65 Id. at pp. 1-2 & 6-7.
66 R. Doc. 56 at p. 2 (quoting La. R.S. 37:2163(A)(1)) (emphasis in original) (internal quotation marks
omitted).
67 R. Doc. 56 at p. 3.
applied as written.68 Sewell further asserts that the bulletins relied upon by SBPG
are not competent summary judgment evidence and are not law.69 Sewell likewise
asserts that the conclusory opinion of Templet should be rejected by the Court
because it lacks any legal authority and because the Declaration does not contain
information sufficient to qualify him as an expert.70 Finally, Sewell claims that the
uncontroverted evidence shows that he was an owner of St. Bernard Trucking at all
relevant times, that SBPG failed to cite any legal authority in support of its position
regarding the ownership of St. Bernard Trucking, and points out that SBPG did not
raise the issue of ownership as a contested issue of fact in this case.71
In a Supplemental Memorandum, filed after the Court held a Pretrial
Conference on January 11, 2023, SBPG asserts that the question before the Court is
not whether this was a construction project, but whether this was a “construction
undertaking,” as that term is used in La. R.S. 37:2150.1(4)(a).72 Relying upon La.
R.S. 37:2153, which sets forth the powers of the LSLBC, SBPG initially contends that
the Court must look beyond the statutes to the rules and regulations promulgated by
the LSLBC in considering what constitutes a “construction undertaking.”73 SBPG
claims that the Louisiana legislature vested the LSLBC with the duty and power to
more fully define “construction undertakings,” and that Bulletins 7-55 and 7-89
provide further guidance about what work constitutes a “construction undertaking.74
68 R. Doc. 56 at pp. 3-4 (citing authority).
69 Id. at p. 4.
70 Id. at p. 5 (citing R. Doc. 41-14 at ¶ 8).
71 R. Doc. 56 at pp. 7-8.
72 R. Doc. 89 at p. 3.
73 Id. at p. 2.
74 Id. at pp. 2-3.
SBPG then asserts that whether this was a construction undertaking is a question of
fact for the jury to decide.75 SBPG claims that if the Court agrees with Sewell and
looks only to the definition of “contractor” in La. R.S. 37:2150.1 to determine whether
a license was required, “that would upend the entire licensing process of the LSLBS”
because “That is not how the legislature envisioned that the LSLBC was supposed to
work and that is not how the LSLBC works.”76
SBPG next asserts that the parties cannot contract around the legal
requirement of a license, and that SBPG did not have a duty to put Sewell on notice
that a license was required for the work performed.77 SBPG then cites a decision
from another Section of this Court, Progressive Waste Solutions of LA, Inc. v. St.
Bernard Parish Government, for the proposition that, because Louisiana law restricts
parties from entering into a contract that requires a commercial contracting license
when the contractor does not have a license, SBPG and Sewell both lacked the
requisite legal capacity to enter into a contract when Sewell did not have the requisite
license.78 SBPG further argues that Sewell’s ownership of St. Bernard Trucking “is
a disputed and relevant issue” regarding Sewell’s capacity to execute a contract for
St. Bernard Trucking on May 17, 2021, while it was still owned by Don Meyers.79
SBPG contends that the “transfer document” whereby Don Meyers transferred
certain duties to Barry Sewell is dated May 5, 2021, but it was not notarized until
75 Id. at p. 3.
76 Id.
77 Id. at pp. 4-5.
78 Id. at pp. 5-6. SBPG does not provide a case citation for the opinion cited in its brief. The Court
believes, however, that SBPG is referring to Progressive Waste Solutions of LA, Inc. v. St. Bernard
Parish Government, Civ. A. No. 16-8669, 2016 WL 4191847 (E.D. La. Aug. 9, 2016) (Fallon, J.).
79 R. Doc. 89 at p. 7.
September 22, 2021.80 SBPG suggests that, “a jury could easily conclude that Barry
Sewell was not the owner of St. Bernard Trucking and therefore did not have the
capacity to sign the contract on May 17, 2021.”81
Sewell also filed a Supplemental Memorandum, in which he argues that, in
light of the uncontested facts concerning the nature and quality of the services
provided by Sewell in the Pre-Trial Order, the only question before the Court is the
legal interpretation of La. R.S. 37:2150.1(4)(a) based upon those uncontested facts.82
Relying upon the deposition of the President of St. Bernard Parish, a former Chief
Administrative Officer of St. Bernard Parish, and the Director for the Office of
Homeland Security and Emergency Preparedness of St. Bernard Parish, Sewell
contends that the work performed for SBPG is not a construction undertaking and,
therefore, did not require a commercial contractor’s license.83 Sewell further asserts
that La. R.S. 37:2150.1(4)(a) must be strictly construed because SBPG seeks to have
it interpreted in a way that impairs Sewell’s rights in contract.84 Sewell maintains
that the LSLBC bulletins cited by SBPG are not laws and, therefore, have no bearing
on the legal question of whether Sewell is a “contractor” under La. R.S.
37:2150.1(4)(a).85 Nonetheless, Sewell points out that Section 103 of the LSLBC’s
80 Id. at pp. 7-8.
81 Id. at p. 8.
82 R. Doc. 90 at p. 1.
83 Id. at pp. 2-3 (citing R. Docs. 90-1, 90-2, & 90-3).
84 R. Doc. 90 at pp. 3-4 (citing Glorioso v. City of Kenner, 19-298 (La. App. 5 Cir. 12/18/19), 285 So.3d
601, 604).
85 R. Doc. 90 at pp. 5-6.
rules and regulations expressly defers to La. R.S. 37:2150.1 for the definition of words
and phrases used therein.86
Sewell further asserts that the clean hands doctrine prohibits SBPG from
avoiding its obligation to pay Sewell.87 Sewell contends that, “A party who knew or
should have known at the time of contracting of a defect that made the contract
absolutely null may not avail himself of the nullity when the purpose of the illegal
contract has been accomplished.”88
II. LEGAL STANDARD
Summary judgment is appropriate where there is no genuine disputed issue as
to any material fact, and the moving party is entitled to judgment as a matter of
law.89 When assessing whether a dispute regarding any material fact exists, the
Court considers “all of the evidence in the record but refrain[s] from making
credibility determinations or weighing the evidence.”90 While all reasonable
inferences must be drawn in favor of the nonmoving party, a party cannot defeat
summary judgment with conclusory allegations, unsubstantiated assertions or “only
86 Id. at p. 6 (citing R. Doc. 53-22 at p. 30) (“As used in these rules and regulations, words and phrases
shall be defined as provided in R.S. 37.2150.1, in R.S. 37:2150-2192, and as otherwise defined in these
Rules and Regulations.”).
87 R. Doc. 90 at pp. 6-7.
88 Id. at pp. 6-7 (quoting La. Civ. Code art. 2033, comment (c)) (internal quotation marks omitted).
89 Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202
(1986).
90 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008)
(citations omitted).
a scintilla of evidence.”91 Instead, summary judgment is appropriate if a reasonable
jury could not return a verdict for the nonmoving party.92
If the dispositive issue is one on which the moving party will bear the burden
of proof at trial, the moving party “must come forward with evidence which would
entitle it to a directed verdict if the evidence went uncontroverted at trial.”93 The
nonmoving party can then defeat summary judgment by either submitting evidence
sufficient to demonstrate the existence of a genuine dispute of material fact, or by
“showing that the moving party’s evidence is so sheer that it may not persuade the
reasonable fact-finder to return a verdict in favor of the moving party.”94 If, however,
the nonmoving party will bear the burden of proof at trial on the dispositive issue,
the moving party may satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element of the nonmoving
party’s claim.95 The burden then shifts to the nonmoving party who must go beyond
the pleadings and, “by her own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that there
is a genuine issue for trial.’”96
91 Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)) (internal quotation marks
omitted).
92 Delta & Pine Land Co., 530 F.3d at 399 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
93 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991).
94 Id. at 1265.
95 See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
96 Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed. R. Civ. P. 56(e)).
III. ANALYSIS
A. The Contract is Not an Absolute Nullity
1. Sewell d/b/a St. Bernard Trucking is not a “contractor” under
La. R.S. 37:2150.1(4)(1).
The Court finds that there is no genuine dispute of any material fact in this
case. Neither party disputes that SBPG entered into a contract with St. Bernard
Trucking on May 20, 2021 for emergency drainage and sewage removal, which was
effective June 1, 2021, and the parties agree that, “The authenticity, execution and
content of said contract are not at issue.”97 There is also no dispute that on August
30, 2021, the day after Hurricane Ida made landfall in Louisiana, SBPG directed St.
Bernard Trucking to mobilize equipment and vehicles immediately to “pump, haul,
and dump water and sewage into designated areas.”98 There is also no dispute that
St. Bernard Trucking, with the help of subcontractors like Wise Environmental,
provided the emergency sewage removal services to SBPG from August 31, 2021
through September 24, 2021, that St. Bernard Trucking submitted invoices to SBPG
totaling $1,802.669.16 for these services, and that, at SBPG’s request, St. Bernard
Trucking submitted revised invoices totaling $1,665,661.48 for the work performed.99
It is further undisputed that neither Sewell, St. Bernard Trucking, nor Wise
Environmental possessed a commercial contractor’s license from LSLBC for the
period of time that this work was performed under the contract.100
97 R. Doc. 80 at p. 7.
98 Id.
99 Id. at pp. 8-9.
100 Id. at pp. 9-10.
The issue before the Court is a narrow one – whether the contract between St.
Bernard Trucking and SBPG is an absolute nullity because Sewell d/b/a St. Bernard
Trucking was required by La. R.S. 37:2150, et seq., to have a commercial contractor’s
license to perform emergency drainage and sewage removal in St. Bernard Parish in
the wake of Hurricane Ida. Although the parties disagree on whether this is a
question of law or fact,101 the Court agrees with Sewell that this is a question of law
because it involves the statutory interpretation of the word “contractor” in La. R.S.
37:2150.1(4)(a). Indeed, the parties agree as to the “facts” of the work performed by
St. Bernard Trucking.102 At the time St. Bernard Trucking and SBPG entered into
the contract, Section 2150.1(4)(a) defined a “contractor” as:
any person who undertakes to, attempts to, or submits a price or bid or
offers to construct, supervise, superintend, oversee, direct, or in any
manner assume charge of the construction, alteration, repair,
improvement, movement, demolition, putting up, tearing down, or
furnishing labor, or furnishing labor together with material or
equipment, or installing the same for any building, . . . sewer, . . . or any
other construction undertaking for which the entire cost of same is fifty
thousand dollars or more when such property is to be used for
commercial purposes . . . .103
A “contractor” is further defined by the statute as encompassing both subcontractors
and general contractors.104
Under La. R.S. 37:2160, it is “unlawful for any person to engage or to continue
in this state in the business of contracting, or to act as a contractor as defined in this
101 See, R. Docs. 89 & 90.
102 R. Doc. 80 at ¶ 7.
103 La. R.S. 37:2150.1(4)(a). The Court notes that the Louisiana legislature approved certain revisions
to Section 2150.1(4)(a) on May 26, 2022, but the substance of the statute pertinent to this litigation
remains the same.
104 La. R.S. 37:2150.1(4)(b).
Chapter, unless he holds an active license as a contractor under the provisions of this
Chapter.”105 As such, “only a person who has obtained a contractor’s license from the
State Licensing Board for Contractors may be engaged in the contracting vocation in
the State of Louisiana.”106 According to La. R.S. 37:2150, the purpose of this licensing
requirement is to protect “the health, safety, and general welfare of all those persons
dealing with persons engaged in the contracting vocation,” and to afford such persons
“an effective and practical protection against the incompetent, inexperienced,
unlawful, and fraudulent acts of contractors with whom they contract.”107 Section
2150 further provides that, “the legislative intent is that the State Licensing Board
for Contractors shall monitor construction projects to ensure compliance with the
licensure requirements of this Chapter.”108
As explained by another Section of this Court, La. R.S. 37:2150, et seq., “seeks
to protect those persons dealing with contractors by providing licensure requirements
for contractors performing work within the State.”109 The court further explained,
“These provisions were specifically enacted so that unqualified individuals operating
in professional fields could not injure or mislead the State’s citizens.”110 When a
105 La. R.S. 37:2160(A)(1).
106 Biomedical Applications of LA, Inc., Civ. A. No. 06-1093, 2007 WL 861156 at *2 (quoting Hagberg
v. John Bailey Contractor, 435 So.2d 580, 584 (La. App. 3 Cir. 6/29/83)) (internal quotation marks
omitted) (emphasis in original).
107 La. R.S. 37:2150.
108 Id. (emphasis added).
109 Tradewinds Environmental Restoration, Inc. v. St. Tammany Park, LLC, Civ. A. No. 06-596, 2017
WL 1191896, at *2 (E.D. La. Apr. 20, 2007) (Barbier, J.) (quoting Tradewinds Environmental
Restoration, Inc. v. Biomedical Applications of LA, Inc., Civ. A. No. 06-1093, 2007 WL 861156, at *2
(E.D. La. Mar. 20, 2007) (Fallon, J.)) (internal quotation marks omitted) (citing authority).
110 St. Tammany Park, LLC, Civ. A. No. 06-596, 2017 WL 1191896 at *3; Biomedical Applications of
LA, Inc., Civ. A. No. 06-1093, 2007 WL 861156 at *3.
contract violates a rule of public order, the contract is “absolutely null.”111 Louisiana
law further provides that, “any act in derogation of a law enacted for the protection
of the public interest is an absolute nullity.”112 As such, “any contracts made in
violation of the State licensing requirements are null and void.”113 Additionally,
“Because of the strong public policy reasons underlying the statutes, the licensing
rules established by §§ 37:2150, et seq, . . . may not be set aside by individuals through
private agreement.”114 “It is well established in Louisiana law that a construction
agreement made with an unlicensed contractor is null and void.”115
Here, the contract between the parties obligated St. Bernard Trucking to
provide “drainage and sewage removal in support of emergency services” for St.
Bernard Parish.116 Specifically, SBPG agreed with St. Bernard Trucking’s
management and response plan, as well as its pricing, for drainage and sewage
removal for St. Bernard Parish, effective June 1, 2021 through May 31, 2022.117 The
contract provides that St. Bernard Trucking’s plan for the safe and timely removal of
111 La. Civ. Code art. 2030.
112 La. Civ. Code art. 7.
113 St. Tammany Park, LLC, Civ. A. No. 06-596, 2017 WL 1191896 at *3 (quoting Biomedical
Applications of LA, Inc., Civ. A. No. 06-1093, 2007 WL 861156 at *3 (citing Alonzo v. Chifici, 526 So.2d
237, 240-43 (La. App. 5 Cir. 1988); Hagberg, 435 So.2d at 584-85; Executone of Cent. La., Inc. v. Hosp.
Svc. Dist. No. 1 of Tangipahoa Parish, 798 So.2d 987, 993 (La. App. 1 Cir. 5/11/01); Touro Infirmary,
Preferred Continuum Care-New Orleans, LP v. Travelers Prop. Cas. Co. of America, Civ. A. No. 06-
3535, 2007 WL 496858, at *3-5 (E.D. La. Feb. 13, 2007) (Vance, J.))); Maroulis v. Entergy Louisiana,
LLC, 20-226 (La. App. 5 Cir. 2/10/21), 314 So.3d 1002, 1005, rev’d on other grounds by Maroulis v.
Entergy Louisiana, LLC, 2021-00384 (La. 6/8/21), 317 So.3d 316 (per curiam) (citing Alonzo, 526 So.2d
at 243; La. Civ. Code art. 7).
114 St. Tammany Park, LLC, Civ. A. No. 06-596, 2017 WL 1191896 at *3 (quoting Biomedical
Applications of LA, Inc., Civ. A. No. 06-1093, 2007 WL 861156 at *4 (citing Hagberg, 435 So.2d at 584)).
See, Maroulis, 20-226, 314 So.3d 1002 at 1005 (“Individuals may not by private agreement set aside
the contractor’s licensing rules established by the legislature.”) (citing authority).
115 Maroulis, 20-226, 314 So.3d at 1005-06 (citing authority).
116 See, R. Doc. 49-4 at pp. 1 & 2; R. Doc. 53-7 at pp. 1 & 6; R. Doc. 80 at ¶ 7.
117 R. Doc. 49-4 at p. 5; R. Doc. 53-7 at p. 2.
sewerage from emergency incident “is for the health and safety of St. Bernard
residents.”118 Under the terms of the contract, upon deployment by SBPG, St.
Bernard Trucking agreed to “assemble a fleet of trucks, supplies and manpower to
deal with additional emergency services as needed depending on incident level.”119
The contract provides that, “This Mobilization includes but not [sic] limited to: truck
rental, short term insurance, hoses, fitting gaskets, oil, grease, hydraulic fluid,
buckets, cones, bleach, fuel, fuel tank, generators, electricians, mechanics, drivers,
portable showers, portable toilets, portable washing stations, tire services, bands,
gloves, first-aid supplies, toiletries, ice, water, electric cords, straps, gas cans,
etc…”120
The contract further specifies that, “If an incident renders the sewer treatment
infrastructure inoperable, the safe and timely removal of raw sewerage will be
performed with vacuum trucks operating on a 24/7 basis, where the sewerage would
be manually removed from below the ground, loaded and transported to functioning
facilities.”121 According to the contract, the vacuum trucks “contain a vacuum pump,
which removes the air from the tank, causing a vacuum at the hose, drawing the
sewerage into the tank from manholes or inoperable lift stations throughout the
parish,” and, “These trucks would remove enough sewerage to maintain the system
and not overflow.”122 The contract provides that, “Dump sites would be set up to
118 R. Doc. 49-4 at p. 5; R. Doc. 53-7 at p. 2.
119 R. Doc. 49-4 at p. 5; R. Doc. 53-7 at p. 2; R. Doc. 80 at ¶ 7.
120 R. Doc. 49-4 at p. 5; R. Doc. 53-7 at p. 2.
121 R. Doc. 49-4 at p. 5; R. Doc. 53-7 at p. 2.
122 R. Doc. 49-4 at p. 3; R. Doc. 53-7 at p. 3.
unload waste water,” and that, “St. Bernard Trucking shall provide labor, material
and equipment for any and/or all drainage and sewerage removal services in support
of emergency operations.”123 The contract further provides that, “The services shall
be provided at the location(s) identified by the St. Bernard Parish Emergency
Operations Center under the direction of the Public Works,” and that, “It is
understood by St. Bernard Trucking that the operation will begin and cease from the
authorization of the St. Bernard Parish President and Emergency Operation
Center.”124 The parties do not dispute the terms of the contract.125
Based on the language in the contract, the Court agrees with Sewell that St.
Bernard Trucking was engaged in an emergency capacity to remove water and
sewerage from one location in St. Bernard Parish and to transport it to another
location to prevent flooding after Hurricane Ida.126 According to the pricing schedule
in the contract, St. Bernard Trucking billed SBPG for the cost of mobilizing and de-
mobilizing each truck, the hourly cost per truck for pumping, the cost of setting up a
pump for discharging sewer, an hourly cost for discharging the pump, an hourly cost
per light tower at the pump site, and a daily cost for orange safety cones.127 The
parties agree that when Hurricane Ida made landfall on August 30, 2021, SBPG
notified and directed St. Bernard Trucking to “mobilize equipment and vehicles
immediately to pump, haul and dump into designated areas water and sewage.”128
123 R. Doc. 49-4 at p. 3; R. Doc. 53-7 at p. 3
124 R. Doc. 49-4 at p. 3; R. Doc. 53-7 at p. 3.
125 See, generally, R. Docs. 49-1, 53, 56, & 80.
126 See, R. Doc. 49-1 at p. 5; R. Doc. 49-4 at p. 3; R. Doc. 57-3 at p. 3.
127 R. Doc. 49-4 at p. 6; R. Doc. 57-3 at p. 4.
128 R. Doc. 80 at p. 7.
The parties also agree that, “Upon request, St. Bernard Trucking began mobilizing a
fleet of trucks to manually remove sewage from below the ground to be loaded and
transported to functioning facilities in accordance with the Contract . . . .”129 Further,
the parties agree that, “St. Bernard Trucking did perform all services requested
under the contract, and there is no dispute regarding the quality of the service
provided by St. Bernard Trucking or its subcontracts.”130 The Court finds that there
is no genuine dispute as to any material fact regarding whether these actions
constitute a construction project or a construction undertaking, as those terms are
used in La. R.S. 37:2150.1(4)(a), which defines the word “contractor.”
SBPG has not cited any legal authority or offered any competent summary
judgment evidence to show that the contract contemplated or required St. Bernard
Trucking to perform any sort of construction or “construction undertaking.” The
contract does not contemplate or require St. Bernard Trucking “to construct,
supervise, superintend, oversee, direct, or assume charge of the construction,
alteration, repair, improvement, movement, demolition, putting up, tearing down, or
furnishing labor, or furnishing labor together with material or equipment” for “any
building, highway, road, railroad, sewer, grading, excavation, pipeline, public utility
structure, project development, housing, or housing development, improvement, or
any other construction undertaking” that exceeded $50,000.131 The Court agrees with
Sewell that, although the definition of “contractor” includes the word “sewer,” it refers
129 Id. at p. 8.
130 Id.
131 See, La. R.S. 37:2150.1(4)(a) (emphasis added).
only to “offers to construct, supervise, superintend, oversee, direct, or in any manner
assume charge of the construction, alteration, repair, improvement, movement,
demolition, putting up, tearing down, or furnishing labor, or furnishing labor together
with material or equipment, or installing the same for any . . . sewer.”132 SBPG has
not provided, nor is there any evidence before the Court to suggest, that St. Bernard
Trucking agreed to, or performed any work to, construct, alter, repair, improve, move,
demolish, put up, tear down, or install a sewer in St. Bernard Parish. St. Bernard
Trucking agreed only to remove water and sewerage from one location in St. Bernard
Parish and to transport it to another location to avoid flooding after Hurricane Ida,
and there is no dispute that St. Bernard Trucking performed those services.133
Further, SBPG cites no legal authority to support its position that “drainage and
sewage removal” constitutes a construction project or some “other construction
undertaking” under La. R.S. 37:2150.1(4)(a). Instead, SBPG relies solely on the
Declaration of Brent Templet, an employee of the LSLBC “whose duties include
reviewing scopes of work and making determinations if a contractor’s license is
required and if so what type of license.”134 Templet asserts that, “Although the
LSLBC makes the final decision on licensing, it is my opinion in my position with the
LSLBC that the work contemplated under the contract and the work performed as
evidenced by the invoices required a commercial contractor’s license under Louisiana
law . . . .”135 According to Templet, a contractor’s license was required because,
132 Id.
133 R. Doc. 80 at p. 8.
134 R. Doc. 53 at pp. 9-13; See, R. Doc. 53-14 at ¶¶ 2 & 3.
135 R. Doc. 53-14 at ¶ 8.
“Sewage Disposal for a municipality falls under the Major Classification of Municipal
and Public Works. Sewage disposal would also fall under the sub classification of
Sewer Plants or Sewer Disposal, as well as the specialty classification Industrial
Cleaning and Material Waste Handling.”136 Although Templet does not cite any
authority, legal or otherwise, to support this assertion, SBPG argues that Templet is
referring to two bulletins issued by the LSLBC, Bulletin 7-55 and Bulletin 7-89,
which SBPG contends “constitute law as administrative regulations.”137 Like
Templet, SBPG cites no legal authority for this assertion.
Without addressing the parties’ arguments regarding whether Templet’s
testimony is relevant or admissible,138 SBPG has failed to direct the Court’s attention
to any legal authority suggesting that a bulletin issued by the LSLBC constitutes law
or legal authority, and the Court has found none. The Court notes that during the
Final Pretrial Conference held on January 11, 2023, counsel for SBPG struggled to
explain what the bulletins are and what legal effect, if any, they have on this
litigation. SBPG submitted a one-page exhibit in support of its Opposition brief
purporting to be Bulletin 7-55, which states that it is a “Candidate Information
Bulletin” regarding “the construction, maintenance or repair of sewer plants and
related sanitary and storm water sewage oxidation ponds and disposal and treatment
facilities.”139 SBPG also submitted a two-page exhibit purporting to be Bulletin 7-89,
136 Id.
137 R. Doc. 53 at p. 10.
138 See, R. Doc. 49-1 at pp. 6-7; R. Doc. 53 at pp. 10-11.
139 R. Doc. 53-19. The Court notes that SBPG filed this document into the record and labeled it,
“Exhibit Bulletin 7-89.” Id.
which does not contain the word “bulletin” or any reference to “7-89,” and provides
that, “Industrial Cleaning and Material/Waste Handling is a closed book examination
with 50 multiple-choice questions.”140 SBPG makes no effort to connect these
bulletins to the definition of “contractor” in La. R.S. 37:2150.1(4)(a) in its Opposition
brief.
In its Supplemental Memorandum, SBPG asserts that the Louisiana
legislature vested the LSLBC with the duty and power to more fully define the term
“construction undertaking,” as that term is used in Section 2150.1(4)(a), based upon
La. R.S. 37:2156.1(L) and “LAC 46:301(A).”141 The Court rejects this argument as
baseless. Neither provision concerns the definition of “contractor” in La. R.S.
37:2150.1(4)(a), or the meaning of “construction undertaking,” as used therein.
Specifically, La. R.S. 37:2156.1 concerns the requirements for issuance of a
contractor’s license, including that an applicant must “state the classification of work
the applicant desires to perform from a list of major classifications as follows . . . .”142
Section 2156.1(L) merely provides that, “The board may consolidate, add, or remove
subclassifications or specialties by rule as it deems appropriate.”143 Likewise, the
provision of the Louisiana Administrative Code cited by SBPG provides that, “Any
contractor possessing a major classification is permitted to bid or perform any of the
specialty type work listed under its respective major classification in R.S. 37:2156.2
140 R. Doc. 53-18. The Court notes that when SBPG filed this document into the record, it labeled it,
“Exhibit Bulletin 7-55.” Id.
141 R. Doc. 89 at pp. 2-3.
142 La. R.S. 37:2156.1(A).
143 La. R.S. 37:2156.1(L).
or any other work that might not be listed which is directly related to the major
classification it may hold as long as it is not prohibited by any rule, except as provided
in R.S. 37:2156.2(A)(IX)(B), (C), and (D).”144 SBPG’s reliance upon these two
provisions presupposes that St. Bernard Trucking is a contractor that would be
subject to their requirements. SBPG, however, has failed to present the Court with
any competent summary judgment evidence to show that St. Bernard Trucking is a
“contractor” or that the work performed by St. Bernard Trucking constitutes a
“construction undertaking,” as set forth in La. R.S. 37:2150.1(4)(a). Further, as
Sewell points out,145 SBPG submitted an exhibit that purports to be a complete copy
of Louisiana’s “Contractors Licensing Law and Rules and Regulations,” dated August
1, 2022, which makes no reference to the word “bulletin” and specifically provides
that, “As used in these rules and regulations, words and phrases shall be defined as
provided in R.S. 37:2150.1, in R.S. 37:2150-2192, and as otherwise defined in these
Rules and Regulations.”146
Based upon the foregoing analysis, the Court concludes that St. Bernard
Trucking is not a “contractor” under La. R.S. 37:2150.1(4)(a) because the work
performed pursuant to its contract with SBPG did not involve construction or a
“construction undertaking.” Accordingly, St. Bernard Trucking was not required to
have a commercial contractor’s license at the time it performed the work and neither
144 46 La. Admin. Code Pt XXIX, 301(A) (emphasis added).
145 R. Doc. 90 at p. 6.
146 R. Doc. 53-22 at p. 30 (emphasis added).
La. Civ. Code art. 7 nor La. Civ. Code art. 2030 support a finding that the contract is
an absolute nullity. SBPG’s arguments to the contrary are meritless.
B. SBPG Waived Its Defense Regarding Sewell’s Alleged Lack of
Capacity to Contract on Behalf of St. Bernard Trucking
In an apparent last ditch effort to avoid its contractual obligation to pay St.
Bernard Trucking for the work performed, SBPG raises the issue of Sewell’s capacity
to enter into the contract on behalf of St. Bernard trucking in May 2021.147 In its
Opposition brief, SBPG asserts, in bolded text that is underlined, that, “As a brief
aside, it was recently discovered that Barry Sewell did not acquire ownership of St.
Bernard Trucking until September 22, 2022, just two days before all of the work was
completed,” and that, “This fact alone warrants denial of the instant motion as Sewell
was not owner for the period of August 31, 2022 to September 21, 2022 and Sewell
was not the owner of St. Bernard Trucking when the contract was signed.”148 No
further argument or analysis is included in the Opposition brief. As an exhibit to its
Opposition brief, SBPG included a copy what purports to be a transfer of ownership
of St. Bernard Trucking from Donald Meyers, the owner of St. Bernard Trucking, to
Barry Sewell, as Manager of St. Bernard Trucking, which was notarized on
September 22, 2021.149 In its Supplemental Memorandum, however, SBPG asserts
that after struggling “to provide the Court with a coherent answer” regarding the
ownership dispute at the Final Pretrial Conference, SBPG is now asserting that
Sewell lacked the capacity to execute a contract for St. Bernard Trucking on May 17,
147 R. Doc. 89 at pp. 7-8.
148 R. Doc. 53 at p. 2.
149 R. Doc. 53-20.
2021.150 According to SBPG, “This is not a standing issue inasmuch as it is a capacity
issue and/or a proof of capacity issue.”151
In his Reply brief, Sewell seems to argue that the Court should reject SBPG’s
argument regarding legal capacity because SBPG failed to cite any properly
authenticated, competent summary judgment evidence to suggest that Sewell did not
own St. Bernard Trucking at all relevant times, or to suggest that Sewell does not
otherwise have the right to recover in this case.152 While not a model of clarity, Sewell
asserts that the undisputed evidence shows that he “owned an interest in St. Bernard
Trucking prior to performance of any services,” and, “More importantly, it is
undisputed that Plaintiff is now the sole owner of St. Bernard Trucking and has the
right to prosecute this action.”153 Sewell points out that SBPG did not raise the issue
of ownership as a contested issue of fact in its Opposition brief, which Sewell contends
explains the lack of authority for its position.154 Sewell contends that the undisputed
evidence shows that he had ownership at all relevant times and that he was a sole
proprietor of St. Bernard Trucking when this lawsuit was filed.155 In his
Supplemental Memorandum, Sewell argues that SBPG’s new defense based upon
capacity must fail because there is uncontroverted evidence establishing Sewell’s
150 R. Doc. 89 at p. 7.
151 Id.
152 R. Doc. 56 at pp. 7-8. The Court notes that Sewell asserts that, “Plaintiff did not cite any properly
authenticated, competent summary judgment evidence to suggest that Plaintiff did not own St.
Bernard Trucking at all relevant times or to even suggest that Plaintiff does not otherwise have the
right to recover in the instant matter.” Id. (emphasis added). The reference to “Plaintiff” in this
sentence appears to be a typographical error.
153 R. Doc. 56 at p. 8 (citing R. Doc. 49-3 at ¶ 1).
154 R. Doc. 56 at p. 8.
155 Id.
ownership of St. Bernard Trucking and because SBPG failed to properly plead
capacity as an affirmative defense.156
Although not mentioned by either party, Fed. R. Civ. P. 9 specifically provides
that a party seeking to challenge another party’s capacity to sue or be sued “must do
so by a specific denial, which must state any supporting facts that are peculiarly
within the party’s knowledge.”157 “If the defendant fails to plead that the plaintiff
lacks capacity in a timely manner, the objection is waived and the defense is lost.”158
This Court has previously held that, “If a party desires to raise an issue as to the
capacity of any party, the party shall do so by specific negative averment in its answer
or pre-answer motion.”159 Here, SBPG did not raise Sewell’s purported lack of
capacity to contract on behalf of St. Bernard Trucking in its Answer to the First
Amended Complaint160 or in a pretrial motion. Thus, to the extent SBPG, in its
Opposition to Plaintiff’s Motion for Summary Judgment, is challenging Sewell’s
capacity to bring this suit on behalf of St. Bernard Trucking, the Court finds that
SBPG has waived that objection by not timely asserting it.161
156 R. Doc. 90 at pp. 9-10 (citing R. Doc. 49-2 at ¶ 1; R. Doc. 49-4 at p. 6; Sam’s Style Shop v. Cosmos
Broadcasting Corp., 694 F.2d 998, 1004 (5th Cir. 1982)).
157 Fed. R. Civ. P. 9(a)(2).
158 Henderson v. Turner, Civ. A. No. 11-39, 2012 WL 3109482, at *2 (M.D. La. July 31, 2012) (Berrigan,
J.) (citing Lang v. Tex. & Pac. R.R. Co., 624 F.2d 1275, 1277 (5th Cir. 1980)).
159 In re Taxable Mun. Bond Securities Litigation, Civ. A. No. MDL 863, 1992 WL 124786, at *1 (E.D.
La. June 2, 1992) (Sear, J.).
160 R. Doc. 11.
161 See, MTO Maritime Transport Overseas, Inc. v. McLendon Forwarding Co., 837 F.2d 215, 218 (5th
Cir. 1988) (“F.R.Civ.P. 9(a) requires that a party desiring to raise the issue of capacity ‘shall do so by
specific negative averment.’ It is settled law that failure specifically to plead capacity waives the right
to object.”) (citing authority); Ralston Oil and Gas Co. v. Gensco, Inc., 706 F.2d 685, 692 (5th Cir. 1983)
(“Under Fed. R. Civ. P. 9(a), it was incumbent upon Gensco to plead specifically that Ralston lacked
the capacity or authority to recover for its absent principals. . . . The failure to plead lack of capacity
waives the right to object.”) (citing authority).
To the extent SBPG is asserting that Sewell lacked the capacity to enter into
a contract on behalf of St. Bernard Trucking with SBPG on May 20, 2021, the Court
likewise finds that SBPG has waived that defense. Rule 8(c) of the Federal Rules of
Civil Procedure lists 19 affirmative defenses that must be set forth in a responsive
pleading, including “any other matter constituting an avoidance or an affirmative
defense.”162 “To qualify as a defense under Rule 8(c)’s residuary clause, courts look
to the logical relationship between the defense and the cause of action and assess
whether failure to timely plead the defense will result in unfair surprise.”163 The
Fifth Circuit has held that failure to plead an affirmative defense constitutes a waiver
of that defense.164 In determining whether a party has waived an affirmative defense,
the Fifth Circuit has advised that, “the defendant does not waive an affirmative
defense if ‘[h]e raised the issue at a pragmatically sufficient time, and [the plaintiff]
was not prejudiced in its ability to respond.”165
Here, SBPG did not raise the issue of Sewell’s alleged lack of capacity to
contract on behalf of St. Bernard Trucking until the January 4, 2023 Final Pretrial
Conference, on the eve of trial. It was not until after the Final Pretrial Conference,
in a supplemental memorandum, that SBPG first articulated its defense of lack of
capacity to contract. “Central to requiring the pleading of affirmative defenses is the
162 Fed. R. Civ. P. 8(c)(1).
163 James v. McKenna, Civ. A. No. 02-318, 2003 WL 21850644, at *3 (E.D. La. Aug. 4, 2003) (Duval, J.)
(citing Oden Oktibbeha County, Mississippi, 246 F.3d 458, 467 (5th Cir. 2001); Ingraham v. United
States, 808 F.2d 1075, 1079 (5th Cir. 1987)).
164 Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir. 1999) (citing Trinity Carton Co. v. Falstaff
Brewing Corp., 767 F.2d 184, 194 (5th Cir. 1985)).
165 Lucas v. United States, 807 F.2d 414, 417 (5th Cir. 1986) (quoting Allied Chemical Corp. v. Mackay,
695 F.2d 854, 855-56 (5th Cir. 1983)).
prevention of unfair surprise.166 Here, both the Court and Sewell were surprised by
SBPG’s arguments at the Final Pretrial Conference regarding Sewell’s alleged lack
of capacity to contract on behalf of St. Bernard Trucking. The Court recognizes that
SBPG raised the issue regarding Sewell’s ownership of St. Bernard Trucking when it
filed its Opposition brief on November 4, 2022, but notes that it did so “[a]s a brief
aside.”167 Notably, SBPG made no mention of a lack of capacity defense until it filed
its Supplemental Memorandum on January 12, 2023. The Court therefore finds that
SBPG’s “Hail Mary pass” fails because it waived this defense by failing to raise it in
a timely manner.
Nonetheless, even if the Court had concluded that SBPG had not waived the
defense of lack of capacity by failing to raise it in a timely manner, the Court finds
that SBPG has waived this issue by not including it in the Pre-Trial Order.168 SBPG
claims that it received a copy of the purported transfer of ownership document “in
October of 2022 in discovery disclosures.”169 SBPG, however, did not include Sewell’s
alleged lack of capacity as a contested issue of material fact in its Statement of
Contested Facts, which was filed with its Opposition brief on November 4, 2022.170
SBPG also failed to include Sewell’s purported lack of capacity as a “Contested
Material Fact[]” or a “Contested Issue[] of Law” in the parties’ Pre-Trial Order, which
was filed on January 4, 2023171 and adopted by the Court on January 11, 2023.172 In
166 Ingraham, 808 F.2d at 1079.
167 R. Doc. 53 at p. 2.
168 See, R. Doc. 80.
169 R. Doc. 89 at p. 8.
170 R. Doc. 53-1 at pp. 3-4.
171 R. Doc. 80 at pp. 10-15.
172 R. Doc. 86.
the Fifth Circuit, “It is a well-settled ruled [sic] that a joint pretrial order signed by
both parties supersedes all pleadings and governs the issues and evidence to be
presented at trial.”173 “The claims, issues, and evidence are narrowed by the pretrial
order to expedite the proceeding.”174 According to the Fifth Circuit, “Once the pretrial
order is entered, it controls the scope and course of the trial.”175 As a result, “If a
claim or issue is omitted from the order, it is waived, even if it appeared in the
complaint.”176 The Court has already determined that SBPG waived the lack of
capacity to contract issue by failing to timely raise it. The Court now additionally
finds that because SBPG did not include Sewell’s alleged lack of capacity to contract
on behalf of St. Bernard Trucking as an issue in the Pre-Trial Order, the issue is also
waived.177
C. Sewell is Entitled to Summary Judgment on His Breach of Contract
Claim
In the First Amended Complaint, Sewell asserts a breach of contract claim
against SBPG based upon SBPG’s failure to pay for the work performed by St.
Bernard Trucking under the contract in dispute.178 To establish a breach of contract
173 Kona Technology Corp. v. Southern Pacific Transp. Co., 225 F.3d 595, 604 (5th Cir. 2000) (quoting
McGehee v. Certainteed Corp., 101 F.3d 1078, 1080 (5th Cir. 1996); Branch-Hines v. Hebert, 939 F.2d
1311, 1319 (5th Cir. 1991)) (internal quotation marks omitted).
174 Kona, 225 F.3d at 604 (citing Elvis Presley Enterprises, Inc. v. Capece, 141 F.3d 188, 206 (5th Cir.
1998)).
175 Kona, 225 F.3d at 604 (citing Fed. R. Civ. P. 16).
176 Kona, 225 F.3d at 604 (citing Elvis, 141 F.3d at 206; Valley Ranch Dev. Co. v. FDIC, 960 F.2d 550,
554 (5th Cir. 1992); Flannery v. Carroll, 676 F.2d 126, 129 (5th Cir. 1982)).
177 Finally, if there need be a further nail in the coffin on SBPG’s arguments, the Court recognizes that
the “Transferred of Ownership,” relied upon by SBPG for its entire argument regarding Sewell’s
capacity, states that the transfer of ownership occurred on May 5, 2021. See R. Doc. 53-20. The
contract was entered into on May 20, 2021. See R. Doc. 80.
178 R. Doc. 6 at ¶ 10.
claim under Louisiana law,179 Sewell must allege and prove the existence of a
contract, SBPG’s breach of that contract, and resulting damages.180 Here, Sewell has
alleged and proved the existence of a contract between St. Bernard Trucking and
SBPG, SBPG has failed to raise a genuine issue of material fact regarding the
existence of the contract, and the parties agree that, “On May 20, 2021, SBPG entered
into that certain contract with St. Bernard Trucking for emergency drainage and
sewage removal effective June 1, 2021.”181 It is undisputed that St. Bernard Trucking
performed all services requested under the contract182 and that St. Bernard Trucking
submitted reconciled invoices for the work performed between August 31, 2021 and
September 24, 2021 totaling $1,665,661.48.183 In his Statement of Uncontested
Material Facts, Sewell asserts that SBPG failed to pay St. Bernard Trucking for any
of the services performed under the contract.184 SBPG does not dispute this
contention in its statement of contested material facts,185 and seems to admit in its
Opposition brief that it has not paid St. Bernard Trucking for the work performed
under the contract.186 Accordingly, Sewell has met his burden of proving that there
is no genuine issue of material fact regarding the existence of a contract, SBPG’s
179 Although not addressed by the parties, because Sewell has invoked the Court’s diversity jurisdiction
over this matter (R. Doc. 6 at ¶ 2) and the parties raise state law issues, the substantive law of the
forum state, Louisiana, applies. Keenan v. Donaldson, Lufkin & Jenrette, Inc., 529 F.3d 569, 572-73
(5th Cir. 2008) (citation omitted); Wisznia Co., Inc. v. General Star Indem. Co., 759 F.3d 446, 448 (5th
Cir. 2014).
180 1100 South Jefferson Davis Parkway, LLC v. Williams, 2014-1326 (La. App. 4 Cir. 5/20/15), 165
So.3d 1211, 1216 (citing Favrot v. Favrot, 10-0986 (La. App. 4 Cir. 2/9/11), 68 So.3d 1099, 1108-09).
181 R. Doc. 80 at p. 7.
182 Id. at p. 8.
183 Id. at p. 9; See, R. Docs. 49-7 through 49-11.
184 R. Doc. 49-2 at pp. 4-5 (citing R. Doc. 49-3 at ¶¶ 10-11; R. Doc. 49-11).
185 R. Doc. 53-1 at pp. 3-4.
186 R. Doc. 53 at pp. 3-4 & 12.
breach of that contract, and resulting damages. Sewell is therefore entitled to
summary judgment on its breach of contract claim against SBPG.
The Court further finds that Sewell is entitled to damages for SBPG’s breach
of contract in the amount of $1,665,661.48, as requested in his Motion, subject to any
offset for payments made by SBPG directly to St. Bernard Trucking’s
subcontractors.187 In a diversity case like this one, pre-judgment interest on a money
judgment is determined by state law, while post-judgment interest on money
judgments recovered in federal court is governed by federal law under 28 U.S.C. §
1961(a).188 As explained by the Louisiana Supreme Court, “Unlike judgment in ex
delicto actions wherein legal interest attaches from judicial demand, interest is
recoverable on debts arising ex contractu from the time they become due, unless
otherwise stipulated.”189 This pre-judgment interest “is meant to fully compensate
the injured party for the use of the funds to which he is entitled but does not enjoy
because the defendant has maintained control over the funds during the pendency of
187 R. Doc. 49 at p. 1. See, R. Doc. 53 at pp. 3-4. The Court finds that awarding Sewell the original
invoice amount of $1,802,669.16 would place Sewell in a better position that he would have been if
SBPG had paid Sewell after Sewell submitted the reconciled invoices totaling $1,665,661.48 and sent
SBPG a demand letter seeking $1,665,661.48. See, R. Doc. 6-3. That would violate Louisiana’s general
principle of expectation damages. See, In re Bankston, 749 F.3d 399, 405 (5th Cir. 2014) (citing Gibbs
Const. Co., Inc. v. Thomas, 500 So.2d 764, 770 (La. 1987)).
188 Cave v. Davison, Civ. A. No. 99-1989, 2001 WL 1098058, at *16 (E.D. La. Sept. 18, 2001) (Livaudais,
J.) (citing authority).
189 Corbello v. Iowa Production, 2002-0826 (La.2/25/03), 850 So.2d 686, 706, superseded by statute on
other grounds as stated in State v. Louisiana Land and Exploration Co., 2012-0884 (La. 1/30/13), 110
So.3d 1038; Sharbono v. Steve Lang & Son Loggers, 97-0110 (La. 7/1/97), 696 So.2d 1382, 1386 (citing
authority). See, IFG Port Holdings, LLC v. Lake Charles Harbor & Terminal Dist., Civ. A. No. 16-cv-
146, 2022 WL 780926, at *4 (W.D. La. Mar. 14, 2022) (Kay, M.J.) (“the court finds that this action
arises ex contractu for the purpose of computing judicial interest. The court therefore finds that
interest should be calculated from the date of loss per the Port’s submissions, not the date of judicial
demand.”).
the action.”190 “In contrast, postjudgment interest is a prospective award whose
purpose is to encourage prompt payment of amounts awarded in the judgment, and
to compensate the victorious party for the other party’s use of funds to which the
victor was entitled under the judgment.”191 The uncontroverted evidence before the
Court shows that Sewell submitted reconciled invoices to SBPG totaling
$1,665,661.48 for the work performed under the contract sometime between October
20, 2021 and November 5, 2021.192 The Court finds that Sewell is entitled to recover
prejudgment interest on the damages for breach of contract from the date they
became due to the date of judgment at the rate set forth in La. R.S. 13:4202, as well
as post-judgment interest at the federal rate.
To the extent that Sewell seeks to recover attorney’s fees “pursuant to
Louisiana Revised Statutes § 9:2781,”193 that statute is inapplicable in this case
because Sewell has not asserted an open account claim in its First Amended
Complaint.194 The First Amended Complaint contains only a breach of contract
claim.195 Accordingly, the Motion is denied to the extent that Sewell seeks an award
of attorney’s fees.
190 Sharbono, 97-0110, 696 So.2d at 1386 (citing authority); Gravolet v. Fair Grounds Corp., 2009-0392
(La. App. 4 Cir. 7/14/04), 878 So.2d 900, 908 (citing L & A Contracting Co. v. Ram Indus. Coatings,
Inc., 1999-0354 (La. App. 1 Cir. 6/23/00), 762 So.2d 1223, 1238-39).
191 Sharbono, 97-0110, 696 So.2d at 1386 (citing authority) (emphasis in original).
192 See, R. Doc. 6 at ¶¶ 7-9; R. Doc. 6-2; R. Doc. 6-3 at p. 3; R. Doc. 80 at p. 9.
193 R. Doc. 6 at ¶ 16.
194 See, generally, R. Doc. 6.
195 Id. at ¶ 10.
IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that the Motion
for Summary Judgment of Plaintiff, filed by Barry Sewell!9* is GRANTED in part
and DENIED in part. The Motion is DENIED to the extent that Sewell seeks
summary judgment on his request for attorney's fees under La. R.S. 9:2781. The
Motion is otherwise GRANTED and Sewell is entitled to judgment as a matter of law
on its breach of contract claim against SBPG.
IT IS FURTHER ORDERED that Sewell shall have ten (10) days from the
date of this Order to provide the Court with a proposed final judgment that is
commensurate with this Order. Sewell shall send the proposed final judgment to the
Court’s email address, efile-Vitter@laed.uscourts. gov.
New Orleans, Louisiana, February 3, 2023.
(kad Vetter
WENDY B. VITTER
United States District Judge
196 R, Doc. 49.