PARRO, J.
In this appeal arising out of an agreement by FMC Technologies, Inc. (FMC) to provide six new passenger boarding gates (jetways) for installation by J. Caldarera & Company, Inc. (Caldarera) at the Greater Baton Rouge Metropolitan Airport, John Bean Technologies Corporation (Bean), successor in interest to FMC,
This appeal involves the last remaining issues arising out of the renovation and construction of the Greater Baton Rouge Metropolitan Airport, on which Caldarera was hired as the completion contractor after the original contractor defaulted and the project was taken over by its surety.
FMC, through its Jetway Airport System Division, manufactured and supplied jetways for the air transportation industry. The business relationship between FMC and Caldarera began in December 1999, when FMC entered into negotiations with Caldarera to furnish six jetways for the airport project. Although FMCs original proposal included installation of the jetways by FMC, Caldarera eventually decided that it would be responsible for the installation. Following an exchange of correspondence between the parties, they ultimately agreed that FMC would furnish six jetways for $1,894,222.58, which included a $65,000 buy-back credit for three existing jetways that FMC was to purchase. The airport authorized Caldarera to obtain the six new jetways from FMC, and a notice to proceed in accordance with the FMC proposal was issued to Caldarera by the airport. On January 18, 2000, Caldarera forwarded correspondence to FMC that served as its notice to proceed with fabrication and delivery of the jetways. FMC eventually delivered the jetways to the airport and invoiced Caldarera as the deliveries were made. Caldarera paid the first two invoices.
However, the deliveries were delayed and Caldarera claimed that the six jetways were defective, requiring it to make time-consuming and costly repairs before and after installation. Also, FMC had informed Caldarera that it would not purchase the three existing jetways. Therefore, Caldarera withheld payment of the final invoice, leaving a remaining balance of $337,297.77. After making several written demands for payment, FMC filed its petition for intervention, claiming Caldarera owed it this amount for the balance due on the contract. Caldarera answered, alleging it was not liable for this balance, and filed a reconventional demand against FMC for various damages, including the costs of repair work it had performed on the jetways, as well as storage and transportation costs for the three jetways that FMC had refused to purchase and had left at the airport.
After numerous legal skirmishes between the parties, the case was finally tried to a jury over the course of five days in November 2009. Because the parties could not agree on a unified verdict form, the judge gave the jury both sets of verdict forms provided by the parties. On the verdict form provided by FMC, the jury found that: there was a contract between the parties for FMC to furnish six new jetways for Caldarera to install on the airport project; Caldarera was paid in full by the airport for the installation of the six jetways; Caldarera was not liable to FMC for the $337,297.77 outstanding balance on the contract that it had failed to pay to FMC; Caldarera was entitled to some payment for transportation and storage of the three jetways that it had removed from the airport site; and Caldarera was not entitled to liquidated damages in connection with the contract, but was entitled to back charges in the amount of $51,698.76.
On the second verdict form that had been submitted by Caldarera, the jury found that: FMC had an obligation to furnish six new jetways in ready-to-install condition for Caldarera to install at the airport; FMC failed to furnish the six new jetways in ready-to-install condition by Caldarera; and FMC promised that the six jetways would be delivered by certain dates, but failed to deliver them by the promised dates and did not notify Caldarera that the deliveries ultimately would be 110 days late. With reference to Caldarera's reconventional demand, the jury found that Caldarera was not entitled to $500 per day for 110 days of late charges for untimely delivery of the jetways and FMC was not liable under any other damage calculation for the late delivery of the jetways. The jury also found that: not all of the major components of the jetways were furnished new by FMC; some or all of the jetways were defective or required repair; Caldarera repaired or paid for the repair of defects and problems with the jetways; and Caldarera was entitled to payment of $51,698.76 for these repairs.
With respect to particular claims in Caldarera's reconventional demand, the jury found that: Caldarera was not entitled to recover anything for electrical circuitry work; Caldarera was not entitled to $74,000 to replace the teleradial rotunda and related equipment, but was entitled to $37,000 for that claim; Caldarera was not entitled to $13,200 for replacement of rooftop air conditioning units furnished by FMC, but was entitled to $9,896.94 for that claim; Caldarera was not entitled to any amount for interior damage to the jetways or for replacing missing interior components; Caldarera was not entitled to $4,780 to replace a turning wheel assembly furnished by FMC, but was entitled to $4,801.82 for that claim; Caldarera was not entitled to recover any amount for repair of roof leaks at the air conditioning units; Caldarera was not entitled to storage costs for the three jetways; and although Caldarera was not entitled to $53,620 for loading, transporting, blocking, re-blocking, and protecting the three existing jetways, it was entitled to $23,240 for that claim. Finally, the jury found that Caldarera was not entitled to recover from FMC the $55,000 in late charges that the airport had imposed on it, and in fact, was not entitled to any recovery from FMC for late charges.
On May 11, 2010, the judge signed a judgment ordering FMC to pay Caldarera $139,938.76, together with court costs and legal interest from the date of judicial demand. This award included $65,000 owed by FMC for the purchase of the three used jetways, $23,240 for Caldarera's transportation, maintenance, and protection of those jetways, and $51,698.76 for Caldarera's repairs to the six new jetways.
In this case, neither party has challenged the jury's factual findings. The assignments of error all address the trial judge's alleged legal errors. With regard to questions of law, the appellate review is simply a review of whether the trial court was legally correct or legally incorrect.
The crux of FMC's appeal is that the trial court erred by failing to give the jury a properly worded jury interrogatory on its claim, instead sending two sets of verdict forms to the jury after directing a verdict on one of Caldarera's claims, which resulted in an invalid judgment that should be reversed by this court. FMC urges this court to review the facts of this case de novo, claiming the trial court committed "plain and fundamental" error in its manner of presenting the interrogatories to the jury and in failing to properly apply the law to the facts, as found by the jury.
The jury interrogatory that underlies this controversy was one of several submitted to the court by FMC on October 20, 2009, and asked:
Evidence was presented to the jury on November 3-6, 2009, and both parties rested their cases late Friday morning, November 6. Both parties had orally moved for directed verdicts in their favor; Caldarera had also filed a memorandum in support of its motion before court convened on November 6, and FMC's counsel had not yet seen that brief. Therefore, the trial judge told both attorneys to fax directly to her whatever they wanted the court to consider over the weekend, and to get together and resolve any differences they had concerning jury instructions and verdict forms. Court was then adjourned for the weekend and scheduled to resume with closing arguments at 1:30 p.m. on Monday, November 9, 2009.
When court was convened on Monday afternoon, the trial judge advised counsel that she had reviewed the memoranda submitted by both parties, and after considering the evidence, had decided to grant the motion for directed verdict filed by Caldarera with respect to FMC's purchase of the three used jetways. All other motions for directed verdict were denied. Having granted the directed verdict concerning FMC's obligation to purchase the three used jetways for $65,000, the court noted that the verdict forms would have to be revised to delete all items pertaining to that claim. She also stated that the verdict forms should be merged and made more concise.
At this point, the jury was brought in for closing arguments. Following the arguments, the trial judge held a charge conference with the attorneys and discussed the proposed jury instructions submitted by the parties. Certain instructions were deleted; many others were revised. Eventually an agreement was reached on the instructions that would be given to the jury. The trial judge then indicated her disappointment that the attorneys had not modified and merged the verdict forms, as she had asked them to do. Beginning with the verdict form submitted by FMC, the parties were able to agree on the first question, with a minor revision, and agreed to delete the second question. The third interrogatory is the one that forms the basis of this appeal. The colloquy concerning that question proceeded as follows:
Both counsel acquiesced to this change, but continued quibbling and objecting to other suggestions and revisions. Finally, the trial judge asked for a clean copy of both verdict forms and stated:
The jury was returned to the courtroom, and the trial judge read the stipulations of the parties and the jury instructions that had been agreed upon during the charge conference. The trial judge then read the verdict forms that had been submitted by both parties, without any of the alterations that had been discussed during the charge conference, and retired the jury for deliberations. Counsel for FMC objected to all the interrogatories that had been submitted by Caldarera.
Following its deliberations, the jury returned with its verdict. To question number three on the verdict form, the jury answered "No," thus indicating that Caldarera did not have to pay FMC $337,297.77. In addition to the directed verdict that FMC owed Caldarera $65,000 for the three used jetways, the jury found it owed $51,698.76 in back charges for various specific items of repair work and equipment replacement Caldarera had done, plus $23,240 for transporting, storing, blocking, and maintaining the three used jetways, a total of $139,938.76.
FMC contends the trial judge erred in awarding this amount to Caldarera, because the $337,297.77 that Caldarera had withheld from the total contract amount owed to FMC was for the purpose of reimbursing Caldarera for funds it had expended on exactly the items for which the jury found FMC should pay Caldarera $139,938.76. Since the amount found by the jury was less than the contract balance amount withheld by Caldarera, the court should have found that a balance of $197,359.01 was owed by Caldarera to FMC. FMC contends that, because question number three on the verdict form did not include a blank space where the jury could specify a different amount that Caldarera should pay FMC, there was no place for the jury to make this computation and award FMC the balance owed on the contract, after deducting the amounts FMC owed Caldarera. Therefore, although the jury's findings were reasonable, the court misapplied those findings in rendering judgment.
Caldarera argues that, to the contrary, the jury clearly was not confused by the multiple jury verdict forms or by the wording of question number three. The jury simply found that Caldarera was not liable to FMC for the amount withheld on the contract, but that FMC was liable to Caldarera for $139,938.76. Therefore, the court's award of this amount was appropriate.
A somewhat similar situation was discussed by the Louisiana Supreme Court in the recent case of
In the matter before us, however, the trial judge did not hold the charge conference with the attorneys until
The supreme court in
In the case before us, there was no error in the jury instructions, nor were there any objections to the instructions, because counsel and the court had worked through them during the charge conference and were in agreement. The error is in the court's failure to advise counsel before closing arguments concerning the precise content of the verdict forms and in the court's refusal to modify a key interrogatory on the verdict form, after initially agreeing to make such a modification.
After reviewing the verdict forms and the jury's responses to the specific questions, we are impressed by the jury's ability to harmonize the two sets of verdict forms and reach a consistent and cogent conclusion on each item of damages for which the parties were claiming recovery. However, once the jury had determined that Caldarera did not have to pay FMC the amount of the contract balance it had withheld, the logical follow-up question would have been whether some lesser amount should be paid. This would have allowed the jury to consider whether some portion of the contract balance should be paid to FMC, after taking into consideration the amounts FMC owed Caldarera for repairs, storage, and replacement parts. Yet, even without this follow-up question, it is possible to determine the exact amounts found by the jury and it is possible to render a judgment in accord with the verdict. Therefore, we do not find that the omission of this follow-up question constituted an abuse of discretion by the district court.
But our inquiry cannot end there. Caldarera contends that the judgment accurately reflects the jury's verdict that it was not liable to FMC and must be upheld. FMC argues the court ignored the facts and the law by failing to apply the amounts owed by FMC as a credit or setoff against the balance owed to FMC by Caldarera.
Louisiana statutory law and jurisprudence recognize three kinds of setoff, or compensation: legal, which is effected by operation of law; contractual, which is effected by the will of the parties; and judicial, which is effected by the courts.
Caldarera admitted that it withheld $337,297.77 from the balance it owed FMC on the contract, because of amounts it believed FMC owed it for defective equipment, repairs it was forced to make, delays in deliveries, and FMC's reneging on its agreement to purchase the three used jetways. The jury's answer that it was not liable
Accordingly, this court must reverse that portion of the judgment of the trial court that ordered FMC to pay Caldarera $139,938.76. Since the jury's factual findings were not challenged and this court has all the information needed to render a correct judgment, we will render judgment declaring compensation, such that the obligations of FMC and Caldarera are extinguished to the extent of the lesser amount, resulting in Caldarera being ordered to pay FMC $197,359.01, plus legal interest from the date of judicial demand. See LSA-C.C. arts. 1893 and 1902.
FMC also complains that the court erred in ordering it to remove the three used jetways from the premises of Caldarera, claiming that this amounts to an order for specific performance that was not prayed for and went beyond the court's authority in this case. We disagree. Caldarera's reconventional demand asserted that FMC was liable to it for $926,700 for the costs of loading, transporting, and storing the three used jetways that it had failed to remove from the airport, despite Caldarera's repeated requests that it do so. It sought additional damages for ongoing storage and protection costs to shield the jetways from the effects of weather, especially hurricanes. Clearly, the obligation of FMC to take possession of the jetways it had agreed to purchase was at issue in this case. Moreover, Caldarera's Chief Executive Officer, Joseph Caldarera, testified that "there's no question there's an agreement to pick up the [jetways]. ...
FMC's agreement to purchase and take possession of the three used jetways was supported by the evidence, and Caldarera requested relief for its failure to honor those agreements. Accordingly, we find no error in the portion of the judgment ordering FMC to remove the three used jetways from Caldarera's premises.
Based on the foregoing, we reverse the portion of the judgment that ordered FMC to pay Caldarera $139,938.76, together with court costs and legal interest from the date of judicial demand. We hereby render judgment, ordering Caldarera to pay FMC $197,359.01, plus legal interest from the date of judicial demand. In all other respects, the judgment is affirmed. Trial court costs for this matter and costs of this appeal are assessed equally to both parties.