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Care Services, Inc. v. DBR Associates, L.L.C.

Court of Appeal of Louisiana, Fifth Circuit

February 11, 2015

CARE SERVICES, INC.
v.
DBR ASSOCIATES, L.L.C

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 701-211, DIVISION " M" . HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING.

GEORGE I. PIVACH, II, TIMOTHY THRIFFILEY, ATTORNEYS AT LAW, Belle Chasse, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.

MARK E. VAN HORN, DONALD J. MIESTER, JR., ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.

Panel composed of Judges Fredericka Homberg Wicker, Robert M. Murphy, and Hans J. Liljeberg.

OPINION

Page 937

FREDERICKA HOMBERG WICKER, Judge.

[14-757 La.App. 5 Cir. 2] This appeal arises from a suit on an open account, filed on behalf of Plaintiff-Appellee Care Services, Inc. (" Care" ), a plumbing company, against Defendant-Appellant DBR Associates, L.L.C. (" DBR" ), a general contracting firm, seeking $10,580.30 for services performed in 2008 to alleviate drainage problems at Southwood Patio Apartments (" Southwood" ). The trial court rendered judgment in favor of Care and against DBR in the full amount of $10,580.30, plus $8,000 in attorney's fees, plus all costs and judicial interest. For reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

DBR is a general contracting firm. In 2004, Summit Property Management (" Summit" ), the agent for Southwood, hired DBR to construct an administrative office/community center building at the Southwood complex. Southwood had recurring drainage problems that frequently

Page 938

caused the property to flood and Summit often used Care to resolve plumbing and drainage issues. Delayed [14-757 La.App. 5 Cir. 3] by Hurricane Katrina, DBR commenced pile-driving operations in February 2008. Subsequently, flooding problems arose at the job site, leading to the present litigation.

Though there is conflicting testimony, on March 7, 2008, either a Southwood maintenance worker or a Summit manager (hereinafter " Summit/Southwood" in reference to this call) called Care explaining that storm drains in the office parking area were clogged.[1] Unable to clear the drain with its own equipment, Care enlisted Blue Flash Sewer Service (" Blue Flash" ), a subcontractor that operated more powerful equipment. Blue Flash was similarly unsuccessful and suspected that something from the construction operation may have broken the drain line. Majorie Tolar, co-owner of Care, testified that Blue Flash's camera showed that the line appeared to be obstructed by a piling. For its effort to unstop the drain on March 7, 2008, Blue Flash billed Care $1,655. Care, in turn, initially billed this work to Southwood. However, after it was settled that DBR was responsible for the pile-driving on the site, Care would later include these charges from Blue Flash in its bill to DBR.

The flooding continued. As a result, on April 2, 2008, Connie Williams, DBR's project manager, sent a facsimile to Care requesting Care to visit the Southwood complex, determine if the problem could be corrected by modifying a drain manhole, and, if so, provide an estimate to make the changes. All parties concede that this was the first time DBR contacted Care directly to solicit its [14-757 La.App. 5 Cir. 4] services. Moreover, the record is unclear on whether an estimate was ever given.[2] Regardless, Care took on the project and enlisted Blue Flash for a second time to assist in the project. On April 24, 2008, Blue Flash confirmed that a piling struck and blocked the drain line. Again, Blue Flash billed Care for its services, this time in the amount of $1,200. And again, Care would later include these charges in its bill to DBR.

Eventually, Care installed a pump and subsurface drainage to alleviate the flooding. Once the issue was resolved and its work was completed, Care sent DBR an invoice for the work it performed at Southwood, totaling $10,580.30 (" Invoice 95309" ). Invoice 95309 listed the hours worked per day by each Care employee, each employee's hourly rate, and the materials used. In addition, the invoice included a " Large Jet Charge 3-7-8 & 4-24-8" for a ...


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