[Copyrighted Material Omitted]
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 699-967, DIVISION " B" . HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING.
JOSEPH M. GUILLOT, ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.
RICHARD B. EASON, II, ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.
Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg.
JUDE G. GRAVOIS, J.
[15-24 La.App. 5 Cir. 2] Defendant/plaintiff-in-reconvention, Andy Cousin, appeals an August 8, 2014 trial court judgment that dismissed his reconventional demand against plaintiff/defendant-in-reconvention, Carrier Corporation (" Carrier" ). Originally, Carrier sued Mr. Cousin on an open account, alleging that it sold him air-conditioning equipment for installation in his home under construction, and that he failed to pay the entirety of the amount due on the account. Mr. Cousin reconvened against Carrier, alleging that Carrier breached its contract with him by: 1) failing to honor an extended warranty that he allegedly purchased on the equipment; 2) failing to supply various items/services in connection with the controls contract he entered into with Carrier for operation of the equipment (namely, failing to provide energy recovery units and bypass dampers, and failing to provide coordination and training for the controls); and 3) refusing to accept the [15-24 La.App. 5 Cir.
3] return of one of the air-conditioning units that was changed out before the units were activated.
Prior to trial, Carrier's main demand was satisfied. After trial on the merits of Mr. Cousin's reconventional demand, the trial court ruled in favor of Carrier, finding that Mr. Cousin failed to prove that he purchased an extended warranty on the Carrier air-conditioning units, that Carrier did not breach the controls contract, and that Carrier was not liable to Mr. Cousin for the return and refund of one of the 5-ton air-conditioning units installed in the home.
On appeal, Mr. Cousin seeks reversal of the trial court's judgment and a ruling from this Court finding that: 1) he purchased an extended warranty from Carrier, thereby entitling him to $23,339.92 from Carrier for repairs made to the air-conditioning units during the extended warranty period; 2) Carrier breached the controls contract, thereby entitling him to an $8,000.00 refund from Carrier; and 3) he is entitled to a refund of the $2,399.00 purchase price of one of the 5-ton air-conditioning units installed at his home that Carrier refused to accept the return of.
Carrier answered the appeal, asserting that Mr. Cousin's appeal is frivolous, and seeking damages therefor.
For the following reasons, we affirm the trial court's judgment, finding no manifest error in the trial court's findings of fact and conclusion that Mr. Cousin failed to bear his burden of proof on all claims made in his reconventional demand. Further, we decline to award Carrier damages for a frivolous appeal.
In 2001, Mr. Cousin entered into a contract with Natal's Air Conditioning (" Natal's" ) for the selection and installation of central air-conditioning equipment for his home under construction at 2908 Palm Vista in Kenner, Louisiana. Donnie Natal of
Natal's, working with Carrier, selected 11 Carrier 5-ton air-conditioning [15-24 La.App. 5 Cir.
4] units for use in the home, and in due course, Natal's installed the 5-ton units in Mr. Cousin's home under construction. The units were soldered into place, though testimony indicated that they were never " started up" due to problems in the installation that were revealed when the systems were checked for readiness in 2002. In February or March of 2002, Mr. Cousin fired Natal's from the job before the entire contract between them was performed, allegedly due to poor workmanship and inadequate supervision by Natal's.
Mr. Cousin then hired Flettrich Services (" Flettrich" ) to complete the air-conditioning installation work. Harold Flettrich, president and owner of Flettrich, testified at trial that when he checked the system installed by Natal's for Mr. Cousin in 2002, prior to attempting to start the units up, he discovered that the wrong size copper tubing had been installed, and that there were numerous leaks in the refrigerant lines due to shoddy workmanship in the installations, as well as other problems, including a lack of pressure, that prevented the system from functioning properly. Mr. Flettrich, who testified for Mr. Cousin at trial, also determined that the 5-ton units were too large for the needs of the home. He recommended that they be removed and replaced with 3-ton units instead, which was done following a meeting between Mr. Cousin, Mr. Flettrich, unnamed Carrier representatives, and Max Kepler, Mr. Cousin's builder.
According to Mr. Cousin, the 5-ton units were uninstalled or disconnected and removed from the home and stored in a warehouse. Carrier later refused to accept return of the 5-ton units, after allegedly initially advising Mr. Cousin at the aforementioned meeting that Mr. Cousin could return them and get a refund therefor, minus a small restocking fee. Mr. Cousin testified that he gave away or sold ten of the 11 5-ton units, thus partially mitigating his damages, leaving one unit for which he now seeks return and reimbursement from Carrier.
[15-24 La.App. 5 Cir. 5] Also in 2001, Mr. Cousin entered into a separate contract with Carrier for the controls for the air-conditioning equipment. This contract provided for a programmable system with software, working with an interface by Crestron (a company not affiliated with Carrier), that would provide coordinated temperature control for the 11 units. Mr. Cousin argues that although he paid the controls contract in full, Carrier failed to fulfill several of the line items of the contract, specifically that Carrier failed to provide energy recovery units, bypass dampers, and coordination and training with Crestron, entitling him to a refund of $8,000.00 from the price of the controls contract.
According to testimony adduced at trial, Mr. Cousin moved into the home sometime in 2004. He testified that the air-conditioning system has broken down numerous times between then and the 2014 trial date, necessitating well over $38,000.00 in service, although a portion thereof was for regular maintenance of the system. He seeks reimbursement in the amount of $23,339.92 for repair ...