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Transier v. Barnes Bldg., LLC

Court of Appeals of Louisiana, Third Circuit

June 10, 2015

SHERRI TRANSIER
v.
BARNES BUILDING, LLC, ET AL

Page 1250

[Copyrighted Material Omitted]

Page 1251

APPEAL FROM THE THIRTY-FIFTH JUDICIAL DISTRICT COURT, PARISH OF GRANT, NO. 21503. HONORABLE WARREN D. WILLETT, DISTRICT JUDGE.

Richard A. Rozanski, Stephen D. Wheelis, Shawn M. Bordelon, Wheelis & Rozanski, APLC, Alexandria, Louisiana, Counsel for Plaintiff/Appellant: Sherri Transier.

Herman M. Savoie, Jr., Attorney at Law, Alexandria, Louisiana, Counsel for Defendants/Appellees: Michael Barnes, Barnes Building, LLC.

Court composed of Jimmie C. Peters, Billy Howard Ezell, and Phyllis M. Keaty, Judges. PETERS, J., concurs in the result.

OPINION

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[14-1256 La.App. 3 Cir. 1] PHYLLIS M. KEATY, Judge.

The plaintiff/homeowner, Sherri Transier, appeals a judgment rendered in favor

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of the defendant, Barnes Building, LLC, and against her in the amount of $1,443.85 after the trial court offset awards in favor of each of them in this dispute over a construction contract. For the following reasons, we affirm in part, reverse in part, and render.

FACTS AND PROCEDURAL HISTORY

Michael Barnes, the owner of Barnes Building, LLC, submitted a Bid/Proposal to Transier regarding the construction of a home for her according to plans that had been drawn by James Foster, a draftsman. While the original plans that Barnes reviewed contained a second floor, because of Transier's financial constraints, the final plans had been modified to provide for a single-story home with the notation that proper floor joists be provided for a future second story.[1] Transier signed and accepted the bid on March 28, 2010. The bid listed the total cost of labor and materials for the project as $323,500.00 to be paid in five installments of $62,700.00, which became due at specified stages in the construction, plus a final payment of $10,000.00 upon completion.

Transier paid the first installment on April 13, 2010, before construction began, and the second installment on May 12, 2010, when the foundation was poured. At trial, Transier testified that during phase two of the construction, she became concerned after noticing dips and valleys in the metal roof and irregular overlapping and gapping in the roof's metal sheeting where it appeared to have been forced together. She stated that when she expressed her concerns to Barnes, [14-1256 La.App. 3 Cir. 2] he was dismissive and insisted that the roof was structurally sound and would look better once he was finished with it. Nevertheless, Barnes arranged for Transier to meet him at the construction site with Bernard Mayeaux, whom he had hired as the inspector for the project. Transier testified that Mr. Mayeaux concurred with Barnes' assessment that the home's roof, framing, and bracing were fine and that Mr. Mayeaux signed a report saying the home's framing passed inspection.

After the meeting with Barnes and Mr. Mayeaux, Transier hired Charles Sandifer, a certified building official with the Kisatchie-Delta Regional Code Compliance Office, to inspect her home to determine whether any local or state construction codes had been violated. Mr. Sandifer inspected the property on July 20, 2010, and found eighteen violations, most of which concerned the ceiling joists and rafters being overspanned, which he noted in an inspection report wherein he determined that the home failed inspection.

On July 23, 2010, Barnes sent Transier a letter insisting that the home was " beyond the black in stage," which triggered her responsibility to pay the third installment of the contract. Barnes noted that the amount due on the third draw had been adjusted to subtract the door allowance and to account for change orders for the windows, for Styrofoam insulation, for electrical materials and labor, for a different gauge of metal for the roof, and to cover the cost of materials and labor for installation of the metal roof. In total, Barnes sought payment of $97,219.65, which he demanded that Transier pay within three days of her receipt of his letter. He suggested, however, that Transier withhold $2,000.00 of the requested amount until she was " one hundred percent

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(100%) satisfied." Finally, Barnes informed Transier that if she wanted to use Versavent-brand ridge vents for the roof, he would need an additional advance payment of $850.00.

[14-1256 La.App. 3 Cir. 3] Transier mailed a copy of Mr. Sandifer's inspection report[2] to Barnes on July 26, 2010, " formally requesting" that Barnes provide her with a written proposal of how he intended to remedy the code violations within three days of receipt of her letter. Transier explained that because their contract called for the first five payments to be made in advance of any labor and materials to be provided, she would not tender the third draw to Barnes until the existing construction was blacked-in,[3] met or exceeded all applicable building codes, and received a passing inspection by an inspector of her choosing. Transier asked Barnes to provide her with receipts for all of the materials and contract services that had been purchased to date, along with proof of payment for all employee labor that had been utilized. She also sought the specifications related to the materials that Barnes had purchased for the home, explicitly requesting the engineered truss drawings, the paint and metal warranties for the metal roof, and the load capacity of the engineered floor joists,. Transier insisted that she did not want the door allowance removed from the contract and that she would pay any additional costs directly to the merchant upon arrival as they had previously discussed. Finally, Transier told Barnes that while she did want him to use Versavent ridge vents, he should postpone completion of the roof " until all code deficiencies are satisfactorily addressed."

By letter dated July 29, 2010, Barnes advised Transier of how he proposed to remedy each code violation. With regard to the engineered floor joists, Barnes [14-1256 La.App. 3 Cir. 4] noted that he was waiting to receive data regarding the load capacity from the truss manufacturer but that he had been assured, by phone, " that there is no problem." Barnes offered to meet with Transier and her inspector after he had completed the remedial work and that he would " then make all necessary corrections." In the letter, Barnes stated, " I did not design your home, I am trying to satisfy your requirements for future expansion."

On August 2, 2010, Bob Meeker, a building official with the Grant Parish Permit Office, issued a Stop Work Order instructing that work on Transier's residence immediately cease after inspecting the property and concurring with Mr. Sandifer's report. The next day, Transier informed Barnes that she accepted his proposed remedies except for Items #2 and #9, relating to the overspanned roof rafters. Transier explained that she had met Mr. Meeker and Mr. Sandifer at the construction site and that they told her that Barnes should have used two-by-ten rather than two-by-six rafters. She further noted that Barnes' proposal to supplement the originally installed two-by-six rafters with additional braces was unacceptable to

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her because that would reduce the size and functionality of her future upstairs expansion. Barnes then retained Foy Gadberry, a structural engineer and building official, to review Mr. Sandifer's inspection report and make recommendations on how Barnes could resolve the violations noted therein. Upon inspecting the construction site, Mr. Gadberry agreed with most of Mr. Sandifer's findings.

Thereafter, Transier and Barnes secured legal representation, and attempts were made to commence remediation of the code violations and resume construction on Transier's home, but to no avail. According to correspondence exchanged between their attorneys, Barnes was " willing and able to begin repairs" [14-1256 La.App. 3 Cir. 5] if the " Cease and Desist Order" [4] was lifted. However, Transier had been told by Mr. Meeker that Barnes had to correct the code violations and the home had to receive a passing inspection before the Stop Work Order would be lifted. Barnes never returned to the construction site, testifying at trial that he did not do so because of nonpayment and fear of arrest. As a result, Transier obtained a contractor's license and a building permit in her own name and subcontracted out for the repair of the existing code violations and the completion of her home. In the meantime, Transier filed an Incident Report against Barnes with the Grant Parish Sheriff's Office on September 30, 2010. She alleged that Barnes had embezzled funds that she had given him for the construction of her home. She further alleged that after being informed that Mr. Sandifer found eighteen code violations upon inspection of the home's framing, Barnes abandoned the construction and left the home " in an unsuitable condition and exposed to the weather." According to the Incident Report, Transier had recently received demands from a roofing company and an electrical supply company that Barnes had used, seeking immediate payment of a total of $14,438.02.

Transier filed a petition for damages against Barnes on May 6, 2011, wherein she alleged that he was guilty of bad-faith breach of contract and fraud. She sought damages to cover the expenses that she incurred in correcting the code violations, which she estimated to total $65,361.49, as well as an amount to compensate her for the emotional distress suffered as a result of Barnes' actions. Barnes filed an answer and reconventional demand in which he claimed that Transier had breached the contract by failing to pay for work he did during the [14-1256 La.App. 3 Cir. 6] third phase of the construction totaling $97,219.65. Thus, Barnes claimed that any award to Transier should be offset by that amount.

The matter proceeded to a bench trial on March 26, 2014. Testimony was elicited from both Transier and Barnes, as well as from Mr. Foster, who drafted the house plans; Mr. Meeker, the building official who issued the Stop Work Order; Mr. Lane Howell, the carpenter whom Transier hired to bring the construction to code; Mr. Sandifer, whom Transier called as an expert building code inspector; and Mr. Gadberry, whom Barnes called as an expert structural engineer and building official. By agreement of the parties, the evidence remained open for the taking of the deposition of Andy Mason, a former contractor who Transier hired to repair her roof. After receiving Mr. Mason's deposition, the trial court issued written reasons

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for judgment on May 1, 2014. The trial court found that Transier was entitled to $33,686.15 in damages for the expenses she incurred in curing the deficiencies noted in Mr. Sandifer's inspection report. It further found that Barnes was entitled to $35,130.00 in damages on his reconventional demand. After offsetting those amounts, the trial court determined that Barnes was entitled to judgment against Transier in the amount of $1,443.85. Finally, the trial court directed the parties to bear their own costs " [g]iven the ...


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