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Phillips v. Doucette and Associated Contractors, Inc.

Court of Appeals of Louisiana, Fifth Circuit

October 25, 2017

GERALD AND DONNA PHILLIPS
v.
DOUCETTE AND ASSOCIATED CONTRACTORS, INC.

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 655-314, DIVISION "G" HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, GERALD AND DONNA PHILLIPS EUSI H. PHILLIPS

          COUNSEL FOR DEFENDANT/APPELLANT, DOUCETTE AND ASSOCIATED CONTRACTORS, INC. DANATUS N. KING

          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst

          JUDE G. GRAVOIS JUDGE

         Defendant/appellant, Doucette and Associated Contractors, Inc. ("Doucette"), appeals a judgment rendered in favor of plaintiffs/appellees, Donna and Gerald Phillips ("plaintiffs"), [1] in the amount of $20, 000.00, together with interest from the date of judicial demand, plus all costs of the proceedings, plus an unspecified amount of attorney's fees. Doucette also appeals the dismissal of its reconventional demand seeking damages against plaintiffs for unpaid sums allegedly due under the construction contract the parties entered into. After thorough review and consideration of the law and the entirety of the record, we reverse the judgment in part, finding that the trial court committed manifest error in its award of monetary damages, judicial interest, attorney's fees, and costs to plaintiffs. In all other respects, the judgment is affirmed.

         FACTS AND PROCEDURAL BACKGROUND

         This matter arises out of a contract between the parties for construction of a four-unit apartment building in Jefferson Parish, Louisiana. On May 5, 2005, the parties entered into a fixed-price contract for Doucette to build the apartment building for plaintiffs for $357, 032.00. Construction of the building began shortly thereafter, but performance of the contract was soon substantially impaired and delayed by Hurricane Katrina striking the area on August 29, 2005, with the resultant disruption of normal business and scarcity of labor and materials. Though initially a contested point, the evidence shows that as a result of the hurricane's disruption, the parties, along with Omni Bank, which provided the construction financing for the project, agreed in 2007 to modify the contract to reflect a new price of $383, 692.04, an increase of $26, 660.04, which was paid to Doucette on August 6, 2007.[2]

         Doucette alleged that when the project was substantially complete around August of 2007, plaintiffs refused to pay any further sums that Doucette claimed were still due on the project. On October 29, 2007, after the parties failed to arrive at a resolution of the dispute, Doucette filed a lien against the property in the amount of $40, 000.00, the amount it claimed at that time remained owed by plaintiffs on the project "for additional costs due to Hurricane Katrina." On January 23, 2008, plaintiffs filed a petition to cancel the "improperly filed" lien and for damages, attorney's fees, and costs incurred by plaintiffs in connection with removal of the lien. In their petition, plaintiffs denied that any remaining amount was due Doucette on the project. Plaintiffs also posted a cash bond with the Jefferson Parish Clerk of Court in order to obtain cancellation of the lien.[3]Doucette filed an answer and reconventional demand, seeking damages for sums allegedly still due Doucette under the contract. Plaintiffs filed an answer and reconventional demand as well, denying that any amount remained due on the contract, and claiming damages from Doucette for negligence and breach of contract.

         The parties framed the issues for trial in their joint pre-trial order. Plaintiffs contended that Doucette ceased working on the project in July of 2007, claiming that it had not been paid to complete the job. They asserted that on August 6, 2007, they made a last payment to Doucette of $47, 414.00, which brought the total amount they paid Doucette to $383, 692.04, the amount the parties agreed to after verbally modifying the contract after Hurricane Katrina. However, according to plaintiffs, Doucette failed to complete the project, requiring plaintiffs to hire additional contractors to complete or correct the plumbing, electrical work, and air-conditioning. Plaintiffs also argued that they were additionally damaged by the alleged improper filing of the lien by Doucette, which, though the lien was cancelled on November 15, 2007, allegedly prevented them from securing permanent financing for the building.

         Doucette, in the joint pre-trial order, asserted that it completed all of the work contemplated by the contract as amended after Hurricane Katrina, and that plaintiffs failed to pay it the full amount owed, which included additional work it performed that was required by the Fire Marshal that was not included in the contract as amended by the parties. Doucette claimed that it was still owed $79, 999.60, which included additional costs for interior and exterior work, plus costs incurred for additional work required by the Fire Marshal, plus (as per the contract) 15 percent thereon per month, and attorney's fees.

         The matter went to a bench trial on June 27-28, 2016, after which the parties submitted post-trial memoranda. On September 2, 2016, the trial court rendered judgment, awarding $20, 000.00 to plaintiffs, together with interest from the date of judicial demand, plus all costs of the proceedings, plus an unspecified amount of attorney's fees. The judgment further dismissed Doucette's reconventional demand with prejudice. No reasons for judgment were provided. It is from this final judgment that Doucette appeals.[4]

         On appeal, Doucette first asserts that the trial court erred in awarding plaintiffs damages, costs, and attorney's fees, arguing that plaintiffs failed to prove by a preponderance of the evidence: 1) that it was Doucette who caused the completion of the project to be delayed; 2) that Doucette breached the contract by failing to complete the project; 3) that Doucette performed defective work on the project; and 4) that plaintiffs suffered damages as a result of the lien filed by Doucette. Doucette also argues on appeal that the trial court erred in dismissing its reconventional demand, asserting that it proved that it was owed additional compensation from plaintiffs due to change orders on the project, and that it is therefore also owed attorney's fees and liquidated damages pursuant to the contract.

         In their appellee brief, plaintiffs argue that the evidence introduced supports the award of $20, 000.00 in their favor. Their brief does not, however, address Doucette's claim on appeal regarding the dismissal of his reconventional demand.

         ANALYSIS

         This case concerns causes of action for both negligence (plaintiffs' claim for damages for Doucette's alleged improper filing of the lien), and breach of contract:

(1) plaintiffs' claims for:
a) Doucette's alleged delay in completion of the project;
b) Doucette's alleged failure to complete the project; and
c) Doucette's alleged defective work on the project; and
(2) Doucette's claim for plaintiffs' alleged failure to pay sums due Doucette on the project.

         In an action to recover damages for injuries allegedly caused by another's negligence, the plaintiff has the burden of proving negligence on the part of the defendant by a preponderance of the evidence. Hanks v. Entergy Corp., 06-0477 (La. 12/18/06), 944 So.2d 564, 578. Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, shows the fact sought to be proved is more probable than not. Id. (Internal citations omitted.) In a breach of contract case, an obligor is liable for the damages caused by his failure to perform a conventional obligation. La. C.C. art. 1994. A failure to perform results from nonperformance, defective performance, or delay in performance. Id. Damages are measured by the loss sustained by the obligee and the profit of which he has been deprived. La. C.C. art. ...


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