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Vinet v. D and M Renovation, LLC

Court of Appeals of Louisiana, Fifth Circuit

December 20, 2017

LYNDA VINET AND LARRY VINET
v.
D AND M RENOVATION, LLC, DARRYL C. RAY, SR., INDIVIDUALLY AND AS OWNER OF D AND M RENOVATION, LLC AND THEIR LIABILITY INSURANCE CARRIER, XYZ INSURANCE COMPANY

         ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 65, 77, DIVISION "B" HONORABLE MARY H. BECNEL AND HONORABLE E. JEFFREY PERILLOUX, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, LYNDA VINET AND LARRY VINET Robert R. Faucheux, Jr. Christophe L. Faucheux, Lindsay M. Faucheux

          Panel composed of Judges Jude G. Gravois, Robert M. Murphy, and Stephen J. Windhorst

          JUDE G. GRAVOIS JUDGE.

         Plaintiffs/appellants, Larry and Lynda Vinet, appeal a trial court judgment that was rendered against them and in favor of defendant, D&M Renovation, L.L.C. ("D&M"), which awarded $9, 547.51 to D&M on its reconventional demand against plaintiffs, the sum D&M claimed it was owed from plaintiffs as an extra amount on the home renovation contract the parties had entered into. The trial court also dismissed plaintiffs' principal demand for damages against D&M and its principal, Donald C. Ray, Sr., for alleged defective construction work under the contract. After thorough review of the record, evidence, and applicable law, we find no manifest error in the trial court's factual findings, or legal error in the trial court's conclusions of law. Accordingly, we affirm the judgment in favor of D&M on its reconvention demand and the dismissal of plaintiffs' principal demand.

         FACTS AND PROCEDURAL HISTORY

         Plaintiffs' home in LaPlace, Louisiana, sustained flood damages from Hurricane Isaac in 2012. Plaintiffs contracted with D&M to perform the renovations required to remedy the flood damages to their home. Plaintiffs became familiar with D&M after observing at least three flood renovation projects that D&M had performed in their neighborhood. Plaintiffs' home required remediation for up to four feet above floor level, the approximate level of the flooding. The home had already been completely gutted prior to D&M's beginning the job. This "gutting" included the removal of cabinets and removal of sheetrock up to four feet above the floors, except in the living room, where wall paneling had been removed from the floor to the ceiling.[1]

         The parties' negotiations led to several successive written contracts that described the scope of the work and the contract price. The first contract had a total price of $36, 000.00 for the project, but due to Mr. Vinet's concerns about keeping to a budget, some items and materials were changed and the contract was reworked to a total price of $30, 000.00.[2] However, plaintiffs later added a Jacuzzi tub to the requested work, which resulted in a written contract with a total final price of $32, 500.00, which contract was signed by the parties on November 8, 2012 (the "final contract"). The mortgagee, Wells Fargo, held the insurance proceeds and controlled disbursement of the contract proceeds to D&M upon verification through home inspections that the claimed work had been performed.

         Work began on the project on or about December 1, 2012 and the project was substantially completed on December 24, 2012. Throughout the renovation process, Mr. Vinet continued to live in the home. Mrs. Vinet and other family members stayed elsewhere during the construction. Mr. Ray testified that he is a "fast track" contractor who works onsite on his jobs rather than in the office (which was in Gretna, Louisiana). Accordingly, he was present at the Vinet jobsite during most days while the work was going on. He testified that Mr. and Mrs. Vinet made numerous changes and additions to the contract after the work began on December 1, 2012, including:

• adding a second Jacuzzi tub;
• changing the floors from laminate tile throughout the house to more expensive ceramic tile in certain spaces of the house;
• applying and reapplying interior paint in rooms and to several ceilings that already had been painted;
• installing bi-fold doors in the kitchen, hall closet, and living room instead of standard doors;
• patching holes in the drywall and ceilings of several rooms;
• performing temporary skim coat repair of a crack in the garage ceiling;
• installing a clothing dryer vent set and a hall furnace vent set;
• sound-proofing the master bedroom's interior walls to mute noise caused by the Vinets' grandchildren; and
• installing window casings.

         Mr. Ray testified that as per the final contract, he was not responsible for anything over four feet high in the house, except for the kitchen cabinets and the walls in the living room where the paneling had to be replaced with sheetrock. He testified that Mr. Vinet asked him to perform certain repairs or jobs that were not included in the original contract because they were higher than four feet.

         Mr. Vinet agreed at trial that he did in fact request the additional work and upgrades; he testified, however, that Mr. Ray told him that he (Mr. Ray) would "add" these items to the original contract, which Mr. Vinet thought meant that the upgrades and additions would be included in the final contract without any additional charges. At trial, Mr. Ray testified to the contrary, however, stating that he told Mr. Vinet several times that additional charges would be incurred for the additional work and for making repairs above the four-foot mark. The testimony presented at trial confirms that Mr. Vinet made the requests for changes and additions verbally, with Mr. Ray agreeing verbally that he would add the items to the contract.[3] Both parties testified that the additional work and changed materials that plaintiffs requested were in fact done, though Mr. Vinet claimed in his suit that the workmanship was defective in many respects.

         Mr. Ray testified that because Mr. Vinet made so many requests for additions and changes as the work progressed, it would have been too time consuming for him to go back to his office in Gretna to write each one up as a change order every time Mr. Vinet made a change request. Rather, he compiled all of the extra work into documentation that he presented to Mr. Vinet for signature after the job was complete, in order for D&M to get payment from Wells Fargo. Mr. Ray testified that he prepared and presented two documents to Mr. Vinet for signature. Both documents were entitled "Extra Work Order." The first Extra Work Order, which was personally presented to Mr. Vinet at his home on January 8, 2013, totaled $5, 941.89, and according to Mr. Ray, represented only a "rough estimate" of the changes and additions to the final contract.[4] The second Extra Work Order (hereinafter, the "final Extra Work Order"), which was mailed to Mr. Vinet on February 4, 2013, totaled $9, 547.51, and represented the final total cost of all of the extra work done on the Vinet job. Mr. Vinet, however, refused to sign either Extra Work Order, claiming that Mr. Ray had agreed to "include" the extra work in the final contract, and accordingly, D&M was owed nothing more.

         Mr. Vinet responded to the final Extra Work Order by reporting D&M to numerous consumer groups, including the Better Business Bureau and the Louisiana Attorney General's Office, alleging that D&M had performed substandard work and had defrauded the Vinets. D&M responded by placing a lien against the Vinets' home for the amount claimed in the final Extra Work Order. According to testimony, Wells Fargo declined to pay plaintiffs the balance of the insurance proceeds until their dispute with D&M was resolved. The Vinets then filed suit against D&M and Mr. Ray individually, alleging that they were owed damages for defendants' performing substandard work under the contract, and for wrongfully placing the lien against their property.[5] D&M reconvened for the extra amount it claimed was due from plaintiffs for work performed and materials used on the project, as set forth in the final Extra Work Order, as well as for damages for defamation. After a trial on the merits, the court rendered judgment with written reasons in favor of D&M in the amount of $9, 547.51, the amount D&M claimed was due for the additions to the contract. No damages were awarded to D&M for defamation. The judgment denied plaintiffs' claims for damages for defective workmanship and filing of the lien. Plaintiffs' appeal followed.[6]

         On appeal, plaintiffs assign the following errors:

1. The trial court erred by ignoring testimony and evidence clearly demonstrating that D&M did not adhere to the contract in that it allowed plaintiff ...

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