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.
composed of Judges Jude G. Gravois, Robert M. Murphy, and
Stephen J. Windhorst
G. GRAVOIS JUDGE.
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'
AND PROCEDURAL HISTORY
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
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. 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.
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,
• adding a second Jacuzzi tub;
• changing the floors from laminate tile throughout the
house to more expensive ceramic tile in certain spaces of the
• 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
• 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.
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.
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. 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.
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. 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.
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. 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.
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 ...