STEVE OWENS CONSTRUCTION, INC.
CHAD B. BORDELON, AN INDIVIDUAL AND CAUSEWAY PLACE, LLC
Appeal from the 22nd Judicial District Court In and for the
Parish of St. Tammany State of Louisiana Trial Court No.
2009-12762 Honorable William J. Knight, Judge Presiding
Richard A. Richardson Covington, LA Attorney for
Defendant-Appellee, Chad B. Bordelon, an Individual, and for
Defendant-2nd Appellant, Causeway Place, LLC
Michael F. Weiner Covington, LA Attorney for Plaintiff- I st
Appellant and Appellee, Steve Owens Construction, Inc.
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, J J.
matter concerns an oral construction contract and a dispute
over unpaid invoices on a commercial project. The owner of
the project and the general contractor that worked on the
project both appealed the trial court's judgment that
ordered the payment of the invoices and recognized a lien
against the property and its owner.
in late 2007 to early 2008, Chad B. Bordelon, a general
contractor, hired another general contractor, Steve Owens
Construction, Inc. (Owens), to help him renovate immovable
commercial property owned by Causeway Place, LLC, ("the
Owner"), in Mandeville, Louisiana. The renovation
involved transforming a former movie theater into a venue for
events, named the Fleur de Lis Event Center ("the
Project"). Bordelon informed Owens that the scope of the
work to be performed by Owens was uncertain, because he
intended to have some of his own employees and subcontractors
do a portion of the work. Therefore, no firm estimate of the
cost to complete the Project was ever offered by Owens.
However, Bordelon and Owens ultimately came to an oral
agreement for Owens to perform the work on the Project. Owens
submitted weekly invoices to Bordelon for Owens' time and
materials, plus 15% overhead and 10% profit.
January 2008 and October 2008, Owens submitted 48 invoices to
Bordelon, all of which were paid by the Owner without
question. Each invoice clearly indicated that it was a time
and materials (T&M) invoice, and the labor was charged
using a different hourly rate for each employee that included
direct and indirect costs associated with those employees,
such as insurance, social security, tax withholdings,
benefits, and administrative fees. Each invoice also outlined
the materials used each week, the equipment rented, a
supervision fee for Steve Owens, and bills for any
subcontractor used by Owens on the Project. After paying
invoices on a regular basis without incident for ten months,
Bordelon presented a check to Owens on November 5, 2008, but
he requested that Owens hold the check until the Owner could
secure additional funding for the Project. Owens agreed to
continue the work since the Project was nearing completion.
submitted three more invoices and completed the Project at
the end of December 2008. Owens continued to request payment
from Bordelon on the outstanding invoices, receiving only a
partial payment on one, while Bordelon persistently indicated
that payment would be made as soon as additional financing
was secured. In early 2009, Bordelon informed Owens that the
remaining invoices would not be paid for a different reason
than financing issues, because Bordelon thought that the work
on the Project should have been billed on a
"cost-plus" basis, rather than a T&M basis, so
that the labor costs were limited to the direct wages that
Owens actually paid its employees. Accordingly, Bordelon and
the Owner refused to pay the remaining invoices totaling $70,
042.89. Consequently, Owens filed a lien on the Project and
filed a lawsuit against Bordelon individually, and the Owner
of the Project. Bordelon and the Owner reconvened against
Owens for an unspecified amount, claiming entitlement to a
credit for the difference between the labor rate charged in
all of Owens' invoices throughout the Project and the
amount Owens actually paid its employees for the hours billed
on the invoices.
trial was held on February 13, 2017, where the parties
stipulated that the works reflected in the invoices were
truly performed. The only issues for the trial court was to
determine the type of oral contract the parties agreed to,
what amount Owens was entitled to charge for labor on the
Project, and whether to recognize the lien that had been
filed against the property, the Owner, and Bordelon. The
trial court ultimately determined, with written reasons for
judgment, that the oral agreement constituted a T&M
contract and that Owens was entitled to judgment against the
Owner for all of the unpaid invoices plus legal interest.
Additionally, the trial court dismissed Bordelon and the
Owner's reconventional demand, while recognizing
Owens' lien against the Owner and the property, but not
appealed the trial court's judgment, assigning error to
the trial court's dismissal of Owens' claim against
Bordelon individually, maintaining that Bordelon was liable
in solido with the Owner because he had acted as an
undisclosed agent of the Owner. The Owner also appealed the
trial court's judgment, arguing that the trial court
erred in finding that the parties had orally agreed to a
T&M contract as opposed to a cost-plus contract and
therefore, the trial court had erred in dismissing Bordelon
and the Owner's reconventional demand.
court's determination of the existence or nonexistence of
an oral contract is a finding of fact governed by the
manifest error or clearly erroneous standard of review.
SeeRead v. Willwoods Community, 2014-1475
(La. 3/17/15), 165 So.3d 883, 888. An appellate court cannot
set aside a trial court's factual findings in the absence
of manifest error or unless those findings are clearly wrong.
Rosell v. ESCO,549 So.2d 840, 844 (La. 1989). If
the factual findings are reasonable in light of the record
reviewed in its entirety, an appellate court may not reverse,
even if convinced that had it been sitting as the trier of
fact, it would have weighed the evidence differently.