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Hester v. Burns Builders

Court of Appeals of Louisiana, Third Circuit

April 25, 2018



          Lauren Gay Coleman COUNSEL FOR PLAINTIFF/APPELLANT: Lynton O. Hester, IV

          Lynton O. Hester, IV IN PROPER PERSON Wade T.Visconte All American Law Firm of Louisiana, LLC COUNSEL FOR DEFENDANTS/APPELLEES: Burns Builders Malcolm L. Burns

          Karl H. Schmid Degan, Blanchard & Nash COUNSEL FOR DEFENDANT/APPELLEE: Gemini Insurance Company

          Court composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery, Judges. Cooks, J., concurs in the result.

          MARC T. AMY, JUDGE.

         The parties entered into a contract for the construction of a house. Citing dissatisfaction with the quality of the work, the owner stopped making payments to the contractor and eventually filed suit, requesting specific performance and, in the alternative, damages. The contractor and the contractor's insurance company filed a motion for partial summary judgment, seeking dismissal of the owner's claims and dissolution of the contract as to any future performance owed. The trial court granted the motion for partial summary judgment, and the owner now appeals. For the following reasons, we affirm.

         Factual and Procedural Background

         On December 29, 2005, Lynton O. Hester, IV, entered into a "Turnkey Contract" with Malcolm L. Burns d/b/a Burns Builders for the construction of a new home at a price of $303, 287.00. By addendum, the parties amended the contract on January 11, 2006 to reflect a price of $322, 287.00. In March 2006, financing of the home was closed, and construction began shortly thereafter. According to the contract, "progress payments" or "draws" would be made upon completion of certain tasks.[1] Mr. Hester made the first payment in the amount of $18, 447.46 on March 16, 2006, and he made a second payment in the amount of $96, 686.10 on April 20, 2006. On June 22, 2006, Mr. Hester made a third payment in the amount of $88, 000.00.

         However, issues subsequently arose between the parties concerning the trim stage of construction. Mr. Burns contended that Burns Builders had completed the trim phase of construction, and on May 10, 2007, Mr. Burns sent a letter to Mr. Hester demanding the payment due under the contract upon completion of the trim stage. In response, Mr. Hester refused to tender payment, citing dissatisfaction with the quality of the workmanship. The parties were unable to reach an agreement, and Mr. Hester ultimately filed a "Petition for Breach of Contract and Damages." In the petition, Mr. Hester asserted "that the work that has been performed is sub-standard" and alleged "defects" in various rooms of the house. Mr. Hester further alleged in the petition that he had to borrow money to finance the construction of the home; pay monthly interest on said loan; and rent an apartment to live in during the construction. He requested specific performance or, in the alternative, for judgment in an amount to compensate him for the damages incurred as a result of the alleged breach of contract.

         Thereafter, Burns Builders and Mr. Burns d/b/a Burns Builders (hereafter collectively referred to as "Burns Builders") answered Mr. Hester's petition and filed a reconventional demand. In the reconventional demand, Burns Builders requested all sums owed under the contract, asserting that it had completed the trim work and that Mr. Hester had breached the contract by refusing to pay for the completion of the trim work and by continuing to claim that the work was defective. Burns Builders later filed a third party demand against Gemini Insurance Company (hereafter referred to as "Gemini"), Brown's Lumber & Supply, LLC, and A Plus Drywall.

         On April 3, 2008, the subject property was foreclosed upon, and the property was subsequently purchased by William Barron at a sheriff's sale. Thereafter, Burns Builders filed a motion for summary judgment, requesting dismissal of the plaintiff's claims; dissolution of the contract as to any future performance owed by Burns Builders; and an award of the contractual sum of $96, 686.10 with interest from the date of demand. Mr. Hester filed an opposition to the motion for summary judgment, attaching an affidavit and report from his expert, Philip Beard. The affidavit stated that Mr. Beard is a registered professional engineer, licensed in the State of Louisiana. In the affidavit, Mr. Beard explained that he completed an inspection of the subject property and prepared a formal report based upon that inspection. In pertinent part, Mr. Beard's affidavit states: "In my opinion, the garage had the potential for future settlement caused by improperly compacted backfill. . . . Based on my inspection, there were numerous areas of construction and finish of the residence which did not meet the minimum standards or quality of workmanship as required by the contract."

         Following a hearing, the trial court granted Burns Builders' motion for summary judgment. The "Partial Final Judgment" dissolved the contract as to future performance; granted Burns Builders' reconventional demand, ordering Mr. Hester to pay $96, 686.10 plus annual interest to Burns Builders; and dismissed, with prejudice, Mr. Hester's claims for specific performance and damages. On appeal, that judgment was reversed as follows:

Burns filed a reconventional demand asserting that payment was owed pursuant to the contract. In order for Burns to succeed on his claim, he would have to prove that payment was owed. Under paragraphs five and ten [of the contract], Hester had the right to withhold payment if he believed the construction was defective. Whether there were defects is a question of fact for the trial court to determine. The scope of damages is another determination for the fact finder. If there were no defects, Burns would be entitled to payment. Hester's assertion that there were damages ...

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