LYNTON O. HESTER, IV
BURNS BUILDERS, ET AL.
FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
230, 061 HONORABLE THOMAS M. YEAGER, DISTRICT JUDGE
Gay Coleman COUNSEL FOR PLAINTIFF/APPELLANT: Lynton O.
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
H. Schmid Degan, Blanchard & Nash COUNSEL FOR
DEFENDANT/APPELLEE: Gemini Insurance Company
composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery,
Judges. Cooks, J., concurs in the result.
T. AMY, JUDGE.
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.
and Procedural Background
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. 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.
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.
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.
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."
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 ...