NOLA MOTOR CLUB, L.L.C. D/B/A NOLA MOTORSPORTS PARK
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 751-195, DIVISION
"M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE
COUNSEL FOR PLAINTIFF/APPELLEE, PARATECH, L.L.C. William J.
COUNSEL FOR DEFENDANT/APPELLANT, NOLA MOTOR CLUB, L.L.C.
D/B/A NOLA MOTORSPORTS PARK Scott L. Sternberg Michael S.
composed of Judges Susan M. Chehardy, Hans J. Liljeberg, and
Marion F. Edwards, Judge Pro Tempore
J. LILJEBERG JUDGE.
NOLA Motor Club, L.L.C. ("NOLA Motor"), appeals the
trial court's June 30, 2017 Judgment awarding
plaintiff/appellee, ParaTech, L.L.C. ("ParaTech"),
$76, 450.16, plus costs and interest for information
technology ("IT") services ParaTech provided at
NOLA Motor's facilities. For the following reasons, we
affirm the trial court's judgment in part and reverse in
AND PROCEDURAL HISTORY
Motor owns and operates NOLA Motorsports Park, a race car
track facility in Avondale, Louisiana. In early 2015, NOLA
Motor was preparing to host its first IndyCar Grand Prix race
starting on April 10th. Several months prior to the race, the
parties met to discuss upgrades to the facility's IT
infrastructure required for the race, but NOLA Motor did not
hire ParaTech to complete the work at that time. As the race
date approached, ParaTech contacted NOLA Motor to inquire
about the status of the work previously discussed. NOLA Motor
explained that a race sponsor agreed to perform the upgrades
and indicated it would not need ParaTech's IT services.
March 2015, Andhi Jeannot, NOLA Motor's IT Director,
contacted Richard Perniciaro, ParaTech's CEO, looking for
immediate help to repair a broken fiber cable. Initially, Mr.
Perniciaro declined the work because ParaTech was working on
several large projects for other clients. Mr. Jeannot called
back a second time after he could not find another company to
assist with the repairs. Mr. Perniciaro consulted with Jason
Cleveland, a ParaTech project manager, and they agreed to
send personnel to trouble shoot the fiber cable problem.
ParaTech contacted a subcontractor, Kyle Miller, owner of 7
Level Telecommunications, L.L.C., to assist with resolving
NOLA Motor's issue.
March 25, 2015, Mr. Cleveland, Mr. Miller, and another
ParaTech employee, Brandon Guillot, went to NOLA Motor's
facility to locate the break and provide a temporary
connection. NOLA Motor requested an estimate for the cost to
repair the fiber, but instructed ParaTech to continue working
on the repair. On March 27, 2015, ParaTech sent Mr. Jeannot
an email with a written estimate in the amount of $24,
525.00. The estimate indicated it was a "Time and
Material Project" and the labor rates were $115.00 per
hour during normal business hours (8 AM - 5 PM Monday to
Friday) and $172.50 per hour after normal business hours and
on weekends. The estimate further stated the "final bill
will be for the actual hours worked and the material
used." NOLA Motor agreed to the price and ParaTech
completed the work. On April 22, 2015, ParaTech issued
Invoice #5331 in the amount of $19, 994.78, which included
time, materials and sales tax to repair the broken fiber.
NOLA Motor later paid this invoice in full.
ParaTech was working to replace the broken fiber,
preparations for the IndyCar race were ongoing. Several
witnesses who testified at trial described the preparations
as chaotic and unorganized. Several days after ParaTech began
work at the race facility, Mr. Jeannot and NOLA Motor's
systems administrator, Aaron Rodriguez, asked ParaTech to
perform several other repairs, as well as race preparation
work which a race sponsor previously agreed to complete but
then later declined to provide. According to Invoice #5332,
the additional materials and IT services ParaTech provided
are described as follows:
Provide and install approximately 900 feet of 24 strand,
single mode, direct burial fiber. Install additional fiber
provided by NOLA MotorSports. Provide and install outdoor
boxes. Provide and replace fiber jumpers. Test and terminate
existing fiber. Clean and seal existing outdoor fiber boxes.
Connect existing boxes. Provide and install aerial cable.
Install wireless access points. Configure switches. Performed
all other tasks that were requested of us.
Motor did not request, and ParaTech did not provide,
estimates for the additional work. Mr. Jeannot and Mr.
Rodriguez told ParaTech to do whatever was necessary to get
the work done in time for the race. As a result, ParaTech
delayed work for other clients and assigned employees to NOLA
Motor's facility to help complete the work in time for
the race. The parties agreed that in the rush to complete the
IT work prior to the race, neither ParaTech nor NOLA Motor
followed their usual business practices. ParaTech continued
to provide IT services at NOLA Motor's facility even
after the race through April 20, 2015.
after the race, NOLA Motor requested that ParaTech quickly
submit invoices for the IT services provided. On or about
April 22, 2015, ParaTech submitted both Invoices #5331 and
#5332 for payment. NOLA Motor paid Invoice #5331 and it is
not at issue in this appeal. Invoice #5332 sought payment in
the amount of $76, 450.16, which included $15, 156.50 for
materials, $55, 142.50 for labor (400 regular hours at
$115.00 per hour and 53 overtime hours at $172.50 per hour)
and sales tax in the amount of $6, 151.16.
receiving Invoice #5332, NOLA Motor's Chief Financial
Officer, Frank Csaki, sent ParaTech an email questioning the
work and materials provided. Initially, NOLA Motor did not
dispute the specific amounts charged in Invoice #5332, but
refused to pay on the grounds that either the work was not
authorized by NOLA Motor, or because another entity, NOLA
Motorsports Host Committee, Inc. ("Host
Committee"), was responsible for payment. At trial, Mr.
Jeannot testified that all of the materials billed in Invoice
#5332 were installed in the track and NOLA Motor did not
express any issues with the workmanship provided by ParaTech.
However, NOLA Motor disputed the number of hours charged for
the additional work provided at the facility. To date, NOLA
Motor has not paid any of the amounts charged under Invoice
2, 2015, ParaTech filed a Petition for Suit on Open Account,
Breach of Contract, and Unjust Enrichment. A judge trial was
set for March 27, 2017, with a discovery cut-off date of
December 30, 2016. On February 21, 2017, NOLA Motor filed a
motion for leave to file a reconventional demand to assert
claims for fraud and misrepresentation against ParaTech. On
March 14, 2017, the trial court denied the request to add
these claims due to the upcoming trial date and NOLA
Motor's delay in seeking leave to file its reconventional
March 27, 2017, the parties tried the matter. The trial court
took the matter under advisement and allowed time for the
parties to obtain a copy of the trial transcript and submit
post-trial memoranda. On June 30, 2017, the trial court
rendered a judgment in favor of ParaTech for $76, 450.16, the
full amount of Invoice #5332, plus costs and interest. The
trial court did not award attorney fees. NOLA Motor requested
written reasons and on July 24, 2017, the trial court issued
reasons explaining that it found a contract existed between
the parties and alternatively, ParaTech could recover the
full amount demanded under Invoice #5332 pursuant to the
theory of unjust enrichment. The trial court also explained
that it denied ParaTech's request for attorney fees
because the agreement between the parties did not qualify as
an open account.
September 8, 2017, NOLA Motor filed a timely motion for
devolutive appeal and the trial court signed an order of
appeal on the same day. ParaTech submitted a timely answer to
the appeal asking this Court to award it attorney fees
pursuant to La. R.S. 9:2781, alleging the business
arrangement between the parties qualified as an open account.
first assignment of error, NOLA Motor contends the trial
court erred in awarding ParaTech $76, 450.16, because the
award is unsupported by the evidence and contrary to
ParaTech's records. It first contends NOLA Motor and
ParaTech did not enter into a contract to complete the
additional work because its systems administrator, Mr.
Rodriguez, did not have the authority to bind NOLA Motor. It
also disputes that a valid contract exists because the
parties did not agree to the cost of the labor to provide the
additional work. Finally, NOLA Motor contends the number of
hours ParaTech billed for the labor to complete the work was
excessive and unsupported by the evidence, and also argues it
is entitled to a credit in the amount of $1, 317.50 for the
remaining balance of unused hours it purchased from ParaTech
prior to the race.
first address the issue regarding whether Mr. Rodriguez
possessed authority to request the additional work on behalf
of NOLA Motor. A contract is formed by the consent of the
parties established through offer and acceptance. La. C.C.
art. 1927. Unless the law prescribes a certain formality for
the intended contract, an offer and acceptance may be made
orally, in writing, or by action or inaction that under the
circumstances is clearly indicative of consent. Id.; see
also Read v. Willwoods Cmty., 14-1475 (La. 3/17/15), 165
So.3d 883, 887; DBR Assocs., L.L.C. v. Burnell,
15-629 (La.App. 5 Cir. 2/24/16), 186 So.3d 1225, 1229.
C.C. art. 1846 provides that an oral contract in excess of
$500.00 must be proven by at least one credible witness and
other corroborating circumstances. Only general corroboration
is required, and it is not necessary for the plaintiff to
offer independent proof of every detail. Peter Vicari
Gen. Contr., Inc. v. St. Pierre, 02-250 (La.App. 5 Cir.
10/16/02), 831 So.2d 296, 301. The existence or non-existence
of a contract is a finding of fact which will not be
disturbed unless it is clearly wrong. DBR Assocs.,
186 So.3d at 1230. When findings are based on determinations
regarding the credibility of witnesses, the manifest error -
clearly wrong standard demands great deference to the trier
of fact's findings; for only the fact finder can be aware
of the variations in demeanor and tone of voice that bear so
heavily on the listener's understanding and belief in
what is said. Rosell v. ESCO, 549 So.2d 840, 844
establish apparent authority. Louisiana law requires two
elements: 1) the principal must first act to manifest the
alleged agent's authority to an innocent third party; 2)
the third party must reasonably rely on the manifested
authority of the agent. Jefferson Parish Hosp. Serv.