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Paratech, L.L.C. v. Nola Motor Club, L.L.C.

Court of Appeals of Louisiana, Fifth Circuit

April 25, 2018

PARATECH, L.L.C.
v.
NOLA MOTOR CLUB, L.L.C. D/B/A NOLA MOTORSPORTS PARK

          ON 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 PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, PARATECH, L.L.C. William J. Larzelere, III

          COUNSEL FOR DEFENDANT/APPELLANT, NOLA MOTOR CLUB, L.L.C. D/B/A NOLA MOTORSPORTS PARK Scott L. Sternberg Michael S. Finkelstein

          Panel composed of Judges Susan M. Chehardy, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore

          HANS J. LILJEBERG JUDGE.

         Defendant/Appellant, 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 part.

         FACTUAL AND PROCEDURAL HISTORY

         NOLA 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.

         In late 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.

         On 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.[1]

         While 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.

         NOLA 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.

         Shortly 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.

         After 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 #5332.

         On July 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 demand.

         On 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.

         On 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.

         DISCUSSION

         In its 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.[2]

         We first address the issue regarding whether Mr. Rodriguez possessed authority to request the additional work on behalf of NOLA Motor.[3] 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.

         La. 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 (La. 1989).

         To 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. ...


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