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Jeanes v. McBride

United States District Court, W.D. Louisiana

June 22, 2019

JANET JEANES, Plaintiff
v.
GREG MCBRIDE, ET AL., Defendants

         SECTION: “E” (4)

          ORDER

          SUSIE MORGAN UNITED STATES DISTRICT JUDGE.

         Before the Court are (1) Plaintiff Janet Jeanes' objections to certain exhibits Defendant Greg McBride seeks to introduce[1] and (2) McBride's objections to certain exhibits Jeanes seeks to introduce.[2] Jeanes and McBride have filed responses to these objections.[3] The Court rules on the objections, as set forth below.

         BACKGROUND

         This case arises from the construction of a building (“the Building”) on Jeanes' property at 2534 Hampton Dupre Road in Pine Prairie, Louisiana.[4] In the summer of 2010, Jeanes began discussing the construction of the Building with McBride.[5] McBride submitted a proposal to Jeanes, which she signed on September 23, 2010 (“the Proposal”).[6] The materials and plans for the roof of the Building were provided by S & S Steel Buildings, Inc., doing business as Metal Roofing Supply (“S & S”).[7] Roy Bergis Smith, through his company, E. Smith Plumbing Service, Inc. (“E. Smith Plumbing”), provided plumbing services for the Building.[8]

         On September 9, 2016, Jeanes filed the instant suit.[9] She alleges McBride did not obtain the permit required for constructing the Building and that there were numerous defects in the Building.[10] In her Complaint and Amended Complaint, Jeanes names five Defendants: McBride; Metal Buildings by Mac, LLC (“Metal Buildings”); S & S; Roy Bergis Smith; and E. Smith Plumbing. She brings five claims: (1) breach of contract against all Defendants, (2) negligence against S & S, (3) fraud against all Defendants, (4) violation of the Louisiana Unfair Trade Practices Act (“LUTPA”)[11] against all Defendants, and (5) successor liability against Metal Buildings.[12] The claims against all Defendants but McBride have been dismissed.[13] The claims against McBride are for breach of contract, fraud, and violation of LUTPA.[14]

         I. McBride's Objection to Exhibit 43 Overruled

         McBride objects[15] to Exhibit 43, which consists of two pages of sketches of the Building, Bates Nos. Jeanes 0007-08. He argues the Proposal is not ambiguous and, as a result, the jury may not look outside the contract's four corners to interpret it.[16] Jeanes responds that extrinsic evidence is admissible to interpret the contract because the Proposal is “manifestly incomplete.”[17] She also argues the Proposal is ambiguous and, as a result, parol evidence is admissible.[18]

         Article 2046 of the Louisiana Civil Code provides, “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent.”[19] “Louisiana law does allow, however, for the admissibility of parol evidence when the written agreement is manifestly incomplete and is not intended to constitute the entire agreement between the parties.”[20] Parol evidence also is admissible to resolve ambiguity in the terms of a contract.[21]

         In this case, the Proposal consists of two pages: each page consists of a list of specifications for each of the two metal structures that together made up the Building.[22] The space for “Job Location” is left blank.[23] The Proposal includes the following specifications:

• 3” VRR Insulation At Roof and Walls (Wall Insulation According to Plans)
• One- 12' × 10' Framed Opening at Bay #2 of Front Sidewall Endwall (See Drawing)
• One- 12' × 10' Framed Opening at Bay #2 of Back Sidewall (See Drawing).[24]

         No “Drawing” and no “Plans” were attached to or incorporated into the Proposal. The Court finds the Proposal is manifestly incomplete. It does not specify the location of the Building, the date by which construction would be commenced or competed, where doors and windows were to be located, or many other responsibilities of the parties. The Proposal does not include a merger clause stating it represents the entirety of the agreement between the parties; in fact, it references other unattached documents as “Plans” and “Drawing.” As a result, parol evidence is admissible to complete the terms of the Proposal.

         Parol evidence also is admissible because the terms of the Proposal are ambiguous. The Proposal does not contain any express terms specifying whether or not the Building is intended for residential use.[25] Moreover, for the reasons the Court finds the Proposal incomplete, it also finds the terms of the Proposal ambiguous. The Court does not exclude Exhibit 43 as inadmissible parol evidence.

         McBride argues Exhibit 43 is unfairly prejudicial under Rule 403. Exhibit 43 has significant probative value because the Proposal is manifestly incomplete and ambiguous, and the exhibit is relevant to the parties' intent. Admission of Exhibit 43 does not unfairly prejudice McBride.

         II. McBride's Objection to Exhibits 44-48 Overruled

         McBride objects to Exhibits 44-48, which are documents obtained from the Rapides Area Planning Commission (“RAPC”).[26] These exhibits consist of the following:

• Exhibit 44: Schedule of Activity for Permit EV-10-0823-P, Bates Nos. Jeanes 1893-94;
• Exhibit 45: RAPC Inspection Guidelines, Bates Nos. Jeanes 2844-45;
• Exhibit 46: RAPC Permit Office Required Inspections, Bates Nos. Jeanes 2464;
• Exhibit 47: Kisatchie-Delta Regional Code Compliance Office, 2008 NEW, Bates No. Jeanes 2465; and
• Exhibit 48: RAPC 2011 NEC, [27] Bates No. Jeans 2708.

         McBride argues that, under the express provisions of the Proposal, he is not responsible for permits because the Proposal expressly states McBride will not provide permits and that, as a result, the exhibits are irrelevant, hearsay, and excluded by the parol evidence rule.[28]

         A. Relevance and Parol Evidence

         The Proposal consists of two pages, with each page describing a metal building.[29]With respect to the metal building described on the first page, the Proposal states, “Foundation And Permits Not Provided By” McBride.[30] With respect to the metal building described on the second page, the Proposal states, “Dirt Work, Permits, Windows, And Roll Up Doors Not Provided By” McBride.[31] Both pages of the Proposal contain a statement in bold and capital letters, “All permits slab and jobsite clean-up not furnished by” McBride.[32]

         1. Relevance and Subsequent Modifications

         In response to McBride's objections to Exhibits 44-48 based on relevancy, Jeanes states the Proposal's provisions that McBride was not responsible for obtaining permits were subsequently modified.[33] She appears to argue that, because the Proposal's express provisions that McBride would not provide or furnish permits were subsequently modified to provide that McBride would provide permits and inspections, Exhibits 44- 48 are admissible to show the relevant requirements for permits and inspections. However, Jeanes does not state in her first response to the objections where, when, how, or by whom the Proposal was modified.[34] As a result, the Court ordered Jeanes to clarify the nature of the alleged subsequent modifications.[35]

         Jeanes filed a supplemental memorandum regarding the modifications to the Proposal.[36] She lists the four following alleged modifications:

(1) modification to the Proposal's provisions stating McBride would not furnish or provide permits,
(2) a modification to the Proposal's provision that McBride would not furnish windows,
(3) a modification to the Proposal's provision that McBride would not provide roll up doors, and
(4) a modification to the Proposal's provision that McBride would not provide slab and foundation work.[37]

         Only the first alleged modification, a modification to the Proposal's provision that McBride would not furnish or provide permits, is relevant to the admissibility of Exhibits 44-48. Article 1848 of the Civil Code provides that “testimonial or other evidence” may be admitted to prove a written contract “was modified by a subsequent and valid oral agreement.”[38] Jeanes admits the Proposal was not modified by McBride's conduct subsequent to the execution of the Proposal.[39] She asserts McBride obtained a permit for the Building on July 29, 2010, nearly two months prior to the Proposal's execution on September 23, 2010.[40] Jeanes will not be permitted to argue McBride's conduct constitutes a subsequent modification to the contract under article 1848.

         Although Jeanes admits that there was no subsequent modification by conduct with respect to the first alleged modification, Jeanes argues McBride made an oral modification to the Proposal after the Proposal was executed.[41] She cites McBride's deposition, in which he states he gave Jeanes her permit and told her, “whenever you need to do something I'll tell you to call the man and do what you got to do.”[42] McBride's testimony is admissible to show the parties subsequently modified the contract orally to agree that McBride agreed to be responsible for the permits for the Building, but this does not resolve McBride's objection to Exhibits 44-48.

         With respect to alleged modifications 2, 3, and 4, to the Proposal's provisions that McBride would not furnish windows, doors, or foundation and slab work, Jeanes argues she and McBride agreed to modify the contract orally to provide McBride would be responsible for those items.[43] She points to evidence of McBride's conduct in actually installing the windows and doors and performing the foundation and slab work to show that they modified the contract.[44] Jeanes will be permitted to elicit testimony about these alleged subsequent modifications.

         With respect to McBride's objection to Exhibits 44-48, only the first alleged modification, allegedly modifying the Proposal's provision that McBride would not furnish or provide permits, is relevant to the admissibility of Exhibits 44-48. Jeanes will be allowed to introduce evidence that the parties orally modified the Proposal in that regard. As a result, Exhibits 44-48 are relevant, as they show the history of permitting for the project and the requirements for permits and inspections. As a result, Exhibits 44- 48 are admissible for this purpose.

         2. Parol Evidence

         In response to McBride's objections to Exhibits 44-48, Jeanes also argues the exhibits are admissible because they contain the requirements for inspections of residential construction that are incorporated into the contract.[45] The Court of Appeal for the Louisiana First Circuit has explained:

It is an established principle that laws that exist at the time of execution of a contract form a part of that contract and are incorporated in it. These laws form part of the contract as though expressly written therein. Thus, where a parish or city has in effect a building code, the provisions of that building code form a part of every construction contract executed in that parish or city. Such a contract contemplates a building constructed in compliance with local building code requirements, as though expressly written into the contract.[46]

         As explained above in connection with McBride's objection to Exhibit 43, the Proposal is ambiguous with respect to whether the parties intended a part of the Building to be residential when they entered into the contract.[47] To the extent the Proposal contemplates the construction of a residential property, it incorporates the requirements of the building code for inspections of residential property.[48]

         McBride appears to argue that, even if the parties intended the Building have residential use, he was not required to comply with the building code's requirements. The Court does not agree. In Velasquez v. Custom Built Homes, Inc., the Court found the contract incorporated the requirements of the applicable building code, but “[t]here was no express provision in the contract specifying which party had the responsibility to comply with the Building Code.”[49] Because of the absence of a specific contractual provision, the Court turned to custom and found “[t]he record clearly indicates that it is customary that the contractor comply with the Building Code.”[50]

         In this case, the Proposal does not explicitly specify which party was responsible for complying with the building code. The Proposal includes the following provisions:

• “Foundation And Permits Not Provided By” McBride
• “Dirt Work, Permits, Windows, And Roll Up Doors Not Provided By” McBride
• “All permits slab and jobsite clean-up not furnished by” McBride.[51]

         The Proposal does not mention who has the responsibility for compliance with the applicable building code or to obtain inspections. The Court finds the provisions of the Proposal are ambiguous with respect to whether these provisions express the parties' intent for Jeanes or McBride to be responsible for complying with the building code. Because of this ambiguity, parol evidence regarding the parties' intent with respect to who is responsible for complying with the building code is admissible. Evidence regarding custom, if presented by a duly qualified expert, also will be admitted.

         Because evidence will be admitted to show the parties intended for a portion of the Building to be residential when the parties executed the Proposal, the provisions of the building code in Exhibits 44-48 are relevant. Jeanes will be permitted to introduce Exhibits 44-48 at trial.

         3. Rule 403

         McBride argues Exhibits 44-48 are unfairly prejudicial under Rule 403.[52] As explained above, the exhibits have significant probative value, and their admission will not unfairly prejudice McBride.

         B. Hearsay

         McBride also argues the exhibits are inadmissible hearsay.[53] He does not explain the basis for this objection. Hearsay is an out-of-court statement offered to “prove the truth of the matter asserted in the statement.”[54] Exhibits 44-48 are not out-of-court statements and are not hearsay. Even if the exhibits were assertive statements, they are all records maintained by RAPC and would fall under the Public Records Exception, codified at Rule 803(8).

         C. Blake Steiner Testimony

         Jeanes represents that Exhibit 44 will be used in connection with the testimony of Jeanes, McBride, and RAPC inspector Blake Steiner, and that Exhibits 45-48 will be used only in connection with Steiner's testimony. In McBride's objection to Exhibits 44-48, he includes an argument regarding the admissibility of Steiner's testimony.[55] This objection will be addressed in connection with Exhibit 51.

         III. McBride's Objection to Exhibit 49 Sustained

         McBride objects[56] to the admission of Trial Exhibit 49, which consists of “Building Plans on File for EV-10-0823-P, ” Bates Nos. Jeanes 2469-80. The Court notes Exhibit 49 is a duplicate of pages 16-27 of Trial Exhibit 6, Bates Nos. Jeanes 2469-80, to which the parties have not filed an objection. Trial Exhibit 6 will be admitted into evidence by agreement of the parties based on its relevance. Exhibit 49 would be duplicative. As a result, the Court sustains McBride's objection on that basis.

         The Court also notes that McBride objects to Exhibit 49 on the basis that it is connected to Steiner's testimony.[57] The parties have indicated on their index of exhibits that Jeanes and McBride will testify with respect to Exhibit 6.

         IV. McBride's Objection to Exhibit 50 Sustained

          McBride objects[58] to the admission of Trial Exhibit 50, which consists of a “Flood Mapping Site” Map, Bates No. Jeanes 2486. The Court notes Exhibit 50 is a duplicate of page 30 of Trial Exhibit 9, Bates No. Jeanes 2486, to which the parties have not filed an objection. Trial Exhibit 9 will be admitted into evidence, and Exhibit 50 would be duplicative. As a result, the Court sustains McBride's objection on that basis.

         V. McBride's Objection to Exhibit 51 Sustained in Part

         McBride objects to Exhibit 51, the inspection reports Steiner prepared with respect to the Building's slab and plumbing (“the Steiner Report”).[59] He argues the Steiner Report is inadmissible hearsay. Jeanes responds that the Steiner Report sets out factual findings from a legally authorized investigation under Rule 803(8)(A)(iii).[60]

         Rule 803(8) of the Federal Rules of Evidence codifies the “public records exception” to the rule against hearsay, providing:

A record or statement of a public office [is not excluded by the rule ...

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