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Fontenot v. Gilchrist Construction Company, LLC

Court of Appeals of Louisiana, Third Circuit

October 9, 2019

JUANITA W. FONTENOT AND T. JUNE WILDER
v.
GILCHRIST CONSTRUCTION COMPANY, LLC

          APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ALLEN, NO. C2012-146 HONORABLE F. RAE SWENT, AD HOC.

          Murphy J. Foster, III John T. Andrishok Breazeale, Sachse & Wilson, L.L.P. COUNSEL FOR DEFENDANT/APPELLANT: Gilchrist Construction Company, L.L.C.

          Loulan J. Pitre, Jr. Jane A. Jackson Kelly Hart Pitre COUNSEL FOR DEFENDANT/APPELLANT: Gilchrist Construction Company, L.L.C.

          Edward E. Rundell Kay H. Michiels Stephen A. LaFleur Gold, Weems, Bruser, Sues & Rundell COUNSEL FOR DEFENDANT/APPELLANT: Gilchrist Construction Company, L.L.C.

          James G. Theus Theus Law Office COUNSEL FOR DEFENDANT/APPELLANT: Gilchrist Construction Company, L.L.C.

          Michael Reese Davis Richard Allen Sherburne, Jr. Tim P. Hartdegen Hymel Davis & Petersen, L.L.C. COUNSEL FOR PLAINTIFFS/APPELLEES: T. June Wilder Juanita W. Fontenot

          Wells T. Watson Bagget, McCall, Burgess, Watson & Gaughan COUNSEL FOR PLAINTIFFS/APPELLEES: Juanita W. Fontenot T. June Wilder

          Herbert Todd Nesom District Attorney, Thirty-third Judicial District Court COUNSEL FOR PLAINTIFFS/APPELLEES: Juanita W. Fontenot T. June Wilder

          Court composed of Shannon J. Gremillion, Candyce G. Perret, and Jonathan W. Perry, Judges.

          SHANNON J. GREMILLION JUDGE.

         Defendant, Gilchrist Construction Company, LLC, appeals the trial court's judgment in favor of Plaintiffs, Juanita W. Fontenot and T. June Wilder. For the following reasons, we affirm as amended.

         FACTUAL AND PROCEDURAL BACKGROUND

         This case involves extensive and complex litigation surrounding Defendant's use of Plaintiffs' land for purposes of completing its $30 million contract with the state to expand U.S. Highway 165 in Allen Parish, Louisiana. In March 2012, Plaintiffs filed a Petition for Damages and Breach of Contract relating to a series of contracts they entered into with Defendant for the excavation of dirt and storage of construction debris on their property. In their petition, Plaintiffs urged that Defendant dumped "asphalt, dirt, concrete, wood and trash" on their property and filled in the excavated dirt pit with "worthless dirt, debris, concrete, wood and trash from elsewhere." Plaintiffs claimed that Defendant under-measured and under-paid for the dirt it did haul away from the property, that it did not leave the property in the condition it promised to, and that it would cost millions of dollars to haul away the remaining debris left behind by Defendant. Plaintiffs alleged that Defendantt acted in bad faith in refusing to perform the contract in good faith resulting in damages including loss of income, underpayment, damages to land, damages to remove the debris, and damages to restore the land.

         In March 2014, Plaintiffs moved for a motion for partial summary judgment seeking a declaration that their property was farmland, that Defendant was responsible for removing any concrete or debris that it dumped on the property, and that the property be returned to its original condition (i.e., farmland). The motion was granted in Plaintiffs' favor in June 2014. That judgment specifically found:

[I]t is hereby ruled that the general purpose of the Fontenot/Wilder property prior to entry by Defendant, Gilchrist Construction Company, LLC, was farmland, although it had been out of production for several years due to federal subsidies. . . .Gilchrist . . . has the obligation to restore the Fontenot/Wilder property to a condition suitable for farming, with the exception of the pond/pit and road.

         By June 2016, Plaintiffs had filed three motions to compel discovery, all of which were granted in their favor. In January 2018, Defendant filed a motion to compel discovery responses. Defendant also filed a motion to strike Plaintiffs' claims for loss of income and motion in limine. Defendant further filed a motion to compel entry upon land for testing and inspection; for an order requiring written expert reports; and for continuance of the trial date.

         In February 2018, Plaintiffs filed a first amended petition for breach of contract and damages. In March 2018, Plaintiffs filed a motion in limine to exclude certain irrelevant and overly prejudicial matters. They also filed a motion in limine to exclude certain opinions and testimony of Defendant's experts, Jerry Daigle and Chris Lemoine.

         On March 12, 2018, Defendant filed an exception of no cause of action and prescription and answer to Plaintiffs' first amended petition for breach of contract and damages. On March 14, 2018, Plaintiffs filed an opposition to Defendant's exception of no cause of action and prescription.

         On March 12, 2018, the trial court rendered reasons for judgment on a number of issues. It accepted "the argument by Plaintiffs that Corbello v. Iowa Production . . . is the controlling law in this case[, ]" and found the market value of the property irrelevant. Further, the trial court found that as to the expert witness, Jerry Daigle, the issue of whether the land was "farmable" was not relevant to the issue of whether remediation was required. It further found that the appraised value of the land was not relevant and, therefore, Chris Lemoine's opinion testimony would not be admissible.

         On March 14, 2018, Defendant filed its proposed special jury instructions. On March 16, 2018, Plaintiffs filed an objection to Defendant's proposed special jury instructions and verdict form.

         Following a jury trial in March 2018, the jury rendered a verdict finding that Plaintiffs had proven by a preponderance of the evidence that Defendant breached a contractual obligation it owed to Plaintiffs and that Defendant acted in bad faith. It awarded Plaintiffs $5, 559, 000.00, plus attorney fees.

         On April 17, 2018, Defendant filed a motion to sign judgment and to continue the hearing on determination of attorney fees pending reconsideration on motion for new trial and appeal arguing that it was improper for the jury to determine if attorney fees should be awarded. The trial court denied the motion. On April 19, 2018, Defendant filed an opposition to Plaintiffs' motion to set attorney fees. On April 20, 2018, Defendant filed an opposition to Plaintiffs' motion to set costs. In May 2018, Defendant filed a post-trial rebuttal to Plaintiffs' motion for attorney fees and costs. On May 8, 2018, Plaintiffs filed a post-hearing brief regarding attorney fees and costs.

         The trial court rendered written reasons for judgment on June 22, 2018. Therein, the trial court discussed the numerous motions filed as to what law was applicable, specifically with Plaintiffs arguing that Corbello v. Iowa Production, 02-0826 (La. 2/25/03), 850 So.2d 686, applied and Defendant arguing that Roman Catholic Church v. Louisiana Gas Serv. Co., 618 So.2d 874 (La.1993), applied. The trial court also noted that the issue of whether attorney fees should be submitted to the jury was of concern between the parties. The trial court denied all of Defendant's motions noting that Defendant did not object to the inclusion of the issue of attorney fees on the verdict form. The trial court granted Plaintiffs' motions to set attorney fees and expenses. It further accepted Corbello as the standard for damages to immovable property in breach of contract cases and found the facts of this case much more similar to Corbello than Church. The trial court noted that, "[t]he party found in breach and bad faith is a large and sophisticated business entity and the parties injured are farmland owners and members of the public. The inherent need to restore farmland is no different from the need to restore the land in the oil legacy litigation." The trial court thereafter set the attorney fee award at 40% of the total award, and expenses and costs in the amount of $51, 077.66. The trial court signed a judgment memorializing such on August 21, 2018.

         On September 4, 2018, Defendant filed a motion for new trial. Following an October 16, 2018 hearing, the trial court denied the motion for new trial in a judgment signed October 25, 2018, and filed into the record on November 19, 2018.

         Defendant now appeals and assigns as error in its brief filed on February 20, 2019:

1. The District Court erred when it erroneously changed the established standard for the case four days prior to trial to the prejudice of Gilchrist.
2. The District Court erred in applying the Corbello standard because the unique circumstances of Corbello are not present in this case.
3. The District Court erred in applying the Corbello standard because there was no contract to restore the property to its original condition.
4. The District Court erred in ruling that Plaintiffs' claims were not prescribed.
5. The District Court erred with respect to several significant evidentiary rulings.
6. The District Court erred in rendering pre-trial rulings inconsistent with the jury instructions that precluded the jury from being able to render a verdict in accordance with the instructions.
7. The District Court erred in rendering a Judgment awarding unproven and excessive damages.
8. The District Court erred in awarding attorney's fees under the contracts, a purported bad faith breach of contract, and under La.C.C.P. at. 1472.
9. The District Court erred in awarding attorney's fees in an amount which was unproven and unreasonable.

         Plaintiffs filed their brief on March 27, 2019. On April 5, 2019, Defendant filed a reply brief and additionally filed an exception of prescription reiterating its claim in its original brief that Plaintiffs' claims were prescribed. On April 15, 2019, Plaintiffs filed an opposition to Gilchrist's exception of prescription. On April 23, 2019, Plaintiffs filed a surreply brief. Pursuant to our discussion of assignment of error four below, Defendant's exception of prescription is denied.

         DISCUSSION

         We first note that Defendant does not argue that the jury was manifestly erroneous in its finding that it breached its contracts with Plaintiffs. Instead, it asserts a series of legal arguments to circumvent the jury's factual findings. Because the factual findings of the jury are of paramount importance in understanding the three contracts existing between the parties, we review the testimony given at trial.

         Plaintiffs' Case

         Drew Fontenot

         Fontenot testified that he had been married to Juanita Wilder Fontenot for about twenty-three years, had attended bible college, farmed, and was a hospice chaplain for many years. He testified about his long history of rice farming hundreds of acres of Fontenot land, which he still did as of the date of the trial. He discussed the 250 acres of the Wilder property which he had managed since he married Juanita. Of the 120 acres in question, Fontenot testified that he also farmed rice on that acreage in 2000. Fontenot testified about his initial meeting with Carey Marcantel of Gilchrist in which Marcantel told him that Gilchrist needed soil for the highway expansion. He described how Marcantel showed him other sites where ponds were created where the soil had been removed. Fontenot said that he believed it would improve the property and be a fun place to bring the grandkids so he told Juanita and June about Gilchrist's offer to purchase soil. He discussed the initial contract, the RIGHT OF ENTRY, he entered into on behalf of Juanita and June dated February 2, 2007. It states in pertinent part:

KNOW ALL MEN BY THESE PRESENT THAT I HEREBY GRANT AUTHORITY FOR THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, IT'S [sic] AGENTS, ENGINEERS, AND/OR CONTRACTORS THE RIGHT TO ENTER UPON MY PROPERTY ADJACENT TO THE RIGHT-OF-WAY OF THE CAPTIONED PROJECT FOR THE PURPOSES OF CONSTRUCTION, WITHOUT COST TO ME, Excavation/Embankment, AT PROPERTY LOCATED [HANDWRITTEN] multiple 40 acre tracts see description on back.
IT IS UNDERSTOOND THAT THIS GRANT IS MADE PROVIDED THAT GILCHRIST CONSTRUCTION COMPANY, L.L.C., WILL CORRECT ALL DAMAGES ARISING OUT OT ITS CONSTRUCTION OPERATIONS ON MY PROPERTY WHICH I HERERBY AUTHORIZE.

         The document is signed by Marcantel as representative for Gilchrist. Fontenot discussed meeting with Marcantel again and the subsequent "Agreement to Buy/Sell Dirt" (the Dirt Agreement) that Juanita and June entered into on June 25, 2007. That contract stated in pertinent part:

The buyer will maintain an access road for haul trucks to access the pit. Any clearing required to create the dirt pit will be performed by the Buyer with all cleared saplings or trees buried in the pit. Buyer will leave a clean, nicely shaped dirt pit to the sellers' satisfaction when all activities are complete. The slop[e] of the outer perimeter of the pit will be 4 to 1. The Buyer will also clear trees and brush on the outer perimeter of the tracts of land to property line. The Buyer will also construct an access road from Hwy 165 to Sellers land located at N.W. ¼ of NE ¼ of Section 7 Township 6 South; Range 4 West in Allen Parish North of existing Holiday Inn Express (referred to as Tract 1). The buyer will plate the bottom of the excavation if necessary, to ensure that the excavation holds water.
The Seller will be held harmless by Gilchrist Construction Company L.L.C. from any future damages, injuries and/or claims arising from the mining of dirt and clearing of vegetation on above tracts of land.
The Buyer will pay the Seller $.50 per cubic yard for all dirt that is purchased.
The Buyer will conduct a monthly survey of the excavated pit to determine the purchase quantity of dirt for each month, starting 30 days from the initial excavations. The Buyer will then pay the Seller every 30 days for dirt purchased. A copy of the survey will be included with each monthly payment. The seller, at any time, may bring in his own independent survey firm to verify Buyers quantities.
The Buyer will not dispose of any hazardous materials on this property.

         Fontenot testified regarding the third agreement that he said occurred about a week to ten days after the Dirt Agreement. Fontenot said he was called into the Gilchrist office and met with Alsey Lachney:

And his words was, Drew, I need, I would like permission to temporarily to put a couple or a few loads on your property. And then I know I stopped right then and I says what are you gonna do with them. He said it is gonna be temporary. I said then what are you gonna do? I am gonna move it. I am gonna haul it off. And I was very meticulous, I said, Alsey, Carey, look, I want to see it down to where my topsoil was so I can farm this. It was important to me to get it at that level because I had spent a lot of time when I was farming it to water level to make sure it would flood. I didn't want a lot of holes so I wanted it done right. He said, Drew, I will do it just like it was my own. And at that point I had had a lot of discussions with both of them. I trusted Carey. I have known Carey's family all my life. In fact I rented, leased some - I farmed rice on his grandpa's land. I was a tenant farmer on him for about five years. I just trusted them. And I believe he would temporarily store a few or a couple of loads.

         Fontenot said that approximately ten days after the verbal agreement he went out to the property and saw a pile comprised of rubble, concrete, asphalt, and broken pipe. On the top of the pile, which he described as higher than the ceiling in the courtroom covering an acre of land, was Fontenot's twenty-foot farm implement (a harrow) that he had purposely left near the road. He said that he thought that he and Lachney had a differing opinion of what constituted a "few loads" so he went to the Gilchrist office where Lachney reassured him that he would remove it all and restore the land. Fontenot testified that the harrow was never replaced. He said he never gave Gilchrist permission to dump anything on the property and leave it there.

         Fontenot next reviewed discovery responses by Gilchrist in which Gilchrist denied that it was aware that the dirt pit left on the property was not to Plaintiffs' satisfaction. Other pertinent discovery responses by Gilchrist regarding the oral agreement that was entered into between Fontenot and Lachney include (emphasis added):

REQUEST FOR ADMISSION NO. 13
Please admit or deny that Exhibit 1 does not provide for the disposal or dumping of material in or on the Fontenot/Wilder property.
RESPONSE:
It is admitted that Exhibit 1 does not give Gilchrist permission to dispose or dump material on the Fontenot/Wilder property. Drew Fontenot gave Alsey Lachney verbal permission for temporary disposal of material on the Fontenot/Wilder property.
REQUEST FOR ADMISSION NO. 14
Please admit or deny that a representative of Gilchrist Construction Company, L.L.C. asked Drew Fontenot if Gilchrist Construction Company, L.L.C. could temporarily dump "a couple of truckloads" of material on the Fontenot/Wilder property.
RESPONSE:
It is admitted that Drew Fontenot gave verbal permission to a Gilchrist representative to temporarily dump material on the Fontenot/Wilder property. It is denied that the permission was limited to a "couple of truckloads."
REQUEST FOR ADMISSION NO. 15:
Please admit or deny that in obtaining permission to temporarily dump material on the Fontenot/Wilder property, a representative of Gilchrist Construction Company, L.L.C. assured Drew Fontenot that all such material would be removed from the property.
RESPONSE:
Admitted.
REQUEST FOR ADMISSION NO. 16:
Please admit or deny that Gilchrist Construction Company, L.L.C. dumped and/or disposed of multiple truckloads of material, including concrete, asphalt, and /or debris, on the Fontenot/Wilder property.
RESPONSE:
It is admitted that Gilchrist dumped multiple truckloads of materials on the Fontenot/Wilder property. It is denied that the materials were "disposed of" on the ...

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