JUANITA W. FONTENOT AND T. JUNE WILDER
GILCHRIST CONSTRUCTION COMPANY, LLC
FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT PARISH OF
ALLEN, NO. C2012-146 HONORABLE F. RAE SWENT, AD HOC.
J. Foster, III John T. Andrishok Breazeale, Sachse &
Wilson, L.L.P. COUNSEL FOR DEFENDANT/APPELLANT: Gilchrist
Construction Company, L.L.C.
J. Pitre, Jr. Jane A. Jackson Kelly Hart Pitre COUNSEL FOR
DEFENDANT/APPELLANT: Gilchrist Construction Company, L.L.C.
E. Rundell Kay H. Michiels Stephen A. LaFleur Gold, Weems,
Bruser, Sues & Rundell COUNSEL FOR DEFENDANT/APPELLANT:
Gilchrist Construction Company, L.L.C.
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
T. Watson Bagget, McCall, Burgess, Watson & Gaughan
COUNSEL FOR PLAINTIFFS/APPELLEES: Juanita W. Fontenot T. June
Herbert Todd Nesom District Attorney, Thirty-third Judicial
District Court COUNSEL FOR PLAINTIFFS/APPELLEES: Juanita W.
Fontenot T. June Wilder
composed of Shannon J. Gremillion, Candyce G. Perret, and
Jonathan W. Perry, Judges.
SHANNON J. GREMILLION JUDGE.
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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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
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
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.
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.
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
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
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
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.
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
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