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SBL Construction, LLC v. Eymard

Court of Appeals of Louisiana, First Circuit

November 12, 2019

SBL CONSTRUCTION, LLC
v.
MICHAEL M. EYMARD AND TRAM INVESTMENTS, INC.

          ON APPEAL FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT NUMBER 119854, DIVISION E, PARISH OF LAFOURCHE STATE OF LOUISIANA HONORABLE F. HUGH LAROSE, JUDGE

          Christopher H. Riviere Todd M. Magee Thibodaux, Louisiana Counsel for Plaintiff - Appellee SBL Construction, LLC

          Martin Stewart Bohman Harry E. Morse New Orleans, Louisiana Victor R. Loraso, III Baton Rouge, Louisiana Counsel for Defendants - Appellants Michael M. Eymard and Tram Investments, Inc.

          BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.

          CHUTZ, J.

         Appellants, Michael M. Eymard and Tram Investments, Inc. (Tram), appeal the trial court's judgment against them, awarding $30, 000.00 for the balance owed on an open account in favor of appellee, SBL Construction, LLC (SBL), and denying relief on Tram's reconventional demand against SBL. For the reasons that follow, we reverse in part and affirm in part.

         FACTUAL AND PROCEDURAL BACKGROUND

         The evidence established that in September 2009, Eymard on behalf of Tram (a company that Eymard owns with his wife) and Frank Boura on behalf of SBL (a company that Boura owns) met at Eymard's office to discuss the construction of a bulkhead by SBL for Tram on Bayou Lafourche in Lafouche Parish. SBL utilized one of its invoices to provide an estimate to Tram.[1] The cost of the construction of the bulkhead was determined on a by-the-foot basis.

         Boura provided two options for the bulkhead, with each option consisting of different materials, and Tram selected the option that utilized thicker vinyl sheets and bigger pilings. Although SBL was asked to provide a bid for a 280-foot bulkhead, Tram changed the design and requested additional footage. The parties created no written documents to support the change. At the end of construction, SBL submitted an invoice to Tram, dated August 3, 2010, requesting payment of $92, 244.96, which reflected the construction of a bulkhead that was 336 feet.[2]

         As of May 12, 2011, Tram had paid all but $30, 000.00 of the amount SBL invoiced. When SBL demanded final payment, Boura was advised by Tram that the construction required remedial work because the bulkhead had bowed. Although Boura attributed the bowing to Tram's backfilling with sand, because he was advised by Tram that to collect the outstanding balance, he had to fix it and since he wanted to straighten it out before leaving the construction site, SBL undertook all the requests that Tram made. On August 16, 2011, and again on October 17, 2011, SBL sent written demands for $30, 000.00 to Tram after having completed the remedial work, but the outstanding balance remained unpaid.

         On March 22, 2012, SBL filed this lawsuit, naming Eymard and Tram as defendants and alleging entitlement to the balance of $30, 000.00. SBL specifically averred the amount owed was due on an open account and sought reasonable attorney's fees. Tram answered the lawsuit and asserted a reconventional demand, contending that SBL breached the parties' agreement by failing to perform in a proper and workman-like manner and rendering a defective and substandard performance. Tram alleged that its damages consisted of the cost of repair of the bulkhead. Shortly thereafter, SBL voluntarily dismissed Eymard from the litigation without prejudice.

         The matter proceeded to a trial on the merits at which testimonial and documentary evidence was adduced. On July 30, 2018, the trial court issued written reasons for judgment, concluding that the parties' agreement was an open account for which SBL was owed the balance due. The trial court also determined that Eymard and Tram failed to prove that SBL's construction of the bulkhead was defective and, therefore, were not entitled to relief. On July 31, 2018, the trial court signed a judgment that ordered Eymard and Tram to pay SBL the amount of $30, 000.00 for the balance owed on the open account and denied Tram's claims for relief on the reconventional demand. This appeal followed.[3]

         LIABILITY OF EYMARD

         Although the trial court cast Eymard in judgment, SBL does not dispute that he had been dismissed from the lawsuit prior to the trial on the merits. Accordingly, because SBL concedes that the portion of the judgment ordering Eymard to pay $30, 000.00 for the balance ...


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