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
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.
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.
AND PROCEDURAL BACKGROUND
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. The cost of the construction of the
bulkhead was determined on a by-the-foot basis.
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.
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.
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.
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
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 ...