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.
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 Defendant 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:
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
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:
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.
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.
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
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:
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:
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):
Fontenot testified that Gilchrist had not removed all of the surface debris and that Gilchrist buried construction debris on Plaintiffs' property, which he only learned of after the lawsuit was filed. He said that, although the excavation was completed in 2008, by 2010 the property had still not been cleaned up. He reviewed extensive photographic and video evidence of the debris and buried concrete on the property. Fontenot testified that he only wanted the debris removed and the property restored. On cross-examination, Fontenot was certain of Lachney's promise to remove and restore:
June testified that she currently resides in Metairie, Louisiana, and works as a chaplain for the New Orleans Police Department. She stated that Fontenot has always had her full authority to manage the farm on her behalf and that she authorized all of the dealings with Gilchrist. June testified that the property looks nothing like it did before Gilchrist arrived and that farm equipment could not be used on the land because it would tear up the equipment since there is so much concrete and asphalt remaining on the land.
Garber attained a Bachelor of Science degree in agronomy in 1974 and is a licensed crop consultant through the Louisiana Department of Agriculture. He was tendered as an expert in soil science and soil restoration. Garber testified that the only way to restore the area and remove the concrete, asphalt, and rebar from the soil would be to remove three feet of soil everywhere and replace with new soil. He stated:
Garber testified that he noted gravel throughout the property which should not be present at all in the type of soil existing in Allen Parish. He further discussed pH levels in detail using Daigle's testing to show that the pH levels were not normal for the area. Garber said that the land was not farmable in its present condition because of the obstructions consisting of fragments and boulders. He concluded that with the "combination of the objects out there, the fragments, and other items, along with the complication of the pH, the two together becomes a significant problem, and I think the best way would be to remove." He stated that the concrete, asphalt, and rebar all needed to be removed. In conclusion, he noted that he had never seen anyone farming rice on top of a landfill.
Landraneau, a civil engineer and land surveyor, testified regarding the pictures and surveying he conducted at the site. He also reviewed data provided by Defendant. Using Defendant's data, Landraneau determined that 12,000 cubic yards of dirt were removed from a separate pit (the ghost pit) on the Wilder property then, unexplainably, filled back up. Landraneau was also of the opinion that road construction debris was dumped in the main pit and that it was essentially being used as a landfill by Defendant. Landraneau described the type of road construction debris found subsequent to the surface cleanup efforts undertaken by Defendant:
Landraneau gave detailed measurements of the cubic feet of the pit at the time of excavation (180,000 cubic yards) and after (120,000 cubic yards). Landraneau concluded that a two-acre area was excavated but not shown on Defendant's final survey. He assumed that Defendant did not pay Plaintiffs for that work since it was not included on the survey. When asked what would be required to remove all of the debris from the 30-acre affected area and to restore it to what it was before, Landraneau stated that the soil
Landraneau testified that Charles Kingrey's estimate of $3,935,362.00 to remove and excavate the 30.47-acre area was a conservative estimate and certainly reasonable. He further felt that Kingrey's $1,623,036.00 estimate to restore the property was reasonable.
Kingrey, owner of Kingrey Dirt Work, Inc., testified that he has been in the dirt business for almost forty years. He testified to the extensive experience he has in a variety of large industrial projects requiring dirt. Kingrey said that he had contracted with many landowners to excavate dirt from their land. He testified he had done several jobs for Defendant. Kingrey computed total removal costs that included excavation, loading, trucking to a landfill, and dumping of the 30.74 acre affected area at $3,935,962.00. He calculated the restore cost of 16.57 acres at a depth of three feet and a volume of 110,673 cubic yards at a total cost of $1,623,036.00. Kingrey gave detailed testimony at how these figures were calculated which included fifteen trucks working eight hours per day for two hundred and sixty-seven days. Hauling costs amounted to $2,243,080.00, excavating and loading costs amounted to $1,068,000.00, and disposal costs amounted to $624,882.00 for a total of $3,935,962.00 for loading, hauling, and disposing. He testified that this was a very conservative estimate.
On cross-examination, Kingrey further testified that "in every area that we dug, there was soil cement, concrete, metal, asphalt, plastics" and that it would not be possible to sift out good dirt from soil cement and bring the other stuff to the landfill. He testified that the construction debris "is everywhere out there."
Lachney testified that he worked at Gilchrist for sixteen-and-a-half years before he was terminated due to a dispute between him and the owner. Lachney testified regarding the temporary storage of material on the Wilder property: "and he said how much, and I said a few loads." He said that he requested that some concrete loads be temporarily stored on the property until the concrete crusher could be obtained. Lachney denied any knowledge of the farm implement being on top of the concrete pile. He admitted that he told Fontenot that Defendant would clean up the property.
Lachney was questioned by defense counsel:
Lachney admitted that he entered into a verbal agreement with Fontenot to temporarily place debris on his property that would all be removed and the property cleaned up to his satisfaction. He admitted that he told Fontenot that he would treat the property as if it were his own. He further confirmed his prior deposition testimony that Defendant was obligated to clean up the chunks of concrete left on the property. Further reviewing his deposition, Lachney was asked, "Mr. Fontenot never agreed to allow Gilchrist to dump concrete in the pit. Answer, correct. Right?" to which Lachney stated that was still the truth. Lachney said that before he left the job, the surface concrete was removed and that he did not know that there was any concrete beneath the surface. He testified that Defendant would have cleaned up everything if Fontenot would have let them complete the job.
Grage, a twenty-seven-year employee of Gilchrist, testified that he went out to the property and conducted an inspection after Fontenot called him. Grage said that there was concrete, asphalt, PVC pipe, and "stuff like that" on the property that should not have been there. Grage contacted Dirk Fontenot and arranged for the property to be cleaned. Grage said that Drew Fontenot was pleased with the work that was done and that was the end of the story. Grage knew nothing of the buried concrete and construction debris and, at that time, the pit was full of water so the material dumped in the pit could not be seen. Grage admitted that the property was not left to the satisfaction of the owner and that concrete chunks should not have been left on the property. He testified that it was Defendant's duty to clean it up. Grage said that, had he known there was construction debris buried underneath the property, he would have handled the matter differently.
Dirk Fontenot, a 20-plus-year employee of Gilchrist, testified that he was called by Grage to do a cleanup of the pit on the Wilder property over a 40-acre area. He said that he met with Drew Fontenot at the site. He noticed concrete, rebar, plastic pipe, and asphalt on the property. He worked cleaning up the site for about a month. He denied burying any of the debris. Dirk said he removed about six truckloads of concrete with "a bunch of rebar in it" from the site. Dirk said that Drew Fontenot seemed pleased with the work completed, but that in November 2010, he called to report finding more concrete. Dirk said that he went back to the site but, because of the rain, the crew was not able to accomplish much. Dirk said that after that time they never went back to the site. Dirk stated that the cost of the clean-up amounted to $76,431.77. On cross-examination, Dirk was questioned:
Daigle, a retired soil scientist, was admitted as an expert in agronomy, soil science, soil classification, soil mapping, soil interpretation, and soil restoration. Daigle was to present a slide show explaining soil types, but Plaintiffs' counsel objected. Instead, Daigle gave an in-depth lecture about soils. He concluded that Kingrey's estimation of 12 or 18 inches of topsoil for restoration was "not natural" and that the range in Allen parish is "around four to around eight or nine inches." He further concluded that:
On cross-examination, Daigle admitted that he only sampled areas where Gilchrist had performed work on the soil. He took no control samples from undisturbed areas of the land and admitted that he "consulted with [Gilchrist lawyers] to make sure they didn't want me to find anything on a different scale[.]" None of his samples were taken from the ghost pits on the property although he hit a rock in one sampling and had to move north by twelve inches. He had no knowledge of the dumping. The testing consisted of 26 two-inch holes in the ground to determine the type of the soil. However, on redirect Daigle denied purposely avoided the ghost pits in his sampling.
Willis, a civil and environmental engineer and geoscientist, was qualified as an expert. Willis disagreed with Landraneau's estimation of the of the volume of the pit. Willis determined that the pit was 14 acres. Willis' testimony was that, if there were 60,000 cubic yards of debris in the pit, someone would have noticed it. He opined that an $8.00 probe rod would have revealed concrete in the pit. He stated,
Willis further testified that having concrete in the pond is not necessarily a bad thing as it gives structure to the pond. He concluded that there had not been enough investigation to determine if the pond needed to be completely excavated. Although he admitted that there was definitely concrete out there "and some of it looks terrible," he concluded that it was impossible to say how much concrete was present without more sampling. However, Willis gave a long analysis basically to say that if three feet of dirt was removed and construction debris placed in the pit, the three feet of dirt had to be moved somewhere and there is no evidence of where it had gone to. Willis came up with a figure of $711,480.00 based on seven- or eight-acres worth of buried concrete that would require removal and restoration. Willis spent about six hours on the property, although he was given two days. In that time, he did not go out to the property with a probe rod and a boat and test the pit for concrete.
Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).
While we will not disturb a jury's finding in the absence of manifest error, if
St. Bernard Port, Harbor & Terminal Dist. v. Violet Dock Port, Inc., LLC, 17-434, pp. 14-15 (La. 1/30/18), 239 So.3d 243, 254.
In its first assignment of error, Defendant argues that the trial court changed the legal standard for the case four days prior to trial. It claims that the summary judgment of June 2014 only required that it restore the property to a condition suitable for farming and yet at trial, the standard had changed because the trial court (now comprised of a different judge after several recusals and the death of one judge) found on March 8, 2018, that the issue of whether the land was "farmable" was not relevant to the issue of whether remediation was required. Defendant argues that Plaintiffs originally had to prove that the land was no longer farmable and that, by the time of trial, they need only prove that materials remained on the property.
At the motion for new trial and now in brief, Defendant argues that the trial court determined that there was an express agreement to restore by stating that Corbello applied thereby removing that finding from the purview of the jury. We disagree. The issue of whether there was
Moreover, Defendant's appellate counsel did not try the case. At trial, Defendant did not challenge whether it owed a duty to remove and restore. Every Gilchrist employee testified that Defendant was obligated to remove the construction debris left behind and bring the property back to the satisfaction of Drew Fontenot. This was not disputed. At trial, much like in Corbello, the issue of what would be required to restore the property was hotly debated. The experts addressed the very issues that Defendant now complains of— what would it take to restore the property—as that is what Defendant expressly agreed to do in its oral contract entered into by Lachney. Defendant had its opportunity to put on its witnesses who claimed the property was suitable for farming even with the buried pits of construction debris, but the jury obviously did not credit that testimony.
Defendant states in its brief:
We disagree. The issue of whether the land was farmable was not the central issue in this case. The existence of a contract to remove and restore the land was not a central issue in this case. Defendant admitted in discovery and over the course of the trial that it was obligated to remove the construction materials and restore the land. The central issue in this case was whether Defendant breached that contractual obligation to restore. Corbello only becomes a factor in determining what reasonable restoration entails in a breach of contract dispute.
In brief, Defendant states, "The only other logical manner in which Plaintiffs could show damage to their property would be to establish that the existence of materials left on the property diminished the value of the land." Again, we disagree. Defendant claims that "by removing the requirement that Plaintiffs show that any materials left on the property resulted in damage to the property, Plaintiffs were entirely released from having to prove an essential and necessary element of their breach of contract claim." Moreover, Defendant mischaracterizes the burden bestowed upon Plaintiffs in this case, i.e., to prove that the land was no longer farmland.
The jury found that Defendant breached its obligation to remove and restore the property. While Defendant focuses on the nature and value of the property, the oral contract between the parties was that the construction debris would be removed, and the property restored to the satisfaction of Fontenot and Plaintiffs. Fontenot testified, and no one disagreed, that the land was farmland. Fontenot said that he wanted the property to be farmland as it was before and that is the obligation that was breached.
In its second assignment of error, Gilchrist argues that the trial court erroneously applied the standard set forth by the Louisiana Supreme Court in Corbello, 850 So.2d 686. Defendant argues that it "did not clearly and expressly obligate itself, after full and complete negotiation, to restore Plaintiffs' property to its original condition as did Shell in Corbello." Many of Defendant's arguments rest on this notion that the application of Corbello completely changed the nature of this trial. The facts of Corbello are strikingly similar to the ones here, except that Shell had a written contract with the landowners to "`reasonably restore the premises as nearly as possible to their present condition.'" Id. at 694. The issue in Corbello was what constituted reasonable restoration. Shell argued that the award of $33,000,000.00 to restore the property was unreasonable as it was 300 times the market value of the land.
As in Corbello, the case at bar sounds in contract, not in tort as was the case in Church, 618 So.2d 874, which Defendant claims should control. The supreme court in Corbello made it very clear that market value has no bearing in breach of contract cases involving restoration. As in this case, the jury in Corbello was tasked with determining the cost of reasonable restoration. Accordingly, the supreme court in Corbello found that the jury did not manifestly err in casting Shell with $33,000,000.00 in cleanup and restoration costs. The supreme court stated:
Corbello, 850 So.2d at 693-95.
In assignment of error three, a variation on a theme, Gilchrist argues that "there was no express agreement to restore Plaintiffs' property to its original condition." The jury found that there was a contract to restore the property to its original condition. We find no manifest error in that finding. The testimony of Fontenot, Lachney, and others made it clear that an oral contract to restore existed between the parties. Furthermore, the actions of the parties made it evident that the parties were aware of the duty to restore since Defendant sent out people to do that very thing, i.e., Grage and Dirk Fontenot. The existence of a contract to restore the property, as noted above, was not disputed.
Next, Defendant reiterates its claim that leaving tons of construction debris buried underground are not "damages." In this assignment, Defendant argues that the oral agreement between Fontenot and Lachney created a right of use, and the "obligation to use the property as a prudent administrator does not equate to a promise to completely restore the property to its original condition." Defendant further claims that Lachney's testimony that he did not recall using the word "restore," but instead used terms like "make it back to [Fontenot's] satisfaction" and that he would "treat the property like he would his own" are insufficient to create an obligation to restore the property. We disagree. As discussed below in the assignment relating to evidentiary rulings, the existence of the contract was not the issue. Defendant never denied that the oral contract to remove and restore existed, nor did it put forth any evidence suggesting that it did not exist. It only argues that now, in briefs to this court, after admitting in discovery responses to its existence. The issue in this trial was whether Defendant breached the contract by failing to remove the construction debris it left behind and whether it breached the contract by failing to restore the property. Defendant cannot now have a new trial at the appellate level on the issue of whether an oral contract existed. Defendant further raises for the first time on appeal the issue of Fontenot and Lachney's legal authority to enter into the agreement. This issue will also not be tried for the first time at the appellate level. This assignment of error is without merit.
In this assignment of error, Defendant argues that since "there was no express agreement [to restore the property to its original condition], Plaintiffs' claims sound in tort and were prescribed." Defendant states: "Plaintiffs claim that Gilchrist exercised its right of use in such a manner which caused unreasonable damage and/or failed to properly repair the property in a prudent and workmanlike manner. Those claims sound in tort, subject to a one-year prescriptive period." For the reasons mentioned above, this is a contract claim subject to a ten-year prescriptive period. See La.Civ.Code art. 3499.
The facts and factual findings of the jury in this case are that Defendant breached the contract by failing to remove the construction
In this assignment of error, Defendant again complains that it was not allowed to prove that Plaintiffs' property was not damaged because it was still suitable for farming, and the value of the property was not diminished. The value of the land in real-estate terms is completely irrelevant, as found by the trial court and for the reasons stated above. Pursuant to the reasoning in Corbello, the exclusion of the market value evidence was not in error.
Defendant further complains that its soil expert, Daigle, was prevented from using a PowerPoint presentation to give a lesson on soil types. The expert was allowed to testify and gave very thorough explanations of soil and what the effect of the dumping had on the soil and whether it was suitable for farming. The PowerPoint presentation at issue did not bear on issues critical to the jury's job. Daigle wanted to teach a lesson in soil types. The presentation would have been informative and would not have created confusion or delay. Therefore, it should have been allowed. However, we also find that it was harmless error to exclude the PowerPoint presentation because Daigle was allowed to testify and did so otherwise unfettered.
Finally, in this assignment of error, Defendant also complains about the last-minute discovery of even more buried boulders on Plaintiffs' property by Fontenot about which he commented at trial, "big boulders, more than I have ever seen," before the trial court shut down the line of inquiry after Defendant objected. We find this comment of little consequence, as the tons of buried construction debris had already been discussed and viewed by the jury. This assignment of error is without merit.
In its sixth assignment of error, Defendant continues its theme that there was a genuine issue as to whether the parties agreed to restore the property to its original condition. As previously noted, in discovery responses, Defendant admitted to the existence of the oral contract to remove and restore. Every Gilchrist representative, including the person who entered into the oral contract, testified as to the existence of the oral contract existing between Defendant via its agent, Lachney, and Fontenot. Defendant even sent out its employees (Grage and Dirk Fontenot) to attempt to restore the surface conditions of the property. Because there is no manifest error in the jury's finding that an agreement to remove and restore existed, the complained of statement that the trial court gave to the jury, that "Defendant disputes that the agreement calls for restoration of the property and disputes the nature, extent and costs of removal and restoration[,]" has no merit. It appears that Defendant is arguing that the jury verdict form should have included a question along the lines of, "Do you find that an express agreement to restore the property to its original condition existed?" The jury affirmatively answered this question in its finding that Defendant breached its contractual obligation. Moreover, Defendant failed to object at any of the stages relating to jury instructions or the verdict form.
This argument ignores the fact that Defendant admitted in discovery that an agreement to remove and restore existed, that its employees testified to such an agreement, and that it introduced no evidence to refute the existence of the oral contract to remove and restore. Defendant cannot now backtrack via its brief and attempt to argue that that agreement did not exist because of what it deems to be an outrageous restoration award. This assignment of error is without merit.
In this assignment of error, Defendant argues that the damages awarded "are outrageously out of proportion with the value of the land." The value of the land is irrelevant and the reason for that is clearly explained by Corbello. A construction company would never remove and restore if it knew it would be advantageous from a cost-benefit standpoint to just leave the construction debris behind and bury it. As stated in Corbello:
Id. at 696.
Plaintiffs' experts, Garber and Kingrey, gave detailed explanations of how they arrived at the costs to remove debris and restore the property. Both testified that the sums were on the very conservative side. The jury clearly valued that testimony over Willis's testimony that the entire area probably did not need to be excavated. The jury obviously did not find Daigle's testimony persuasive, and we can find no manifest error in that finding. While Defendant goes to great length to discuss how buried concrete boulders, rebar, and construction debris really are not that harmful to the land and perhaps may even be of benefit to it, the jury did not agree. Defendant emphasizes that the award is seventy times the value of the property; however, it seems to completely miss the point that the cost to return the property to its former condition as it expressly agreed to do was $5,500,000.00. This assignment of error is without merit.
There are few premises of law more axiomatic than this: "As a general rule, attorney fees are not allowed in Louisiana unless they are authorized by statute or provided for by contract." Langley v. Petro Star Corp. of La., 01-0198, p. 3 (La. 6/29/01), 792 So.2d 721, 723. In the case at bar, the trial court instructed the jury (emphasis added):
The verdict form asked the jurors, "Do you find that Plaintiffs are entitled to attorney's fees under the contract?" to which the jury checked "yes." The trial court thereafter set the amount of attorney fees at $2,200,000.00, following a lengthy hearing on the matter.
Defendant first argues that Plaintiffs' claims arise out of the verbal agreement and not the initial Agreement to Buy/Sell Dirt, as was presented to the jury. Defendant claims that the issue of attorney fees should be limited to the oral agreement regarding removal and restoration which states nothing about attorney fees. Defendant next makes the legal argument that the hold harmless provision in the Buy/Sell agreement does not mention attorney fees, that this standard indemnification clause applies to third parties, and that it is not applicable in an action to enforce a contract between the parties. Plaintiffs argue that Defendant's standard form contractual provisions must be interpreted against it as the drafting party and that neither the first nor second contract limits the damages to claims by third parties.
We agree with Defendant and find it was legal error for the trial court to submit the issue of attorney fees based on the Agreement to Buy/Sell Dirt. Although we defer to the jury's findings in all cases in the absence of manifest error, we cannot when the jury's finding is premised on an inaccurate application of the law. The Agreement to Buy/Sell Dirt is not the agreement that is the subject of this lawsuit. The entire issue at trial was the existence and breach of the contract to remove and restore. Even if the Agreement to Buy/Sell Dirt was the contract at issue, we agree with Defendant that "by its plain terms, the hold harmless provision only applies to `damages, injuries and/or claims
This is a standard third-party indemnification clause meant to indemnify Plaintiffs (obligees/indemnitees) in the event a third-party sued them as a result of a negligent act by Defendant (obligors/indemnitors). The general and well-established rule is that attorney fees must be expressly provided for in contract or a statute. State, Dep't of Transp. & Dev. v. Williamson, 597 So.2d 439 (La.1992). Moreover, there is no Louisiana jurisprudence authorizing the award of attorney fees in a direct indemnity contract except for the case of Curtis v. Curtis, 28,698 (La.App. 2 Cir. 9/25/96), 680 So.2d 1327. Curtis involved an indemnification agreement created between two former spouses. The court in Curtis found:
Id. at 1332-33.
While Curtis found that attorney fees were implied, the facts of that case are inapplicable to the facts here. The language of the indemnity provision in Curtis clearly applies to the parties to the contract, i.e., the former spouses. The plain language of the indemnity provision in the Agreement to Buy/Sell Dirt reveals no indication that the agreement was a direct one. While any confusion could have been cleared up by the insertion of "third-party" before the word "claims" in the indemnity contract, we have no doubt that this indemnity contract was meant for third parties.
Regardless of how we may interpret the provisions of this contract, the more fundamental fact is that this case revolves around the breach of an entirely different contract, the oral contract to remove and restore. That contract was totally silent on the issue of attorney fees. Therefore, we find it was legal error for the trial court to submit the indemnification language to the jury to determine whether attorney fees were warranted under the Agreement to Buy/Sell Dirt. However, this does not end the inquiry regarding the award of attorney fees.
Louisiana Civil Code Article 1997 provides: "An obligor in bad faith is liable for all the damages, foreseeable or not, that are a direct consequence of his failure to perform." The jury was specifically presented with the question of whether Defendant "acted in bad faith in breach of its obligation?" which it answered affirmatively. The trial court's judgment incorporates the bad faith finding as support for its award of attorney fees in favor of Plaintiffs as it states:
Although we find no manifest error in the finding that Gilchrist breached its obligation in bad faith, we find the trial court legally erred in awarding attorney fees pursuant to La.Civ.Code art. 1997. We note that Plaintiffs did not brief this issue in their appeal nor did the trial court address the bad faith breach award of attorney fees in its reasons for judgment. As Defendant points out, the courts of this state have repeatedly held that attorney fees are not allowed under La.Civ.Code art. 1997. The supreme court in Sher v. Lafayette Insurance Co., 07-2441, 07-2443, p. 18 (La. 4/8/08), 988 So.2d 186, 201, unequivocally stated as such:
Accordingly, we find the trial court legally erred in awarding attorney fees pursuant to this statute. Nevertheless, the legal error did not prejudice Defendant, as attorney fees were properly awarded under La.Code Civ.P. art 1472.
Louisiana Code of Civil Procedure article 1472 provides:
A trial court has vast discretion in awarding attorney fees under this statute, and we will not disturb its finding in the absence of abuse of that discretion. Anderson v. Moreno's Air Conditioning, Inc., 14-27 (La.App. 3 Cir. 6/4/14), 140 So.3d 841, writ denied, 14-1392 (La. 10/3/14), 149 So.3d 800. In Brodtmann v. Duke, 98-1518, pp.7-9 (La.App. 4 Cir. 3/21/01), 803 So.2d 41, 45-46, writs denied, 01-3184, 802 So.2d 637 (La. 12/05/01), 02-0334, 813 So.2d 409 (La. 4/12/02), the appellate court discussed Article 1472:
Regarding the award of attorney fees under this article, the trial court in its reasons for judgment stated:
We find that the trial court did not err in the application of La.Code Civ.P. art. 1472 to the facts of this case as the record supports the trial court's finding. Defendant denied burying construction debris on Plaintiffs' land and denied that it had not removed all of the debris. It never wavered from this claim from the beginning of trial through now.
Defendant relies on Brodtmann, 803 So.2d 41, to assert that the attorney fees awarded under this statute must be limited to costs associated with proving the fact Defendant denied, i.e., the burying and failure to remove the construction debris. In Brodtmann, the appellate court affirmed the trial court's denial of attorney fees under this article and did not expound on the reasonable costs issue. In this case, the burying of construction debris and failure to remove it was a central issue in this case. Defendant had no basis for denying that fact. The jury found Defendant was in bad faith for breaching its obligation. Moreover, we must give deference to the trial court. A large part of the trial revolved around this issue. Accordingly, the award of attorney fees is appropriate under La.Code Civ.P. art. 1472.
Thus, the only authority supporting an award of attorney fees is found in La.Code Civ.P. art. 1472. Since its inception in 1976, Article 1472 has rarely been used to award attorney fees. In Boseman v. Orleans Parish School Board, 98-1415, pp. 8-9 (La. App. 4 Cir. 1/6/99), 727 So.2d 1194, 1198, writ denied, 99-0390 (La. 4/1/99), 742 So.2d 554, the appellate court noted as such along with the reasoning behind Article 1472:
Id. at 490 (some footnotes omitted).
The Boseman court awarded $1,000.00 for expenses and attorney fees. McElveen v. City of New Orleans, 03-1609 (La.App. 4 Cir. 9/14/04), 888 So.2d 878, writ denied, 04-2527 (La. 12/17/04), 888 So.2d 870, in which the appellate court affirmed the trial court's award of $11,130.90 for attorney fees and costs, represents the highest amount awarded to date under La.Code Civ.P. art. 1472. A panel of this court reversed the trial court's denial of an award under La.Code Civ.P. art. 1472 in Knepper v. Robin, 99-95 (La.App. 3 Cir. 11/17/99), 745 So.2d 1248, and awarded $10,000.00 in attorney fees, but the supreme court reversed the award. Knepper v. Robin, 99-3572 (La. 2/18/00), 754 So.2d 955. The other decisions involving awards under this statute involve minimal amounts. See Addison v. Thompson, 556 So.2d 195 (La.App. 2 Cir.), writ denied, 559 So.2d 1386 (La.1990) (affirming award of $1,000.00 in attorney fees); Settles v. Paul, 46,209 (La.App. 2 Cir. 4/13/11), 61 So.3d 854 (affirming award of $5,000.00 in attorney fees); See v. Entergy Corp., 09-535 (La.App. 3 Cir. 11/4/09), 24 So.3d 267 (affirming award of $2,000.00 in attorney fees); and, New Orleans Pub. Serv., Inc. v. Checker Cab Co., 332 So.2d 489 (La.App. 4 Cir. 1976) (affirming award of $100.00 in attorney fees).
While Defendant failed to admit the existence of the buried debris, a fact it could not reasonably deny, we find that the trial involved other issues such as the contracts between the parties, the law applicable to the facts at hand, and the extent of the removal and restoration required. Nevertheless, we find the issue of the buried debris to be a significant one as did the jury.
The trial court heard an hour-and-a-half of testimony regarding the attorneys' work in Plaintiffs' case, amounting to between 6,000 to 8,000 hours over the course of seven years of litigation. During that time, Plaintiffs' counsel had to deal with issues of lost documents and missing computer records. In 2013, Plaintiffs' counsel spent a significant amount of time arguing over discovery, reviewing documents, and amending responses all while attending site inspections and attempting to depose Gilchrist employees. He testified to problems that arose from conflicting responses from Defendant's various attorneys that all had to be reconciled. Trial preparation, including preparing to prove that debris was buried on Plaintiffs' property, occupied at least two lawyers working full time on this case alone for at least three months. Nevertheless, there were other issues in the case besides whether debris was buried on the property; accordingly, we find that the trial court erred in awarding 40% of the total jury award. We find that the most that can be awarded under La.Code Civ.P. art. 1472 for attorney fees is $1,000,000.00. Accordingly, we amend the award of attorney fees to $1,000,000.00.
The jury did not manifestly err in finding that an oral contract to remove and restore existed and that Defendant breached that contract in bad faith. Accordingly, the judgment of the trial court awarding Plaintiffs-Appellees, Juanita W. Fontenot and June T. Wilder, $5,559,000.00 is affirmed. The award of attorney fees is amended and reduced to $1,000,000.00. All costs of this appeal are assessed against Defendant-Appellant, Gilchrist Construction Company, LLC.
