Judge Joy Cossich Lobrano.
This breach-of-contract action arises from a long-standing dispute relating to a 1996 construction contract entered into by appellees, Sterling Doucette and Doucette & Associated Contractors, Inc. (collectively "Doucette"), and appellants, Angele Jackson Guient and Borjius Guient (collectively the "Guients"), to build the Guients' residence in New Orleans, Louisiana. For the reasons that follow, we affirm in part and reverse in part the district court's award of damages to Doucette. We affirm the district court's judgment awarding no damages to the Guients on their reconventional demand. Lastly, we reverse the district court's award of attorney's fees to Doucette.
In April of 1996, Doucette and the Guients entered into a contract for the construction of the Guients' new home. The Guients provided Doucette with plans and specifications prepared by their architect. The original contract price was $177,000.00. The Guients paid Doucette a total of $159,300.00 for the work, withholding the final $17,700.00 payment due to alleged deficiencies in the work, delays in construction, and Doucette's failure to complete the home.
In September of 2003, seven years after executing the contract, Doucette sued the Guients to recover the cost of change orders and the unpaid balance due on the contract. Doucette sought $48,219.65 in damages for breach of contract and requested attorney's fees. Doucette asserted that he was entitled to the unpaid balance due under the original contract, as well as $30,519.65 for oral and written change orders allegedly agreed to by the Guients.
In response, the Guients filed a Reconventional Demand to recover amounts they allegedly expended to complete the construction of the home. They also sought damages for the devaluation of the property allegedly caused by Doucette's delay and poor workmanship. They alleged that Doucette failed to construct the home in accordance with the plans and specifications. The Guients sought $60,786.66 in damages, which included the cost of labor and materials to complete the construction, the devaluation of the home because of Doucette's failure to follow the plans and specifications, and costs.
The record shows that nothing was filed for another three years, until March 8, 2007, when the Guients filed an Ex Parte Motion to Dismiss Action Based Upon Abandonment pursuant to La. C.C.P. art. 561. The Guients argued that, because the
Thereafter, Doucette filed a Motion to Set Aside Dismissal. In this motion, Doucette argued that, pursuant to several Executive Orders issued by the Governor of Louisiana in the wake of Hurricanes Katrina and Rita, the three-year abandonment period was suspended from September 6, 2005 through November 25, 2005.
On June 12, 2007, the Guients filed a Motion for New Trial, urging reconsideration of the Motion to Set Aside Dismissal, arguing that under La. R.S. 9:5822 (which codified the Governor's Executive Orders regarding prescription, with certain exceptions), the abandonment period was not suspended. In Doucette's opposition to the Guients' Motion for New Trial, Doucette argued for the first time that the five-year abandonment period set forth in La. C.C.P. art. 561(A)(2) applied because Doucette was unable to prosecute the action due to the Hurricane Katrina evacuation.
A one-day bench trial was finally held in April 2015. On July 31, 2015, the district court rendered a judgment in favor of Doucette and against the Guients, awarding Doucette the sum of $48,219.65, 40% of that amount in attorney's fees, plus costs and filing fees. The district court did not award the Guients damages on their Reconventional Demand. The Guients now appeal the July 31, 2015 judgment, along with the interlocutory judgment granting Doucette's Motion to Set Aside Dismissal.
This appeal timely followed.
First, the Guients appeal the interlocutory judgment granting Doucette's Motion to Set Aside Dismissal. As a threshold matter, Doucette contests this assertion by stating that this Court has no jurisdiction to review interlocutory judgments. "It is well-settled that although an interlocutory judgment may not itself be immediately appealable, it is nevertheless subject to review by an appellate court when a judgment is rendered in the case which is appealable." Favrot v. Favrot,
Whether an action has been abandoned is a question of law.
Although La. R.S. 9:5822 provides that all prescriptive periods shall be suspended or extended during the time period between August 26, 2005 through January 3, 2006, this 89-day suspension or extension applies only if the prescriptive period would have otherwise lapsed during this time period. In the case sub judice, it is undisputed that the three-year abandonment period lapsed on February 14, 2007, which was not during the period between August 26, 2005 and January 3, 2006. La. R.S. 9:5822, therefore, does not apply. See Harris v. Stogner, 2007-1451, p. 3 (La. 11/9/07), 967 So.2d 1151, 1152 (finding that plaintiff abandoned his claims by not taking action in the suit until June 13, 2006, after the period set forth in La. R.S. 9:5822). Thus, the district court erred in setting aside the dismissal of the case.
However, unlike a plaintiff's actions, which cannot undo abandonment, "[c]ertain actions taken by a defendant after the accrual of the abandonment period can constitute a waiver of the right to have a case dismissed for abandonment." True Gospel of Jesus Christ Church Ministry v. Doucette, 2008-0634, p. 6 (La.App. 4 Cir. 11/19/08), 999 So.2d 795, 798. This takes place when a defendant has "taken steps that facilitated the judicial resolution of the dispute on the merits and were an expression of the defendant's willingness
"In determining whether a waiver of the right to assert abandonment occurred, the jurisprudence has recognized the appropriateness of considering the qualitative effect of the defendant's conduct." Slaughter v. ARCO Chem. Co., 2005-0657, p. 14 (La. App. 4 Cir. 4/26/06), 931 So.2d 387, 396 (internal citations omitted). Importantly, the Guients never sought supervisory writs from the district court's decision granting Doucette's Motion to Set Aside Dismissal.
"Moreover, the threat of abandonment serves to hasten all suits to judgment." Slaughter, 2005-0657 at p. 19, 931 So.2d at 399. "Once a case is submitted, its disposition is out of the hands of the parties, and nothing is gained by penalizing them for what they have failed to do before that point." Id. "Nothing is served by allowing the defendant to have a case submitted for judgment declared abandoned." Id. Despite the district court's error in granting Doucette's Motion to Set Aside Dismissal, the Guients waived their right to assert abandonment. As a result, we reach the merits of their claims.
The Guients argue that the district court erred in failing to find that Doucette performed his contract in an unworkmanlike manner; awarding Doucette damages, including attorney's fees, for that unworkmanlike performance; and finding that the Guients authorized oral change orders resulting in an additional award of damages. The standard of review for a damage award for breach of contract is whether the district court abused its discretion. Stallings Const. Co. v. Klein Steel, Inc., 2012-1482, pp. 3-4 (La.App. 4 Cir. 3/27/13), 112 So.3d 389, 392.
The Guients assert that because Doucette performed his work in an unworkmanlike fashion, he was not entitled to the outstanding balance on the contract price awarded by the district court, $17,000.00. Substantial performance of a contract entitles the performer to the balance due under the contract, less the
The district court's finding of substantial performance is manifestly erroneous.
As to the change orders, Sterling Doucette, Sr., testified as to the existence of a myriad of written and verbal change orders allegedly approved by Ms. Guient. One written change order was presented to the district court, for a closet extension and the removal of columns from the family room entryway. For this change order, the district court awarded Doucette $14,519.65. Given that this award was supported by testimony and documentation, we affirm this portion of the judgment.
However, the district court also awarded damages for three verbal change orders: $4,106.52 for installation of additional windows, $2,639.00 for relocation of the stairs, and $9,254.48 for "designing installation and installing gas lines, installing crown molding, installing ceramic floors instead of vinyl floors, mirrors, and bathroom accessories." Whether or not a verbal agreement is valid is a question of fact; and further, written contracts may be modified by oral agreement, even when the written contract forbids such modification. Pelican Elec. Contractors v. Neumeyer, 419 So.2d 1, 5 (La. App. 4 Cir. 1982) (internal citations omitted). A review of the transcript indicates that Ms. Guient testified specifically that she never approved these change orders and that she continued to argue with Doucette about them throughout the construction of the home. Further, these orders were contrary to the plans; resulted in delays in construction; and were, according to Doucette's own uncontroverted testimony, contrary to the contract Doucette provided. In fact, Doucette's contract provided that even emergency change orders should be reduced to writing. Nothing in the record provides an explanation as to why Doucette failed to follow their own procedure.
Given the lack of any verification of these expenses, the contradictory testimony, and the question as to why Doucette did not follow its own procedure, the district
The Guients next contend that the district court erred in finding that they are not entitled to damages for their reconventional demand. They argue that the evidence presented at trial established that Doucette's failure to complete the house in a timely and workmanlike manner in accordance with the plans and specifications caused them damages in the form of: (1) payments to other subcontractors to complete Doucette's work; (2) devaluation of the home; and (3) penalties and interest on the Guients' construction loan.
"The standard of review for a factual finding is the manifestly erroneous or clearly wrong standard." Klein Steel, 2012-1482 at p. 3, 112 So.3d at 392 (internal citations omitted). Where there is conflicting testimony, reasonable evaluations of credibility and inferences of fact are subject to the strictest deference. Id.
La. C.C. art. 2769, which governs building and construction contracts, provides in pertinent part:
First, addressing the Guients' claim for damages relating to paying other subcontractors to complete Doucette's unfinished work, Ms. Guient testified that the Guients withheld $17,700.00 of the purchase price from Doucette, yet had to pay other subcontractors a total of $20,786.66. Doucette also admitted to terminating an air conditioning subcontractor and not completing the work, resulting in a lawsuit being filed against the Guients. Ms. Guient testified that the Guients paid that subcontractor "over 5,000 dollars."
Although a plaintiff can establish damages through evidence consisting only of his or her testimony, such testimony is subject to the trier of fact's evaluation of credibility. Buddy's Tastee # 1, Inc. v. Tastee Donuts, Inc., 483 So.2d 1321, 1323 (La. App. 4th Cir. 1986). Although the record shows that the Guients did have to complete significant work on the home, the district court evidently did not find that Ms. Guient's testimony on the amount of money spent to complete the home credibly
Further, the Guients asserted in their Reconventional Demand a claim for $40,000.00 in damages for the devaluation of the property caused by Doucette's alleged failure to comply with the plans and specifications. Ms. Guient admitted at trial that the original contract price was $177,000.00 and that the Guients paid Doucette only $159,300.00 to build the house. Ms. Guient also testified that she and her husband sold the flooded house in a gutted condition following Hurricane Katrina in 2006 for $310,000.00.
At trial, Ms. Guient testified that the Guients had to pay their lender "almost three times what [their] mortgage would have been" in penalties and interest on their construction loan due to Doucette's failure to timely complete the project. Specifically, Ms. Guient testified that the Guients had to pay $5,400.00 per month for an additional six months. Again, other than Ms. Guient's testimony, the Guients submitted no documentary evidence showing the amount of the alleged penalties and interest that they had to pay their lender, such as bank statements or canceled checks. In the absence of such substantiating evidence, we find that Ms. Guient's testimony alone regarding payments of penalties and interest was insufficient to establish with legal certainty the amount of these alleged payments. Cf. Harbor Constr. Co. v. Bd. of Supervisors of Louisiana State Univ. and Agricultural and Mechanical College, 2010-1663, pp. 18-19 (La.App. 4 Cir. 5/12/11), 69 So.3d 498, 507-08 (sufficient evidence supported amount of damages claimed by contractor where contractor provided itemized list of expenses, copies of invoices, cancelled checks, and statements of specific expenses incurred).
In sum, based on our review of the record, the Guients' claim for damages against Doucette is supported solely by Ms. Guient's testimony. Given the deference due to the district court's credibility determinations, we conclude that the district court did not manifestly err in concluding that the Guients were not entitled to damages.
The record in this case indicates that there is no basis in statute or in contract for an award of attorney's fees. "As a general rule, attorney's fees are not assessable as an item of damages except where provided for by statute or by contract." Paz v. BG Real Estate Servs., Inc., 2005-0115, p. 2 (La.App. 4 Cir. 12/14/05), 921 So.2d 186, 188. Thus, we vacate the portion of the judgment awarding "Doucette forty percent of the total judgment in attorney's fees."
In conclusion, we reverse the award of $17,000.00 to Doucette for the balance of the original contract; affirm the award of $14,519.65 to Doucette for the written change order; reverse the awards of $4,106.52, $2,639.00, and $9,254.48 to Doucette for verbal change orders; affirm the district court's denial of damages to the
BONIN, J., DISSENTS IN PART WITH REASONS; JENKINS, J., DISSENTS AND ASSIGNS REASONS.
BONIN, J., DISSENTS IN PART WITH REASONS.
I respectfully dissent in part.
JENKINS, J., DISSENTS AND ASSIGNS REASONS.
I concur in the majority's decision to affirm the trial court's finding that the Guients are not entitled to damages on their reconventional demand. I respectfully dissent, however, from the majority's conclusion that the Guients waived their abandonment claim by not filing an application for supervisory writs after the trial court denied their ex parte motion to dismiss Doucette's claim based on abandonment.
I find that because the Guients formally invoked their right to assert abandonment under La. Code Civ. P. art. 561, they avoided any waiver, and were not required to file an immediate writ application from the trial court's denial of their motion to dismiss. For this same reason, I also find that the majority erred in concluding that, because the case was submitted for judicial resolution and a judgment was rendered, the Guients waived their right to assert abandonment.
La. Code Civ. P. art. 561 provides that abandonment is self-executing; it occurs automatically upon the passing of three-years without a step being taken by either party, and it is effective without a court order. Clark v. State Farm Mutual Auto. Ins. Co., 00-3010, p. 6 (La. 5/15/01), 785 So.2d 779, 784. As stated by the Supreme Court in Clark, "
An examination of cases finding a waiver of the right to abandonment confirms the Clark court's conclusion that the purpose of an Article 561 motion to dismiss is to avoid post-abandonment waiver. In these cases, the courts were careful to emphasize that the waiving party lost its right to plead abandonment because it took steps toward a judicial resolution of the case
For example, in State ex rel. Shields, Inc. v. Southport Petroleum Corp., 230 La. 199, 88 So.2d 25 (1956), the Supreme Court found that a defendant who filed a motion
In Chevron Oil Co. v. Traigle, 436 So.2d 530 (La. 1983), the defendant filed a motion for summary judgment
Citing Chevron, the First Circuit in Adams v. Adams, 14-0387 (La.App. 1 Cir. 3/11/15), 166 So.3d 1066, recently held that the defendant's filing of an exception of no cause of action and a motion for new trial,
This court has likewise acknowledged that when a party "takes an action inconsistent with abandonment
Id., 05-0657,p. 20, 931 So.2d at 399-400 (emphasis added).
In addition to Shields, Chevron, Slaughter, and Adams, the Louisiana cases cited in the majority opinion also involve a party whose steps which constituted a waiver of the right to assert abandonment
The rationale of these cases applies here. The Guients filed their ex parte motion to dismiss prior to taking any steps that might be construed as inconsistent with abandonment. When the Guients filed their Article 561 motion to dismiss, they clearly expressed their intention not to waive their claim of abandonment. After the trial court denied their motion, the Guients continued to protect their interests in this litigation pending an appeal of that judgment by defending themselves against Doucette's claims, and by prosecuting their own reconventional demand. In so doing, the Guients should not be "put in jeopardy of waiving an abandonment already accrued and moved for." Slaughter, 05-0657, p. 18, 931 So.2d at 398.
According to the majority, the Guients waived abandonment because they "never sought supervisory writs on the set aside of the abandonment dismissal." For the first time, a majority of this court decides that a party whose motion to dismiss has been denied is required to seek immediate supervisory review of that decision, and cannot allow the matter to be submitted for judicial resolution, lest its abandonment claim be waived. The majority cites no legal authority for the position that a party who formally asserts its right to have its opponent's claims dismissed as abandoned, and loses, has no choice but to file a writ application, or waive its objection to the trial court's ruling.
A judgment denying a motion to dismiss on the grounds of abandonment is an interlocutory judgment that is not immediately appealable because it determines a preliminary matter and not the merits of the action. Reed v. Finklestein, 01-1015, p. 2 (La.App. 4 Cir. 1/16/02), 807 So.2d 1032, 1033. As this court has pointed out, a party's "right to dismissal [based on abandonment] can be adequately reviewed at the time of an appeal from the final judgment which ultimately determines the merits of the case." Id. (citing Vernor v. Drexel Homes, Inc., 311 So.2d 493 (La. App. 4th Cir. 1975)).
Thus, even though the Guients have an absolute right to appeal the interlocutory judgment denying their motion to dismiss based on abandonment, the majority creates a new rule for abandonment cases akin to the judicially-created rule that the only mechanism by which to challenge an adverse ruling on an exception of improper venue is by a supervisory writ. See Land v. Vidrine, 10-1342 (La. 3/15/11), 62 So.3d 36 ("Failure to timely file a writ application on a venue ruling amounts to a waiver of any objection thereto."). By eliminating the Guients' right to appeal the adverse ruling on their motion to dismiss, the majority has created an unwarranted judicial exception to a legislatively created rule. State v. Neisler, 94-1384, 94-1540 (La. 1/16/96), 666 So.2d 1064 (Calogero, J., dissenting).
For these reasons, I respectfully dissent.