Alonzo v. Chifici

541 So. 2d 303, 1989 La. App. LEXIS 493, 1989 WL 26186
CourtLouisiana Court of Appeal
DecidedMarch 15, 1989
DocketNo. 88-CA-686
StatusPublished

This text of 541 So. 2d 303 (Alonzo v. Chifici) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alonzo v. Chifici, 541 So. 2d 303, 1989 La. App. LEXIS 493, 1989 WL 26186 (La. Ct. App. 1989).

Opinion

KLIEBERT, Judge.

The defendant, Barbara Chifici, individually and in her capacity as administratrix of her husband, Frank Chifici’s, succession, suspensively appealed from a judgment in the amount of $36,651.00 plus interest and costs rendered in favor of plaintiffs, Charles Alonzo .and CPA Construction Co., Inc., (CPA, Inc.). Plaintiffs also appealed.1 For the reasons hereinafter stated, we amend the judgment by reducing the award to $25,000.00 and, as amended, affirm.

The litigation arose out of the following: The Chificis had Stanley and Associates, architects, draw plans for a residence to be constructed on their lot at # 17 Teton Street, Kenner, Louisiana. They contacted Charles Alonzo, Jr., a former neighbor and friend, for aid in its construction. He estimated the total cost of construction at $189,360.00, including supervision charges of $14,250.00 (See D-6). Alonzo, through his corporation, AMA Industries, Inc. (AMA, Inc.),2 entered into an agreement “to supervise the construction of Frank and Barbara Chifici’s residence on Teton Street” (Emphasis supplied) in accordance with the plans and specifications prepared by Stanley and Associates. For his services he was to receive a fee of $14,250.00, payable in three installments as work progressed. The agreement, signed on August 29,1983, specifically stated . AMA assumes no liability other than the supervision of said residence in a workman like manner for the general contractor, Mr. Frank Chifici.”

Construction of the residence commenced in September 1983. During construction there were variations in the original plans, including the addition of a swimming pool, a fence, skylights, vinyl siding, subsurface drainage, custom doors and windows, copper gutters, and vaulted ceilings. Alonzo, through AMA, Inc., and subsequently CPA, Inc., supervised the construction of the residence to completion. The Chificis made direct payments to plumbing, electrical, air condition and heating subcontractors and for flooring, carpets and miscellaneous supplies. However, the majority of the construction costs were paid by AMA, Inc. and CPA, Inc. with funds made available by the Chificis. The residence was completed and the Chificis moved in during October 1984.

While supervising the construction of the residence Alonzo also supervised the renovation of a building on Lake Avenue leased by a Chifici corporation operating a restaurant on the premises. After the residence was constructed and the renovations on the restaurant building completed, a dispute arose between Alonzo and the Chificis as to compensation due Alonzo for his services.

[305]*305The dispute ultimately led to litigation. On July 25,1985 Alonzo and CPA, Inc. filed separate suits against Frank and Barbara Chifici relative to the construction of the residence and the restaurant renovations.3 The petition relative to the residence was entitled “Breach of Agreement, Services Rendered and Damages,” and alleged that the Chificis were indebted to them for damages, labor, and services performed in the amount of $225,000.00 ($175,000.00 for labor and services and $50,000.00 for mental anguish).

The defendant, Frank Chifici, died on September 3, 1985. Barbara Chifici, individually and in her capacity as administra-trix of Frank’s estate, answered, admitting Alonzo supervised and directed the construction of the residence, but alleging Alonzo was paid in full for all expenditures made by him on their behalf, together with an undisclosed profit.4

At trial, notwithstanding the allegations of the petition, and over repeated objections of the defendants and cautions by the trial judge, plaintiff directed his efforts toward showing agreed upon modifications of the initial agreement to one fixing Alonzo’s compensation as though he had an agreement to act as a general contractor at a fixed price per square foot. In support of that effort, plaintiff introduced a so-called bill (P-6) dated 12/20/84 in which he claimed entitlement to compensation computed at $90.00 per square foot for 4200 square feet of living area, plus $30.00 per square foot for 2000 square feet of cabana, porches, and patios, plus $71,305.00 for extras for a total of $509,305.00 for constructing the residence. Against this total he showed a credit of $241,349.21 for payments previously made, thus leaving a balance due him of $267,955.79.

Alonzo further contended Frank Chifici had gone over the bills, checked off the amounts listed item by item and approved same. From this his counsel argued the Chificis had acknowledged the indebtedness; therefore, this modified the contract and the resulting claim was for the balance due on an open account. In support of Alonzo’s contentions and his counsel’s arguments he offered, over objections of defense counsel, the testimony of David Steece, who said he was present at the meeting where Alonzo contends Frank acknowledged the indebtedness. Under the dead man’s statute, LSA-R.S. 13:3721-22, Alonzo was required to prove the modification of the contract by the testimony of one credible witness other than the claimant. Although counsel argues Steece corroborated Alonzo’s contention, the trial court did not accept it as such but rather said “but that testimony [Steece’s] in my opinion did not establish a debt ...” it only indicated “... to me that certain documents were exchanged and checked off by the parties and a figure was mentioned ... not the figures on these papers specifically but a general figure ...” Additionally over objection of defense counsel that it was privileged information, Alonzo offered the testimony of Mr. Mike Phillips, a former counsel of defendants in this litigation, to the effect that as a friend he had interceded in the dispute prior to the time it matured into litigation. Initially Frank indicated to him he would consider paying Alonzo but later vehemently denied he owed Alonzo anything. Others also testified that Frank vehemently denied owing anything to Alonzo.

The trial court rejected counsel’s open account argument and concluded there never was a meeting of the minds relative to the work to be performed, the costs involved, or the compensation to be paid for the services. Therefore, he held no agreement or contract existed under which Alonzo and/or CPA, Inc. was entitled to recover on a square foot basis and relegated plaintiff’s claim to one in quantum meruit.

[306]*306Aside from the validity of defendants’ objections of admissibility based on the contentions some evidence went beyond the pleadings and was in violation of the dead man’s statute, the record simply does not support plaintiff’s contentions and arguments; nor, does it show that the trial judge erred in his conclusion above stated. Moreover, Alonzo’s testimony self destructs. For example, he testified to computing the estimated cost of constructing the 3700 square feet of living area and the 1100 square feet of porches, etc. in the originally designed plans at $42.00 and $33.00 per square foot. Notwithstanding, however, in preparing the so-called bill he utilizes $90.00 and $30.00 per square foot without any itemization or effort to show the changes which resulted in the house being, as he contends, more luxurious and consequently more costly. At the same time he adds to the square foot price $71,-000.00 for extras not originally called for in the plans. Nor does the so-called bill give credit for the admitted payments made by the Chificis directly to the plumbing, electrical, air condition and heating subcontractors.

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Morphy, Makofsky & Masson, Inc. v. CANAL PLACE 2000
538 So. 2d 569 (Supreme Court of Louisiana, 1989)
Alonzo v. Chifici
526 So. 2d 237 (Louisiana Court of Appeal, 1988)

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Bluebook (online)
541 So. 2d 303, 1989 La. App. LEXIS 493, 1989 WL 26186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alonzo-v-chifici-lactapp-1989.