Bishop v. Shaw

978 So. 2d 568, 2008 WL 650407
CourtLouisiana Court of Appeal
DecidedMarch 12, 2008
Docket43,137-CA
StatusPublished
Cited by9 cases

This text of 978 So. 2d 568 (Bishop v. Shaw) 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
Bishop v. Shaw, 978 So. 2d 568, 2008 WL 650407 (La. Ct. App. 2008).

Opinion

978 So.2d 568 (2008)

Bing BISHOP, as Agent for Bing Bishop Construction Co., Inc. and Bing Bishop Construction Company, Inc., Plaintiffs-Appellees
v.
Ken SHAW, Cindy Shaw and Kenworths, Defendant-Appellant.

No. 43,137-CA.

Court of Appeal of Louisiana, Second Circuit.

March 12, 2008.

*570 Lunn, Irion, Salley, Carlisle & Gardner by Ronald E. Raney, Shreveport, Charles L. Cook, Monroe, for Appellant Ken Shaw.

Crawford & Joyce by Brian E. Crawford, Monroe, for Appellee.

Before WILLIAMS, STEWART & PEATROSS, JJ.

PEATROSS, J.

Bing Bishop, as agent for Bing Bishop Construction Co., Inc., and Bing Bishop Construction Co., Inc. (collectively herein "Plaintiff"), filed suit on an open account against Defendant, Ken Shaw.[1] Plaintiff alleged that Defendant failed to pay for construction work completed on two properties. After a bench trial, the trial court found that Plaintiff was entitled to $91,130.47. Defendant appeals this judgment. For the reasons set forth below, we affirm the judgment of the trial court.

FACTS

Plaintiff and Defendant entered into a fixed amount contract for renovations to two adjacent residential properties owned by Defendant. One property was Defendant's residence, and he used the adjacent property as a business office. Under the original fixed amount contract, Defendant hired Plaintiff to build a two-stall garage at the back of the residence. During the construction, the scope of the project was expanded with several changes to the original specifications. Plaintiff extensively repaired an existing sunroom, including the roof, and added a new room to the second story. The garage was completed and tied to the house and part of the adjacent house was removed to make room for a new driveway that ran between the two houses back to the new garage. The adjacent house was then re-enclosed and bricked. In total, Plaintiff submitted a list of seventy-six projects he completed in addition to the original fixed amount contract. *571 The additional work was done pursuant to an oral contract on a cost-plus 15 percent basis. Plaintiff was to keep track of his costs associated with the project and Defendant would reimburse him for those costs plus pay him 15 percent of those costs as profit.

The first invoice from Plaintiff was for $48,506. Defendant paid this bill with two checks totaling $55,000, leaving a credit of $6,494. Defendant received a second invoice for $162,910. This second invoice stated that it was for "labor, material, equipment, taxes and insurance for all work to date" which was May 25, 2005. This figure included the previously paid amount of $60,000. The invoice was generated by Plaintiff at Defendant's request so that Defendant could submit it to his bank to finance the construction.

The unpaid balance of $107,910 was then separated into four separate invoices at Defendant's request. Defendant paid the entire $162,910 amount by July 1, 2005. He testified that he understood that he had paid for all work completed before May 25, 2005. Defendant contends that he was unaware that Plaintiff had any further outstanding accounts payable from third party subcontractors for work performed prior to May 25, 2005.

Defendant also contends that he spoke to Plaintiff on or about July 1, 2005, and Plaintiff advised him that the project would probably cost $8,000 to $20,000 more to complete. Plaintiff denies having that conversation, but testified that he had told Defendant that there was $20,000 to $30,000 more construction work to be done. Plaintiff testified that this amount did not include work that was already performed, but not yet billed to Defendant. Shortly after this conversation, an invoice for the remaining cost of $85,304 was delivered to Defendant. Defendant refused to pay and Plaintiff's attorney sent Defendant a demand letter for $92,105.95, representing the outstanding balance for the project. Defendant again refused to pay and Plaintiff filed this suit on an open account seeking payment and attorney fees. After considering applicable credits, Plaintiff reduced his demand to $91,130.47. This amount was ultimately awarded by the trial court.

Plaintiff filed a motion for summary judgment with various documents attached, including invoices from third party subcontractors who worked on Defendant's project. The trial court denied Plaintiff's motion for summary judgment. Defendant anticipated that Plaintiff would attempt to prove his claim with the invoices received from subcontractors or materialmen and filed a motion in limine seeking to exclude the invoices as hearsay. The trial court denied the motion. Defendant also filed a motion compelling discovery, arguing that Plaintiff's answers to his interrogatories were evasive and incomplete. The trial court denied this motion.

As previously stated, after a bench trial, the trial court held that Defendant was liable to Plaintiff for $91,103.47 plus interest from the date of judicial demand until paid and for all costs of court. In addition, the trial court denied Plaintiff's motion to assess fees seeking attorney fees and also denied Defendant's motion for new trial. Defendant appeals.

DISCUSSION

Our review of the factual findings in this case is governed by the manifest error/clearly wrong standard of review. An appellate court may not set aside a trial court's finding of fact unless it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be *572 disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id.; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly wrong. Rosell, supra; Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967 (La.1985); Arceneaux, supra. Where the fact finder's conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell, supra.

In a cost-plus contract, the owner agrees to reimburse the contractor for the costs of material and labor and to pay a percentage of those costs as his profit. Burdette v. Drushell, 01-2494 (La.App. 1st Cir.12/20/02), 837 So.2d 54, writ denied, 03-0682 (La.5/16/03), 843 So.2d 1132. Under a cost-plus contract, the contractor may charge only those costs that are shown to be reasonable and proper. Ellis Millwork, Inc. v. Frees, Inc., 493 So.2d 696 (La.App. 2d Cir.1986). When the owner denies his indebtedness to the contractor, the contractor has the burden to itemize and prove his costs. Burdette, supra; Ellis, supra.

Discovery

Through a number of interrogatories, Defendant requested that, for each invoice, Plaintiff provide the dates of the services rendered, the type of actual service rendered, the person or entities who rendered the service and the contact information for that person or entity. Plaintiff responded that all relevant invoices containing the requested information were attached as exhibits to Plaintiff's previously filed motion for summary judgment.

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Bluebook (online)
978 So. 2d 568, 2008 WL 650407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bishop-v-shaw-lactapp-2008.