Coastal Timbers, Inc. v. Regard

483 So. 2d 1110, 1986 La. App. LEXIS 6024
CourtLouisiana Court of Appeal
DecidedFebruary 5, 1986
Docket84-1067
StatusPublished
Cited by5 cases

This text of 483 So. 2d 1110 (Coastal Timbers, Inc. v. Regard) 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
Coastal Timbers, Inc. v. Regard, 483 So. 2d 1110, 1986 La. App. LEXIS 6024 (La. Ct. App. 1986).

Opinion

483 So.2d 1110 (1986)

COASTAL TIMBERS, INC., Plaintiff-Appellee,
v.
Daniel L. REGARD, Defendant-Appellant.

No. 84-1067.

Court of Appeal of Louisiana, Third Circuit.

February 5, 1986.
Rehearing Denied March 18, 1986.

*1112 Armentor & Wattigny, Gerard V. Wattigny, New Iberia, for defendant-appellant.

Roy, Forrest & Lopresto, Alex A. Lopresto, New Iberia, for plaintiff-appellee.

Before STOKER, YELVERTON and KNOLL, JJ.

STOKER, Judge.

Wofford Folse is the owner and operator of Coastal Timbers, Inc., a contracting firm which builds piers, wharves, bulkheads and similar constructions. He agreed to replace an old pier at a Cypremort Point camp owned by his neighbor, Daniel L. Regard. The negotiations were informal, and confusion arose as to the basis of payment for the construction work. Regard asserts that Folse had agreed to build the pier, including end and middle houses, in exchange for another tract of land Regard owned at Spanish Lake. Folse contends that he agreed to do the job for $45 per foot, plus flat fees for the end and middle houses. When Regard objected to Folse's bill of $19,390.67 upon completion of the project, Folse credited him $5 per foot, reducing the total to $17,889.73. Regard still refused to pay, and Folse sued for that sum, plus interest and attorney's fees allowed in a suit on an open account. Regard reconvened for damages because of faulty construction, the use of existing materials in the new pier, and the failure to remove all the old pilings.

The trial judge found that the suit was not based on an open account, and denied the attorney's fees authorized in an action on an open account under LSA-R.S. 9:2781. He also found that there was no valid contract for the exchange of the Spanish Lake lot for the new pier, as such an agreement would have to have been in writing to be enforceable. He concluded that Folse and Regard had not formed a contract at any price because there had been no meeting of the minds. Therefore, he awarded Folse a recovery based on quantum meruit, as follows:

Cost of materials, including profit     $ 8,503.69
Labor, equipment and construction
  profit                                  8,590.46
Sales tax on wholesale cost of
  materials to plaintiff                    304.38
                                        __________
TOTAL                                   $17,398.53

Legal interest of 12% per annum was awarded from the date of judgment.

The judge awarded the defendant, Regard, $180 for the cost of removing some parts of the old pier left by Folse. This award is not contested by plaintiff as defendant in reconvention and therefore is not at issue in this appeal.

Court costs were assessed one-third against the plaintiff and two-thirds against the defendant.

The defendant, Regard, appeals the judgment, listing ten assignments of error. We break the assignments down into three issues: (1) Was there a valid oral contract of exchange? (2) Was the award in quantum meruit properly calculated? (3) Should Regard have been cast in judgment for two-thirds of the court costs?

*1113 EXISTENCE OF A CONTRACT OF EXCHANGE

A contract of exchange is subject to the provisions governing a contract of sale, except where otherwise provided. LSA-C.C. Article 2667. Thus LSA-C.C. Article 2275, the substance of which is now found in Article 1839, provided at the time this action arose:

"Every transfer of immovable property must be in writing; but if a verbal sale, or other disposition of such property, be made, it shall be good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property thus sold."

No writing was ever signed by Folse. However, Regard argues that statements made by Folse during the trial should be interpreted as a confession under oath of the existence of a contract, and that Regard's willingness to execute an act transferring the Spanish Lake lot should qualify as a taking of possession by Folse. We disagree. Folse denied agreeing to the exchange. The evidence clearly establishes that Folse and Regard discussed the possibility of exchanging a lot for the construction work. Folse consulted his accountant, who advised against such a transaction. Regard may have believed that a contract had been formed, but we conclude that the trial court did not err in finding that Folse never got beyond the discussion stage. Folse's admission that he at one time considered the possibility of an exchange is not an admission of an intent to contract.

Even if some of Folse's statements could be interpreted as admissions, no delivery took place. This court stated in Duhon v. Dugas, 407 So.2d 1334, 1338 (La. App. 3d Cir.1981), that "[a] determination of whether `actual delivery' of an immovable has been made as required by LSA-C.C. Article 2275 depends on the facts and circumstances of each individual case." There, in a dispute involving the sale of a house, the plaintiff had given the defendant a check for the full amount of the purchase price. From that time the house "was in fact transferred or placed into the power and possession of the plaintiff (buyer)." In the case before us, no transfer ever took place. Folse never signed a document effecting the exchange, and did not have power or possession of the Spanish Lake property. Regard's argument on this subject is without merit.

AWARD IN QUANTUM MERUIT

The trial judge correctly stated that, as no contract existed between Folse and Regard, Folse was entitled to an award in quantum meruit to prevent the unjust enrichment of Regard at Folse's expense. Quantum meruit is an equitable remedy, based on former LSA-C.C. Article 1965,[1] which provided that "no one ought to enrich himself at the expense of another," and on LSA-C.C. Articles 2292-2294, relating to quasi-contracts. Where there has been an enrichment in the absence of a contract, the law implies a promise to pay a reasonable amount for the labor and materials furnished. Swiftships, Inc. v. Burdin, 338 So.2d 1193 (La.App. 3d Cir.1976); Bordelon Motors, Inc. v. Thompson, 176 So.2d 836 (La.App. 3d Cir.1965). Recoverable items include the actual cost of materials and labor, including general overhead, and a reasonable or fair profit. Houma Armature Works & Supply, Inc. v. Landry, 417 So.2d 42 (La.App. 1st Cir.1982); Skains v. White, 391 So.2d 1327 (La.App. 2d Cir.1980); Brummett v. Hamel's Dairy, Inc., 324 So.2d 502 (La.App. 2d Cir.1975).

A calculation of the actual cost of materials and labor is elusive, as Folse did not keep accurate records of his expenses. The testimony of other contractors was admitted to supplement and to rebut Folse's estimates. The defendant argues that this evidence should not have been admitted, because under Skains v. White, supra, the bids of other contractors may not be used as a guide in a quantum meruit case. We disagree with this contention. *1114 The goal of quantum meruit is to compensate the claimant with a reasonable amount in return for his labor and materials. While the actual cost is the ideal starting point, that figure is not available in this case. We do know that an enrichment has taken place. Therefore, the testimony of contractors who perform similar work is helpful in determining the amount of compensation due to Folse for the building of the pier. Skains does not prohibit the use of this evidence. In Skains

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Cite This Page — Counsel Stack

Bluebook (online)
483 So. 2d 1110, 1986 La. App. LEXIS 6024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coastal-timbers-inc-v-regard-lactapp-1986.