Davis v. Russell

26 So. 3d 950, 2009 La. App. LEXIS 2026, 2009 WL 4642759
CourtLouisiana Court of Appeal
DecidedDecember 9, 2009
Docket44,909-CA
StatusPublished
Cited by6 cases

This text of 26 So. 3d 950 (Davis v. Russell) 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
Davis v. Russell, 26 So. 3d 950, 2009 La. App. LEXIS 2026, 2009 WL 4642759 (La. Ct. App. 2009).

Opinion

MOORE, J.

| ,The defendant contractor walked off the job before completing a building contract with the plaintiff. Over the next 10 years, the plaintiff used other contractors *951 to finish the job. She then sued the defendant for the cost of completion. Although the trial court rendered judgment in her favor, the plaintiff appeals, contending that the damage award is far too low. We affirm.

FACTS

John W. Russell, a home remodeler, entered into a contract with Carolyn Davis on January 16, 1996, to build a doll museum annexed to her home to display her antique dolls and other collectibles. Ms. Davis had herself been involved in building and remodeling over 30 homes. In this instance, Ms. Davis supplied the plans for the two-story structure measuring approximately 16' x 32', which is roughly 1,000 square feet. The plans contained no materials list, however. Ms. Davis testified that she obtained bids from several contractors who submitted bids at or about the same price as Mr. Russell’s bid.

Russell testified that he took the plans and determined the materials needed and estimated his cost to build the structure and estimated his time. He did not reduce these materials and calculations to writing, stating that he did these calculations in his head. He submitted a bid to the plaintiff offering to build the structure for $50,000 under the following handwritten contract:

16 Jan 1996
Carolyn Khoury 1
12445 living Bluff
Shreveport, La. 71107
1 doll house
close to plains [sic]
stained ceader [sic] siding
eeader shinge [sic] roof
cabnet [sic] work aeording [sic] to
plain with minor adjments [sic]
steel & concrete intrance [sic] steps
$50,000.00

John Russell

Between April and August of 1996, Ms. Davis advanced Mr. Russell several payments totaling $42,000. Mr. Russell worked on the project until August 15, 1996, when he gathered his tools and told Ms. Davis he was leaving. Both parties agree that under the contract, Russell was not responsible for installing any of the plumbing, electrical, heating and air conditioning, carpet, security system or music system. Mr. Russell testified that he contracted to build the structure and close in the outside. He said he was also supposed to build the display cubicles and cabinets. The parties disputed, however, whether Russell was to paint the interior and exterior. There is also disagreement over payment regarding a protected walkway from the home to the new structure, which Russell said would require an additional $2,000. Ms. Davis said that she understood that the money would come from $2,000 taken off the price when she agreed to allow sheet rock for the walls rather than plywood.

Tensions apparently arose after Ms. Davis made some changes in the specifications and materials that Russell had selected to build the structure. |sThe first change was in the siding, which Russell testified cost $300 more, and was much more expensive to install. Additionally, although the plans called for cedar shingles, Ms. Davis changed the shingles Russell had picked to cedar shingles she located in Canada that had to be hand nailed rather than stapled with a gun. Russell said this cost him $1,500 more to install. Russell also testified that Ms. Davis wanted the door trim to match the trim in her house, which required Russell to fabricate the trim himself since the style was no longer sold on the market.

*952 Ultimately, in August of 1996, after Ms. Davis had refused to pay Russell $1,500 for the extra expense of the shingles, he walked off the job and did not return. Ms. Davis somewhat disagrees with this account, stating that she had not ruled out paying the $1,500, but felt that Mr. Russell needed to complete more of the project before she advanced any more money.

Ms. Davis testified regarding several parts of the project that were left incomplete which included all of the trim and painting the interior walls and papering, the (sub)flooring, a bay window, cabinets, display cubicles, staining and finishing the cabinets and exterior, vents and several other things. None of the windows were installed. Russell simply left a tarp to cover the openings.

Ms. Davis testified that she did not have the funds to hire someone to complete the project. Over a period of 10 years (mostly toward the end of the 10 years) Ms. Davis had the project completed. She contended the cost of completion was $62,101.54.

|,(At trial, Ms. Davis introduced into evidence several photographic exhibits of the incomplete work, and the cancelled checks and ledger entrees showing the amount of money she paid Russell and the amount of money she spent to finish the project. Russell introduced no evidence of receipts for the materials and labor for the $42,000 he was advanced. He said it was too long ago and he had thrown them away. Neither party introduced any expert testimony. Ms. Davis also introduced exhibits showing the amounts of money she spent to complete the project.

After the bench trial, the trial court concluded that Mr. Russell had breached the contract by walking off the job. It concluded, however, that Ms. Davis “either greatly overpaid or was greatly overcharged what it took to finish out the project.” The court found that an appropriate cost to complete the remainder of the contract with Mr. Russell was $15,000. However, this amount was subject to a reduction for the $8,000 remaining on the $50,000 contract and also subject to a reduction of $1,500 for the additional costs of installing the different shingles.

Applying the credits to the judgment, Ms. Davis received $5,500, plus court costs and interest from the date of judicial demand.

This appeal followed.

DISCUSSION

Ms. Davis’s sole assignment of error is that the trial court erred in awarding only $15,000 of the $62,101.54 required for her to complete the contract that Mr. Russell was required to complete. She contends that the labor costs alone to complete the project were $48,282.67 as shown by [.^Exhibits 1-1 ttoough 1-95.

In support of her claim, Ms. Davis submitted into evidence an impressive number of exhibits. These highly organized exhibits include literally dozens, perhaps well over a hundred, cancelled checks, ledger entries, receipts of items from nails to glass to paint supplies, etc., and invoices for work and materials from various companies. The exhibits also contain photographs of the state of completion at the time Mr. Russell walked off the job. Based upon these exhibits and her testimony, the plaintiff thus contends that she has carried her burden of proving that she spent the amount claimed to finish the project that Mr. Russell was supposed to do.

Contracts have the effect of law for the parties and must be performed in good faith. La. C.C. art. 1983.

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Cite This Page — Counsel Stack

Bluebook (online)
26 So. 3d 950, 2009 La. App. LEXIS 2026, 2009 WL 4642759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-russell-lactapp-2009.