Diamond Cabinet Designs, L.L.C. v. Coxie

169 So. 3d 601, 14 La.App. 5 Cir. 770, 2015 La. App. LEXIS 556, 2015 WL 1393227
CourtLouisiana Court of Appeal
DecidedMarch 25, 2015
DocketNo. 14-CA-770
StatusPublished
Cited by1 cases

This text of 169 So. 3d 601 (Diamond Cabinet Designs, L.L.C. v. Coxie) 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
Diamond Cabinet Designs, L.L.C. v. Coxie, 169 So. 3d 601, 14 La.App. 5 Cir. 770, 2015 La. App. LEXIS 556, 2015 WL 1393227 (La. Ct. App. 2015).

Opinion

HANS J. LILJEBERG, Judge.

| ¡.Defendant appeals the trial court’s judgment granting relief in favor of plaintiff on the merits of its action for breach of contract, granting plaintiffs motion in li-mine and dismissing defendant’s reconven-tional demand. For the following reasons, we affirm.

Procedural History

On February 27, 2013, plaintiff, Diamond Cabinet Designs, LLC (“Diamond”), filed a Petition on Open Account and for Breach of Contract instituting an action against defendant, Arlisha Coxie (“Ms. Coxie”), alleging that Ms. Coxie owed Diamond a balance of $24,235.49 for construction work performed by Diamond on Ms. Coxie’s home.1 On April 3, 2013, Ms, Cox-ie filed an Answer and reconvened therein alleging damages sustained as a result of Diamond’s breach of contract.

13At the conclusion of a bench trial on the merits, the trial court rendered judgment in favor of Diamond and denied Ms. Coxie’s demand in reconvention. Specifically, the trial court awarded Diamond $18,235.49 together with judicial interest and costs.2

[603]*603Ms. Coxie now appeals the trial court’s judgment.

Facts

On or about October 20, 2012, Ms. Coxie contracted with Diamond for the construction repair and renovation of her home post-Hurricane Isaac. The amount of the contract was $45,045.00.3 Ms. Coxie tendered initial amounts of $9,860.00 and $15,249.51 to Diamond to initiate the renovations, and renovation of the home promptly began in November 2012. Approximately three months later, Ms. Coxie became dissatisfied with the work performed and terminated the services of Diamond. Thereafter, Diamond instituted suit to recoup the remainder of the amounts due on the contract.

Discussion

Substantial Performance

On appeal, Ms. Coxie asserts that the trial court erred in rendering judgment in favor of Diamond where Diamond did not prove by a preponderance of the evidence that Diamond substantially performed in accordance with the building contract.

Under Louisiana law, a building contractor is entitled to recover the contract price even though defects and omissions are present when he has substantially performed the building contract. Rice v. Mesa Gen. Contr., L.L.C., 08-115 (La.App. 5 Cir. 05/27/08), 986 So.2d 122, 129. “Substantial performance” means that the construction is fit for the purposes intended despite the deficiencies; this is a question of fact for the trial judge. Id., citing Mount Mariah Baptist Church, Inc. v. Parnell’s Associated Electric, Inc., 36,-361 (La.App. 2 Cir. 12/20/02), 835 So.2d 880. A building contractor has the burden of proving substantial compliance with the contract. Jackson v. Spurlock, 424 So.2d 1088, 1089 (La.App. 1st Cir.1982).

The factors to be considered in determining whether there has been substantial performance include the extent of the defect or non-performance, the degree to which non-performance has defeated the purpose of the contract, the ease of correction, and the use or benefit to the owner of the work already performed. Mount Ma-riah Baptist Church, Inc., supra at 888; Jackson, supra at 1089.

At trial, Emily Toups and Jimmy Toups, managing members of Diamond Cabinet Designs, LLC, as well as Ms. Coxie testified that Jimmy Toups, on behalf of Diamond, entered into a contract with Ms. Coxie in the amount of $45,045.00 on October 20, 2012, for the repair and renovation of Ms. Coxie’s home on Yorktowne Drive in Laplace, Louisiana. The contract was admitted into evidence and reflects an itemized list of repairs and agreed upon sum for those services.

Ms. Toups testified that she was personally involved in overseeing the work performed at Ms. Coxie’s residence. Ms. Toups explained that once Ms. Coxie’s initial deposit cleared, work began at the residence in early November to repair the damage caused by Hurricane Isaac. Ms. Toups further testified that by February 2013 or within 90 days, the contracted work was substantially completed at Ms. [604]*604Coxie’s residence, and Ms. Coxie was set to move into the residence that upcoming weekend. Ms. Toups had personal contact with Ms. Coxie throughout that time and testified that at no time did Ms. Coxie convey any concerns, questions or any dissatisfaction with the scope of work performed by Diamond. It | ¿was not until two days prior to completion of the work that Ms. Coxie alleged defects in the work performed and refused to pay the remainder of the contract. Ms. Toups testified that the contracted work was 98% complete and the residence was livable with only a few minor touch ups left to be completed.

Jimmy Toups was the primary person responsible for the actual physical labor performed at the Coxie property. Accordingly, Mr. Toups testified to the contracted work that remained unfinished. Mr. Toups stated that for the most part, a couple of pieces of laminate and cabinet fronts in the kitchen, touch-up painting and some grouting needed to be completed. Also, the appliances needed to be installed and sheetrock in the garage was not completed. Mr. Toups further testified that the unfinished work was worth approximately $1,700.00. He intended to complete the work by the weekend but did not do so because Ms. Coxie refused to pay the balance of the contract. Mr. Toups additionally corroborated Ms. Toups testimony that Ms. Coxie did not complain or express dissatisfaction' with the work performed until she refused to pay the balance of the contract.

Ms. Coxie conversely testified that she did make complaints to Mr. Toups relative to the quality of the materials as well as his workmanship. Specifically, Ms. Coxie testified that paint was all over the ceiling and beams, the vanities were cheap, and that she did not want stick-on laminate countertops. She further elaborated that the molding and doors are not painted, the closets have no inserts, the interior doors have no door knobs, the tile around the shower is not grouted and the wall in the garage was not complete. And last, she testified that her kitchen was incomplete, ie. the countertops were not finished and the drawers are missing fronts. Therefore, Ms. Coxie testified that she fired Diamond on February 7, 2013, because she was unhappy with the work and Diamond wanted the balance of | (¡the contract. Ms. Coxie did not agree with Mr. or Ms. Toups’ assessment that the contracted work was substantially completed.

It is well-settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

Considering the record viewed in its entirety and giving due deference to the trial court’s findings of fact and credibility determinations, we cannot find that the trial court manifestly erred in finding that Diamond proved by a preponderance of the evidence that it substantially performed the contracted work.

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169 So. 3d 601, 14 La.App. 5 Cir. 770, 2015 La. App. LEXIS 556, 2015 WL 1393227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diamond-cabinet-designs-llc-v-coxie-lactapp-2015.