Don Siebarth Pontiac v. Asphalt Road Bldg.

407 So. 2d 42, 1981 La. App. LEXIS 5425
CourtLouisiana Court of Appeal
DecidedNovember 10, 1981
Docket8469
StatusPublished
Cited by3 cases

This text of 407 So. 2d 42 (Don Siebarth Pontiac v. Asphalt Road Bldg.) 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
Don Siebarth Pontiac v. Asphalt Road Bldg., 407 So. 2d 42, 1981 La. App. LEXIS 5425 (La. Ct. App. 1981).

Opinion

407 So.2d 42 (1981)

DON SIEBARTH PONTIAC, INC., Plaintiff-Appellee,
v.
ASPHALT ROAD BUILDING AND RESURFACING, INC., Defendant-Appellant.

No. 8469.

Court of Appeal of Louisiana, Third Circuit.

November 10, 1981.
Rehearing Denied January 4, 1982.

*43 Brame, Bergstedt & Brame, Joseph A. Brame, Lake Charles, for defendant and plaintiff in reconvention-appellant.

James L. Babin, Lake Charles, for plaintiff and defendant in reconvention-appellee.

Woodley, Barnett, Cox, Williams & Fenet, Robert W. Fenet, Lake Charles, for intervenor-appellee.

Before CULPEPPER, CUTRER and LABORDE, JJ.

LABORDE, Judge.

This is a breach of contract case allegedly resulting from improper workmanship in the laying of asphalt roads, parking lots and other surfaces at an automobile dealership located in Calcasieu Parish, Louisiana.

Plaintiff, Don Siebarth Pontiac, Inc., seeks damages representing the cost of remedying a defective asphalt job constructed under contract by the defendant, Asphalt Road Building and Resurfacing, Inc. Defendant reconvened for the unpaid amount of its contract price for work it performed. R. E. Heidt Construction Company, Inc., intervened to secure payment for hot mix asphalt it sold to defendant for use in the job. The asphalt sale was secured by a lien.

*44 The trial court determined that the work was performed in an unworkmanlike manner, awarding plaintiff the amount necessary to completely repair it. This amount was off set by certain authorized extras performed by defendant and judgment was rendered accordingly. In addition, the court recognized intervenor's lien and awarded intervenor the amount of its lien plus attorney's fees for preparing it and cost for filing it.[1]

Defendant's motion for a new trial was denied following which it appealed to this court claiming that the trial court erroneously allowed plaintiff any recovery when the undisputed evidence established that the problems resulted from failures in the sub-base which was neither prepared nor warranted by it; that the trial court erroneously accepted the estimate presented by plaintiff's expert without giving consideration to the doctrine of mitigation of damages; that the trial court erroneously failed to award it certain items listed in its reconventional demand; and that the trial court rendered a judgment defective in form. With none of these arguments do we agree.

The trial judge in well considered and well articulated oral reasons for judgment stated:

"THE COURT: Thank you, gentlemen. In this suit the plaintiff seeks to recover damages from the defendant allegedly resulting from improper workmanship in the laying of asphalt roads and other surfaces at its automobile dealership location in Calcasieu Parish. The agreement between the parties leaves much to be desired. The area was "walked over" by Mr. Siebarth and Mr. Broussard, who represented the defendant, along with a Mr. Ripley, to whom the work was subcontracted. Rough sketches with measurements of the area were made, and the agreement, to some extent, was reduced to writing on speedletter forms introduced in evidence as P-5. Shortly before the work was completed, failures appeared in some portions of the asphalt surface which were caused by sub-grade or sub-surface failures. There is a serious dispute as to whether the builder was responsible for these. The agreement contained a provision for some soil cement work behind the mechanic shop, but this was not done by consent of the parties. There were a number of items deleted by agreement, and it appears that some work was done by the subcontractor which Mr. Siebarth contends he did not authorize. There is a serious dispute as to the plaintiff's obligation to pay for this extra work. There was no agreement for the contractor or sub-contractor to perform any drainage work or work on the sub-grade. However, the Court believes that a builder is obliged to construct work that is suited for its intended purpose which in this case was to lay asphalt on a suitable base so that there would be a minimum of failures on the asphalt surface. Where the builder fails to point out to the owner, which was the case here, that the base is not suitable, and a failure results, in the Court's opinion the builder is responsible therefor. Not only did this builder fail to point out that the base would be unsuitable in any particular location, he actually thought the base was suitable for the application of a two inch hot mix which would provide the necessary hard surface for the automobile dealership, and he told this to the plaintiff. Consequently, the Court concludes the defendant is responsible for the failures that occurred in this instance. There was some dispute of some testimony to the effect that the defendant and the subcontractor did not know that there were certain electric and water lines already installed under the area to be hard surfaced, and that their location caused some of the failures. However, the Court is of the opinion it was the duty of the builder to ascertain whether any were there and their location. The mere fact that he was not aware of their presence does not relieve him of his responsibility. Consequently, the Court concludes that the plaintiff has suffered damages, and *45 that it is entitled to an award of $25,000.00 which is the sum that Mr. Fenet of R. E. Heidt Construction Company testified would be the price of correcting the failures and placing the hard surface in a proper condition. Generally, a party who has sustained damages by reason or fault of another is obliged to minimize his damages. There was some testimony by defendant's experts that the failures could have been patched for a much lessor sum at some time after this job was completed. However, the Court believes and accepts Mr. Fenet's testimony that the most satisfactory method of removing the failures was to re-surface the whole area, and it does not appear that this would have been done a great deal cheaper in early 1977 than now. The defendant is entitled to credit for certain extra work and extra asphalt that it supplied in connection with this job. These credits are as follows: Invoice No. 781—$676.80; Invoice No. 782—$1,725.00; Invoice No. 783 —$3,150.00; Invoice No. 784—$4,860.00. I am going to give credit for Invoice No. 788 in spite of the fact that it does not seem to have been included in defendant's computation of the total area to which the two inch hot mix was applied, it is inconceivable to me that that portion between the two buildings was not contemplated to be hard surfaced in the original agreement. It certainly is well within all red lines shown on the sketches that were a part of the agreement. The next credit will be one-half of Invoice No. 792 —amounting to $740.00. I haven't added those up, but they will be deducted from the total sum of $25,000.00 and judgment will be rendered herein favor of the plaintiff and against the defendant for the resulting figure. In addition, there will be judgment herein on the petition of intervention filed by R. D. Heidt Construction Company in favor of intervenor and against the plaintiff and the defendant, in solido, in the sum of $2,940.60, plus the sum of $25.00 attorney's fees for preparing and filing the lien, and $3.00 as the recording fee thereof. In addition, the plaintiff will be awarded reimbursement through judgment over against the defendant upon its payment of the judgment to the intervenor. Incidentally, both judgments will bear legal interest from judicial demand until paid, and the costs of the suit will be assessed to the defendant.

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Bluebook (online)
407 So. 2d 42, 1981 La. App. LEXIS 5425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/don-siebarth-pontiac-v-asphalt-road-bldg-lactapp-1981.