Heath v. Brandon Homes, Inc.

825 So. 2d 1262, 2002 WL 1842875
CourtLouisiana Court of Appeal
DecidedAugust 14, 2002
Docket36,184-CA
StatusPublished
Cited by3 cases

This text of 825 So. 2d 1262 (Heath v. Brandon Homes, Inc.) 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
Heath v. Brandon Homes, Inc., 825 So. 2d 1262, 2002 WL 1842875 (La. Ct. App. 2002).

Opinion

825 So.2d 1262 (2002)

David Dewayne HEATH and Judy Annette Heath, Plaintiffs-Appellees
v.
BRANDON HOMES, INC., Joseph F. Shifflett and Donna Shifflett, Defendant-Appellant.

No. 36,184-CA.

Court of Appeal of Louisiana, Second Circuit.

August 14, 2002.

*1264 The Smitherman Law Firm by Donald Lee Brice, Jr., Shreveport, for Appellant.

Richard E. Hiller, Shreveport, Appellees.

Before NORRIS, STEWART and KOSTELKA, JJ.

KOSTELKA, J.

Brandon Homes, Inc. ("Brandon Homes") appeals the judgment rendered by the First Judicial District Court in favor of David and Judy Heath (the "Heaths"). The Heaths answered the appeal. For the following reasons, we amend the judgment, and, as amended, affirm.

FACTS

The Heaths and Brandon Homes entered into a written "Construction Agreement" dated February 4, 1997 (the "agreement") for the construction of the Heaths' home in Caddo Parish. Construction on the residence began in April, 1997. On July 13, 1997, before the completion of construction, the Heaths terminated the services of Brandon Homes.

Suit was subsequently filed by the Heaths against Brandon Homes, Joseph Shifflett ("Shifflett"), president of Brandon Homes, and his wife, Donna.[1] In their petition, the Heaths claimed that Brandon Homes had breached several elements of the agreement. Brandon Homes reconvened, claiming that the Heaths had wrongfully terminated the agreement before the completion of the house. After a three-day trial, the trial court determined that Brandon Homes had indeed breached the agreement and entered judgment for the Heaths, awarding damages in their favor. After the denial of Brandon Homes' motion for new trial, this appeal ensued. Additionally, the Heaths answer the appeal arguing that the damage award was insufficient and should be increased.

DISCUSSION

In a lengthy Oral Bench Ruling given subsequent to the conclusion of the trial, the trial court gave detailed reasons setting out various findings of fact and its ultimate conclusions of law. On appeal, Brandon Homes argues the trial court erred in ruling that it had breached the *1265 agreement and not the Heaths. For the following reasons, we find that Brandon Homes' assignment of error on that issue is without merit.

It is well settled that the trial court's finding of fact may not be set aside on appeal in the absence of manifest error or unless it is clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than those of the fact-finder, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). An appellate court should not substitute its opinion for the conclusions made by the district court which is in a unique position to see and hear the witnesses as they testify. In re A.J.F., XXXX-XXXX (La.06/30/00), 764 So.2d 47. The trier of fact is not disadvantaged by the review of a cold record and is in a superior position to observe the nuances of demeanor evidence not revealed in a record. Leal v. Dubois, XXXX-XXXX (La.10/13/00), 769 So.2d 1182.

As stated, the trial court gave lengthy and detailed reasons for its judgment. The trial court noted the testimony given by the Heaths and Shifflett, among other witnesses. In reaching the conclusion that Brandon Homes had breached the agreement, the trial court made various specific findings of fact to support its legal determination that Brandon Homes had breached specific terms of the agreement. Considering that the breach of the agreement could have resulted by any one factual incident noted by the trial court, it is unnecessary for us to discuss each finding of fact which led to the ultimate finding that Brandon Homes had breached the agreement; however, we will discuss some of the more pertinent facts which were noted by the trial court.

Section 2 of the agreement sets forth the "General Duties of the Contractor," stating as follows:

(a) The Contractor shall carefully study all Plans and Specifications and shall at once report to the Owner any error, inconsistency or omission the Contractor may discover. The Contractor shall do no work without drawings, specification or modifications approved by Owner.
(b) The Contractor shall supervise and direct the Work using his best skill and attention. He shall be solely responsible for all construction methods, techniques, sequences, and procedures for coordinating all portions of the Work.
. . . .

At trial, Mrs. Heath testified that the plans of the house did not show a gas line for the fireplace in their family room, although the plans did reflect gas to the other two fireplaces in the home. Further, she stated that although the plans did not reflect a gas line running to the family room fireplace, she and her husband certainly needed it and intended for the fireplace to have such. To Shifflett's credit, Mrs. Heath stated that he had called this omission to the Heaths' attention; however, before the problem could be rectified, a bricklayer had bricked the walls surrounding the fireplace, making it impossible to run the gas line for the fireplace. The trial court determined that the resulting omission was a result of Brandon Homes' failure to properly supervise the job. Such a finding was not manifestly wrong.

*1266 The trial court also found that Shifflett had improperly supervised some work concerning the roof. Mr. Heath testified that he observed the roofers installing shingles without felt paper underneath, and he admitted that he ordered the roofers to stop their work. Mr. and Mrs. Heath testified that Shifflett was not in town at the time, but this was disputed by Shifflett. However, whether he was in town or not, he was not on the job site when the incident occurred, and the trial court found that his absence was the cause of this incident with the roofers, evidencing a lack of supervision by Shifflett.

The trial court also determined that Brandon Homes had breached the following provision of the construction agreement:

3(c) The Contractor agrees to complete the Work in a lien-free condition for the Owner.

The trial court found "overwhelming" evidence that this provision had been violated by Brandon Homes due to the numerous liens the Heaths had to cancel subsequent to the termination of the agreement with Brandon Homes. However, Brandon Homes argues on appeal that as of the date its services were terminated by the Heaths, no liens had been filed against the house and thus, this provision had not been breached.

Although no liens had actually been filed against the property at the time Brandon Homes was terminated from the job, work had been done by subcontractors and supplies had been provided by suppliers who had not been paid despite payment to Brandon Homes by the Heaths. Although those subcontractors and suppliers had not filed liens on the property at the precise time of Brandon Homes' termination, their status was ripe for filing. Had those subcontractors and suppliers been paid timely (i.e., as Brandon Homes received funds from the Heaths), the liens never would have occurred. Moreover, as Mrs.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Provosty v. ARC Construction, LLC
119 So. 3d 23 (Louisiana Court of Appeal, 2013)
Davis v. Sweeney
31 So. 3d 1184 (Louisiana Court of Appeal, 2010)
Emergency Physicians Ass'n v. Leventhal
934 So. 2d 80 (Louisiana Court of Appeal, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
825 So. 2d 1262, 2002 WL 1842875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heath-v-brandon-homes-inc-lactapp-2002.