Ketteringham Builders, LLC v. Austin Speni

• Court: Louisiana Court of Appeal
• Decided: June 15, 2011
• Docket: CA-0011-0107
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 11-107

KETTERINGHAM BUILDERS, LLC

VERSUS

AUSTIN SPENI

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-2009-1906 HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

********** BILLY HOWARD EZELL JUDGE **********

Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Phyllis M. Keaty, Judges.

AFFIRMED.

Emile Joseph, Jr. Robert Anthony Robertson Allen & Gooch P. O. Box 81129 Lafayette, LA 70598 (337) 291-1310 Counsel for Plaintiff/Appellee: Ketteringham Builders, LLC Martin Louis Morgan 222 North Vermont Street Covington, LA 70433 (985) 809-2014 Counsel for Defendant/Appellant: Austin Speni EZELL, JUDGE.

In this matter, Austin Speni appeals the decision of the trial court ruling he

owed $41,787.67 to Ketteringham Builders arising from a home purchase. For the

following reasons, we hereby affirm the decision of the trial court.

Mr. Speni entered into an agreement with Ketteringham to build a home in the

River Ranch subdivision in Lafayette. The original price of the home was to be

$340,000.00. An Act of Cash Sale was recorded in this amount. However, the day

before closing, Mr. Speni informed Ketteringham that he had insufficient funds to

purchase the home at that price. Ketteringham agreed to reduce the price to

$328,000.00. Mr. Speni’s father paid roughly $280,000.00 of this amount.

Ketteringham and Mr. Speni further agreed to finance the remaining down-payment

of $49,287.67 through Ketteringham for one year. Mr. Speni admitted these facts, as

well as the fact that he moved into the home. Mr. Speni admitted he paid only

$7,500.00 of the down-payment amount to Ketteringham. He later told Ketteringham

he was selling the home and would pay the remaining debt from the proceeds of the

sale. After the sale of the home, no further payment was made. At no time did Mr.

Speni deny the terms of the agreement nor the outstanding debt of $41,787.67.

Ketteringham filed the current suit to recoup the outstanding $41,787.67. After

a trial on the matter, the trial court ruled that Mr. Speni owed Ketteringham that

amount. From that decision, Mr. Speni appeals. On appeal, Mr. Speni asserts as his

sole assignment of error that the trial court erred in allowing parol evidence to vary

the terms of the authentic Act of Cash Sale. We disagree.

“The general rule is that a rule of evidence not invoked is waived, and, hence,

a failure to object to evidence waives the objection to its admissibility.” Ratcliff v.

Normand, 01-1658, pp. 6-7 (La.App. 3 Cir. 6/5/02), 819 So.2d 434, 439. “To

1 preserve an evidentiary issue for appellate review, it is essential that the complaining

party enter a contemporaneous objection to the evidence or testimony, and state the

reasons for the objection.” LaHaye v. Allstate Ins. Co., 570 So.2d 460, 466 (La.App.

3 Cir. 1990), writ denied, 575 So.2d 391 (La.1991) (citing Pitts v. Bailes, 551 So.2d

1363 (La.App. 3 Cir.), writs denied, 553 So.2d 860 (La.1989), 556 So.2d 1262

(La.1990)). The failure to make a contemporaneous objection in the trial court

waives the right of a party to complain about the ruling on appeal. Hyland v. Am.

Guar. and Liab. Ins. Co., 04-305 (La.App. 5 Cir. 9/28/04), 885 So.2d 30.

In this case, the record establishes that the issue of the admissibility of parol

evidence was not properly preserved by a contemporaneous objection. Therefore, it

is not before this court for appellate review, and we decline to consider it. See

La.Code Evid. art. 103; Petre v. State ex rel. Dep’t of Transp. and Dev., 00-545,

00-546 (La.App. 3 Cir. 12/29/00), 775 So.2d 1252, affirmed, 01-876 (La. 4/3/02), 817

So.2d 1107. In fact, Mr. Speni’s lone assignment of error is so utterly devoid of merit

that, had counsel for Ketteringham sought damages for frivolous appeal, they would

have been seriously considered.

For the above reasons, the ruling of the trial court is hereby affirmed. Costs of

this appeal are assessed against Mr. Speni.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules- Courts of appeal. Rule 2-16.3.

2 3