LeBlanc v. Chateau Riviere Home for Aged, Inc.

708 So. 2d 468, 1998 La. App. LEXIS 284, 1998 WL 63840
CourtLouisiana Court of Appeal
DecidedFebruary 11, 1998
DocketNo. 97-CA-883
StatusPublished
Cited by1 cases

This text of 708 So. 2d 468 (LeBlanc v. Chateau Riviere Home for Aged, 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
LeBlanc v. Chateau Riviere Home for Aged, Inc., 708 So. 2d 468, 1998 La. App. LEXIS 284, 1998 WL 63840 (La. Ct. App. 1998).

Opinion

CANNELLA, Judge.

Defendant, Chateau Riviere Home for the Aged, Inc. (Chateau), appeals from a money judgment and architect’s hen in favor of plaintiff, Rick LeBlanc. We affirm.

Chateau is a Louisiana corporation which was created by Leonard James Holmes (Holmes) in 1984 to build, own and operate a nursing home in St. Charles Parish, Louisiana. In 1984, 1985 and 1986, Holmes was the sole shareholder and president of Cha[470]*470teau. He and his mother, Mary Helen Holmes, were the sole directors and she was the secretary of the corporation.

Chateau negotiated a contract with plaintiff to perform the architectural work and services of the home construction. A “Standard Form of Agreement Between Owner and Architect” was executed between the parties on April 24, 1985. The contract provided that Chateau was the “Owner” and that the home was to be located- in St. Rose, Louisiana. The architectural services fee was |3$80,000. Eighty-five percent of the fee was to be paid by the end of the “Construction Documents Phase.” The contract specified that payment was contingent on the sale of bonds to finance the project.

By the end of 1985, a dispute arose between the parties. In addition, the location of the home had to be changed because of zoning regulations. However, Holmes had another piece of property located in Destre-han, Louisiana which was suitable. He had previously purchased this piece of property individually for $331,838 in June of 1984 (pri- or to the agreement with plaintiff) with $400,000 borrowed by him from his parents, Mary Helen and E.J. Holmes. In August of 1985, after Chateau executed the agreement with plaintiff for architectural services, Holmes transferred the Destrehan immovable property, on which he intended to build the Chateau Home for the Aged, to his parents by dation en paiement.

The change of location had not been contemplated in the agreement and the new location required more work by plaintiff because of the differences in shapes between the old and new sites. Furthermore, a state required Certificate of Need or a transfer of the one obtained for the St. Rose site was needed before construction could begin on the new property. An addendum to the agreement was subsequently executed on January 24, 1986 and recorded. Plaintiff claims that $55,149.50 was owed to him in January of 1986 for 75% completion of the “Construction Documents Phase”, for which he had not been paid. Plaintiff contends that the addendum was necessary to reflect the change in sites and to show an acknowledgment of the debt by Chateau. Holmes, in his representative capacity, contends that he signed the addendum under duress: the threat by plaintiff and the others involved that he would not obtain his Certificate of Need |4unless he signed. In the addendum, the parties (plaintiff and Chateau) recognized that the site would be changed, that $55,-149.50 was presently due and owing to plaintiff, that interest would accrue on that amount at the rate of 12% per annum, and that Chateau would pay reasonable attorney’s fees in the event plaintiff had to employ an attorney to enforce collection of any amounts due thereunder.

Thereafter, plaintiff, without being paid any part of the $55,149.50, worked on the project until May of 1986. Plaintiff stopped working on the project and, on May 20,1986, executed a lien affidavit for his architectural services which he filed on May 22,1986. On July 24,1986, plaintiff filed suit for collection of the amounts due under the addendum, and enforcement of his architectural lien under La. R.S. 9:4801.

In September of 1986, unable to get financing and having legal difficulties with the original contractor and developers, Suncoast Mutual Construction, Inc., Robert Daniels, Suncoast’s president, and Ben Wimberly, the proposed manager, Holmes sought assistance from Melville Borne (Borne), an experienced nursing home project developer. Borne became a 25% shareholder in exchange for obtaining financing and constructing the facility. His companies obtained the financing, completed development of the home and manage it. Chateau purchased a portion of the property on which the nursing home was built from Holmes’ parents in early 1987. In late 1987 or early 1988, Borne became 100% owner of Chateau because Holmes was unable to repay Borne for the money expended on the project.

A judge trial was held on March 31, 1997. Following the trial, a judgment was rendered in favor of plaintiff in the amount of $55,-149.50, with legal interest from January 24, 1986 until paid and attorney’s fees of 25% of all amounts duel sand owing. The trial judge found that the addendum was “freely and voluntarily made by and between the parties.” The trial judge also found that plain[471]*471tiff was entitled to a lien against the Destre-han property, under La. R.S. 9:4801.

On appeal, Chateau asserts that the trial judge erred in awarding plaintiff the addendum contract amount because it was executed under duress and hence, void. It also contends that the trial judge erred in recognizing the lien because the property was not owned by Chateau when the lien was filed, but by Mary Ellen and E.J. Holmes, who had not contracted with plaintiff.

First, Chateau argues that the addendum is void because it was executed under, duress. It contends that the original contract specified in paragraph 14.2.2 that the Design Development phase was to be paid upon financing with bonds being sold. It contends that both parties understood that plaintiff was to help obtain financing through he sale of bonds in order to receive further payments on the contract. This was never obtained, as testified to by the parties. Holmes argues and testified that he was forced to sign the addendum because plaintiff threatened to use his political influence to have the necessary Certificate of Need canceled. Although Chateau had obtained a Certificate of Need for the St. Rose site, it was not transferable. When a zoning ..problem related to parking halted the development on the St. Rose site, Chateau changed the site to Destrehan. However, the testimony showed that this required a new Certificate of Need. Holmes stated that in order to get the new certificate, he had to pay Sherman Copeland and Robert Daniels and had to sign the addendum acknowledging the debt, which Holmes disputed was owed. He testified that when he paid Copeland and Daniels, the certificate was immediately approved and issued, dated in November of 1985. Holmes also said that he felt compelled to sign the | (¡addendum because he was afraid that he would lose over $200,000 which he had already spent on improvements to the property, as well as to obtain the certificate. Chateau asserts that plaintiff knew Holmes was having financial difficulty and had no choice but to sign the addendum. Holmes filed for bankruptcy shortly thereafter.

Plaintiff asserts that Chateau’s argument should not be considered because it failed to raise the affirmative defense of duress, as required by La. C.C.P. art. 1005. Garlepied Transfer, Inc. v. Guaranty Bank & Trust Company, 94-549 (La.App. 5th Cir.5/30/95), 656 So.2d 728, 737.

La. C.C.P. art. 1005 provides that duress be affirmatively pled. However, when issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated as if they had been raised by the pleading. La. C.C.P. art. 1154. Here, the issue of duress was tried without objection and thus, the objection to this argument was consequently waived.

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Bluebook (online)
708 So. 2d 468, 1998 La. App. LEXIS 284, 1998 WL 63840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leblanc-v-chateau-riviere-home-for-aged-inc-lactapp-1998.