Lifetime Construction, L.L.C. v. Lake Marina Tower Condominium Ass'n

117 So. 3d 109, 2013 WL 1247822
CourtLouisiana Court of Appeal
DecidedMarch 27, 2013
DocketNos. 2012-CA-0487, 2012-CA-0488
StatusPublished
Cited by5 cases

This text of 117 So. 3d 109 (Lifetime Construction, L.L.C. v. Lake Marina Tower Condominium Ass'n) 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
Lifetime Construction, L.L.C. v. Lake Marina Tower Condominium Ass'n, 117 So. 3d 109, 2013 WL 1247822 (La. Ct. App. 2013).

Opinion

JAMES F. McKAY III, Judge.

_JjThe appellant, Lake Marina Tower Condominium Association, Inc., appeals the judgment of the trial court finding in favor of Lifetime Construction L.L.C. in the amount of $10,000.00 pursuant to the penalty provision on the dehumidification contract plus attorneys’ fees in the amount of $9,716.50.

The appellee/cross-appellant, Lifetime Construction L.L.C., appeals the trial court’s judgment denying its claims for damages pursuant to the air sampler contract and moldguard contract and the dismissal of it’s claims with prejudice, and the order that each party bear its own costs.

For the reasons that follow we affirm the trial court’s judgment but amend it to include the awarding of judicial interest on the judgment from the date of demand, April 2, 2008, as prayed for by Lifetime Construction L.L.C.

FACTS AND PROCEDURAL HISTORY

In August of 2005, as result of the effects of Hurricane Katrina, Lake Marina Towers (“LMT”), located at 800 Lake Marina Drive, in New Orleans sustained | ¡¡damage to both its common areas and numerous individual units. Lake Marina Tower Condominium Association Inc. (“Association”) is governed by its articles of incorporation and the association’s board of directors. The Association, through its then president, Francis DeBlanc, contracted with Lifetime Construction L.L.C. (“Lifetime”) (formally d/b/a/ COHPS L.L.C.) to perform construction services for the Association.1

Hanover Insurance Company (“Hanover”) was the insurer for LMT. Lifetime, acting through a co-owner Richard Kee-ney, reached an agreement with the Association, acting through President Francis DeBlanc, that insurance proceeds would be paid directly to Lifetime for the initial demolition and rebuild work; individual condominium unit owners were free to contract with a contractor of their preference or hire Lifetime to perform work on their units. When Lifetime began its work, during November-December 2005, this direct payment to Lifetime by the Association was the insurance payment procedure that was followed. The work done under this initial agreement resulted in the first lawsuit (“Suit # 1”) between the parties being filed by Lifetime on February 1, 2007. That suit settled in a compromise and consequently did not proceed to trial.2 The basis of Suit # 1 was an assertion that Lifetime was owed $209,900.00 for work that it had completed but had not been paid for by the Association or the individual condo owners even though Hanover had already funded substantial dollars for Lifetime’s |3work to the Association. After Suit # 1 was filed, the balance owed to Lifetime had been paid down from$209,-000.00 to approximately $19,000.00.

Wayne Jablonowski, pursuant to the Declaration of Condominium Regime § 21(e), was appointed by the Association to act as Insurance Trustee. Bill LeCorgne was appointed to inspect and approve all construction work done by Lifetime or other contractors (selected by individual unit owners). In theory, Bill LeCorgne was to submit reports to Wayne Jablonowski who would then issue checks to Lifetime and various other contractors for the approved work.

[113]*113As Lifetime was performing its initial inspection work, which was followed by demolition and remodeling work, it became apparent to all parties that dehumi-dification services, air sampling, and moldguard/firestopping services were required to return LMT to its proper condition. Lifetime performed some initial services through Tom Ponthieux, who had agreed to do a walk through with Hanover insurance adjusters to assess the damages and determine the remedial work that was necessary such as water damage, demolition work, moisture control, dehumidification and rebuilding work. Lifetime contends that it did not bill/invoice the Association for these initial inspections. As a result of these initial inspections, Lifetime asserts that the parties entered into three contracts. These three contracts were a dehumidification contract, executed on January 6, 2006, which provided for the installation of dehumidifiers; an air sampling contract, which Lifetime maintains was executed on January 12, 2006; and a moldguard/fires-topping services contract, which was signed on February 25, 2006. | ¿Lifetime maintains that all of these contracts provided that a general conditions provision applied as evidenced by an attached signed and dated document. In part, this general conditions provision provided for termination penalties of 15% of the remaining contract cost or at least $10,000.00 for each contract. Lifetime avers that although it was eventually paid in part for each of the three contracts, the Association wrongfully terminated its services, under the contracts, during the spring/summer of 2006. The record before us indicates that the Association, at its January 6, 2006 meeting, approved COHPS (Lifetime’s predecessor) to do de-humidification and air quality testing.

Based on the actions of the Association’s newly elected board of directors, Lifetime filed a second lawsuit, the case sub judice, for breach of contract against the Association on April 2, 2008.3 A bench trial was held on March 21, 2011, with a judgment rendered on December 14, 2011.

ASSIGNMENTS OF ERROR

On appeal, the Association asserts two assignments of error: 1.) the trial court erred in finding that Francis DeBlanc had the authority to bind the Association to alleged contracts with Lifetime; and 2.) the trial court erred in awarding Lifetime $9,716.50 in attorney’s fees.

In its cross-appeal, Lifetime raises the following two assignments of error: 1.) the trial court erred in failing to award judicial interest from the date of demand on its award of $10,000.00 pursuant to the penalty provision of the dehumidification contract and as prayed for in its petition for damages; and 2.) the atrial court erred in denying its claims for damages based on the Association’s breach and improper termination of the air sampling contract and the moldguard contract.

STANDARD OF REVIEW

While appellate courts review both fact and law, it is well-settled that the applicable standard of review for a factual finding is the manifestly erroneous or clearly wrong standard. S.J. v. Lafayette Parish School Bd., 09-2195, p. 13 (La.7/6/10), 41 So.3d 1119, 1128. It is equally well-settled that an appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the [114]*114fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Cole v. State, Department of Public Safety & Corrections, 01-2128, pp. 13-14 (La.9/4/02), 825 So.2d 1134, 1144, citing Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993). As the S.J. Court stated, “[i]n applying the manifestly erroneous clearly wrong standard to the findings ... appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo.” Id., p. 13, 41 So.3d at 1128, quoting Rosell v. ESCO, 549 So.2d 840, 844, (La.1989).

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Bluebook (online)
117 So. 3d 109, 2013 WL 1247822, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lifetime-construction-llc-v-lake-marina-tower-condominium-assn-lactapp-2013.