Ocmand v. Lubrano

78 So. 3d 783, 11 La.App. 5 Cir. 114, 2011 La. App. LEXIS 1249, 2011 WL 5061340
CourtLouisiana Court of Appeal
DecidedOctober 25, 2011
DocketNo. 11-CA-114
StatusPublished

This text of 78 So. 3d 783 (Ocmand v. Lubrano) 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
Ocmand v. Lubrano, 78 So. 3d 783, 11 La.App. 5 Cir. 114, 2011 La. App. LEXIS 1249, 2011 WL 5061340 (La. Ct. App. 2011).

Opinion

FREDERICKA HOMBERG WICKER, Judge.

| ¡/David Ocmand, doing business as River Parish Industrial Repair (the roofing company, collectively referred to herein as Mr. Ocmand) seeks judgment against the defendants, Christopher R. Lubrano and Danielle R. Lubrano (the homeowners) for the balance due for services rendered under an agreement with the homeowners to replace the roof. Mr. Ocmand appeals the judgment dismissing his suit with prejudice and denying attorney’s fees. He asserts he is entitled to the full contract price, including attorney’s fees, and specifies the following errors: (1) The Lubranos waived any defenses in a settlement agreement and the trial judge erroneously failed to enforce that agreement. (2) The trial court erred in offsetting and/or giving the Lubranos a credit for compromised damages. (3) The trial court erred in failing to find Mr. Ocmand tendered performance and that tender constituted proper performance. (4) The trial court erred in refusing to award attorney’s fees. For the reasons that follow, we affirm.

| ^Procedural History/Facts

On February 27, 2007, Mr. Ocmand provided the Lubranos with a written proposal of $11,800.00 for materials and labor as the cost to replace the Lubranos’ roof on their home and adjacent garage. A few days later, Mr. Lubrano paid $6,000, of which Mr. Ocmand spent $5083.77 for materials.1 Mr. Ocmand and his five workers worked on the house and garage roofs for seven days. According to Mr. Lubrano, things did not go well from the beginning. Mr. Lubrano testified that as early as the first day, he told the workers to stop because the nails were tearing or puncturing the shingles. He also complained about the amount of shingle overhanging the drip edge on the garage. He testified that Mr. Ocmand was not there and the workers refused to stop working. Mr. Ocmand stated that he was probably only there four to five hours because he had to obtain materials.

Mr. Lubrano and Mr. Ocmand testified that on the second day, the workers had to work at night in order to cover the house roof with black paper (the underlayment) to prevent exposure to the rain. Mr. Oc-mand stated that the workers had not followed his instructions. Instead, they tore off more shingles than planned.

According to Mr. Lubrano, as a result, the workers had to install the underlayment on approximately 25% of the roof area. Concerned that the men were working in the dark and could not see, Mr. Lubrano told the workers to stop working. They ignored him.

[786]*786Mr. Ocmand admitted that Mr. Lubrano often complained about problems. He stated that Mr. Lubrano complained to him about a bent drip edge that was caused by a ladder placed there, the length of the overhang of the shingles on the garage roof that went over the drip edge, problems with the hips and the manner in |4which they were cut, concern about the proper number of nails per shingle, and concern that workers were cutting the un-derlayment.

According to Mr. Ocmand, one concern, the bent drip edge, could be easily remedied. Another problem, which Mr. Ocmand admitted occurred, was that the shingles on the two longer sides of the garage roof were extended longer than the amount called for in the manufacturer’s guidelines. Mr. Ocmand stated that he never addressed that issue because it required two to three and half hours of work and at the time, Mr. Ocmand was focused on completing the house roof.

As for Mr. Lubrano’s concern that the workers were not using the required number of nails per shingle, Mr. Ocmand testified that the workers assured him that they were using the proper number. Although he did not review their work at that point, he was satisfied with their assurance.

Mr. Lubrano testified that because of the unsatisfactory work, he asked Mr. Oc-mand to leave the job on two occasions. The first time occurred on the second day after Mr. Ocmand finally arrived. That night Mr. Ocmand assured him he would remove the shingles to fix the problem. With that assurance, Mr. Lubrano allowed Mr. Ocmand to return the following day. It is undisputed, however, that upon return Mr. Ocmand did not address Mr. Lubrano’s concerns.

According to Mr. Ocmand, he focused on completing the job and intended to perform remedial work after completion. Then, according to Mr. Ocmand, when, on the seventh day Mr. Lubrano finally ordered Mr. Ocmand off the job site, the project was 95% complete. The remainder consisted of finish work, capping, replacing missing shingles in an area of the roof that they were using as access, and fixing the bent drip edge. But, Mr. Ocmand was not given the opportunity to perform remedial work.

| sWilliam Pousson, an expert in building codes as it relates to roofing, inspected the house and garage roof on April 4, 2007 according to the mandatory 2007 state code. Mr. Pousson found the following code violations: (1) The shingles in several areas were only applied with four nails per shingle and not the required six.2 (2) The code, which required adhering to the manufacturer’s recommendations, was not followed with respect to the installation of the underlayment. (3) The exposure on the rows of shingles was inconsistent.

After Mr. Ocmand filed suit for the alleged balance due under the agreement, the Lubranos filed an answer denying that the roof was substantially completed. They also filed a reconventional demand seeking damages, including mental anguish and inconvenience, for alleged defective workmanship. The Lubranos dismissed their reconventional demand after they settled their demand.

After the settlement, Mr. Ocmand amended his petition, seeking among other things, attorney’s fees. He alleged that the Lubranos’ failure to pay the full con[787]*787tract amount amounted to intentional fraud because the settlement waived any defense to Mr. Ocmand’s demand. The trial judge found the settlement only waived the Lubranos’ right to offset their damages against the contract price; it did not waive their defense that the work was performed in an unworkmanlike manner. He found that Mr. Ocmand did not substantially complete the work, having performed only 13.5% of all the work that he was obligated to perform under the roofing contract. Therefore, the trial judge awarded Mr. Ocmand $906.70, subject to any credit the Lubranos were entitled to for any payments they had made to Mr. Ocmand. He also denied attorney’s fees. Thus, the Lubranos had a $916.23 credit (based on the $6,000 payment to Mr. Oc-mand) toward the labor cost, which | ^covered the trial court’s award. The trial judge then rendered judgment dismissing Mr. Ocmand’s suit with prejudice. This appeal followed.

Analysis

Tender

In his testimony, Mr. Ocmand basically stated that the Lubranos did not permit him to correct his work and that he tendered performance but the Lubranos refused the tender. In addition to verbally offering to remedy the work, Mr. Oc-mand testified that he sent a certified letter to the Lubranos stating that he was willing to correct any defects in the work. Although Mr. Lubrano believed he received such a letter, he did not recall its contents.

Mr. Ocmand asserts that through his actions, he, Mr. Ocmand, tendered his performance and that tender had the full effect of performance. Thus, he asserts that the Lubranos owe him the full contract price of $11,800 subject to a credit of $6,000, leaving a $5,800 balance.

To support his argument, Mr. Ocmand relies on Walker v.

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Cite This Page — Counsel Stack

Bluebook (online)
78 So. 3d 783, 11 La.App. 5 Cir. 114, 2011 La. App. LEXIS 1249, 2011 WL 5061340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ocmand-v-lubrano-lactapp-2011.