STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
14-1256
SHERRI TRANSIER
VERSUS
BARNES BUILDING, LLC, ET AL.
**********
APPEAL FROM THE THIRTY-FIFTH JUDICIAL DISTRICT COURT PARISH OF GRANT, NO. 21503 HONORABLE WARREN D. WILLETT, DISTRICT JUDGE
PHYLLIS M. KEATY JUDGE
Court composed of Jimmie C. Peters, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
PETERS, J., concurs in the result.
AFFIRMED IN PART; REVERSED IN PART; AND RENDERED. Richard A. Rozanski Stephen D. Wheelis Shawn M. Bordelon Wheelis & Rozanski, APLC Post Office Box 13199 Alexandria, Louisiana 71315-3199 (318) 445-5600 Counsel for Plaintiff/Appellant: Sherri Transier
Herman M. Savoie, Jr. Attorney at Law Post Office Box 712 Alexandria, Louisiana 71301 (318) 448-8002 Counsel for Defendants/Appellees: Michael Barnes Barnes Building, LLC KEATY, Judge.
The plaintiff/homeowner, Sherri Transier, appeals a judgment rendered in
favor of the defendant, Barnes Building, LLC, and against her in the amount of
$1,443.85 after the trial court offset awards in favor of each of them in this dispute
over a construction contract. For the following reasons, we affirm in part, reverse
in part, and render.
FACTS AND PROCEDURAL HISTORY
Michael Barnes, the owner of Barnes Building, LLC, submitted a
Bid/Proposal to Transier regarding the construction of a home for her according to
plans that had been drawn by James Foster, a draftsman. While the original plans
that Barnes reviewed contained a second floor, because of Transier’s financial
constraints, the final plans had been modified to provide for a single-story home
with the notation that proper floor joists be provided for a future second story.1
Transier signed and accepted the bid on March 28, 2010. The bid listed the total
cost of labor and materials for the project as $323,500.00 to be paid in five
installments of $62,700.00, which became due at specified stages in the
construction, plus a final payment of $10,000.00 upon completion.
Transier paid the first installment on April 13, 2010, before construction
began, and the second installment on May 12, 2010, when the foundation was
poured. At trial, Transier testified that during phase two of the construction, she
became concerned after noticing dips and valleys in the metal roof and irregular
overlapping and gapping in the roof’s metal sheeting where it appeared to have
been forced together. She stated that when she expressed her concerns to Barnes,
1 The notation read: FUTURE 2ND FLOOR EXPANSION – PROVIDE PROPER FL. JST. he was dismissive and insisted that the roof was structurally sound and would look
better once he was finished with it. Nevertheless, Barnes arranged for Transier to
meet him at the construction site with Bernard Mayeaux, whom he had hired as the
inspector for the project. Transier testified that Mr. Mayeaux concurred with
Barnes’ assessment that the home’s roof, framing, and bracing were fine and that
Mr. Mayeaux signed a report saying the home’s framing passed inspection.
After the meeting with Barnes and Mr. Mayeaux, Transier hired Charles
Sandifer, a certified building official with the Kisatchie-Delta Regional Code
Compliance Office, to inspect her home to determine whether any local or state
construction codes had been violated. Mr. Sandifer inspected the property on
July 20, 2010, and found eighteen violations, most of which concerned the ceiling
joists and rafters being overspanned, which he noted in an inspection report
wherein he determined that the home failed inspection.
On July 23, 2010, Barnes sent Transier a letter insisting that the home was
“beyond the black in stage,” which triggered her responsibility to pay the third
installment of the contract. Barnes noted that the amount due on the third draw
had been adjusted to subtract the door allowance and to account for change orders
for the windows, for Styrofoam insulation, for electrical materials and labor, for a
different gauge of metal for the roof, and to cover the cost of materials and labor
for installation of the metal roof. In total, Barnes sought payment of $97,219.65,
which he demanded that Transier pay within three days of her receipt of his letter.
He suggested, however, that Transier withhold $2,000.00 of the requested amount
until she was “one hundred percent (100%) satisfied.” Finally, Barnes informed
Transier that if she wanted to use Versavent-brand ridge vents for the roof, he
would need an additional advance payment of $850.00.
2 Transier mailed a copy of Mr. Sandifer’s inspection report 2 to Barnes on
July 26, 2010, “formally requesting” that Barnes provide her with a written
proposal of how he intended to remedy the code violations within three days of
receipt of her letter. Transier explained that because their contract called for the
first five payments to be made in advance of any labor and materials to be provided,
she would not tender the third draw to Barnes until the existing construction was
blacked-in,3 met or exceeded all applicable building codes, and received a passing
inspection by an inspector of her choosing. Transier asked Barnes to provide her
with receipts for all of the materials and contract services that had been purchased
to date, along with proof of payment for all employee labor that had been utilized.
She also sought the specifications related to the materials that Barnes had
purchased for the home, explicitly requesting the engineered truss drawings, the
paint and metal warranties for the metal roof, and the load capacity of the
engineered floor joists,. Transier insisted that she did not want the door allowance
removed from the contract and that she would pay any additional costs directly to
the merchant upon arrival as they had previously discussed. Finally, Transier told
Barnes that while she did want him to use Versavent ridge vents, he should
postpone completion of the roof “until all code deficiencies are satisfactorily
addressed.”
By letter dated July 29, 2010, Barnes advised Transier of how he proposed
to remedy each code violation. With regard to the engineered floor joists, Barnes
2 The inspection report referenced the specific sections of the 2006 International Residence Code, the 2006 International Mechanical Code, the 2008 National Electrical Code, and the 2000 Louisiana State Plumbing Code with which the construction failed to comply. 3 In the letter, Transier referred to the Louisiana State Licensing Board’s website which defined “blacked-in” as “[i]n the dry” and “[w]aterproof” and at the “state of home construction . . . when the following have been completed: framing, exterior doors, windows, electrical rough-in, HVAC rough-in, house wrap, . . . and felt paper on the roof.”
3 noted that he was waiting to receive data regarding the load capacity from the truss
manufacturer but that he had been assured, by phone, “that there is no problem.”
Barnes offered to meet with Transier and her inspector after he had completed the
remedial work and that he would “then make all necessary corrections.” In the
letter, Barnes stated, “I did not design your home, I am trying to satisfy your
requirements for future expansion.”
On August 2, 2010, Bob Meeker, a building official with the Grant Parish
Permit Office, issued a Stop Work Order instructing that work on Transier’s
residence immediately cease after inspecting the property and concurring with
Mr. Sandifer’s report. The next day, Transier informed Barnes that she accepted
his proposed remedies except for Items #2 and #9, relating to the overspanned roof
rafters. Transier explained that she had met Mr. Meeker and Mr. Sandifer at the
construction site and that they told her that Barnes should have used two-by-ten
rather than two-by-six rafters. She further noted that Barnes’ proposal to
supplement the originally installed two-by-six rafters with additional braces was
unacceptable to her because that would reduce the size and functionality of her
future upstairs expansion. Barnes then retained Foy Gadberry, a structural
engineer and building official, to review Mr. Sandifer’s inspection report and make
recommendations on how Barnes could resolve the violations noted therein. Upon
inspecting the construction site, Mr. Gadberry agreed with most of Mr. Sandifer’s
findings.
Thereafter, Transier and Barnes secured legal representation, and attempts
were made to commence remediation of the code violations and resume
construction on Transier’s home, but to no avail. According to correspondence
exchanged between their attorneys, Barnes was “willing and able to begin repairs”
4 if the “Cease and Desist Order”4 was lifted. However, Transier had been told by
Mr. Meeker that Barnes had to correct the code violations and the home had to
receive a passing inspection before the Stop Work Order would be lifted. Barnes
never returned to the construction site, testifying at trial that he did not do so
because of nonpayment and fear of arrest. As a result, Transier obtained a
contractor’s license and a building permit in her own name and subcontracted out
for the repair of the existing code violations and the completion of her home. In
the meantime, Transier filed an Incident Report against Barnes with the Grant
Parish Sheriff’s Office on September 30, 2010. She alleged that Barnes had
embezzled funds that she had given him for the construction of her home. She
further alleged that after being informed that Mr. Sandifer found eighteen code
violations upon inspection of the home’s framing, Barnes abandoned the
construction and left the home “in an unsuitable condition and exposed to the
weather.” According to the Incident Report, Transier had recently received
demands from a roofing company and an electrical supply company that Barnes
had used, seeking immediate payment of a total of $14,438.02.
Transier filed a petition for damages against Barnes on May 6, 2011,
wherein she alleged that he was guilty of bad-faith breach of contract and fraud.
She sought damages to cover the expenses that she incurred in correcting the code
violations, which she estimated to total $65,361.49, as well as an amount to
compensate her for the emotional distress suffered as a result of Barnes’ actions.
Barnes filed an answer and reconventional demand in which he claimed that
Transier had breached the contract by failing to pay for work he did during the
4 For purposes of this opinion, we assume that Barnes’ attorney was referring to the Stop Work Order when he used the phrase “Cease and Desist Order.”
5 third phase of the construction totaling $97,219.65. Thus, Barnes claimed that any
award to Transier should be offset by that amount.
The matter proceeded to a bench trial on March 26, 2014. Testimony was
elicited from both Transier and Barnes, as well as from Mr. Foster, who drafted the
house plans; Mr. Meeker, the building official who issued the Stop Work Order;
Mr. Lane Howell, the carpenter whom Transier hired to bring the construction to
code; Mr. Sandifer, whom Transier called as an expert building code inspector; and
Mr. Gadberry, whom Barnes called as an expert structural engineer and building
official. By agreement of the parties, the evidence remained open for the taking of
the deposition of Andy Mason, a former contractor who Transier hired to repair her
roof. After receiving Mr. Mason’s deposition, the trial court issued written reasons
for judgment on May 1, 2014. The trial court found that Transier was entitled to
$33,686.15 in damages for the expenses she incurred in curing the deficiencies
noted in Mr. Sandifer’s inspection report. It further found that Barnes was entitled
to $35,130.00 in damages on his reconventional demand. After offsetting those
amounts, the trial court determined that Barnes was entitled to judgment against
Transier in the amount of $1,443.85. Finally, the trial court directed the parties to
bear their own costs “[g]iven the mutual breaches” of contract that it found to have
been committed by each of them. Written judgment was signed on July 18, 2014.
Transier timely appealed and is now before this court asserting that the trial
court erred in the calculation of damages due her as a result of Barnes’ breach of
contract. She further submits that the trial court erred in finding that the floor
trusses installed by Barnes were sufficient to support an upstairs bedroom. She
additionally contends that the trial court erred in not awarding her non-pecuniary
damages. With regard to Barnes’ reconventional demand, Transier contends that
6 the trial court erred in finding that Barnes met his burden of proof and in
calculating the damages due Barnes for the work he performed under the contract.
STANDARD OF REVIEW
To reverse a factfinder’s determination under [the manifest error] standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Ultimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-883.
. . . Although deference to the factfinder should be accorded, because appellate courts have a constitutional duty to review both law and facts, they have the right and the obligation to determine whether a trial court verdict is clearly wrong based on the evidence, or clearly without evidentiary support. [Ambrose v. New Orleans Police Department Ambulance Service, 93-3099 (La. 7/5/94), 639 So.2d 216].
2 S Sign Co., Inc. v. Keller, 14-47, pp. 2-3 (La.App. 3 Cir. 5/7/14), 139 So.3d 552,
554 (quoting Brewer v. J.B. Hunt Transp., Inc., 09-1408, 09-1428, pp. 12-13 (La.
3/16/10), 35 So.3d 230, 239-40).
“Absent an abuse of discretion, an appellate court will not disturb a trial
court’s assessment of damages.” Mayerhofer v. Three R’s Inc., 597 So.2d 151, 155
(La.App. 3 Cir.), writ denied, 600 So.2d 680 (La.1992). Accordingly, we will
review the trial court’s findings as to whether Transier and Barnes proved their
entitlement to damages under the manifest error standard, and we will review the
7 appropriateness of the amount of damages awarded under the abuse of discretion
standard.
LAW
“It is implicit in every building contract that the contractor’s work be
performed in a good, workmanlike manner, and free from defects in materials or
work.” Henderson v. Ayo, 11-1605, p. 5 (La.App. 4 Cir. 6/13/12), 96 So.3d 641,
645.
Under Louisiana law, the owner of a construction project has the statutory right to terminate a contract to build even though the contractor has commenced work on the project. La. Civ.Code art. 2765; Oscar Daste & Sons, Inc. v. Dobard, 516 So.2d 1331, 1335 (La.App. 4 Cir. 12/15/87), writ denied, 520 So.2d 743 (La.03/11/88). However, the owner of the construction project must pay the contractor for his completed work. Id.; Dugue v. Levy, 114 La. 21, 37 So. 995, 999 (12/05/1904). On the other hand, if the contractor fails to do the work he has contracted to perform, or does not execute in the manner agreed to he is liable in damages for losses that may ensue from his noncompliance with the contract. La. Civ.Code art. 2769.
Id. (footnotes omitted).
I. Damages Due Transier
In its reasons for judgment, the trial court determined that “there were
mutual breaches of the building contract by the parties.” As Barnes did not appeal
the judgment, the finding that Barnes breached the construction contract and, thus,
owes damages to Transier is established for purposes of this appeal.
A. The Floor Trusses
Transier submits that the trial court erred in finding that the floor trusses
Barnes installed were sufficient to support an upstairs bedroom and in not
awarding her damages for the costs she incurred in installing additional trusses.
Barnes counters that the evidence supports the trial court’s finding that Transier
failed to prove that “there was a clear understanding between the parties that the
8 house would be constructed with a possible second floor expansion suitable for any
conceivable purpose.”
At trial, Mr. Sandifer testified that floor joists for sleeping areas need to have
a higher PSF5 rating than those used for attics. Mr. Sandifer explained that the
spacing on the floor joists that Barnes installed generated a 35 PSF live load and a
10 PSF dead load on the joists, but that the code required that floor joists for
bedrooms carry a 40 PSF live load and a 10 PSF dead load. As a result, the floor
joists had to be changed in order for Transier to have a bedroom on the second
floor. However, in a letter to Transier dated October 26, 2010, Mr. Sandifer wrote
that the 2006 International Residence Code specified that a “30 psf live load and
10 psf dead load is only acceptable for sleeping areas and attics” and that the
original truss drawings for her home were rated for “35 psf live load and 10 psf
dead load.” At trial, Mr. Gadberry testified that the trusses were code compliant
for attic space but not for habitable space, which would necessitate the installation
of additional floor joists. On the other hand, according to Mr. Sandifer’s
inspection report and a letter that Mr. Gadberry sent Barnes on August 16, 2010,
the existing floor joists appeared to be acceptable or adequate.
In its reasons for judgment, the trial court stated that it was “convinced that
the parties discussed Ms. Transier’s desire to use the second floor in the future
based upon the testimony presented, the notation in the plan, and the fact that
engineered trusses were used in the construction.” The trial court also determined
that the “trusses specified in the plans and installed by Barnes were code compliant
if the second floor was to be used in the future as a bedroom or attic storage, but
not for other purposes.” Considering the contradictory and somewhat confusing
5 PSF stands for pounds per square foot.
9 evidence on this issue, we cannot say that the trial court manifestly erred in finding
that the floor trusses installed by Barnes were sufficient to support an upstairs
bedroom. Thus, the trial court did not err in not including reimbursement to
Transier for the materials and labor that she paid to Mr. Howe to upgrade the floor
trusses.6
B. Special Damages
Transier supported her claim for damages with Plaintiff’s Exhibit 16, which
included a schedule of the costs she expended curing the defects caused by Barnes’
breach of contract, including receipts and invoices for supplies and labor used in
repairing her home. In its reasons, the trial court explained how it arrived at the
$33,686.15 figure that it awarded Transier for remedying the code violations listed
in Mr. Sandifer’s inspection report. A perusal of those reasons shows that the trial
court went through Transier’s receipts with a fine-tooth comb.
Transier claims that the trial court erred in failing to award her the $2,497.10
that Elliott Electric Supply, by certified letter dated September 1, 2010, demanded
that she pay on the balance owed by Barnes for fixtures, equipment, and supplies
that he used on her home. As Barnes pointed out on appeal, Transier testified at
trial that she did not pay the amount owed to Elliot Electric. Accordingly, we find
no abuse of discretion in the trial court’s finding that Transier failed to prove this
item of damages.7
6 Transier paid Mr. Howe $2,900.00 in labor and $1,827.19 ($1,691.84 plus 8% tax) in materials. 7 While Transier claims that the trial court incorrectly believed that Barnes paid the Elliot Electric invoice, the accuracy of that finding is irrelevant as Transier suffered no damages in this regard.
10 Transier next claims that the trial court made a mathematical error in
calculating the amount that she was due as reimbursement for the materials she
purchased from Tarver Building Materials. In regard to this item of damages, the
reasons for judgment provide:
Ms. Transier introduced invoices for building materials purchased from Tarver Building Materials for which she sought reimbursement in the amount of $15,927.72. In reviewing the invoices, the Court finds that the following materials were not proven to be related to the remedial work: corrugated paper and tape ($513); sheetrock ($35.80); 3/4 inch plywood ($319.06); cutting blades ($130.32); 3/4 inch sturdi-floor ($1,794); housewrap ($269.97); and floor trusses ($1,691.84). Accordingly, the Court finds that Ms. Transier is entitled to $10,793.41 for materials purchased from Tarvers related to curing the building code violations.
As Transier stated at trial, she had already subtracted the expenses related to the
sub-flooring and the corrugated paper and tape in arriving at the $15,927.72 figure.
In fact, Barnes notes in his brief to this court that the trial court deducted items
from the Tarver’s invoices that had already been “pulled out” by Transier.8 Based
on the foregoing, we conclude that the trial court manifestly erred in deducting
$1,794.00 and $513.00 from the amount owed to Tarver’s. We further conclude
that the 8% sales tax that Transier paid on those amounts must be reimbursed to
her as well. Accordingly, we increase the amount of damages due Transier by
$2,491.56.
8 While Barnes acknowledges the trial court’s apparent mistake in this regard, he submits that the trial court improperly awarded Transier $6,811.82 included in the Tarver’s invoice for doors. As Barnes did not appeal the trial court judgment or answer Transier’s appeal, he is not entitled to any relief on appeal. See La.Code Civ.P. art. 2133. Nevertheless, the parties agreed that the door allowance was $7,500.00, more than the amount included in the Tarver invoice. In addition, the trial court found that the project had not reached “blacked in” since the interior had not been “protected from the outside elements.” Thus, we find that the door allowance was included in the second draw which Transier had already paid to Barnes as the third draw did not become due under the terms of the contract until “when blacked in.”
11 C. Nonpecuniary Damages
Transier contends that the trial court erred by not awarding her nonpecuniary
damages. Barnes counters that the trial court correctly determined that Transier
failed to meet her burden of proving her entitlement to such damages.
Louisiana Civil Code Article 1998, titled “Damages for nonpecuniary loss,”
provides:
Damages for nonpecuniary loss may be recovered when the contract, because of its nature, is intended to gratify a nonpecuniary interest and, because of the circumstances surrounding the formation or the nonperformance of the contract, the obligor knew, or should have known, that his failure to perform would cause that kind of loss.
Regardless of the nature of the contract, these damages may be recovered also when the obligor intended, through his failure, to aggrieve the feelings of the obligee.
“Whether the gratification of some nonpecuniary interest is the principal
object of a contract is a question of fact.” Taylor v. Burton, 97-1348, p. 8 (La.App.
3 Cir. 3/6/98), 708 So.2d 531, 535. The appellate court in Matherne v. Barnum,
11-827, p. 14 (La.App. 1 Cir. 3/19/12), 94 So.3d 782, 791, writ denied, 12-0865
(La. 6/1/12), 90 So.3d 442, applied the manifest error standard of review when
determining whether the trial court erred in finding that the homeowners “suffered
a non-pecuniary loss as a result of [the contractor’s] breach of the construction
contract and that [the contractor] should have known that his defective
workmanship would cause that kind of loss to the [homeowners].” See also
Mayerhofer, 597 So.2d at 151.
In rejecting Transier’s claim for nonpecuniary damages, the trial court cited
Elston v. Valley Electric Membership Corp., 381 So.2d 554, 556 (La.App. 2 Cir.
12 1980), 9 which held that “[t]he usual worry over the consequences of property
damage (where a plaintiff suffers no direct mental injury from the negligent act)
will not justify an award for mental anguish damages.” Here, the trial court simply
found that Transier failed to prove the existence and extent of mental distress that
she allegedly suffered as a result of Barnes’ breach of the contract to build her
home.
Given the facts of this case and our affirmation of the trial court’s finding
that both Transier and Barnes breached the obligations that they owed each other
under the construction contract, we cannot say that the trial court manifestly erred
in making the factual determination that Transier failed to prove her entitlement to
nonpecuniary damages in this matter.
D. Transier’s Amended Damages Award
Based on the foregoing, we increase Transier’s damage award to a total of
$36,177.71.10
II. Barnes’ Reconventional Demand
Louisiana Civil Code Article 2765 provides that the owner “has a right to
cancel at pleasure the bargain he has made, even in case the work has already been
commenced, by paying the [contractor] for the expense and labor already incurred,
and such damages as the nature of the case may require.” In Bramlette v. Hebert,
9 In Elston, the second circuit upheld the trial court’s award of $5,000.00 in nonpecuniary damages to Mrs. Elston, whose psychiatrist testified that she suffered from severe nightmares that intensified after the defendant’s negligent replacement of her home’s electrical transformer, which caused an electrical surge that destroyed the electrical appliances, light fixtures, and outlets. On the other hand, the appellate court affirmed the trial court’s rejection of Mr. Elston’s claim for nonpecuniary damages where he failed to prove that he suffered from “a real mental injury.” Elston, 381 So.2d at 556. 10 To arrive at this figure, we increased the trial court’s $33,686.15 damage award to Transier by $2,491.56, the amount that the trial court erroneously excluded from her claimed damages.
13 210 So.2d 361, 363 (La.App. 3 Cir. 1968), this court found that Article 2765 “is
concerned with a situation where the proprietor desires to cancel a construction
contract before the work is substantially completed.” Where there has been
substantial compliance with the construction contract but the work is defective, the
courts have applied La.Civ.Code art. 2769 and allowed the builder to “recover the
contract price less whatever damages the owner may prove attributable to the
breach of contract.” Bramlette, 210 So.2d at 363.
Determination of substantial performance is a question of fact about whether the construction is fit for its intended purpose despite deficiencies. Factors that may be considered in determining whether the contractor achieved substantial performance include the extent of the defects or non-performance, the degree to which the purpose of the contract has been impaired, the ease of correction, and the use or benefit to the owner of the work performed.
Cascio v. Carpet, 42,653, pp. 10-11 (La.App. 2 Cir. 10/24/07), 968 So.2d 844, 851
(citation omitted).
Transier contends that the trial court erred in finding that Barnes met his
burden of proof on his reconventional demand. More specifically, she contends
that the trial court erred in its determination that she breached the construction
contract. In addition, Transier contends that the trial court erred in calculating the
damages that she owed Barnes as a result of her breach, in that the only evidence
that he presented at trial was his own self-serving testimony which was
uncorroborated by receipts documenting what he spent in materials and labor on
the project. Barnes counters that the evidence supports the trial court’s finding that
“Transier’s insistence on Pella windows, doors in excess of allowances, thicker
insulation, and a specific ridge cap, combined with her refusal to sign change
orders related to those products constituted a breach of her obligation to approve
change orders and pay accordingly.” Barnes submits that he was entitled to the
14 amount requested in his July 23, 2010 letter to Transier 11 because, as found by the
trial court, he was prevented from reaching “blacked in” “partially due to
Ms. Transier’s position regarding the exterior doors and ridgecap.”
The construction contract provided that “[a]ny changes from [the] plan or
bid/proposal will be addressed with cost estimate and signed change order.” At
trial, Barnes testified that Transier failed to sign and pay for two change orders
dated June 18, 2010, relating to the home’s windows and installation.12 The total
amount of the two change orders was $5,319.85. Transier offered no explanation
at trial as to why she did not sign the change orders. Given the fact that Barnes
presented the change orders to Transier before the problems with the project came
into existence, we cannot say that the trial court committed manifest error in
finding that Barnes met his burden of proving that Transier breached the
obligations she owed him under the contract.13
At trial, Transier’s expert, Mr. Sandifer, testified that in his opinion, the
home was not “blacked in” when he inspected it on July 20, 2010. He stated that at
the “blacked in” stage, a home “should have an enclosed, encapsulated
environment. And it should be weather tight.” According to Mr. Sandifer’s
definition, all framing, mechanical, electrical, and plumbing rough-in should be
completed for “blacked in” to be achieved, and the home should be ready for dry
wall installation. Mr. Sandifer further explained that even if Transier’s home had
otherwise met his definition of “blacked in,” the existence of the code violations
noted in his report prevented the home from being considered “blacked in.” 11 The letter was admitted into evidence as Plaintiff’s Exhibit 5. 12 The change orders were admitted into evidence as Defendant’s Exhibits 2 and 3. 13 Because we have so found, we need not determine whether Transier breached the contract with regard to the exterior doors.
15 Transier testified that the home was not “in the dry” when Barnes requested the
third draw because of the code violations and because the roof was not finished,
several of the windows were not hung, and the house was not wrapped. With
regard to the exterior doors, Transier stated that she had picked them out at
Tarver’s and was willing to sign a change order to cover the additional hundred
dollar or so cost above the contract’s door allowance but Barnes refused to order
them.
Barnes’ expert, Mr. Gadberry, testified that his definition of “blacked in”
means that the home is “weather resistant,” but does not require that “electrical,
mechanical, and plumbing” be roughed-in. Nevertheless, he opined that Transier’s
home was not “blacked-in” when he inspected it in early August of 2010.
Mr. Gadberry stated that he agreed with most of the code violations found by
Mr. Sandifer. Barnes, on the other hand, testified that his definition of “blacked
in” meant that there was “[s]heeting on the walls, framed up, studs, and rafters,”
that the plumbing was roughed-in, that windows and doors were installed, and that
the home was covered in house wrap. He stated that it did not require that the
metal roof be installed or that electrical be roughed-in. Barnes testified that he was
“past the black in stage” when he asked for Transier to pay the third draw on the
contract, although he admitted that the doors were not installed, which he
attributed to Transier’s failure to order them.
In its reasons for judgment, the trial court found that the house “was not
‘blacked in’ by Mr. Barnes due the existence [of] building code violations which
precluded the house from being considered ‘blacked in’ . . . by any definition,
although the Court finds Mr. Gadberry’s definition most persuasive.” More
specifically, the trial court found that “Mr. Barnes was demanding payment for
16 framed walls and roofing that was not code compliant.” With regard to its
calculation of damages due to Barnes on his reconventional demand, the trial
court’s written reasons provide:
Ms. Transier argues that since Barnes had not completed the black in, under the terms of the contract, he is not entitled to any more money. While the Court agrees that Mr. Barnes had not reached a completed black in, that was partially due to Ms. Transfer’s position regarding the exterior doors and ridgecap. Given the mutual breaches by the parties, the Court finds that La.C.C.art. 2765 is the proper measure of Barnes’ reconventional demand. For example, if Ms. Transier fired Barnes one day prior to his completion of black in, could she claim he was entitled to no further payment. To allow such would be unjust.
Those reasons further proved that the trial court relied on Barnes’ testimony that
“he performed work beyond what was normally completed in the black in phase”
to determine the amount of damages that Transier owed Barnes. Moreover, the
trial court found that Barnes’ testimony was supported by Mr. Gadberry’s opinion
“that the house was approximately 50 – 55% complete at the time of his
inspection,” and that the remedial work to cure the code violations were “2.5% of
the total project.” Applying Mr. Gadberry’s estimation to the total contract price
of $325,940.00,14 the trial court found that “fifty percent completion would entitle
Barnes to $162,970.” Since Transier had already paid Barnes $127,840.00 of that
amount, the trial court awarded him the remaining balance of $35,130.00.
Based on the testimony and evidence presented at trial, we conclude that the
trial court’s damage award to Barnes “is clearly wrong based on the evidence, or
clearly without evidentiary support.” 2 S Sign Co., Inc., 139 So.3d at 554. While
the trial court concluded that the house was fifty percent “complete,” it failed to
consider whether Barnes had “achieved substantial performance” of the
14 To arrive at this figure the trial court added the $2,440.00 brick ledge change order to the original contract price of $323,500.00
17 construction contract. Cascio, 968 So.2d at 851. Applying the factors discussed in
Cascio to the evidence adduced in this matter leads us to the inevitable conclusion
that Barnes had not “achieved substantial performance” when he abandoned the
project. Id. For one, the defects were substantial and encompassed eighteen code
violations. In addition, as found by the trial court, the structure was not “blacked
in” or weatherproof as the roof was incomplete and leaked, several windows were
missing, and none of the exterior doors had been hung. Transier testified that in
order to correct the roof problems, a section of the existing roof had to be removed
and a forty-five foot beam was lowered into the structure by a crane and then used
to properly brace the roof. Transier could not use the structure as a home and the
existing structure was vulnerable to the elements. Finally, Barnes’ refusal to
remedy the code violations after he promised to do so delayed Transier from being
able to start remedial work with another carpenter, and she was not able to move
into the home until several years after originally planned.
Because the home was not substantially complete when Barnes ceased
working under the contract, the proper measure of his damages under La.Civ.Code
art. 2765 must be arrived at by calculating “the expense and labor already
incurred.” “Where, however, legal error interdicts the fact-finding process, the
manifest error standard no longer applies. In such instances, if the record is
complete, the appellate court is charged to make its own independent de novo
review of the record.” Clement v. Citron, 13-63, p. 4 (La. 6/19/13), 115 So.3d
1260, 1264 (citation omitted). Here, although the trial court stated that
La.Civ.Code art. 2765 was “the proper measure of [damages on] Barnes’
reconventional demand,” we conclude that it committed legal error in not
following that articles’ dictates of how to calculate those damages. Accordingly,
18 because the record is complete, we will make a de novo determination of the
proper amount of Barnes’ damages.
The contract15 provided that “Payment is to be made in six (6) installments,
as follows:
1st payment $ 62,700.00 To Start 2nd payment 62,700.00 at foundation pour 3rd payment 62,700.00 when blacked in 4th payment 62,700.00 when cabinets are installed 5th payment 10,000.00 upon completion (final payment) Total $ 323,500.00 material and labor
As mentioned previously, Transier made the first two payments before refusing to
pay any more because of the code violations that were discovered by Mr. Sandifer
in July of 2010. The trial court determined that the house was not “blacked in”
under any definition of that term “due to the existence [of] building code
violations.” Nevertheless, the trial court gave credence to Barnes’ insistence that
“he performed work beyond what was normally completed in the black in phase.”
Given the quality of proof that the trial court required of Transier regarding the
measure of her damages and the scrutiny with which it examined that proof, we
conclude that the trial court abused its discretion in awarding Barnes damages in
excess of the amount that he had already been paid under the contract without
requiring that he, too, offer receipts to document the “expense and labor already
incurred.” See La.Civ.Code art. 2765. Although Barnes did give estimates of the
amounts he spent on labor and materials,16 he did not provide a single receipt or
15 In Dufour v. Janin, 8 La. 147, 149 (1835), the supreme court rejected the discharged contractor’s claim that the cancelled contract was the “exclusive standard of the value of the work done.” Instead, the court held that the contract was evidence of “the estimate which the parties had themselves made of the work to be done.” Id. 16 Barnes testified that he spent the following amounts on Transier’s home: $9,800.00 on concrete; $33,000.00 in building materials from Martin Building Materials; $4,000.00-$5,000.00 at Lowe’s; $2,400.00 (4000 feet of cement x $.60 per foot) to a cement finisher; $6,100.00 to a
19 invoice to document his expenses despite having been asked for that information
by Transier in her July 26, 2010 correspondence. Using the high end of those
estimates, the amount of his claimed expenses total only $61,300.00. Subtracting
that amount from the $127,840.00 that Transier had already paid to Barnes leaves a
profit balance of $66,540.00, an amount which we find more than adequately
compensates him for the damages he incurred as a result of Transier’s breach
and/or cancellation of the construction contract. Nonetheless, we find that Transier
owes Barnes $5,319.85, representing the amount incurred for the change orders
regarding the home’s windows and insulation. Accordingly, after our de novo
review, we award Barnes the amount of $5,319.85 on his reconventional demand.
III. Conclusion
As noted above, we have increased Transier’s damage award to $36,177.71,
and we have reduced Barnes’ damage award to $5,319.85. After offsetting those
amounts, Transier is entitled to judgment against Barnes in the amount of
$30,857.86.
DECREE
For the foregoing reasons, the trial court’s findings are affirmed in part and
reversed in part. Thus, the judgment in favor of Barnes Building, LLC and against
Sherri Transier is reversed, and judgment is rendered in favor of Sherri Transier
and against Barnes Building, LLC in the amount of $30,857.86. Costs of this
appeal are assessed against Barnes Building, LLC.
AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.
plumber; $2,500.00 in plumbing material; $1,200.00-$1,500.00 for tractor rental; and $800.00- $1,000.00 on sand.