NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 1329
STEVENS CONSTRUCTION & DESIGN, LLC
VERSUS
CANDICE RODGERS HILLMAN
DATE OF JUDGMENT.• JUN 12 2020
ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT NUMBER 2017- 14267, DIVISION F, PARISH OF ST. TAMMANY STATE OF LOUISIANA
HONORABLE MARTIN E. COADY, JUDGE
Charles K. Chauvin Counsel for Plaintiff A - ppellee Jane Williams Chauvin Stevens Construction & Design, LLC Destrehan, Louisiana
J. Andrew Murrell Counsel for Defendant -Appellant Baton Rouge, Louisiana Candice Rodgers Hillman
BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.
Disposition: AFFIRMED AND RENDERED. CHUTZ, J.
Defendant, Candice R. Hillman, appeals a summary judgment in favor of
plaintiff, Stevens Construction & Design, LLC ( SC& D), for the balance due under
a construction contract. SC& D answered the appeal. For the following reasons, we
affirm and render judgment on the answer to the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Ms. Hillman is an attorney. In March 2017, after negotiating the terms
thereof, she signed a construction contract for the repair and renovation of her home
in Ascension Parish, which had been damaged by a flood in August 2016. The
contract price was $ 47, 800. Ms. Hillman made an initial payment to SC& D in the
amount of $8, 500, and SC& D began work on her house. On August 14, 2017,
SC& D presented Ms. Hillman with an application for payment in the amount of
36, 420 for work it had completed.
On August 17, 2017, approximately one week before Ms. Hillman was to
move in, she and Adam Stevens, member/manager of SC& D, conducted a walk-
through of the house to review the work and establish a punch -list. A dispute arose
between Ms. Hillman and Mr. Stevens over whether a necessary permit had been
acquired and whether a change order was necessary for replacement of a certain
section of tile. During the dispute, Ms. Hillman accused SC& D of being in breach
of contract. She refused to make any payment on the amount SC& D claimed was
due.
By letter dated August 29, 2017, Ms. Hillman' s attorney, Andrew Murrell,
gave SC& D notice of the " termination of the contract." In the letter, Mr. Murrell
asserted SC& D was in default of the contract because necessary permits were not
obtained and there were numerous defects in the work performed that SC& D failed
to cure despite written notice from Ms. Hillman. In conclusion, Mr. Murrell stated
Ms. Hillman would " remit the amount owed to you for the value of the work you
2 actually performed minus the cost of repairing the defective work and the cost of
completing the project," once the additional cost of the repairs and completion of the
work was determined.
On September 14, 2017, SC& D filed suit against Ms. Hillman for breach of
contract seeking to recover $ 40, 175, the alleged balance due under the contract. On
August 16, 2018, approximately eleven months later, SC& D filed a motion for
summary judgment. The motion hearing was originally scheduled for October 30,
2018, but was twice continued. The hearing was finally held on March 20, 2019.
After taking the matter under advisement, the district court signed a judgment on
April 16, 2019, granting summary judgment in favor of SC& D in the amount of
40, 175, plus eighteen percent interest, costs, and $ 2, 500 in attorney fees, all as
provided in the contract.' Ms. Hillman has now appealed.
SUMMARY JUDGMENT
After an opportunity for adequate discovery, a motion for summary judgment
shall be granted if the motion, memorandum, and supporting documents show that
there is no genuine issue as to material fact and that the mover is entitled to judgment
as a matter of law. La. C. C. P. art. 966( A)(3). The summary judgment procedure is
favored and shall be construed to secure the just, speedy, and inexpensive
determination of every action. La. C. C. P. art. 966( A)(2). In determining whether
summary judgment is appropriate, appellate courts review evidence de novo under
the same criteria governing the trial court's determination of whether summary
judgment is appropriate. Riedel v. Fenasci, 18- 0540 ( La. App. 1st Cir. 12/ 28/ 18),
270 So. 3d 583, 590.
The burden of proof rests with the mover. La. C. C. P. art. 966( D)( 1). If the
mover will bear the burden of proof at trial, he must support his motion with credible
The contract grants the contractor the right to recover costs and attorney fees incurred in collecting delinquent approved payments. 3 evidence that would entitle him to a directed verdict if not controverted at trial. Such
an affirmative showing then shifts the burden of production to the party opposing
the motion. An adverse party may not rest upon the mere allegations or denials of
his pleadings, but must produce evidentiary materials demonstrating the existence
of a genuine issue for trial or submit an affidavit requesting additional time for
discovery. La. C. C. P. art. 967( B); Hines v. Garrett, 04- 0806 ( La. 6/ 25/ 04), 876
So. 2d 764, 766- 67 ( per curiam); Alpha Capital US Bank v. White, 18- 0827 ( La.
App. 1st Cir. 12/ 21/ 18), 268 So. 3d 1124, 1128, writ denied, 19- 0135 ( La. 3/ 18/ 19),
267 So. 3d 89.
DISCUSSION
Ms. Hillman argues the district court improperly granted summary judgment
because she did not have an adequate opportunity for discovery and because genuine
issues of material fact existed. Specifically, Ms. Hillman alleges there are factual
issues concerning the validity of the contract, the scope of the work to be performed,
the quality of SC& D' s work, and whether SC& D obtained all the required permits.
Ms. Hillman also contends the district court erred in ruling she did not give notice
of the defective work within forty- eight hours of receiving SC& D' s August 2017
pay application. She maintains she had already provided written notice to SC& D of
its defective work weeks prior to receiving the pay application.
In support of its motion for summary judgment, SC& D submitted, among
other evidence, the affidavit of its member/manager, Mr. Stevens, a copy of the
construction contract signed by Ms. Hillman, and a copy of Ms. Hillman' s initial
payment check in the amount of $8, 500. SC& D also presented a copy of the August
14, 2017 pay application submitted to Ms. Hillman in the amount of $36, 420. The
construction contract provides that, within forty-eight hours of receipt of a pay
application, the homeowner shall provide the contractor with written notice setting
forth a detailed explanation for withholding any portion of the pay application. If
0 such written notice is not given within forty-eight hours, " the application for
payment shall be considered approved by the Owner pursuant to which timely
payment must be made[.]" According to Mr. Stevens' affidavit, Ms. Hillman failed
to provide timely written notice disputing the August 14, 2017 pay application. Nor
did she make any further payments under the contract.
The August 14, 2017 pay application indicated the contracted work was
93. 29% complete. However, as of the date of Mr. Stevens' August 10, 2019
affidavit, he stated that with the exception of three special -order interior doors yet to
be delivered, SC& D had completed all remaining work under the contract.
Additionally, Mr. Stevens stated that both a retroactive residential building permit
and a plumbing permit were issued for Ms. Hillman house by the Ascension Parish
Permit Office on August 28, 2017, one day prior to the date of Ms. Hillman' s
termination letter. Evidence of the issuance of those permits was attached to Mr.
Stevens' affidavit. Finally, based on his inspection of the property in June 2018, Mr.
Stevens stated that Ms. Hillman had moved back into her house.
In further support of its motion for summary judgment,
SC& D also presented Ms. Hillman' s answers to interrogatories. In those answers,
Ms. Hillman made numerous allegations of defective work by SC& D. Nevertheless,
she admitted she had no restorative work done to correct any of the alleged defects.
She claimed no repairs had been made because she had only recently had a baby
following a high-risk pregnancy.
In opposition to the motion for summary judgment, Ms. Hillman attached to
her memorandum two affidavits, from herself and her husband, and several
documents, including emails between herself and Mr. Stevens. SC& D objected to
all of Ms. Hillman' s attachments in its reply memorandum. The district court
sustained the objection and excluded all attachments to Ms. Hillman' s opposition
memorandum.
5 We find no error in the district court' s ruling. Although Ms. Hillman and her
husband signed their affidavits, the affidavits were not notarized. An unnotarized
affidavit is not competent summary judgment evidence under La. C. C. P. arts. 966
and 967. See Blagg v. Blanch, 94- 831 ( La. App. 3d Cir. 2/ 1/ 95), 649 So. 2d 1166,
1168. Moreover, the other exhibits at issue were merely attached to Ms. Hillman' s
opposition memorandum. The exhibits were not attached to the affidavits or
authenticated or certified in any manner. Articles 966 and 967 do not permit a party
to use unsworn and unverified documents as summary judgment evidence. Merely
attaching such documents to an opposition memorandum does not transform them
into competent summary judgment evidence. A document that is not a notarized
affidavit or sworn to in any way, or is not certified or attached to an affidavit, has no
evidentiary value on a motion for summary judgment. See Board ofEthics Matter
ofMonsour, 16- 1159 ( La. App. 1st Cir. 6/ 21/ 17) 233 So -3d 625, 631, affirmed, 17-
1274 ( La. 5/ 1/ 18), 249 So. 3d 808; Bunge North America, Inc. v. Board of
Commerce & Industry & Louisiana Department of Economic Development, 07-
1746 ( La. App. 1st Cir. 5/ 2/ 08), 991 So. 2d 511, 527, writ denied, 08- 1594 ( La.
11/ 21/ 08), 996 So. 2d 1106. Accordingly, the district court did not err in excluding
Ms. Hillman' s exhibits. In conducting our de novo review of this summary
judgment, this court will not consider the excluded evidence.
Genuine Issues ofMaterial Fact:
Ms. Hillman argues SC& D did not meet its burden of proof because there was
a genuine issue of material fact as to the existence of a valid, properly executed
written contract. Although Ms. Hillman signed the contract, she correctly points out
that no one signed the construction contract on behalf of SC& D.
Louisiana Civil Code article 1837 provides that an act under private signature
must be signed by the parties. Nevertheless, a jurisprudential exception to this
statutory requirement exists when only one party has signed an agreement and the
C. other party has availed himself of the agreement or taken actions evidencing his acceptance thereof. See La. C. C. art. 1837 — 1984 Revision Comment ( b); Cerami
v. Haas, 195 La. 1048, 197 So. 752, 753- 54 ( 1940); Pennington Construction, Inc.
v. R A Eagle Corporation, 94- 0575 ( La. App. 1st Cir. 3/ 3/ 95), 652 So. 2d 637, 639
n.2; Cecil Blount Farms, L.L.C. v. MAP00-NET, 47, 246 (La. App. 2d Cir. 7/ 25/ 12),
104 So. 3d 1, 4- 6, writ denied, 12- 2263 ( La. 1/ 11/ 13), 107 So. 3d 614; Zeller v.
Webre, 09- 45 ( La. App. 5th Cir. 5/ 26/ 09), 17 So. 3d 55, 60- 61). In this case, SC& D
clearly took actions indicating its acceptance of the construction contract. SC& D
not only accepted the initial $ 8, 500 payment from Ms. Hillman, but it also began
work on her house and continued that work over the course of several months.
Accordingly, a valid, written contract existed.
We also find no merit in Ms. Hillman' s contention that the construction
contract was invalid because the parties failed to reach a meeting of the minds.
Specifically, she maintains no meeting of the minds occurred regarding the scope of
work to be performed because the attachment to the contract setting forth the scope
of work did not conform to the actual work to be done on her house. Thus, she
argues a genuine issue of material fact exists as to the scope of work the parties
agreed upon.
We disagree. Ms. Hillman presented no competent evidence showing there
was a discrepancy between the scope of work the parties agreed to and the scope of
work set forth in the attachment to the construction contract. Similarly, we find no
merit in Ms. Hillman' s contention that a genuine issue of material fact existed
regarding SC& D' s failure to submit an unconditional waiver and lien release
together with the pay application. Ms. Hillman contends she was entitled to the
unconditional waiver and lien release from SC& D prior to payment. In fact, the
construction contract only requires the contractor to provide an unconditional waiver
and lien release upon final payment.
7 Ms. Hillman further contends there are genuine issues of material fact
regarding whether SC& D performed defective work and failed to obtain necessary
permits, and whether the work to be performed under the construction contract was
substantially completed. She contends the district court erred in concluding she did
not provide written notice of defective work within forty- eight hours of the August
2017 pay application when she had already provided written and oral notice to
SC& D of defective work weeks prior to receiving the pay application.
In support of its motion for summary judgment, SC& D provided evidence
showing it had completed all work under the construction contract, with the
exception of installing three interior doors that had not been delivered, and it had
obtained necessary permits for the work done, albeit retroactively. Additionally,
SC& D provided evidence that Ms. Hillman did not provide written notice within
forty- eight hours disputing any of the charges in the August 14, 2017 pay
application. Under the terms of the construction contract, the pay application was
deemed to be approved upon Ms. Hillman' s failure to provide such written notice
within forty-eight hours.
Despite Ms. Hillman' s arguments, the record contains no competent evidence
controverting the showing made by SC& D or raising genuine issues of fact regarding
any of the matters Ms. Hillman raises, including the quality of SC& D' s work. When
a mover for summary judgment has presented evidence establishing his claim, mere
arguments by the opposing party are insufficient to create a genuine issue of material
fact. See Rapp v. City of New Orleans, 95- 1638 ( La. App. 4th Cir. 9/ 18/ 96), 681
So. 2d 433, 437 & 445, writ denied, 96- 2925 ( La. 1/ 24/ 97), 686 So. 2d 868.
Adequate OMortuniLy for Discovery:
Ms. Hillman asserts summary judgment was inappropriate in this case because
additional time was needed for discovery. Louisiana Code of Civil Procedure article
966( A)(3) provides there should be an opportunity for adequate discovery before
3 summary judgment is granted. However, there is no absolute right to delay action
on a motion for summary judgment until discovery is complete. Rather, all that is
required is that the parties have a fair opportunity to carry out discovery and to
present their claim. It is within the trial court's discretion either to render summary
judgment or require further discovery. A trial court' s decision in this regard should
only be reversed upon a showing of an abuse of discretion. McCastle- Getwood v.
Professional Cleaning Control, 14- 0993 ( La. App. 1st Cir. 1/ 29/ 15), 170 So. 3d 218,
223.
In this case, Ms. Hillman contends SC& D " finally" responded to her
discovery requests on August 22, 2018, approximately ten days after SC& D filed its
motion for summary judgment. She contends those responses necessitated
additional discovery. Ms. Hillman alleges SC& D did not provide her with available
deposition dates until January 4, 2019, with Mr. Stevens not being deposed until
February 27, 2019. According to Ms. Hillman, the deposition transcript was not yet
available when the motion for summary judgment was heard on March 20. She
argues more time was needed for additional discovery to determine what work
SC& D completed and/ or whether the work was defective.
We note that while Ms. Hillman implies in brief that SC& D was dilatory in
responding to her discovery requests, she does not state the date on which her
discovery requests were submitted to SC& D. Significantly, the record contains no
indication Ms. Hillman filed a motion to compel in connection with her discovery
requests.' Moreover, SC& D' s motion for summary judgment was not filed until
eleven months after suit was filed in September 2017, and an additional seven
months passed before the motion hearing was held in March 2019. Ms. Hillman has
provided no cogent reason why the eighteen -month period between the filing of suit
2 In contrast, the record indicates SC& D filed a motion to compel on March 20, 2018 with respect to discovery requests propounded to Ms. Hillman on January 15, 2018. E and the hearing on SC& D' s motion for summary judgment was an inadequate
opportunity for discovery. Finally, we observe, as did the district court, that Ms.
Hillman did not seek a continuance to allow additional time for discovery. Thus, we
find no merit in Ms. Hillman' s assertion that she did not have an adequate
opportunity for discovery. The district court did not abuse its discretion under the
circumstances in rendering summary judgment without allowing additional time for
discovery.
Objection to Mr. Stevens ' Affidavit:
Pursuant to La. C. C. P. art. 966( D)( 2), Ms. Hillman objected in her opposition
memorandum to Paragraph 8 of Mr. Stevens' affidavit on the basis it contained
inadmissible hearsay. On appeal, she argues the district court erred in denying her
motion to strike that hearsay. Paragraph 8 of Mr. Stevens' affidavit states that when
one of SC& D' s employees went to the Ascension Parish Permit Office prior to
SC& D commencing work on Ms. Hillman' s home, the employee was advised no
permit was necessary due to the backlog of homes being repaired as a result of the
August 2016 flood.
Hearsay is defined as " a statement, other than one made by the declarant while
testifying at the present trial or hearing, offered in evidence to prove the truth of the
matter asserted." La. C. E. art. 801( C). Under La. C. C.P. art. 967( A), an affidavit
offered in support of a motion for summary judgment shall be based on personal
knowledge and set forth facts that would be admissible in evidence. See also La.
C. E. art. 802. Accordingly, any hearsay statements in Mr. Stevens' affidavit must
be disregarded. See Thomas v. Comfort Center ofMonroe, LA, Inc., 10- 0494 ( La.
App. 1st Cir. 10/ 29/ 10), 48 So.3d 1228, 1236; Cook v American Gateway Bank,
10- 0295 ( La. App. 1st Cir. 9/ 10/ 10), 49 So. 3d 23, 35.
Regardless, it is irrelevant whether the district court erred in failing to strike
Mr. Stevens' hearsay statement, because we have disregarded the statement in 10 conducting our de novo review. See Thomas, 48 So. 3d at 1236. In any event, the
statement at issue only related to the purported reason SC& D did not obtain any
permits initially, which was not a material issue of fact. For purposes of summary
judgment, a fact is material if it potentially insures or precludes recovery, affects a
litigant' s ultimate success, or determines the outcome of the legal dispute. See
Hines v. Garrett, 04- 0806 ( La. 6/ 25/ 04), 876 So. 2d 764, 765 ( per curiam). In this
case, the material issue regarding the required permits was whether the permits were
ultimately obtained by SC& D. SC& D presented evidence that all required permits
for Ms. Hillman' s house were obtained in August 2017.
Conclusion -
Under Louisiana law, a building contractor is entitled to recover the contract
price, even though defects and omissions are present, when he has substantially
performed the building contract. However, where the owner presents evidence of
the cost of completion of the work or correction of defective work, the contract price
may be reduced by that amount. Mayeaux v. McInnis, 00- 1540 ( La. App. 1 st Cir.
9/ 28/ 01), 809 So.2d 310, 313, writ denied, 01- 3286 ( La. 3/ 8/ 02), 810 So. 2d 1164.
In this case, SC& D presented evidence that it performed the work provided in the
construction contract. Although Ms. Hillman argued the work performed was
incomplete and/ or defective, she presented no competent evidence supporting her
arguments. Therefore, we find there were no genuine issues of material fact
precluding summary judgment. Based on our de novo review, we find the district
court properly granted summary judgment in favor of SC& D.3
3 In several additional assignments of error, Ms. Hillman raised issues that either lack merit and/ or were not briefed and, therefore, are considered abandoned. See Uniform Rules, Courts of Appeal, Rule 2- 12. 4( B)( 4). Specifically, she asserted the district court should not have granted summary judgment or a petition for garnishment without first ruling on her reconventional demand. She alleges it was error for the district court to do so because her reconventional demand would have totally offset the amount SC& D was awarded. However, the record before this court does not contain a reconventional demand. As the appellant, Ms. Hillman is charged with the responsibility of completeness of the record for appellate review. Thus, the inadequacy ofthe record is imputable to her. Brown v. Louisiana Department ofPublic Safety & Corrections, 19- 0853 ( La. App. 1 st Cir. 2/ 21/ 20), So. 3d , 2020 WL 859439, at * 4. Further, the appealed judgment does not
11 SC& D' S ANSWER TO APPEAL
In its answer to this appeal, SC& D contends the district court' s award for
attorney fees was inadequate and seeks an increase from $2, 500 to $ 15, 000 ( 75 hours
x $200 per hour). As support for the increase, SC& D points out, among other things,
that this suit had been pending approximately a year and a half at the time of
summary judgment; multiple exceptions were adjudicated; extensive discovery was
conducted, including at least two depositions; and SC& D had to file a motion to
compel due to Ms. Hillman' s failure to respond to discovery requests. Alternatively,
SC& D asks that this matter be remanded to the district court for a hearing on attorney
fees, since the district court did not hold a separate hearing to fix attorney fees, and
SC& D had no opportunity to submit billing invoices. SC& D also requests additional
attorney fees for the work necessitated by this appeal.
The reasonableness of attorney fees is within the great discretion of the trial
court. Naquin v. Louisiana Power & Light Company, 05- 2104 ( La. App. 1st Cir.
11/ 17/ 06), 951 So. 2d 228, 232, writ denied, 06- 2979 ( La. 3/ 9/ 07), 949 So. 2d 441.
The factors to be taken into consideration in determining the reasonableness of
contain any ruling concerning a petition for garnishment. Any such ruling by the district court would be contained in a separate judgment rendered subsequent to the appealed judgment and cannot be considered herein.
Ms. Hillman also asserted in separate assignments of error that the district court erred: in failing to uphold the dispute resolution provision in the construction contract, which required the parties to mediate prior to filing suit; in failing to consider her affidavit since she is an officer of the court; and in weighing the credibility of Mr. Stevens' affidavit, despite internal conflict in the affidavit. Each of these assignments is deemed abandoned, since they were not briefed. See Uniform Rules, Courts of Appeal, Rule 2- 12. 4( B)( 4). Regardless, they also lack merit. The construction contract specifically provides an exception to the mediation requirement when the contractor sues to collect delinquent approved payments." Similarly, Ms. Hillman' s claim that the district court should have considered her unnotarized affidavit because she is an attorney and officer of the court patently lacks merit. As an attorney, Ms. Hillman should be well aware that an unnotarized affidavit is not competent summary judgment evidence under La. C. C.P. arts. 966 and 967. See Blagg, 649 So.2d at 1168. Finally, our review reveals no internal conflicts within Mr. Stevens affidavit. Nor does the record indicate the district court improperly weighed the credibility of Mr. Stevens' affidavit, particularly since there was no conflicting evidence against which to weigh the affidavit. Regardless, in deciding a motion for summary judgment, the court must assume that all of the affiants are credible. See Hutchinson v. Knights of Columbus, Council No. 5747, 03- 1533 La. 2/ 20/ 04), 866 So. 2d 228, 234; Pumphrey v. Harris, 12- 0405 ( La. App. 1st Cir. 11/ 2/ 12), 111 So. 3d 86, 91.
12 attorney fees include: 1) the ultimate result obtained; 2) the responsibility incurred;
3) the importance of the litigation; 4) the amount of money involved; 5) the extent
and character of the work performed, 6) the legal knowledge, attainment, and skill
of the attorneys; 7) the number of appearances involved; 8) the intricacies of the
facts involved; 9) the diligence and skill of counsel; and 10) the court' s own
knowledge. An award of attorney fees will not be disturbed on appeal absent an
abuse of the district court' s discretion. Thomas v. A. Wilbert & Sons, LLC, 15- 0928
La. App. 1st Cir. 2/ 10/ 17), 217 So. 3d 368, 402- 03, writs denied, 17- 0952, 17- 0967
La. 11/ 13/ 17), 229 So. 3d 478 and 230 So. 3d 204. Further, the district court is not
required to hear evidence concerning the time spent or the hourly rates charged since
the record will reflect much of the services rendered. In awarding attorney fees, the
district court is allowed to call upon its own experience and expertise in the valuation
of legal services rendered by an attorney. Action Oilfield Services, Inc. v. Energy
Management Company, 18- 1146 ( La. App. 1st Cir. 4/ 17/ 19), 276 So. 3d 538, 544;
Naquin, 951 So. 2d at 232.
The district court has presided over the instant case since it was filed,
including all of the appearances referenced by SC& D. Accordingly, the district
court was in the best position to observe and evaluate the attorneys' work, having
seen the development and evolution of this case as a whole. After thoroughly
reviewing the record, we are unable to say the $ 2, 500 award of attorney fees was an
abuse of the district court' s great discretion.
Regarding SC& D' s request for additional attorney fees for this appeal, the
general rule is that an increase in attorney fees may be awarded where a party who
was awarded attorney fees by the trial court is forced to and successfully defends an
appeal. Naquin, 951 So. 2d at 233. Since SC& D has successfully defended this
appeal, we find a $ 2, 000 increase in attorney fees is warranted by the work this
13 appeal necessitated, including the preparation of an appellate brief and an answer to
the appeal. We will render judgment accordingly.
CONCLUSION
For the reasons assigned, the April 16, 2019 summary judgment in favor of
plaintiff, Stevens Construction & Design, LLC, and against defendant, Candice R.
Hillman, is affirmed. Further, we award additional attorney fees to Stevens
Construction & Design, LLC in the amount of $2, 000 for successfully defending this
appeal. Ms. Hillman is to pay all costs of this appeal.
AFFIRMED AND RENDERED.