Tim Romero Painting, LLC v. John J. Romero

• Court: Louisiana Court of Appeal
• Decided: May 6, 2015
• Docket: CA-0014-1255
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 14-1255

TIM ROMERO PAINTING, LLC

VERSUS

JOHN J. ROMERO

**********

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 122864 HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE

BILLY HOWARD EZELL JUDGE

Court composed of Jimmie C. Peters, Billy Howard Ezell, and Phyllis M. Keaty, Judges.

AFFIRMED. Kreig Anthony Breaux Landry, Watkins, Respaske & Breaux P. O. Drawer 12040 211 East Main Street New Iberia, LA 70562-2040 (337) 364-7626 COUNSEL FOR PLAINTIFF/APPELLEE: Tim Romero Painting, LLC

R. Michael Moity, Jr. The Moity Law Firm 340 Weeks St. New Iberia, LA 70560 (337) 365-5529 COUNSEL FOR DEFENDANT/APPELLANT: John J. Romero EZELL, Judge.

In this matter, John Romero appeals a judgment in favor of Tim Romero

Painting, L.L.C. for $26,260.00 for breach of contract. For the following reasons,

we hereby affirm the judgment of the trial court.

Tim Romero Painting, L.L.C. (TRP) was approached by an agent for John

Romero (hereinafter Mr. Romero) in February of 2013 about applying a new roof

on a building owned by Mr. Romero. TRP submitted a proposal to Mr. Romero

dated February 12, 2013, including literature with reference to the types of

materials that would be used for the re-roofing project, together with the manner in

which they would be applied and the warranty periods that would be furnished for

the materials to be chosen from. The price of the roof was to be $33,000.00. Mr.

Romero had his agent advise TRP that the proposal was approved and to start work

as soon as possible.

TRP began work in early March of 2013. TRP began the prep work of

pressure washing the roof to remove debris and dirt. The pressure washing took

roughly three ten-hour days. TRP then applied caulk to the flashing where

required and began to build up low spots on the flat roof with a product called

Slope Builder. TRP then applied the base coat and one of two ―top coats‖ of an

elastomeric product. TRP could not finish applying these coats to the entire roof,

however, as a fire escape catwalk existed on part of the roof that was in violation

of the fire code. TRP was supposed to wait to address this area until the Fire

Marshal approved a plan for a new catwalk. Because of this catwalk issue, the

final top coat layer could not be applied at all, as it would need to be applied all at

once for the coating to be seamless for maximum protection from water. Approval

from the Fire Marshal was not obtained by Mr. Romero until one week prior to the April 2014 trial. However, Mr. Romero saw some bubbling in the application of

the first top coat, was not satisfied with how he felt it was being applied, and told

two TRP employees to leave the job site. He never told TRP it could return to the

jobsite to fix any problems.

After trial on the matter, the trial court found that TRP had completed eighty

percent of the work and awarded it $26,260.00 for breach of contract. From that

decision, Mr. Romero appeals.

On appeal, Mr. Romero asserts two assignments of error. He claims that the

trial court erred in finding the workmanship performed was in accordance with the

proposal and that the trial court erred in finding eighty percent of the work was

done prior to stoppage.

The two assignments of error both relate to findings of fact by the trial court

which are reviewed by this court under the manifest error standard of review. An

appellate court cannot set aside the findings of fact by the trial court unless those

findings are clearly wrong or manifestly erroneous. Rosell v. ESCO, 549 So.2d 840

(La.1989). An appellate court is not to determine whether the trier of fact was right

or wrong, but instead, whether the fact finder’s conclusion was a reasonable

one. Lyons v. Bechtel Corp., 00-364 (La.App. 3 Cir. 12/27/00), 788 So.2d 34, writ

denied, 01-282 (La. 3/23/01), 787 So.2d 996.

Mr. Romero claims that the work performed by TRP was not workmanlike

in that there was bubbling in the second layer as well as a few leaves and a screw

in that layer. However, the trial court found and the record shows that these

problems were not at all uncommon in the application of a roof like this.

Moreover, Tim Romero, the owner of TRP, testified that these problems would

have been addressed before the application of the final top coat, had he been

2 allowed to complete the job. However, he was unable to remove these potential

problems because Mr. Romero failed to address the catwalk and then terminated

the job. Furthermore, the job was unfinished due to Mr. Romero’s actions and not

those of TRP. As there is a reasonable factual basis in the record for the trial

court’s findings, we cannot find manifest error in the trial court’s determination on

the quality of TRP’s work.

Finally, Mr. Romero claims that the trial court erred in finding that eighty

percent of the contracted work had been completed. We disagree. Tim Romero

testified that eighty percent of the work had been finished. This testimony was

completely uncontradicted by Mr. Romero. Tim Romero stated TRP pressure

washed the roof, applied caulk to the flashing where required, and built up low

spots on the flat roof with Slope Builder. TRP then applied the base coat and the

first of two required top coats. The only work not completed was the final top coat

and any work done under the catwalk. TRP’s inability to perform these tasks were

through no fault but Mr. Romero’s. While eighty percent of the roof may have not

been completed to a final status, we can find no error in the trial court’s finding

that eighty percent of the total work had been completed.

The trial court in this matter provided thorough and lengthy reasons for

judgment totaling nineteen pages. We find them to be persuasive and an excellent

summary of the evidence in the record before this court. It is clear that the trial

court carefully considered the evidence before it, and we can find no manifest error

in its findings.

3 For the above reasons, we hereby affirm the decision of the trial court. Costs

of this appeal are hereby assessed against John Romero.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal. Rule 2–16.3.