Transier v. Barnes Building, LLC

166 So. 3d 1249, 14 La.App. 3 Cir. 1256, 2015 La. App. LEXIS 1183, 2015 WL 3609077
CourtLouisiana Court of Appeal
DecidedJune 10, 2015
DocketNo. 14-1256
StatusPublished
Cited by4 cases

This text of 166 So. 3d 1249 (Transier v. Barnes Building, LLC) 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
Transier v. Barnes Building, LLC, 166 So. 3d 1249, 14 La.App. 3 Cir. 1256, 2015 La. App. LEXIS 1183, 2015 WL 3609077 (La. Ct. App. 2015).

Opinion

KEATY, Judge.

_JjThe plaintiff/homeowner, Sherri Transfer, appeals a judgment rendered in favor [1253]*1253of 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 Transfer 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 Transfer’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 Transfer 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.

Transfer 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, Transfer 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 roofs metal sheeting where it appeared to have been forced together. She stated that when she expressed her concerns to Barnes, |«.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 Transfer to meet him at the construction site with Bernard Mayeaux, whom he had hired as the inspector for the project. Transfer testified that Mr. Mayeaux concurred with Barnes’ assessment that the home’s roof, framing, and bracing were fine and that Mr. May-eaux signed a report saying the home’s framing passed inspection.

After the meeting with Barnes and Mr. Mayeaux, Transfer hired Charles Sandifer, a certified building official with the Kisat-chie-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 Transfer 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 Transfer pay within three days of her receipt of his letter. He suggested, however, that Transfer withhold $2,000.00 of the requested amount until she was “one hundred per[1254]*1254cent (100%) satisfied.” Finally, Barnes informed Transfer that if she wanted to use Versavent-brand ridge vents for the roof, he would need an additional advance payment of $850.00.

|/Transfer mailed a copy of Mr. Sandi-fer’s inspection report2 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. Transfer 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. Transfer 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. Transfer 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, Transfer 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 Transfer, of how he proposed to remedy each code violation. With regard to the engineered floor joists, Barnes |4noted 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 Transfer 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 Transfer’s residence immediately cease after inspecting the property and concurring with Mr. Sandifer’s report. The next day, Transfer informed Barnes that she accepted his proposed remedies except for Items # 2 and # 9, relating to the overspanned roof rafters. Transfer 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 [1255]*1255her 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, Transfer and Barnes secured legal representation, and attempts were made to commence remediation of the code violations and resume construction on Transfer’s home, but to no avail. According to correspondence exchanged between their attorneys, Barnes was “willing and able to begin repairs” |sif the “Cease and Desist Order”4 was lifted. However, Transfer 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.

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Cite This Page — Counsel Stack

Bluebook (online)
166 So. 3d 1249, 14 La.App. 3 Cir. 1256, 2015 La. App. LEXIS 1183, 2015 WL 3609077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/transier-v-barnes-building-llc-lactapp-2015.