Underwood v. Rollins

811 So. 2d 168, 2002 La. App. LEXIS 461, 2002 WL 272219
CourtLouisiana Court of Appeal
DecidedFebruary 27, 2002
DocketNo. 35,544-CA
StatusPublished
Cited by1 cases

This text of 811 So. 2d 168 (Underwood v. Rollins) 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
Underwood v. Rollins, 811 So. 2d 168, 2002 La. App. LEXIS 461, 2002 WL 272219 (La. Ct. App. 2002).

Opinion

hDREW, Judge.

From the judgment awarding the contractor, Lee Underwood, $33,000 pursuant to a land-clearing contract, the landowner, [170]*170Benny J. Rollins appealed and claimed that the trial court made erroneous factual findings and incorrectly denied his recon-ventional demand. The plaintiff, Underwood, claimed that Rollins owed him $40,000 (less a credit for $10,000 already paid) for his clearing 40 acres of Rollins’ property at the agreed upon price of $1000 per acre. In his answer and reconventional demand against Underwood, Robins contended that the parties agreed Underwood was to clear a tract for Rollins for the total set price of $25,000. Rollins sought to recover from Underwood $6,812 for the cost of hiring someone to complete the work Underwood allegedly failed to finish for Rollins. For the following reasons, the judgment is affirmed.

TESTIMONY

Stating he had been in the concrete and dirt contracting business since 1966, Underwood testified that clearing land is usually bid in three levels. The first level, which generally is bid for $500 per acre, involves clearing and pushing the brush and stumps into a pile. The second level, bid at approximately $1000 per acre, includes digging a pit to burn and then to bury the cleared vegetation. The third level of land clearing is $1500 per acre and consists of root raking a tract totally clean and ready for grass seed. The plaintiff stated that his bids varied more or less per acre depending on the condition of the property to be cleared. When Rollins called, Underwood and his son went to look at the tract. The plaintiff stated that heavy equipment including a shear designed to cut trees off level with the ^ground had been used previously on the property. Underwood declared that Rollins showed him which trees he wanted saved and set out the area to be cleared. Rollins informed Underwood that area was about 25 acres.

Underwood testified that Rollins wanted the second level of clearing which involved digging a pit for the debris, burning the debris and then covering with dirt anything which did not burn. Their agreement was that Underwood was to clear and put vegetation in a pit, burn it once and then bury it. Underwood was to root rake twice. Underwood made an oral bid of $1200 per acre. In exchange for Underwood reducing his price to $1000 per acre, Rollins agreed to reduce Underwood’s work load by putting his farm tractor and farm hands out there to do all the handwork; i.e., picking up of chunks, roots and debris.

Underwood said he discussed with Rollins that he would begin the work using four tractors for five days and thereafter use two tractors to finish if Rollins agreed to pay Underwood $10,000 after five days work. Rollins paid Underwood the $10,000 after ten days work. After the initial five days, Underwood worked the job with two tractors. Rollins became very angry. Underwood had promised him four tractors for only five days because he had other commitments for his machinery. Because Rollins was so “riled,” Underwood put the other two tractors back on the job after the five days and left them there until the job was completed. The complete job lasted approximately six weeks. Underwood testified that the photos which he placed into evidence were taken two days before he completed the job, because Rollins called him the night before and demanded Underwood | ¡¡leave his property. Underwood informed Rollins that they only had two more days of work and that Underwood was not leaving until the job was complete. Underwood worked two more days and finished the job.

According to Underwood, he began the job by digging a channel type hole across [171]*171the property so that he could push in cleared vegetation, burn it and bury it. On the third day when neither Underwood nor his son was on the job, Rollins came and demanded that Underwood’s workers fill the hole with dirt and burn the debris. According to Underwood, that changed the job from a Level 2 to a Level 3 job which included burning little piles all over the property and moving unburned debris from one pile to another for more burning. That made the work much more time-consuming.

Underwood testified that Rollins would come to the job site and state the work was just what he wanted and then call Underwood at night to say the work was unacceptable. For the first three weeks of the job, Rollins required Underwood to do a 100% burn which left approximately a truck load of debris which Rollins demanded they then move to the next burn pile. After about three weeks, Rollins began rushing Underwood who informed him they were working sixty hours a week. Underwood testified he did not guarantee a time frame. Further, all he promised was that he would work four tractors the first week and keep two tractors on the job until completion.

Underwood testified that a machine burned approximately 3jé gallons of fuel per hour and that he used 4000 gallons of diesel fuel on the Rollins job so his machinery ran over 1000 hours on that job. He charged $75 an | ¿hour for the big track hoe, $65 per hour for the smaller track hoe and $55 each for the two dozers. Had he charged Rollins by the hour, Underwood testified the bill would have been over $70,000. Underwood paid $3,576.44 for fuel and $15,270.50 for labor on the Rollins project. His equipment rental for the job was % of $11,674.80, the cost of two months rental.

On cross-examination, Underwood testified when he, his son and Rollins drove the property, Underwood questioned the stated amount of 25 acres to be cleared. He requested a plat from Rollins who replied he had one but never supplied it to Underwood. Underwood acknowledged he started the job without knowing the exact acreage to be cleared. Because he was charging by the acre, Underwood explained he did not discuss the discrepancy and did not really care how many acres were to be cleared. The reason Underwood bid by the acre was his opinion that there was more land than 25 acres and his uncertainty of the acreage to be cleared. There was no way he could make a lump sum bid.

Although Underwood gets a written contract 99% of the time, he testified he was impressed with Rollins and did not do so in this case which Underwood stated, in light of this dispute, was wrong. In reviewing the pictures of the cleared property, Underwood testified that the job was finished as far as a land clearing job, but was not finished to the point of discing it for pasture land. According to Underwood, he and Rollins specifically agreed that Rollins’ employees would do all the hand work necessary to get the earth ready for disc-ing. Further, Underwood testified he never prepared land for pasture which required the use of a harrow rake, 1 ^equipment Underwood did not have or use. In responding to questions from the court, Underwood stated that he figured he cleared 37 acres. In Underwood’s view, although he had agreed to clear the land for $1000 per acre, he performed a $1500 per acre clearing job in an attempt to please Rollins.

On rebuttal, Underwood testified that of the 43.65 acres, he and his crew cleared 36.61 acres. Underwood stated he did not disagree with Rollins’ witnesses about the [172]*172condition of the property after he left, but was emphatic that he performed the work he had agreed to do for Rollins. He noted that Rollins told him not to worry about stumps that were sheared off at or under ground level, since he was going to use a stump grinder on those. Underwood agreed to dispose of the debris above ground and to root rake the property twice.

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Bluebook (online)
811 So. 2d 168, 2002 La. App. LEXIS 461, 2002 WL 272219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/underwood-v-rollins-lactapp-2002.