White v. Rogers

905 So. 2d 1088, 2005 WL 955000
CourtLouisiana Court of Appeal
DecidedApril 26, 2005
Docket04-CA-1434
StatusPublished
Cited by1 cases

This text of 905 So. 2d 1088 (White v. Rogers) 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
White v. Rogers, 905 So. 2d 1088, 2005 WL 955000 (La. Ct. App. 2005).

Opinion

905 So.2d 1088 (2005)

Charlie WHITE and Dorothy White
v.
Herbert ROGERS, Vada Rogers and B & S Builders, Inc.

No. 04-CA-1434.

Court of Appeal of Louisiana, Fifth Circuit.

April 26, 2005.

*1089 Charlie and Dorothy White, Marrero, LA, for Plaintiff/Appellant in Proper Person.

Kenneth J. Hurst, Marrero, LA, for Defendant/Appellee.

Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and SUSAN M. CHEHARDY.

JAMES L. CANNELLA, Judge.

The Plaintiffs, Charlie and Dorothy White, appeal from a judgment in favor of the Defendants, Herbert Rogers, Vada Rogers and B & S Builders, Inc. (B & S), in an oral contract dispute over the cost of a house renovation. We affirm.

In 1998, the Plaintiffs entered into an oral contract with the Defendants for the renovation of their home in Marrero, Louisiana, to include adding a master bedroom and bathroom, and remodeling an existing bathroom. The work on the addition was substantially completed two years later in June of 2001. In November of 2001, work began on the existing bath. At that time a dispute arose over a $900 bill. Herbert Rogers stopped work and the Plaintiffs hired others to complete the project.

On December 1, 2003, the Plaintiffs filed a petition pro se against the Defendants for breach of the oral contract, demanding damages representing the costs incurred to complete the renovations on the existing bathroom, and for reimbursement of $16,000, the total paid to the Defendants for constructing the additions. The Defendants answered the petition and filed a reconventional demand on January 23, 2003, demanding the balance of $900 owed for the remodeling work on the existing bathroom, plus a reasonable amount for Herbert Rogers' work and services. They also requested damages for sanctions, attorneys' fees, and costs for filing a frivolous lawsuit.

Subsequently, the Plaintiffs obtained legal counsel to represent them at trial and the case was tried before a judge on May 19, 2004. On May 20, 2004, the trial judge rendered a judgment, with reasons, in favor of the Defendants on their reconventional demand in the amount of $900, with legal interest from date of judicial demand until paid and all costs of court. The trial judge dismissed the Plaintiffs' claim and the Plaintiffs appealed. Thereafter, counsel for the Plaintiffs withdrew from the case. The Plaintiffs proceeded with the appeal pro se. They were also granted pauper status for the appeal.

PROCEDURAL DEFECTS

We note three problems with the appeal. First, the Plaintiffs filed an untimely motion for a new trial. Second, they were granted a suspensive appeal, which should have been converted to a devolutive appeal after they were granted pauper status. Third, the judgment that they appealed from does not exist.

The judgment on the merits was rendered on May 20, 2004 and notices of the judgment were sent on May 21, 2004. On July 8, 2004, the Plaintiffs, through their attorney, filed a motion for new trial from a judgment dated June 9, 2004 on the basis of newly discovered evidence. The motion for new trial was clearly untimely. *1090 See: La.C.C.P. art. 1974. In addition there is no judgment dated June 9, 2004. Also, on July 9, 2004, the Plaintiffs filed for a suspensive appeal from the "final judgment of June 9, 2004." The suspensive appeal was erroneously granted because no security was provided. In addition, shortly thereafter, the Plaintiffs moved for and were granted pauper status under La.C.C.P. art. 5181. As paupers, they cannot appeal suspensively, unless they provide security. See: C.C.P. art. 5185 B. However, the Plaintiffs are entitled to a devolutive appeal, which is timely, since the motion for appeal was filed on July 9, 2004, or within 60 days from the expiration of the 7 day delay for applying for a new trial (May 28, 2004.) See: La.C.C.P. art. 1974; C.C.P. art. 5185 A(4).

In addition, the Plaintiffs appealed from a judgment dated June 9, 2004, which does not exist. Nevertheless, since the Plaintiffs are pursuing the appeal pro se, are indigent and we can determine that they intended to appeal from the May 20, 2004 judgment, we will convert the appeal to a devolutive appeal and address the merits of the case.[1]

MERITS

The issue on appeal is whether the Plaintiffs are entitled to reimbursement of $16,575 representing the total amount paid for the renovations, including the addition of the master bed, bath, hall, and work on the existing bathroom. Also, the Plaintiffs dispute that the Defendants are entitled to recover the $900 for the work done on the existing bathroom. The Plaintiffs contend that the $16,575 included all work on both projects.

The evidence showed that Dorothy White and Vada Rogers worked together at the Jefferson Parish school board for 20 years. In 1997, when the Plaintiffs first contemplated renovating their family home, Dorothy White mentioned the project to Vada Rogers, whose husband, Herbert Rogers, owns and operates B & S, a construction company. According to Dorothy White, Vada Rogers advised her to obtain some estimates. In 1997, the Plaintiffs obtained an estimate from Hill's Construction (Hill's) for $9,870 and Renovations Plus Construction Co. (R.P.C.C.) for $32,000. Dorothy White claimed that Vada Rogers obtained this second estimate on the Plaintiffs' behalf and that both estimates included the addition of a master bedroom and bathroom and renovation of an existing bathroom. However, Vada Rogers testified that the Plaintiffs obtained the estimates and that she did not see the Hill's estimate obtained by the Plaintiffs until the day of trial. Nevertheless, when Vada Rogers saw the R.P.C.C. estimate, she told Dorothy White it was too high and offered to investigate whether her husband could perform the job for less. Thus, the women went to the Plaintiffs' house and Dorothy White showed Vada Rogers what she wanted done. She said she wanted to add a bedroom and bathroom and have the existing bathroom renovated. Charlie White was not present.

Vada Rogers testified that the job also included a walk-in closet, which the Plaintiffs did not mention in her testimony. Vada Rogers also said that they were to discuss the existing bathroom after the additions were completed. Vada Rogers said that they agreed that Herbert Rogers would perform the work at his cost, plus any amount that the Plaintiffs deemed fair *1091 for his profit. Dorothy White did not mention the "plus" portion of the contract at trial.

There is no dispute that the Plaintiffs hired Herbert Rogers, and deposited $8,000 into a joint account to pay expenses as they accrued, in accordance with Herbert Rogers' business policy. Any money left over would be returned to the Plaintiffs. The project to add the bed and bath began in December of 1999.

There was no written contract. The Plaintiffs claimed that they had asked for one in the beginning and Charlie White contended that he asked Dorothy White on several other occasions, as well, to obtain a written contract. Armond Sullivan, the Plaintiff's backyard neighbor, testified he overheard a conversation between Charlie White and Herbert Rogers about a written contract, but could not remember if it occurred in 1999 or 2001. However, Dorothy White stated when she asked Vada Rogers for a written contract, she was told that Herbert Rogers did not use written contracts in his business. She did not pursue the matter further because she did not know how these things were done and she trusted Vada Rogers, who purported to be a Christian lady and her friend.

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Related

Ledet v. JO-DE EQUIPMENT RENTAL CO., INC.
34 So. 3d 1028 (Louisiana Court of Appeal, 2010)

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Bluebook (online)
905 So. 2d 1088, 2005 WL 955000, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-rogers-lactapp-2005.