Maloney v. Oak Builders, Inc., 3352

• Decision Date: 02 June 1969
• Docket Number: No. 3352,3352
• Parties: Olga KENNY, wife of/and Paul MALONEY, Jr. v. OAK BUILDERS, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 161

224 So.2d 161

Olga KENNY, wife of/and Paul MALONEY, Jr. v. OAK BUILDERS, INC., et al.

No. 3352.

Court of Appeal of Louisiana, Fourth Circuit.

June 2, 1969.

Rehearings Denied July 7, 1969.

Casey, Babin & Casey, A. F. Babin, Jr., New Orleans, for plaintiffs-appellees.

Deutsch, Kerrigan & Stiles, A. Morgan Brian, Jr., New Orleans, for Mrs. Betty Moss and Continental Casualty Co., defendants-appellees.

Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, Julian H. Good, New Orleans, for Bernard Wholesale Distributing Co. George A. Frilot, III, New Orleans, for Milford A. Friedrich, d/b/a Friedrich Refrigeration.

Normann & Normann, David R. Normann, New Orleans, for DeSota-Rabalais, Inc., defendant-appellee.

Huddleston & Davis, James R. Sutterfield, New Orleans, for St. Bernard Roofing & Sheet Metal Co., third-party defendant-appellant.

N. J. Gagliano, Metairie, for Higgins & Ostarly, Inc., third-party defendant-appellee.

Edmond R. Eberle, New Orleans, for Gus Duncan, third-party defendant-appellee.

A. D. Freeman, Jr., New Orleans, for Oak Builders, Inc., defendant-appellant.

Before REGAN, BARNETTE and GARDINER, JJ.

REGAN, Judge.

The plaintiffs, Mr. and Mrs. Paul Maloney, Jr., filed this suit against the defendants, Oak Builders, Inc., the contractor, Fidelity and Deposit Company of Maryland, its surety, Betty A. L. Moss, the architect, and Continental Casualty Company, her liability insurer, endeavoring to recover the sum of $38,163.27, representing damages which they assert were incurred as the result of the defendants' breach of contract in connecton with the construction of their home. More particularly, the suit is predicated upon the contractor's failure to perform its obligations in a workmanlike manner, and the failure of the architect to properly supervise the work and ascertain that it was performed in conformity with the plans and specifications.

The defendants answered and denied the accusations of wrongdoing asserted by the plaintiffs.¹ The defendant, Oak Builders, Inc., then filed a third party demand against several of its subcontractors, Noel St. Cyr, Higgins & Ostarly Plumbing and Heating Company, Inc., Marvin N. Garrett, d/b/a Garrett Tile Company, Milford A. Friedrich, Jr., d/b/a Friedrich Refrigeration Service, St . Bernard Roofing & Sheet Metal Company, J. C. Baumgartner, d/b/a Central Vac of New Orleans, Bernard Wholesale Distributing Company, Chris Peters, DeSota-Rabalais, and Gus Duncan, endeavoring to obtain a judgment against these subcontractors for their portion of the alleged defective work performed by them on the plaintiffs' home. An answer was filed to this third party petition by Higgins & Ostarly, Marvin N. Garrett, J. C. Baumgartner, Bernard Wholesale Distributing Company, Milford A. Friedrich, Jr., DeSota-Rabalais, Gus Duncan, and St. Bernard Roofing and Sheet Metal Company, in which they all denied any improper practices and insisted that they performed their work in accordance with the plans and specifications .

The third party defendant, St. Bernard Roofing and Sheet Metal Company, filed a reconventional demand against Oak Builders, Inc., through which it endeavored to recover the sum of $610.00 which it asserts is the unpaid balance due on the subcontract between it and Oak Builders, Inc. St. Bernard Roofing also filed its own third party complaint against Oak Builders, Inc., and Betty A. L. Moss in order to recover the sum of $629.00 for extra labor and materials used above and beyond that specified in the main contract, which extra work was performed at the instigation of Oak and Mrs. Moss.

Following an extended trial on the merits, judgment was rendered as follows:

1. In favor of the plaintiffs, Mr. and Mrs. Paul Maloney, Jr., and against Oak Builders, Inc., and Fidelity and Deposit Company of Maryland solidarily in the amount of $8,248.47, together with a like judgment in favor of Fidelity and Deposit Company against Oak Builders, Inc., John S. Morvant, Jr., and Beverly Morvant solidarily in conformity with their indemnity agreement.

2. In favor of the defendants, Betty A. L. Moss and Continental Casualty Company and against the plaintiffs, Mr. and Mrs. Paul Maloney, Jr., dismissing their suit against them.

3. In favor of Oak Builders, Inc., and against Chris Peters in the amount of $332.00.

4. In favor of Oak against DeSota-Rabalais in the amount of $140.00.

5. In favor of Oak against Bernard Wholesale Distributing Company, Inc., in the amount of $352.60.

6. In favor of Oak Builders, Inc., against Higgins & Ostarly in the amount of $63.95.

7. In favor of Oak Builders, Inc., against Milford A. Friedrich, Jr., in the amount of $1,087.42.

8. In favor of Oak Builders, Inc., against DeSota-Rabalais in an additional amount of $25.00.

9. In favor of Oak Builders, Inc., against St. Bernard Roofing and Sheet Metal Company in the amount of $4,632.60.

10. In favor of Oak Builders, Inc., against Higgins & Ostarly for the additional sum of $300.00.

11. In favor of J. C. Baumgartner and against Oak Builders, Inc., dismissing Oak's third party petition.

12. In favor of Oak Builders, Inc., against Marvin N. Garrett for $135.97.

13. In favor of Noel St. Cyr and against Oak Builders, Inc., dismissing its third party petition.

14. In favor of Gus Duncan, dismissing Oak Builders' third party petition.

15. Dismissing St. Bernard Roofing and Sheet Metal Works' reconventional demand and third party petition against Oak Builders, Inc., Betty A. L. Moss, and Continental Casualty Company.

16. In favor of Arthur F. Babin, Jr., attorney for the plaintiffs, against the defendants, Oak Builders, Inc., and Fidelity and Deposit Company of Maryland, solidarily in the amount of $4,608.20 representing attorney's fees, together with a like judgment in favor of Fidelity and Deposit Company against Oak Builders, Inc., and Mr. and Mrs. Morvant under their indemnity agreement.

In addition to the foregoing, the lower court awarded numerous expert fees against various parties involved in this litigation.

From this judgment, appeals were prosecuted by Oak Builders, Inc., Fidelity and Deposit Company of Maryland, Milford A. Friedrich, Jr., and St. Bernard Roofing and Sheet Metal Company. In addition thereto, answers to the appeal were filed by DeSota-Rabalais, Mr. and Mrs. Paul J. Maloney, Jr., the plaintiffs herein, Milford A. Friedrich, and Bernard Wholesale Distributing Company.²

The record discloses that Paul Maloney, Jr., the president of the Citizen's Homestead Association, together with Mrs. Maloney, entered into an agreement with one of the defendants, Mrs. Betty A. L. Moss, an architect, on March 27, 1963, to draw plans for the erection of a home for them in the Lakeshore area of the City of New Orleans. The agreement was confected through the medium of the standard form used by the American Institute of Architects . On October 21, 1963, Oak Builders, Inc., the principal defendant herein, entered into a building contract with the plaintiffs and with the Citizen's Homestead Association through the use of a building contract form of the Citizen's Homestead, wherein Oak Builders, Inc., agreed to construct the plaintiffs' house for the sum of $92,164.00. The plans and specifications drawn by Mrs. Moss were paraphed by the homestead's notary for identification with the building contract, but the homestead's own building expert, John J. Cruthirds, was named in the agreement as the expert to direct the work and to whose satisfaction it was to be performed.

Thereafter, construction was begun and the residence was completed on or about September 1, 1964. On that date, the plaintiff was dissatisfied with certain imperfections in the house, and he prepared, with the assistance of his wife, a list of these defects, referred to herein as a 'punch list'. The plaintiff also had in his possession the sum of approximately $30,000.00, which was payable upon final acceptance of the contractor's work.

In order to obtain as much of the $30,000.00 final payment as possible, Oak Builders, Inc., entered into an agreement with the plaintiff by virtue of which it paid him the sum of $3,000.00 for unacceptable items contained in the house, together with $1,720.00 as liquidated damages for delay in conformity with the demurrage clause set forth in the building contract. Oak Builders, Inc., also agreed to complete or redo the items delineated in the punch list, which was made part of the agreement. Thereafter, an acceptance was filed in the appropriate office, and the plaintiffs took possession of the residence. All payments specified in the compromise agreement of October 1, 1964, were paid. On May 25, 1965, the plaintiff, Maloney, through his attorney, made a demand upon the architect and contractor to remedy or repair certain architectural and construction errors, omissions, and defects which allegedly caused the plaintiffs to pay large sums of rent, substantial interest, and to incur other expenses. When the architect and the contractor did not capitulate to these demands of the plaintiffs, this suit ensued.

This case poses for our consideration innumerable factual and legal issues, which have been resolved by virtue of a thorough analysis of seven voluminous volumes of testimony which is designated as the record herein. In any event, we have endeavored to ignore the trivial and to decide the substantial issues tediously culled from a disjointed and a relatively incoherent transcript.

The law encompassing the execution of building contracts emanates from the rationale contained in Article 2769 of the Louisiana Civil Code which reads:

'If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.'

The jurisprudence interpretive thereof has pointed out that the law governing construction...