Bayou Rapides Corp. v. Dole

Decision Date27 May 2015
Docket NumberNo. 14–906.,14–906.
Citation165 So.3d 373
PartiesBAYOU RAPIDES CORPORATION v. Michael and Adrienne DOLE.
CourtCourt of Appeal of Louisiana — District of US

Charles D. Elliott, Aaron L. Green, Vilar & Elliott, LLC, Alexandria, LA, for Defendants/Appellants, Michael and Adrienne Dole.

Ronald J. Fiorenza, Eli J. Meaux, Provosty, Sadler, Delauny, Fiorenza & Sobel, Misty Shannon Antoon, Antoon Law Firm, Alexandria, LA, for Plaintiff/Appellee, Bayou Rapides Corporation.

Court composed of SYLVIA R. COOKS, BILLY H. EZELL and PHYLLIS M. KEATY, Judges.

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Dr. Michael Dole and his wife Adrienne Dole (the Doles) contacted Bayou Rapides Construction (BRC) in April 2010, to discuss construction of a new, high-end, 11,900–square–foot home. The Doles contacted BRC through Bobby Hunter (Hunter), an employee of BRC with whom the Doles were acquainted. Hunter had about forty years of experience in home building, and his father had over sixty years of experience in construction. Both worked for BRC. The Doles brought their construction plans to BRC, and, based upon those plans, BRC prepared various estimates for construction of the Doles' home. Hunter and Chris Antoon (Antoon), representing BRC, met with the Doles and proposed to build the home on a cost-plus arrangement. BRC proposed to build the home for an 8% profit above the total cost of construction. The parties exchanged emails regarding BRC's proposals but, surprisingly, neither party reduced anything to writing, despite the fact that the initial proposed construction agreement involved building a $1,700,000.00 home. In the end, after many changes and additions to the project, the Doles completed the project for a total cost of $2,413,513.14.

Construction began on the home in 2010, and for the first several months of the project BRC billed at its cost–plus–8% calculation and the Doles paid accordingly. By December 2010, the Doles became uncomfortable with the cost-plus billing and asked BRC to switch to a fixed-price contract. BRC submitted a proposal to the Doles via email to complete the project for a fixed sum based on the plans and specifications provided to BRC by the Doles.

Again, work proceeded without any written agreement. BRC submitted a work schedule stating the proposed completion time frame for various aspects of the construction. As

work progressed, BRC submitted, and the Doles paid, periodic draw requests. The Doles authorized payment of the draws, and the bank funding the project paid without objection. After paying several draw requests without question, the Doles started asking for more detailed information concerning draw requests. BRC provided such information and allowed Dr. Dole the discretion to pay the draw request in his own time. On April 27, 2011, BRC suggested the parties return to a cost-plus arrangement. According to BRC this suggestion was made as a way to avoid time-consuming change orders by the Doles which it claimed were delaying the project. The Doles maintain that they and their interior designer were not the cause of delays, though they admitted to making several changes in the original plans as the project proceeded. In an email to Antoon dated July 14, 2011, Dr. Dole acknowledged that “due to the nature of the job, and the number of changes that Adrienne and [he] requested” BRC asked to change to a cost-plus arrangement. The Doles did not want to revert back to a cost-plus arrangement. The Doles admit that at least $900,000.00 of the additional expenditures on their house and guest house were due to their own changes from original plans and is not owed by BRC.

On June 22, 2011, the Doles received a draw request from BRC for $35,000.00. Although Dr. Dole had approved and paid BRC's draw requests he demanded a full audit of all previously paid invoices and refused to pay the $35,000.00 draw request until a full audit was performed. BRC and the Doles exchanged emails wherein it became apparent the Doles were not going to pay any more funds without a full forensic audit. The Doles made it known to BRC that they would hire workers to finish the construction if BRC did not acquiesce to their demands. BRC, convinced that the Doles were not going to pay the requested draw, stopped working on the project. The Doles immediately hired the same sub-contractors

who had been working on the house and eventually completed the house and guest house almost a year later for over $1,000,000.00 more than they had already paid BRC. BRC sued the Doles for the outstanding amount owed for labor and materials in the construction of their home. The Doles filed a reconventional demand asserting they were overcharged for certain labor costs and alleging the work performed by BRC was sub-standard. In addition to these damages the Doles sought recovery for non-pecuniary damages allegedly caused by BRC abruptly halting construction of the Doles' home.

Following a bench trial, the trial court ruled in favor of BRC finding there was never a contractual agreement as there had never been a meeting of the minds between the parties. The trial court awarded BRC $50,000.00 for its unjust enrichment claim, and denied all of the Doles' reconventional demands. The Doles appeal alleging ten assignments of error.

LEGAL ANALYSIS
The Doles' Assignments of Error.

The Doles allege ten assignments of error:

1. The trial court committed legal error when it found that there was “no meeting of the minds to form a binding contract,”....
2. The trial court committed legal error when it failed to find that BRC breached its fixed price contract to complete the home when BRC abandoned the Project solely because Dole questioned the timing of an unscheduled draw request.
3. The trial court committed legal error when it dismissed all of Dole's claims, including claims of poor and defective workmanship....
4.The trial court committed legal error when it failed to acknowledge the duties and responsibilities a custom home builder owes to the homeowner, especially in the face of unrefuted expert testimony.
5. The trial court committed legal error when it failed to apply the rules governing a contractor's burden and obligations under a “cost plus” contract.
6. The trial court committed legal error when it failed to recognize that the Louisiana Unfair Trade Practices Act prohibited BRC's conduct and practices during this Project.
7. The trial court committed legal error when it disregarded applicable law and failed to award Dole damages for the cost to complete and repair their home, when BRC breached its contract with Dole and much of the work it did was defective.
8. The trial court committed legal error when it failed to award Dole damages for non-pecuniary loss when this custom home was planned by Dole for over 20 years, was clearly intended to be their “dream home” and was meant to gratify a non-pecuniary interest.
9. The trial court committed legal error when it awarded BRC $50,000.00 without legal basis and contrary to the evidence offered at trial.
10. The trial court committed legal error when it denied Dole's dilatory exception of vagueness and motion to strike, when BRC raised a plethora of vague claims and/or affirmative defenses in summary fashion without sufficient factual allegations.
No Meeting of the Minds, No Contract.

It is “well-settled” law that “the existence of a contract is a finding of fact, subject to the manifest error standard of review.” Mark A. Gravel Props., LLC v. Eddie's BBQ, LLC, 14–46, p. 7 (La.App. 3 Cir. 5/7/14), 139 So.3d 653, 658, (citing Dubois Const. Co. v. Moncla Const. Co., Inc., 39,794 (La.App. 2 Cir. 6/29/05), 907 So.2d 855 ). Thus, this court cannot set aside the trial court's finding that no contract existed between these parties unless we find the trial court was clearly wrong or manifestly erroneous.

Coffman Homes, L.L.C. v. Sutherland, 10–178 La.App. 5 Cir. 2/15/11), 60 So.3d 52, writ denied, 11–10111 (La.6/24/11), 64 So.3d 223.

Louisiana Civil Code Article 1906 provides: “A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished.”Louisiana Civil Code Article 1927 provides:

A contract is formed by the consent of the parties established through offer and acceptance.
Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent.
Unless otherwise specified in the offer, there need not be conformity between the manner in which the offer is made and the manner in which the acceptance is made.

In Gravel, 139 So.3d at 657–58 (emphasis added) (alterations in original) we explained what is necessary for the formation of a contract:

“A contract is formed by the consent of the parties established through offer and acceptance.” La.Civ.Code art. 1927. In Philips v. Berner, 00–103, p. 5 (La.App. 4 Cir. 5/16/01), 789 So.2d 41, 45, writ denied, 01–1767 (La.9/28/01), 798 So.2d 119, the fourth circuit discussed contract formation, stating:
Four elements are necessary for formation of a contract in Louisiana: (1) capacity, (2) consent, (3) certain object, and (4) lawful cause. Leger v. Tyson Foods, Inc., 95–1055 (La.App. 3 Cir. 1/31/96), 670 So.2d 397.
The law has long been clear that in order to find that there was an agreement between the parties and have consent pursuant to [La. Civ.Code] art. 1927, the court must find that there was a meeting of the minds of the parties. See. [sic] Buruzs v. Buruzs, 96–1247 (La.App. 4 Cir. 12/27/96), 686 So.2d 1006. Furthermore, it is horn book law that the consent of the parties is necessary to form a valid contract and where there is no meeting of the minds between the parties the contract is void for lack of consent. Stockstill v. C.F. Industries, Inc., 94–2072 La.App. 1 Cir. 12/15/95), 665 So.2d 802, 820 ; Howell v. Rhoades, 547 So.2d 1087, 1089 (La.App. 1 Cir.1989).

The trial court, after considering the evidence and testimony,...

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