Belgard v. Collins

Decision Date08 December 1993
Docket NumberNo. 93-489,93-489
Citation628 So.2d 1254
PartiesJimmy BELGARD D/B/A Belgard Construction Company, Plaintiff-Appellant, v. Myrtle Ann COLLINS, Defendant-Appellee.
CourtCourt of Appeal of Louisiana — District of US

Gregory R. Aymond, Alexandria, for Jimmy Belgard d/b/a Belgard Const. Co.

Virgil Russell Purvis Jr., Jonesville, for Myrtle Ann Collins.

Before DOUCET, YELVERTON and WOODARD, Judges.

WOODARD, Judge.

This appeal arises out of a lawsuit for damages for the alleged breach of an oral contract. The issue on appeal is whether plaintiff, Jimmy Belgard, and defendant, Myrtle Ann Collins, entered into an oral contract.

FACTS

Mrs. Collins and her mother are co-owners of a convenience store in Jonesville, La. The store was damaged in November, 1987 when a tornado or wind storm blew through the area. The building was insured by Allstate Insurance Company. Mrs. Collins' husband was employed by Allstate as a company representative.

Sometime after the store was damaged, Mr. Belgard visited Mrs. Collins at the store. It is at this point that each party's description of events begins to differ; thus, we will present both versions of the facts, beginning with Mr. Belgard's.

MR. BELGARD

Mr. Belgard claims that he stopped at Mrs. Collins' store to tell her he was in the consulting business and to offer her his services. These services consisted of providing an engineer to inspect the damage to her building and to look for any damage the insurance company might miss. He would also provide the engineer as an expert witness and pay any attorney's fees should litigation become necessary. Mr. Belgard's fee for these services was 25% of any amount collected from the insurance company in excess of the amount of the first check the insurance company sent Mrs. Collins. Mrs. Collins had not received any money from Allstate at this point.

Sometime after this meeting, Mrs. Collins called Mr. Belgard to tell him the insurance company was sending an engineer to her store to inspect the damage. Mr. Belgard claims he and Mr. Philip York, an estimator for Belgard Construction, were present while the insurance company's engineer looked over the building. The purpose of the engineer's investigation was to determine whether the building was repairable. At this time, Mr. Belgard told Mrs. Collins that he knew an engineer and asked if she would like him to bring him by to inspect her store. She said yes.

Thus, Mr. Belgard returned to the store with Mr. Philip Beard, an engineer. Mr. Beard inspected the building and issued a report dated December 16, 1987, discussing the damage to the building. On December 28, 1987, Mr. Belgard and Mr. York presented a package of information to Mrs. Collins which contained a drawing and photographs of her building, the engineer's report, and three bids for the construction work. Allstate required that three bids be submitted for the repair work. Mr. Belgard had obtained two other bids to submit to the insurance company in addition to his own. Mrs. Collins reviewed this package of information and asked Mr. Belgard to drop it off at the adjustor's office in Alexandria, which he did. Mr. Belgard claims it was at this point that Mrs. Collins accepted his consulting services.

MRS. COLLINS

Mrs. Collins claims that throughout her contact with Mr. Belgard she thought he was merely a contractor anxious to get the bid on her construction work. She testified that during Mr. Belgard's first visit to the store, he told her he was a commercial building contractor looking for work in the area. He mentioned nothing about consulting services. At a subsequent visit, Mr. Belgard offered to bring an engineer by her store, who was going to be inspecting another building in the area. Mrs. Collins agreed to this because there were some things she did not like about the report prepared by the insurance company's engineer.

Mrs. Collins testified that she believed she would be hiring Mr. Beard, the engineer, and when he came by the store, she had a discussion with him about his fees. Mr. Beard confirmed that they had this discussion. He also stated that he had no knowledge of any agreement between Mr. Belgard and Mrs. Collins.

In January, Mrs. Collins received a $50,000 check from Allstate, dated January 22, 1988. Although she assumed the check was an advance on her claim, when she later spoke to Mr. Beard on the telephone he recommended she get confirmation in writing from Allstate verifying that the check was not payment in full. She did so and Allstate confirmed that the check was an advance.

Mrs. Collins spoke with Mr. Beard again in February or March, 1988 in order to determine what she owed him for inspecting her store and preparing his report. Mr. Beard told her that Mr. Belgard had already paid him. When she contacted Mr. Belgard to find out what he had paid Mr. Beard, he would not tell her the amount.

Mrs. Collins remembered reviewing the package of information Mr. Belgard presented to her, however she believed this was part of his effort to obtain the construction job for her store. Mrs. Collins testified that Mr. Belgard offered to take the information to the insurance adjustor's office; she did not ask him to do it.

Allstate ultimately rejected all three of the bids that were submitted, including Mr. Belgard's. Mrs. Collins eventually settled her claim with Allstate and she received a total of $123,805 for her property damage. This amount is $73,805 above the original $50,000 check Mrs. Collins received from Allstate. Mr. Belgard claims Mrs. Collins owes him 25% of this amount pursuant to the oral contract they entered into regarding his consulting services.

After the trial on the matter, the trial court rendered judgment in favor of Mrs. Collins. It found there was no oral contract between the parties because there had never been a "meeting of the minds." It is from this judgment that Mr. Belgard appeals, asserting as error the trial court's failure to find that there was a contract between the parties.

ORAL CONTRACT

Four elements are required for a valid contract: (1) the parties must have legal capacity to contract; (2) the parties' mutual consent must be freely given; (3) there must be a lawful cause or purpose; and (4) the object of the contract must be lawful, possible, and determined or determinable. La.C.C. arts. 1918, 1927, 1966, and 1971; Thebner v. Xerox Corp., 480 So.2d 454 (La.App. 3 Cir.1985), writ denied, 484 So.2d 139 (La.1986). A party who demands performance of a contract has the burden of proving the existence of the obligation. La.C.C. art. 1831. The existence of an oral contract with a value in excess of five hundred dollars must be proved by at least one witness and other corroborating circumstances. La.C.C. art. 1846.

The trial court found there was no oral contract because Mr. Belgard and Mrs. Collins never reached a meeting of the minds. This is a finding of fact and it may not be disturbed on appeal unless it is clearly wrong. Harris v. Wallette, 538 So.2d 728 (La.App. 2 Cir.1989); see also Strecker v. Credico Financial, Inc., 444 So.2d 783 (La.App. 4 Cir.1984).

The evidence supports the conclusion that Mrs. Collins never agreed to hire Mr. Belgard to do consulting work. She believed he was a contractor bidding for the construction work on her building. This is supported by the fact that Mrs. Collins believed that she was the one hiring Mr. Beard, the engineer. If she had...

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