Gary v. Hollier's Specialty Roofing, Inc.
| Docket Number | 23-260 |
| Decision Date | 27 December 2023 |
| Parties | RYAN GARY AND REBECCA GARY v. HOLLIER'S SPECIALTY ROOFING, INC. |
| Court | Court of Appeal of Louisiana — District of US |
1
RYAN GARY AND REBECCA GARY
v.
HOLLIER'S SPECIALTY ROOFING, INC.
No. 23-260
Court of Appeals of Louisiana, Third Circuit
December 27, 2023
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2021-2262 HONORABLE VALERIE GOTCH GARRETT, DISTRICT JUDGE
Charles M. Rush
Counsel for Defendant/Appellant: Hollier's Specialty Roofing, Inc.
Stephen C. Carleton
Counsel for Plaintiffs/Appellees: Ryan Gary and Rebecca Gary
Court composed of Van H. Kyzar, Jonathan W. Perry, and Charles G. Fitzgerald, Judges.
CHARLES G. FITZGERALD, JUDGE
The defendant, Hollier's Specialty Roofing Inc. (Hollier Roofing), appeals the judgments of the trial court which dismissed its reconventional demand, denied its cross-motion for summary judgment, granted summary judgment in favor of the plaintiffs, Ryan Gary and Rebecca Gary (collectively, the Garys), awarded attorney fees and costs to the Garys, and compelled discovery.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
The Garys sustained extensive roof damage when Hurricane Delta blew through Lafayette Parish on October 9, 2020. The following day, the Garys met with a representative from Hollier Roofing. During this meeting, the Garys and Hollier Roofing signed an agreement to fix the damage. The agreement also contained an addendum authorizing direct payments from the Garys' insurer, Federal National Insurance Company, to Hollier Roofing.
A few weeks later, Hollier Roofing placed a temporary protective tarp over the damaged roof. The Garys then wrote a check to Hollier Roofing in the amount of $2,190.00, noting "tarp roofing" on the memo line.
In December 2020, Hollier Roofing submitted a claim for $5,588.88 to Federal National for the tarp work. The insurance company, in turn, mailed a check for this amount to the Garys. Thereafter, the Garys delivered this check to Hollier Roofing. But the Garys also delivered a second insurance check to Hollier Roofing. This check was drawn in the amount of $10,499.33 for roof repair.
Then, in late-January 2021, Hollier Roofing submitted a $21,234.04 estimate to Federal National for roof replacement. One month later, Hollier Roofing increased this estimate to $22,406.46, reflecting a price increase for materials. A few weeks after that, the Garys submitted a "proof of loss" prepared by Hollier
Roofing in the same amount: $22,406.46. In response, Federal National approved an updated claim amount of $18,224.80.
By this time, however, the Garys were frustrated with Hollier Roofing: the placement of a temporary tarp was the only work that had been done, and Hollier Roofing had been paid $5,588.88 for that work. Yet Hollier Roofing was still holding an additional $12,689.13 that belonged to the Garys. And so, by late-April 2021, the Garys made a formal demand for the return of this money. Hollier Roofing ignored the demand, and the Garys filed suit on May 3, 2021. The Garys asserted various causes of action against Hollier Roofing, including a declaratory action as to the validity of the original agreement, unjust enrichment, and various claims under Louisiana's Unfair Trade Practices Act (LUTPA).
In response, on May 10, 2021, Hollier Roofing returned $6,043.47. However, Hollier Roofing refused to hand over the balance of $6,664.46, claiming that those funds were for service expenses, administrative fees, overhead costs, and profits that it would have realized had the Garys honored the written agreement. A short time later, Hollier Roofing filed an exception of prematurity.
The trial of the Garys' declaratory action and Hollier Roofing's dilatory exception was held in July 2021. After taking the matter under advisement, the trial court rendered judgment on March 4, 2022. In essence, the trial court found that the written agreement between the Garys and Hollier Roofing was invalid. The trial court also overruled the exception. This judgment was never appealed.
One month later, on April 8, 2022, Hollier Roofing filed a combined answer and reconventional demand. The Garys responded four weeks later by filing a motion to strike the reconventional demand. And two weeks after that, the Garys filed a motion for partial summary judgment as to their claim for unjust enrichment.
In response, on June 13, 2022, Hollier Roofing filed a cross-motion for summary judgment. Hollier Roofing also filed at that time a first amended answer and reconventional demand. A few days later, the Garys moved to dismiss the amended pleading and requested sanctions. Hollier Roofing, in turn, filed a motion for leave to amend. And after that, the Garys filed a motion to compel discovery.
The hearing on all these pre-trial motions was held on July 18, 2022. After taking the matter under advisement, the trial court issued judgment and written reasons on August 19, 2022. In this judgment, the trial court granted the Garys' motion to strike, motion for partial summary judgment, and request for sanctions; the trial court denied Hollier Roofing's cross-motion for summary judgment. Thereafter, on August 31, 2022, the trial court issued a supplemental judgment. In that judgment, the trial court granted the Garys' motion to compel and denied Hollier Roofing's request for leave to amend. Hollier Roofing appealed these two judgments.[1]
On appeal, Hollier Roofing asserts eight assignments of error:
1. The trial court erred in granting the Garys' motion to strike Hollier's reconventional demand.
2. The trial court erred in granting the Garys' motion for partial summary judgment that did not meet the requirements of La. Code Civ. P. art. 966 and 967.
3. The trial court committed legal error in dismissing Hollier's reconventional demand by relying on the law applicable to amending answers rather than reconventional demands under La. Code Civ. P. Art. 1151 which permits Hollier's to amend its reconventional demand without leave of court prior to an answer being filed.
4. The trial court erred in dismissing Hollier's cross motion for summary judgment that was served timely pursuant to La. Code Civ. P. Art. 1313(C).
5. The trial court erred in denying Hollier's motion for partial summary judgment dismissing the Garys' claims: 1) LUTPA does not provide a remedy for a breach of contract claim[;] 2) mental anguish and emotional distress claims must be dismissed because they were not pled in the petition[;] and 3) nonpecuniary damages are not recoverable when the claim arises from repairs to a home.
6. The trial court erred in awarding attorney fees to the Garys. There is no legal basis for sanctions arising from Hollier's filing a reconventional demand and cross motion for partial summary judgment.
7. The trial court erred in denying Hollier's motion for leave to amend it[s] answer and reconventional demand.
8. The trial court abused its discretion in granting the Garys' motion to compel responses to interrogatories and requests for production of documents and awarding attorney fees to the Garys.
The Garys timely answered the appeal, seeking additional attorney fees.
LAW AND DISCUSSION
Assignment of Error Number One
Hollier Roofing asserts that the trial court erred in striking its reconventional demand.
Louisiana Code of Civil Procedure Article 964 states:
The court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter.
"The granting of a motion to strike pursuant to Article 964 rests in the sound discretion of the trial court and is reviewed under the abuse of discretion standard." Cole v. Cole, 18-523, pp. 7-8 (La.App. 1 Cir. 9/21/18), 264 So.3d 537, 544.
Hollier Roofing's reconventional demand, as amended, asserted claims for breach of contract and for attorney fees. The trial court, in striking the reconventional demand, dismissed both claims and explained as follows in its written reasons:
On March 3, 2022, this court rendered a Judgment finding that the "alleged contract between the parties presented on October 10, 2020 is NOT a valid contract . . . [.]" Accordingly, any arguments and/or demands made on the basis of that contract are without merit, pursuant to Louisiana's law of the case doctrine. Nevertheless, Defendant bases its Answer and Reconventional Demand, filed April 8, 2022, squarely upon that invalid contract, alleging that it has a cause of action due to Plaintiffs[] "unilaterally and without caus[e] rescind[ing] the contract and addendum." As this Court has ruled that the contract effectively never existed, such Reconventional Demand is insufficient as having no basis in law or fact.
On appeal, Hollier Roofing argues that its claim for breach of contract is based on a verbal agreement between the parties, as opposed to the written agreement that was previously invalidated by the trial court. Yet a plain reading of the reconventional demand refutes this argument. In other words, the reconventional demand does not allege any facts of a verbal contract: there are no allegations about a verbal offer, no allegations about a verbal acceptance, no allegations about the goods or services being offered, and no allegations about the price of any goods or services. Thus, we are left with a breach-of-contract claim that is based on a "contract" which was previously declared invalid by the trial court. The trial court did not abuse its discretion in striking this claim from the reconventional demand.
However, the reconventional demand also asserted a claim for attorney fees under the LUTPA based on Hollier Roofing's allegation that the Garys acted in bad faith in filing their LUTPA claims. The trial court did abuse its discretion in striking this claim from the reconventional demand.
Assignment of Error Number Two
In...
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