Grady v. Alfonso

• Decision Date: 08 July 1975
• Docket Number: No. 6908,6908
• Citation: 315 So.2d 832
• Parties: Edward R. GRADY v. Nofie D. ALFONSO, Jr., d/b/a Kevin Construction Co., and the Employers' Liability Assurance Corp., Ltd.
• Court: Court of Appeal of Louisiana — District of US

Page 832

315 So.2d 832

Edward R. GRADY v. Nofie D. ALFONSO, Jr., d/b/a Kevin Construction Co., and the

Employers' Liability Assurance Corp., Ltd.

No. 6908.

Court of Appeal of Louisiana, Fourth Circuit.

July 8, 1975.

Mmahat, Gagliano, Duffy & Giordano, Lucas J. Giordano, Metairie, for plaintiff-appellee.

Huddleston, Davis, Saunders & Miller, Albert J. Huddleston, New Orleans, for defendant-appellee, Nofie D. Alfonso, Jr. Hammett, Leake, Hammett, Hayne & Hulse, Robert E. Leake, Jr., New Orleans, for defendant-appellant Employers' Liability Assurance Corp., Ltd.

Before SAMUEL, BOUTALL and SCHOTT, JJ.

SCHOTT, Judge.

These proceedings were initiated by plaintiff, Edward R. Grady, to recover damages for breach of a building contract between plaintiff and defendants, Nofie D. Alfonso, Jr., and Milton Helmake, both doing business as Kevin Construction Co., and defendant, Employers Liability Assurance Corp., Ltd. (ELAC) as the surety on the contractor's bond. Helmke was never cited and served so that he was not made a party to the proceedings. Plaintiff sought recovery for $7,225.54 to correct various defects enumerated in his petition, $2,000.00 to repair damage resulting from water seepage, in turn resulting from defective workmanship, demurrage at $10.00 a day from the contractual completion date, July 13, 1969, 'until the works are complete,' damages for inconvenience and mental anguish, and attorney's fees. ELAC denied the allegations and brought a third-party action against Alfonso and Helmke, seeking indemnification for whatever amounts it might be cast unto plaintiff, the sum of $3,749.71 for amounts it paid to subcontractors and suppliers, and its own costs and attorney's fees. Alfonso reconvened against plaintiff, seeking payment for extras it alleged plaintiff had agreed to over and above what was called for in the contract.

The trial judge found that Alfonso had performed extra work totaling $7,396.00, and that the cost to plaintiff to remedy defective workmanship performed by Alfonso and Helmke amounted to $7,225.54. He also found that plaintiff was due $2,078.14 for some payments which he made directly to subcontractors during the course of the project so that plaintiff was entitled to $1,907.68 against Alfonso as contractor and ELAC as the bonding company. Without specifying how he arrived at the total figure the trial judge awarded to plaintiff a lump sum judgment against Alfonso and ELAC for $7,500.00. On the thrid-party demand of ELAC he found that it had paid $3,749.71 to various subcontractors and suppliers but it had been reimbursed in the sum of $2,154.33, but without explanation the trial judge awarded to ELAC a judgment on its third-party demand in the amount of $5,345.67. The reconventional demand of Alfonso was dismissed.

From that judgment ELAC took an appeal and plaintiff answered the appeal, seeking an increase in the amount of the award against all defendants. Alfonso also answered the appeal. As a result of these actions the effect of ELAC's appeal is from the entire judgment but that of the answers to the appeal filed by plaintiff and Alfonso is limited with respect to the judgments in favor of ELAC and cannot be used by them to revise, modify or reverse the judgments against these appellees in favor of each other. See LSA-C.C.P. Art. 2133 and comments thereto.

As to the judgment on the main demand, ELAC does not dispute plaintiff's right to recover the $1,907.68 along with the sum of $1,265.00 attorney's fees as provided for in the contract, that is, 5% Of the amount of the contract, $25,300.00. It also acknowledges liability for 110 days' demurrage at $10.00 a day or a total of $4,272.68. It contends that the trial judge apparently made errors in arithmetic in awarding the sum of $7,500.00.

However, after the judgment and after the argument on motions for new trial filed by all parties, the trial judge, in denying the motions, stated that he 'is of the opinion that a judgment between $5,000.00 and $15,000.00 would be substantiated by the aforesaid testimony and evidence.' Thus, the trial judge included a substantial amount in his judgment for demurrage or mental anguish and inconvenience or both.

By contract the parties agreed that the work would be completed on July 13, 1969, and that liquidated damages for demurrage would be payable to plaintiff at $10.00 per day. The contract was for extensive renovations and additions to the residence of plaintiff and when the work commenced he moved out with the intention of returning when the work was completed. When July 13 came the work was at such a stage that it was impossible for plaintiff to move back into the residence and he made arrangements to remain in a temporary location as long as he could.

On November 1, 1969, the temporary residence was no longer available and he was forced to return to his home. At that time the walls were sheetrocked but were in the process of being taped, floated and textured, the ceiling was in a like condition, there was no electricity or gas service, no hot water, and only the plywood subflooring had been installed. Plaintiff testified that the flooring was completed in three or four weeks and the painting in about six weeks, the electricity and gas were apparently completed shortly after plaintiff returned to the premises although the record is not clear on this point. He testified that during this period of time when this work was in progress there was a continuous presence of dust, debris, and general disorder which required continuous cleaning, washing and mopping while plaintiff's family was occupying the residence. This work continued spasmodically for about two months, but by April 17, 1970, plaintiff caused a notice of default to be filed against the contractors. Even thereafter the contractors secured the services of a part-time worker to come in and do work on the project in the evenings and on week ends.

Plaintiff expressed concern about the damage he was sustaining from defective workmanship, particularly leakage which had continued to...