Howell v. Rhoades

• Court: Court of Appeal of Louisiana
• Writing for the Court: SHORTESS
• Citation: Howell v. Rhoades, 547 So.2d 1087 (La. App. 1989)
• Decision Date: 02 June 1989
• Docket Number: No. 88,88
• Parties: James G. HOWELL v. Phyllis RHOADES. CA 0477. 547 So.2d 1087

Page 1087

547 So.2d 1087

James G. HOWELL v. Phyllis RHOADES.

No. 88 CA 0477.

547 So.2d 1087

Court of Appeal of Louisiana First Circuit.

June 2, 1989.

Rehearing Denied Aug. 17, 1989.

G. Steven Duplechain, Baton Rouge, for plaintiff-appellant, James G. Howell.

A.L. Jordan, Baton Rouge, for defendant-appellee, Phyllis Rhoades.

Before EDWARDS, SHORTESS, and SAVOIE, JJ.

SHORTESS, Judge.

In early 1984, Phyllis Rhoades (defendant) and her brother, Gary Cangelosi, a Baton Rouge developer, approached James G. Howell (plaintiff), an architect, with a proposal that Howell draw up plans for a condominium development on land owned jointly by defendant and her mother in Point Clear, Alabama. Plaintiff was at that time working on a project for Cangelosi, and Cangelosi believed that those plans could be modified slightly and used for the Point Clear development. Plaintiff and his associate, Richard Brown, flew to the site in Point Clear, met with Cangelosi and defendant, and agreed to do the work. During the course of the planning stage, Cangelosi had to withdraw because he was involved in other matters, including a political race. After the plans had been drawn up, defendant was unable to obtain financing for construction of the condominiums (known as Portofino). She refused to pay the bill plaintiff submitted, and he sued. She alleged as a defense that the oral contract entered into between the parties was subject to a suspensive condition that financing be obtained and, since that condition failed, no contract ever came into being.

At trial, defendant testified that plaintiff never made any statement throughout the course of their dealings that he expected to be paid when his work was performed. Plaintiff's testimony corroborates that. However, defendant stated that she had announced, after it became clear that Cangelosi would no longer be involved, that she was married to a minister, had no funds of her own, and that plaintiff's fee would be paid when financing was obtained for the project. Plaintiff remembered no such conversation, nor did Richard Brown, who was chief architect on the Portofino project. Plaintiff did remember that defendant subsequently told him he would be paid when the financing was obtained, and he testified that such an arrangement was common practice. However, he emphasized that he never believed that he would not be paid at all absent financing. Plaintiff never discussed with defendant a deadline for payment because he assumed she knew it was due after completion of the work. Plaintiff gave defendant his statement dated June 18, 1984, in response to her request for a final itemized bill to show to lending institutions as part of her applications to obtain financing. At that time the project had already been bid out and engineering site work was underway. The bill totaled $23,446.00. Final written demand was made on April 15, 1985, by certified mail, after defendant had refused payment.

The trial court dismissed plaintiff's suit after finding that the agreement between the parties was that payment for services would be made only upon securing funds for the project, and, since this suspensive condition never came into existence, the contract failed and no architectural fee was due. Plaintiff has appealed to this court.

Although defendant's statement that plaintiff's fee would be paid when financing was obtained for the project may have been intended to mean that the fee was contingent upon financing, she never actually used the word "contingent." From his testimony, plaintiff apparently believed that his fee would be paid out of any loan proceeds, but not contingent upon plaintiff's obtaining funds for the project. No written contract was ever drafted, and it is clear that although plaintiff discussed with defendant the manner in which his fee was to be calculated, he never explicitly stated that he expected to be paid when his work was done. ¹ Under these facts, we believe there was no "meeting of the minds" between defendant and plaintiff. The contract was void for lack of consent. LSA-C.C. art. 1927; see Haas v. D'avanzo, 45 So.2d 104 (La.App.2d Cir.1950).

Plaintiff sued for full recovery of his fee of $23,446.00, and attorney fees and interest; in the alternative he sought a "quantum meruit" recovery. "Quantum meruit" has been employed in several contexts in Louisiana: first, a contractual quantum meruit, when a contract is implied from the circumstances, but no agreement as to price has been reached; or, in a quasi contractual setting, when the plaintiff has conferred a benefit on defendant in pursuance of a contract supposedly valid but in truth void. Comments, Quantum Meruit in Louisiana, 50 Tul.L.Rev. 631, 647 (1976); Nicholas, Unjustified Enrichment in Civil Law and Louisiana Law, 37 Tul.L.Rev. 49, 57 (1962). "Quantum meruit" protects restitution interests rather than reliance interests and here is limited to the amount that plaintiff actually lost by relying on an unenforceable contract, including reasonable profits. The measure of damages here, where the contract is void, is the benefit conferred on defendant, or her "unjust enrichment." Nicholas, supra, at 57.

Thus, this case differs sharply from the recent supreme court opinion of Morphy, Makofsky & Masson v. Canal Place 2000, 538 So.2d 569 (La.1989). In that case, the supreme court held that where no agreement as to price was reached between the parties, but all other elements of a contract were present, the measure of damages was, under what has been termed "quantum meruit," the reasonable value of plaintiff's services. The high court also said that actio de in rem verso was not appropriate because recovery was available under an actual implied contract. Here, there is no enforceable contract; a critical element, consent, is missing. Plaintiff was not, as in Morphy, concerned about how much he would be paid; the dispute, instead, was whether he would be paid at all.

Because, in this case, the contract is void, analysis may be made under actio de in rem verso principles. The requirement of subsidiarity, that no other remedy be available at law, is met because no contract exists under which recovery could be had. Morphy, 538 So.2d at 575. Analysis may likewise be made, however, under the quasi contractual quantum meruit mode because, unlike Morphy, no contract existed here at all. ² Nicholas, supra, at 57. Here, because the measure of recovery would be the same under either theory, and because all limitations of the actio de in...