Wilson v. Two SD, LLC

• Decision Date: 23 December 2015
• Docket Number: No. 2015 CA 0959.,2015 CA 0959.
• Citation: 186 So.3d 103
• Parties: Glenn Steven WILSON and Sandra F. Wilson v. TWO SD, LLC, L.A.A.K.E. Quality Homes, LLC, Kristopher Clark, Matthew B. Bordelon, Murry Daniels, and Gemini Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

186 So.3d 103

Glenn Steven WILSON and Sandra F. Wilson

v.TWO SD, LLC, L.A.A.K.E. Quality Homes, LLC, Kristopher Clark, Matthew B. Bordelon, Murry Daniels, and Gemini Insurance Company.

No. 2015 CA 0959.

Court of Appeal of Louisiana, First Circuit.

Dec. 23, 2015.

Rehearing Denied Feb. 22, 2016.

Ronnie J. Berthelot, Kim S. Landry, Gonzales, LA, for Plaintiffs/Appellants, Glenn and Sandra Wilson.

Dale M. Maas, Arthur Anthony Vingiello, Baton Rouge, LA, and Donnie Floyd, Prairieville, LA, for Defendants/Appellees, L.A.A.K.E. Quality Homes, LLC, Two SD, LLC, Matthew Bordelon, and Kristopher Clark.

Mary Anne Wolf, Chelsea A. Payne, Baton Rouge, LA, for Defendants/Appellees, Murry Daniels and Acadiana Home Design, LLC.

Mary K. Cryar, New Orleans, LA, for Defendant/Appellee, Gemini Insurance Company.

Before PETTIGREW, HIGGINBOTHAM, and CRAIN, JJ.

CRAIN, J.

In this suit alleging defects in a residential construction, the plaintiffs appeal a summary judgment dismissing their claims against a limited liability company that provided plans for the construction, and a designer who is a member of the limited liability company. We affirm in part, reverse in part, and remand.

FACTS

The plaintiffs, Glenn and Sandra Wilson, filed this proceeding based upon alleged deficiencies in the design and construction of a new house.¹ The Wilsons sued several parties, including Acadiana Home Design, L.L.C. and Murry Daniels "d/b/a Acadiana Design," alleging that those defendants prepared and provided the plans for the construction of the house. The Wilsons also allege that Acadiana Home Design and Daniels failed to properly supervise the construction of the house.

After filing an answer denying any liability, Acadiana Home Design and Daniels filed a motion for summary judgment that set forth several alternative grounds for dismissing the claims against them. Those grounds included the following: (1) Daniels cannot be held liable for the obligations of Acadiana Home Design, which is a limited liability company; (2) the claims against Acadiana Home Design are precluded by a limitation of liability provision contained on the face of the plans (referred to hereinafter as the "disclaimer of liability"); (3) the claims against Acadiana Home Design have prescribed; and (4) the alleged defects in the construction of the house do not relate to or arise from the scope of services provided by Acadiana Home Design.

The evidence submitted in support of the motion for summary judgment established that Acadiana Home Design is a limited liability company, and Daniels and his wife are the only members of the company. The Wilsons selected a stock plan from Acadiana Design that was then modified by Victor Sage, an employee of Acadiana Home Design, pursuant to instructions from the Wilsons. The parties did not sign a written contract, but the evidence includes an invoice presented to the Wilsons that details the charges and confirms periodic payments. The invoice appears under the title "Vic Sages" followed by "Acadiana Home Design, LLC." Daniels did not personally participate in the project. He confirmed in his affidavit that he never met with the Wilsons, and neither he nor anyone else with Acadiana Home Design was involved in the actual construction of the house or the selection of the general contractor. Daniels further stated in his deposition that all plans drafted by him since 1993 have been in his capacity as a member or employee of Acadiana Designs, and that all payments for plans go to Acadiana Design.

The Wilsons acknowledged in their depositions that they did not meet Daniels until after filing the present suit; however, they contend that they have a claim against him individually because he was the "owner" of the plans, citing language on the face of the plans stating that the plans "are the property of the designer Murry Daniels, Acadiana Design."

The second ground for the motion for summary judgment relies upon the disclaimer of liability, which is located at the bottom of each page of the plans and provides:

THIS FIRM NOT BEING AN ARCHITECTURAL OR ENGINEERING FIRM STAMPS NO LIABILITY FOR STRUCTURAL OR ARCHITECTURAL DESIGN INTEGRITY. EVERY EFFORT HAS BEEN MADE TO INSURE ALL DIMENSIONS ARE CORRECT AND ENVIRONMENTAL REGULATIONS HAVE BEEN MET. IF AN ERROR OR OMISSION DOES OCCUR, IT IS THE SOLE RESPONSIBILITY OF THE CONTRACTOR AND/OR THE OWNER TO CORRECT THE ERROR AND/OR OMISSION AT HIS OWN EXPENSE AND NOT THE RESPONSIBILITY OF THE DRAFTING SERVICE.

This statement is located among numerous other statements, labels, and titles appearing in blocks at the bottom of each page of the plans. The parties did not sign or initial the statement, or any other part of the plans, and the statement is not emphasized or accentuated to distinguish it from the surrounding text.

With respect to the scope of the services to be performed by Acadiana Home Design, the invoice presented to the Wilsons reflects charges only for the purchase of the stock set of plans and the requested revisions to those plans. Daniels attested that neither he nor anyone else with Acadiana Home Design was involved in the actual construction of the house or the selection of the general contractor. The Wilsons admitted in their depositions that they never had any contact with Acadiana Home Design during the construction of the house, and they never requested that any representative of the company visit the construction site.

At the conclusion of the hearing on the motion for summary judgment, the trial court found that the disclaimer of liability was binding because it was accepted by the Wilsons through their "utilization of the plans and payment to the defendants." The trial court also found that Daniels and Acadiana Home Designs had not agreed to perform any supervision of the construction. The trial court granted summary judgment in favor of the movers on those grounds and signed a judgment to that effect, dismissing all claims against Daniels and Acadiana Home Design with prejudice. The judgment further stated that the trial court denied the motion for summary judgment insofar as the movers asserted that the claims were prescribed and that Daniels was shielded from personal liability as a member of Acadiana Home Design.

The Wilsons appealed the granting of the summary judgment, and Daniels and Acadiana Home Design answered the appeal. In their answer, Daniels and Acadiana Home Design assert that if this court finds the trial court erred in granting summary judgment based on the disclaimer of liability and the scope of services provided by the movers, then, in that event, Daniels and Acadiana Home Design urge that the trial court erred in denying the motion on the grounds of prescription and the statutory limitation of liability provided to Daniels as a member of a limited liability company.

DISCUSSION

A motion for summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966B(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. In re Succession of Beard, 13–1717 (La.App. 1 Cir. 6/6/14), 147 So.3d 753, 759–60.

Disclaimer of Liability

Under some circumstances, a party may legally contract against liability for his own negligence or for a limitation on recoverable damages, but such an agreement must clearly indicate the intention of the parties. Rhodes v. Congregation of St. Francis De Sales Roman Catholic Church, 476 So.2d 461, 463 (La.App. 1 Cir.1985). As long as one's negligence does not cause physical injury to another, contractual provisions are valid to eliminate or limit liability for losses due to negligence, but not for losses caused by intentional acts or gross fault. See La. Civ. Code art. 2004 ; Banner Chevrolet v. Wells Fargo Guard Services, 508 So.2d 966, 967 (La.App. 4 Cir.1987).

The Wilsons assert that the trial court erred in granting summary judgment based on the disclaimer of liability, because they never consented to the provision. Absent that consent, according to the Wilsons, the limitation of liability is not a part of their agreement and, therefore, is not binding on them.

Consent to an agreement may be oral, written, or by action or inaction that under the circumstances is clearly indicative of consent. See La. Civ. Code art. 1927 ; Townsend v. Urie, 00–0730 (La.App. 1 Cir. 5/11/01), 800 So.2d 11, 17, writ denied, 01–1678 (La.9/21/01), 797 So.2d 674. When consent is not express, or when the law creates no presumption of consent, the factfinder must determine whether the facts and circumstances of the case establish implied consent. See Knecht v. Board of Trustees for State Colleges and Universities and Northwestern State University, 591 So.2d 690, 694 (La.1991) ; Authement v. Verges, 10–0173, 2010 WL 3533299 (La.App. 1 Cir. 9/13/10).

Our courts have previously enforced provisions that limited or eliminated a party's liability for property damages caused by his negligence or good faith breach of a contract; however in each instance, the disclaimer or limitation of liability was contained in a written contract whereby the parties' consent to the provision was expressly conveyed. See Elephant, Inc. v. Hartford Accident & Indemnity Co., 239 So.2d 692, 693, 695 (La.App. 1 Cir.1970) ; Wadick v. General Heating & Air Conditioning, LLC, 14–0187 (La.App. 4 Cir, 7/23/14), 145 So.3d 586, 589, writ denied, 14–1913 (La.11/21/14), 160 So.3d 972 ; Banner Chevrolet, 508 So.2d at 966, 968.

In the present case, the agreement between the parties was not reduced to writing. The movers presented no evidence of express consent, either written or verbal, by...