Opinion
Number 2022 CA 0233.
09-16-2022
GARCIA ROOFING REPLACEMENT, LLC d/b/a Garcia Roofing v. Gary (Biff) W. MCCAIN.
Teresa D. Cop , Craig L. Raster , Zachary, LA, Counsel for Plaintiff/Appellee Garcia Roofing Replacement, LLC D/B/A Garcia Roofing. Bret D. Guepet, Jr. , Albert Joseph Nicaud , Metairie, LA, Counsel for Defendant/Appellant Gary (Biff) McCain. BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.
Teresa D. Cop , Craig L. Raster , Zachary, LA, Counsel for Plaintiff/Appellee Garcia Roofing Replacement, LLC D/B/A Garcia Roofing.
Bret D. Guepet, Jr. , Albert Joseph Nicaud , Metairie, LA, Counsel for Defendant/Appellant Gary (Biff) McCain.
BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.
GUIDRY, J.
In this contract action, the defendant, Gary (Biff) W. McCain, appeals a judgment in favor of the plaintiff, Garcia Roofing Replacement, LLC, d/b/a Garcia Roofing (Garcia). For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY
In July of 2019, plaintiff Garcia and defendant McCain entered into a contract for services. The purpose of the contract was to furnish and install siding on the McCain home. The contract price was $27,050.00. Upon execution of the contract, McCain paid fifty percent of the price to Garcia, with the remaining amount due upon completion of the work.
Thereafter, on or about September 28, 2020, Garcia brought suit against McCain to recover the remaining balance due on the contract. Garcia sought "the full sum of $13,525.00 together with 18% interest from date due until paid, 25% attorney's fees, and court costs." McCain filed an answer, generally denying the allegations of the petition. McCain also filed a reconventional demand. On May 25, 2021, a trial was held, at which time the trial court rendered judgment in favor of Garcia and against McCain. A judgment to that effect was signed on June 4, 2021, awarding to Garcia "the full sum of $13,525.00, together with 18% interest from January 4, 2020 until paid, $2500.00 in attorney's fees and all costs of these proceedings." McCain's reconventional demand was denied. McCain now appeals the June 4, 2021 judgment, assigning the following as error:
In his reconventional demand, McCain sought costs to hire a third party to replace substandard materials and correct deficiencies.
Garcia's request in brief for additional attorney's fees cannot be considered where Garcia did not answer the appeal. See La. C.C.P. art. 2133.
We note that the trial court also denied McCain's motion for new trial.
1. The Trial Court erred in finding that Garcia was entitled to payment of the full contract price;
2. The Trial Court erred in declining to qualify McCain's witness as an expert in residential siding; and
3. The Trial Court erred in awarding eighteen (18%) percent interest to Garcia.
DISCUSSION
Under Louisiana jurisprudence, a building contractor or subcontractor may recover the contract price even though defects and omissions are present after he has substantially performed the building contract. Cosman v. Cabrera, 09-0265, p. 7 (La. App. 1st Cir. 10/23/09), 28 So.3d 1075, 1080. "Substantial performance" means that the construction is fit for the purposes intended despite the deficiencies; this is a question of fact for the trial judge. Mayeaux v. McInnis, 00-1540, p. 4 (La. App. 1st Cir. 9/28/01), 809 So.2d 310, 313, writ denied, 01-3286 (La. 3/8/02), 810 So.2d 1164. However, where the owner presents evidence of the cost of completion of the work or correction of defective work, the contract price may be reduced by that amount. Cosman, 09-0265 at pp. 7-8, 28 So. 3d at 1080. The factors to be considered in determining whether there has been substantial performance include the extent of the defect or non-performance, the degree to which the purpose of the contract is defeated, the ease of correction, and the use or benefit to the owner of the work already performed. Cosman, 09-0265 at p. 8, 28 So. 3d at 1080-81; O & M Construction, Inc. v. State of Louisiana, Division of Administration, 576 So.2d 1030, 1035 (La. App. 1st Cir. 1991), writ denied, 581 So.2d 691 (La. 1991). The contractor bears the burden of proving substantial completion. All Seasons Construction, Inc. v. Mansfield Housing Authority, 40,490, p. 5 (La. App. 2d Cir. 1/25/06), 920 So.2d 413, 416.
To reverse a fact finder's determination, an appellate court must review the record in its entirety and find that a reasonable factual basis does not exist for the finding and further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Jackson v. Tulane Medical Center Hospital and Clinic , 05-1594, p. 5 (La. 10/17/06), 942 So.2d 509, 512-513. The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Jackson , 05-1594 at p. 5, 942 So. 2d at 513.
Additionally, in order to recover damages from a contractor for defective workmanship, the owner must establish: (1) that defects exist; (2) that faulty materials or workmanship caused the defects; and (3) the cost of repairing the defects. Matherne v. Barnum, 11-0827, p. 9 (La. App. 1st Cir. 3/19/12), 94 So.3d 782, 789, writ denied, 12-0865 (La. 6/1/12), 90 So.3d 442. If the owner meets the burden of proof, the remedy is to reduce the contract price in an amount necessary to perfect or complete the work according to the terms of the contract. Cascio v. Carpet, 42,653, p. 10 (La. App. 2d Cir. 10/24/07), 968 So.2d 844, 851.
At the conclusion of the trial herein, the trial court stated, "[T]here is no evidence of damages. So, based on the evidence presented, I have got to rule in favor of the plaintiff ...." We find no manifest error in the trial court's ruling. Testifying on the behalf of Garcia was Jonathan Woolley, CFO of Garcia; David Winge, Garcia sales representative; Forrest McConnell, Garcia sales/roofing expert; and Andrew Morris, COO of Garcia. Mr. Woolley testified that an outstanding balance in the amount of $13,525.00 was owed to Garcia by McCain. Mr. Winge testified that he prepared the contract for the subject project, and that the contract work was completed.
Mr. McConnell was named an "expert" by job title.
The contract/roofing estimate and agreement includes the following language: "Install new hardie lap siding" and "wrap ... with... Hardie Trim Boards." "Hardie" is also denoted in the column corresponding with "manufacturer."
According to Mr. Winge, the scope of the project work was to remove old siding from the McCain house and install plywood, moisture barriers, and new siding. Garcia would also work on some of the columns and awnings. Mr. Winge explained that the term "Hardie," which was used throughout the subject contract, is a "generic name" and what the industry "used [when] talking about fiber cement siding." According to Mr. Winge, nothing in the scope of work implied that the siding brand "JamesHardie" would be used on the McCain home. He further stated that neither McCain nor his wife specified that JamesHardie siding be used on the home. Nevertheless, Mr. Winge testified that JamesHardie materials were in fact placed on the home. Mr. Winge also stated that "Allura" materials were used on the home's trim boards.
Mr. Morris confirmed that the lap siding purchased for the McCain project was JamesHardie.
It appears from the record that JamesHardie, Cemplank (a subsidiary of JamesHardie), and Allura materials were used on the home.
Similar to Mr. Winge, Mr. McConnell testified that the entire scope of the project work was completed, and that Garcia was able to take care of all the issues McCain brought to their attention. Photographs from the McCain property of various work areas before, during, and after project completion were introduced in conjunction with the testimony of Mr. McConnell. The photographs showed work on areas including the chimney, awnings, siding on the home, and columns. Testifying for the McCains were McCain; Gina McCain, wife of McCain; and Cassio Santos, a home improvement contractor. McCain testified that he was unhappy with Garcia's work, and stated that he specifically pointed out to Garcia the things that needed to be fixed. McCain explained that he would have never signed the contract knowing that the materials used were not going to be genuine JamesHardie. He also stated that there were "still many defects."
Ms. McCain referenced a punch list that Garcia "[w]as like, well, we will get to that. We can get to that." According to Ms. McCain, she and her husband never realized Garcia was "actually ... through." Ms. McCain testified that after Garcia was gone, debris were still found. She told Mr. McConnell, who worked for Garcia, that they wanted things "done right and proper."
Mr. Santos, who testified that he was certified as a contractor by JamesHardie, drafted a report in connection with his inspection of the McCain property wherein he identified large gaps and caulking issues that he described as "unworkman-like." Mr. Santos also identified cosmetic issues, chipped boards, and improper blocking and flashing in the project work. When asked if the job was done improperly, Mr. Santos agreed "most of the areas were done improperly." Mr. Santos also had the following exchange with the trial court:
[The trial court:] So, from the pictures that we were going through, it looks to me that we had — the first group, we had four problems; the second group, we had three; then we had a gap, and then we [had] two more and then the fixtures weren't flashed properly; right?
[Mr. Santos:] Uh-huh.
[The trial court:] So, overall, in this project, those are not huge items, are they?
[Mr. Santos:] Well, the thing is the home owner bought something and they delivered something else. That is the thing. The main thing.
According to Mr. Santos, "Hardie" stands for "JamesHardie," and "as far as the siding goes," JamesHardie product should have been used on the McCain property. Notably, while Mr. Santos provided an inspection of the McCain property, he did not provide an estimate of damages. During his testimony, Mr. Santos stated, "I didn't do an estimate. I don't want to be involved on that job. I just — honestly, I just did the inspection," and "I can't give a price right now.... I've got to do a better inspection to do it."
The law of Louisiana is clear that if a workman has substantially complied with the contract, he is entitled to the value of the price agreed upon even if his work is defective, in which case the remedy of the owner is to seek a reduction. Ortego v. Dupont, 611 So.2d 792, 795 (La. App. 3d Cir. 1992); see also Rothman v. Hebert, 415 So.2d 407, 409 (La. App. 1st Cir. 1982). In the case before us, the photographs introduced during Mr. McConnell's testimony, in particular, establish and support a finding that the contract work was substantially complied with. As stated by the trial court after viewing the photographs "I don't think there is any contest that the work was — it was put up there." Even Mr. Santos, who testified for McCain, implied that the work was substantially completed, stating: "The rest is not as bad because it does look better than the chimney for sure. The chimney is the biggest .... [T]he rest of the house is just like the blocks are supposed to be done, and the flashing on top of the window." And as it concerns the brand of material used on the home, Mr. Santos stated that ninety percent of the product used on the McCain home was JamesHardie.
Although McCain complained of defective work, as pointed out by the trial court, there was no evidence of damage —no testimony concerning the cost of repairing any deficiencies. The defendant owner McCain having failed to establish the cost of correcting any defects may not recover therefor. See Ortego, 611 So. 2d at 795; Charest v. Busby, 141 So.2d 466, 472 (La. App. 1st Cir. 1962). Accordingly, given the law and evidence of record before us, we find no merit in the assertion that the trial court erred in awarding full payment of the contract price.
McCain also argues that the contract was not fulfilled. Louisiana Civil Code article 2045 defines interpretation of a contract as "the determination of the common intent of the parties." Intent is an issue of fact which is to be inferred from all of the surrounding circumstances. Whether a contract is ambiguous or not is a question of law. Where factual findings are pertinent to the interpretation of a contract those factual findings are not to be disturbed unless manifest error is shown. Amitech U.S.A., Ltd. v. Nottingham Construction Company , 09-2048, p. 18 (La. App. 1st Cir. 10/29/10), 57 So.3d 1043, 1058, writs denied , 11-0866, 11-0953 (La. 6/17/11), 63 So.3d 1036 and 1043. In the matter before us, to the extent that the terms of the contract were not clear, the factual determination of the trial court that the work was substantially completed, implying that the contract was fulfilled, is reasonably supported by the record.
We further find no merit in the contention that the trial court erred in declining to qualify McCain's witness, Mr. Santos, as a siding expert, especially where Mr. Santos himself confirmed that there was no specialization in siding through the contractor's licensing board. We note that in reviewing an expert's qualifications, the trial court is vested with wide discretion in determining the witness' competence. An expert witness' competence is a question of fact to be determined within the trial court's sound discretion, and such rulings will not be disturbed absent manifest error. See State v. Higgins, 03-1980, p. 33 (La. 4/1/05), 898 So.2d 1219, 1239-40, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L. Ed. 2d 187 (2005).
An expert may be qualified by knowledge, skill, experience, training, or education. See La. C.E. art. 702.
Finally, in his third assignment of error, the defendant contends the trial court erred in awarding eighteen percent interest to Garcia. The defendant contends the contract contained a usurious rate of interest which requires forfeiture of the entire interest. See La. R.S. 9:3500(C)(1) and La. R.S. 9:3501.
Usury is an affirmative defense that must be specifically pleaded in the answer. See La. C.C.P. art. 1005. A review of the defendant's answer, as well as the transcript herein, shows the defense of usury was not pleaded. The defendant raises this defense for the first time on appeal. Consequently, the issue is not properly before us. See Dunaway v. Spain, 468 So.2d 771, 777 (La. App. 1st Cir. 1985), reversed on other grounds, 493 So.2d 577 (La. 1986); see also Uniform Rules of Louisiana Courts of Appeal, Rule 1-3. We find no merit in the assignment of error.
CONCLUSION
For the above and foregoing reasons, the trial court's June 4, 2021 judgment is affirmed. All costs of this appeal are assessed to the defendant/appellant, Gary (Biff) W. McCain.