Brigette Swayzer v. Jeffery Scoby

Judgment rendered February 28, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,416-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

BRIGETTE SWAYZER Plaintiff-Appellant

versus

JEFFERY SCOBY Defendant-Appellee

*****

Appealed from the
Monroe City Court for the
Parish of Ouachita, Louisiana
Trial Court No. 2021CV01296

Honorable Jefferson Bryan Joyce, Judge

*****

BRIGETTE SWAYZER In Proper Person,
Appellant

JEFFERY SCOBY In Proper Person,
Appellee

*****

Before STONE, HUNTER, and ELLENDER, JJ.

STONE, J.

This appeal by Brigette Swayzer (the “plaintiff”) arises from Monroe

City Court, the Honorable Jefferson B. Joyce presiding. Neither the plaintiff

nor the defendant-appellee, Jeffery Scoby (the “defendant”), was represented

by counsel at trial. Nor is either party represented by counsel in this appeal.

The plaintiff filed this action seeking an award of money damages for breach

of contract in relation to the parties’ agreement that the defendant would

completely remodel the plaintiff’s house in Wisner, Louisiana. Due to her

dissatisfaction with the quality of the defendant’s work and the rate of his

progress, the plaintiff partially terminated her contract with the defendant,

demanded a refund from him (which he refused), and hired Charles Jones to

remedy the defendant’s work and finish the job. Approximately one month

later, she filed a petition requesting $14,200 in damages. At the bench trial,

the plaintiff essentially alleged that the defendant agreed to a completion

date that he clearly would not be able to satisfy, that the work he did perform

was defective, and that the plaintiff paid him far more than the value of the

work he actually performed. The trial court rendered a judgment awarding

the plaintiff only $2,500 in damages. The plaintiff appealed, seeking to have

her award increased.

Evidence introduced at trial

Because there were no attorneys or jury involved, the trial did not take

the usual form (i.e., opening statements, then direct and cross-examination

of witnesses and introduction of exhibits, and then closing arguments);

instead, the parties and witnesses were sworn, then the plaintiff provided a

factual narrative, and then the defendant provided a factual narrative.

Afterwards, others who were involved in the remodeling of the home were

called as witnesses, namely: (1) Terry Swayzer (the plaintiff’s brother)1; (2)

Charles Jones, whom the plaintiff paid about $4,000 to cure the deficiencies

in the defendant’s work; (3) James Carroll, whom the defendant claimed

worked under him at the plaintiff’s house; and (4) Billy Harris, an electrician

brought in to help Charles Jones finish the job. Once the witnesses began

speaking, the trial became a multilateral conversation in which all seven

people (i.e., the two parties, four witnesses, and the trial judge) took turns

speaking in no particular order. Additionally, the plaintiff and defendant

introduced numerous photographs and documents into evidence, but did not

mark them individually for identification.

The following narrative is synthesized from the evidence introduced

at trial. The house suffered from substantial flood damage, and prior to the

subject agreement, had been completely “gutted” in preparation for

extensive renovation.2 The written contract, which was signed by both

parties on June 22, 2021, and specified a start date of June 22, 2021, was

introduced into evidence. The total price of the contract between plaintiff

and defendant was $38,500, which was to be paid in 5 draws of $7,700 each.

The written contract provides only an extremely vague outline of the work to

be done, and does not include a completion date for the total job or for any

phase of the job. However, the plaintiff insisted that she and the defendant

orally agreed that the whole job would be finished by Thanksgiving of 2021,

so she could host Thanksgiving dinner in the home; the defendant adamantly

1
Terry Swayzer testified that he did preparatory work inside the house for which
the defendant agreed to pay him $8 per hour, but after this work was done, the defendant
refused to pay for all the hours expended and would only pay $7 per hour.
2
The plaintiff introduced into evidence multiple pictures of the interior of the
house, which reflect that there were no interior walls or ceiling when the defendant
commenced work.
2

denied such an agreement, and further testified that he never agrees to a

completion date on any job that he does. Apparently, the parties did agree

that draws would be due upon completion of certain phases of the work.

However, the evidence does not provide an intelligible definition of any

such phase of the job. The record likewise does not contain any detailed

description of the work to be done. There were many disputed facts at trial,

and the timeline of the events is difficult, if not impossible, to ascertain.

On June 22, 2021, the parties signed the agreement and the plaintiff

paid the first draw by check,3 and the defendant began work. The plaintiff

did not live near the home while the work was to be done and thus was not

present to observe the defendant’s comings and goings. She testified that the

defendant agreed to work on the house four or five days per week, but the

defendant testified that he only agreed to work two or three days per week.

The plaintiff began to distrust the defendant because her brother (who was

initially involved in the remodel as a laborer) and a neighbor of the home

told her the defendant was not showing up to work. The plaintiff testified

that the defendant only showed up two days per week, except that there were

two weeks which he worked three days. Furthermore, she testified that he

only worked about 4 hours per day when he did go to the house. The

defendant responded that some of the work, such as building the custom

cabinets, had to be done off site.

The plaintiff testified that the defendant was supposed to be finished

hanging the sheetrock before he would be entitled to the second draw.

However, the defendant requested the second draw and the plaintiff paid it

3 This check was drawn on the account of Prince of Peace Auto Sales, LLC.
3

by check4 dated July 23, 2021, even though the defendant had not completed

hanging sheetrock by that time. He admitted not being finished with the

sheetrock at that point and said that this was because there was still rotten

wood that had to be replaced first.

Upon receiving the second draw, the defendant admittedly left town

and went to Birmingham, Alabama, supposedly to get a divorce from his

wife; he stayed a few extra days to visit family there. The defendant

allegedly contracted COVID-19 and became sick around the time that he

returned from Birmingham. He claimed that he was too sick to work until

after his first negative COVID-19 test on August 22, 2021, i.e., a month after

receiving the second draw. The plaintiff alleged that the defendant had

claimed that he had a “crew” that he would send to work on the house if he

was unable to go himself; however, the plaintiff testified that no such crew

was ever sent nor did he ever have one, but instead, tried to subcontract the

work on the house to “crackheads” in the neighborhood.

It was during this time when the defendant was not working due to his

trip to Birmingham and alleged illness that the plaintiff became dissatisfied

to the point of partially terminating the contract. She instructed the

defendant that he was fired except that she wanted him to complete the

merger of two bedrooms in the back of the house, while Charles Jones

would complete all other work. Despite that instruction, however, the

defendant admittedly continued to insert himself into the work being

undertaken by Charles Jones. The plaintiff also demanded a refund, which

the defendant refused.

4
This check was also drawn on the account of Prince of Peace Auto Sales, LLC.
4

Overall, the testimony at trial was in conflict on many points. The

main areas of disagreement are highlighted in the following paragraphs.

Exterior. The plaintiff stated that she did not like the color that the

defendant painted the exterior of the house because it was “ugly.” The

defendant responded that he did not paint the house, but merely put a coat of

primer because she never chose a paint color.

Interior preparatory work. The plaintiff testified that the defendant

agreed to remove the rotten wood framing inside the house. At one point, he

claimed that he did remove it, but later contradicted himself in stating that he

had not done so yet, but was planning to remove or remedy the rotten studs

in the kitchen after mounting the cabinets on those studs.

Cabinets; rotten studs. The plaintiff took the position that she paid the

first draw ($7,700) in advance of the commencement of work to fund the

construction and installation of custom cabinets, and the cabinets that the

defendant installed in the home were not worth anywhere near $7,700. The

plaintiff complained that the wood that the defendant used to construct the

cabinets did not “match.” As supposed proof regarding the value of the

cabinets, she introduced a document which she said was a quote for $1,436

from Home Outlet for some cabinets. However, nothing in this document or

the related testimony would, even if deemed true, establish that the quote

was for cabinets identical or near identical to those the defendant built

pursuant to the contract.

To the plaintiff’s complaint about the “mismatched” wood, the

defendant responded that: (1) he used all “cabinet wood” to make the

cabinets; and (2) that the plaintiff had indicated that she ultimately intended

that the cabinets would be painted, which would cure any objection she had
5

to the alleged mismatching of the wood. He further explained that the

cabinets had not been painted because the plaintiff had not yet picked her

paint colors. Pictures of the cabinets were introduced into evidence. They

do not show any objective deficiency in the cabinets due to “mismatched”

wood.

The pictures do, however, reflect water damage to the studs on which

the cabinets were installed. As previously mentioned, the defendant

incredibly claimed that he intended to somehow remedy the water

damage/rot of the studs after mounting the cabinets onto those studs, and

offered as proof of this intent the fact that he had not yet put sheetrock over

the water-damaged parts of the studs. It is difficult to imagine why the

defendant would install the cabinets first if he was really planning to

somehow remedy the water damage/rot to the studs to which the cabinets

were attached.

Insulation. The defendant testified that he put insulation behind all

walls in the house. However, Charles Jones, the contractor who partially

replaced the defendant, testified that he found that about “half” the walls had

no insulation behind them and that he had to rip them all out to determine

where the defendant had put up walls without insulation behind them. Terry

Swayzer testified that the receipt for the insulation proved that the defendant

did not insulate the whole house because it reflected that not enough

insulation was purchased to do the whole house.

Sheetrock. The defendant admitted that he did not completely

sheetrock the walls, and alleged that his was because there were rotten studs

and floor joists that first needed replacing. There was great discrepancy in

the testimony about who (the defendant or Charles Jones or Billy Harris)
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hung which pieces of sheetrock in which room at what time, and whether it

was done correctly or had to be redone and by whom it was redone.

Notably, Charles Jones testified that there was sheetrock under the cabinets

that the defendant installed, and that it must have been the defendant who

installed that sheetrock; the defendant denied this, claiming he was planning

to replace or remedy the rotten studs after mounting the cabinets on them.

The plaintiff testified that the defendant was supposed to be finished

hanging sheetrock in the bathrooms before the third draw, which she refused

to pay. (This seems to possibly contradict her previously referenced

statement that all sheetrock was supposed to be hung before the second

draw). The defendant denied hanging any sheetrock in any bathroom.

Charles Jones stated that the defendant hung sheetrock in one-half of a

bathroom. Billy Harris stated that the sheetrock in the bathrooms was hung

improperly and he helped redo it, but maintained that he did not know who

had improperly hung the sheetrock.

Wiring. The defendant alleged that the plaintiff purchased wire and he

rewired the house with it. The plaintiff denied ever buying wire.

ISSUE

In her pro se brief to this court, the plaintiff argues that the trial court

erred in not awarding her the full $14,200 that she requested in her petition.

LAW

This action sounds in contract. “A contract is an agreement by two or

more parties whereby obligations are created, modified, or extinguished.”

La. C.C. art. 1906. “A contract is formed by the consent of the parties

established through offer and acceptance.” La. C.C. art. 1927. A

contractual obligation cannot exist without a lawful “cause.” La. C.C. art.
7

1966. “Cause is the reason why a party obligates himself,” i.e., gives his or

her consent to be contractually bound to render a performance (such as

paying money for the other party’s services). La. C.C. art. 1967.

“Fraud is a misrepresentation or a suppression of the truth made with

the intention either to obtain an unjust advantage for one party or to cause a

loss or inconvenience to the other.” La. C.C. art. 1953. French doctrine

distinguishes between fraud committed to entice a party into a contract (dol)

and fraud in performing a contract (fraude). Comment (b) to La. C.C. art.

1958.5

La. C.C. art. 1994 states:

An obligor is liable for the damages caused by his failure
to perform a conventional obligation.

A failure to perform results from nonperformance,
defective performance, or delay in performance.

“Damages are measured by the loss sustained by the obligee and the profit of

which he has been deprived.” La. C.C. art. 1995. “When damages are

insusceptible of precise measurement, much discretion shall be left to the

court for the reasonable assessment of these damages.” La. C.C. art. 1999.

However, “special damages,” i.e., “those which can be fixed to a pecuniary

certitude,” must be proved to a specific dollar amount. Stevens v. Winn-

Dixie of La., 95-0435 (La. App. 1 Cir. 11/9/95), 664 So. 2d 1207, 1213.

These general principles have distilled into the following list of essential

5
The article allows attorney fees as an item of damages. However, “[u]nder
Louisiana jurisprudence, recovery of attorney fees is not available to one who represents
himself because he has incurred no out-of-pocket legal expenses.” Bradford v. Webster
Par. Police Jury, 48,981 (La. App. 2 Cir. 5/14/14), 139 So. 3d 39, 43.

8

elements for an owner’s claim for special damages against a contractor for

defective performance:

The law is well settled that in claims against a contractor
for defective construction, an owner bears the burden of
proving 1) both the existence and nature of the defects, 2)
that the defects were due to faulty materials or
workmanship, and 3) the cost of repairing the defects.

Phillips v. Doucette & Associated Contractors, Inc., 17-93 (La. App. 5 Cir.

10/25/17), 229 So. 3d 667, 675.

“A plaintiff is required to prove special damages by a preponderance

of the evidence, and the district court’s findings in this respect are subject to

a manifest error standard of review.” Antley v. Rodgers, 52,168 (La. App. 2

Cir. 6/27/18), 251 So. 3d 607, 614. Where the record contains no evidence

contradicting a plaintiff’s prima facie proof of special damages, it may be

manifest error for a trial court to award less than the full amount:

When a plaintiff alleges that they have incurred medical
expenses as a result of injuries suffered in an accident and
that treatment is supported by a bill, that evidence is
sufficient to support an award for past medical expenses
unless there is sufficient contradictory evidence or
reasonable suspicion that the bill is unrelated to the
accident. Stiltner v. National Union Fire Insurance
Company, 2000–2230 (La. App. 4 Cir. 10/3/01), 798
So.2d 1132. In the absence of bad faith, it is error for the
trier of fact to fail to award the full amount of medical
expenses that are proven by a preponderance of the
evidence that were incurred as a result of an accident.
Simon v. Lacoste, 2005–550 (La. App. 3 Cir. 12/30/05),
918 So.2d 1102. We find no contradictory evidence and
nothing in the record to cast suspicion on the medical bills
submitted by plaintiffs. Accordingly, the judgment of the
trial court is amended to include the total amount of
medical expenses incurred by plaintiffs for the injuries
sustained in this accident.

Earls v. McDowell, 07-17 (La. App. 5 Cir. 5/15/07), 960 So. 2d 242, 248.

ANALYSIS

9

Charles Jones testified that the defendant hung the sheetrock

incorrectly, including leaving gaps such that the inner walls of the house

would not seal out insects. In addressing this problem, Charles Jones

discovered that the defendant did not put insulation behind roughly half of

the sheetrock the defendant hung; this necessitated ripping out the sheetrock,

adding insulation, and redoing the sheetrock. The defendant claimed that he

did place insulation behind all the sheetrock he hung and denied any defects

in his installation of the sheetrock.

However, the removal of the sheetrock adjacent to the cabinets

revealed that the defendant had mounted them on visibly rotten studs.

Charles Jones also stated that the insulation defendant had placed there was

wet. The plaintiff introduced photographs of this area showing the rot, water

damage, and leaking plumbing behind where the defendant had mounted the

cabinets. The extensive water stains and rot in the area surrounding the

leaky plumbing in the photo show that the leak was too old to have begun

after the defendant mounted the cabinets.

The defendant claimed under oath that he was somehow going to

remedy the rot and water damage on this framework behind the new cabinets

after mounting the new cabinets thereon. This absurd claim not only

establishes that the defendant rendered a severely defective performance, but

also, demonstrates the defendant’s blatant and pervasive dishonesty. The

defendant committed breach of contract, and did so with fraudulent intent.6

6
If the plaintiff had been represented by counsel in this case, she would
additionally be entitled to an award of attorney fees under La. C.C. art. 1958. Bradford,
supra at n.4.
10

Nonetheless, the plaintiff’s burden of proof required her to prove a

specific dollar amount for the cost of repairing the defendant’s defective

work. The only evidence on this point is Charles Jones’ uncontradicted

testimony that she paid him $4,000 to remedy these deficiencies. The trial

court, without explanation or any ascertainable evidentiary basis, reduced

the plaintiff’s award for repair costs to $2,500. This was manifest error.

Earls, supra.

CONCLUSION

The judgment of the trial court is affirmed and amended in that the

plaintiff’s award for damages is increased from $2,500 to $4,000. The

defendant is taxed with all costs of this appeal.

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