AR Brooks Paint Contracting LLC v. Steele Eunson

Judgment rendered August 21, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,760-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

AR BROOKS PAINT Plaintiff-Appellee
CONTRACTING, LLC

versus

STEELE EUNSON Defendant-Appellant

*****

Appealed from the
Monroe City Court for the
Parish of Ouachita, Louisiana
Trial Court No. 2022-CV-00530

Honorable Aisha S. Clark, Judge

*****

MIXON, CARROLL & FRAZIER, LLC Counsel for Appellant
By: James E. Mixon

PELICAN LAW, LLC Counsel for Appellee
By: Jacob D. Rennick

*****

Before STONE, THOMPSON, and ROBINSON, JJ.

THOMPSON, J.

A painting company sued a homeowner for the remaining balance

owed for the painting of his rental home when the homeowner refused

payment, claiming the painters failed to properly paint the interior of the

home. The trial court ruled in favor of the painting company, citing its own

research done on the Sherwin-Williams website, without disclosing this

independent research or providing counsel with the opportunity to address

any of the trial court’s undisclosed conclusions during the trial. For the

reasons set forth more fully herein, we reverse the trial court insofar as it

found in favor of the painting company and awarded damages.

FACTS AND PROCEDURAL HISTORY

Steele Eunson (“Eunson”) hired AR Brooks Paint Contracting, LLC

(“Brooks Paint”), which is owned by Alton Brooks (“Brooks”), to repaint

the interior of his four-bedroom, one-bath rental house located at 2408

Paragoud Blvd., Monroe, Louisiana (the “rental home”). Brooks and

Eunson agreed that Brooks Painting would paint the entire interior of the

rental home, including all bedrooms, baths, and one closet for a total price of

$8,000. Eunson paid Brooks $2,666.64, one-third of the agreed-upon price,

prior to beginning work. A dispute over the color of the paint and quality of

the work arose, which resulted in the litigation that brings this matter before

the court.

At trial, Eunson testified that he wanted the entire interior of the rental

home painted an off-white color that matched the hallway of the home.

After the initial coat of paint was applied, the tenant contacted Eunson to tell

him that the walls and baseboards were painted a mint green color. Eunson

contacted Brooks to tell him that he did not like the color. Brooks agreed to

repaint the rental home an off-white color at no additional expense to

Eunson. Eunson asserted that after the first coat of off-white paint, the mint

green paint could still be seen on the walls. Brooks stated that he applied

two coats of off-white paint over the mint green walls and baseboards.

Eunson argued that the paint began peeling on the walls and

baseboards a few months after the painting was completed, that other areas

of the paint began to peel as well, and that the work was unacceptable to

him. Despite demand, Eunson refused to pay the balance due on the paint

job, and Brooks filed suit in Monroe City Court for the remaining $5,333.33,

two-thirds of the payment due. Eunson filed a reconventional demand

seeking a month of lost rent, his cost to travel from his home in Texas to

assess the work being done on the rental home in Monroe, and the cost of

repainting the rental home.

At trial, Brooks testified that he took saloon doors off the living room

and matched the mint green wall color to the doors. The mint green paint

was water-based paint. He testified that when he went to cover the green

paint, he did not use a primer or a Kilz coat to conceal the green paint

because it was not necessary. Brooks testified that he used two coats of the

new paint to cover the mint green paint. Upon questioning, Brooks admitted

that the paint in the photographs in evidence was peeling from the

baseboards, walls, and facings of the doors. Brooks stated that the mint

green can be seen through the top paint on parts of the wall. Brooks testified

that the paint should not be peeling six months after a paint job was

2

completed and that if it was peeling, it would be an unacceptable quality of

work.

Willie Black (“Black”), who works for Brooks Paint, testified that the

painting crew was not given direction by the homeowner as to the color that

should go on the walls. He was present when the tenant came to see the new

paint and said that she did not like the mint green color. Black testified that

he put two coats of the new off-white paint on the walls, and on some walls,

he did three coats. He did the final walk-through after the painting was

complete and testified that the mint green was not bleeding through. He

testified that they did not put a primer or Kilz over the mint green paint

because it was unnecessary. He admitted that the photographs showed

peeling paint and acknowledged that he would not expect the paint to be

peeling so soon after it was completed.

Rebecca Mooney, the tenant at the rental home, testified that Brooks

told her that he decided on the mint green color to match the floral wallpaper

in the kitchen, but that she did not recall anything else in the house being

mint green before Brooks painted it. She testified that the paint is peeling on

the walls, baseboards, and doors. She testified that she never told Brooks

that she did not like the color, but she did call Eunson after seeing the color

and asked him if he wanted it to be mint green. She stated that she lives at

the house with her husband and two children. Finally, she testified that due

to the paint issue, when she was prepared to move into the rental property,

her movers had to deposit her furniture at the front of the house while the

painters finished the back of the house, and that she was then tasked with

3

moving the furniture into the home after the painters had completed their

work.

Eunson testified that he told Brooks to paint the house an off-white

color. He testified that Brooks said he painted the mint green color to match

the countertops in the bathroom. Eunson testified that after Brooks painted

over the mint green with the off-white color, the green was bleeding

through. Eunson asserted that he lost a month’s worth of rent and had to

make several expensive trips from his home in Texas to resolve the painting

issue. Eunson further testified that the paint needs to be redone, which will

be more expensive because now the house has furniture and carpet in it.

In its ruling, the trial court stated the following:

As you-all were discussing paint and counsel kept asking about
[Kilz] and what the Court went to was the Sherwin-Williams
website and we looked up—because Mr.—forgive me the
owner of the painting company stated on the stand, what type of
paint they use and he called it, it’s call pre-catalyzed water-
based epoxy semi-gloss paint. Based on the Sherwin-
Williams website, you-all feel free to go to it, you can
download it yourself. It tells you what surface preparation is
specifically needed when you are painting things and it gives
you a whole list of how you do it. Water-based, let me say it
correctly again, pre catalyzed water-based epoxy paint does not
require primer, and that is listed on the Sherwin-Williams
website. They did not fail to prime the walls or paint
correctly.

(emphasis added). The court further stated that the testimony indicated that

carpet was installed after the painting was complete, and the court stated:

The court is not slow uh—in that we understand that normally
when you do lay carpet, baseboards must be lifted all after the
paint job was complete and done. Looking through the
pictures, I see on one or two surfaces that it was grainy peeling
through. But what it looks like to the Court is, is that some of
the baseboards were not painted period and that we’re going to
assume or presume that they were already white or off-white.
So, they were not repainted. And again, in specific detail where
the carpet is laid, you can see that there is a differentiation

4

meaning someone…moved [it] from the wall. That didn’t have
anything to do with the paint job.

The court found that the damage to the walls, baseboards, and doors

was caused by normal wear and tear, the installation of the carpet, and the

renters moving their furniture. The court denied Eunson’s request for travel

expenses, lost rent, and the cost to repaint, noting that Eunson had not

presented any estimates to the court for the cost to repaint. The court found

that Brooks completed the painting job, including corrections in the paint

color, and deserved to be paid. The trial court ordered Eunson to pay the

remaining balance owed to Brooks for the paint job, totaling $5,333.36, plus

judicial interest.

Eunson’s counsel objected to the trial court’s independent research,

and the court responded that its decision was based solely on the testimony

of the renters, Eunson, and Brooks. Eunson, unconvinced by the trial court’s

assertion, now appeals this ruling.

DISCUSSION

Eunson asserts three assignments of error:

First Assignment of Error: The trial judge erred in speculating as
to the cause of the peeling of the paint without any testimony from
any witness reflective of the reason given by the trial judge.

Second Assignment of Error: The trial court erred in not relying
on the evidence presented by the plaintiff and defendant in
making its decision.

Third Assignment of Error: The trial court erred in conducting
its own independent research of facts and supplementing the
plaintiff’s case by conducting an internet search which was
utilized for the basis of her ruling.

As all three assignments of error involve similar issues, we will address

them together.

5

An appellate court may not set aside a trial court’s finding of fact in

the absence of manifest error or unless such finding is clearly wrong.

Stobart v. State, through DOTD, 617 So. 2d 880 (La. 1993); Rosell v. ESCO,

549 So. 2d 840 (La. 1989); Lewis v. Smith, 40,590 (La. App. 2 Cir. 1/25/06),

920 So. 2d 920. “Where two permissible views of the evidence exist, the

factfinder’s choice between them cannot be manifestly erroneous or clearly

wrong.” Stobart, supra. The issue to be resolved by the reviewing court is

not whether the trier of fact was right or wrong, but whether the factfinder’s

conclusion was a reasonable one in light of the evidence in the record. Id.

A contract is formed by the consent of the parties established through

offer and acceptance. Unless the law prescribes a certain formality for the

intended contract, offer and acceptance may be made orally, in writing, or by

action or inaction that under the circumstances is clearly indicative of

consent. Unless otherwise specified in the offer, there need not be

conformity between the manner in which the offer is made and the manner

in which the acceptance is made. La. C.C. art. 1927.

In order to prevail on a breach of contract claim, a plaintiff must prove

by a preponderance of the evidence: 1) defendant owed him an obligation; 2)

defendant failed to perform the obligation; and 3) defendant’s failure to

perform resulted in damage to the plaintiff. Hayes Fund for the First United

Methodist Church of Welsh, LLC v. Kerr-McGree Rocky, Mt., LLC, 14-2592

(La. 12/8/15), 193 So. 3d 1110. A contract for work or services carries an

implied obligation on the contractor to perform in a workmanlike manner, in

default of which he must respond in damages for the losses that may ensue.

La. C.C. arts. 1994, 2769; Platt v. Interstate Dodge, 37,059 (La. App. 2 Cir.

6

4/09/03), 843 So. 2d 1178. A party claiming that repairs are defective or

unsatisfactory bears the burden of proving by a preponderance of the

evidence that the work was defective. K&F Refrigeration v. Bowman,

41,098 (La. App. 2 Cir. 5/17/06), 930 So. 2d 1141. Proof of failure to

perform a contract in a workmanlike manner requires some showing of a

want of skill, efficiency, knowledge, or lack of ordinary care in the

performance of the work or in the selection of suitable equipment or

materials. Platt, supra.

Eunson argues that the trial court erred in doing research outside of

the testimony and evidence in the record to reach the conclusion that the

painting was done in a workmanlike manner. Eunson also argues that the

court’s determination that the problems with the paint could be attributed to

the installation of carpet, normal wear and tear, and the moving of furniture

by the tenants of the rental home are not supported by the record. We agree.

We note that generally, a finder of fact may not consider evidence

outside the record in making its findings. Caruso v. Chalmette Refining,

LLC, 16-1117 (La. App. 4 Cir. 6/28/17), 222 So. 3d 859; Weatherly v.

Optimum Asset Mgmt., Inc., 04-2734 (La. App. 1 Cir. 12/22/05), 928 So. 2d

118; Nail v. Clavier, 99-588 (La. App. 3 Cir. 11/10/99), 745 So. 2d 1221,

writ denied, 99-3494 (La. 1/5/00), 752 So. 2d 169. In Mosley v. Griffin,

50,478 (La. App. 2 Cir. 2/24/16), 191 So. 3d 16, this Court found that there

was no reversable error in a trial court consulting a parish engineer about

traffic lights not on the record where the information provided by the

engineer was in the record via a report provided by the parties and admitted

into evidence, the trial court notified the parties that it would speak to the

7

engineer, and defense counsel did not object to the trial court’s plan to speak

to the engineer. That case can be differentiated from the case at bar. Here,

the trial court relied on information not available to both counsel, and

defense counsel was unaware of information relied on by the trial court in

making its ruling. Thus, defense counsel was denied the opportunity to

delve into the court’s understanding and concerns, to question or defend

against the information, or to address the issue with witnesses present or

procure rebuttal witnesses to the undisclosed notions and conclusions

reached by the trial court. This is reversible error. Mosley v. Griffin, supra.

We find that it was manifest error for the trial court to render its decision

that the painting had been done in a workmanlike manner, contrary to and

not based on the testimony and evidence presented at trial but, rather, on

research done on a website with information not found in the record. For the

trial court to not disclose these independent outside-the-record notions

deprived counsel the opportunity to expand upon and probe the issues

deemed determinative by the trial court.

Further, while there was one brief mention in Eunson’s testimony that

carpet had been laid in the home, there is no information in the record that

the baseboards were removed during this process or how it may have

affected the paint job. Similarly, while the homeowners did state that they

moved their furniture, no questions were asked about whether they damaged

the paint during that move. The trial court has based its ruling on its own

research and suppositions and implications it made completely outside the

record, and those conclusions are not supported by the evidence. Both

Brooks and Black confirmed in their testimony that the peeling paint shown

8

to them in the photographs in evidence was unacceptable. Eunson testified

he would have to repaint the house because of the poor workmanship. We

find that the trial court’s conclusions are not supported by the record and

were in error. Eunson’s assignments of error have merit.

Considering the above, we reverse the trial court’s judgment insofar

as it ruled in favor of Brooks Paint and awarded it $5,333.36 plus legal

interest. We affirm the trial court’s denial of Eunson’s reconventional

demand for travel expenses, lost rent, and the cost to repaint the rental home.

CONCLUSION

For the reasons set forth above, the trial court’s judgment is reversed

insofar as it ruled in favor of AR Brooks Paint Contracting, LLC and

awarded the company $5,333.36. Costs of this appeal are assessed to AR

Brooks Paint Contracting, LLC.

REVERSED IN PART; AFFIRMED IN PART.

9