Ville Platte Concrete Service, Inc. v. Joshua Paul Manuel, Et Ux.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-1277 C/W 11-1278, 11-1279

E. SMITH PLUMBING, INC.
SMITH AIR CONDITIONING, INC,
AND
VILLE PLATTE CONCRETE SERVICES, INC.

VERSUS

JOSHUA PAUL MANUEL AND
CORA ELIZABETH MONIER MANUEL

**********
APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, DOCKET NOS. 71250, 71257, and 71446
HONORABLE THOMAS F. FUSELIER, DISTRICT JUDGE
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Chief Judge Ulysses Gene Thibodeaux, and Judges Sylvia R.
Cooks and Billy H. Ezell.

Reversed in part, and Judgment Rendered.

Bruce Achille Gaudin
100 West Bellevue Street
Opelousas, LA 70570
(337) 948-3818
ATTORNEY FOR DEFENDANTS/APPELLANTS
Joshua Paul Manuel and Cora Elizabeth Monier Manuel

C. Brent Coreil
P.O. Drawer 450
Ville Platte, LA 70586
(337) 363-5596
ATTORNEY FOR PLAINTIFFS/APPELLEES
E. Smith Plumbing, Inc., Smith Air Conditioning, Inc.,
And
Ville Platte Concrete Services, Inc.

Cooks, Judge
FACTS AND PROCEDURAL HISTORY

Joshua Paul Manuel (Joshua) and Cora Elizabeth Monier Manuel (Cora)

engaged the services of Drake Fontenot (Fontenot) to build a home in Evangeline

Parish, Louisiana. Fontenot was hired to build Joshua and Cora’s residence on the

basis of his reputation as a home builder in their area and based upon his bid

proposal. Fontenot submitted a contract to Joshua and Cora, but neither one of

them signed the contract. Cora made changes to lower the overall cost of the

project and discussed these changes with Fontenot. Fontenot agreed to proceed

under the revised figures and commenced the building of Joshua and Cora’s home.

Cora handled the negotiations with Fontenot, and she worked directly with

him and various subcontractors throughout the construction of their home. Joshua

had little direct involvement in the day-to-day dealings with Fontenot or any of the

subcontractors. Cora handled the financial record keeping and the delivery of

payments to Fontenot and others involved in the construction of their home.

Throughout the project, and to its completion, Fontenot charged Joshua and

Cora for carpenter labor, which included himself, his workers, a per-hour fee for

each worker as part of Fontenot’s fee, and for the cost of materials purchased by

him. Fontenot did not add any amount to materials he purchased for the project

nor did he add any amount to any of the subcontractors’ bills for their labor and

materials. This was true for all subcontractors, including the Plaintiffs. The three

Plaintiff/Subcontractors sent invoices to Fontenot indicating he was the contractor

on the job building Joshua and Cora’s home. Cora usually made payments to

Fontenot when requested throughout the project to pay him, his workers, and

subcontractors, and, on some occasions, paid certain subcontractors directly.

The three Plaintiffs/Subcontractors herein all provided materials and/or

services in the construction of Joshua and Cora’s home. All three Plaintiffs had a

long-standing relationship with Fontenot as a general contractor building homes in

their area. Fontenot chose each of the Plaintiffs/Subcontractors to perform work

on Joshua and Cora’s home. Each testified that they entered into agreement with

Fontenot to provide their respective services as subcontractors relying on their past

experience with Fontenot. None of the parties had any contractual agreement

directly with Joshua or Cora. After completing work on Joshua and Cora’s home

each of the Plaintiffs were left with an outstanding balance owed for services

and/or materials provided.

All parties stipulated to the amount owed each of the three Plaintiffs. Joshua

and Cora do not dispute that the Plaintiffs actually performed the work for which

they invoiced Fontenot, and they do not assert that any of the Plaintiffs’ work was

improperly done. Joshua and Cora further acknowledged that these subcontractors

have not been paid the outstanding balances claimed. Joshua and Cora maintain

they held back the money owed to Plaintiffs, at the end of the project, because they

believe Fontenot overcharged them for his labor. They assert they feared if they

paid the amount owed to Plaintiffs directly to Fontenot he would not pay these

subcontractors because he claimed he was owed additional money on the project

for his labor, and had an outstanding bill for his unpaid labor. Cora represented to

Plaintiffs, and maintained both before and during trial, that she and her husband

owed each of the Plaintiffs for their outstanding bills and promised these debts

would be paid.

Joshua and Cora moved into their new home on July 25, 2009. E. Smith

Plumbing, Inc. (Smith Plumbing) submitted a letter into evidence informing Joshua

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and Cora that they owed $18,556.00, and if it remained unpaid a lien would be

filed on “October 1st.” Smith Plumbing filed a lien in Evangeline Parish on

October 2, 2009, and Smith Air Conditioning, Inc. (Smith A.C.) filed a lien in

Evangeline Parish on October 5, 2009. Smith A.C. and Smith Plumbing thereafter

sent a certified letter to Joshua and Cora, return receipt requested, dated October

14, 2009. This letter informed Joshua and Cora that the liens had been filed, and

also stated that the letter should be considered a written demand for payment in the

amount of $7,618.00 for Smith A.C., and $18,566.00 for Smith Plumbing. A copy

of the letter was sent to Fontenot. The third Plaintiff, Ville Platte Concrete Service,

Inc. (Concrete Service) did not file a lien though their bill was not paid.

Smith A.C. and Smith Plumbing filed suit against Joshua, Cora, and

Fontenot in December, 2009, for the amounts owed, plus attorney fees and legal

interest from date of judicial demand. Both of these Plaintiffs alleged in their suits

“some of the balance due is an open account owed by the Manuel’s (Joshua and

Cora), with a portion being contractual and being owed by Drake Fontenot.” The

petition does not allege what portion is owed by each of the named parties. Joshua

and Cora filed a third-party demand against Fontenot, alleging Fontenot

overcharged them in the amount of $20,595.00 and alleging that they “paid Drake

Fontenot over $300,000.00 and he should have paid the plaintiff[s] in full from the

money he received.” The total bid price for the job was $327,151.00.

Joshua and Cora also filed a reconventional demand against Smith A.C. and

Smith Plumbing for damages and attorney fees for improperly filing liens and

refusing to cancel the liens after written request to cancel within ten days of the

notice.

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Concrete Service sent a demand letter to Joshua and Cora dated February 4,

2010, return receipt requested, stating it was owed “on an open account” the sum

of $7,030.50. The demand letter was addressed to Fontenot, Joshua, and Cora.

Because the amount went unpaid, Concrete Service filed a suit on open account on

March 5, 2010, against Joshua, Cora, and Fontenot. Joshua and Cora filed a third

party demand against Fontenot alleging he was the general contractor, and that if

they owed Concrete Service any sum they were entitled to indemnity by Fontenot

for any such amount.

By letter dated April 27, 2010, Joshua and Cora’s attorney informed

Plaintiffs’ attorney that the liens were improperly filed and requested the liens be

cancelled “within ten days” failing which, Joshua and Cora would sue Plaintiffs for

damages and attorney fees. The liens were not cancelled until September 28, 2010.

Following a bench trial, the trial court rendered judgment in favor of the

Plaintiffs awarding each the stipulated amount owed on open account; attorney

fees for each in the amount of $2,500.00; all costs of court; and legal interest from

date of judicial demand. This part of the judgment was against Joshua and Cora.

The trial court dismissed all of Joshua and Cora’s reconventional and third-party

demands at their cost. The trial court thereafter signed an amended judgment

which dismissed: all claims by Plaintiffs against Drake Fontenot; Joshua and

Cora’s third-party demands against Drake Fontenot; and Drake Fontenot’s

reconventional demand against Joshua and Cora. Joshua and Cora appeal the

original judgment of the trial court and expressly state in their brief to this court

that they have not appealed the amended judgment. No other parties have

answered the appeal nor have they appealed the judgment or amended judgment.

Therefore, the amended judgment is final. Thus, the third-party demands by

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Joshua and Cora against Fontenot, and all of the Plaintiffs’ claims against Fontenot

are dismissed. We note particularly Fontenot’s reconventional demand against

Joshua and Cora was dismissed, relieving them of any future obligation to pay him

additional money for his work on the project.

Joshua and Cora assert two assignments of error arguing the trial court erred

in finding Plaintiffs’ claims were based on open accounts, and erred in dismissing

Joshua and Cora’s reconventional demand against the Plaintiffs based on the

Plaintiffs’ failure to cancel the untimely liens within ten days of written demand.

LAW AND DISCUSSION

We find that the amounts owed to the three Plaintiffs are indeed owed on an

open account. See Credit Bureau Services v. Lundberg, 08-1523 (La. App. 3 Cir.

5/6/09), 10 So.3d 883. Louisiana Revised Statutes 9:2781(D) (emphasis added)

defines an open account:

For the purposes of this Section and Code of Civil Procedure
Articles 1702 and 4916, “open account” includes any account for
which a part or all of the balance is past due, whether or not the
account reflects one or more transactions and whether or not at the
time of contracting the parties expected future transactions. “Open
account” shall include debts incurred for professional services,
including but not limited to legal and medical services. For the
purposes of this Section only, attorney fees shall be paid on open
accounts owed to the state.
However, we also find that the trial court erred as a matter of law in finding

that Joshua and Cora established an open account with any of the Plaintiffs. They

did not. There is no signed contract between Cora and Joshua and any of the

Plaintiffs. Our review of the record reveals that Fontenot opened an account with

the Plaintiffs/Subcontractors regarding the home building project for Joshua and

Cora. These accounts are evidenced by the consistent billing sent to Fontenot, in

his name, identifying him as “contractor,” for work done on Joshua and Cora’s
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home. It is clear that all of the Plaintiffs/Subcontractors dealt with Fontenot on this

project as the general contractor. All of the Plaintiffs had a long-standing

relationship with Fontenot and relied on his reputation with them in establishing

the accounts for this project. They had no relationship with Joshua and Cora, and

it was Fontenot who chose the Plaintiffs to perform services for the construction of

this house.

In Bieber-Guillory v. Aswell, 98-559 p.7 (La.App. 3 Cir. 12/30/98), 723

So.2d 1145, 1149-50 (emphasis added) we explained the evidentiary showing a

plaintiff must make in proving a right to recovery on an open account and further

explained that:

This required showing by the plaintiff presupposes the
existence of an enforceable contract between the parties. “For there to
be an action on an open account, there must necessarily be a contract
which gave rise to the debt.” Blackie’s Rental Tool & Supply v.
Vanway, 563 So.2d 350, 353 (La.App. 3 Cir. 1990). A creditor suing
on open account must prove that the debtor contracted for the sales on
open account. Id; Advertiser Div. v. Southwest Mortg. & Inv., 424
So.2d 1284 (La.App. 3 Cir. 1982). When there is no meeting of the
minds between the parties, there is no consent, thus no enforceable
contract. La.Civ.Code art. 1927. Such that, if there is no enforceable
contract, the plaintiff’s attempt to prove the existence of an open
account by establishing a prima facie case becomes extraneous.
Plaintiffs fail to meet their burden to prove that they had an open account with

Joshua and Cora. There was no meeting of the minds between the Plaintiffs and

Joshua and Cora. The contract was between Fontenot and the Plaintiffs.

Concrete Service argues that its outstanding bill for concrete supplied for the

driveway on this project was an open account with Joshua and Cora because it was

an item added to the original building contract. We find the record shows that

although the concrete work on the driveway was an addition to the project not

mentioned in the original plans, it was invoiced in the same manner as the other

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concrete work, on open account with Fontenot. James Deville (Deville) testified

on behalf of Concrete Service and stated that it was not unusual for a driveway to

be an added feature on a home construction project. He testified that he did not

know who ordered the concrete for the driveway. Deville also testified he met

Cora only once, at her home, when the slab for her house was being poured. He

additionally testified that the customary practice is that the contractor orders the

concrete because the homeowner has no idea of the amount of yardage needed.

There is no dispute Fontenot contracted with Concrete Service for the earlier slab

concrete provided on Joshua and Cora’s home building project. As La.R.S.

9:2781(D) (emphasis added) states, the open account includes any amount past due

“whether or not at the time of contracting the parties expected future

transactions.” See also Credit Bureau Services, 10 So.3d at 884.

Additionally, we reject the assertion that Fontenot acted as agent or

mandatory for Joshua and Cora.

Under Louisiana law, an agency relationship is created by either
express appointment of a mandatory under Civil Code Article 2985 or
by implied appointment arising from apparent authority, Lou-Ark
Equipment Rentals, Co. v. Hong Ah-Fong, 355 So.2d 1019 (La. App.
4th Cir. 1978). . . . It is settled law in this State that an agency
relationship cannot be presumed, it must be clearly established.
Roberson Adver. Serv., Inc. v. Winnfield Life Ins. Co., 453 So.2d 662, 665

(La.App. 5 Cir. 1984).

No such appointment was made by Joshua or Cora and there is nothing in

the record to suggest any implied appointment of Fontenot as their agent or

mandatory. Moreover, any of the parties dealing with Fontenot on Joshua and

Cora’s project “had an affirmative duty to determine the extent and scope of”

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Fontenot’s authority to bind Joshua and Cora. Roberson Ad. Serv., Inc., 453 So.2d

at 665. There is no evidence to this effect anywhere in this record.

Under the provisions of La.R.S.9:2781(A), the Plaintiffs would be entitled to

recover attorney fees and costs against Fontenot, who was also a named Defendant,

however, in failing to appeal the amended judgment which dismissed all of

Plaintiffs’ claims against Fontenot, they have lost their right to recover these

damages from Fontenot. The Plaintiffs are not entitled to recover attorney fees and

costs against Joshua and Cora because the open accounts were between Fontenot

and the Plaintiffs. We therefore reverse that portion of the judgment awarding such

damages against Joshua and Cora.

We also reject the notion that the Plaintiffs/Subcontractors are entitled to

recover under the theory of actio in rem verso, or unjust enrichment. There are five

elements to recovery under this theory including the “absence of a remedy at law.”

Roberson, 453 So.2d at 665 (citing Minyard v. Curtis Products, Inc., 251 So.2d

422 (La.1967) and G. Woodward Jackson Co., Inc. v. Crispens, 414 So. 2d 855

(La.App. 4 Cir. 1982)). Quoting the learned Justice Albert Tate, the court in

Roberson found the equitable remedy of unjust enrichment unavailable to a

plaintiff despite the fact that the defendant had been enriched at the expense of

plaintiff’s impoverishment. Justice Tate explained the inapplicability of this

remedy as follows:

[N]o other legal remedy is practically available to the impoverished
plaintiff by which the impoverishment might be or might reasonably
have been avoided (this is the principle of “subsidiarity” by which the
extraordinary remedy of unjustified enrichment, not provided by the
Civil Code, is regarded as unavailable where another legal remedy
could have prevented the impoverishment).
Id. at 666.

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The Plaintiffs/Sub-contractors here had additional legal remedies available to them

including collecting on an open account against Fontenot. They also could have

timely filed liens to recover from the owners of the property on which they had

provided goods and services, but, as discussed below, failed to do so. They are

therefore prohibited from resorting to the extraordinary remedy of unjust

enrichment.

We find that the liens filed by Smith A.C. and Smith Plumbing were

untimely filed. Subcontractors like Plaintiffs herein are accorded a privilege on an

immovable securing certain obligations under the provisions of La. R.S. 9:4801.

The following persons have a privilege on an immovable to secure
the following obligations of the owner arising out of a work on the
immovable:
(1) Contractors, for the price of their work.

(2) Laborers or employees of the owner, for the price of work
performed at the site of the immovable.

(3) Sellers, for the price of movables sold to the owner that
become component parts of the immovable, or are consumed at
the site of the immovable, or are consumed in machinery or
equipment used at the site of the immovable.
They are also accorded a claim against the owner and contractor of a construction

project under the provisions of La.R.S. 9:4802(A)and (E):

A. The following persons have a claim against the owner and a
claim against the contractor to secure payment of the following
obligations arising out of the performance of work under the
contract:

(1) Subcontractors, for the price of their work.

(2) Laborers or employees of the contractor or a subcontractor, for
the price of work performed at the site of the immovable.

(3) Sellers, for the price of movables sold to the contractor or a
subcontractor that become component parts of the immovable,
or are consumed at the site of the immovable.

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E. A claimant may assert his claim against either the contractor,
his surety, or the owner without the joinder of the others. The claim
shall not be subject to a plea of discussion or division.
....
The procedure for preserving these claims and privileges over an owner’s

property in a construction project are provided for in La.R.S. 9:4822(C):

Those persons granted a claim and privilege by R.S. 9:4802 for
work arising out of a general contract, notice of which is not filed,
and other persons granted a privilege under R.S. 9:4801 or a claim
under R.S. 9:4802 shall file a statement of their respective claims
and privileges within sixty days after:

(1) The filing of a notice of termination of the work; or

(2) The substantial completion or abandonment of the work, if
a notice of termination is not filed.

It is without dispute that no notice of termination was filed in this matter. There is

no serious dispute that Joshua and Cora moved into and began living in their new

home on July 25, 2009. Louisiana law statutorily defines “substantial completion”

in La.R.S. 9:4822(H) (emphasis added) as follows:

H. A work is substantially completed when:
(1) The last work is performed on, or materials are delivered to
the site of the immovable or to that portion or area with respect to
which a notice of partial termination is filed; or
(2) The owner accepts the improvement, possesses or occupies
the immovable, or that portion or area of the immovable with respect
to which a notice or partial termination is filed, although minor or
inconsequential matters remain to be finished or minor defects or
errors in the work are to be remedied.
Joshua and Cora’s home was substantially completed as of July 25, 2009.

Plaintiffs assert that additional work was performed on the house after that date,

but we find these were merely “minor or inconsequential” items of work such as

installation of a light fixture. The Plaintiffs had sixty days from July 25, 2009, to

file their liens. The earliest lien was not filed until October 2, 2009, beyond the

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sixty-day time limit. The liens were therefore invalid, and, under the express

provisions of La.R.S. 9:4823 the Plaintiffs’ privilege and claim were extinguished:

A. A privilege given by R.S. 9:4801, a claim against the owner and
the privilege securing it granted by R.S. 9: 4802, or a claim against
the contractor granted by R.S. 9:4802 is extinguished if:

(1) The claimant or holder of the privilege does not preserve it as
required by R.S. 9:4822. . . .
Joshua and Cora sent written demand requesting that Smith A.C. and Smith

Plumbing cancel the liens within ten days of receipt of notice for the reason that

the liens were untimely filed. This request went unanswered, and the liens were

not cancelled until almost five months after written demand to remove the liens.

Cora and Joshua are therefore entitled to recover attorney fees, costs and general

damages for the untimely filed liens as provided in La.R.S. 9:4833:

A. If a statement of claim or privilege is improperly filed or if
the claim or privilege preserved by the filing of a statement
of claim or privilege is extinguished, an owner or other
interested person may require the person who has filed a
statement of the claim or privilege to give a written request
for cancellation in the manner provided by law directing the
recorder of mortgages to cancel the statement of claim or
privilege from his records. The request shall be delivered
within ten days after a written request for it is received by
the person filing the statement of claim or privilege.

B. One who, without reasonable cause, fails to deliver a
written request for cancellation in proper form to cancel the
claim or privilege as required by Subsection A of this
Section shall be liable for damages suffered by the owner or
person requesting the authorization as a consequence of the
failure and for reasonable attorney fees incurred in causing
the statement to be cancelled.
Cora and Joshua testified that the filing of these liens caused them much

anxiety. The liens remained in place for approximately five months. We find an

award of $2,000.00, plus legal interest from date of judicial demand until paid, to

Cora, and $2,000.00, plus legal interest from date of judicial demand until paid, to

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Joshua for general damages is appropriate, as well as an award for reasonable

attorney fees in the amount of $3,500.00 to Joshua and Cora.

Although we find the Plaintiffs cannot avail themselves of an unjust

enrichment claim, we also find that Cora created a civil obligation to pay the

Plaintiffs for the agreed amounts owed because she acknowledged and reaffirmed

the debt, and by her own words, promised, even at trial under oath, to pay the

stipulated amounts owed to Plaintiffs.

A natural obligation may serve as consideration or cause for a civil
obligation. See, LSA-C.C. art. 1761; Thomas v. Bryant, 25,855
(La.App. 2 Cir. 6/22/94), 639 So.2d 378, 380. According to LSA-
C.C. art. 1760, a natural obligation “arises from circumstances in
which the law implies a particular moral duty to render a
performance.” However, not every moral duty will give rise to a
natural obligation. See, LSA-C.C. art. 1762, comment (b). In Thomas
v. Bryant, the court recognized that the following requirements must
be satisfied in order for a moral duty to constitute a natural obligation:
(1) The moral duty must be felt towards a particular person, not all
persons in general.

(2) The person involved feels so strongly about the moral duty that
he truly feels he owes a debt.

(3) The duty can be fulfilled through rendering a performance
whose object is pecuniary.

(4) A recognition of the obligation by the obligor must occur,
either by performing the obligation or by promising to perform.
This recognition brings the natural obligation into existence and
makes it a civil obligation.

(5) Fulfillment of the moral duty must not impair the public order.

Azaretta v. Manalla, 00-227 (La.App. 5 Cir. 7/25/00), 768 So.2d 179, 180. See

also Succession of Aurianne, 219 La. 7a, 53 So.2d 901, 904 (1951) which held that

“[a] promise to pay a debt made after prescription has accrued creates a new

obligation binding on the debtor.” Further, Cora admitted the work was

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satisfactory. She testified that her refusal to pay the Plaintiffs was based on her

dispute with Fontenot and acknowledged the Plaintiffs deserved to be paid.

For the reasons stated, we render judgment in favor of Smith Plumbing in

the amount of $18,566.06, plus legal interest from date of judicial demand until

paid; Smith A.C. in the amount of $7,618.00, plus legal interest from date of

judicial demand until paid; and Concrete Service in the amount of $7,030.50, plus

legal interest from date of judicial demand until paid. The law does not entitle

Plaintiffs to recover attorney fees on these civil obligations from Joshua and Cora.

We further render judgment in the amount of $2,000.00, plus legal interest

from date of judicial demand until paid, to Cora, and $2,000.00, plus legal interest

from date of judicial demand until paid, to Joshua for general damages, as well as

an award for reasonable attorney fees in the amount of $3,500.00 to Joshua and

Cora.

Court costs in each of the three consolidated proceedings are to be divided as

follows. In Smith Plumbing v. Joshua Paul Manuel, Et al., Docket Number 71250,

Thirteenth Judicial District Court, Smith Plumbing shall pay fifty percent of court

costs, and Joshua and Cora Manuel will pay fifty percent of court costs. In Smith

Air Conditioning, Inc. v. Joshua Paul Manuel, Et Al., Docket Number 71257,

Thirteenth Judicial District Court, Smith Air Conditioning, Inc. shall pay fifty

percent of court costs, and Joshua and Cora Manuel will pay fifty percent of court

costs. In Ville Platte Concrete Service, Inc., v, Joshua Paul Manuel, Et Al., Docket

Number 71446, Thirteenth Judicial District Court, all court costs are to be paid by

Joshua and Cora.

Reversed in part, and Judgment Rendered.

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