Mary P. Ogea v. Travis Merritt

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1028

MARY P. OGEA

VERSUS

TRAVIS MERRITT AND MERRITT CONSTRUCTION, LLC

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2008-2321
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Elizabeth A. Pickett, James T. Genovese, and Shannon J.
Gremillion, Judges.

AFFIRMED AS AMENDED.

Richard D. Moreno
RICHARD D. MORENO, L.L.C.
P.O. Box 149
Lake Charles, LA 70602-0149
(337) 656-8654
COUNSEL FOR DEFENDANT/APPELLANT:
Travis Merritt
Merritt Construction, LLC

Benji J. Istre
BENJI J. ISTRE, LLC
P. O. Box 12576
Lake Charles, LA 70612-2576
(337) 274-7208
COUNSEL FOR PLAINTIFF/APPELLEE:
Mary P. Ogea

PICKETT, Judge.

Limited liability company and its sole member appeal judgment holding

them solidarily liable for damages arising from their construction of the plaintiff‟s

home. For the reasons discussed below, we amend and affirm.

FACTS

In February 2007, Mary P. Ogea signed a “Custom Home Building

Agreement” with Merritt Construction, LLC (Merritt LLC), contracting Merritt

LLC to build a home on a lot she owned near Lake Charles. Travis Merritt, the

sole member of Merritt LLC, signed the contract on behalf of the company.

During construction, Ms. Ogea became aware of problems with the construction.

After being made aware of a problem with the slab of the home, she hired Charles

Norman, an engineer, to inspect her home. Mr. Norman performed inspections in

September 2007, November 2007, and May 2011. Based on Mr. Norman‟s

findings during his first two visits and his expert opinion regarding the slab,

Ms. Ogea notified Merritt LLC in January 2008 of the problems with the slab and

requested a refund of all monies she had paid and demolition of the unfinished

home.

Receiving no response from Merritt LLC, Ms. Ogea filed suit in April 2008

against Merritt LLC and Mr. Merritt (the defendants), alleging violations of the

New Home Warranty Act (NHWA), La.R.S. 9:3141-3150, and various Louisiana

Civil Code articles related to construction defects. Mr. Travis filed a Peremptory

Exception of No Cause of Action, which the trial court denied after a hearing. The

defendants then filed an Answer and Reconventional Demand. Thereafter, counsel

for the defendants withdrew as counsel.

On October 5, 2011, a bench trial was held. Mr. Merritt represented himself

and Merritt LLC at trial. Mr. Norman, Ms. Ogea, and Mr. Merritt testified at the

trial. At the conclusion of the trial, the trial court found that Merritt LLC and

Mr. Merritt each met the definition of “builder” under the NHWA and that based

on Mr. Norman‟s expert testimony, there was a slab defect, that constituted a

“major structural defect” under the NHWA, which created other “significant”

problems with the construction. The trial court further determined that “[u]nder

one or more of the [legal] theories,” the damages alleged by Ms. Ogea were caused

either by Merritt LLC or Mr. Merritt or both. Specifically as to Mr. Merritt, the

trial court found that he personally performed the work for the pad of the home and

that his failure to provide proof of insurance, as requested, constituted fraud.

Based on these findings, the trial court held Mr. Merritt personally responsible and

solidarily liable with Merritt LLC for damages Ms. Ogea incurred as a result of the

defective construction.

The trial court granted judgment in favor of Ms. Ogea awarding her: (1)

$221,262.11 for monies she paid prior to the date of trial with judicial interest from

the date of judicial demand; (2) $16,105.00 for demolition costs with legal interest

from the date of judgment; (3) $15,500.00 for attorney fees with legal interest from

the date of judgment; (4) $3,050.00 for expert fees with legal interest from the date

of judgment; and (5) cancellation of the lien filed by Merritt LLC. The trial court

also granted judgment in favor of Merritt LLC on its Reconventional Demand in

the amount of $8,800.00 with legal interest from date of judicial demand as an

offset against Ms. Ogea‟s judgment. The judgment cast Merritt LLC and

Mr. Merritt in solido for all costs of the proceedings.

In finding Mr. Merritt personally liable, the trial court explained:

“[E]ither Travis Merritt and/or Merritt Construction, LLC, in
the handling of the pouring of the slab, since that [is]. . . the main
defect . . . . It was the job of Merritt Construction, whether it was
poured by them or not, to oversee and make sure that it was done
within the standards that would be expected under the law.”
2

After the trial court stated its reasons for judgment, Ms. Ogea asked the trial

court to address her request that Mr. Merritt be found to have perpetrated fraud on

her. The trial court explained, “when I indicated he would be personally held

responsible and by the dilatory actions, as well as the non-compliance with the

depositions and other matters, it‟s the Court‟s position from a civil standpoint that

he has committed fraud.”

After judgment was signed, the defendants filed a timely Motion for New

Trial which the trial court denied after a hearing. The defendants appealed.

ASSIGNMENTS OF ERROR

In their appeal, the defendants assign the following errors with the trial

court‟s judgment:

1. The trial court erred by denying the Peremptory Exception of No
Cause of Action filed by Mr. Merritt, individually.

2. The trial court erred by rendering Judgment against Mr. Merritt,
individually and in solido with Merritt LLC.

3. The trial court erred by rendering judgment against Mr. Travis and
Merritt LLC under the NHWA.

4. In its judgment, trial court erroneously awarded damages that were
not allowed by law, were not sustained by the evidence, or were
duplicative.

5. The trial court erred in awarding $8,800.00 with legal interest from
date of judicial demand in favor of Merritt LLC on its Reconventional
Demand.

6. The trial court erred in awarding $15,500.00 in attorney fees to
Ms. Ogea.1

7. The trial court erred by failing to award Merritt LLC reasonable
attorney fees under its contract with Ms. Ogea for investigation, filing
an answer, and prevailing on its Reconventional Demand.

DISCUSSION

1
This assignment of error has been corrected to reflect that the trial court awarded
Ms. Ogea $15,500.00 in attorney fees, not $16,000.00 in attorney fees as the defendants stated in
their assignment of error.
3

At the heart of Mr. Merritt‟s appeal are the NHWA and the law governing

limited liability companies (LLC). The NHWA provides mandatory warranties in

favor of purchasers or occupants of new homes. The warranties apply to all

defects “although there is no building standard directly regulating the defective

workmanship or materials.” La.R.S. 9:3140. The remedies provided in the

NHWA are exclusive, and no other remedies provided by law apply between an

owner and a builder. La.R.S. 9:3141.

Louisiana‟s LLC law benefits its members by limiting their liability. The

limited liability of LLC members to third parties is provided in La.R.S. 12:1320

which states:

A. The liability of members, managers, employees, or agents,
as such, of a limited liability company organized and existing under
this Chapter shall at all times be determined solely and exclusively by
the provisions of this Chapter.

B. Except as otherwise specifically set forth in this Chapter, no
member, manager, employee, or agent of a limited liability company
is liable in such capacity for a debt, obligation, or liability of the
limited liability company.

C. A member, manager, employee, or agent of a limited
liability company is not a proper party to a proceeding by or against a
limited liability company, except when the object is to enforce such a
person‟s rights against or liability to the limited liability company.

D. Nothing in this Chapter shall be construed as being in
derogation of any rights which any person may by law have against a
member, manager, employee, or agent of a limited liability company
because of any fraud practiced upon him, because of any breach of
professional duty or other negligent or wrongful act by such person, or
in derogation of any right which the limited liability company may
have against any such person because of any fraud practiced upon it
by him.

Peremptory Exception of No Cause of Action

In their first assignment of error, the defendants argue that the trial court

erred in denying Mr. Merritt‟s exception of no cause of action. In his exception,

Mr. Merritt asserted that Ms. Ogea‟s contract was with Merritt LLC and that
4

Merritt LLC performed all the work on her home. He contends that under general

corporate law, there is no basis for him, as a member of an LLC, to be personally

liable for the debts of the LLC. He further asserts on appeal that Ms. Ogea did not

allege in her petition that he committed fraud with regard to the slab; therefore, he

contends no basis exists in the petition to pierce the corporate veil and hold him

personally liable to her.

Appellate courts review the denial of an exception of no cause of action de

novo on appeal to determine “whether, in the light most favorable to plaintiff and

with every doubt resolved in plaintiff‟s behalf, the petition states any valid cause of

action for relief.” ARC Indus., L.L.C. v. Nungesser, 11-331, 11-332, p. 3 (La.App.

3 Cir. 10/5/11), 74 So.3d 864, 867. No evidence can be introduced regarding an

exception of no cause of action. La.Code Civ.P. art. 931. The defendant must

prove that the well-pleaded allegations contained in the petition, when accepted as

true, do not show the plaintiff is entitled to the relief she seeks. Taylor v. Leger

Constr., LLC, 10-749 (La.App. 3 Cir. 12/8/10), 52 So.3d 1098.

In her petition, Ms. Ogea alleges that there are numerous defects with the

concrete slab and foundation of her home caused by poor drainage and substandard

workmanship, that Mr. Merritt “performed the dirt work for the foundation of the

home,” that Mr. Merritt failed to complete several items according to the

specifications for her home and altered or added other items at his own discretion

without her permission, that Mr. Merritt is liable to her for “constructing the home

in a substandard workmanlike manner,” and that Mr. Merritt “is personally

responsible to [her] for all damages because he personally performed work in the

construction of the home and supervised all aspects of the home.” In her petition,

Ms. Ogea also asserts that she discussed with Mr. Merritt complaints she had with

5

the construction, e.g., failure to complete several items in the blue prints according

to the specifications therein, but he refused to address them.

The defendants contend that the trial court‟s denial of Mr. Merritt‟s

exception ignores the basic premise of personal immunity for corporate

shareholders except in very limited circumstances. Further, they assert this case is

not one of those limited circumstances. In support of their argument, the

defendants direct us to Curole v. Ochsner Clinic, L.L.C., 01-1734, pp. 7-8 (La.App.

4 Cir. 2/20/02), 811 So.2d 92, 97, where the court concluded that “[t]o have

meaning within the entire statute, the phrase „or other negligent or wrongful act by

such person‟ must refer to acts done outside one‟s capacity as a member, manager,

employee, or agent of the limited liability company.” The defendants urge that

Mr. Merritt‟s alleged acts of negligence were not within the scope of subsection

(D) because all the work he performed was to fulfill Merritt LLC‟s contractual

obligations to Ms. Ogea. They conclude that because any negligence or wrongful

acts by him were not “outside” his capacity as a member of Merritt LLC, he cannot

be held personally liable for those acts.

To decide this issue, we begin with the LLC law which defines a limited

liability company as an unincorporated association, not as a corporation. La.R.S.

12:1301(10).2 Next, we see that La.R.S. 12:1320, which is entitled “Liability to

third parties of members and managers,” contains three very important limitations.

First, the liability of LLC members is governed “solely and exclusively by

the provisions of this Chapter.” La.R.S. 12:1320(A) (emphasis added). Second,

no member of an LLC is liable for the debt of the LLC, “[e]xcept as otherwise

specifically set forth in this Chapter.” La.R.S. 12:1320(B) (emphasis added).

2
After defining “limited liability company”, the legislature mandates: “No limited
liability company organized under this Chapter shall be deemed, described as, or referred to as
an incorporated entity [or] corporation.” La.R.S. 12:1302(10).
6

Lastly, “Nothing in the [LLC law] shall be construed as being in derogation of any

rights which any person may have against” an LLC member for “fraud . . . [or] any

breach of professional duty or other negligent or wrongful act by such person.”

La.R.S. 23:1320(D).

When a law is clear and unambiguous and its application does not
lead to absurd consequences, the law must be applied as written, and
no further interpretation may be made in search of the legislative
intent. La. C.C. art. 9; La. R.S. 1:4. Unequivocal provisions are not
subject to judicial construction and should be applied by giving the
words their generally prevailing meaning. La. C.C. art. 11; La.R.S.
1:3; Oubre v. Louisiana Citizens Fair Plan, 11-0097, p. 12
(La.12/16/11), 79 So.3d 987, 997. Further, laws on the same subject
matter are to be interpreted in reference to each other. La. C.C. art.
13.

Duckworth v. La. Farm Bureau Mut. Ins. Co., 11-2835, p. 6 (La. 11/2/12), ___

So.3d ___, ___.

The LLC law defines an LLC as an unincorporated association, not as a

corporation, and specifically provides that LLC members are liable for their own

negligent or wrongful acts. It further specifically limits the parameters for

deciding the liability of an LLC member to the LLC law itself, thereby precluding

consideration of other laws that may be similar in some way. We conclude,

therefore, that the legislature intended for the personal liability of LLC members of

LLCs to be different from the personal liability of corporate shareholders. In our

view, the legislature limits the personal liability of an LLC member for the debts,

obligations, or liabilities of the LLC unless the debt, obligation, or liability at issue

is the result of the member‟s own personal actions as specified in La.R.S.

12:1320(D). See Matherne v. Barnum, 11-827 (La.App. 1 Cir. 3/19/12), 94 So.3d

782, writ denied, 12-865 (La. 6/1/12), 90 So.3d 442; W.J. Spano Co., Inc. v.

Mitchell, 05-2115 (La.App. 1 Cir. 9/15/06), 943 So.2d 1131; Regions Bank v. Ark–

7

La–Tex Water Gardens, L.L.C., 43,604 (La.App. 2 Cir. 11/5/08), 997 So.2d 734,

writ denied, 09-16 (La. 3/13/09), 5 So.3d 119.

In Matherne, 94 So.3d at 788 (footnotes omitted), the court reasoned:

Without a doubt, statutory law found in La. R.S. 12:1320(B)
insulates a member of a limited liability company from personal
liability for a debt or obligation of the limited liability company.
However, Subsection D of this same statute clearly provides a cause
of action against a member of a limited liability company because of
any breach of professional duty, as well as for any fraud or other
negligent or wrongful act by such person. W.J. Spano Co., Inc. v.
Mitchell, 2005–2115 (La.App. 1st Cir.9/15/06), 943 So.2d 1131,
1132–33. Thus, members of limited liability companies generally may
not be assessed with personal liability for the debts and obligations of
their limited liability company to third parties, unless there is proof of
negligence or wrongful conduct by that person. Regions Bank v. Ark–
La–Tex Water Gardens, L.L.C., 43,604 (La.App.2d Cir.11/5/08), 997
So.2d 734, 740, writ denied. 2009–0016 (La.3/13/09), 5 So.3d 119.
Whether a contractor has properly performed an obligation is a
question of fact. Imperial Chemicals [Ltd. v. PKB Scania (USA), Inc.,
04-2742 (La.App. 1 Cir. 2/22/06), 929 So.2d 84, writ denied, 06-665
(La. 5/26/06), 930 So.2d 31.] To encourage commerce, the legislature
has limited personal liability for some debts incurred or acts
performed on behalf of business entities. However, La. R.S. 12:1320
was not intended to shield professionals from liability for personal
negligence. Regions Bank, 997 So.2d at 740.

The defendants argue that Mr. Merritt should be treated differently from the

defendant members in Matherne, Spano, and Regions Bank because he is not a

professional. This argument fails. Section D specifically references “any breach

of professional duty” and “any . . . other negligent or wrongful act” by a member.

Furthermore, Section D makes no distinction between professional members and

non-professional members.

Accepting as true Ms. Ogea‟s allegations that Mr. Merritt engaged in acts

that were negligent with regard to the construction of her home, we find the

petition states a cause of action against him under La.R.S. 12:1320(D).

Accordingly, the trial court did not err in denying Mr. Merritt‟s Exception of No

Cause of Action.

8

On appeal, Mr. Merritt also argues that pursuant to La.R.S. 12:1320(C), the

claims against Merritt LLC and Mr. Merritt cannot be presented in the same suit.

This argument is the substance of an exception of improper cumulation of actions,

which must be presented in the form of a dilatory exception. La.Code Civ.P. art.

926(A). Objections that can be raised in a dilatory exception are waived if not so

plead. La.Code Civ.P. art. 926(B). No dilatory exception was filed herein;

therefore, Mr. Merritt‟s objection to claims being prosecuted against him and

Merritt LLC in one suit was waived and will not be addressed here.

Mr. Merritt’s Personal Liability

Mr. Merritt does not assign error with the trial court‟s factual finding that he

was negligent in the work he performed on Ms. Ogea‟s house. Therefore, as

discussed above, we find no error with the trial court‟s assessment of personal

liability to Mr. Merritt. Mr. Merritt also does not assign error with the trial court‟s

finding that he committed fraud when he represented to Ms. Ogea that Merritt LLC

had insurance but failed to produce proof of such insurance. Accordingly, fraud is

another basis for Mr. Merritt‟s personal liability.

Liability under the NHWA

Ms. Ogea notified the defendants by certified mail of her complaints and the

defects she discovered in her home. In her letter, she informed the defendants that

the home was uninhabitable and that she wanted it demolished. The defendants

argue the letter denied them the right to repair Ms. Ogea‟s home as required by the

NWHA. They contend that the letter did not offer Merritt LLC an opportunity to

return to the job site to inspect and repair the alleged defects but foreclosed that

possibility. This argument is premised on the sentence in Ms. Ogea‟s letter which

states: “[Ms. Ogea] does not wish or intend to live in this house” and the lack of a

time frame within which to address her complaints.
9

This issue was not presented at trial. Uniform Rules, Courts of Appeal, Rule

1-3 states that issues not submitted to the trial court are not generally reviewable

on appeal, “unless the interest of justice clearly requires otherwise.” Mr. Merritt

represented himself and Merritt LLC at trial; therefore, we review this issue in the

interest of justice.

In her petition, Ms. Ogea asserted that she discussed with Mr. Merritt

various complaints that she had with the home, but he refused to address them.

She reiterated these complaints in her testimony. Ms. Ogea‟s attorney outlined the

defects Mr. Norman identified with the slab of the home in a letter to Mr. Merritt‟s

counsel. The letter concluded:

As Mr. Norman indicates in his report, it is possible to attempt
to make repairs to the slab by underpinning it around the perimeter to
stabilize it. However, he advised that, at best, it could only be
stabilized and that it could not be leveled to the original level. This
would result in a home that would be stabilized, but unlevel. This
means Ms. Ogea would constantly have problems with cabinet doors,
doorways, moldings, doorframes, etc. . . . due to the slab and
foundation not being level, which is unacceptable to her in a new
home.

In light of the multiple problems described above with the
foundation and slab of the home, it is sub-standard in quality and is
unacceptable to Ms. Ogea. She does not wish or intend to live in this
home because of the substandard quality and demands that she be
refunded her money and the home be destroyed.

Please forward this to your insurance carrier and ask that they
contact me within 30 days in an attempt to resolve this. If we have not
heard a response in that time, we will be forced to file a lawsuit
shortly thereafter.

Ms. Ogea urges that her letter satisfies the requirements of Section 3145.

She testified that before she knew the slab was a problem she had complained to

Mr. Merritt about other work that was done improperly or items that needed repair

and that he refused to address her complaints, including his failure to build some

items in the home according the blue print specifications. Additionally,

10

Ms. Ogea‟s letter related Mr. Norman‟s opinion that while the slab could possibly

be repaired, such repair would only result in the slab being stabilized, but the slab

would not be level. Therefore, the problems with the home functioning properly

would not be resolved because Ms. Ogea would continuously have problems with

cabinet doors, doorways, etc. being unlevel. Mr. Norman clarified at trial that it

would be more cost effective to destroy the home and rebuild it than attempt to

repair it.

In Graf v. Jim Walter Homes, Inc., 97-1143, p. 5 (La.App. 1 Cir. 5/15/98),

713 So.2d 682, 687 (emphasis added), the first circuit explained that the NHWA

“was enacted to provide warranties for the purchasers and occupants of new homes

in Louisiana. It was not enacted to allow a builder to shield himself from liability

for numerous defects, which he had actual knowledge and actual time to remedy,

merely because the defects may not have been itemized in a timely written notice.”

We agree with Ms. Ogea that her letter did not preclude Merritt LLC an

opportunity to repair. Ms. Ogea notified Merritt LLC of her complaints and did

not file suit for more than three months thereafter. She did not reject any requests

to inspect the slab to determine the veracity of Mr. Norman‟s opinion that the slab

could not be satisfactorily repaired to remedy the problems he identified, nor did

she refuse any attempt to address her complaints. Moreover, she never performed

any work on the slab that denied the defendants the opportunity to repair the slab.

Another consideration here is that the law does not require one to do a vain and

useless thing. Tarver v. Martin, 322 So.2d 829 (La.App. 3 Cir.); writ denied, 323

So.2d 468 (La.1975); Kern v. River City Ford, Inc., 98-407 (La.App. 1 Cir.

2/19/99), 754 So.2d 978. Allowing Mr. Merritt an opportunity to repair the slab

would have been a vain and useless act because it could not be repaired to remedy

all the problems that resulted from its defects. Mr. Norman testified that the
11

problems which could not be repaired, e.g., the slab being unlevel, would continue

to worsen with time. His testimony was unrefuted.

Accordingly, we find that Ms. Ogea did not refuse Merritt LLC and/or

Mr. Merritt the opportunity to repair the slab. Furthermore, we find that on the

record before use, allowing the defendants the opportunity to repair the slab would

have been a vain and useless act which the law does not require.

Was Mr. Merritt a “Builder” as defined by the New Home Warranty Act?

Mr. Merritt argues that the trial court erred in finding him personally to be a

“builder” under the NHWA. We need not address this assignment because

Mr. Merritt‟s personal liability arises from his personal negligence as a member of

Merritt LLC; therefore, whether he personally meets the definition of builder under

the NHWA has no bearing on his liability.

Building Standards

Mr. Merritt argues Ms. Ogea failed to prove that he and/or Merritt LLC

failed to comply with building standards as required in La.R.S. 9:3144.

Mr. Norman testified:

We specifically found that the grade beam was inadequate, that
it was much thinner, or less in height required by minimum
requirements for good building practices, for code, any code you want
to pick. I picked the International Building Code [IBC]. You can use
the Southern Building Code, or the Uniform Building Code. That
footing, that grade beam, the perimeter footing, is not adequate for
good building design and to support the foundation underneath this
house.

A similar argument was rejected in Thorn v. Caskey, 32,310 (La.App. 2 Cir.

9/22/99), 745 So.2d 653, where the defendant argued that the plaintiffs failed to

meet their burden of proof because the building code relied on by the plaintiffs‟

expert was not introduced at trial. In Caskey, the plaintiffs‟ expert testified that the

defendant‟s work did not comply with the Southern Building Code because he

12

used 2x6‟s in the ceiling joists instead of 2x8‟s. The court held that although the

code was not introduced into evidence, the expert‟s testimony satisfied the

requirements of the NHWA. The court did not state that the expert identified the

specific standard in the Southern Building Code that was not met; rather, it stated

the expert testified why the specification was not met.

Mr. Norman did the same as the expert in Caskey, when he explained “the

grade beam was inadequate . . . it was much thinner, or less in height required by

minimum requirements for good building practices, for . . . any code.” He then

enumerated three codes under which the grade beam did not meet building

standards. For these reasons, we find no error with the trial court‟s finding that

Ms. Ogea proved the construction of the slab violated of that code, despite the

failure to introduce the actual document.

Damages

Mr. Merritt next argues that the trial court awarded Ms. Ogea damages that

are not allowed by law, are not sustained by the evidence, or are duplicative. At

the conclusion of the trial, the trial court stated that Ms. Ogea‟s “total amount of

losses including the home and consequential damages, was $261,495.40,” then

instructed Ms. Ogea‟s attorney to “compute that amount less any appliance

expenditures, less any floor expenditures, less any bath accessories, less any

hardware finish,” noting the contract specifically excludes these items. The trial

court also instructed that demolition costs of $18,605.00 be reduced by $2,500.00

for the cost of the driveway because the driveway was also excluded from the

contract. Lastly, the trial court ordered that the final payment of $8,800.00 owed

by Ms. Ogea to Merritt LLC be deducted from the total losses and consequential

damages. The judgment in favor of Ms. Ogea awards her $221,262.11 in damages.

13

Under the terms of the construction contract, Ms. Ogea was responsible for water,

gas, sewer, electric utilities, and insurance. The contract expressly excluded

appliances, flooring and baseboards, all cabinets, countertops, and shelving units or

built-ins, landscaping, driveways and dirt work associated with driveways, and

hardware finish. 3 The defendants argue that the trial court awarded Ms. Ogea

damages for a number of items that would be usable even if the house were

demolished. Specifically, the defendants assert the following amounts were

erroneously included in the amount awarded to Ms. Ogea:

$ 2,968.50 warranty and price for refrigerator, range, dish washer,
icemaker, hose, tubing, and cord

5,272.00 air conditioner

5,194.05 homeowners‟ insurance

622.00 flood insurance, despite the fact that as a
homeowner, she would bear these costs because
she had the insurable interests in the home.

10,169.00 “Felix Driveway and Terrace”

930.00 water

4,549.87 electric

13,200.00 rent

28.06 taxes

90.00 “water leak from meter”

88,870.34 mobile home

$131,893.82

Section 3144 of the NHWA delineates damages that are excluded under the

Act. A number of those exclusions are applicable here and, therefore, affect the

damage awards made by the trial court, specifically:
3
The contract defines “hardware finish” to include “knobs, pulls, hinges, catches, locks,
drawer slide accessories or other items that are normally installed subsequent to final painting.”

14

(4) Any damage to the extent it is caused or made worse by any of the
following:

(a) Negligence, improper maintenance, neglect or
improper operation by anyone other than the builder or any
employee, agent, or subcontractor of the builder.

....

(5) Any loss or damage which the owner has not taken timely
action to minimize.

....

(14) Bodily injury or damage to personal property.

(15) Any cost of shelter, transportation, food, moving, storage,
or other incidental expense related to relocation during repair.

(16) Any defect not reported in writing by registered or certified
mail to the builder or insurance company, as appropriate, prior to the
expiration of the period specified in Subsection A of this Section for
such defect plus thirty days.

(17) Consequential damages.

....

(19) Mold and mold damage.

La.R.S. 9:3144.

In light of provisions (4)(a), (5), and (19), we find that the air conditioner,

homeowners‟ insurance, flood insurance, and electricity were expenses to preserve

the home and prevent deterioration of the structure; therefore, they are recoverable.

The appliances and warranty expenses were excluded by the contract and

specifically excluded by the trial court from Ms. Ogea‟s calculation of her

damages. The defendants have not shown these expenses were not subtracted from

Ms. Ogea‟s calculation of damages in the trial court‟s damage award.

Accordingly, we need not address them. The driveway expense must also be

excluded for the same reasons; however, the trial court did not order that it be

excluded. Therefore, we exclude it now.
15

We note that while the contract did not exclude the terrace, a front porch was

specifically included in the contract. Additionally, the cost for the driveway and

terrace are stated as one price. For these reasons, the total cost of $10,169.00 for

the driveway and terrace must be deducted. We find that the costs for water, taxes,

and a water leak are consequential damages which are excluded under Section

3144(17). The cost of shelter related to relocation during repair is specifically

excluded. La.R.S. 3144(15). Therefore, we also find that the rent Ms. Ogea paid

and the cost of the mobile home she purchased are damages excluded by this

section and are duplicate damages because Ms. Ogea‟s damage award refunds all

the monies she paid the defendants.

For these reasons, we amend the trial court‟s damage award of $128,302.71

as follows:

$221,262.11

− 10,169.00 driveway and terrace

− 13,200.00 rent

− 88,870.34 mobile home and associated expenses

− 930.00 water

− 28.06 taxes

− 90.00 water leak

$128,302.71

Reconventional Demand Award

The defendants seek an increase in the damages the trial court awarded on

Merritt LLC‟s reconventional demand from $8,800.00 to $8,805.00, the amount

plead in its reconventional demand, and to increase the interest rate from legal

interest to 12%, the rate provided in the contract. In the reconventional demand,

the defendants alleged that Ms. Ogea owed $8,805.00 together with legal interest.
16

Accordingly, we amend the judgment to increase the award from $8,800.00 to

$8,805.00. Merritt LLC sought to recover legal interest, not 12% interest as

provided in the contract; therefore, we find the trial court did not err awarding legal

interest.

Attorney Fees

Ms. Ogea’s Award

The defendants urge that the trial court‟s award of attorney fees is too high.

The NHWA allows an owner to recover for “actual damages, including attorney

fees and court costs, arising out of” a builder‟s violation of the warranties it

provides. La.R.S. 9:3149(A). The judgment awards Ms. Ogea $15,500.00.

Whether an award for attorney fees is reasonable is based upon the facts of

the case before the court. Cupit v. Hernandez, 45,670 (La.App. 2 Cir. 9/29/10), 48

So.3d 1114, writ denied, 10-2466 (La. 12/17/10), 51 So.3d 7. “The trial court has

discretion to determine the amount of an attorney‟s fee based upon the court‟s own

knowledge, the evidence, and the court‟s observation of the case and the record.”

Id. at 1121-22. Specific evidence of hours worked or hourly rates charged is not

required because the trial court often knows or has a good idea of time spent on

pre-trial issues and because the record also indicates the services rendered by

counsel. Id.

The trial court‟s reasons for ruling show that it was familiar with the issues

presented by this case and with the specific pre-trial work performed by

Ms. Ogea‟s counsel to address at least some of the issues, e.g., insurance coverage.

Specifically, the trial court observed the recalcitrance of Mr. Merritt to cooperate

with discovery requests and in his deposition on this issue. We find no error with

the trial court‟s award of $15,500.00 in attorney fees.

17

Merritt LLC’s Award

Citing a provision in Ms. Ogea‟s contract, the defendants seek an award of

attorney fees with legal interest from the date of judgment for investigation of the

matter, filing an answer and successful Reconventional Demand and for pursuing

this appeal. The cited provision reads, in pertinent part: “the prevailing part shall

be entitled to an award of reasonable attorney fees.” Merritt LLC alleged

entitlement to attorney fees in its Reconventional Demand. However, no evidence

of attorney fees incurred by the defendants in connection with this matter is in the

record, and Mr. Merritt represented himself and Merritt LLC at trial.

One who represents himself is not entitled to recover attorney fees because

he has not incurred that expense. Lambert v. Byron, 94-854 (La.App. 3 Cir.

2/8/95), 650 So.2d 1201. Accordingly, Mr. Merritt and/or Merritt LLC can only

recover attorney fees paid to counsel. No evidence of attorney fees incurred for

representation before trial or of actual work performed by counsel who represented

the defendants prior to trial is in the record. Without knowledge of the work

performed by counsel in the trial court, no award can be made for such fees.

We must now determine whether the defendants are entitled to attorney fees

for the work performed on appeal. A prevailing party is defined, in part, by

Black‟s Law Dictionary, 1069 (5th ed. 1987), as “[t]he party to a suit who

successfully prosecutes the action or successfully defends against it, prevailing on

the main issue.” The defendants prevailed in having their Reconventional Demand

damage award slightly increased and in having Ms. Ogea‟s damage award

significantly reduced. Accordingly, we award $1,500.00 in attorney fees to the

defendants.

18

DISPOSITION

For the reasons stated, the judgment of the trial court is amended to reduce

the award of general damages from $221,262.11 to $128,302.71 and to award

Merritt LLC and Travis Merritt attorney fees in the amount $1,500.00, together

with interest thereon from the date of this opinion. The judgment is affirmed in all

other respects. All costs of this appeal are assessed to Merritt LLC and Travis

Merritt.

AFFIRMED AS AMENDED.

19