Bayou Rapides Corp. v. Michael Dole, Et Ux.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-906

BAYOU RAPIDES CORPORATION

VERSUS

MICHAEL AND ADRIENNE DOLE

**********
APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, DOCKET NO. 242,928
HONORABLE GEORGE C. METOYER, JR., DISTRICT JUDGE
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Sylvia R. Cooks, Billy H. Ezell and Phyllis M. Keaty,
Judges.
AFFIRMED.

Charles D. Elliott
Aaron L. Green
Vilar & Elliott, LLC
P.O. Box 12730
Alexandria, LA 71315-2730
(318) 442-9533
ATTORNEYS FOR DEFENDANTS/APPELLANTS:
Michael and Adrienne Dole

Ronald J. Fiorenza
Eli J. Meaux
Provosty, Sadler, Delauny, Fiorenza & Sobel
934 Third Street, Suite 800
Alexandria, LA 71301
(318) 445-3631

Misty Shannon Antoon
Antoon Law Firm
600 Desoto Street
Alexandria, LA 71301
(318) 448-8111
ATTORNEYS FOR PLAINTIFF/APPELLEE:
Bayou Rapides Corporation

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Dr. Michael Dole and his wife Adrienne Dole (the Doles) contacted Bayou

Rapides Construction (BRC) in April 2010, to discuss construction of a new, high-

end, 11,900-square-foot home. The Doles contacted BRC through Bobby Hunter

(Hunter), an employee of BRC with whom the Doles were acquainted. Hunter had

about forty years of experience in home building, and his father had over sixty

years of experience in construction. Both worked for BRC. The Doles brought

their construction plans to BRC, and, based upon those plans, BRC prepared

various estimates for construction of the Doles’ home. Hunter and Chris Antoon

(Antoon), representing BRC, met with the Doles and proposed to build the home

on a cost-plus arrangement. BRC proposed to build the home for an 8% profit

above the total cost of construction. The parties exchanged emails regarding

BRC’s proposals but, surprisingly, neither party reduced anything to writing,

despite the fact that the initial proposed construction agreement involved building a

$1,700,000.00 home. In the end, after many changes and additions to the project,

the Doles completed the project for a total cost of $2,413,513.14.

Construction began on the home in 2010, and for the first several months of

the project BRC billed at its cost-plus-8% calculation and the Doles paid

accordingly. By December 2010, the Doles became uncomfortable with the cost-

plus billing and asked BRC to switch to a fixed-price contract. BRC submitted a

proposal to the Doles via email to complete the project for a fixed sum based on

the plans and specifications provided to BRC by the Doles. Again, work

proceeded without any written agreement. BRC submitted a work schedule stating

the proposed completion time frame for various aspects of the construction. As

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work progressed, BRC submitted, and the Doles paid, periodic draw requests. The

Doles authorized payment of the draws, and the bank funding the project paid

without objection. After paying several draw requests without question, the Doles

started asking for more detailed information concerning draw requests. BRC

provided such information and allowed Dr. Dole the discretion to pay the draw

request in his own time. On April 27, 2011, BRC suggested the parties return to a

cost-plus arrangement. According to BRC this suggestion was made as a way to

avoid time-consuming change orders by the Doles which it claimed were delaying

the project. The Doles maintain that they and their interior designer were not the

cause of delays, though they admitted to making several changes in the original

plans as the project proceeded. In an email to Antoon dated July 14, 2011, Dr. Dole

acknowledged that “due to the nature of the job, and the number of changes that

Adrienne and [he] requested” BRC asked to change to a cost-plus arrangement.

The Doles did not want to revert back to a cost-plus arrangement. The Doles admit

that at least $900,000.00 of the additional expenditures on their house and guest

house were due to their own changes from original plans and is not owed by BRC.

On June 22, 2011, the Doles received a draw request from BRC for

$35,000.00. Although Dr. Dole had approved and paid BRC’s draw requests he

demanded a full audit of all previously paid invoices and refused to pay the

$35,000.00 draw request until a full audit was performed. BRC and the Doles

exchanged emails wherein it became apparent the Doles were not going to pay any

more funds without a full forensic audit. The Doles made it known to BRC that

they would hire workers to finish the construction if BRC did not acquiesce to their

demands. BRC, convinced that the Doles were not going to pay the requested

draw, stopped working on the project. The Doles immediately hired the same sub-

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contractors who had been working on the house and eventually completed the

house and guest house almost a year later for over $1,000,000.00 more than they

had already paid BRC. BRC sued the Doles for the outstanding amount owed for

labor and materials in the construction of their home. The Doles filed a

reconventional demand asserting they were overcharged for certain labor costs and

alleging the work performed by BRC was sub-standard. In addition to these

damages the Doles sought recovery for non-pecuniary damages allegedly caused

by BRC abruptly halting construction of the Doles’ home.

Following a bench trial, the trial court ruled in favor of BRC finding there

was never a contractual agreement as there had never been a meeting of the minds

between the parties. The trial court awarded BRC $50,000.00 for its unjust

enrichment claim, and denied all of the Doles’ reconventional demands. The

Doles appeal alleging ten assignments of error.

LEGAL ANALYSIS

The Doles’ Assignments of Error.

The Doles allege ten assignments of error:

1. The trial court committed legal error when it found that there was

“no meeting of the minds to form a binding contract,” . . . .

2. The trial court committed legal error when it failed to find that
BRC breached its fixed price contract to complete the home when
BRC abandoned the Project solely because Dole questioned the
timing of an unscheduled draw request.

3. The trial court committed legal error when it dismissed all of
Dole’s claims, including claims of poor and defective
workmanship . . . .

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4. The trial court committed legal error when it failed to acknowledge
the duties and responsibilities a custom home builder owes to the
homeowner, especially in the face of unrefuted expert testimony.

5. The trial court committed legal error when it failed to apply the
rules governing a contractor’s burden and obligations under a “cost
plus” contract.

6. The trial court committed legal error when it failed to recognize
that the Louisiana Unfair Trade Practices Act prohibited BRC’s
conduct and practices during this Project.

7. The trial court committed legal error when it disregarded
applicable law and failed to award Dole damages for the cost to
complete and repair their home, when BRC breached its contract
with Dole and much of the work it did was defective.

8. The trial court committed legal error when it failed to award Dole
damages for non-pecuniary loss when this custom home was
planned by Dole for over 20 years, was clearly intended to be their
“dream home” and was meant to gratify a non-pecuniary interest.

9. The trial court committed legal error when it awarded BRC
$50,000.00 without legal basis and contrary to the evidence offered
at trial.

10. The trial court committed legal error when it denied Dole’s
dilatory exception of vagueness and motion to strike, when BRC
raised a plethora of vague claims and/or affirmative defenses in
summary fashion without sufficient factual allegations.

No Meeting of the Minds, No Contract.

It is “well-settled” law that “the existence of a contract is a finding of fact,

subject to the manifest error standard of review.” Mark A. Gravel Props., LLC v.

Eddie’s BBQ, LLC, 14-46, p. 7 (La.App. 3 Cir. 5/7/14), 139 So.3d 653, 658, (citing

Dubois Const. Co. v. Moncla Const. Co., Inc., 39,794 (La.App. 2 Cir. 6/29/05),

907 So.2d 855). Thus, this court cannot set aside the trial court’s finding that no

contract existed between these parties unless we find the trial court was clearly

wrong or manifestly erroneous. Coffman Homes, L.L.C. v. Sutherland, 10-178

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(La.App. 5 Cir. 2/15/11), 60 So.3d 52, writ denied, 11-10111 (La. 6/24/11), 64

So.3d 223.

Louisiana Civil Code Article 1906 provides: “A contract is an agreement by

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

Louisiana Civil Code Article 1927 provides:

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.

In Gravel, 139 So.3d at 657-58 (emphasis added) (alterations in original) we

explained what is necessary for the formation of a contract:

“A contract is formed by the consent of the parties established
through offer and acceptance.” La.Civ.Code art. 1927. In Philips v.
Berner, 00–103, p. 5 (La.App. 4 Cir. 5/16/01), 789 So.2d 41, 45, writ
denied, 01–1767 (La.9/28/01), 798 So.2d 119, the fourth circuit
discussed contract formation, stating:
Four elements are necessary for formation of a
contract in Louisiana: (1) capacity, (2) consent, (3)
certain object, and (4) lawful cause. Leger v. Tyson
Foods, Inc., 95–1055 (La.App. 3 Cir. 1/31/96), 670 So.2d
397.

The law has long been clear that in order to find
that there was an agreement between the parties and have
consent pursuant to [La. Civ.Code] art.1927, the court
must find that there was a meeting of the minds of the
parties. See. [sic] Buruzs v. Buruzs, 96–1247 (La.App. 4
Cir. 12/27/96), 686 So.2d 1006. Furthermore, it is horn
book law that the consent of the parties is necessary to
form a valid contract and where there is no meeting of the
minds between the parties the contract is void for lack of
consent. Stockstill v. C.F. Industries, Inc., 94–2072

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(La.App. 1 Cir. 12/15/95), 665 So.2d 802, 820; Howell v.
Rhoades, 547 So.2d 1087, 1089 (La.App. 1 Cir.1989).

The trial court, after considering the evidence and testimony, concluded

there was no meeting of the minds and therefore no contract between the parties

regarding the construction of the Doles’ home. After reviewing the record we

cannot say the trial court manifestly erred in reaching this conclusion. Both BRC

and Dr. Dole are sophisticated, experienced, educated parties. Yet, the record

reveals there was no written contract governing the parties’ rights and obligations

in the construction of this high-end residence and guest-house which in the end

cost over $2,000,000.00 to construct. The parties exchanged proposals and bids by

email and proceeded to the construction and payment for construction without ever

confecting a written contract. It is no wonder the project was fraught with delays

and misunderstandings, and eventually ended with the Doles becoming their own

contractors directly employing the same subcontractors performing the work for

BRC. Virtually all of the subcontractors were introduced to the Doles by BRC.

When two permissible views of evidence exist, the factfinder's
choice between them cannot be manifestly erroneous or clearly
wrong. Stobart v. State Department of Transportation and
Development, 617 So.2d 880, 883 (La.1993). 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.
Id. at 882. The reviewing court may not disturb reasonable
evaluations of credibility and reasonable inferences of fact when
viewed in light of the record in its entirety even though it feels its
evaluations are more reasonable. Id. Even though an appellate court
may feel its own evaluations and inferences are more reasonable than
the factfinder’s, reasonable evaluations of and reasonable inferences
of fact should not be disturbed upon review where conflict exists in
testimony. Id. However, where documents or objective evidence so
contradict the witness's story, or the story itself is so internally
inconsistent or implausible on its face, that a reasonable factfinder
would not credit the witness’s story, the court of appeal may find
manifest error or clear wrongness even in a finding purportedly based
on a credibility determination. Id. If the trial court or jury’s findings
are reasonable in light of the record reviewed in its entirety, the court

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of appeal may not reverse, even if convinced that had it been sitting as
the trier of fact, it would have weighed the evidence differently. Id.

Philips v. Berner, 00-103, pp. 3-4 (La.App. 4 Cir. 5/16/01), 789 So.2d 41,

44-45, writ denied, 01-1767 (La. 9/28/01), 798 So.2d 119.

Louisiana Civil Code Article 1908 provides: “A contract is bilateral, or

synallagmatic, when the parties obligate themselves reciprocally, so that the

obligation of each party is correlative to the obligation of the other.”

In a bilateral contract, the obligation of one party is the other party’s cause

for the contract. In this case, the record reveals bids and proposals but no

established understanding as to payment, risk, object, or cause, all essential

elements of a binding contractual agreement. Even the very nature of the supposed

contract has been disputed by the parties from the inception of their relationship.

Based upon a “proposed bid” e-mailed to the Doles from Antoon on April 20,

2010, the Doles maintain that the agreement was a fixed-price contract. The email

from Antoon dated April 20, 2010, sent to “Michael Dole” was captioned “Dole

Proposal” and first states: “Mike, How does this look to you? Call or email if you

have any questions, comments, etc. If this is ok, let me know. I will send you one

more cost plus bill through the end of the pad preparation (April 17). Thanks,

Chris.” The email next sets forth the caption “Dole Proposal- 4/20/10. Bayou

Rapides Corporation proposes to supply all material [sic] and labor for the

construction of the residence as defined by Bill Powell, Architect in the set of

construction drawings dated November 16, 2009. The total price excluding

allowances, which are defined later in this proposal, is $1,785,000. This includes

the following:” (emphasis added). The proposal then simply sets forth a list of

general categories for which BRC proposes to supply materials and labor:

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Plumbing (not including fixtures); HVAC; Electrical (not including
fixtures); Painting; Foundation (excluding already completed pad);
Masonry (including bricks); framing, drywall, insulation, trim, and
interior millwork; Cabinets and vanities; Windows and doors;
Roofing; Initial termite treatment; Debris disposal; Tile installation
labor; Floors-carpet on the second floor, wood or tile on the first floor;
Iron work; Rental Equipment; Wine room under the stairs (not defined
in the plan but included in our price).
Allowances not included in the above total include:
Plumbing fixtures - $30,000; Electrical fixtures- $15,000; Tile and
countertops- $75,000; Door and Cabinet hardware-$15,000;
Appliances-$50,000; and Audio and Video- $30,000.
Draw requests-including allowances: 1st draw-Completed foundation-
$200,000; 2nd draw-Completed framing not including windows and
doors-$200,000; 3rd draw-Installation of exterior windows and doors-
$200,000; 4th Draw-Completed drywall, electrical, HVAC and
plumbing roughed in-$250,000; 5th draw-Completed roof and exterior
brick-$300,000; 6th draw- Completed fireplaces, concrete columns,
interior doors-$100,000; 7th draw-Completed exterior paint-$50,000;
8th draw-Completed cabinets and vanities-$100,000; 9th
There is no response from the Doles and no signature on any document

regarding this proposed bid. Moreover, many issues normally expected to appear

in a construction contract for a project of this magnitude are absent. After work

began, following submission of this proposal to the Doles, BRC submitted to Dr.

Dole and the Doles’ banker itemized invoices for payment, which the Doles paid

without question. BRC submitted the same kind of itemized invoices to Dr. Dole

and the Doles’ banker on June 2, 2010, which falls in the period of time in which

the Doles assert the project was operating under a cost-plus contract. The evidence

shows the Doles and BRC had an entirely different understanding of how the cost-

plus arrangement would be calculated. BRC maintained the figure was arrived at

by calculating the hours of labor for its employee times the number of hours

worked, plus all overhead expenses for that person to do his job, such as the cost of

insurance, workers’ compensation insurance, equipment rental, and so forth, plus

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8% profit. The Doles understood cost-plus to mean the hourly wage of a worker

times the number of hours worked plus 8% profit. Nowhere in any agreement

between the parties is the method of calculation for the cost-plus arrangement

defined or detailed.

The Doles asserted at trial, and argued in brief, that “BRC submitted a fixed-

price written contract to Dole to complete the Project for $700,000” and “Dole

agreed to this fixed price contract.” This, says the Doles, was the “contract” in

force and effect when BRC ceased construction. The document referred to, sent by

BRC to the Doles, is captioned “Bid to Complete Dole House Job.” BRC sets

forth in this proposal that this bid “include[s] all work from last invoice emailed

11/23/2010” but “will not include porch floor front or back, but does include

upstairs balcony” and further sets forth “[a]ny changes by any subs going forward

will be billed directly to the Doles unless reviewed and approved by Chris Antoon

and Michael Dole.” The proposal next sets forth a list of “Assumptions for this

bid” including “elaborate assumptions on the master closet, with minimal millwork

required on the other closets.” The bid proposal also states as to the guest house

that it “will be painted with floor installed (already priced at Floors Unlimited).

No other work is included in this price. Will price the rest (trim/cabinets, etc.)

when selected.” The bid proposal also states “Appliances and plumbing/electrical

fixtures are not included in this price. This amount can be subtracted from the total

if Dr. Dole would rather pay for these items directly.” The proposal also included

a proposed draw schedule for payments that merely sets forth dates and amounts of

draws with no further explanation or detail. This bid proposal submitted by BRC

does not constitute a mutually-consented-to contractual agreement. It is a proposal

that leaves much open to question as to the rights and obligations of each party

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under the proposed agreement. Moreover, during this phase of construction the

Doles repeatedly asked for details as would be common under a cost-plus contract,

not under a fixed-price agreement. Although the Doles maintain there was a fixed-

price contract they admitted at trial that they repeatedly demanded information

from BRC during this phase of construction regarding BRC’s finances and costs

before paying draws in accordance with the draw schedule stated in the proposal,

refusing to abide by the proposed draw schedule. The trial court could reasonably

conclude there was indeed no meeting of the minds.

The Doles also assert the trial court could not find there was no contract, no

meeting of the minds, because BRC made judicial admissions in the pleadings. A

review of the pleadings discloses both parties argued varying and alternative

theories of recovery and defenses. The alleged admissions by BRC to the effect it

believed, among other alternative claims, there was a contractual agreement

between the parties, even if deemed an admitted fact, would not constitute a

judicial admission as such a statement by BRC would not be adverse to its interest

in the case.

A judicial confession by a party, however, does not preclude that
party from denying the correctness of the admission, unless the party
claiming the benefit from the admission has relied on the admission to
his prejudice. Crawford v. Deshotels, 359 So.2d 118 (La.1978).

As this court explained in Leday v. Safeway Ins. Co. of La., 04–
610, pp. 5–6 (La.App. 3 Cir. 11/17/04), 888 So.2d 1084, 1088:

A judicial confession under La.Civ.Code art. 1853
constitutes incontrovertible evidence of a particular issue
and serves to waive the necessity of any further proof on
that issue. Ramelow v. Bd. of Trustees of the [Univ.] of
Louisiana System, 03–1131 (La.App. 3 Cir. 3/31/04), 870
So.2d 415, writ denied, 04–1042 (La.6/18/04), 888 So.2d
184; C.T. Traina, Inc. v. Sunshine Plaza, Inc., 03–1003
(La.12/3/03), 861 So.2d 156. In order for a party’s
statement to constitute a judicial confession, it must be

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an express acknowledgment of an adverse fact. Jones v.
Gillen, 564 So.2d 1274 (La.App. 5 Cir.1990); Sanders v.
Earnest, 34,656 (La.App. 2 Cir. 7/24/01), 793 So.2d 393;
State v. Lamb, 31,919 (La.App. 2 Cir. 5/7/99), 732 So.2d
1270. Additionally, “the adverse party must have
believed the fact was no longer at issue or must have
relied on it, to his detriment.” Lamb, 732 So.2d at 1272;
Alexis v. [Metro.] Life [Ins.] Co., 604 So.2d 581
(La.1992); Jefferson Parish v. [Fid.] & Deposit Co., 95–
951 (La.App. 5 Cir. 4/30/96), 673 So.2d 1238; Jones, 564
So.2d 1274.

Mitchell v. Artcrete, Inc., 09-492, pp. 7-8 (La.App. 3 Cir. 1/13/10), 24 So.3d 1000,

1005 (emphasis added) (alteration in original).

It was not adverse to BRC’s multiple claims for recovery against the Doles

to assert the existence of contractual agreements and in the alternative assert claims

for unjust enrichment. Additionally, any of the claims made in BRC’s original

petition could be and were amended in its supplemental pleadings which we have

found were properly allowed by the trial court in the exercise of its broad

discretion as discussed below.

The Doles Failure to Prove Sub-Standard Work.

The trial court found the work performed by BRC was not substandard. The

evidence supports the reasonableness of this conclusion by the trial court. The

Doles professed in writing seven days after BRC stopped working on the project:

“To date the quality of craftsmanship that BRC has provided is excellent.”

Additionally, we agree with the trial court’s observation that the fact the Doles

used all of the same subcontractors as had worked on their project under BRC’s

supervision is very telling in terms of satisfaction with the work performed during

BRC’s handling of the construction of the Doles’ home. A review of the testimony

concerning the allegedly defective cabinet construction reveals there were two

permissible views of the evidence regarding the allegedly defective cabinets

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making it impossible to find manifest error on the part of the trial court. Moreover,

the Doles destroyed evidence concerning the alleged substandard construction of

cabinetry in their home despite knowing at that time BRC’s attorney wanted to

inspect the allegedly defective cabinetry. The Doles simply failed to convince the

trial court that the work performed by BRC was substandard. The record supports

the trial court’s finding that even the Doles themselves made representations that

BRC’s workmanship was “excellent.”

Louisiana Unfair Trade Practices Act.

The Doles assert “the trial court committed legal error when it failed to

recognize that the Louisiana Unfair Trade Practices Act prohibited BRC’s conduct

and practices during this Project.” This assertion is based upon two factors

according to the Doles: (1) BRC’s abandonment of the project “in order to avoid

the risk of losing money on its fixed price contract,” and (2) “BRC burying hidden

costs into its labor charges during the cost plus contract that Dole never agreed to.”

Both parties rely on this court’s holding in McFadden v. Import One, Inc., 10-952

(La.App. 3 Cir. 2/9/11), 56 So.3d 1212. In that case we discussed application of

the Louisiana Unfair Trade Practices Act, found in La.R.S. 51:1401- 51:1428.

Louisiana Revised Statutes 51:1405(A) merely states: “Unfair methods of

competition and unfair or deceptive acts or practices in the conduct of any trade or

commerce are hereby declared unlawful.” Citizens have a statutory right to bring a

private action for damages that result from unfair trade practices. La.R.S.

51:1409. The language of La.R.S. 51:1405 is broad and does not set forth anything

that constitutes particular violations. In McFadden, 56 So.3d at 1219-20

(alterations in original), we held:

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“The determination of what constitutes an unfair trade practice is fact-
sensitive and, as such, can only be decided on a case-by-case basis.” Doland
v. ACM Gaming Co., 05–427, p. 8 (La.App. 3 Cir. 12/30/05), 921 So.2d 196,
202.

“[C]onduct that violates the Unfair Trade Practices
Act must involve fraud, misrepresentation, deception, or
unethical conduct.” Glod v. Baker, 04–1483, p. 11
(La.App. 3 Cir. 3/23/05), 899 So.2d 642, 649[, writ
denied, 05–1574 (La.1/13/06), 920 So.2d 238] “A trade
practice is considered unfair when it offends established
public policy and when it is immoral, unethical,
oppressive, unscrupulous, or substantially injurious to
consumers.” Laurents v. La. Mobile Homes, Inc., 96–
976, p. 10 (La.App. 3 Cir. 2/5/97), 689 So.2d 536, 542
(citing Thomas v. Busby, 95–1147 (La.App. 3 Cir. 3/6/96,
670 So.2d 603), writ granted and judgment vacated, 96–[
]891 (La.5/17/96), 673 So.2d 601, aff'd on remand, 95–
1147 (La.App. 3 Cir. 11/13/96), 682 So.2d 1025, writ
denied, 96–2990 (La.2/21/97), 688 So.2d 517).

Brown v. Romero, 05–1016, pp. 6–7 (La.App. 3 Cir. 2/1/06), 922
So.2d 742, 746–47, writ denied, 06–480 (La.5/5/06), 927 So.2d 315.

Given that the seminal determination of whether an entity is in
violation of La.R.S. 51:1405 is fact based, the standard of review
applicable to the first step in reviewing this assignment is manifest
error. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Based on our review of the record we cannot say the trial court manifestly

erred in finding the Doles’ two alleged bases for their Unfair Trade Practices claim

do not amount to a violation of La.R.S. 51:1405. BRC did not simply “abandon”

the Doles’ construction project. It terminated its services because the Doles

refused to compensate it for work performed. Moreover, as we have affirmed the

trial court’s ruling that there was no contract between the parties, fixed-price or

otherwise, the Doles’ first basis for this claim is rendered moot. As to the second

basis for this claim, although we affirm the trial court’s ruling that there was also

no cost-plus contract, such does not automatically render the Doles’ second alleged

basis for this claim moot. Nevertheless, the second alleged basis for the Doles’

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Unfair Trade Practices claim does not constitute an unfair trade practice under the

facts of this case. The Doles characterize BRC’s unfair trade practice as using

“hidden costs” to obtain money it was not entitled to for work performed. The

problem with this argument is that it relies on the Doles’ interpretation of what

“costs” could be included in the proposed cost-plus agreement. Because there was

no meeting of the minds on this subject we cannot conclude that BRC engaged in

any “immoral, unethical, oppressive, unscrupulous, or substantially injurious”

trade practice by including in its billing to the Doles what it understood to be

“costs” that were part and parcel of its cost-plus proposal.

Non-pecuniary Damages.

Louisiana Civil Code Article 1998 provides:

Damages for nonpecuniary loss may be recovered when the
contract, because of its nature, is intended to gratify a nonpecuniary
interest and, because of the circumstances surrounding the formation
or the nonperformance of the contract, the obligor knew, or should
have known, that his failure to perform would cause that kind of loss.

Regardless of the nature of the contract, these damages may be
recovered also when the obligor intended, through his failure, to
aggrieve the feelings of the obligee.

The Doles assert that the home subject of this lawsuit was their “dream

home” which they had been planning for twenty years and the construction of this

home was “intended to gratify a non-pecuniary interest.” We note that despite this

claim, the Doles did not discuss this home with their interior designer, whom they

knew very well, until about eight months before commencing construction.

Additionally, the Doles admit they made numerous changes throughout the

construction of this house which led to a significant increase in the final cost.

They rely on our decision in Mayerhofer v. Three R’s Inc., 597 So.2d 151 (La.

App. 3 Cir., writ denied, 600 So.2d 680 (La. 1992), for the proposition that we

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must “look to the nature of the contract” to determine whether the damages are

pecuniary or non-pecuniary.

Because we have affirmed the trial court’s finding that there was no contract

between these parties, there is simply no contract to be breached and no contract

from which we might determine the pecuniary or non-pecuniary nature. Recovery

for nonpecuniary losses for breach of contract presupposes a contract between the

parties. Additionally, there is no evidence that would tend to show that BRC

“knew or should have known that [its] failure to perform would cause [a non-

pecuniary] loss” to the Doles. La.Civ.Code art. 1998. Moreover, we have

affirmed the trial court’s finding that BRC stopped performing construction

because of non-payment. Additionally, the Doles admitted “the quality of [BRC’s]

craftsmanship” was “excellent.” Thus, the record does not support a finding that

BRC intended through its refusal to continue working on the house because of non-

payment to “aggrieve” the Doles’ feelings. According to the Doles’ own

admission, BRC performed the work on the Doles’ home with “excellent”

craftsmanship. BRC only stopped work on the project because the Doles refused

to pay for work already done. This assignment of error is without merit.

Dilatory Exception of Vagueness and Motion to Strike.

The Doles maintain the trial court erred in denying its Exception for

Vagueness and Motion to Strike BRC’s Supplemental Answer to Original and

Amended Reconventional Demand, filed on April 11, 2013, and BRC’s Second

Supplemental and Amending Petition, filed on June 7, 2013, despite their

admission that the trial court did not recognize any of BRC’s affirmative defenses

raised in these pleadings. Nevertheless, the Doles maintain, “out of an abundance

of caution” the trial court committed legal error in allowing BRC to file these

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amended pleadings and affirmative defenses “without sufficient factual support,”

and not in compliance with La.Code Civ.P. art. 891(A) and 1005. Louisiana Code

of Civil Procedure Article 891 provides:

The petition shall comply with Articles 853, 854, and 863, and,
whenever applicable, with Articles 855 through 861. It shall set forth
the name, surname, and domicile of the parties; shall contain a short,
clear, and concise statement of all causes of action arising out of, and
of the material facts of, the transaction or occurrence that is the
subject matter of the litigation; shall designate an address, not a post
office box, for receipt of service of all items involving the litigation;
and shall conclude with a prayer for judgment for the relief sought.
Relief may be prayed for in the alternative.

Louisiana Code of Civil Procedure Article 1005 provides:

The answer shall set forth affirmatively negligence, or fault of
the plaintiff and others, duress, error or mistake, estoppel,
extinguishment of the obligation in any manner, failure of
consideration, fraud, illegality, injury by fellow servant, and any other
matter constituting an affirmative defense. If a party has mistakenly
designated an affirmative defense as a peremptory exception or as an
incidental demand, or a peremptory exception as an affirmative
defense, and if justice so requires, the court, on such terms as it may
prescribe, shall treat the pleading as if there had been a proper
designation.

The trial court denied the Doles’ Exception and its Motion to Strike without

stating any particular reasons. A review of the pleadings reveals BRC did state its

affirmative defenses with particularity sufficient to put the Doles on notice of the

substance of these alleged affirmative defenses and allegations of fraud and

misrepresentation. We find no abuse of the trial court’s broad discretion in

granting BRC leave to amend its pleadings just as the trial court earlier in the

litigation allowed the Doles the same latitude.

Pleadings must be construed reasonably so as to afford litigants
their day in court and to do substantial justice. Long v. Long, 28,763
(La.App.2d Cir.12/11/96), 684 So.2d 1099, writ denied, 97–0096
(La.3/7/97), 690 So.2d 20. The Louisiana Code of Civil Procedure
articles are to be construed liberally, and with due regard for the fact

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that rules of procedure implement the substantive law and are not an
end in themselves. La. C.C.P. art. 5051.

The law takes a liberal approach toward allowing amended
pleadings in order to promote the interests of justice. Reeder v. North,
97–0239 (La.10/21/97), 701 So.2d 1291. Amendment of pleadings
should be liberally allowed, provided the movant is acting in good
faith, the amendment is not sought as a delaying tactic, the opponent
will not be unduly prejudiced and trial of the issues will not be unduly
delayed. Premier Bank, Nat’l. Ass’n v. Robinson, 618 So.2d 1037
(La.App. 1st Cir.1993).

The decision as to whether to grant a defendant leave to amend
an answer is within the sound discretion of the trial court, and its
ruling will not be disturbed on appeal except where an abuse of
discretion has occurred and indicates a possibility of resulting
injustice. Hogan v. State Farm Auto Ins. Co., 94–0004 (La.App. 1st
Cir.12/22/94), 649 So.2d 45, writ denied, 95–0215 (La.3/17/95), 651
So.2d 276.

Hibernia National Bank v. Antonini, 33,436, p. 6 (La. App. 2 Cir. 9/21/00), 767

So.2d 143, 146-47.

On motion of the Doles the bench trial date was upset and a trial was

scheduled for March 18, 2014. The deadline for filing supplemental and amending

pleadings was set for December 18, 2013. Nothing in the complained-of pleadings

indicates BRC was acting in bad faith when it filed these pleadings nor is there any

indication the filings were a delay tactic. These filings did not result in any delay

of trial nor do the Doles demonstrate how they were unduly prejudiced by these

filings. This is especially so when even the Doles admit the trial court did not base

its ruling on any of the affirmative defenses alleged in these pleadings. Neither do

the Doles demonstrate in what manner these pleadings are alleged to have raised

the possibility that an injustice might result from the trial court’s allowing these

amended pleadings. This assignment of error is without merit.

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The Award of Damages to BRC.

The Doles maintain the trial court erred in awarding any monetary damages to

BRC because BRC failed to abide by the fixed-price contract. As we have

discussed herein there was no fixed-price contract. The trial court awarded BRC

$50,000.00 in damages as the amount it determined the Doles were unjustly

enriched, and BRC was impoverished as a result of BRC’s unpaid contributions to

the completion of the Doles’ home. This decision by the trial court is based largely

on its determinations of credibility of the numerous witnesses who testified, which

determinations we will not disturb in the absence of manifest error. As we have

discussed above: “[W]here two permissible views of the evidence exist, the

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

wrong.” Stobart v. State Dep’t of Transp. and Dev., 617 So.2d 880, 883 (La.1993).

In Denbury Onshore, L.L.C. v. Pucheu, 08-1210, p. 17 (La.App. 3 Cir. 3/11/09), 6

So.3d 386, 397-98 (alterations in original), we explained the elements of a claim

for unjust enrichment:

[Louisiana Civil Code] Article 2054 provides in part, “[w]hen the
parties made no provision for a particular situation . . .” Pursuant to
Article 2055, equity in Article 2054 “is based on the principles that no
one is allowed to enrich himself unjustly at the expense of another.” It
is the basis for a claim of unjust enrichment. For a party to recover
under the theory of unjust enrichment, he must prove an enrichment,
an impoverishment, “a causal relationship between the enrichment
and the impoverishment,” “an absence of justification or cause for the
enrichment or impoverishment,” and the lack of any other remedy at
law. Fogleman v. Cajun Bag & Supply Co., 93–1177, pp. 4–5
(La.App. 3 Cir. 6/15/94), 638 So.2d 706, 709, writ denied, 94–1900
(La.10/28/94), 644 So.2d 375 (quoting Kirkpatrick v. Young, 456
So.2d 622, 624 (La.1984). If a party has another legal remedy to
prevent the loss he seeks to recover, unjust enrichment is not a proper
ground for recovery. Id.

The evidence supports the reasonableness of the trial court’s finding that the

Doles were enriched by BRC’s work on their home, BRC was impoverished by

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performing work for which it was uncompensated, there was clearly a causal

relationship between the “excellent” work performed by BRC on the Doles’ home

and BRC’s impoverishment thereby. There is no justification to assert that BRC

should not be paid for its efforts. Even the Doles admitted the quality of BRC’s

work was “excellent.” Because we have affirmed the trial court’s ruling that there

was no contract between the parties, BRC has no other legal remedy at law. In

Bieber-Guillory v. Aswell, 98-559 (La.App. 3 Cir. 12/30/98), 723 So.2d 1145, we

discussed recovery under the doctrine of action de in rem verso or unjust

enrichment. We explored the rationale enunciated in Fogleman v. Cajun Bag &

Supply Co., 93-1177 (La.App. 3 Cir. 6/15/94), 638 So.2d 706, writ denied, 644

So.2d 375 (La.10/28/94), and Morphy, Makofsky & Masson v. Canal Place, 538

So.2d 569 (La.1989), and noted the United States Fifth Circuit Court of Appeals’

decision in accord, SMP Sales Management, Inc. v. Fleet Credit Corp., 960 F.2d

557 (5th Cir. 1992) relying on Morphy. Both parties rely on these cases but neither

discussed our decision in Bieber-Guillory which we find instructive. In that case

we said:

In Fogleman, we explained:

Louisiana jurisprudence, when formulating a substantive
theory of recovery in the absence of a contract
(regardless of theory being denominated action de in rem
verso, unjust enrichment or even “quantum meruit”), has
consistently applied a two-fold limitation to the recovery.
First, the plaintiff cannot recover more than the actual
value of his services and materials, plus a fair profit; and
secondly, the plaintiff cannot recover more than
defendant was enriched by plaintiff’s services. See
Custom Builders & Supply, Inc. v. Revels, 310 So.2d 862
(La.App. 3 Cir.1975), citing Planiol, Chapter III Section
93B (Unjust Enrichment). See also Swiftships, Inc. v.
Burdin, 338 So.2d 1193 (La.App. 3 Cir.1976).

Id. at 710.

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Essentially, an individual establishing his right to recover under
the doctrine of unjust enrichment is entitled to recover a reasonable
amount for his services. Brankline v. Capuano, 94-1630 (La.App. 3
Cir. 5/3/95); 656 So.2d 1. There is no specific test which must be
applied to determine the reasonable value of such services. It is a
matter of equity depending upon the circumstances of each case.
Jones v. City of Lake Charles, 295 So.2d 914 (La.App. 3 Cir.1974).
However, a court may not award speculative damages which have not
been established with some degree of detail and specificity. Smith v.
First Nat'l Bank of DeRidder, 478 So.2d 185 (La.App. 3 Cir.1985);
Smith v. White, 411 So.2d 731 (La.App. 3 Cir.1982), writ denied, 413
So.2d 508 (La.1982).

....

Since the assessment of an award based on the doctrine of
unjust enrichment or quantum meruit is analogous to an award of
damages, the record must clearly reveal the trial court abused its
discretion before we will disturb the award. Brankline, 656 So.2d 1;
Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). Our
role in reviewing general damages is not to decide what we consider
an appropriate award, but rather to review the exercise of discretion
by the trial court. “Each case is different and the adequacy and
inadequacy of the award should be determined by the facts or
circumstances particular to the case under consideration.” Youn, 623
So.2d at 1260.

Bieber-Guillory, 723 So.2d at 1151.

In this case, the Doles have never denied that BRC is entitled to the

$35,000.00 that they refused to pay without an audit. BRC claimed substantially

more than this sum as damages but has not appealed the amount awarded. Given

this fact, we cannot say the trial court abused its discretion in awarding BRC

$50,000.00 damages for unjust enrichment under the circumstances of this case.

There is no question that the work performed by BRC, which even the Doles admit

was of good quality, contributed to the final product which was completed after

BRC ceased any further contributions.

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For the reasons stated, we affirm the trial court judgment and assess all costs

of this appeal to Appellants Michael and Adrienne Dole.

AFFIRMED.

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