J. Quentin Simon, Et Ux. v. Buckley Construction, LLC

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-533

J. QUENTIN SIMON, ET UX.

VERSUS

BUCKLEY CONSTRUCTION, LLC, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20085623
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and Shannon J. Gremillion,
Judges.

AFFIRMED AS AMENDED.

Daniel James Caruso
Christopher B. Conley
Simon, Peragine, Smith & Redfearn, L.L.P.
1100 Poydras St., 30th Flr.
New Orleans, LA 70163-3000
(504) 569-2030
COUNSEL FOR DEFENDANTS/APPELLEES:
Patrick Buckley
Buckley Construction, LLC

J. Quentin Simon
Attorney at Law
P. O. Drawer 52851
Lafayette, LA 70505-2851
(337) 235-3200
COUNSEL FOR PLAINTIFFS/APPELLANTS:
J. Quentin Simon
Elizabeth Montgomery Simon

Frances James Benezech II
Attorney at Law
P. O. Box 52921
Lafayette, LA 70505-2921
(337) 504-4915
COUNSEL FOR DEFENDANTS/APPELLEES:
Mitchell J. Dautreuil
Grand Point Industries, LLC

GREMILLION, Judge.

In this construction-defect litigation, the plaintiffs/appellants, J. Quentin

Simon and Elizabeth Montgomery Simon, appeal the judgment in their favor

against defendants/appellees, Mitchell Dautreuil and Grand Point Industries, LLC

(Grand Point), which also granted an exception of no right of action filed by the

defendants/appellees. For the reasons that follow, we affirm as amended.

FACTS AND PROCEDURAL HISTORY

In May 2006, the Simons contracted with Buckley Construction of

Broussard, Louisiana, to repair and upgrade their fire-damaged home in Lafayette

at a cost of $277,444.83. 1 Buckley estimated $3,500.00 for roof repairs. The

existing roof was flat. Buckley had no experience with flat roofs, so it

subcontracted the roofing work to Grand Point through its principal, Mr. Dautreuil,

who estimated the cost to be $23,120.00. Buckley did not return to the Simons

with a change order, but decided to absorb the additional cost of the roof repairs

from the remaining $257,824.83.

The job specifications divided the home’s roof into areas, designated “A”

through “G.” As the roof is flat, some areas had drains. The specifications called

for Grand Point to install a “tapered system” in areas C, D, and G to provide pitch

that would direct any water to the drains or over the edge. The tapered system

consisted of Styrofoam sheets laid on the plywood structure. These Styrofoam

panels are installed in a manner that creates, at a minimum, a one-quarter- to one-

half-inch-per-foot pitch or slope. During the course of the project, it was

determined that three areas needed no repair.

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The contract was not supplied with the record on appeal nor were any other exhibits.
Plaintiffs/appellants designated the record and did not designate that the exhibits be supplied to
the court.

Sometime after the work was completed, the Simons contacted Patrick

Buckley, the principal of Buckley Construction, and advised him that some areas

of the roof were holding water. Mr. Buckley inspected the roof and found that

areas A, C, D, and G were holding water. In some areas, the water was ponding

within inches of the drains, and those drains were not obstructed. All of these

areas had been repaired by Grand Point. Mr. Buckley opined that those roof areas

were not really tapered. He further ascertained that the water actually pooled

below the drains inlets, which were set too high in relation to the surrounding

roofing.

Mr. Buckley contacted Mr. Dautreuil, who attempted several fixes for the

problems. An overlay of the roofing was attempted, which sought to establish the

necessary pitch or taper. However, according to Mr. Buckley, the existing material

was not prepared properly, so the adhesive used to install the overlay was not

making contact with the underlying material. After several calls from Mr. Buckley,

Mr. Dautreuil no longer returned his calls and quit returning to the Simons’ home.

Eventually, Buckley attempted to retain another contractor to repair the roof.

The Simons contacted Mr. Scott George of Ace Roofing. Mr. George

inspected the roof and also found evidence of ponding and improperly sealed

seams. Mr. George testified that there were some seams that, when stepped upon,

would squirt water that had seeped into them. He also noticed that the membrane

near the edge of the section over the garage had not been installed in a manner that

would seal the flashing at the edge. Ace Roofing repaired the Simons’ roof in

2012 at a cost of $56,779.00, but that included the entire roof and not just the

sections replaced by Grand Point. No testimony was offered regarding the cost of

re-roofing those sections that had been found to hold water.

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Mr. Dautreuil’s version of events differed dramatically from Mr. Buckley’s.

He testified that after the roof was completed, he went to inspect the roof twice

after Mr. Buckley notified him that there was an issue. He testified to removing “a

couple of gallons of acorns and leaves out of the drain system.” He told Mr.

Buckley that scuppers needed to be installed in case the drains clogged again.

After his two visits to the home, Mr. Dautreuil testified, he was told by Mr.

Buckley that he was not allowed back on the premises.

This litigation was initiated in October 2008. The Simons initially sued

Buckley and Mr. Buckley personally. In December 2008, they amended to sue

Grand Point and again in 2011 to sue Mr. Dautreuil personally. Buckley and Mr.

Buckley asserted a cross-claim against Mr. Dautreuil and Grand Point in which

they essentially pointed their fingers at Grand Point, alleging that the work was the

exclusive province of Grand Point. In March 2011, they again amended to allege

that their home had been put up for sale, but the buyers withdrew their offer of

$945,000.00 after inspecting the roof. This, they alleged, cost them a profit of

$675,000.00. Grand Point and Mr. Dautreuil answered the amended demands and

asserted that the Simons’ demands “are untimely.” Buckley and the Simons settled

the demands for $10,000.00, and Buckley assigned its rights to the Simons. Trial

moved forward against Mr. Dautreuil and Grand Point. Following trial, the trial

court issued written reasons for its ruling. It found, in pertinent part:

The contract between Buckley Construction and the Simons
provides the following:

12.2 The Contract documents shall not be
construed to create a contractual relationship of any kind
(1) between the Architect and Contractor, (2) between the
Owner and a Subcontractor or Sub-subcontractor or (3)
between any persons or entities other than the Owner and
Contractor.

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Thus, the only contractual relationship which exists in this
matter is between Buckley Construction, LLC as the Contractor and
the Simons as Owners. The Simons had no relationship with Grand
Point Industries or Mitchell Dautreil [sic]. Buckley Construction is the
sole party liable to the Simons and the only party with the ability to
recover against Grand Point Industries. Thus, the Exception of No
Right of Action filed by Grand Point Industries and Mitchell Dautreil
[sic] as to the Simons' claims is granted. The Simons’ claim for
damages existed only against Buckley Construction, and that claim
was settled for $10,000.00. The Simons may proceed in this matter
only as to the third party claims assigned to them by Buckley
Construction.

In any event, even if the Simons did have a claim directly
against Grand Point Industries, the Simons’ contract with Buckley
Construction indicated that they paid for $3,500.00 allotted to roof
repair. Any overage on the costs of the roof were absorbed by
Buckley Construction and did not increase the overall cost of the
project to the Simons. Thus, in all actuality, the Simons received a
roof valued at $23,120.00 for a cost to them of only $3,500.00.
Additionally, the Simons had the benefit of the use of the roof for six
years without any evidence that the roof actually failed.

However, in the present case, the Simons stand in the shoes of
Buckley and can only collect from Grand Point Industries and
Dautreil [sic] the damages Buckley incurred flowing from the
defective roof. It is important to remember that the contract submitted
by Buckley Construction to the Simons grossly underestimated the
amount to be allotted to roofing repair at only $3,500.00. Mr. Buckley
agreed that some time [sic] after the contract was signed he learned
that this amount was insufficient to cover the roof repair and that his
company would have to absorb the loss resulting from the
underestimation of roofing costs. The amount paid to Grand Point
Industries was approximately $19,620.00 more than originally
accounted for by Buckley Construction. It is clear that because of this
error in the initial bid by Buckley Construction, that it was in
Buckley’s best interest to keep the cost of the roof repairs by Grand
Point as low as possible. Buckley’s interest in keeping the price down
in order to prohibit further losses lends credibility to Mr. Dautreill’s
[sic] testimony that both Buckley and Mr. Simon were very involved
with the roofing process and knew of the issues. Dautreil [sic] testified
that Buckley and Simon were aware that the roof was not being
installed to code.

This Court finds that Buckley was aware of and authorized the
method of repair of the roof by Dautreil [sic]. The roof was clearly
adequate for six years, and there is no real evidence of the roof failing,
leaking or damaging the inside of the home. In essence, Buckley was

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responsible via his contract with the homeowners for paying for the
roof and he got the roof he bargained for, thus the amount paid to
Dautreil [sic] for installation is not considered as damages by this
Court.

On the other hand, there is evidence that the roof was
improperly installed, that it was holding water and Buckley did
provide compensation to the homeowners for these defects. In
balancing all of these factors, this Court finds that any losses sustained
by Buckley Construction are limited to reimbursement of the
$10,000.00 paid to the Simons’ [sic] in settlement of this matter.
Because the Simons now stand in the shoes of Buckley Construction,
their claims against Grand Point Industries are likewise limited to
$10,000.00.

This Court finds that Grand Point Industries, LLC is ordered to
pay Quentin Simon and Elizabeth Montgomery Simon the sum of
$10,000.00, plus court costs. In addition, this Court would award an
expert fee for Fabian Patin’s trial testimony in the amount of $800.00.
This Court denies the claim for attorney fees, as there is no evidence
of fraud in this matter.

ASSIGNMENTS OF ERROR

The Simons assign the following errors they contend the trial court

committed:

1. The trial court erred in sustaining the exception of no cause of
action [sic] on behalf of Defendants-Appellees Grand Point
Industries, LLC, and Mitchell Dautreuil.

2. The trial court erred in awarding to Plaintiffs-Appellants
damages of $10,000 rather than the full replacement cost of the
defectively installed roof.

3. The trial court erred in declining to award to Plaintiffs-
Appellants the full amount of their expert fees, attorney's fees,
and legal interest.

ANALYSIS

The trial court maintained an exception of no right of action in favor of

Dautreuil and Grand Point, even though no pleading entitled as such was filed;

rather, those parties had answered the demands and asserted, as affirmative

defenses, the fact that the plaintiffs’ demands failed to state a cause of action.

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The Simons claim that the agreement between Buckley and Grand Point

constituted a stipulation pour autri. “A contracting party may stipulate a benefit

for a third person called a third party beneficiary.” La.Civ.Code art. 1978. We

reject the Simons’ argument that the contract between Buckley and Grand Point

stipulates any benefit for the Simons. The contract merely obligated Grand Point

to install the roof. While the Simons undoubtedly benefit from having a roof on

their home, the benefit the contract contemplated was that Grand Point would

relieve Buckley of the need to become educated in the art of flat roof installation.

We disagree with the Simons that the exception of no right of action should

not have been granted. There are very lenient formal requirements of an exception

of no right of action. See La.Code Civ.P. art. 924. Assuming arguendo that the

formal requirements were not met, the trial court can supply an exception of no

right of action on its own. La.Code Civ.P. art. 927(B). The contract between the

Simons and Buckley clearly and unambiguously stated that it did not create a

contractual relationship between the Simons and any subcontractor.

But for the rights assigned to the Simons by Buckley, that would have

effectively ended the litigation. Only Buckley had a contractual relationship with

Grand Point. Only Buckley had a right to pursue a breach-of-contract demand

against Grand Point, because the obligation of Grand Point to properly install the

roof was owed to Buckley. Buckley could not assign to the Simons rights greater

than it had. See Freeman v. Block “T” Operating, LLC, 13-58 (La.App. 3 Cir.

7/10/13), 118 So.3d 1279, writ denied, 13-1933 (La. 11/8/13), 125 So.3d 455. Its

only right was to recover the extent of its loss, and that loss was $10,000.00, the

amount it paid to settle the Simons’ claim.

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By their third assignment of error, the Simons argue that they should have

been awarded expert witness fees, attorney fees, and legal interest. The Simons

argue that they are entitled to an award of attorney fees based upon the fraud they

allege was committed by Dautreuil or Grand Point. The trial court found that the

Simons failed to prove fraud on the defendants’ part, and we agree. Improper

installation of a roof is not fraud. “Fraud is a misrepresentation or a suppression of

the truth made with the intention either to obtain an unjust advantage for one party

or to cause a loss or inconvenience to the other.” La.Civ.Code art. 1953. The

Simons made no attempt to prove such intent on Dautreuil’s or Grand Point’s part.

This assignment of error lacks merit.

“The court shall award interest in the judgment as prayed for or as provided

by law.” La.Code Civ.P. art. 1921. The trial court has no discretion in awarding

legal interest. Odom v. City of Lake Charles, 00-1050 (La.App. 3 Cir. 1/31/01),

790 So.2d 51, writ denied, 01-1198 (La. 6/22/01), 794 So.2d 787. The court of

appeal has authority to amend a judgment to rectify such an error. Dufrene v.

Duncan, 93-403 (La.App. 1 Cir. 3/11/94), 634 So.2d 19. We, therefore, amend the

judgment to provide for an award of legal interest from the date of Buckley’s

demand against Grand Point until paid, as the Simons’ demands against Grand

Point arise from the assignment of rights from Buckley.

Lastly, the Simons argue that the trial court erred in its award of expert

witness fees. Louisiana Revised Statutes 13:3666 governs the awarding of expert

witness fees:

A. Witnesses called to testify in court only to an opinion founded on
special study or experience in any branch of science, or to make
scientific or professional examinations, and to state the results thereof,
shall receive additional compensation, to be fixed by the court, with

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reference to the value of time employed and the degree of learning or
skill required.

B. The court shall determine the amount of the fees of said expert
witnesses which are to be taxed as costs to be paid by the party cast in
judgment either:

(1) From the testimony of the expert relative to his time rendered and
the cost of his services adduced upon the trial of the cause, outside the
presence of the jury, the court shall determine the amount thereof and
include same.

(2) By rule to show cause brought by the party in whose favor a
judgment is rendered against the party cast in judgment for the
purpose of determining the amount of the expert fees to be paid by the
party cast in judgment, which rule upon being made absolute by the
trial court shall form a part of the final judgment in the cause.

C. In either manner provided in Subsection B, the court shall also
determine and tax as costs, to be paid by the party cast in judgment,
the reasonable and necessary cost of medical reports and copies of
hospital records.

D. In all civil cases in which the trial court, on its own motion or on
motion of a party, has appointed a person who is registered as a
professional land surveyor, pursuant to R.S. 37:693(B)(4), to be called
as an expert to assist it in the adjudication of any case in which
professional land surveying skills may aid the court, the court shall
make arrangements for the timely payment of reasonable and
customary fees for the services sought to be rendered.

The award of expert witness fees is subject to review under the abuse-of-discretion

standard. Raymond v. Gov’t Employees Ins. Co., 09-1327 (La.App. 3 Cir. 6/2/10),

40 So.3d 1179, writ denied, 10-1569 (La. 10/8/10), 46 So.3d 1268. Courts

consider the amount of time spent preparing for trial, the amount of time actually

spent in court, the extent and nature of the work performed, the expert’s

qualifications, the complexity of the matter, the helpfulness of the expert’s report

and testimony, and awards to experts in similar cases. Id. In particular, the

Simons object to the trial court’s failure to award expert witness fees for Mr. Scott

George’s testimony. The Simons failed to elicit testimony from Mr. George as to

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the amount of time he spent preparing for trial. They failed to introduce any

invoices from him reflecting his charges. No rule to tax Mr. George’s fees as costs

was filed. Because the Simons failed to avail themselves of either method of

quantifying expert witness fees set forth in La.R.S. 13:3666(B), we are precluded

from awarding such costs.

Accordingly, the judgment of the trial court is affirmed as amended to award

legal interest to plaintiffs/appellants. All costs of this matter are taxed to

Plaintiffs/Appellants, J. Quentin Simon and Elizabeth Montgomery Simon.

AFFIRMED AS AMENDED.

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