Juanita W. Fontenot and T. June Wilder v. Gilchrist Construction Co., LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-21

JUANITA W. FONTENOT AND

T. JUNE WILDER

VERSUS

GILCHRIST CONSTRUCTION COMPANY, LLC

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. C2012-146
HONORABLE F. RAE SWENT, AD HOC

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SHANNON J. GREMILLION
JUDGE

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Court composed of Shannon J. Gremillion, Candyce G. Perret, and Jonathan W.
Perry, Judges.

AFFIRMED AS AMENDED.

Murphy J. Foster, III
John T. Andrishok
Breazeale, Sachse & Wilson, L.L.P.
23rd Floor, One American Place
Post Office Box 3197
Baton Rouge, LA 70821-3197
(225) 387-4000
COUNSEL FOR DEFENDANT/APPELLANT:
Gilchrist Construction Company, L.L.C.

Loulan J. Pitre, Jr.
Jane A. Jackson
Kelly Hart Pitre
400 Poydras Street, Suite 1812
New Orleans, LA 70130
(504) 522-1812
COUNSEL FOR DEFENDANT/APPELLANT:
Gilchrist Construction Company, L.L.C.

Edward E. Rundell
Kay H. Michiels
Stephen A. LaFleur
Gold, Weems, Bruser, Sues & Rundell
Post Office Box 6118
Alexandria, LA 71301
(318) 445-6471
COUNSEL FOR DEFENDANT/APPELLANT:
Gilchrist Construction Company, L.L.C.

James G. Theus
Theus Law Office
2030 Jackson Street, Suite B
Alexandria, LA 71301
(318) 541-8999
COUNSEL FOR DEFENDANT/APPELLANT:
Gilchrist Construction Company, L.L.C.

Michael Reese Davis
Richard Allen Sherburne, Jr.
Tim P. Hartdegen
Hymel Davis & Petersen, L.L.C.
10602 Coursey Boulevard
Baton Rouge, LA 70816
(225) 298-8118
COUNSEL FOR PLAINTIFFS/APPELLEES:
T. June Wilder
Juanita W. Fontenot

Wells T. Watson
Bagget, McCall, Burgess, Watson & Gaughan
3006 Country Club Road
Post Office Drawer 7820
Lake Charles, LA 70606-7820
(337) 478-8888
COUNSEL FOR PLAINTIFFS/APPELLEES:
Juanita W. Fontenot
T. June Wilder

Herbert Todd Nesom
District Attorney, Thirty-third Judicial District Court
Post Office Box 839
Oberlin, LA 70655
(337) 639-2641
COUNSEL FOR PLAINTIFFS/APPELLEES:
Juanita W. Fontenot
T. June Wilder

GREMILLION, Judge.

Defendant, Gilchrist Construction Company, LLC, appeals the trial court’s

judgment in favor of Plaintiffs, Juanita W. Fontenot and T. June Wilder. For the

following reasons, we affirm as amended.

FACTUAL AND PROCEDURAL BACKGROUND

This case involves extensive and complex litigation surrounding Defendant’s

use of Plaintiffs’ land for purposes of completing its $30 million contract with the

state to expand U.S. Highway 165 in Allen Parish, Louisiana. In March 2012,

Plaintiffs filed a Petition for Damages and Breach of Contract relating to a series of

contracts they entered into with Defendant for the excavation of dirt and storage of

construction debris on their property. In their petition, Plaintiffs urged that

Defendant dumped “asphalt, dirt, concrete, wood and trash” on their property and

filled in the excavated dirt pit with “worthless dirt, debris, concrete, wood and trash

from elsewhere.” Plaintiffs claimed that Defendant under-measured and under-paid

for the dirt it did haul away from the property, that it did not leave the property in

the condition it promised to, and that it would cost millions of dollars to haul away

the remaining debris left behind by Defendant. Plaintiffs alleged that Defendantt

acted in bad faith in refusing to perform the contract in good faith resulting in

damages including loss of income, underpayment, damages to land, damages to

remove the debris, and damages to restore the land.

In March 2014, Plaintiffs moved for a motion for partial summary judgment

seeking a declaration that their property was farmland, that Defendant was

responsible for removing any concrete or debris that it dumped on the property, and

that the property be returned to its original condition (i.e., farmland). The motion

was granted in Plaintiffs’ favor in June 2014. That judgment specifically found:

[I]t is hereby ruled that the general purpose of the Fontenot/Wilder
property prior to entry by Defendant, Gilchrist Construction Company,
LLC, was farmland, although it had been out of production for several
years due to federal subsidies. . . .Gilchrist . . . has the obligation to
restore the Fontenot/Wilder property to a condition suitable for farming,
with the exception of the pond/pit and road.

By June 2016, Plaintiffs had filed three motions to compel discovery, all of

which were granted in their favor. In January 2018, Defendant filed a motion to

compel discovery responses. Defendant also filed a motion to strike Plaintiffs’

claims for loss of income and motion in limine. Defendant further filed a motion to

compel entry upon land for testing and inspection; for an order requiring written

expert reports; and for continuance of the trial date.

In February 2018, Plaintiffs filed a first amended petition for breach of

contract and damages. In March 2018, Plaintiffs filed a motion in limine to exclude

certain irrelevant and overly prejudicial matters. They also filed a motion in limine

to exclude certain opinions and testimony of Defendant’s experts, Jerry Daigle and

Chris Lemoine.

On March 12, 2018, Defendant filed an exception of no cause of action and

prescription and answer to Plaintiffs’ first amended petition for breach of contract

and damages. On March 14, 2018, Plaintiffs filed an opposition to Defendant’s

exception of no cause of action and prescription.

On March 12, 2018, the trial court rendered reasons for judgment on a number

of issues. It accepted “the argument by Plaintiffs that Corbello v. Iowa Production . . .

is the controlling law in this case[,]” and found the market value of the property

irrelevant. Further, the trial court found that as to the expert witness, Jerry Daigle,

the issue of whether the land was “farmable” was not relevant to the issue of whether

remediation was required. It further found that the appraised value of the land was

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not relevant and, therefore, Chris Lemoine’s opinion testimony would not be

admissible.

On March 14, 2018, Defendant filed its proposed special jury instructions. On

March 16, 2018, Plaintiffs filed an objection to Defendant’s proposed special jury

instructions and verdict form.

Following a jury trial in March 2018, the jury rendered a verdict finding that

Plaintiffs had proven by a preponderance of the evidence that Defendant breached a

contractual obligation it owed to Plaintiffs and that Defendant acted in bad faith. It

awarded Plaintiffs $5,559,000.00, plus attorney fees.

On April 17, 2018, Defendant filed a motion to sign judgment and to continue

the hearing on determination of attorney fees pending reconsideration on motion for

new trial and appeal arguing that it was improper for the jury to determine if attorney

fees should be awarded. The trial court denied the motion. On April 19, 2018,

Defendant filed an opposition to Plaintiffs’ motion to set attorney fees. On April 20,

2018, Defendant filed an opposition to Plaintiffs’ motion to set costs. In May 2018,

Defendant filed a post-trial rebuttal to Plaintiffs’ motion for attorney fees and costs.

On May 8, 2018, Plaintiffs filed a post-hearing brief regarding attorney fees and

costs.

The trial court rendered written reasons for judgment on June 22, 2018.

Therein, the trial court discussed the numerous motions filed as to what law was

applicable, specifically with Plaintiffs arguing that Corbello v. Iowa Production, 02-

0826 (La. 2/25/03), 850 So.2d 686, applied and Defendant arguing that Roman

Catholic Church v. Louisiana Gas Serv. Co., 618 So.2d 874 (La.1993), applied. The

trial court also noted that the issue of whether attorney fees should be submitted to

the jury was of concern between the parties. The trial court denied all of Defendant’s

motions noting that Defendant did not object to the inclusion of the issue of attorney
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fees on the verdict form. The trial court granted Plaintiffs’ motions to set attorney

fees and expenses. It further accepted Corbello as the standard for damages to

immovable property in breach of contract cases and found the facts of this case much

more similar to Corbello than Church. The trial court noted that, “[t]he party found

in breach and bad faith is a large and sophisticated business entity and the parties

injured are farmland owners and members of the public. The inherent need to restore

farmland is no different from the need to restore the land in the oil legacy litigation.”

The trial court thereafter set the attorney fee award at 40% of the total award, and

expenses and costs in the amount of $51,077.66. The trial court signed a judgment

memorializing such on August 21, 2018.

On September 4, 2018, Defendant filed a motion for new trial. Following an

October 16, 2018 hearing, the trial court denied the motion for new trial in a

judgment signed October 25, 2018, and filed into the record on November 19, 2018.

Defendant now appeals and assigns as error in its brief filed on February 20,

2019:

1. The District Court erred when it erroneously changed the established
standard for the case four days prior to trial to the prejudice of Gilchrist.

2. The District Court erred in applying the Corbello standard because
the unique circumstances of Corbello are not present in this case.

3. The District Court erred in applying the Corbello standard because
there was no contract to restore the property to its original condition.

4. The District Court erred in ruling that Plaintiffs’ claims were not
prescribed.

5. The District Court erred with respect to several significant
evidentiary rulings.

6. The District Court erred in rendering pre-trial rulings inconsistent
with the jury instructions that precluded the jury from being able to
render a verdict in accordance with the instructions.

7. The District Court erred in rendering a Judgment awarding unproven
and excessive damages.
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8. The District Court erred in awarding attorney’s fees under the
contracts, a purported bad faith breach of contract, and under La.C.C.P.
at. 1472.

9. The District Court erred in awarding attorney’s fees in an amount
which was unproven and unreasonable.

Plaintiffs filed their brief on March 27, 2019. On April 5, 2019, Defendant

filed a reply brief and additionally filed an exception of prescription reiterating its

claim in its original brief that Plaintiffs’ claims were prescribed. On April 15, 2019,

Plaintiffs filed an opposition to Gilchrist’s exception of prescription. On April 23,

2019, Plaintiffs filed a surreply brief. Pursuant to our discussion of assignment of

error four below, Defendant’s exception of prescription is denied.

DISCUSSION

We first note that Defendant does not argue that the jury was manifestly

erroneous in its finding that it breached its contracts with Plaintiffs. Instead, it asserts

a series of legal arguments to circumvent the jury’s factual findings. Because the

factual findings of the jury are of paramount importance in understanding the three

contracts existing between the parties, we review the testimony given at trial.

Plaintiffs’ Case

Drew Fontenot

Fontenot testified that he had been married to Juanita Wilder Fontenot for

about twenty-three years, had attended bible college, farmed, and was a hospice

chaplain for many years. He testified about his long history of rice farming hundreds

of acres of Fontenot land, which he still did as of the date of the trial. He discussed

the 250 acres of the Wilder property which he had managed since he married Juanita.

Of the 120 acres in question, Fontenot testified that he also farmed rice on that

acreage in 2000. Fontenot testified about his initial meeting with Carey Marcantel

of Gilchrist in which Marcantel told him that Gilchrist needed soil for the highway

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expansion. He described how Marcantel showed him other sites where ponds were

created where the soil had been removed. Fontenot said that he believed it would

improve the property and be a fun place to bring the grandkids so he told Juanita and

June about Gilchrist’s offer to purchase soil. He discussed the initial contract, the

RIGHT OF ENTRY, he entered into on behalf of Juanita and June dated February 2,

2007. It states in pertinent part:

KNOW ALL MEN BY THESE PRESENT THAT I HEREBY
GRANT AUTHORITY FOR THE DEPARTMENT OF
TRANSPORTATION AND DEVELOPMENT, IT’S [sic] AGENTS,
ENGINEERS, AND/OR CONTRACTORS THE RIGHT TO ENTER
UPON MY PROPERTY ADJACENT TO THE RIGHT-OF-WAY OF
THE CAPTIONED PROJECT FOR THE PURPOSES OF
CONSTRUCTION, WITHOUT COST TO ME,
Excavation/Embankment, AT PROPERTY LOCATED
[HANDWRITTEN] multiple 40 acre tracts see description on back.

IT IS UNDERSTOOND THAT THIS GRANT IS MADE
PROVIDED THAT GILCHRIST CONSTRUCTION COMPANY,
L.L.C., WILL CORRECT ALL DAMAGES ARISING OUT OT ITS
CONSTRUCTION OPERATIONS ON MY PROPERTY WHICH I
HERERBY AUTHORIZE.

The document is signed by Marcantel as representative for Gilchrist. Fontenot

discussed meeting with Marcantel again and the subsequent “Agreement to Buy/Sell

Dirt” (the Dirt Agreement) that Juanita and June entered into on June 25, 2007. That

contract stated in pertinent part:

The buyer will maintain an access road for haul trucks to access
the pit. Any clearing required to create the dirt pit will be performed
by the Buyer with all cleared saplings or trees buried in the pit. Buyer
will leave a clean, nicely shaped dirt pit to the sellers’ satisfaction when
all activities are complete. The slop[e] of the outer perimeter of the pit
will be 4 to 1. The Buyer will also clear trees and brush on the outer
perimeter of the tracts of land to property line. The Buyer will also
construct an access road from Hwy 165 to Sellers land located at NW
¼ of NE ¼ of Section 7 Township 6 South; Range 4 West in Allen
Parish North of existing Holiday Inn Express (referred to as Tract 1).
The buyer will plate the bottom of the excavation if necessary, to ensure
that the excavation holds water.

The Seller will be held harmless by Gilchrist Construction
Company L.L.C. from any future damages, injuries and/or claims
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arising from the mining of dirt and clearing of vegetation on above
tracts of land.

The Buyer will pay the Seller $.50 per cubic yard for all dirt that
is purchased.

The Buyer will conduct a monthly survey of the excavated pit to
determine the purchase quantity of dirt for each month, starting 30 days
from the initial excavations. The Buyer will then pay the Seller every
30 days for dirt purchased. A copy of the survey will be included with
each monthly payment. The seller, at any time, may bring in his own
independent survey firm to verify Buyers quantities.

The Buyer will not dispose of any hazardous materials on this
property.

Fontenot testified regarding the third agreement that he said occurred about a

week to ten days after the Dirt Agreement. Fontenot said he was called into the

Gilchrist office and met with Alsey Lachney:

And his words was, Drew, I need, I would like permission to
temporarily to put a couple or a few loads on your property. And then
I know I stopped right then and I says what are you gonna do with them.
He said it is gonna be temporary. I said then what are you gonna do? I
am gonna move it. I am gonna haul it off. And I was very meticulous,
I said, Alsey, Carey, look, I want to see it down to where my topsoil
was so I can farm this. It was important to me to get it at that level
because I had spent a lot of time when I was farming it to water level
to make sure it would flood. I didn’t want a lot of holes so I wanted it
done right. He said, Drew, I will do it just like it was my own. And at
that point I had had a lot of discussions with both of them. I trusted
Carey. I have known Carey’s family all my life. In fact I rented, leased
some – I farmed rice on his grandpa’s land. I was a tenant farmer on
him for about five years. I just trusted them. And I believe he would
temporarily store a few or a couple of loads.

Fontenot said that approximately ten days after the verbal agreement he went

out to the property and saw a pile comprised of rubble, concrete, asphalt, and broken

pipe. On the top of the pile, which he described as higher than the ceiling in the

courtroom covering an acre of land, was Fontenot’s twenty-foot farm implement (a

harrow) that he had purposely left near the road. He said that he thought that he and

Lachney had a differing opinion of what constituted a “few loads” so he went to the

Gilchrist office where Lachney reassured him that he would remove it all and restore
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the land. Fontenot testified that the harrow was never replaced. He said he never

gave Gilchrist permission to dump anything on the property and leave it there.

Fontenot next reviewed discovery responses by Gilchrist in which Gilchrist

denied that it was aware that the dirt pit left on the property was not to Plaintiffs’

satisfaction. Other pertinent discovery responses by Gilchrist regarding the oral

agreement that was entered into between Fontenot and Lachney include (emphasis

added):

REQUEST FOR ADMISSION NO. 13
Please admit or deny that Exhibit 1 does not provide for the
disposal or dumping of material in or on the Fontenot/Wilder property.

RESPONSE:
It is admitted that Exhibit 1 does not give Gilchrist permission to
dispose or dump material on the Fontenot/Wilder property. Drew
Fontenot gave Alsey Lachney verbal permission for temporary
disposal of material on the Fontenot/Wilder property.

REQUEST FOR ADMISSION NO. 14
Please admit or deny that a representative of Gilchrist
Construction Company, L.L.C. asked Drew Fontenot if Gilchrist
Construction Company, L.L.C. could temporarily dump “a couple of
truckloads” of material on the Fontenot/Wilder property.

RESPONSE:
It is admitted that Drew Fontenot gave verbal permission to a
Gilchrist representative to temporarily dump material on the
Fontenot/Wilder property. It is denied that the permission was limited
to a “couple of truckloads.”

REQUEST FOR ADMISSION NO. 15:
Please admit or deny that in obtaining permission to temporarily
dump material on the Fontenot/Wilder property, a representative of
Gilchrist Construction Company, L.L.C. assured Drew Fontenot that
all such material would be removed from the property.

RESPONSE:
Admitted.

REQUEST FOR ADMISSION NO. 16:
Please admit or deny that Gilchrist Construction Company,
L.L.C. dumped and/or disposed of multiple truckloads of material,
including concrete, asphalt, and /or debris, on the Fontenot/Wilder
property.

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RESPONSE:
It is admitted that Gilchrist dumped multiple truckloads of
materials on the Fontenot/Wilder property. It is denied that the
materials were “disposed of” on the Fontenot/Wilder property.

....

REQUEST FOR ADMISSION NO. 18:
Please admit or deny that Gilchrist Construction Company,
L.L.C. has removed all materials which were dumped or disposed of on
the Fontenot/Wilder property.

RESPONSE:
Admitted.

REQUEST FOR ADMISSION NO.19:
Please admit or deny that Gilchrist Construction Company,
L.L.C. buried materials, included concrete, asphalt, and/or debris, on
the Fontenot/Wilder property.

RESPONSE:
Denied.

Fontenot testified that Gilchrist had not removed all of the surface debris and

that Gilchrist buried construction debris on Plaintiffs’ property, which he only

learned of after the lawsuit was filed. He said that, although the excavation was

completed in 2008, by 2010 the property had still not been cleaned up. He reviewed

extensive photographic and video evidence of the debris and buried concrete on the

property. Fontenot testified that he only wanted the debris removed and the property

restored. On cross-examination, Fontenot was certain of Lachney’s promise to

remove and restore:

Q. Okay. But Alsey never told you that he was going to return the land
to its original condition. That was never the words, was it?

A. Oh, yes, that was his words.

Q. I will return the land to its original condition?

A. I will remove and restore it to like you had it. I don’t know how it
was. Maybe you are right, maybe there are three words that are
different. But I know what the content of that conversation was. Cause
we talked about I wanted to be able to look at my topsoil when they got
through removing a few or a couple of loads.
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June Wilder

June testified that she currently resides in Metairie, Louisiana, and works as a

chaplain for the New Orleans Police Department. She stated that Fontenot has

always had her full authority to manage the farm on her behalf and that she

authorized all of the dealings with Gilchrist. June testified that the property looks

nothing like it did before Gilchrist arrived and that farm equipment could not be used

on the land because it would tear up the equipment since there is so much concrete

and asphalt remaining on the land.

Earl Garber

Garber attained a Bachelor of Science degree in agronomy in 1974 and is a

licensed crop consultant through the Louisiana Department of Agriculture. He was

tendered as an expert in soil science and soil restoration. Garber testified that the

only way to restore the area and remove the concrete, asphalt, and rebar from the

soil would be to remove three feet of soil everywhere and replace with new soil. He

stated:

Based on the removal of all of that material that I saw in my
observations, which I feel will absolutely interfere with a normal
farming operation that has equipment that can be damaged, and the fact
that some of the data that came from Mr. Daigle’s report in relation to
how the soil pH has been changed on the farm, it just seems to me like
the only logical way to solve this is to remove the soil and replace.

Garber testified that he noted gravel throughout the property which should not be

present at all in the type of soil existing in Allen Parish. He further discussed pH

levels in detail using Daigle’s testing to show that the pH levels were not normal for

the area. Garber said that the land was not farmable in its present condition because

of the obstructions consisting of fragments and boulders. He concluded that with

the “combination of the objects out there, the fragments, and other items, along with

the complication of the pH, the two together becomes a significant problem, and I

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think the best way would be to remove.” He stated that the concrete, asphalt, and

rebar all needed to be removed. In conclusion, he noted that he had never seen

anyone farming rice on top of a landfill.

James Landraneau

Landraneau, a civil engineer and land surveyor, testified regarding the

pictures and surveying he conducted at the site. He also reviewed data provided by

Defendant. Using Defendant’s data, Landraneau determined that 12,000 cubic yards

of dirt were removed from a separate pit (the ghost pit) on the Wilder property then,

unexplainably, filled back up. Landraneau was also of the opinion that road

construction debris was dumped in the main pit and that it was essentially being used

as a landfill by Defendant. Landraneau described the type of road construction

debris found subsequent to the surface clean-up efforts undertaken by Defendant:

There was box culverts on the project, concrete structures, pipe – And
what we found, -- asphalt, soil cement base. What we found on the site,
on the surface, was material that fit that description. What we found
buried were large pieces of what I call structural concrete. That is
concrete that is very thick. I am not talking about like a person’s
driveway. But I am talking about eight – ten inches in thickness with
steel reinforced bars in the material. We found evidence of the bars by
themself. [sic] We found evidence of the bars in the structural concrete
blocks that were buried on the site. And we found corrugated pipe,
metal pipe, and the same type of material in the bottom of the pit when
it was drained, and along the edges of the pit.

Landraneau gave detailed measurements of the cubic feet of the pit at the time

of excavation (180,000 cubic yards) and after (120,000 cubic yards). Landraneau

concluded that a two-acre area was excavated but not shown on Defendant’s final

survey. He assumed that Defendant did not pay Plaintiffs for that work since it was

not included on the survey. When asked what would be required to remove all of

the debris from the 30-acre affected area and to restore it to what it was before,

Landraneau stated that the soil would have to be hauled away and replaced with

suitable material except in the pit where the material would only need to be hauled
11

away. He agreed with Garber that a depth of at least three feet would be a reasonable

depth to remove debris and restore the land. He further opined that the entire area

would need to be excavated because:

What we have found is that the affected area has material that has
been either buried to depths of five to six feet, which I think the video
and the photographs clearly indicate. But it is not in one place, and it
is not done systematically other than maybe the ghost pit and maybe
the perimeters of the pond. But where we have photographs to
document the depth, it is so pervasive throughout the whole site that the
only way to be sure that you are getting is to clean the whole site.

Landraneau testified that Charles Kingrey’s estimate of $3,935,362.00 to

remove and excavate the 30.47-acre area was a conservative estimate and certainly

reasonable. He further felt that Kingrey’s $1,623,036.00 estimate to restore the

property was reasonable.

Charles Kingrey

Kingrey, owner of Kingrey Dirt Work, Inc., testified that he has been in the

dirt business for almost forty years. He testified to the extensive experience he has

in a variety of large industrial projects requiring dirt. Kingrey said that he had

contracted with many landowners to excavate dirt from their land. He testified he

had done several jobs for Defendant. Kingrey computed total removal costs that

included excavation, loading, trucking to a landfill, and dumping of the 30.74 acre

affected area at $3,935,962.00. He calculated the restore cost of 16.57 acres at a

depth of three feet and a volume of 110,673 cubic yards at a total cost of

$1,623,036.00. Kingrey gave detailed testimony at how these figures were

calculated which included fifteen trucks working eight hours per day for two

hundred and sixty-seven days. Hauling costs amounted to $2,243,080.00,

excavating and loading costs amounted to $1,068,000.00, and disposal costs

amounted to $624,882.00 for a total of $3,935,962.00 for loading, hauling, and

disposing. He testified that this was a very conservative estimate.
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On cross-examination, Kingrey further testified that “in every area that we

dug, there was soil cement, concrete, metal, asphalt, plastics” and that it would not

be possible to sift out good dirt from soil cement and bring the other stuff to the

landfill. He testified that the construction debris “is everywhere out there.”

Defendant’s Case

Alsey Lachney

Lachney testified that he worked at Gilchrist for sixteen-and-a-half years

before he was terminated due to a dispute between him and the owner. Lachney

testified regarding the temporary storage of material on the Wilder property: “and

he said how much, and I said a few loads.” He said that he requested that some

concrete loads be temporarily stored on the property until the concrete crusher could

be obtained. Lachney denied any knowledge of the farm implement being on top of

the concrete pile. He admitted that he told Fontenot that Defendant would clean up

the property.

Lachney was questioned by defense counsel:

Q. Did y’all ever dump in the pit?

A. Yeah, we dumped some concrete in the pit right there, on the edge.

Q. You dumped what?

A. Some concrete to the build that edge, to build that road. Cause we
asked him and he wanted it right there.

Q. Okay. Let’s define dump. You placed concrete along that little road
that goes out into the pit?

A. Yeah, he wanted that there.

Q. Okay. You consider that dumping?

A. Let me change that. I didn’t. Dirk placed that.

Lachney admitted that he entered into a verbal agreement with Fontenot to

temporarily place debris on his property that would all be removed and the property
13

cleaned up to his satisfaction. He admitted that he told Fontenot that he would treat

the property as if it were his own. He further confirmed his prior deposition

testimony that Defendant was obligated to clean up the chunks of concrete left on

the property. Further reviewing his deposition, Lachney was asked, “Mr. Fontenot

never agreed to allow Gilchrist to dump concrete in the pit. Answer, correct. Right?”

to which Lachney stated that was still the truth. Lachney said that before he left the

job, the surface concrete was removed and that he did not know that there was any

concrete beneath the surface. He testified that Defendant would have cleaned up

everything if Fontenot would have let them complete the job.

Kevin Grage

Grage, a twenty-seven-year employee of Gilchrist, testified that he went out

to the property and conducted an inspection after Fontenot called him. Grage said

that there was concrete, asphalt, PVC pipe, and “stuff like that” on the property that

should not have been there. Grage contacted Dirk Fontenot and arranged for the

property to be cleaned. Grage said that Drew Fontenot was pleased with the work

that was done and that was the end of the story. Grage knew nothing of the buried

concrete and construction debris and, at that time, the pit was full of water so the

material dumped in the pit could not be seen. Grage admitted that the property was

not left to the satisfaction of the owner and that concrete chunks should not have

been left on the property. He testified that it was Defendant’s duty to clean it up.

Grage said that, had he known there was construction debris buried underneath the

property, he would have handled the matter differently.

Dirk Fontenot

Dirk Fontenot, a 20-plus-year employee of Gilchrist, testified that he was

called by Grage to do a cleanup of the pit on the Wilder property over a 40-acre area.

He said that he met with Drew Fontenot at the site. He noticed concrete, rebar,
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plastic pipe, and asphalt on the property. He worked cleaning up the site for about

a month. He denied burying any of the debris. Dirk said he removed about six

truckloads of concrete with “a bunch of rebar in it” from the site. Dirk said that

Drew Fontenot seemed pleased with the work completed, but that in November 2010,

he called to report finding more concrete. Dirk said that he went back to the site but,

because of the rain, the crew was not able to accomplish much. Dirk said that after

that time they never went back to the site. Dirk stated that the cost of the clean-up

amounted to $76,431.77. On cross-examination, Dirk was questioned:

Q. In your cleanup you said that you more or less scraped the surface,
maybe down to a couple of feet, and that is all of the huge amounts that
we have seen in those photographs, correct?

A. There is some areas where we went deeper.

Q. How deep?

A. Some areas were six to eight foot deep. Like I said earlier, I didn’t
pull a tape measure out, you know.

Q. How did you know when to go six to eight foot deep?

A. We would just trace it down til we quit finding it.

Q. And it was – how does something get eight feet deep? How does
road construction debris get eight foot deep? It doesn’t get there
accidentally?

A. No, no it doesn’t. It is a hole. Somebody has got a hole.

Q. Gilchrist had to have dug a hole and had to have dumped debris in
it, correct?

A. Correct.

Q. And buried it, covered it, right?

A. Yes.

Dirk said his job was only to scrape the surface.

15

Jerry Daigle

Daigle, a retired soil scientist, was admitted as an expert in agronomy, soil

science, soil classification, soil mapping, soil interpretation, and soil restoration.

Daigle was to present a slide show explaining soil types, but Plaintiffs’ counsel

objected. Instead, Daigle gave an in-depth lecture about soils. He concluded that

Kingrey’s estimation of 12 or 18 inches of topsoil for restoration was “not natural”

and that the range in Allen parish is “around four to around eight or nine inches.”

He further concluded that:

The other things is there is a proposal to take all this soil out, haul it
away and bring it in with something compatible with what was there
originally. If you look at the Soil Survey, again, the soils that were
there originally were silt loams and silty clay loams. The soils that are
there now are silt loams and silty clay loams. The exact same textures
that were there originally. The only thing we lack now is chemical
balance and soil structure to return. And that will happen over time.
And they [sic] are ways to accelerate the process. And I am not gonna
get into that, but that can be accelerated. So, as those soils sit on that
property today to grow rice, there is, except for the few cobbles that
need to be removed, there is no restrictions. . . . So, in my opinion the
potential for problems with rice growing on this soil are minimal.

On cross-examination, Daigle admitted that he only sampled areas where

Gilchrist had performed work on the soil. He took no control samples from

undisturbed areas of the land and admitted that he “consulted with [Gilchrist lawyers]

to make sure they didn’t want me to find anything on a different scale[.]” None of

his samples were taken from the ghost pits on the property although he hit a rock in

one sampling and had to move north by twelve inches. He had no knowledge of the

dumping. The testing consisted of 26 two-inch holes in the ground to determine the

type of the soil. However, on redirect Daigle denied purposely avoided the ghost

pits in his sampling.

16

Frank Willis

Willis, a civil and environmental engineer and geoscientist, was qualified as

an expert. Willis disagreed with Landraneau’s estimation of the of the volume of

the pit. Willis determined that the pit was 14 acres. Willis’ testimony was that, if

there were 60,000 cubic yards of debris in the pit, someone would have noticed it.

He opined that an $8.00 probe rod would have revealed concrete in the pit. He stated,

To determine that you need to spend as much money as I am hearing to
remove concrete from the bottom of the pond, you just need to be sure
the bottom of the pond has concrete in it. And I would have probed it
to get a starting point and then started digging in it to see how thick it
is.

....

A. I do not see where that was done.

Willis further testified that having concrete in the pond is not necessarily a

bad thing as it gives structure to the pond. He concluded that there had not been

enough investigation to determine if the pond needed to be completely excavated.

Although he admitted that there was definitely concrete out there “and some of it

looks terrible,” he concluded that it was impossible to say how much concrete was

present without more sampling. However, Willis gave a long analysis basically to

say that if three feet of dirt was removed and construction debris placed in the pit,

the three feet of dirt had to be moved somewhere and there is no evidence of where

it had gone to. Willis came up with a figure of $711,480.00 based on seven- or eight-

acres worth of buried concrete that would require removal and restoration. Willis

spent about six hours on the property, although he was given two days. In that time,

he did not go out to the property with a probe rod and a boat and test the pit for

concrete.

17

Applicable Standard of Review

It is well settled that a court of appeal may not set aside a trial
court’s or a jury’s finding of fact in the absence of “manifest error” or
unless it is “clearly wrong,” and where there is conflict in the testimony,
reasonable evaluations of credibility and reasonable inferences of fact
should not be disturbed upon review, even though the appellate court
may feel that its own evaluations and inferences are as reasonable.

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

While we will not disturb a jury’s finding in the absence of manifest error, if

legal errors interdict the fact-finding process, the manifest error
standard is no longer applicable, and, if the record is otherwise
complete, the appellate court should make its own independent de novo
review of the record and determine a preponderance of the evidence.”
Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731, 735. See also
West Jefferson Levee Dist., 640 So.2d at 1278. Legal errors occur when
a trial court applies incorrect principles of law and those errors are
prejudicial; when such a prejudicial legal error occurs, the appellate
court is required to review the record and determine the facts de novo.
Evans, 708 So.2d at 735.

St. Bernard Port, Harbor & Terminal Dist. v. Violet Dock Port, Inc., LLC, 17-434,

pp. 14-15 (La. 1/30/18), 239 So.3d 243, 254.

Corbello versus Church

In its first assignment of error, Defendant argues that the trial court changed

the legal standard for the case four days prior to trial. It claims that the summary

judgment of June 2014 only required that it restore the property to a condition

suitable for farming and yet at trial, the standard had changed because the trial court

(now comprised of a different judge after several recusals and the death of one judge)

found on March 8, 2018, that the issue of whether the land was “farmable” was not

relevant to the issue of whether remediation was required. Defendant argues that

Plaintiffs originally had to prove that the land was no longer farmable and that, by

the time of trial, they need only prove that materials remained on the property.

18

At the motion for new trial and now in brief, Defendant argues that the trial

court determined that there was an express agreement to restore by stating that

Corbello applied thereby removing that finding from the purview of the jury. We

disagree. The issue of whether there was an agreement to restore and whether there

was a breach of that agreement was a central issue in the week-long trial. The very

first question on the jury verdict form addresses these issues: “Do you find that

Plaintiffs have proven by a preponderance of the evidence that Defendant breached

a contractual obligation it owed to Plaintiffs?” This question clearly includes both

whether a contract existed to remove and restore and whether Defendant breached

that obligation.

Moreover, Defendant’s appellate counsel did not try the case. At trial,

Defendant did not challenge whether it owed a duty to remove and restore. Every

Gilchrist employee testified that Defendant was obligated to remove the construction

debris left behind and bring the property back to the satisfaction of Drew Fontenot.

This was not disputed. At trial, much like in Corbello, the issue of what would be

required to restore the property was hotly debated. The experts addressed the very

issues that Defendant now complains of−what would it take to restore the

property−as that is what Defendant expressly agreed to do in its oral contract entered

into by Lachney. Defendant had its opportunity to put on its witnesses who claimed

the property was suitable for farming even with the buried pits of construction debris,

but the jury obviously did not credit that testimony.

Defendant states in its brief:

Four days prior to trial, the District Court issued a ruling, not
only excluding Gilchrist’s testimony regarding what was previously the
central issue in the case, but ruling such testimony as being irrelevant.
The ruling stated: “This Court believes the opinion that the land is
‘farmable’ is not relevant to the issue of whether remediation is
required.” This changed everything!

19

We disagree. The issue of whether the land was farmable was not the central

issue in this case. The existence of a contract to remove and restore the land was not

a central issue in this case. Defendant admitted in discovery and over the course of

the trial that it was obligated to remove the construction materials and restore the

land. The central issue in this case was whether Defendant breached that contractual

obligation to restore. Corbello only becomes a factor in determining what

reasonable restoration entails in a breach of contract dispute.

In brief, Defendant states, “The only other logical manner in which Plaintiffs

could show damage to their property would be to establish that the existence of

materials left on the property diminished the value of the land.” Again, we disagree.

Defendant claims that “by removing the requirement that Plaintiffs show that any

materials left on the property resulted in damage to the property, Plaintiffs were

entirely released from having to prove an essential and necessary element of their

breach of contract claim.” Moreover, Defendant mischaracterizes the burden

bestowed upon Plaintiffs in this case, i.e., to prove that the land was no longer

farmland.

The jury found that Defendant breached its obligation to remove and restore

the property. While Defendant focuses on the nature and value of the property, the

oral contract between the parties was that the construction debris would be removed,

and the property restored to the satisfaction of Fontenot and Plaintiffs. Fontenot

testified, and no one disagreed, that the land was farmland. Fontenot said that he

wanted the property to be farmland as it was before and that is the obligation that

was breached.

Corbello (Assignments of Error Two and Three)

In its second assignment of error, Gilchrist argues that the trial court

erroneously applied the standard set forth by the Louisiana Supreme Court in
20

Corbello, 850 So.2d 686. Defendant argues that it “did not clearly and expressly

obligate itself, after full and complete negotiation, to restore Plaintiffs’ property to

its original condition as did Shell in Corbello.” Many of Defendant’s arguments rest

on this notion that the application of Corbello completely changed the nature of this

trial. The facts of Corbello are strikingly similar to the ones here, except that Shell

had a written contract with the landowners to “‘reasonably restore the premises as

nearly as possible to their present condition.’” Id. at 694. The issue in Corbello was

what constituted reasonable restoration. Shell argued that the award of

$33,000,000.00 to restore the property was unreasonable as it was 300 times the

market value of the land.

As in Corbello, the case at bar sounds in contract, not in tort as was the case

in Church, 618 So.2d 874, which Defendant claims should control. The supreme

court in Corbello made it very clear that market value has no bearing in breach of

contract cases involving restoration. As in this case, the jury in Corbello was tasked

with determining the cost of reasonable restoration. Accordingly, the supreme court

in Corbello found that the jury did not manifestly err in casting Shell with

$33,000,000.00 in cleanup and restoration costs. The supreme court stated:

[W]e disagree with the arguments presented by Shell and find that the
damage award for a breach of contractual obligation to reasonably
restore property need not be tethered to the market value of the property.

....

We held in Roman Catholic Church v. La.Gas Serv. Co., 618 So.2d 874
(La.1993), which involved tortious damage to immovable property, that
“ … if the cost of restoring the property in its original condition is
disproportionate to the value of the property or economically wasteful,
unless there is a reason personal to the owner for restoring the original
condition or there is a reason to believe that the plaintiff will, in fact,
make the repairs, damages are measured only by the difference between
the value of the property before and after the harm.” Id. at 879-880.

We find that damages to immovable property under a breach of
contract claim should not be governed by the rule enunciated in Church.
21

We find that the contractual terms of a contract, which convey the
intentions of the parties, overrule any policy considerations behind such
a rule limiting damages in tort cases. We recognize that in some cases,
as in the instant case, the expense of restoration of immovable property
can be extremely high. However, while we find it logical in tort cases
to tether the amount of damages by balancing the amount to be paid by
the negligent tortfeasor against the goal to restore the plaintiff, as
closely as possible, to the position which he would have occupied had
the accident never occurred, this same logic should not be extended to
breach of contract cases.

The measure of damages in breach of contract cases is governed
by the four corners of the contract. In this case, Shell, a sophisticated
company with vast experience negotiating oil and gas contracts, bound
itself by contract to “reasonably restore plaintiffs’ property to as near
as possible to its current condition.” Shell must not be allowed to now
alter the terms of this contract by limiting its liability to an amount
reasonably or rationally related to the market value of the property.

Thus, we decline to set forth a rule of law, suggested by Shell,
that in cases of breach of a contractual obligation of restoration in a
lease, the damage award to plaintiffs must be tethered to the market
value of the property. To do so would give license to oil companies to
perform its operations in any manner, with indifference as to the
aftermath of its operations because of the assurance that it would not be
responsible for the full cost of restoration.

Corbello, 850 So.2d at 693-95.

In assignment of error three, a variation on a theme, Gilchrist argues that

“there was no express agreement to restore Plaintiffs’ property to its original

condition.” The jury found that there was a contract to restore the property to its

original condition. We find no manifest error in that finding. The testimony of

Fontenot, Lachney, and others made it clear that an oral contract to restore existed

between the parties. Furthermore, the actions of the parties made it evident that the

parties were aware of the duty to restore since Defendant sent out people to do that

very thing, i.e., Grage and Dirk Fontenot. The existence of a contract to restore the

property, as noted above, was not disputed.

Next, Defendant reiterates its claim that leaving tons of construction debris

buried underground are not “damages.” In this assignment, Defendant argues that

22

the oral agreement between Fontenot and Lachney created a right of use, and the

“obligation to use the property as a prudent administrator does not equate to a

promise to completely restore the property to its original condition.” Defendant

further claims that Lachney’s testimony that he did not recall using the word “restore,”

but instead used terms like “make it back to [Fontenot’s] satisfaction” and that he

would “treat the property like he would his own” are insufficient to create an

obligation to restore the property. We disagree. As discussed below in the

assignment relating to evidentiary rulings, the existence of the contract was not the

issue. Defendant never denied that the oral contract to remove and restore existed,

nor did it put forth any evidence suggesting that it did not exist. It only argues that

now, in briefs to this court, after admitting in discovery responses to its existence.

The issue in this trial was whether Defendant breached the contract by failing to

remove the construction debris it left behind and whether it breached the contract by

failing to restore the property. Defendant cannot now have a new trial at the

appellate level on the issue of whether an oral contract existed. Defendant further

raises for the first time on appeal the issue of Fontenot and Lachney’s legal authority

to enter into the agreement. This issue will also not be tried for the first time at the

appellate level. This assignment of error is without merit.

Prescription

In this assignment of error, Defendant argues that since “there was no express

agreement [to restore the property to its original condition], Plaintiffs’ claims sound

in tort and were prescribed.” Defendant states: “Plaintiffs claim that Gilchrist

exercised its right of use in such a manner which caused unreasonable damage and/or

failed to properly repair the property in a prudent and workmanlike manner. Those

claims sound in tort, subject to a one-year prescriptive period.” For the reasons

23

mentioned above, this is a contract claim subject to a ten-year prescriptive period.

See La.Civ.Code art. 3499.

The facts and factual findings of the jury in this case are that Defendant

breached the contract by failing to remove the construction debris that was to be

temporarily stored on Plaintiffs’ property and failing to restore the property to its

original condition. That contract was entered into sometime in early July 2007.

Plaintiffs filed suit in 2012, well within the ten-year prescriptive period. This claim

sounds in contract, not tort, and it is subject to a ten-year liberative prescription

period. The claim was not prescribed. This assignment of error is without merit.

Evidentiary Rulings

In this assignment of error, Defendant again complains that it was not allowed

to prove that Plaintiffs’ property was not damaged because it was still suitable for

farming, and the value of the property was not diminished. The value of the land in

real-estate terms is completely irrelevant, as found by the trial court and for the

reasons stated above. Pursuant to the reasoning in Corbello, the exclusion of the

market value evidence was not in error.

Defendant further complains that its soil expert, Daigle, was prevented from

using a PowerPoint presentation to give a lesson on soil types. The expert was

allowed to testify and gave very thorough explanations of soil and what the effect of

the dumping had on the soil and whether it was suitable for farming. The PowerPoint

presentation at issue did not bear on issues critical to the jury’s job. Daigle wanted

to teach a lesson in soil types. The presentation would have been informative and

would not have created confusion or delay. Therefore, it should have been allowed.

However, we also find that it was harmless error to exclude the PowerPoint

presentation because Daigle was allowed to testify and did so otherwise unfettered.

24

Finally, in this assignment of error, Defendant also complains about the last-

minute discovery of even more buried boulders on Plaintiffs’ property by Fontenot

about which he commented at trial, “big boulders, more than I have ever seen,”

before the trial court shut down the line of inquiry after Defendant objected. We

find this comment of little consequence, as the tons of buried construction debris had

already been discussed and viewed by the jury. This assignment of error is without

merit.

Pre-trial Rulings

In its sixth assignment of error, Defendant continues its theme that there was

a genuine issue as to whether the parties agreed to restore the property to its original

condition. As previously noted, in discovery responses, Defendant admitted to the

existence of the oral contract to remove and restore. Every Gilchrist representative,

including the person who entered into the oral contract, testified as to the existence

of the oral contract existing between Defendant via its agent, Lachney, and Fontenot.

Defendant even sent out its employees (Grage and Dirk Fontenot) to attempt to

restore the surface conditions of the property. Because there is no manifest error in

the jury’s finding that an agreement to remove and restore existed, the complained

of statement that the trial court gave to the jury, that “Defendant disputes that the

agreement calls for restoration of the property and disputes the nature, extent and

costs of removal and restoration[,]” has no merit. It appears that Defendant is

arguing that the jury verdict form should have included a question along the lines of,

“Do you find that an express agreement to restore the property to its original

condition existed?” The jury affirmatively answered this question in its finding that

Defendant breached its contractual obligation. Moreover, Defendant failed to object

at any of the stages relating to jury instructions or the verdict form.

25

Again, in this assignment of error, Defendant relies on what it claims is the

erroneous application of Corbello. Defendant states in brief:

There is no question that the Court’s pre-trial rulings shaped the trial
based upon the application of Corbello without the jury deciding the
necessary question of fact (i.e. whether the verbal agreement contained
an express agreement to restore the property to its original condition).
No express promise to restore means no Corbello!

This argument ignores the fact that Defendant admitted in discovery that an

agreement to remove and restore existed, that its employees testified to such an

agreement, and that it introduced no evidence to refute the existence of the oral

contract to remove and restore. Defendant cannot now backtrack via its brief and

attempt to argue that that agreement did not exist because of what it deems to be an

outrageous restoration award. This assignment of error is without merit.

Damages

In this assignment of error, Defendant argues that the damages awarded “are

outrageously out of proportion with the value of the land.” The value of the land is

irrelevant and the reason for that is clearly explained by Corbello. A construction

company would never remove and restore if it knew it would be advantageous from

a cost-benefit standpoint to just leave the construction debris behind and bury it. As

stated in Corbello:

The remaining question, then, is whether the jury’s award for
restoration was reasonable. In determining damages, the trier of fact is
accorded much discretion. The assessment of damages by jury is a
determination of fact. The role of an appellate court in reviewing an
award of general damages is not to decide what it considers to be an
appropriate award, but rather, to review the exercise of discretion by
the trier of fact. The adequacy of the award should only be determined
by facts or circumstances particular to the case under consideration.
Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993),
cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed. 2d 379 (1994).

Id. at 696.

26

Plaintiffs’ experts, Garber and Kingrey, gave detailed explanations of how

they arrived at the costs to remove debris and restore the property. Both testified

that the sums were on the very conservative side. The jury clearly valued that

testimony over Willis’s testimony that the entire area probably did not need to be

excavated. The jury obviously did not find Daigle’s testimony persuasive, and we

can find no manifest error in that finding. While Defendant goes to great length to

discuss how buried concrete boulders, rebar, and construction debris really are not

that harmful to the land and perhaps may even be of benefit to it, the jury did not

agree. Defendant emphasizes that the award is seventy times the value of the

property; however, it seems to completely miss the point that the cost to return the

property to its former condition as it expressly agreed to do was $5,500,000.00. This

assignment of error is without merit.

Attorney Fees

There are few premises of law more axiomatic than this: “As a general rule,

attorney fees are not allowed in Louisiana unless they are authorized by statute or

provided for by contract.” Langley v. Petro Star Corp. of La., 01-0198, p. 3 (La.

6/29/01), 792 So. 2d 721, 723. In the case at bar, the trial court instructed the jury

(emphasis added):

Now as a general rule, in Louisiana, attorney fees may not be awarded
to a successful Plaintiff unless specifically provided for by statute or a
contract. Plaintiffs contend that if you find in their favor, they are
entitled, under the contract, to recover attorney fees based on the
Agreement to Buy and Sell Dirt which provided that Defendant would
hold Plaintiffs harmless from any future damages, injuries and/or
claims arising from the mining of dirt. If you find in Plaintiffs’, favor
you must determine whether the parties intended for their contracts to
allow Plaintiffs to recover their attorney fees from Defendant in the
event Plaintiffs had to file a lawsuit over damage to their property.

The verdict form asked the jurors, “Do you find that Plaintiffs are entitled to

attorney’s fees under the contract?” to which the jury checked “yes.” The trial court

27

thereafter set the amount of attorney fees at $2,200,000.00, following a lengthy

hearing on the matter.

Defendant first argues that Plaintiffs’ claims arise out of the verbal agreement

and not the initial Agreement to Buy/Sell Dirt, as was presented to the jury.

Defendant claims that the issue of attorney fees should be limited to the oral

agreement regarding removal and restoration which states nothing about attorney

fees. Defendant next makes the legal argument that the hold harmless provision in

the Buy/Sell agreement does not mention attorney fees, that this standard

indemnification clause applies to third parties, and that it is not applicable in an

action to enforce a contract between the parties. Plaintiffs argue that Defendant’s

standard form contractual provisions must be interpreted against it as the drafting

party and that neither the first nor second contract limits the damages to claims by

third parties.

We agree with Defendant and find it was legal error for the trial court to

submit the issue of attorney fees based on the Agreement to Buy/Sell Dirt. Although

we defer to the jury’s findings in all cases in the absence of manifest error, we cannot

when the jury’s finding is premised on an inaccurate application of the law. The

Agreement to Buy/Sell Dirt is not the agreement that is the subject of this lawsuit.

The entire issue at trial was the existence and breach of the contract to remove and

restore. Even if the Agreement to Buy/Sell Dirt was the contract at issue, we agree

with Defendant that “by its plain terms, the hold harmless provision only applies to

‘damages, injuries and/or claims arising from the mining of dirt and clearing of

vegetation on the above tracts of land.’” The specific language of the dirt contract

upon which the award of attorney fees was granted states (emphasis added):

The Seller will be held harmless by Gilchrist Construction
Company L.L.C. from any future damages, injuries and/or claims

28

arising from the mining of dirt and clearing of vegetation on above
tracts of land.

This is a standard third-party indemnification clause meant to indemnify

Plaintiffs (obligees/indemnitees) in the event a third-party sued them as a result of a

negligent act by Defendant (obligors/indemnitors). The general and well-established

rule is that attorney fees must be expressly provided for in contract or a statute. State,

Dep’t of Transp. & Dev. v. Williamson, 597 So.2d 439 (La.1992). Moreover, there

is no Louisiana jurisprudence authorizing the award of attorney fees in a direct

indemnity contract except for the case of Curtis v. Curtis, 28,698 (La.App. 2 Cir.

9/25/96), 680 So.2d 1327. Curtis involved an indemnification agreement created

between two former spouses. The court in Curtis found:

In the present case, in the community property partition agreement, the
parties agreed to indemnify each other for any losses sustained if one
party failed to pay a debt assumed under the agreement. That provision
provided as follows:

The parties further stipulate and agree that neither
of the parties hereto shall have or enjoy the right to rescind
this community property settlement due to any failure of
either party hereto to pay the debt assumed by either of the
parties hereto, provided, however, that either party hereto
shall have the unrestricted right to demand of the other
indemnification for any loss he or she might sustain by
virtue of the other failing to pay the debts assumed herein.

This clause constitutes a “hold harmless” or indemnity provision.
An obligor under such provisions is liable for reasonable attorney fees
incurred by the obligee, even though the obligatory provision does not
specifically authorize attorney fees. South Central Bell Telephone Co.
v. Gaines Petroleum Co. Inc., 499 So.2d 521 (La.App. 2d Cir.1986).
As stated above, we find that the 1994 income tax liability for Curtis
Farms Partnership was a farming indebtedness assumed by the
defendant in the agreement that he refused to pay. Therefore, the
defendant was liable for the plaintiff’s attorney fees. The
reasonableness of an attorney fee is within the great discretion of the
trial court. Sims v. Hays, 521 So.2d 730 (La.App.2d Cir.1988). Based
upon the facts of this case, we find that the trial court did not err in
awarding attorney fees to the plaintiff in the amount of $3,726.30.

Id. at 1332-33.

29

While Curtis found that attorney fees were implied, the facts of that case are

inapplicable to the facts here. The language of the indemnity provision in Curtis

clearly applies to the parties to the contract, i.e., the former spouses. The plain

language of the indemnity provision in the Agreement to Buy/Sell Dirt reveals no

indication that the agreement was a direct one. While any confusion could have been

cleared up by the insertion of “third-party” before the word “claims” in the indemnity

contract, we have no doubt that this indemnity contract was meant for third parties.

Regardless of how we may interpret the provisions of this contract, the more

fundamental fact is that this case revolves around the breach of an entirely different

contract, the oral contract to remove and restore. That contract was totally silent on

the issue of attorney fees. Therefore, we find it was legal error for the trial court to

submit the indemnification language to the jury to determine whether attorney fees

were warranted under the Agreement to Buy/Sell Dirt. However, this does not end

the inquiry regarding the award of attorney fees.

Bad Faith Breach of Contract

Louisiana Civil Code Article 1997 provides: “An obligor in bad faith is liable

for all the damages, foreseeable or not, that are a direct consequence of his failure to

perform.” The jury was specifically presented with the question of whether

Defendant “acted in bad faith in breach of its obligation?” which it answered

affirmatively. The trial court’s judgment incorporates the bad faith finding as

support for its award of attorney fees in favor of Plaintiffs as it states:

IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that judgment is rendered in favor of plaintiffs, Juanita W.
Fontenot and T. June Wilder, and against defendant, Gilchrist
Construction Company, LLC, granting recovery of attorney’s fees
under the contracts, the jury’s finding of bad faith, and as provided in
Louisiana Code of Civil Procedure article 1472, in the amount of forty
percent (40%) of the damages awarded as provided in the attorney-
client contracts.

30

Although we find no manifest error in the finding that Gilchrist breached its

obligation in bad faith, we find the trial court legally erred in awarding attorney fees

pursuant to La.Civ.Code art. 1997. We note that Plaintiffs did not brief this issue in

their appeal nor did the trial court address the bad faith breach award of attorney fees

in its reasons for judgment. As Defendant points out, the courts of this state have

repeatedly held that attorney fees are not allowed under La.Civ.Code art. 1997. The

supreme court in Sher v. Lafayette Insurance Co., 07-2441, 07-2443, p. 18 (La.

4/8/08), 988 So.2d 186, 201, unequivocally stated as such:

Plaintiff argues that, pursuant to C.C. art. 1997, he is entitled to
attorney’s fees due to Lafayette’s bad faith breach of contract.
Louisiana courts have long held that attorney’s fees are not allowed
except where authorized by statute or contract. E.g., Rivet v. State, 96–
0145 (La.9/5/96), 680 So.2d 1154; State, DOTD v. Williamson, 597
So.2d 439, 441 (La.1992). Article 1997 reads in its entirety, “An
obligor in bad faith is liable for all the damages, foreseeable or not, that
are a direct consequence of his failure to perform.” Neither the statute
nor the insurance contract mentions attorney’s fees. In keeping with our
past holdings, we find that in cases of breach of contract, Article 1997
does not provide for an award of attorney’s fees.

Accordingly, we find the trial court legally erred in awarding attorney fees

pursuant to this statute. Nevertheless, the legal error did not prejudice Defendant, as

attorney fees were properly awarded under La.Code Civ.P. art 1472.

Louisiana Code Civil Procedure Article 1472

Louisiana Code of Civil Procedure article 1472 provides:

If a party fails to admit the genuineness of any document or the
truth of any matter as requested under Article 1466, and if the party
requesting the admissions thereafter proves the genuineness of the
document or the truth of the matter, he may apply to the court for an
order requiring the other party to pay him the reasonable expenses
incurred in making that proof, including reasonable attorney’s fees.
The court shall make the order unless it finds that the request was held
objectionable pursuant to Article 1467, or the admission sought was of
no substantial importance, or the party failing to admit had reasonable
ground to believe that he might prevail on the matter, or there was other
good reason for the failure to admit.

31

A trial court has vast discretion in awarding attorney fees under this statute, and we

will not disturb its finding in the absence of abuse of that discretion. Anderson v.

Moreno’s Air Conditioning, Inc., 14-27 (La.App. 3 Cir. 6/4/14), 140 So.3d 841, writ

denied, 14-1392 (La. 10/3/14), 149 So.3d 800. In Brodtmann v. Duke, 98-1518,

pp.7-9 (La.App. 4 Cir. 3/21/01), 803 So.2d 41, 45-46, writs denied, 01-3184, 802

So.2d 637 (La. 12/05/01), 02-0334, 813 So.2d 409 (La. 4/12/02), the appellate court

discussed Article 1472:

A court shall order the award of reasonable attorney’s fees if the
party from which the information is sought fails to admit the
genuineness of any document or the truth of any matter as required by
Article 1466, and the genuineness of the document or the truth of the
matter is proven at trial. The trial court shall make this order unless the
request was objectionable, the admissions sought were of no substantial
importance, the party failing to admit had reasonable grounds to believe
that it might prevail in the matter, or there was a good reason for the
failure to admit. The fees awarded would be the reasonable expense
incurred in proving the truth of the requested admission. See Cotton v.
Credit Gen. Ins. Co., 97–2674 (La.App. 1 Cir. 12/28/98), 723 So.2d
1083. The trial court has wide discretion in determining whether to
award attorney’s fees given the broad exceptions provided in Article
1472.

This Court has previously held that in the situation where a party
fails to admit a fact during discovery that is later proven at trial and
later fails either to show reason it could not have admitted that fact or
that it had reasonable grounds to believe that it might prevail on the
particular factual matter at trial, that party may be subject to an order
for expenses and attorney fees. See New Orleans Public Service, Inc. v.
Checker Cab Co., 332 So.2d 489 (La.App. 4th Cir.1976). (Emphasis
Supplied). The imposition of these sanctions must be carefully weighed
against the recognition of the ultimate purposes of the adversarial
system in the law. The purpose of the discovery process is not to force
the opposing party to admit to the contested facts that are at the heart of
the ultimate dispute. Rather, the central purpose of the discovery rules
is to require the admission of facts which ought not to be disputed at
trial, so as to eliminate the time, trouble and expenses of proving facts
that are undisputed. See Boseman v. Orleans Parish School Board, 98–
1415 (La.App. 4 Cir. 1/6/99), 727 So.2d 1194, writ denied, 99–0390
(La.4/1/99), 742 So.2d 554. (Emphasis Supplied). When a party refuses
to answer interrogatories during discovery, their refusal must fit within
one of the exceptions to Article 1472. If the trial court, within its
discretion, does not find that the reason for the refusal fits into one of
the exceptions, then it shall impose the sanctions provided for within
the article.
32

In Boseman, the only articulated reason given for the opposing
party’s failure to admit certain facts during the discovery process was
that parties often fail to disclose pivotal facts during the discovery phase
of a trial. This Court did not accept that as a reasonable basis for
refusing to answer inquiries during discovery under Article 1472, and,
as a result, it ordered the payment of reasonable attorney’s fees and
expenses. This Court based its reasoning on the idea that “the failure to
properly admit a fact not in dispute causes serious injury to the
opposing party, the most important of which is the fact that it causes
excessive adversarial conduct on the part of lawyers; this in turn leads
to increased costs, delay, disrespect for law, unprofessional conduct,
and disillusionment with the practice of law.” See Id. at pp. 8–9, 727
So.2d at 1198.

The trial court has discretion about whether or not to impose the
sanctions provided for in Article 1472, and this decision must be
afforded deference by the appellate court. However, the decision of a
trial court will not be given deference by this Court if the trial court’s
decision was based on an erroneous interpretation of the law rather than
a valid exercise of discretion. See Huddleston v. Farmers–Merchants
Bank & Trust Co., (La.App. 3 Cir. 11/2/00), 772 So.2d 356. In short,
the trial court must comply with the law provided by the Code of Civil
Procedure. If it does, then the appellate court must respect the decision
of the trial court. If, however, it does not comply with the rule of law,
the appellate court must disregard the trial court’s decision and apply
the proper rule of law.

In determining whether the party failing to admit a fact during
discovery had reasonable grounds to believe that it might prevail, the
proper test is whether the party acted reasonably in believing that it
might prevail. See Harolds Stores, Inc. v. Dillard Dep’t Stores, 82 F.3d
1533, 1555 (10th Cir.), cert. denied, 519 U.S. 928, 117 S.Ct. 297, 136
L.Ed.2d 216 (1996).

Regarding the award of attorney fees under this article, the trial court in its

reasons for judgment stated:

The court grants Plaintiffs’ Motions to Set Attorney Fees and
Expenses under Code of Civil Procedure Article 1472. The defense has
steadfastly denied responsibility for the buried debris from the time of
Answer, during discovery, in witness testimony and even in arguing the
last Motions filed. Mr. Lachney testified at trial that there was no
reason for Gilchrist to bury debris, when they could crush and sell the
concrete; he admitted, however, that the crusher was moved to another
location before the project was completed. As proof of their claim,
Fontenot testified he saw a bulldozer moving the debris around the pit
area and that he found shallow beds of concrete debris after a rain.
Further, Plaintiffs’ expert located the map that revealed that there were
5 smaller pits dug and filled in, in conjunction with the larger 30 acre
33

pit, which Drew Fontenot drained and found buried concrete debris.
Subsequently, Fontenot and the expert Kingsley began to probe with a
large machine and found debris at various lower levels. The request for
admissions also shows Gilchrist denied that there were no surveys with
payments, even though they responded to another Request with the
information that truckloads were used instead of surveys.

The defense has argued against the application of C.C.P. 1472,
dismissing the difficulty of the proof required to overcome the refusal
to admit to the buried debris. The court does not accept that leaving the
surface debris for 3 years and the buried debris forever is of no
consequence to this case and, thus, not a breach of the contractual
obligations and not of sufficient importance to warrant the application
of Art. 1472 for attorney fees and expenses. As the court sees it, the
defendant has returned to the Church case, arguing that restoration to a
former condition is not required under the contracts, even though the
jury found that the defendant had breached the contracts, was in bad
faith and attorney fees should be awarded. This court accepts the
Corbello standard for damage to immovable property in breach of
contract cases, the jury verdict and concomitant application of Article
1472, under the language of Corbello . . .[.]

....

While there is no third party public issue here, the contract price is
being paid by the tax payers and the road being built is for public use.
The party found in breach and bad faith is a large and sophisticated
business entity and the parties injured are farmland owners and
members of the public. . . .

. . . . There was nothing in the testimony of either Lachney or Fontenot
to suggest either of them believed the contract was meant to equate
“removed” with “hidden under ground.” This court accepts that the
defendant persisted in denying the breach and the burial of debris and
that these issues are the heart of the dispute.

The court sets the attorney fee at 40%, in accordance with the
original contract with Mr. Nesom and the subsequent contract with
additional attorneys, which is the well-known and standard fee for
plaintiff attorneys in a damages case.

We find that the trial court did not err in the application of La.Code Civ.P. art.

1472 to the facts of this case as the record supports the trial court’s finding.

Defendant denied burying construction debris on Plaintiffs’ land and denied that it

had not removed all of the debris. It never wavered from this claim from the

beginning of trial through now.

34

Defendant relies on Brodtmann, 803 So.2d 41, to assert that the attorney fees

awarded under this statute must be limited to costs associated with proving the fact

Defendant denied, i.e., the burying and failure to remove the construction debris. In

Brodtmann, the appellate court affirmed the trial court’s denial of attorney fees under

this article and did not expound on the reasonable costs issue. In this case, the

burying of construction debris and failure to remove it was a central issue in this

case. Defendant had no basis for denying that fact. The jury found Defendant was

in bad faith for breaching its obligation. Moreover, we must give deference to the

trial court. A large part of the trial revolved around this issue. Accordingly, the

award of attorney fees is appropriate under La.Code Civ.P. art. 1472.

Thus, the only authority supporting an award of attorney fees is found in

La.Code Civ.P. art. 1472. Since its inception in 1976, Article 1472 has rarely been

used to award attorney fees. In Boseman v. Orleans Parish School Board, 98-1415,

pp. 8-9 (La.App. 4 Cir. 1/6/99), 727 So.2d 1194, 1198, writ denied, 99-0390 (La.

4/1/99), 742 So.2d 554, the appellate court noted as such along with the reasoning

behind Article 1472:

A review of the caselaw interpreting La.C.C.P. art. 1472 reveals
that parties rarely take advantage of its provisions. However, this court
has previously held that a party who fails to admit a fact later proven at
trial, then fails to either show reasons it could not have admitted the fact
or show that it had reasonable grounds to believe that it . . . might
prevail on the particular factual matter at trial may be subject to an order
for expenses and attorney fees. New Orleans Public Service, Inc. v.
Checker Cab Co., 332 So.2d 489 (La.App. 4 Cir. 1976). The court
stated as follows:

The purpose of sanctions against parties who
unjustifiably resist discovery is to make the discovery
articles effective. C.C.P. art. 1496 [now La. C.C.P. art.
1466] was designed to require the admission of facts
which ought not to be disputed at trial, so as to eliminate
the time, trouble and expenses of proving uncontroverted
facts. C.C.P. art. 1514 makes the admissions procedure
workable by imposing the cost of proof upon the litigant
who improperly refuses to admit a matter. See 8 Wright
35

and Miller, Federal Practice and Procedures 2290 (1970),
discussing Federal Rule 37(c).

Id. at 490 (some footnotes omitted).

. . . The failure to properly admit a fact not in dispute causes
serious injury to the opposing party, the most important of which is the
fact that it causes excessive adversarial conduct on the part of lawyers;
this in turn leads to increased costs, delay, disrespect for law,
unprofessional conduct, and disillusionment with the practice of law.
The harm to society also includes the inefficient use of the judicial
process and the waste of judicial resources protected by the rules
requiring admission.

The Boseman court awarded $1,000.00 for expenses and attorney fees.

McElveen v. City of New Orleans, 03-1609 (La.App. 4 Cir. 9/14/04), 888 So.2d 878,

writ denied, 04-2527 (La. 12/17/04), 888 So.2d 870, in which the appellate court

affirmed the trial court’s award of $11,130.90 for attorney fees and costs, represents

the highest amount awarded to date under La.Code Civ.P. art. 1472. A panel of this

court reversed the trial court’s denial of an award under La.Code Civ.P. art. 1472 in

Knepper v. Robin, 99-95 (La.App. 3 Cir. 11/17/99), 745 So.2d 1248, and awarded

$10,000.00 in attorney fees, but the supreme court reversed the award. Knepper, 99-

3572 (La. 2/18/00), 754 So.2d 955. The other decisions involving awards under this

statute involve minimal amounts. See Addison v. Thompson, 556 So.2d 195 (La.App.

2 Cir.), writ denied, 559 So.2d 1386 (La.1990) (affirming award of $1,000.00 in

attorney fees); Settles v. Paul, 46,209 (La.App. 2 Cir. 4/13/11), 61 So.3d 854

(affirming award of $5,000.00 in attorney fees); See v. Entergy Corp., 09-535

(La.App. 3 Cir. 11/4/09), 24 So.3d 267 (affirming award of $2,000.00 in attorney

fees); and, New Orleans Pub. Serv., Inc. v. Checker Cab Co., 332 So.2d 489 (La.App.

4 Cir. 1976) (affirming award of $100.00 in attorney fees).

While Defendant failed to admit the existence of the buried debris, a fact it

could not reasonably deny, we find that the trial involved other issues such as the

contracts between the parties, the law applicable to the facts at hand, and the extent
36

of the removal and restoration required. Nevertheless, we find the issue of the buried

debris to be a significant one as did the jury.

The trial court heard an hour-and-a-half of testimony regarding the attorneys’

work in Plaintiffs’ case, amounting to between 6,000 to 8,000 hours over the course

of seven years of litigation. During that time, Plaintiffs’ counsel had to deal with

issues of lost documents and missing computer records. In 2013, Plaintiffs’ counsel

spent a significant amount of time arguing over discovery, reviewing documents,

and amending responses all while attending site inspections and attempting to depose

Gilchrist employees. He testified to problems that arose from conflicting responses

from Defendant’s various attorneys that all had to be reconciled. Trial preparation,

including preparing to prove that debris was buried on Plaintiffs’ property, occupied

at least two lawyers working full time on this case alone for at least three months.

Nevertheless, there were other issues in the case besides whether debris was buried

on the property; accordingly, we find that the trial court erred in awarding 40% of

the total jury award. We find that the most that can be awarded under La.Code Civ.P.

art. 1472 for attorney fees is $1,000,000.00. Accordingly, we amend the award of

attorney fees to $1,000,000.00.

CONCLUSION

The jury did not manifestly err in finding that an oral contract to remove and

restore existed and that Defendant breached that contract in bad faith. Accordingly,

the judgment of the trial court awarding Plaintiffs-Appellees, Juanita W. Fontenot

and June T. Wilder, $5,559,000.00 is affirmed. The award of attorney fees is

amended and reduced to $1,000,000.00. All costs of this appeal are assessed against

Defendant-Appellant, Gilchrist Construction Company, LLC.

AFFIRMED AS AMENDED.

37