Matherne v. Barnum
94 So. 3d 782
La. Ct. App.2012Background
- Mathernes contracted with Barnum and Barnum Construction, L.L.C. for bulkhead, boat slip with lift, and deck work for $39,000.
- Work completed July 2006; adjacent home and walkway connected to the work were built afterward.
- In 2007, sinkhole, cracks, bulkhead bulges, and a displaced support pole prompted complaints; Barnum attempted repairs but customers remained dissatisfied.
- Engineering opinion in 2008 recommended demolition and full replacement of the bulkhead and slip due to instability and defectively constructed work, at a cost of $43,034.77.
- Lawsuit filed March 27, 2009; bench trial October 7, 2010; court held Barnum personally liable, awarded several items of damages plus $25,000 for non-pecuniary damages and $10,000 in attorney’s fees, total $87,638.25; Barnum appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prescription bars the claim | Matherne argues contract actions have ten-year prescriptive period | Barnum asserts tort-based prescriptive period of one year | Claim timely under ten-year liberative prescription |
| Whether Barnum can be personally liable | Barnum L.L.C. was a sham; veil pierced; Barnum liable for negligence | Limited liability status shields personal liability | Barnum personally liable under RS 12:1320(D) due to professional negligence |
| Admission of duplicate contract copy and contract existence | Duplicate Barnum copy could prove contract with Barnum L.L.C. | Duplicate is best evidence and should be admitted | Trial court correct to exclude duplicate; oral contract established with Barnum and Barnum L.L.C. |
| Damages for non-pecuniary losses | Non-pecuniary damages were proper for emotional distress related to defective work | Non-pecuniary damages should be limited or disallowed | Initial $25,000 reduced to $5,000 on appeal |
| Attorney’s fees | Fees may be recoverable under contract or statute | No contract or statute supports fee award | Attorney’s fees award reversed |
Key Cases Cited
- Firmin, Inc. v. Denham Springs Floor Covering, Inc., 595 So.2d 1164 (La.App. 1st Cir.1991) (ten-year liberative prescription for contract actions)
- Regions Bank v. Ark-La-Tex Water Gardens, L.L.C., 997 So.2d 734 (La.App.2d Cir.11/5/08) (limits personal liability of LLC members; exception for professional negligence)
- City of Plaquemine v. North American Constructors, Inc., 832 So.2d 447 (La.App. 1st Cir.11/8/02) (contractor duty to perform work in workmanlike manner; damages framework)
- Davidge v. H & H Const. Co., 432 So.2d 393 (La.App. 1st Cir.1983) (workmanlike performance and damages rules for construction contracts)
- Guitreau v. Juneau, 479 So.2d 431 (La.App. 1st Cir.1985) (non-pecuniary damages in contract cases; Art. 1998 guidance)
- Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993) (standard for reviewing factual findings)
- Rayne v. Barrington, 575 So.2d 831 (La.App. 1st Cir.1990) (best evidence rule considerations for contracts)
- Imperial Chemicals Ltd. v. PKB Scania (USA), Inc., 929 So.2d 84 (La.App. 1st Cir.2006) (trial court discretion in expert qualification and weight of expert testimony)