SBL Construction, LLC v. Michael M. Eymard and Tram Investments, Inc.
2018CA1691
La. Ct. App.Nov 12, 2019Background
- In 2009 SBL Construction (Boura) agreed to build a bulkhead for Tram Investments (Eymard) at a per-foot price; parties changed the design/length during construction and no firm total price was fixed before work began.
- SBL invoiced $92,244.96 (reflecting 336 ft); Tram paid all but $30,000 and repeatedly refused final payment after reporting the bulkhead had bowed.
- SBL performed remedial work at Tram's request, sent written demands in 2011, and sued in 2012 for the $30,000 balance on an open account and attorney's fees; Tram asserted a reconventional demand alleging defective construction and sought repair costs.
- SBL voluntarily dismissed Eymard before trial; trial court nevertheless cast Eymard and Tram in judgment, awarded SBL $30,000 on an open account, and denied Tram's reconventional demand.
- On appeal the First Circuit reversed the judgment as to Eymard (no longer a defendant) and affirmed the remainder: Tram liable on the open account; reconventional demand denied for failure to prove causation of defects.
Issues
| Issue | Plaintiff's Argument (SBL) | Defendant's Argument (Tram) | Held |
|---|---|---|---|
| Characterization as an open account | Account fits La. R.S. 9:2781(D): part of balance past due and total was undetermined | The agreement was a conventional construction contract for a single job, not an open account | Affirmed: statute covers this transaction; undetermined total footage and unpaid balance make it an open account |
| Exclusion of expert testimony (Guidry) | Trial court properly exercised discretion to enforce pretrial disclosure rules | Expert testimony not required; exclusion prevented Tram from proving causation | Affirmed: exclusion within trial court's discretion and Tram did not contest exclusion on appeal |
| Proof of defective performance / causation | No competent proof that SBL's materials/workmanship caused bowing or erosion; photos and testimony showed bulkhead straight when SBL left | Bulkhead bowed and eroded; repair expert opinion (Guidry) showed inadequate pilings/fabric caused failures | Affirmed: Tram failed to prove defects were caused by SBL; trial court reasonably credited SBL's witnesses and alternative causes (Tram's use/placement of sand) |
| Personal liability of Eymard | SBL initially sought judgment against both; trial court entered judgment against Eymard | Eymard had been voluntarily dismissed before trial, so he cannot be liable | Reversed as to Eymard: no basis to impose open-account liability or attorney's fees on him after dismissal |
Key Cases Cited
- Frey Plumbing Co., Inc. v. Foster, 996 So.2d 969 (La. 2008) (open-account statute applies even to single transactions; no requirement of recurring dealings)
- Signlite, Inc. v. Northshore Service Ctr., Inc., 959 So.2d 904 (La. App. 1st Cir. 2007) (discusses traditional distinction between open accounts and conventional contracts)
- Matherne v. Barnum, 94 So.3d 782 (La. App. 1st Cir. 2012) (elements owner must prove to recover from contractor for defective work)
- Stobart v. State, 617 So.2d 880 (La. 1993) (standard of review for factual findings: manifest error/clearly wrong)
- Walton v. State Farm Mut. Auto. Ins. Co., 277 So.3d 1193 (La. App. 1st Cir. 2019) (reasons for judgment are explanatory and do not alter the judgment on appeal)