Isaac Robinson v. Wayne and Beverly Papania and Pyrenees Investments, LLC ( 2023 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
DOCKET NUMBER
2022 CA 1010
ISAAC ROBINSON
VERSUS
WAYNE AND BEVERLY PAPANIA
AND PYRENEES INVESTMENTS, LLC
Judgment Rendered MAR 0 6 2023
ON APPEAL FROM THE
22ND JUDICIAL DISTRICT COURT, DIVISION A
ST. TAMMANY PARISH, LOUISIANA
DOCKET NUMBER 2005- 11357
HONORABLE RAYMOND S. CHILDRESS, JUDGE PRESIDING
James E. Moorman, III Attorney for Defendants/
Covington, Louisiana Third -Party Plaintiffs/ Appellants
Wayne and Beverly Papania
William J. Faustermann, Jr. Attorney for Defendants/
Slidell, Louisiana Third -Party Defendants/ Appellees
Pyrenees Investments, LLC and
Samuel C. LeBlanc, Jr.
BEFORE: McCLENDON, HOLDRIDGE, and GREENE, ]].
061PC4'``j-
GREENE, J.
Appellants, Wayne and Beverly Papania, appeal a judgment dismissing their third -
party demand for breach of contract claims, fraud claims, and claims under the New
Home Warranty Act ( NHWA), against appellees, Pyrenees Investments, LLC, and its sole
member, Samuel C. LeBlanc, Jr. Pyrenees and Mr. LeBlanc answered the appeal, seeking
attorney fees and costs. After review, we affirm the judgment and deny the answer to
the appeal.
FACTUAL AND PROCEDURAL BACKGROUNDI
In 2004, the Papanias and Pyrenees signed a construction contract whereby
Pyrenees, as the general contractor, would construct a new house for the Papanias in the
Maple Ridge Subdivision in Covington, Louisiana. Mr. LeBlanc signed the construction
contract on behalf of Pyrenees as its " Managing Member." In 2005, Isaac Robinson, a
subcontractor on the job, filed suit on an open account against the Papanias and
Pyrenees .2 The Papanias then filed a third -parry demand against Pyrenees claiming it
was liable for any amounts they owed to Mr. Robinson. After terminating the contract in
the fall of 2006, the Papanias twice amended their third -party demand to add Mr. LeBlanc
as a third -party defendant, to assert additional claims for damages due to defective
construction of the house, and to allege that Mr. LeBlanc fraudulently induced them to
sign the construction contract by misrepresenting to them that Pyrenees held a valid
contractor's license and proper insurance. Pursuant to certain exceptions and a motion
for summary judgment, the trial court ultimately rendered judgment dismissing all of the
Papanias' third -party claims against Pyrenees and Mr. LeBlanc.
In Robinson v. Wayne and Beverly Papania and Pyrenees Investments, LLC, 15-
1354 ( La. App. 1 Cir. 10/ 31/ 16), 207 So -3d 566, 581, writ denied, 16- 2113 ( La. 3/ 13/ 17),
216 So. 3d 808 ( Robinson I),this Court reversed the trial court's judgment insofar as it
1 we adopt certain facts and procedural history from this Court's previous opinion in Robinson v. Wayne
and Beverly Papania and Pyrenees Investments, LLC, 15- 1354 ( La. App. 1 Cir. 10/ 31/ 16), 207 So. 3d 566,
570, 577, 581, writ denied, 16- 2113 ( La. 3/ 13/ 17), 216 So -3d 808 ( Robinson I).
2 The Papanias and Pyrenees each filed a reconventional demand against Mr. Robinson. The Papanias
later settled their claim against Mr. Robinson. Claims involving Mr. Robinson are not at issue in this appeal.
2
dismissed the Papanias' non- NHWA claims ( i.e., breach of contract and fraud) 3 and their
NHWA claim under La. R. S. 9: 3145( A). On remand, the trial court conducted a trial, and
thereafter, on May 12, 2022, signed a judgment dismissing all of the Papanias' remaining
third -party claims against Pyrenees and Mr. LeBlanc with prejudice. The Papanias appeal
the adverse judgment.
DISCUSSION
In three assignments of error, the Papanias contend the trial court erred in
dismissing their breach of contract claim, their fraud claim, and their NHWA claim under
La. R. S. 9: 3145( A). 4 Relying on former La. R. S. 37: 2160 and La. C. C. art. 2033, the
Papanias also contend their contract with Pyrenees is an absolute nullity, because
Pyrenees, the contracting party, did not have a contractor's license and was not permitted
to use Mr. LeBlanc' s contractor's license in place of its own. We first determine the validity
of the construction contract between the Papanias and Pyrenees, as this determination
affects the analysis of the remaining issues raised by the assignments of error.
Nullity of the Construction Contract
Under the NHWA, specifically La. R. S. 37: 2160(A) and 37: 2167( A), 5 it is unlawful
for a contractor or builder — who is required to be licensed by the Louisiana State
Licensing Board — to enter into a construction contract or work as a residential building
contractor without the proper license. Quaternary Resource Investigations, LLC v.
Phillips, 18- 1543 ( La. App. 1 Cir. 11/ 19/ 20), 316 So. 3d 448, 459, writ denied, 20- 01450
La. 3/ 2/ 21), 311 So. 3d 1059. These statutes embody rules of public order, and, under
3 The Robinson Icourt affirmed the trial court's judgment insofar as it granted an exception of peremption
and dismissed the Papanias' NHWA claims against Mr. LeBlanc under the one- year and two-year warranties
set forth in La. R. S. 9: 3144( A)( 1) and ( 2). Robinson I, 207 So. 3d at 580- 81.
4 The Robinson I court also reversed the trial court' s judgment insofar as it dismissed the Papanias'
negligent misrepresentation claim and statutory violation claim. Robinson I, 207 So. 3d at 576- 77. The
Papanias do not appeal the dismissal of those claims.
5 The applicable version of the NHWA is the one in effect on the date the homeowners first occupy the
house. Siragusa v. Bordelon, 15- 1372 ( La. App. 1 Cir. 4/ 15/ 16), 195 So. 3d 100, 104. We apply the 2007
version of the statutes, because the Papanias moved into the house in March 2007. We note, however,
the substance of former La. R. S. 37: 2160 and 2167 is now found at La. R. S. 37: 2163. See 2022 La. Acts.
No. 195, §§ 1- 2, effective August 1, 2022.
103
La. C. C. art. 2030, 6 any contract made in violation of a rule of public order is an absolute
nullity. See Quaternary, 316 So. 3d at 459; also see Igen Construction, LLC v. Raw
Materials, LLC, 20- 0862 ( La. App. 1 Cir. 4/ 16/ 21), 2021 WL 14387261 * 2- 3; Korrapati v.
Augustine Brothers Construction, LLC, 19- 426 ( La. App. 5 Cir. 7/ 31/ 20), 302 So. 3d 147,
153. In this case, it is undisputed that Pyrenees, the party who contracted with the
Papanias, did not possess a residential building contractor's license. Mr. LeBlanc admits
that it was he, Pyrenees' sole member, who held the license. Thus, the Papanias'
construction contract with Pyrenees is indeed an absolute nullity. See Quaternary, 316
So. 3d at 459.
An absolutely null contract is deemed to never have existed. La. C. C. art. 2033.'
Therefore, an absolutely null contract is unenforceable, and a party to such cannot assert
a cause of action for breach of the absolutely null contract. See " We the People" Paralegal
Services, L. L. 0 v. Watley, 33,480 ( La. App. 2 Cir. 8/ 25/ 00), 766 So. 2d 744, 749; Jones
v. Chevalier, 579 So. 2d 1217, 1218 ( La. App. 3 Cir. 1991); Williams v. Enmon, 380 So -2d
144, 146 ( La. App. 1 Cir. 1979), writ denied, 383 So. 2d 12 ( 1980) ( finding no rights can
flow to either party from a null and void contract). Further, the NHWA does not apply to
a construction contract that is absolutely null due to the builder's failure to obtain the
proper residential building contractor's license. Quaternary, 316 So. 3d at 460- 61. Thus,
6 Louisiana Civil Code article 2030 provides:
A contract is absolutely null when it violates a rule of public order, as when the object of
a contract is illicit or immoral. A contract that is absolutely null may not be confirmed.
Absolute nullity may be invoked by any person or may be declared by the court on its own
initiative.
Louisiana Civil Code article 2033 provides:
An absolutely null contract, or a relatively null contract that has been declared null by the
court, is deemed never to have existed. The parties must be restored to the situation that
existed before the contract was made. If it is impossible or impracticable to make
restoration in kind, it may be made through an award of damages.
Nevertheless, a performance rendered under a contract that is absolutely null because its
object or its cause is illicit or immoral may not be recovered by a party who knew or should
have known of the defect that makes the contract null. The performance may be
recovered, however, when that party invokes the nullity to withdraw from the contract
before its purpose is achieved and also in exceptional situations when, in the discretion of
the court, that recovery would further the interest of justice.
Absolute nullity may be raised as a defense even by a party who, at the time the contract
was made, knew or should have known of the defect that makes the contract null.
4
because their construction contract was absolutely null, the Papanias do not have a
breach of contract claim or an NHWA claim against Pyrenees or Mr. LeBlanc. We affirm
the trial court's judgment insofar as it dismissed these claims and now determine if the
a
Papanias have any other remedy.
Although an absolutely null contract is deemed never to have existed, La. C. C. art.
2033 requires that the parties be restored to the situation that existed before the contract
was made, if such is possible. If it is impossible or impractical to make restoration in
kind, restoration may be made by an award of damages. See La. C. C. art. 2033. Here,
it is clear that the Papanias and Pyrenees cannot be restored to the situation that existed
before they entered into the construction contract. The record shows that the Papanias``
house was substantially completed in the fall of 2006 ( albeit not to their satisfaction),
they moved into the house in March 2007, and as of the time the trial concluded in 2021,
they still lived in the house. Thus, although the Papanias have no breach of contract
claim or NHWA claim against Pyrenees or Mr. LeBlanc, we must determine if they are
entitled to an award of damages under La. C. C. art. 2033.
The Robinson I Court found that the Papanias minimally alleged facts " which, if
proven, would result in damages for increased costs and unmet expectations, i. e.,
amounts they would have incurred in connection with securing completion of the
construction after termination of the construction contract." s Robinson I, 207 So. 3d at
573. After the Robinson I remand and the subsequent trial, however, the trial court
concluded that the Papanias ( not Mr. LeBlanc) terminated the purported contract and
ordered Mr. LeBlanc to leave the job site and would not allow him the opportunity to
complete or repair the work. Although the record contains conflicting stories about the
termination of the purported contract, the trial court was in the best position to assess
B We note that the trial court dismissed the breach of contract claim and NHWA claim for other reasons.
However, this Court reviews judgments, not reasons for judgment, and may affirm a judgment for reasons
other than those given by the trial court. See LAD Services of Louisiana, L. L. C. v. Superior Derrick Services,
L. L. C., 13- 0163 ( La. App. 1 Cir. 11/ 7/ 14), 167 So. 3d 746, 753- 54, writ notconsidered, 15- 0086 ( La. 4/ 2/ 15),
162 So. 3d 392.
9 In their third party demand, the Papanias claimed Pyrenees and Mr. LeBlanc were liable to them for
damages for deficiencies in the house' s foundation, structural integrity, roof construction, driveway
construction, plumbing, electrical work, carpentry, painting, and stucco. The Papanias claimed Pyrenees
and Mr. LeBlanc should be required to reimburse them for remedial work they undertook and collateral
damages they incurred after they fired Mr. LeBlanc.
W7
the credibility of the witnesses, particularly, Mr. Papania and Mr. LeBlanc. See Catalanotto
v. Homes, 14- 1274 ( La. App. 1 Cir. 4/ 24/ 15), 2015 WL 1882588, * 6, writ denied, 15-
1010 ( La. 9/ 11/ 15), 176 So. 3d 1040. Mr. Papania testified that he gave Mr. LeBlanc a
long list of problems three months before he fired him in September 2006, that Mr.
LeBlanc did not correct the problems, and that after Mr. Papania fired him, Mr. LeBlanc
then continued to come to the house for another three weeks trying to correct the
problems. On the other hand, Mr. LeBlanc testified that Mr. Papania did not give him the
problem list before firing him, and that he did not see the problem list until the Papanias
filed suit against him. Mr. LeBlanc acknowledged that he did return to the house after
Mr. Papania fired him to see if they could reconcile and finish the job, but such did not
happen, because Mr. Papania threatened to have him arrested.
An appellate court may not set aside a trial court's factual findings absent manifest
error or unless they are clearly wrong. Stobart v. State through Department of
Transportation and Development, 617 So. 2d 880, 882 ( La. 1993); Catalanotto, 2015 WL
1882588 at * 2. Where two permissible views of the evidence exist, the trial court's choice
between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So. 2d at
882. After reviewing the record, we conclude the trial court did not manifestly err in its
factual and credibility determinations. The trial court apparently chose to believe Mr.
LeBlanc's testimony rather than Mr. Papania' s testimony. The record reasonably supports
the trial court's finding that it was the Papanias, not Mr. LeBlanc, who terminated the
parties' dealings and refused to let Mr. LeBlanc complete or repair work at the house. As
such, we conclude, the Papanias are not entitled to damages under La. C. C. art. 2033.
The Fraud Claim
We now address the Papanias' contention that the trial court erred in dismissing
their fraud claim. Louisiana Civil Code article 1953 defines fraud as 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. To succeed on an action
for fraud against a party to a contract, three elements must be proved: ( 1) a
misrepresentation, suppression, or omission of true information; ( 2) the intent to obtain
an unjust advantage or to cause damage or inconvenience to another; and ( 3) the error
induced by a fraudulent act must relate to a circumstance substantially influencing the
victim' s consent to the contract. Robinson I, 207 So. 3d at 574.
The Robinson I Court determined the Papanias stated a cause of action in fraud
against Pyrenees and Mr. LeBlanc, as follows:
In the second amended, third -party demand, the Papanias averred that
Mr.] LeBlanc advised them that Pyrenees held a valid contractor's license
for the construction of new homes and had in effect a valid insurance policy
that would provide coverage for "the sorts of claims" for which the Papanias
are presently suing. The Papanias also alleged that [ Mr.] LeBlanc knew his
misrepresentation that Pyrenees held a valid contractor's license was a
principal cause for the contract. According to their November 4, 2009
pleading, the Papanias claimed that these two misrepresentations by [ Mr.]
LeBlanc induced them to execute and sign the construction contract with
Pyrenees. In addition to iterating that the individuality and separateness
between [ Mr.] LeBlanc and Pyrenees ceased insofar as the construction
contract, the Papanias claimed entitlement to reasonable damages for the
fraudulent inducement of contract. Taking as true all of the Papanias'
allegations of fact, we conclude they have stated a cause of action in fraud
against [ Mr.] LeBlanc and Pyrenees.
Robinson 1, 207 So. 3d at 574- 75.
After the Robinson .1 remand and the subsequent trial, the trial court concluded
that, although the Papanias may have stated a fraud cause of action, they had not proved
fraud against Mr. LeBlanc and Pyrenees. The trial court factually determined that Mr.
LeBlanc, Pyrenees' sole member, did have a contractor's license, did have insurance, and
remained a licensed contractor during the entire construction period. The trial court also
found that the Papanias dealt with Mr. LeBlanc at all times, knew that he was the licensed
contractor, and knew that he would be building their house. The trial court found no
misrepresentation, suppression, or omission of true information and that the Papanias
had not proven intent to obtain an unjust advantage. We review these factual findings
under the manifest error standard of review. Quaternary, 316 So. 3d at 466, n. 21.
At trial, Mr. LeBlanc admitted that the construction contract named Pyrenees as
the contractor but also admitted that Pyrenees did not hold a contractor's license or
insurance. He testified that, at all relevant times, the contractor's license and insurance
were instead issued to him personally. In support of this testimony, Mr. LeBlanc
introduced documentation verifying that he held Louisiana residential contractor licenses
for 2004, 2005, and 2006, and that he had commercial general liability insurance in effect
for 2005, which he testified was renewed for 2006. Regarding the Papanias' knowledge,
7
Mr. Papania testified that Mr. LeBlanc gave him the impression that Pyrenees had a valid
contractor' s license. However, he also testified that, even though he signed the
construction contract listing Pyrenees as the contractor, he knew Pyrenees was Mr.
LeBlanc' s company, he knew " somebody" had a license, and, to him, Pyrenees and Mr.
LeBlanc were " one in the same." Also, Mrs. Papania signed a subdivision building permit
plainly naming Mr. LeBlanc as the builder. After reviewing the testimony and the
documentary evidence, we conclude a reasonable factual basis exists in the record for
the trial court's finding that Mr. LeBlanc's actions regarding licensure and insurance were
not fraudulent —as such, the trial court's finding was not clearly wrong. Id. The Papanias'
argument to the contrary is without merit. 10 We affirm the trial court's dismissal of the
fraud claim.
ANSWER TO THE APPEAL
Pyrenees and Mr. LeBlanc answered the Papanias' appeal, claiming the trial court
erred in failing to award them attorney fees and costs for defending the fraud claim,
under the NHWA, and damages for frivolous appeal. Under Louisiana law, attorney fees
are recoverable only where specifically authorized by statute or contract. Courville v.
Allied Professionals Insurance Company, 16- 1354 ( La. App. 1 Cir. 4/ 12/ 17), 218 So. 3d
144, 149, writdenied, 17- 0783 ( La. 10/ 27/ 17), 228 So. 3d 1223. The Louisiana Civil Code
provides for attorney fees when rescission of a contract is granted because of fraud. See
La. C. C. art. 1958. And, La. R. S. 9: 3149( A) allows a homeowner to recover attorney fees
from a builder who violates the NHWA. However, Pyrenees and Mr. LeBlanc cite to no
statute or contract whereby attorney fees are recoverable by a party required to defend
a fraud claim or an NHWA claim. Further, a trial court has great discretion in assessing
costs, and, on review, an appellate court will not disturb a trial court's cost assessment
absent an abuse of that discretion. Williams v. Leeper, 21- 1177 ( La. App. 1 Cir. 4/ 8/ 22),
341 So. 3d 850, 856.
io In brief, the Papanias also argue Mr. LeBlanc committed fraud by misrepresenting that the plans they
provided to him were sufficient to complete the job. The Papanias did not rely on this basis at trial, did
not mention it in their post -trial memorandum, and the trial court did not specifically rule on this basis
when addressing the Papanias' fraud claim. we decline to address this argument. See Burniac v. Costner,
18- 1709 ( La. App. 1 Cir. 5/ 31/ 19), 277 So. 3d 1204, 1210.
M
Regarding damages for frivolous appeal, La. C. C. P. art. 2164 does allow such an
award; but, La. C. C. P. art. 2164 is penal in nature and we must construe it strictly. Willis
v. EAN Holdings, 15- 1538 ( La. App. 1 Cir. 4/ 12/ 17), 218 So. 3d 177, 184, writ denied, 17-
789 ( La. 9/ 22/ 17), 226 So. 3d 438. An appellate court should only award damages for
frivolous appeal when it is obvious that the appeal was taken solely for delay, or that
counsel is not sincere in the view of the law he advocates, even though the court finds
that view to be without merit. Id. Although we find no merit in the Papanias' claims, we
do not find that this appeal meets the requirements of a frivolous appeal. Id.For the above reasons, we find the trial court did not abuse its discretion in failing
to award Pyrenees and Mr. LeBlanc attorney fees and costs, and we decline to award
damages or attorney fees for frivolous appeal. We deny the answer to the appeal filed
by Pyrenees and Mr. LeBlanc.
CONCLUSION
For the above reasons, we affirm the trial court's judgment dismissing all claims
asserted by Wayne and Beverly Papania in their third party demand, as supplemented
and amended, against Pyrenees Investments, LLC and Samuel C. LeBlanc, Jr. We deny
the answer to the appeal filed by Pyrenees Investments, LLC and Samuel C. LeBlanc, 3r.
We assess costs of the appeal to Wayne and Beverly Papania.
IUDGMENT AFFIRMED; ANSWER TO APPEAL DENIED.
G]
STATE OF LOUISIANA
r COURT OF APPEAL
FIRST CIRCUIT
2022 CA 1010
ISAAC ROBINSON
VERSUS
WAYNE AND BEVERLY PAPANIA
AND PYRENEES INVESTMENTS, LLC
McClendon, I., concurs.
Finding no legal or manifest error by the trial court, I concur with the result
reached by the majority.