Wolfe Washauer Construction, LLC v. Felicia Dart ( 2023 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2022 CA 1241
WOLFE WASHAUER CONSTRUCTION, LLC
VERSUS
FELICIA DART
Judgment Rendered: DEC 0 4 2023
Appealed from the
City Court of Baton Rouge
In and for the Parish of East Baton Rouge
State of Louisiana
Docket No. 18- 06850
The Honorable Judy Moore Vendetto, Judge Presiding
Daniel D. Holliday, III Counsel for Plaintiff/Appellee,
Baton Rouge, Louisiana Wolfe Washauer Construction,
LLC
Marcus J. Plaisance Counsel for Defendant/Appellant,
Mark D. Plaisance Felicia Dart
Prairieville, Louisiana
Richard Mary
Laura Mary
Baton Rouge, Louisiana
BEFORE: GUIDRY, C.J., HOLDRIDGE, WOLFE, MILLER, AND
GREENE, JJ.
MILLER, J.
This matter is before us on appeal by defendant/ appellant, Felicia Dart, from
a judgment of the trial court in favor of plaintiff/appellee, Wolfe Washauer
Construction, LLC. For the reasons that follow, we amend in part and affirm as
amended.
FACTS AND PROCEDURAL HISTORY
On February 22, 2018, Felicia Dart (" Dart") entered into a written contract
with Wolfe Washauer Construction, LLC (" Wolfe") for renovations of the front
porch, carport, and kitchen of Dart' s house located in Baton Rouge, Louisiana. The
contract stated that the renovations would be done for a total price of $112, 065. 00,
which was to be paid in five installments. Dart made the first, second, and third
payments as provided for in the contract. When invoiced for the fourth installment,
Dart refused to pay because of the amount of outstanding work left to be done.
Dart subsequently fired Wolfe and did not pay the remainder due on the contract.
On September 27, 2018, Wolfe filed a petition for breach of contract and
damages, seeking $ 24, 243. 471 for breach of contract, all other damages, all costs of
the proceedings, legal interest from the date of judicial demand until paid, and all
other just and equitable relief. On October 22, 2018, Dart filed an answer wherein
she denied Wolfe' s allegations and contended that Wolfe did not substantially
complete the work, portions of the work done by Wolfe were defective, and Wolfe
did not pay subcontractors and materialmen. A trial was held on October 18, 2021,
and the court ruled in favor of Wolfe, and against Dart, in the amount of
21, 178. 47, together with legal interest thereon from the date of judicial demand
until paid, and all costs of the proceedings. The judgment was signed by the trial
court on April 1, 2022.
1 The amount unpaid on the original contract was $ 28, 065. 00. There was $ 7, 934. 01 in
allowances owed to Dart, and Wolfe alleges that Dart owed it $4, 112. 48 pursuant to extra work
done on the project. Thus, Wolfe contended that the amount due under the contract was
24, 243. 47.
2
Dart filed a motion for new trial. After a telephone status conference, the
trial court denied the motion for new trial. A judgment to that effect was signed on
August 11, 2022. Subsequently, Dart filed a motion and order for appeal, which
was signed by the trial court on September 13, 2022.
ASSIGNMENTS OF ERROR
Dart contends that ( 1) the trial court erred in admitting into evidence the
certificate of occupancy; ( 2) the trial court erred in denying Dart' s motion for
involuntary dismissal; and ( 3) the trial court erred by awarding Wolfe payment
under the contract rather than offsetting such payment by Dart' s expense to
remedy.
DISCUSSION
In her first assignment of error, Dart challenges an evidentiary ruling of the
trial court. If a trial court commits an evidentiary error that interdicts its factfinding
process, this court must conduct a de novo review. Landry v. City of Mandeville,
2021- 1362 ( La. App. 1st Cir. 4/ 27/ 22), 342 So. 3d 337, 346, writ denied, 2022-
00828 ( La. 9/ 27/ 22), 347 So. 3d 155. Thus, any alleged evidentiary errors must be
addressed first on appeal, inasmuch as a finding of error may affect the applicable
standard of review. Id.At trial, Wolfe attempted to admit Exhibit P- 6, an email chain with a
purported copy of the certificate of occupancy attached, through the testimony of
Wolfe Washauer (" Washauer"), the owner of Wolfe. Dart objected to the
introduction of the email chain and the certificate of occupancy as hearsay and
argued that a representative was needed to authenticate the document. Dart
contended that a proper foundation was not laid under La. C.E. art. 803 because
there was no testimony that the certificate of occupancy was a governmental
3
document from anyone qualified to testify to its creation.' In response, Wolfe
argued that the certificate of occupancy fell under two exceptions to the hearsay
rule, the records of regularly conducted business activity exception and the public
records and reports exception. The trial court overruled Dart' s objection and
admitted the certificate of occupancy under the public records and reports
exception. See La. C.E. art. 803( 8). Dart then made a general objection as to any
testimony regarding the certificate of occupancy.
It is well- settled that a trial court is afforded vast discretion with regard to
evidentiary rulings, and the court' s decision to admit or deny evidence will not be
disturbed on appeal absent a clear abuse of that discretion. Cantrelley. Lafourche
Parish Council, 2021- 0678 ( La. App. 1st Cir. 211122), 340 So. 3d 1059, 1076. Dart
contends that the trial court erred in admitting the certificate of occupancy because
it was not authenticated or self -authenticating under Chapter 9 of the Louisiana
Code of Evidence and it does not fall within the public records and reports
exception or the records of regularly conducted business activity exception under
La. C. E. art. 803.
Authentication of evidence is required in order for evidence to be admissible
at trial. See La. C. E. art. 901. Because authentication of evidence is a condition
precedent to admissibility, an exhibit that is not authenticated does not constitute
competent evidence. See La. C. E. art. 901; Price v. Roy O. Martin Lumber Co.,
2004- 0227 ( La. App. 1st Cir. 4/ 27/ 05), 915 So. 2d 816, 822, writ denied, 2005-
1390 ( La. 1127/ 06), 922 So. 2d 543. Authentication is a process whereby
something is shown to be what it purports to be. See La. C.E. art. 901. Evidence
2 As is true of the exception for business records, the public records exception is premised
generally on the assumption that either the record keeper, the record maker, or the person who
supplied the information contained in the record had firsthand knowledge of the facts placed
there. Thus, at least as regards information falling within the " regular activities" and " matters
observed" categories of Parts ( i) and ( ii) of Subparagraph ( a), this Article implicitly imposes a
requirement of firsthand knowledge on the part of the person who was the source of the
information, and a requirement that he have been acting routinely on behalf of the agency in
making the report. La. C. E. art. 803, Comments to Exception (8)-- 1988( d).
4
must either be authenticated as provided in La. C. E. art. 901, or it must be self -
authenticating. Price, 915 So. 2d at 822; see La. C.E. art. 902. Washauer is not a
proper witness to authenticate the copy of the certificate of occupancy. He did not
create the email or the certificate of occupancy.
Additionally, while the certificate of occupancy in Exhibit P- 6 appears to be
a document from East Baton Rouge, Permits and Inspection Division, City of
Baton Rouge - Parish of East Baton Rouge, it does not meet the necessary
requirements to be self -authenticating. For example, it does not contain a seal, it
does not contain a signature of an officer or employee in his official capacity, it
was not certified as being the original by an officer or employee, nor does it fall
within any other class of self -authenticating documents under La. C.E. art. 902.
Therefore, we find that Wolfe failed to authenticate the certificate of occupancy
contained in Exhibit P- 6, and the trial court abused its discretion in admitting it.
Yet, in spite of the jockeying to admit or exclude the purported certificate,
the fact that a certificate had been issued was not in dispute. Both parties testified
to the fact that a certificate of occupancy was issued.3 Even so, the receipt of a
certificate of occupancy is not equivalent to a finding of substantial performance.
For example, a home may be occupied for the entirety of certain home
improvement projects even while the work is not substantially performed. Here,
the certificate of occupancy is relevant because it was an agreed upon benchmark
for payment under the contract.4 However, the certificate does not prove
substantial performance. Therefore, any error in admitting the certificate at trial did
3
During the trial, Dart was asked, " Now, you got the certificate of occupancy right?" Dart
Correct."
replied, ``=
a The contract provided:
The forth [ sic] payment of $25, 000. 00 Dollars when Certificate of Occupancy is
issued.
E
not interdict the factfinding process and does not obligate this court to conduct a de
novo review.
In her second assignment of error, Dart contends that the trial court erred in
denying her motion for involuntary dismissal. Louisiana Code of Civil Procedure
article 1672( B) states:
In an action tried by the court without a jury, after the plaintiff has
completed the presentation of his evidence, any party, without
waiving his right to offer evidence in the event the motion is not
granted, may move for a dismissal of the action as to him on the
ground that upon the facts and law, the plaintiff has shown no right to
relief. The court may then determine the facts and render judgment
against the plaintiff and in favor of the moving party or may decline to
render any judgment until the close of all the evidence.
Article 1672 affords the trial judge discretion to render or to decline to
render any judgment until the close of all evidence. Smith v. Gramercy Ins. Co.,
2015- 0845 ( La. App. I" Cir. 3110116), 189 So. 3d 497, 500. The purely
discretionary decision of a trial court to deny a motion for involuntary dismissal at
the close of a plaintiffs case and then render a decision after hearing all of the
evidence presented in the matter leaves nothing for this court to review on appeal
concerning the motion for involuntary dismissal. Escobar v. Cajun Operating
Company, 2016- 0558 ( La. App. I" Cir. 12122116), 209 So. 3d 198, 200.
Accordingly, we find no merit to this assignment of error.
In her third assignment of error, Dart contends that the trial court erred in
awarding Wolfe full payment under the contract rather than reducing the payment
by Dart' s expense to remedy since she was required to hire additional workers to
complete the work Wolfe failed to complete. Under Louisiana jurisprudence, a
building contractor or subcontractor may recover the contract price even though
defects and omissions are present after he has substantially performed the building
contract. Cosman v. Cabrera, 2009- 0265 ( La. App. 15t Cir. 10123109), 28 So. 3d
10753 1080. However, where the owner presents evidence of the cost of completion
of the work or correction of defective work, the contract price may be reduced by
that amount. Id. at 1080.
Substantial performance" means that the construction is fit for the purposes
intended despite the deficiencies; this is typically a question of fact for the trial
judge.' Mayeauxy. McInnis, 2000- 1540 ( La. App. I" Cir. 9128101), 809 So. 2d
310, 313, writ denied, 2001- 3286 ( La. 318102), 810 So. 2d 1164. The factors to
consider in determining whether there has been substantial performance include
the extent of the defect or non- performance, the degree to which the purpose of the
contract is defeated, the ease of correction, and the use or benefit to the owner of
the work already performed. Cosman, 28 So. 3d at 1080- 81. The contractor bears
the burden of proving substantial performance. Garcia Roofing Replacement, LLC
v. McCain, 2022- 0233 ( La. App. 1' Cir. 9116122), 352 So. 3d 1005, 1009.
In making its ruling, the trial court apparently based its finding of substantial
performance largely on the fact that a certificate of occupancy was issued, while
noting several inadequacies in the work. As previously explained, the issuance of a
certificate of occupancy in and of itself does not prove substantial performance.
The trial court' s finding of substantial performance of the contract based primarily
on the certificate was erroneous. However, in our review of the record in its
entirety, we find a reasonable factual basis to conclude, as did the trial court, that
the project was substantially performed.
At the trial, Washauer testified as to the work completed and the work which
remained unfinished. Washauer testified that the scope of the project included
adding a carport, adding a front porch, and closing in the existing front porch.
Wolfe introduced an estimate spreadsheet with the cost of the work to be done. The
5 To reverse a fact finder' s determination, an appellate court must review the record in its
entirety and find that a reasonable factual basis does not exist for the finding and further
determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous.
Jackson v. Tulane Medical Center Hosp. and Clinic, 2005- 1594 ( La. 10117106), 942 So. 2d 509,
512- 13.
7
estimate included sitework, foundation, framing, electrical, HVAC, plumbing,
shutters, roof, windows, exterior doors, exterior walls, insulation, sheetrock,
painting, interior doors and trim, flooring, cabinets, bathroom finishes, appliances,
driveway, and clean up. The drawings depicted the same scope of work provided
for in the estimate. The price of the entire project totaled $ 112, 065. 00, and the
benchmarks for payment for the second and third installments were the completion
of the framing and the sheetrock installation. That work was completed and Dart
made those payments. Further, Washauer testified that the HVAC work was
completed.
Washauer also testified that Wolfe installed the flooring and shoe molding in
the house. However, Dart introduced pictures of her home that showed the
subflooring was still visible in some places. When Washauer was asked about the
unfinished floors, he alleged that he did not recognize the flooring. He further
stated that the subflooring " could be somebody' s finished floor if they wanted the
Advantech [ subflooring]." He also testified that the unfinished work included
caulking, painting, installing brick steps, adjusting the cabinets, framing for and
installing a window, and installing the backsplash.6
Dart also testified as to the work completed and the work which remained.
During her testimony, more than twenty photos were introduced to prove the
necessity of completion. She stated that the roofing and carport were completed,
although she was not happy with how the carport posts were situated and she had
issues with the roof. Dart further stated that, when the certificate of occupancy was
issued, some of the subflooring was still exposed, the porch was not painted, the
paint on the outside of the house was not satisfactory, the kitchen window and
backsplash were not installed, gaps were not caulked and paint was missing around
6 In an email dated August 15, 2018, Washauer stated that the following work still needed to be
done: paint the front porch, install the gutters, install the drainage, install the front door knob,
and punch out the house.
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the house, the brick steps were not installed, the chandelier was not centered, and
drainage was not done. She also stated that there was work included under the
contract that she paid for but was not done. That work included: removing old
concrete and pouring new concrete, windows that were taken out of the design,
plumbing for running gas lines, and field dirt.
While we agree with the trial court that there was substantial performance,
we find that there were deficiencies and incomplete work that Dart had to remedy,
and the trial court erred in failing to reduce the amount due on the contract. Thus,
Wolfe may recover the outstanding amount due on the contract reduced by Dart' s
cost of completion of the work or correction of defective work.
Initially, Dart is entitled to a credit for unused allowances. On August 6,
2018, Washauer emailed Dart and stated that Wolfe owed her credits on her final
payment for unused allowances.' He indicated that Dart was owed the following
credits: $ 1, 000. 00 for electrical; $ 2, 500.00 for plumbing; $ 934. 01 for hardware;
and $ 3, 500. 00 for appliances. The total amount of the credits for the unused
allowances is $ 7, 934. 01.
A party seeking to have the contract price reduced by an amount to perfect
or complete work done under the contract bears the burden of proving the necessity
of such perfection or completion and its cost. O & M Const. Inc. v. State Div. of
Admin., 91- 1136 ( La. App. 1" Cir. 3/ 2/ 91), 576 So. 2d 1030, 1039, writ denied,
La. 1991), 581 So. 2d 691. At the trial, Dart introduced emails, photos of
incomplete work around the house, photos of damage to the house during
Also, in the email dated August 6, 2018, Washauer stated that Dart owed Wolfe $4, 112. 48 for
work that was outside the scope of the contract. However, Washauer testified multiple times that
if additional work was required, a change order had to be executed. The need for a change order
to execute additional work is also provided for in the contract. Washauer testified that if he was
able to do the job for less, it was the same price, and if he went over, he was responsible. When
asked more specifically about items that Dart paid for that were not completed, Washauer
testified that "[ t] his is not
a Cost Plus contract it' s a lump sum and that' s ... and Ms. Dart is
trying to make this a Cost Plus contract and it' s a lump sum." No change order wherein the
parties agreed to this additional work being done was executed. Thus, we find Washauer' s
contention that he is owed $4, 112. 48 to be unsupported.
7
construction, a lien placed on the house by the company who sold and installed the
kitchen countertop, and a spreadsheet, receipts, invoices, credit card statements,
and copied checks. These exhibits were admitted by the trial court. However, the
trial court found that while Dart provided a list of items that she paid for after
Wolfe was fired, there were no witnesses to tell the court the amount it would have
cost to redo or complete the job.
The trial court erred in finding that Dart did not prove the necessity of
completion and its cost. We find that the deficient and incomplete work consisted
of installing a window, installing brick steps, installing gutters, and cleaning. The
parties agreed to the fact that the window and the brick steps were outstanding.
Further, the gutters and cleaning were both provided for in the contract, not
completed by Wolfe, and subsequently completed by Dart.
In addition to proving the necessity of completion, Dart met her burden of
proving the cost of completion. She provided evidence of the amounts she incurred
and payments she made to complete the outstanding work by introducing a
spreadsheet, receipts, invoices, credit card statements, and copied checks.
Washauer did not dispute these amounts. She paid $ 975. 00 for the window,
3, 250. 00 for the brick steps, $ 1, 047. 20 for the gutters, and $ 1, 950. 00 for
cleanings. The total amount that Dart paid to complete the outstanding work was
7, 222.20. 9 We note that this amount appears to be much less than what was due
under the contract to complete what was clearly unfinished. Since Dart proved that
S$
1, 950.00 included " floor boards, attic cleaning, and etc."
9 There are other expenses that Dart incurred to fix and complete her renovation project.
However, those other expenses were either not a part of the contract or it is indeterminable if
they were a part of the contract. For example, Dart paid $ 9, 240. 00 for drainage, a walking path,
and landscaping. Drainage was part of the scope of work under the contract, but the walking path
and landscaping were not. Because there is no individual itemization of each item, we cannot
determine how much Dart paid for drainage. When the owner fails to establish the cost of
correcting any detects, she may not recover therefor. Garcia Roofing_Rel2lacement, LLC, 352 So.
3d at 1011. Thus, this amount is not included in the amount that Dart paid to complete the work.
10
the cost of completion of the work was $ 7, 222. 20, the contract price will be
reduced by that amount.
In summary, Dart did not pay the fourth or fifth payments due under the
contract, which total $ 28, 065. 00. The total amount of the credits for the unused
allowances is $ 7, 934. 01. When the credits for the unused allowances are subtracted
from the outstanding amount due on the contract, there remains a balance of
20, 130. 99 due under the contract. When the cost of completion of the work,
7, 222. 20, is subtracted from the amount due on the contract, $ 20, 130. 99, there is
a remaining balance of $12, 908. 79 due on the contract. Therefore, after the credits
for the unused allowances and the cost of completion of the work are taken into
consideration, Dart owes Wolfe $ 12, 908. 79 on the contract.
CONCLUSION
Based on the above and foregoing reasons, the April 1, 2022 judgment of the
trial court is amended to provide that there be judgment in favor of plaintiff, Wolfe
Washauer Construction, LLC, and against defendant, Felicia Dart, in the amount of
TWELVE THOUSAND NINE HUNDRED EIGHT DOLLARS AND 79100
12, 908.79) together with legal interest thereon from the date of judicial demand
until paid. The judgment is affirmed as amended. Costs of this appeal are assessed
one- half against Wolfe Washauer Construction, LLC and one- half against Felicia
Dart.
AMENDED AND AFFIRMED AS AMENDED.
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