Opinion
NUMBER 2013 CA 0574
01-08-2014
MERRY S. DANG v. JASON CATOIRE
Steven M. Joiffrion Prairieville, LA Counsel for Plaintiff/Appellee Merry S. Dang Kris A. Perret Baton Rouge, LA Counsel for Defendant/Appellant Jason Catoire
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Twenty-Third Judicial District Court
In and for the Parish of Ascension
State of Louisiana
Suit number 2011-141
Honorable Marilyn M. Lambert, Presiding
Steven M. Joiffrion
Prairieville, LA
Counsel for Plaintiff/Appellee
Merry S. Dang
Kris A. Perret
Baton Rouge, LA
Counsel for Defendant/Appellant
Jason Catoire
BEFORE: PARRO, GUIDRY, AND DRAKE, JJ.
GUIDRY, J.
In this breach of contract case, defendant, Jason Catoire, appeals a judgment of the trial court awarding plaintiff, Merry S. Dang, damages in the amount of $6,166.00. For the reasons that follow, we reverse the trial court's judgment.
FACTS AND PROCEDURAL HISTORY
On November 8, 2010, Merry Dang and Jason Catoire entered into a contract whereby Catoire agreed to fabricate, paint, and install "all wood" kitchen cabinets in Dang's residence for the total contract price of $6,999.00. On that same date, Dang paid Catoire a deposit of $2,333.00. After work on the cabinets commenced, Catoire requested and Dang paid an additional $2,333.00 on November 22, 2010.
The parties refer to the contract price as $7,000.00. However, the request for admission propounded by Catoire to Dang, which was entered into evidence at trial, states that the total contract price was $6,999.00.
After installation of the cabinets in her kitchen, Dang was unhappy with their construction. Thereafter, on March 24, 2011, Dang filed a petition for breach of contract and for damages against Catoire, asserting various defects in the construction of the cabinets, including: large gaps between the top of the cabinets and the ceiling; cabinet doors that were made of pressboard rather than solid wood; and a cabinet that, as built, was unable to accommodate Dang's standard size dishwasher. Dang alleged that Catoire was unsuccessful in his attempt to rectify the problem with regard to the dishwasher. Additionally, Dang alleged that she made demand on Catoire to repair and/or replace the deficiencies in the cabinets, but that Catoire refused to do so. Accordingly, Dang sought costs of removal, replacement, and repair so that the cabinets would meet the original design and contract specifications.
Catoire answered Dang's petition and filed a reconventional demand, asserting that he installed the cabinets as contracted and that Dang owes him the last payment of $2,333.00, which she has refused to pay.
Following a trial of this matter, the trial court rendered a judgment in favor of Dang and against Catoire in the amount of $6,166.00, together with legal interest from the date of judicial demand and all court costs. Catoire filed a motion for new trial, which was denied. Catoire now appeals the trial court's judgment.
DISCUSSION
Louisiana Civil Code article 2769 governs a contractor's liability for noncompliance with a contract and states:
If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.
A contractor is obligated to perform the work in a good and workmanlike manner, so that the work is suitable for its intended purpose and free from defects in material and workmanship. Cascio v. Henry Hays Carpet and Decorating, LLC, 42,653, p. 10 (La. App. 2nd Cir. 10/24/07), 968 So. 2d 844, 850. An owner who seeks to recover damages from a contractor has the burden of proving: 1) the existence and nature of the defects; 2) that the defects were due to faulty materials and workmanship; and 3) the cost of repairing the defects. Melancon v. Tri-Dvne Tele-Pier, LLC, 11-1055, p. 10 (La. App. 5th Cir. 5/31/12), 95 So. 3d 576, 581.
The appropriate measure of damages as a result of a breach of a contract to build under La. C.C. art. 2769 is what it will take to place the person who contracted for the work in the position he deserved to be in when the project was completed. Maxwell v. Cayse, 10-680, p. 3 (La. App. 3rd Cir..-12/8/10), 54 So. 3d 118, 121; see also Melancon, 11-1055 at p. 10, 95 So. 3d at 581. Thus, the remedy is to reduce the contract price in an amount necessary to perfect or complete the work according to the terms of the contract, Maxwell, 10-680 at p. 3, 54 So. 3d at 121; Cascio, 42,653 at p. 10, 968 So. 2d at 851; see also Melancon, 11-1055 at p. 10, 95 So. 3d at 581.
However, under Louisiana law, a building contractor is entitled to recover the contract price, even though defects and omissions are present when he has substantially performed the building contract. Maveaux v. McInnis, 00-1540, p. 4 (La. App. 1st Cir. 9/28/01), 809 So. 2d 310, 313, writ denied, 01-3286 (La. 3/8/02), 810 So. 2d 164. "Substantial performance" means that the construction is fit for the purposes intended despite the deficiencies. Maveaux, 00-1540 at p. 4, 809 So. 2d at 313. Factors to be considered in determining whether there has been substantial performance include the extent of the defect or nonperformance, the degree to which nonperformance has defeated the purpose of the contract, the ease of correction, and the use or benefit to the owner of the work already performed. Maveaux, 00-1540 at pp. 4-5, 809 So. 2d at 313.
At trial, Dang asserted that the kitchen cabinets were not built in accordance with the building contract, because the dishwasher did not fit in the opening for it; the opening for the stove was too tight; she was unhappy with the paint color on the cabinets; and the doors of the cabinets were made from MDF (medium density fiberboard), rather than solid wood.
Dang testified that at the time the cabinets were installed, she had an existing, standard-size stove. However, after the installation of the cabinets and new countertop, Dang purchased and installed a new stove of the same, standard size. During the installation, Dang stated that the opening for the stove was so tight that several of the countertop tiles adjacent to the opening popped off. However, Dang and her daughter, Kim Dang, admitted that the new stove did fit into the opening and that no damage was done to the cabinets.
Additionally, Dang stated that when Catoire brought in some of the cabinets and installed them, it was discovered that the floor of the trailer was not level, and as a result, her dishwasher was unable to fit under the counter. Dang stated, however, that when Catoire asked her what she wanted to do about the unlevel floor, rather than raising the trailer to level the floor, Dang opted to just install the cabinets.
Further, Dang asserted that she was unhappy with the cabinet doors, because they were not made of "solid wood" and because the paint color was not what she wanted. However, according to her own testimony, Dang communicated to Catoire that she wanted "all wood" or "real wood" cabinets, not "solid wood." Further, though she was displeased with the paint color, Dang admitted that she picked out the paint color and refused Catoire's efforts to bring in a professional painter at no additional cost to paint the cabinets. Finally, despite all of the alleged defects in the cabinets, Dang stated that she has continued to use the cabinets through the date of trial.
Catoire testified that he has been constructing cabinets for twenty-two years. Catoire stated that in the instant case, he constructed the cabinets using solid wood and constructed the doors and drawers using MDF, a real wood product, which is standard when building paint-grade cabinets. Catoire also stated that he painted some of the cabinets the color selected by Dang, but that she was not pleased with how they turned out and asked him to stop painting the cabinets. Catoire stated that he offered to hire a professional painter to come and paint the cabinets at no additional charge, but Dang refused.
Further, Catoire testified that he was not aware that the floor was unlevel when he measured for the cabinets, since the center of the trailer is where the floor became unlevel. Catoire stated that the location of the stove dictated the cabinet height, and the peninsula design of the kitchen resulted in the opening of the dishwasher, which was located on the peninsula in the center of the trailer, being too low. Catoire testified that he shaved some of the cabinet off to try to level the cabinets, but that the only other way to alleviate the two-inch difference in cabinet height would have been to level the trailer. Catoire stated that given the unlevel nature of the floor, there was no way to make the dishwasher fit, even if he re-built the cabinets from scratch. However, he stated that if Dang would not have refused to pay him the remainder of the contract price, he would have offered to cut off the end of the peninsula and raise the counter to make the dishwasher fit. Catoire testified that he would normally charge a new client $600.00 to $700.00 to do this, but that he would have done it for Dang for free. Additionally, because the countertop is tile, he would not have to remove the entire countertop to make this modification, but only a few tiles.
Finally, with regard to the stove, Catoire testified that he used standard-size openings in the cabinets for all of the appliances, and when he installed the cabinets, they were placed on either side of the existing, standard-size stove. Catoire stated that he was never notified of any problem with the installation of the new stove.
From our review of the evidence in the record, we find that the trial court erred in awarding Dang $6,166.00, representing the amounts already paid on the contract, plus $1,500.00 for the cost and installation of the tile countertop. First, despite Dang's assertion, there is no evidence that the installation of MDF cabinet doors, which are "all wood" as agreed between the parties, violated the terms of the contract. Further, there is no evidence that Dang's problem with installing her new, standard-size stove is attributable to any defect in the cabinets. Catoire testified that he used standard appliance sizes in constructing the cabinets, and the evidence indicates that the previous stove and new stove, both of which fit into the opening, were the same, standard size. Accordingly, the only defects in the construction of the cabinets established by Dang are the failure to paint the cabinets as contemplated and the failure to construct the cabinets so that the dishwasher would fit.
As stated previously, the proper measure of damages is to reduce the contract price in an amount necessary to complete the work or to correct the defective work according to the terms of the contract. Maxwell, 10-680 at p. 3, 54 So. 3d at 121. The evidence in the record indicates that the cost of painting the cabinet doors is $800.00 and the cost to correct the cabinets so the dishwasher would fit is $700, for a total of $1,500.00. However, because the defects in the cabinets can easily be corrected, and Dang has used and continues to use the cabinets as installed, we find that Catoire has substantially performed the building contract, and therefore, Dang is entitled to a reduction of $1,500.00 from the total contract price of $6,999.00. See also La. C.C. art, 2765.
Because Dang failed to pay Catoire the balance of $2,333.00 due on the building contract, we find that Catoire is entitled to judgment in the amount of $833.00, representing the remaining balance owed of $2,333.00, minus the $1,500.00 reduction to paint the cabinets and raise the countertop to accommodate the dishwasher.
CONCLUSION
For the foregoing reasons, we reverse the judgment of the trial court and render judgment in favor of Jason Catoire in the amount of $833.00, together with legal interest from the date of judicial demand. All costs of this appeal are assessed to Merry Dang.
REVERSED AND RENDERED.