Opinion
2016 CA 0422
06-02-2017
GAUDET & TOLSON, LTD. AND LE CENTRE EVANGELINE CORPORATION v. KELLEY HRABE, BATON ROUGE PARTNERS, LLC, THE GARDEN SENIOR APARTMENTS, LLC, HUMANITIES FOUNDATION, INC., STATE OF LOUISIANA, DIVISION OF ADMINISTRATION, OFFICE OF COMMUNITY DEVELOPMENT, LOUISIANA HOUSING CORPORATION, NET GIVER, LLC AND FIRST AMERICAN TITLE INSURANCE COMPANY, INC.
Richard Mary Laura F. Mary Baton Rouge, Louisiana Counsel for Plaintiffs-Appellants Gaudet & Tolson, Ltd. and Le Centre Evangeline Corporation Miles C. Thomas New Orleans, Louisiana Counsel for Defendant-Appellee Humanities Foundation, Inc.
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER C628657, SECTION 25, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA HONORABLE WILSON E. FIELDS, JUDGE Richard Mary
Laura F. Mary
Baton Rouge, Louisiana Counsel for Plaintiffs-Appellants
Gaudet & Tolson, Ltd. and Le Centre
Evangeline Corporation Miles C. Thomas
New Orleans, Louisiana Counsel for Defendant-Appellee
Humanities Foundation, Inc. BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
Disposition: AFFIRMED.
CHUTZ, J.
Plaintiffs-appellants, Gaudet & Tolson, Ltd. (G&T) and Le Centre Evangeline Corporation (Le Centre), appeal the trial court's judgment granting the motion for partial summary judgment filed by defendant-appellee, Humanities Foundation, Inc. (Humanties), and dismissing plaintiffs' claims against Humanities that arise out of purported verbal contracts. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
According to the allegations of plaintiffs' petition, G&T contracted with Baton Rouge Partners, LLC (BRP), another named defendant in this lawsuit, through its representative, defendant Kelley Hrabe, to provide architectural services in connection with the design and construction of an affordable housing project located in Baton Rouge (the apartment project). According to the terms of the contract, the apartment project consisted of 150 units, and G&T was to be paid a fee of 5% of the construction cost per a stipulated schedule. It was anticipated that to fund the apartment project, Community Development Block Grant (CDBG) funds would be applied for through the State of Louisiana, Division of Administration, Office of Community Development (OCD). To assist in securing CDBG funds, BRP, Hrabe, and another named defendant, The Net Giver, LLC (Net Giver), hired Le Centre to assist in preparing grant requests and to address local governmental issues. Plaintiffs aver that in exchange for its services, BRP, Hrabe, and Net Giver agreed to pay Le Centre 2% of the amount of any grant funds generated and an additional 15% of the developer fee incorporated into the grant. If no grant funds were generated, Le Centre agreed to be paid nothing.
Plaintiffs further allege that G&T duly prepared a plan of scope of work as required for the 150-unit apartment project and another plan of scope of work as needed for an alternative 80-unit apartment project. A $4 million application was submitted to OCD for the funding of a 55-unit apartment project and approved by OCD, purportedly with the assistance and grant-required documentation provided by Le Centre and the grant-required documentation and specifications prepared by G&T.
According to the petition, after OCD's approval of the $4 million CDBG, BRP assigned its interest in the apartment project to Humanities. Plaintiffs allege that they continued to work on the apartment project, known as The Gardens Senior Apartments, "at the behest of Humanities" to secure additional resources.
Although plaintiffs alleged in their petition that Net Giver assigned its interest to Humanities, in its appellate brief they state that BRP assigned the interest to Humanities and reference the assignment contained in the record. Our review of the assignment shows that it was executed between Humanities and Garden Senior Apartments, LP (GSA), which was represented by its general manager, Hrabe. The extent of the relationship between Hrabe and GSA was not established by the pleadings, affidavits, and attachments submitted for purposes of Humanities' motion for summary judgment.
Plaintiffs aver that Hrabe, Net Giver, and Humanities subsequently repudiated their contracts with them without notice. G&T and Le Centre then filed this lawsuit seeking, among other things, payment from Humanities for the sums they contend are due as a result of verbal contracts they entered into with Humanities for the services it used or for its use of their work product. Plaintiffs further aver that dismissal of Humanities from this lawsuit was erroneous because Humanities assumed liability for the debts of BRP and Hrabe owed to them. Alternatively, plaintiffs allege Humanities is liable to them under principles of unjust enrichment.
Humanities filed a motion for partial summary judgment asserting that plaintiffs could not satisfy their evidentiary burden of proof to find it liable. After a hearing, the trial court granted the motion and dismissed Humanities from the litigation. G&T and Le Center appeal.
DISCUSSION
A motion for summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966B(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Temple v. Morgan , 2015-1159 (La. App. 1st Cir. 6/3/16), 196 So.3d 71, 76, writ denied, 2016-1255 (La. 10/28/16), 208 So.3d 889.
La. C.C.P. art. 966 was amended and reenacted by La. Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The amended version of Article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act. Since the motion for summary judgment was filed on March 30, 2015, we refer to the former version of the article in this case. See La. Acts 2015, No. 422, §§ 2 and 3.
The burden of proof rests with the mover. See La. C.C.P. art. 966C(2). But if the moving party will not bear the burden of proof at trial, the moving party's burden is satisfied by pointing out an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proof at trial. If they fail to do so, there is no genuine issue of material fact. See La. C.C.P. art. 966C(2); Temple , 196 So.3d at 76.
Liability for Verbal Contracts:
La. C.C. art. 1927 states:
A contract is formed by the consent of the parties established through offer and acceptance.
Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by
action or inaction that under the circumstances is clearly indicative of consent.
Unless otherwise specified in the offer, there need not be conformity between the manner in which the offer is made and the manner in which the acceptance is made.
It is undisputed that no written contracts existed between either G&T and Humanities or Le Centre and Humanities. Instead, plaintiffs suggest they had verbal contracts with Humanities. The parties agree that the value of the verbal contracts as alleged by G&T and Le Centre exceeded $500.
La. C.C. art. 1846 provides:
When a writing is not required by law, a contract not reduced to writing, for a price or, in the absence of a price, for a value not in excess of five hundred dollars may be proved by competent evidence.
If the price or value is in excess of five hundred dollars, the contract must be proved by at least one witness and other corroborating circumstances.
In its motion for summary judgment, Humanities pointed out that plaintiffs lacked factual support sufficient to establish any verbal contracts existed between the parties. Specifically, Humanities asserted that plaintiffs failed to provide evidence from a witness along with other corroborating circumstances to support a finding of the existence of a verbal contract with a value in excess of $500.
In response to Humanities' showing, plaintiffs offered into evidence the affidavit of their attorney, Richard Mary. He attested that a set of documents, identified as Exhibit A-3, "was produced by [p]laintiffs to Humanities during discovery." Exhibit A-3 consists of 19 pages of email correspondence, apparently between representatives from Humanities, G&T, Le Centre, and Hrabe, as well as other individuals. Mary's affidavit does not further describe or explain the contents of Exhibit A-3.
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. La. C.C.P. art. 967.
Because Mary attested that he had "personal knowledge of the discovery produced by [p]laintiffs to Humanities," we examine the contents of Exhibit A-3. In so doing, we note that nothing clearly identifies the respective person associated with each of the various email addresses or explains the relationships of the individuals associated with the email addresses and the parties.
Gleaning from the contents of all the emails and presuming that the contents of the email are what they claim to be, the record is devoid of any evidence showing Humanities' consent as established by an offer and an acceptance. Indeed, nothing in the email correspondence shows that Humanities agreed to any terms with either G&T or Le Centre. While there is email correspondence that may be construed to suggest that Le Centre, through Charles Tate, attempted to establish the details of a contract between Le Centre and Humanities, that correspondence was with Hrabe, and he forwarded it onto Humanities without any evidence of a responsive reply by Humanities. Therefore, Humanities' consent to contract with Le Centre was not established. Additionally, Exhibit A-3 contains no email correspondence showing any offer by G&T for which Humanities accepted. And nothing establishes either inaction on the part of Humanities constituted its acceptance of any terms with either G&T or Le Centre or that Hrabe acted in a representative capacity on behalf of Humanities in his dealings with either plaintiff.
According to La. C.E. art. 901A, the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Since Mary's affidavit identified the emails as discovery provided from G&T and Le Centre to Humanities, it is questionable whether the contents of Exhibit A-3 are sufficient to satisfy the requirement of authentication or identification as a condition precedent to admissibility. But for purposes of disposition of the issues raised in this appeal, we presume their authenticity.
Thus, G&T and Le Centre failed to produce evidence sufficient to support factual findings of the existence of verbal contracts between each of them and Humanities by at least one witness and other corroborating circumstances as required by La. C.C.P. art. 1846. On the showing made, the trial court correctly granted partial summary judgment in favor of Humanities, concluding that plaintiffs failed to establish the existence of any verbal contracts between either G&T and Humanities or Le Centre and Humanities.
Liability for Unjust Enrichment:
Alternatively, G&T and Le Centre maintain that Humanities is liable to them under the doctrine of unjust enrichment. They assert, therefore, that the trial court's grant of summary judgment and dismissal of Humanities from the lawsuit was error.
There is a general concept of quasi contractual obligations; it is a concept based upon the principle that where there is an unjust enrichment of one at the expense or impoverishment of another, then the value of that enrichment or, in some cases, the amount of the impoverishment must be restituted. Our Lady of the Lake Reg'l Med. Ctr. v. Helms , 98-1931 (La. App. 1st Cir. 9/24/99), 754 So.2d 1049, 1052, writ denied, 99-3057 (La. 1/7/00), 752 So.2d 863. More specifically, La. C.C. art. 2298 provides, in part, that "[a] person who has been enriched without cause at the expense of another person is bound to compensate that person."
To prevail on an unjust enrichment claim, the plaintiff must prove five elements: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the resulting impoverishment; (4) an absence of justification or cause for the enrichment and impoverishment; and (5) the lack of another remedy at law. Davis v. Elmer , 2014-1298 (La. App. 1st Cir. 3/12/15), 166 So.3d 1082, 1087-88. The remedy of unjust enrichment is "subsidiary in nature and 'shall not be available if the law provides another remedy.'" Walters v. MedSouth Record Mgmt., LLC , 2010-353 (La. 6/4/10), 38 So.3d 243, 244 (per curiam) (quoting La. C.C. art. 2298). The mere fact that a plaintiff does not successfully pursue another remedy does not give the plaintiff the right to recover under the theory of unjust enrichment. Id.
Here, G&T and Le Centre have a remedy against BRP and Hrabe in contract for payment as a result of the services they rendered. Since they are unable to show the lack of another remedy at law as required under the jurisprudence for unjust enrichment recovery, damages for unjust enrichment are not available to them. Therefore, the trial court correctly granted partial summary judgment and dismissed Humanities from the lawsuit concluding there were no material issues of fact insofar as the inability of G&T and Le Centre to recover damages under principles of unjust enrichment.
Because we have found G&T and Le Centre failed to produce sufficient factual support of the existence of a contractual or quasi-contractual relationship between plaintiffs and Humanities, we pretermit a discussion on the applicability and effect of any federal law to the facts of this case.
Liability for Assumption of Hrabe's Debts:
G&T and Le Centre also assert the trial court's implicit finding that "a promise to pay a debt of a third party must be in writing" was erroneous. G&T and Le Centre contend that they produced sufficient factual support to show that the debt owed to them by Hrabe was assumed by Humanities.
G&T and Le Centre describe their assertion in terms of "pledge" without reference to the legal principles related to pledge. See La. C.C. arts. 3141-67 (providing for the general principles of pledge). Any assertions relative to liability predicated on a pledge agreement urged by plaintiffs in the trial court are deemed abandoned since they were not briefed in their appellate brief. See La. U.R.C.A. Rule 2-12.4B(4).
An obligation is a legal relationship whereby a person, called the obligor, is bound to render a performance in favor of another, called the obligee. La. C.C. art. 1756. Applying Article 1756 to their contention, G&T and Le Centre ostensibly are obligees owed the performance of payment for their services contracted by obligor, Hrabe, which was allegedly assumed by third party, Humanities. An obligor and a third person may agree to an assumption by the latter of an obligation of the former. To be enforceable by the obligee against the third person, the agreement must be made in writing. La. C.C. art. 1821.
G&T and Le Centre offered no evidence to support a finding of a written contract in favor of Humanities assuming the debts Hrabe owed them. Indeed, in their memorandum opposing the motion for partial summary judgment, G&T and Le Centre stated they did not object to Humanities' statement of uncontested material facts, which included that "Humanities is not the creditor of ... Hrabe." Therefore, since G&T and Le Centre have failed to produce a writing evidencing Humanities assumption of any indebtedness Hrabe may have to them, there are no outstanding issues of material fact. The trial court correctly granted partial summary judgment finding no liability between G&T and Le Centre and Humanities on the basis of an assumption of Hrabe's debts by Humanities.
The assignment referenced by plaintiffs as evidencing the transfer of BRP's interest to GSA, see n.1, supra, states that Humanities "has not assumed any liabilities, obligations or indebtedness of Assignor of any kind, type or nature." Because the record fails to establish the nature and extent of the relationships between Hrabe, BRP, and GSA, we are unable to apply this provision to our disposition of the issue of whether Humanities assumed liability for the debts of Hrabe. --------
DECREE
For these reasons, the trial court's judgment is affirmed. Appeal costs are assessed against plaintiffs-appellants, Gaudet & Tolson, Ltd. and Le Centre Evangeline Corporation.
AFFIRMED.