Opinion
No. CA 08 00630.
March 11, 2009.
APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 20004-6323-A, HONORABLE MARK A. JEANSONNE, PRESIDING.
JOHN T. BENNETT, Marksville, LA, COUNSEL FOR DEFENDANT T. T. LABORDE, D/B/A T. T. LABORDE HEATING-AIR-ELECTRICAL.
CORY P. ROY, Marksville, la, COUNSEL FOR PLAINTIFF KILPATRICK INVESTMENTS, INC.
Court composed of Sylvia R. Cooks, John D. Saunders; and Jimmie C. Peters Judges.
FACTS AND PROCEDURAL HISTORY
T. T. Laborde d/b/a T. T. Laborde Heating-Air-Electrical (hereinafter referred to as "Laborde") entered into a written contract with Kilpatrick Investments, Inc. (hereinafter referred to as "Kilpatrick") in May 2001. Kilpatrick, as owner of certain property, contracted with the State of Louisiana to lease a building in Marksville to house the Avoyelles Parish Office of Family Support. Kilpatrick acted as the general contractor for construction of the new building and hired as its architect Paul F. Stewart. As General Contractor for the project, Kilpatrick contracted the services of Laborde to perform all of the electrical work for the new construction. Kilpatrick was aware that Laborde was not a licensed electrician. Because Laborde bid the job under $50,000.00 state law did not require that he secure a license.
Laborde completed the work according to the architect's plans and specifications despite the fact that Laborde disagreed with and voiced objection to some of the architect's instructions concerning grounding of the electrical supply. Laborde was paid for the contract work, for some extra contractual work and materials, but was not paid for some of the bills he submitted for extra work and materials which he claimed were outside the contract price.
Shortly after completion of the building the tenant began experiencing various electrical problems. Laborde responded to the calls and performed warranty work and repairs. Some electrical problems persisted and eventually Laborde stopped performing any further work on the building. Kilpatrick hired the services of three additional electrical and air conditioning companies, Service Air and Electrical Company; Larry Stockwell Air Conditioning; and Twin City Electrical Company. Service Air was the first company to perform electrical work on the building. Subsequent to its work, Twin City performed additional electrical work. In the course of performing its work, Twin City observed that all of the green ground wires, which should have been connected to the florescent light fixtures, had been snipped off leaving the fixtures un-grounded. Plaintiff's experts testified that the failure to connect these green ground wires to each fixture caused the ballasts in each fixture to burn out faster than normal. Laborde testified he and his workmen followed his very strict and normal protocol, connecting the green ground wires to every fixture. Neither party presented any evidence nor called any witness to testify concerning the work performed by Service Air.
Kilpatrick did not sue any of the other entities who performed electrical work in the building subsequent to Laborde. Laborde did not join any of the three subsequent electrical businesses as third parties but did file a Reconventional Demand against Kilpatrick for unpaid bills which Laborde claimed were extra-contractual. Neither side called the architect as a witness and neither Plaintiff nor Defendant asked the court to appoint an independent electrical expert. The only experts to testify at trial were representatives of Stockwell and Twin City.
After a bench trial, the court dismissed Kilpatrick's claims against Laborde and likewise dismissed Laborde's reconventional demands. The trial court ruled from the bench and explained his reasons for judgment. The transcript of the trial court's reasons for judgment make it clear that the trial judge found Laborde and his son's testimony was very credible and convincing. The trial judge concluded Laborde did in fact connect all of the green ground wires to the light fixtures. The judge surmised that had Service Air found the ground wires were snipped prior to their work, they would have made that fact known to Kilpatrick. Instead, the judge was convinced, based on the evidence before him, it was employees of Service Air who snipped the green ground wires when they performed their work on the building. The judge reasoned that because all of the wires were snipped, such must have been done as a result of a uniform company "policy" or practice of whoever snipped the wires. The judge noted Laborde's strict policy and practice is to always connect the green ground wire. He reasoned it was not the actions of Laborde or his workmen which resulted in Plaintiff's electrical problems and attendant costs. The trial court's factual conclusion was bolstered by the fact that even Plaintiff's expert admitted Laborde grounded the entire electrical system in accordance with the architect's plans and specifications.
After explaining his reasons for denying Kilpatrick's claims against Laborde, the trial judge then denied Laborde's reconventional demand stating "The Reconventional Demand has no value in my appreciation of it unless there is some award of the Plaintiffs. Therefore I'll deny that demand as well."
Both parties filed motions for new trial and both motions were denied. Laborde appealed the judgment denying his reconventional demand and Kilpatrick appealed the judgment denying its claim for damages. Both parties have answered the appeal of their opponent.
ANALYSIS
The trial court was not manifestly erroneous in its factual determination that Plaintiff failed to prove its case against the only Defendant sued. The trial judge, in a bench trial, makes determinations of credibility which will not be disturbed on appeal absent manifest error. Henderson v. Nissan Motor Corp., 03-0606 (La. 2/6/04), 869 So.2d 62.
In his reasons for judgment, stated on the record, the judge made clear that his decision to deny recovery to Kilpatrick was based upon his determinations of the witnesses' credibility. The trial judge found Mr. Laborde and his son were very credible witnesses. Both of the expert witnesses called to testify have a longstanding business relationship with Defendant and both performed work on the subject electrical system in Defendant's building. It is well within the discretion of the trial judge to weigh the testimony before him in reaching his factual determinations. A reviewing court must give great weight to the factual conclusions of the trier of fact. Bonin v. Ferrellgas, Inc., 2003-C-3024, (La. 7/2/2004) 877 So.2d 89. The record reflects that Mr. Kilpatrick testified he had no evidence to prove Laborde cut the ground wires. Mr. Martin West, one of the experts called by Kilpatrick, and a representative of Twin City Electric, testified he had no idea what work was performed by Service Air. He further testified Service Air changed at least eighty-five to ninety of the one-hundred twenty balasts and in his opinion its employees did not ground the lights properly. Mr. West also testified he never asked Service Air whether its employees had cut the ground wires to the light fixtures. Further, he testified he did not look at any service records of Service Air and therefore did not know whether Service Air had replaced all of the ballasts.
Johnny Barbo was also called by Plaintiff as an expert electrician. He testified he did not know of any deficiency in the work performed by Laborde which was cited by either the Avoyelles Parish Police Jury, the Town of Marksville, Mr. Kilpatrick (owner/contractor) nor the project's architect. We cannot say the trial judge's factual determinations, upon which he concluded Plaintiff failed to meet its burden of proof, were manifestly erroneous.
Turning to the trial court's ruling on Laborde's Reconventional Demand, we find that the trial court erred as a matter of law in denying Laborde's claims against Kilpatrick. This decision was not based on any factual determination but was clearly based upon an erroneous legal conclusion exemplified in the trial court's own words: "The Reconventional Demand has no value in my appreciation of it unless there is some award of the Plaintiffs. Therefore I'll deny that demand as well." Laborde's Reconventional Demand is a separate and distinct claim against Kilpatrick. Laborde's recovery on his reconventional demand is not dependent upon nor contingent upon whether Kilpatrick made a successful claim against Laborde. The Code of Civil Procedure provides:
"If an incidental demand has been pleaded prior to motion by plaintiff in the principal action to dismiss the principal action, a subsequent dismissal thereof shall not in any way affect the incidental action, which must be tried and decided independently of the principal action." La. Code Civ. Pro. art. 1039. (Emphasis added.)
Laborde properly instituted his demand against Kilpatrick by filing his Reconventional Demand. See La. Code Civ. Pro. art. 1031. The Louisiana Supreme Court, expressly overruling the lower courts' decisions to the contrary, held in Allstate Insurance Co. v. Theriot, 376 So.2d 950 (La. 1979) "the dismissal of the principal demand does not affect any incidental demand in any way." In Allstate, 376 So.2d at 952 the Supreme Court stated "The intermediate court was therefore in error in dismissing the intervention simply because the principal action fell." Allstate, Id. We therefore remand this case to the trial court for a ruling on the amount of Laborde's damages.
DECREE
Affirmed in part, reversed in part, remanded for further proceedings. All costs of Appeal assessed against Kilpatrick Investments, Inc.