Aqua Pool Ren. v. Paradise Manor Comm. Club

Citations: 880 So. 2d 875; 2004 WL 1672233Docket: 04-CA-119

Court: Louisiana Court of Appeal; July 27, 2004; Louisiana; State Appellate Court

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Aqua Pool Renovations, Inc. entered into a $50,747 contract with Paradise Manor Community Club, Inc. on March 20, 2001, for pool renovations, to be completed by May 3, 2001. The contract, containing provisions for penalties and requiring written change orders, was signed by Aqua Pool's owner, Terry Lonatro, and authorized by Paradise Manor's board member, Barry Breaux. During the project, Aqua Pool encountered unforeseen issues, leading Breaux to authorize additional work verbally, which Paradise Manor later disputed, claiming they lacked funds for extra expenses.

On the completion date, Breaux provided a list of unresolved items, and Paradise Manor withheld $3,000 from Aqua Pool, asserting that the work was incomplete. Aqua Pool filed a lawsuit on November 29, 2001, seeking $8,832, which included the withheld amount and costs for additional work. Paradise Manor countered, denying authorization for extra work, alleging Aqua Pool breached the contract by failing to meet the deadline, and asserting liability for penalties and additional completion costs due to Aqua Pool's alleged negligence.

The trial occurred in February 2003, resulting in a judgment on May 27, 2003, awarding Aqua Pool $1,920.

A judgment required each party to select an unrelated third party to inspect a pool for air leaks potentially caused by Aqua Pool during renovations. Aqua Pool's request for contractual attorney fees was denied, with each party bearing its own costs. Aqua Pool appeals this judgment, while Paradise Manor did not appeal any aspect of it. 

In its first assignment of error, Aqua Pool contends the trial court incorrectly ruled that 'extras' were unauthorized. Aqua Pool acknowledges these extras were not in the original contract but asserts they were verbally approved by Mr. Breaux. The appellate court will not overturn factual findings unless they are manifestly erroneous. Testimony from John Jorgensen, president of Paradise Manor in 2001, indicated that while Aqua Pool’s bid was approved and financed, there was no budget for extras, and the board needed to approve any additional work. Jorgensen believes the board would have consented to some extras had they been asked, but Aqua Pool did not secure written approval, which he argues negates their claim for payment.

Terry Lonatro from Aqua Pool testified that Mr. Breaux verbally authorized all additional work, without needing to consult the board. However, Barry Breaux stated he lacked the authority to approve extra expenditures without board consent. The trial court affirmed that a written contract is binding and modifications typically require written change orders. Nonetheless, oral modifications may occur, and silence or inaction can imply agreement. The trial judge concluded that there was no 'meeting of the minds' regarding the alleged contract modifications with Aqua Pool. The appellate court must now assess whether Mr. Breaux's actions or lack thereof constituted an agreement to the additional work, determining Aqua Pool's entitlement to payment for these extras.

Aqua Pool claims additional payment for two extra tasks: re-piping the intake manifold and installing light niches. Mr. Lonatro observed that the existing pipes to the manifold were aging and needed replacement. He estimated the cost for this work at $800-$1,000, which Mr. Breaux authorized. Although no formal change order was signed, evidence indicates that Mr. Breaux was aware of and did not oppose the additional work, as shown by his email giving specific instructions. The lack of a written contract clause for this work was compensated by the parties' oral agreement and Mr. Breaux's inaction. Expert testimony supported a reasonable cost of $750-$1,200 for the work, leading to the conclusion that Aqua Pool is entitled to $1,000, with the trial court's prior denial of payment being reversed.

Regarding the light niches, Aqua Pool discovered during renovation that the existing pool lacked niches, which are now required by code. Mr. Lonatro, upon finding this issue, recommended installing niches to prevent water leakage, and Mr. Breaux agreed to this additional work. The testimony establishes that the installation of niches was necessary and authorized.

Aqua Pool agreed to install niches for $500 each, which was close to cost. Paradise Manor contested a $1,500 charge for three niches, claiming the work was unauthorized. Mr. Breaux testified he was unaware Aqua Pool would install three niches, despite admitting in a deposition to knowledge of niche installation. He asserted that niches were not discussed as extras and should have been included with the light installation in the contract. Mr. Lonatro, an experienced pool builder, acknowledged that niches were not a code requirement in 1958 and that they likely needed installation during renovation. Legal principles dictate that contracts must be performed in good faith and can only be modified by mutual agreement. Since Aqua Pool's contract specified installation of three lights, it was determined that niches were necessary materials for that installation and thus included in the original contract. Consequently, Aqua Pool was denied additional compensation for the niches.

Regarding concrete decking, Mr. Lonatro suggested pouring extra concrete for uniformity, quoting $2.50 per square foot for 300-400 square feet, which Mr. Breaux authorized. Aqua Pool claimed to have poured 355 square feet, while Mr. Breaux measured only 25.8 square feet. Despite conflicting testimonies, evidence indicated that the contract was orally modified to permit additional work, and Aqua Pool is entitled to payment at the quoted rate of $2.50 per square foot for the additional decking. The burden of proof for contract modification rests with the party asserting it.

Aqua Pool successfully demonstrated that the contract was orally modified to include additional decking; however, it did not prove that 355 square feet of decking was poured. Consequently, Aqua Pool is entitled to compensation for only 25.8 square feet at $2.50 per square foot, totaling $64.50. The trial court's judgment denying any compensation for additional decking is reversed.

Regarding the baby pool, Aqua Pool claims $1,425 for additional work after discovering outdated copper piping during renovations. Testimonies indicate that although Mr. Breaux did not explicitly authorize the work, he was present and aware of it, and silence or inaction can imply contract modifications. Thus, the trial court's failure to recognize this modification is deemed manifestly erroneous, and Aqua Pool is awarded the claimed amount.

For miscellaneous valves and equipment, Aqua Pool asserts a claim for $640 for items including valves and a chlorinator. Testimony confirms that Mr. Breaux authorized these installations, and the charges are considered reasonable. The trial court's denial of this claim is also reversed.

In its second assignment of error, Aqua Pool contests the trial court's award to Paradise Manor for $750 to repair concrete cracks and $710 for an electrician's bill. Aqua Pool argues that the cracks were minor and common in pool decking, referencing expert testimony that supports the notion that cracking is expected. Louisiana law mandates that contractors complete work in a good and workmanlike manner, free from defects.

In the case of Mount Mariah Baptist Church, Inc. v. Pannell's Associated Electric, Inc., the court addressed issues related to the placement of expansion and control joints in a pool deck, which were believed to impact cracking. Testimony indicated that while expansion joints placed every 16 feet do not completely prevent cracks, they can reduce their frequency and severity. Inspections revealed that Aqua Pool had not adhered to these recommendations, leading to visible cracks and associated repair costs estimated between $2,000 and $4,000. The trial court awarded Paradise Manor a $750 offset for these damages, a decision upheld by the appellate court, which found no clear error in the trial court's assessment.

Additionally, the trial court awarded a $710 offset to Paradise Manor for electrical work, which Aqua Pool contested, arguing that the contract excluded responsibility for electrical systems. However, the court determined that the contract's clear language encompassed all necessary labor, including electrical work associated with the installation of lights. Consequently, Aqua Pool's argument was deemed unpersuasive.

Lastly, Aqua Pool objected to a court order requiring the selection of a third party to evaluate a claimed air leak, asserting that Paradise Manor failed to prove Aqua Pool's involvement in causing the leak. There was testimony supporting the existence of the air leak, but Aqua Pool argued against further discovery post-trial. The court's decisions regarding offsets and the third-party evaluation were upheld.

Mr. Lonatro testified that a leak existed in the main drain line before Aqua Pool began renovations, and a minor air leak was present upon completion. He clarified that Aqua Pool was not contracted to replace the main drain line and that the air leak was unrelated to their work. A leak detection company confirmed the presence of a small air leak likely within the pool's shell, though it was not a significant issue and would not impair the pump or filtration system. In contrast, Mr. Ladner noted that air in the system, indicated by bubbles, necessitated the pump running longer for effective cleaning and filtering, and leaving such a leak unaddressed was unacceptable. Paradise Manor acknowledged that the air leak originated in the main drain pipe, while Aqua Pool maintained that it had not worked on that line. Mr. Breaux, who initially thanked Aqua Pool for fixing the leak, later discovered it continued to leak. The trial judge concluded that there was insufficient evidence to confirm whether the leak existed before Aqua Pool's involvement, but noted the testimony indicated a leak persisted afterward. The judge suggested that if Paradise Manor no longer wanted Aqua Pool on-site, both parties should mutually select a third party for repairs. He expressed discomfort with vague estimates provided for testing and fixing the leak, emphasizing the need for a qualified professional to assess the situation. Although the judge's remarks were not part of the formal judgment, they suggested a belief that Aqua Pool may have contributed to the air leak. The signed judgment mandated an independent inspection of the pool to ascertain the presence and cause of the air leak. The trial judge's discretion to control trial procedures and the decision to keep the case open for additional evidence were upheld as appropriate. Aqua Pool's assertion that the trial court improperly denied its request for attorney fees was rejected, as the judge found no contractual obligation or statutory basis for such fees, consistent with Louisiana law.

The contract stipulates that if an account is referred to an attorney for collection, the customer must pay all associated attorney's fees and court costs, alongside any outstanding balance and accrued interest. Aqua Pool sued Paradise Manor for a $3,000 balance owed under the contract. The trial court ruled in favor of Aqua Pool regarding this amount. Aqua Pool is entitled to attorney fees for the collection based on the contract, but fees for recovering additional costs outside the contract are not recoverable. Aqua Pool's total attorney fees were $6,457.50, with one-third deemed applicable to the collection of the $3,000, resulting in an award of $2,152.50 for attorney fees.

The court reversed the trial court's denial of recovery for additional work and materials, specifically for repiping, extra concrete decking, baby pool work, and miscellaneous equipment, awarding Aqua Pool $3,129.50 for these items. The total award includes the additional work and attorney fees, while the trial court's decision is affirmed in other respects. Paradise Manor is responsible for the costs of the appeal. The trial judge had previously determined that Aqua Pool's renovations were completed on time and awarded the remaining contract payment minus credits for payments made by Paradise Manor for other work.