Bonvillain Builders, L.L.C. and Bonvillain Construction Company, Inc. VS Charon E. Gentile, M.D. and LaDonna, L.L.C. (2008CA1994 Consolidated With 2008CA1995)
Annotate this Case
Download PDF
STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2008 CA 1994 BONVILLAIN BUILDERS LLC AND BONVILLAIN CONSTRUCTION COMPANY INC VERSUS CHARON E GENTILE M D AND LA DONNA LLC CONSOLIDATED WITH NO 2008 CA 1995 CHARON E GENTILE M D AND LA DONNA LLC VERSUS f BONVILLAIN BUILDERS LLC AND BONVILLAIN CONSTRUCTION COMPANY INC fl Judgment Rendered OCT 3 0 2009 from the Appealed 32nd Judicial District Court In and for the Parish of Terrebonne Louisiana Case No 145123 and 151029 The Honorable Randall L Bethancourt Douglas H Houma Louisiana Judge Presiding Counsel for Plaintiff Appellee Greenburg Bonvillain Builders LLC and Bonvillain Construction Co Randall M Alfred Counsel for Defendants Houma Louisiana Charon E Appellants Gentile M D and La Donna LLC BEFORE KUHN GUIDRY GAIDRY McDONALD AND McCLENDON JJ u J Ji J ds f s J tllld 9N IJsc 2 14 5 1 0 fJ j 9 7CtA CI7 2 I I w u J A Inc GAIDRY J The owners of a professional them and in favor of the For the interest reverse a judgment against who constructed the office contractors following it in part and appeal fees appeal seeking damages attorney the contractors answer medical office reasons deny the we answer to affirm the the judgment The costs and in part and III Houma appeal FACTS AND PROCEDURAL HISTORY MD Gentile Charon E is Louisiana and the sole member of L L C La convenience as Dr we by its Inc The final terms it and an The was on effective firm Approval Only Parish as a However in I January 2004 the for eight Inc had been a and Bonvillain The total contract proposal on price was dated were November 25 2003 of its date November 12 2003 drafting service to prepare to prepare the structural The latter plans the office floor project plans needed bore the notation The Bonvillains submitted the and parish a of the concrete principal plans Terrebonne building permit before the foundation As of the time of trial Michael Bonvillain the Company chose that ultimately L LC contract Planning Commission Consolidated Government She Builders executed the for the approval of the fire marshall Terrebonne the lot for the Bonvillains plans parties engineering Fire Marshall jointly municipal the Bonvillains The Bonvillains retained plans For Gentile and La Donna L L C Bonvillain by Company October 7 2003 but lot in Houma a to Dr medical office a jointly 323 819 00 company La Donna liability Dr Gentile obtained three bids from contractors for the construction of Construction physician practicing limited a owned refer hereafter Gentile submitted LL C Donna a was was For to the Parish approved poured the of Bonvillain Construction licensed commercial and residential contractor in Louisiana nine years His brother Kirby Bonvillain was the owner of Bonvillain Builders LLC and was a licensed pharmacist He was not a licensed contractor or 2 issued parish again consulted their cost 00 and 490 5 The conform not amounted informed of the need for s total prepare the to who for that was cost to drainage study which including that of the cost its final Dr cost well as was A nearly complete as 13 2004 April Although drainage system a her until the construction project responsible 02 422 47 The Bonvillains buildings completed to to was to requirement code parish building completed sometime prior drainage system drainage study firm engineering was the to for commercial drainage systems to advising the Bonvillains that the and desist order cease plans did construction relating a Gentile not was disclosed dispute arose certain unfinished as punch list and other items On August 30 substantial executed 2004 a notice of termination of work of the office pursuant completion by Bonvillain Builders 2004 the Bonvillains filed 26 relating to the alleged unpaid 9 4822 E RS to La verifying L L C and La Donna L L C a of their statement the was On October contractor s privilege balance due in the mortgage records of Terrebonne Parish On Gentile an 29 2005 the Bonvillains instituted this April filing a Petition unpaid balance final 10 they to due of contemplated added contract price They They alleged representing further alleged the that by Terrebonne Parish codes procedures and governmental regulations which required project codes and Damages 32 381 90 under the contract payment of the original abided system Rescind Sale and for litigation against Dr and that the and its a parties costs to regulations They claimed as a drainage system comply well net agreed as a with which was not upon the additional drainage appropriate Terrebonne Parish change order to that effect balance due for that additional 3 originally Emphasis cost after a credit attributable the Bonvillains Additionally and in misrepresentation liable to them for entitlement Dr petition alleged that failing to Dr perform her Gentile filed failed to state seek rescission a of action no acted with artifice was They also alleged costs contract not or a right of action of the Bonvillains evident from the record that the amending petition clarifying their demand contract that the was a contract Although alleged was 2005 the scheduled date of hearing the Bonvillains filed reiterating and thus from the time Dr Gentile took of sale contract disposition of the exception is and 45 813 55 peremptory exception raising objections that the a cause as of obligations damages attorney fees and rental value of the property to amount Gentile Finally they sought rescission of the occupancy to changes in other items in the to a on the September 30 supplemental and construction contract should be rescinded or dissolved On March 2 2007 Dr Gentile answered the existence and nature change order relating of the to the Bonvillains failure the to but contract complete that she denying drainage system petition admitting She also their work as well agreed the to any affirmatively alleged as various defects or omissions in construction that constituted breaches of the warranty of workmanlike On performance April 10 2007 Dr Gentile instituted a separate legal action for damages against the Bonvillains alleging that there were numerous defects in her office all attributable to defective construction and unfinished work by the Bonvillains Dr Gentile s The Bonvillains answered the suit motion her action action instituted was denying liability On consolidated for trial with the earlier by the Bonvillains 4 This matter stipulated the Bonvillains reconstruction of a court reasons motions for 2007 judgment s This new the merits on May driveways based and exit liability for the signed was trial which appeal Prior were to trial to pay for upon the bid amount of the trial court issued its finding in favor of the Bonvillains for judgment s 29 2007 entry of judgment requiring them At the conclusion of the trial the issue of Dr Gentile trial on to entrance 2 subcontractor ruling and oral tried was on cost of the June 13 denied The drainage system 2007 Both by judgment signed on parties filed on October 5 followed ASSIGNMENTS OF ERROR Dr Gentile contends that the trial interpretation of the construction according to its requirements of In their erred in court and costs defending prevailing to bear the Bonvillains answer failing and which terms they required the to by the Bonvillains cost of the error enforcing the not construction codes additional to contract committed court work its III contract to meet the thereby obligating the drainage system appeal the Bonvillains contend that the trial award them nonpecuniary damages attorney fees also seek attorney fees and expenses associated with Dr Gentile s appeal and their answer to that appeal STANDARD OF REVIEW Whether Inc a GulfStates v interpretation of a unless manifest premised 2 That error of the trial court s not is a question of law Where factual contract those is shown or 543 So 2d 924 928 La 1989 upon any factual portion ambiguous Utilities Co denied 545 So 2d 1041 the is contract Id factual findings at are 1 st Cir are pertinent not to be appellate writ to disturbed review is not the trial level but is instead is not contested 5 App findings However when findings made judgment La Borden by any party based upon an face the manifest of incorrect See Bennett novo So 2d 116 rule does error is questions of law legally review and examination of the independent simply 04 0706 p Ragon 5 a its or is made de legal question 1 st Cir 3 24 05 App La correct legally was on appellate review cases whether the trial court This determination of Id v In such apply not contract 907 120 DISCUSSION of Contractual Interpretation General Principles of Interpretation La a 2045 of the parties party declaration of will becomes s C C is the determination of the contract art 1984 2045 Revision Comments When the words of absurd consequences parties their intent no an contract a further conforms the to contract must must be object of the be are in provision in a contract a contract must be having art be as a Words a the meaning 2048 Each provisions whole so that best in that each is a the party one party of doubt in favor of the other party an given provision be otherwise resolved standard form of 6 no La C C art 2050 interpreted against La C C art 2057 sets forth to susceptible text interpreted in case Similarly La C C art provides cannot contract must A contract executed in be as of the other light of doubt that who furnished its a may be made in search of the La C C Louisiana Civil Code article 2056 case thus and lead explicit La C C art 2047 interpreted given the meaning suggested by the In clear and The words of contract interpreted objective inquiry integral part of his will interpretation generally prevailing meaning meanings an intent b La C C art 2046 of different a This is common analogous rule must In the obligor of a Yet a interpreted against the obligee and in favor be contract must be otherwise resolved of of doubt that case particular obligation if the that explanation negligence cannot doubt arises from lack of a one party should have given fault or of interpreted in a manner obligee or obligor the party one favorable to necessary or contract from must be the other party whether The Construction Contract The construction pertinent to the issues contract at on issue contains the following provisions appeal CONTRACTOR RESPONSIBILITIES ARTICLE 1 SITE WORK The contractor will supply all site construction of the proposed project ALSO INCLUDED IN THIS work necessary for the PROPOSAL ARE THE FOLLOWING 1 Submittal any of plans for Building other Necessary agencies Permit Fire Marshall and or that any material and labor not mentioned in the above specification is to be considered not included in this Please note required in a manner to meet prevailing codes contract proposal Except as to complete the project ARTICLE 3 CHANGE AUTHORIZATION Any changes in either the plans specifications encompassing methods materials workmanship etc shall be authorized by implementing a change order describing the change and ratified in or writing in the work that may add Any changes contract total cost or delete will be handled in the form order and of signed by both the Owner and the prior to the work being performed change Extra work ordered shall constitute done under this this contract contract shall apply a the written Contractor part of the work to be provisions and conditions of the said extra work Payment for and the to a from 7 extra work shall be due Contractor to work has been authorized when the said only extra by Owner ARTICLE 4 HIDDEN CONDITIONS Should conditions arise after construction begins that have been hidden from view and hampers or prevents the intent of this project such as buried concrete pipes cables or any type the item the contractor shall disposition of such notify item the owner The intent s place undue expenses or delays because of unforeseen conditions not to for a decision as of this paragraph to is upon the contractor ARTICLE 5 CONTRACTORS GUARANTEE Contractor agrees that all facilities shall be installed expressly constructed and assembled in accordance with the final Owner approved by All workmanship throughout design is be to mechanics and workmen in accordance performed by skilled with the best practice ARTICLE 6 INDEPENDENT CONTRACTOR The Contractor shall be responsible to the Owner for the faithful completion of the work herein contracted for and in accordance with the and according specification and drawings attached hereto to prevailing construction codes ARTICLE 7 GENERAL TERMS AND CONDITIONS This the contains all of the contract hereto with the parties performed hereunder and said and work exist or to sic all matter bind any of the variations of the be binding on the parties The undersigned above Emphasis terms agreed by the work to be contract shall be deemed to parties hereto changes amendments extra work contract and conditions of this shall hereto in any respect has read and understands the whole of the contract added There is no provision of recoverable attorney fees in the perform respect to matters of this No alteration modifications or and conditions which in any way affect agreements oral or otherwise other no regarding the subject on terms Finally request of and it is on event undisputed behalf of the in the contract addressing the issue of any party default that the contract Bonvillains Bonvillains present counsel 8 s by was an or failure at the not the prepared attorney to The Parish The Code pertinent portion Parish Code Building Code of Section 22 168 of the Terrebonne Parish entitled 7 4 1979 development impeding rainfall absorption required originally adopted in 1979 and Commercial was For the provides as conformity follows building permit application all proposed commercial or industrial developments shall have submitted adequate plats plans calculations and approvals necessary to demonstrate that they meet the following requirements 1 approval of and approval industrial or a All commercial and industrial Which will result in a development making impervious of a lot than twenty percent 20 thousand 5 000 square feet of a lot and more Which is b engineering approval from the not in development a for commercial or than five that has received development passage of Ordinance 8 25 04 submitted shall be The Terrebonne Parish the TPCG to Consolidated Government approval more industrial planning commission after the No 5293 or rainfall to Department of Public Works for development requirements of the TPCG of the property shall conform s Storm Drain to the Design Manual as amended The lot area at of 15 550 52 square feet carport and porch the lot It is above 41 90 issue measured was feet The total 3 890 feet 172 feet thus by area having of the office representing just undisputed that the construction work over at 25 issue was a total its including of the area subject to of the quoted requirements Analysis Legal agreements have the effect of law bind themselves parties shall be held to flowing therefrom L A a parties and full performance of the Contracting Co 9 upon the Inc v Ram lndust as they obligations Coatings App 1st Cir 6 23 00 denied 00 2232 La 11 13 00 775 So 2d 438 Inc 99 0354 p 10 La mutual consent Id only by contracts 99 0354 contains the parties provision and this is that an owner true 762 So 2d at 1232 by oral 15 nearly logical cost increase to to would price the contemplated by was of the and reasonable contract bear such drainage system contract in are 419 So 2d 1 Neumeyer v to conclude that such contract be of price original likely 47 422 02 was the 5 in a only order change a The Bonvillains contend that a It is 323 819 00 parties mutually agreed obviate the need for representing substantial increase in the a memorialized if the contract cost to serve by the only if the change orders is liable and additional work for various items made somehow and writ denied 423 So 2d 1150 La 1982 App 4th Cir The total contracts Written when the written even writing Id quoting Pelican Elec Contractors La 1230 writ A contract may be modified 15 at p for construction may be modified conduct of the 762 So 2d 1223 as that Dr Gentile changes in materials at Dr Gentile change order s oral request relating to the drainage system The fallacy in the Bonvillains argument is that the parties do not labor to dispute were the fact that the other mutually agreed work necessary Additionally admittedly total a upon and that conform after those due contract to changes 1 of those oral mandatory building to changes credit of none in materials and associated were 47 608 a code implemented net changes related requirements Dr difference of only Gentile 0 5 was of the price The party who prove the facts The Bonvillains or acts asserts that giving rise produced change order for an obligation an to undated has been modified must the modification unsigned the construction of the 10 La C C document art purporting required drainage system 1831 to be a Their of that preparation recognition of the necessity for supposed change order evidence amount showing of the claimed additional trial found that court drainage system cost court an was At any Dr Gentile signed by was never Nothing in the trial viewed change order written a suggesting or be might reasonably document that she ever agreed rate and there to pay tacit as the was no the stated cost s oral reasons for judgment suggests that the oral modification of the mutually agreed of the record demonstrates that the evidence militated in favor of the upon the to relating contract parties and our review overwhelming preponderance opposite conclusion Such the determination of the contested issue must rest upon the written being the of the the case applicable law contract The drainage study ultimately prepared by the Coastal Inc to itself read in light of the provide at a the Bonvillains request stated that the drainage plan for the the contract or Rather parish building hidden conditions the contract Bonvillains would be according labor the not and the to to s objective the Parish Storm Under any reasonable in a code requirement was Drainage interpretation of responsible manner and be considered for the expressly contemplated completion construction codes in the cannot extra warranting additional payment by Dr Gentile unambiguously prevailing mentioned contract added study Shaw language compliance of the building plans and construction work with the work Emphasis engmeer of the Dr Charon Gentile Medical Office to comply with the Terrebonne Parish codes and Design Manual language contract to meet was prevailing codes drainage system clearly fell within the contemplated by the original written building 11 of the described work and that included if any material andor required Thus the scope and contract that the to complete drainage study price of the work It is established an execution of a contract form a These laws form part of the La Inc Bldgs Morton contract though expressly written therein 116 98 744 So 2d 5 Thus where city has code the provisions of that building code form executed in that though expressly 289 So 2d 237 910 912 code s 240 La code s was with the not building contemplates see also Mut a as Newark Ins v writs denied 290 So 2d there is Gentile did and as the Bonvillains cease nothing to suggest that the promulgated implied part an force and effect same of the existence of the building of the construction if it had been emphasize The that expressly only other course and desist order from the not agree arguably have relied building permit to to the of action was to parish based upon their on the The Bonvillains parish original plans s neglect to her 12 They might initial issuance of the But such reliance cannot relieve the Bonvillains of their contractual duties justify the transfer of the financial was abandon the project if Dr drainage system their detriment stated they personally explained the mandatory nature of the drainage system claim that their to contract a ignorance properly adopted In their brief received and does it admitted drainage requirement informed Dr Gentile after the serve a building code requirements Id contract drainage requirement formed therein Such city La 99 0687 in effect 7 part of every construction App 1st Cir 1973 the Bonvillains ordinance contract a p La 1974 Despite parish or in compliance with local written into the Co building parish 97 2251 Inc or parish a incorporated writ denied 741 So 2d 16 building constructed are 9 4 30 99 contract in it contract as and the time of at part of that Redeeming Word ofLife Church v 1st Cir App that laws that exist principle to Dr consequences of their Gentile nor professional In oral its explained the for reasons The Court is convinced through unforeseen was an court ruling relating to the drainage system basis for its that this the trial trial judgment following the testimony of both sides item opinion after hearing the facts that this major problem with the drainage issue that has to be addressed was I am of the not foreseen that has to be done to meet regulations or whatever and that borne by the doctor code Emphasis added Thus mandatory building hidden condition code the trial requirement relating We do not agree with the trial court of the plain unambiguous wording Issue The trial error Even if the relevant contract ambiguous court law our Bonvillains who would supplied be reversed insofar as is it the to to be drainage system was a 4 of the contract applicable law on wrong and constitutes plainly that have to have concluded that the and the this legal could somehow be considered language require the new reasoning in light of both the s contract interpretation s to meet going s court may contemplated by Article as code it be interpreted against Accordingly the trial court it holds Dr Gentile liable for the s judgment costs related the must to the damages for drainage system When the object of the performance is delay in performance it is due are measured La C C art 2000 by the The trial interest from the date of judicial demand the drainage system payment which the was but paid by judgment awarding Bonvillains are no of course interest court on the amount not entitled on that the judgment prior to 13 from the time to amount the final trial claimed for the to any sum awarded the Bonvillains interest related Dr Gentile of money a sum 10 Because legal related interim we reverse drainage system interest thereon to the Damages for nonpecumary loss intended was damages perform gratify to intended was to to the not obligor was have as we already to pay any we give was costs intended attributable aggrieved by the Dr Gentile to do by to the no so contractual drainage system nonpecuniary damages in their the Bonvillains claim for any due the evidence does 10 determined that Dr Gentile had additional art gratify to to the Bonvillains the have feelings might possibly receiving the final interim payment of in legal duty deny While failure s See La C C intended not nature nonpecuniary obligor feelings s be may by its contract when the obviously support any claim that any delay And 2 or interest of the Bonvillains contract interest and the aggrieve the obligee benefit of the doubt that their delay when the nonpecuniary issue contract at nonpecuniary a foreseeable were The 1998 1 only in limited circumstances recovered from ansmg or we to the on the answer appeal Because merits In doing even also we so had judgment we reverse reverse we our also the the trial decision La court award of s emphasize that such on RS an award would was 9 4801 made pursuant but et seq we authority authorizing recovery of attorney fees by the facts Bonvillains and its alleged by Although 3 the Bonvillains The La did R S not grant rescission 9 4822 L 2 provides to asserting not authorize the recovery of attorney fees by a 14 justified The trial court s the Louisiana Private have found a be general trial contractor court or statutory no under rejected the committed fraud the Bonvillains Thus they recovery of attorney fees by claims under La RS 9 4802 it does general Drushell 01 2494 p 22 La App denied 03 0682 La 5 16 03 843 So 2d 1132 v not for subcontractors material sellers and others Burdette to claim that Dr Gentile acted in bad faith judgment 3 8 000 00 in attorney fees the merits been different stated that its award Works Act in favor of the Bonvillains judgment contractor against 1st Cir 12 20 02 837 the owner 2d So See 54 writ cannot properly invoke damages or La C C Because there attorney fees the award of attorney fees the trial legal as was no court s a basis for legal award of an basis shown award of attorney fees to justify was also error The the 1958 art judgment of the trial Company The judgment Inc judgment to s lien filed comply with the hereby ordered The answer of the Builders L L C and Bonvillain Construction All costs Bonvillain and consent it orders portion of the to cancel and remove the by the plaintiffs appellees in the mortgage records of the Parish of Terrebonne denied L LC Builders as is reversed in all other respects and the clerk of the 32nd Judicial District Court is contractor is affirmed in part insofar Bonvillain plaintiffs appellees Construction court of this appeal are plaintiffs appellees Company assessed to the Bonvillain Builders L L C and Bonvillain Construction Inc to 15 the appeal is plaintiffs appellees Company AFFIRMED IN PART AND REVERSED IN PART TO APPEAL DENIED Bonvillain Inc ANSWER BONVILLAIN BUILDERS L L C AND BONVILLAIN CONSTRUCTION FIRST CIRCUIT COMPANY INC COURT OF APPEAL VERSUS STATE OF LOUISIANA CHARON E GENTILE M D NO 2008 CA 1994 AND LA DONNA L L C W C CHARON E GENTILE M D FIRST CIRCUIT AND LA DONNA L L C COURT OF APPEAL STATE OF LOUISIANA BONVILLAIN BUILDERS L L C AND BONVILLAIN CONSTRUCTION NO 2008 CA 1995 COMPANY INC dissenting KUHN J I disagree with the reversal of the While I do agree that the trial were entitled that the to court may was an supports the ruling and the opinion entitlement to Initially that the damages Gentile for in its imposing the decision costs as to of the alter any obligation the ruling that the Bonvillains it is not having contract the not dispose was not manifestly stated only basis that of the hidden a 4 erroneous condition requires the Bonvillains onto Dr drainage requirements the trial court had in that disposition and supports the trial plaintiffs Bonvillains to the matter of entirety was importantly the record also supports to reversal does began which under Article a have based its unforeseen item s I note the trial court drainage requirement construction awarded under Article 4 of the construction damages drainage requirement plaintiffs damages s court concluding arose to s Gentile after notify Dr conclusion But more finding that the parties agreed either under the terms of the contract or the jurisprudence conform to to code parish building the requirement relating to drainage systems for commercial buildings In the transcribed plaintiffs Well for judgment the trial reasons how the see drainage issue stated court can be worked out and hey this is what it s going to take to make it right And from what I heard is they were willing to do everything they can to expend the money pay me later let s just get this done present to the Doctor transcript it should be noticed that the trial After review of the entire comments amount to finding a drainage project and this finding is Introduced into evidence dated January parish s 26 2004 and representative simultaneously and to subsequent the engage be on the manifestly to pay an owner It discussed at firm cease requirements Although Dr to develop negotiating and Dr Gentile end of the project Bonvillains to doing so cost noncompliance would been sent to Mr be resolved Inc to the pertinent ordinance will received the her He stated the to replied that they would take care that the The having had was drainage system drainage Gentile denied the the foundation and desist order due to to go through of the more matter at the Michael Bonvillain also said that Dr Gentile wanted the proceed and would a parties the time of the petition was a to pour letter Michael Bonvillain testified that he hand delivered it only thing they costs s erroneous requesting permission engineering All the letter from Bonvillain Construction Co issuance of the s of the letter stated to was a agreed signed by Michael Bonvillain provisions passed not Pat Gordon parish Gentile that Dr court her advised them that never Kirby more have caused Gordon expressing a Bonvillain they should not continue if that the explained drainage stoppage of the project if the letter had the manner in which the drainage issue He stated that Michael hand delivered the letter to Dr Gentile and that the Bonvillains decided Gentile of their intent to continue with the project Kirby testified that he communicated s not would office and notified Dr to Dr Gentile that agreement the job would stop and that she agreed they needed without her continue so they could complete the building Based on this summarized be which passed on apprised to the trial a court a reviewing to As such Dr Gentile minimum amounted conclusion that the be s due the Parish the to to court continue the ordinance will drainage the Bonvillains to knowledge she asked a court s to testimony about passed the evidence reweigh onto tacit to the completion consent to award of See La requirements in owner was an CC the alteration of the damages The whether Dr Gentile received the parish that the advising be continued to permitted favor of the with acquiescence that art terms Accordingly of coupled notice of the Bonvillains intent parties consented also supports the trial reversal not we are were project evident that the trial completion January 26 2004 letter her request that the a to court drainage ordinance Bonvillains at With this IS petitioning requirements resolved the conflict in the copy of the the All owner continue with the project As her it testimony concluded that Dr Gentile received the letter project to 1927 of the Thus a contract I dissent from the
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
