Lundin Roofing Company L.L.C. VS Burlington Coat Factory of Kenner, Inc. and Burlington Coat Factory Direct Corporation
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT N0 2009 CA 2162 LUNDIN ROOFING COMPANY L C VS BURLINGTON COAT FACTORY OF KENNER INC AND BURLINGTON COAT FACTORY DIRECT CORPORATION udgment rendered JUN 0 3 ZO10 Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge Louisiana Trial Court No 542 528 Honorable R Michael Caldwell Judge STEVEN A JACOBSON ATTORNEYS FOR JAMES A BURTON APPELLANTS DEFENDANTS DOUGLASS F WYNNE BURLINGTON COAT FACTORY NEW OF KENNER INC AND ORLEANS LA BURLINGTON COAT FACTORY DIRECT CORPORATION DAVID J SHELBY II JON N LOUPE BATON ROUGE AITORNEYS FOR APPELLEE PLAINTIFF LA LUNDIN ROOFING COMPANY LLC BEFORE CARTER C GUIDRY AND PETTIGREW 7 J PETTIGREW 7 appellants Defendants Buriington Coat Factory of Kenner Inc Burlington Kenner and Burlington Coat Factory Direct Corporation Burlington Jersey New collectively defendants appeal from the trial court judgment in favor of plaintiff s appellee Lundin Roofing Company L Lundin awarding damages to Lundin as a C result of a breach of contract by defendants For the reasons that follow we affirm The record before this court reveals on June 3 2005 Lundin transmitted via fax a proposal to Mr Jerry Lupia of Burlington Jersey outlining the scope of the work New required to install a new roofing system on a building occupied by Burlington for Kenner the specified sum of 00 800 351 Thereafter Mr Lupia returned the previously transmitted proposal with the installation price circled and marked OK followed by his signature and the date une 6 2005 Mr Lupia further transmitted to Lundin a signed purchase order also dated June 6 2005 which reflected himself as the Buyer and specified Furnish labor materials equipment and supervision to install a new roofing system for the quoted price of 351 Said purchase order further directed that 00 800 said materials be shipped to Burlington Coat Factory 258 in Kenner Louisiana and that same be billed to Burlington Coat Factory Corporate Office in Burlington New ersey In furtherance of this proposal Lundin began purchasing the necessary materials and made other preparations required to perform its work on the Burlington project In early uly 2005 Terry Woodard a job superintendent with Lundin traveled to the job site to review the project in anticipation of commencing work on July 18 2005 After climbing onto the rooftop Mr Woodard was advised by a crew apparently working for the s building owner that the owner did not want Lundin performing any work on the roof Mr Woodard thereafter related these events to Jerry Lupia of Burlington Jersey and New was advised not to return to the job site until the matter had been resolved In the days 1 Plaintiff sExhibit 1 2 Plaintiff sExhibit 2 A 3 Plaintiff sExhibit 2 B 2 that followed Mr Woodard had a series of conversations with Mr Lupia regarding Mr sattempts to resolve issues with the building Lupia sowner Hurricane Katrina made landfall on August 29 2005 causing edamage to ensive properry in southeast Louisiana and additional damage to the building occupied by Kenner Burlington Lundin was never allowed to perform the work it set forth in its proposal Lundin filed suit against the defendants in the 19 Judicial District Court on April 18 2006 seeking to recover damages as a result of defendants breach of contract The matter proceeded to a bench trial on July 17 2009 At the close of the evidence the trial court concluded that there existed an enforceable contract entered into by Burlington New Jersey and not merely Burlington The trial court found Lundin proposal to Kenner s Mr Lupia of Burlington Jersey that outlined the scope of the work to be performed New at Burlington together with the price constituted an offer The trial court further Kenner found the subsequent return of the proposal approved dated and signed by Mr Lupia together with a purchase order issued to Lundin for the work at the price quoted by Lundin with instructions to bill Burlington Jersey constituted defendants acceptance New of Lundin soffer Relying on the proposal and the acceptance the court concluded the contract had an implied term for performance that began on July 18 2005 which was ter therea breached by defendants before the building sustained additional damage as a result of Hurricane Katrina The trial court concluded defendants were liable for damages for the breach of their contract with Lundin in the amount of 89 with legal 93 975 interest thereon from July 18 2005 until paid together with legal interest on the costs of materials from judgment July 18 2005 until paid and for all in accordance with these findings on costs July 28 2009 The trial court signed a It is from this judgment that defendants have appealed On appeal defendants challenge the trial court finding that there existed a legally s enforceable contract between defendants and Lundin the commencement date of said contract and the trial court finding that defendants were in default as of said date s 3 Defendants further challenge the trial court award of legal interest on all amounts spent s by Lundin in purchasing materials for the job Louisiana Civil Code article 1927 provides Art 1927 Consent A contract is formed by the consent of the parties established through offer and acceptance Unless the law prescribes a 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 In their brief to this court defendants argue that their seeming consent as evidenced by Mr Lupia return of Lundin proposal approved dated and bearing his s s signature together with a purchase order issued to Lundin for the work at the price quoted with instructions to bill Burlington Jersey was vitiated through error New Louisiana Civil Code article 1948 provides consent to a contract may be vitiated by error fraud or duress however La Civ Code art 1949 states e vitiates consent only rror when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party Specifically defendants claim there was no agreement between the parties as to the date for commencing the work set forth in the contract and the absence of this central and essential element served to vitiate consent to the contract We disagree In its oral reasons for judgment the trial court upon finding a contract existed opined So as I indicated that offer and acceptance constituted a contract The question that has arisen in this case is what was the term for the contract sExhibits One and Two do not specifically set a term though Plaintiff the proposal which was accepted says that if it is accepted immediately Lundin can start approximately July 18 of that year which was 2005 Civil Code article 1777 says that a term may be either express or implied and if there is no term then the contract work is due immediately It would certainly appear from the proposal and the acceptance that the implied term for beginning this work was approximately June sic 18 2005 Civil Code article 1778 also provides that a term for performance is either certain or uncertain If it is uncertain it must be performed within a reasonable time So again the question becomes what was the term for Burlington to allow the work to begin 4 s Plaintiff Exhibit One certainly suggests or the wording of Article implies that the work was to begin approximately July 18 As I indicated earlier that article also says that if there is no definite time that 1777 it must be within a reasonable time Now the purchase order that was attached to Plaintiff Exhibit Two s was issued on une 6 Lundin had said it would start around July 18 I think that was certainly a reasonable time for beginning performance of the contract And certainly when problems with the dispute between the owner and Burlington arose thirry days after that to resolve those problems would have been a reasonable time That would have given Burlington through the middle of August to try to resolve those problems Those problems were not resolved before Hurricane Katrina hit in the last weekend of August of 2005 but I believe that Burlington certainly had a reasonable time to resolve those problems and to authorize the work well before Katrina In its oral reasons the trial court further addressed defendants argument which is urged again in connection with this appeal that the effects of Hurricane Katrina rendered performance of the contract impossible and relieved Burlington of its obligations The trial court relied on Payne v Hurwitz 07 La App 1 Cir 1978 So 1000 0081 08 16 2d and noted that hen W the hurricane made performance more difficult but not impossible the contract was still valid and the parties were still obligated by the contract The uncontradicted testimony at trial was that Lundin stood ready and willing to perform the same scope of work for the same price afi er Katrina as it was before So there is no indication at all that Katrina relieved Burlington of its obligations under the contract Based upon these findings the trial court determined defendants had breached their contract and that Lundin was obviously entitled to damages The final issue raised by defendants is whether the trial court erred in awarding interest on the total amount of the judgment from July 18 2005 until paid The trial court after hearing testimony and reviewing the evidence awarded Lundin as damages 4 In our opinion in Payne this court stated To relieve an obligor of liability a fortuitous event must make the performance truly impossible La C art 1873 Revision Comments 1984 d The non of a performance contract is not excused by a fortuitous event where it may be carried into effect although not in the manner contemplated by the obligor at the time the contract was entered into Dallas Cooperage Woodenware Co v Creston Hoop Co 161 La 1077 1078 79 109 So 844 La 1926 Payne 07 at p 8 978 So at 1005 0081 2d 5 the legal interest on the 137 in materials that Lundin purchased for use on the 46 002 project from July 18 2005 until paid In its reasons for judgment the trial court stated As I indicated Lundin in addition to its labor costs of 8 00 750 also purchased all of the materials on this job which totaled 137 46 002 Lundin paid for those materials and carried the burden of having paid for those materials Lundin did use those materials on later jobs but used them or charged them at the same cost so they made no profit on those So they eventually recovered all of the costs for purchasing the materials but they lost the use of the money for that entire time Lundin also had the cost of storage and moving materials and so forth So I believe that they are entitled to legal interest on the amount of those material costs of 137 from the date of the breach of contract 46 002 until paid In the assessment of damages in cases of offenses quasi offenses and quasi contracts much discretion must be left to the trier of fact La Civ Code art 2324 The 1 standard for appellate review of general damages is set forth in Youn v Maritime Overseas Corp 623 So 1257 1261 La 1993 cert denied 510 U 1114 114 2d S Ct S 1059 127 L 379 1994 wherein the Louisiana Supreme Court stated that 2d Ed the discretion vested in the trier of fact is great and even vast so that an appellate court should rarely disturb an award of general damages The appellate court initial s inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the much discretion of the trier of fact Youn 623 So at 1260 The role of the appellate court 2d in reviewing general damage awards is not to decide what it considers to be an appropriate award but rather to review the exercise of discretion by the trier of fact Millican v Ponds 99 p 6 App 1 Cir 6 762 So 118 1192 1052 La 00 23 2d Based upon our review of the evidence before us we find no abuse of discretion by the trial court with respect to the damages awarded For the above and foregoing reasons we affirm the judgment of the trial court and assess all costs associated with this appeal against defendants Burlington Coat appellants Factory of Kenner Inc and ington Bur Coat Factory Direct Corporation We issue this memorandum opinion in accordance with Uniform Rules of Appeal Rule 2 Courts 1B 16 AFFIRMED 6
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