Roofing Products and Buliding Supply Co., LLC d/b/a Antique Brick Company VS Charles Mechwart & Steven Rice d/b/a Sweet Pea's Family Roofing Co.
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NOT DESIGNATED FUR PLTBLICATION STATF F LOiiISIANA CC)ZJR T OF API'E 1L FIRST C CL'I'C R Iv` UMBk. 2U 3 i; 1506 ROOFING PRODtiCTS & BUILDING SUPPLY CO., Z LLC. DB/ A ANTIQUE BRICK COMPANY Ll' VERSUS W CHARLES MECHWART AND STEVEN RICE DB/ A SWEET PEA' S FAMILY ROOFING CO. Judgment Rendered: l 2 Z 114 Appealed fram the 19`" Judicial Distri Y Court In and for the Parzsh of East Batan. Ro age, Louisiana Trial C' ourt Nurnber 5$ 4, 345 Honorable 'Iodd Hamandeza Judge Attomey for Appellee Plaintiff Roofing Products & Building Supply Co., LLC Brad P. Scott Metairie, LA Roy H. Maughan, Namisha D. Patel Jr. Attorneys for Appellant Defendant Charles Mechwart Joshua D. Roy Baton Rouge, LA BEFORE: WHIPPLE, C,J., WELCH, ND CRAIN, JJ. WELCH, J. In this suit for the payment of amounts owed for shingles and other roofing supplies, Charles Mechwart appeals a judgment ir favor of Roofing Products & Building Supply Co., LLC d/ b/ a Antique Brick Company (" Roofing Products") that awarded Roofing Products attorney fees in the amount of $9, 083. 70 in addition to the costs of the roofmg supplies ($ 5, 422. 44). The attorney fees were awarded by the trial court following its determination that Roofing Supplies proved a claim on open account and were thus authorized under La. R.S. 9: 2781. Because we find the record fails to establish an open account between Roofing Products and Mr. Mechwart, we reverse only that portion of the judgment of the trial court and issue this memorandum opinion in compliance with Uniform Rules, Courts of Appeal Rule 2- 16. 1( B). Roofing Products commenced this action against Mr. Mechwart and his contractor, Steve Rice d/ b/ a Sweet Pea' s Family Roofing Co., seeking to collect amounts due for roofing materials it sold and delivered to Mr. Mechwart and which were installed by Mr. Rice on Mr. Mechwart' s residence in Baton Rouge, Louisiana. In the petition, Roofing Products claimed that Mr. Mechwart had failed to pay his account with Roofing Products and sought judgment in the amount of 5, 422. 44, plus interest, reas nable attomey fees, and court costs pursuant to La. R. S. 9: 2781. The roofing materials at issue were ordered by Mr. Mechwart from Roofing Products on April 27, 2009, and at the time, VIr. Mechwart provided his American Express credit card and paid for the order in full. In connection with the sale using the American Express credit card, Mr. Mechwart signed the " SALES DRAFT" to pay the amounts due in connection with the sale. After the initial order was placed,' the order was modified, at the request of Mr. Mechwart, to substitute different 2 shingles in place of the shingles that he originally selected. t The shingles and other roofing materials were delivered to Mr. Mechwart' s residence on April 29, 2009. The delivery was received by Mre Rice. Mr. Rice then utilized and installed the shingles and other roofing materials on Mr. Mechwart' s residence. On May 4, 2009, Mr. Rice returned to Roofing Products and purchased additional shingles to finish installing the roof on Mr. Mechwart' s residznce, Roofing Products received a " CHARGEBACK NOTIFICATION" from Amercian Express dated July 14, 20Q9, which indicated that the April 27, 2009 payment by Mr. Mechwart to Roofing Products was being revoked. The underlying basis for the revocation of payment was Mr. Mechwart' s complaint that the shingles delivered ( and ultimately installed on the roof of his residence) were not the shingles that he wanted or ordered. However, Roofing Products was never informed by Mr. Mechwart or Mr. Rice that the shingles delivered and installed were not what Mr. Mechwart z ordered. By letter dated August 4, 2009, Roofing Supplies sent a demand letter to Mr. Mechwart for the amount of$ 5, 422. 44, which it claimed was the " balance due on [ his] account" for the roofing supplies 3 WI-en Mr. Mechwart did not pay the sum due, Roofin, Products commenced this lawsuit. g In addition, Roofing Products filed a Statement of Lien Claim in the mortgage records of East Baton Rouge Parish, in order to perfect a Private Warks Act lien against Mr. Mechwart' s residence for the sums due relating to the materials installed on the residence 4 According to the record, Mr. Mechwart' s original order was modified because he decided that he wanted the same shingles that were oa his neighbor' s home. z The overwhelming evidence in the record establishes that the shingles ultimately ordered by Mr. Mechwart, delivered to his residence, and installed on his residence by Mr. Rice were the same shingles as the shingles on Mr. Mechwart' s neighbor' s home, which were the shingles that Mr. Mechwart desired. 3 See La. R.S. 9: 2781, See La. R. S. 9:4801, et seq. 3 Mr. Mechwart filed an answer generally denying the allegations of the petition of Roofing Products and a reconventional demand against Roofing Products alleging that Roofing Products had pursued a " frivolous collection lawsuit" and recarded a Statement of Lien Claim in " bad faith," and seeking damages for the cost of removing the shingles, Mr. Mechwart' s inability to refinance his home at a lower interest rate, his loss of reputation, attorney fees, and e] motional stress and grie£" A trial on the merits was held on September 24, 2012 and September 27, Following trial on the merits, the trial court issued written reasons far 2012. judgment were finding purchased, that "[ t] he delivered, evidence clearly establishes that roofing products and then installed on [ Mr. Mechwart' s] home," that five days elapsed between the time that the shingles were being placed on [ Mr. Mechwart' s] roof and the day that more shingles were purchased to finish the job and during this time the evidence fails to prove that [ Mr. Mechwart] ever objected to the shingles not conforming to his purchase." Accordingly, the trial court rendered judgment " in favor of [Roofing Products'] claim under [ La.] R. S. 9: 2781 and order[ ed [ Mr. Mechwart] to pay unto [ Roofing Products] the sum of 5, 422. 44, together with interest from date of demand until paid, attorney fees in the amount of$ 9, 083. 70 and court costs." In addition, the trial court found that the evidence fails to prove by a preponderance of the evidence any of [Mr. Mechwart' s] claims in reconvention;' and therefore, those claims were " dismissed with prejudice." A judgment in accordance with the trial court' s written reasons for judgment was signed on March i4, 2013, and it is from this judgment that Mr. Mechwart now appeals. On appeal, Mr. Mechwart essentially claims the trial court erred in finding that an open account existed between Roofing Products and Mr. Mechwart under 4 La: R.S. 9: 2? 81 for the sums dues for tlhe r attomey fees was VVe agr e { not authorized,' It is well settled that an specifically Co., Trust authorized Transportation and De w ard uf attoiraey fees 'rs not allowed unless l uddleston c, Bossier Bank & staYute or cantra. y So. 2d 47+ fa, iQ supplies, and thus, an aw ard of l lj 108';, ([, 198); a Wag ner, elapment v. State, OIC- 0050 La. / Department of 2$/ lOj, 38 So. 3d 240, 241. In this case, it is undispixtad that ttie contracf of sale or roofmg supplies between Roofing Products and Mr. Vlzchwarr dves n t specifically authorize an of award Inste d, R oi1n. attorney fees. Pruducts claims that the award of attorney fees was authorized by staYute, i.e., La. R.S. 92781, which governs open accounts. Louisiana Revised Statutes 9: 2781 provides, in pertinent part, as follows: A. When any person fails to pay azl open account within thirty days after the claimant sends wxitten demand therefor correctly setting forth the am,ount owed, that person shalt be liable to the claimant for reasonable attorney fees for the pros cution arzd collection of such claim when judgment on the claim is re ndered in favor of the claimant. Citation and serviee e f a petition demand for the purpose of s ii. Secti n. hall be deemed written If' the claimant and his attorney have expressly agreed irh t t?e debtur shall be liable far the claimant' s ttorriey fe. s iz. a fixed c x c et rminablc: amoun4, the is claimant to th t entitled amo mt 1i r judgm nt un the claim is rendered ii favor of r. e clabm xt. Ide; ei t of vvxi.tten derriand by the person is npt required D, For the purpose Articles 1702 and of this Section and Code of Civi1 Procedure 4916, " c pen accounti" includes any :account for 5 On appeal, Mr. Mechwart does not chaltenge tha i`ial court' s implicit determination that there r was a contract of sale between Mr. ' Iechwart and Roofing Products for the roofing supplies or the trial court' s determination that : 1r. Mechwart was aesponsible for the princ; pal sum of 5, 422. 44 ( the total cost of the shingles and other -roofing materials) ori che basis that Mr. Mechwart failed to prove that he ever ubjected Co the shingles not conforming to l is purchase. See La. C. C. art. 1906, 1908, 2439, 2550, 2b01, 2603, 2604, and 2605. Addirionally, on appeal, Mr. Mechwart does no4 challenga the trial court' s ra1: g and 3ismissal af his reconveniionai dem nd. b Because wa find neeci not address; meait vlr. to Mr. Niechwat' Mechwart` s altemative claim th t kla.is w s not a suit on crpen aaa unY, v e assig awarded was unreasonable. 5 e rt oi rror that the amount oi[ attorney fees which a part or all account reflects one time of of xhe shall including but include not ast da e, whether or not the e * r more transacti ns an.d whether or not at the contracting the account" balaa parties debts e fizrure pecte ir.curr d i limited to Iegal arid transactions. for professional medical services. " Open services, For the purposes of this Sectian only, attomzy fees shall be paid on open accounts owed to the state. An open account is a legal t rrra o F art, and in Lhe narmal c urse of business, an open account is analogous to a credit account. Bieber- Guillory v. Aswell, 98- 559 ( La. App. 3`d Cir. 12/ 30/ 98), 723 So.2d '1145, ll49. For there to be an action on an open account; there must necessarily be a contract which gave rise to that debt. Id. A creditor suing on an open- account must prove that the debtor contracted for the sales on open account. Id. In this case, the Roofing Products' petiiion asserted and the trial court found that this suit was a suit on an open account. fYer thorough review of the record, we find the trial court' s finding in this regard w as nnanifestly erroneous. While the record in this matter establishes Yhat there was a contract between Mr. Mechwart and Roofing Products far the sale of roofing supplies for a specific price and that Mr. Mechwart ultimately failed ta pay the purchase price or the amount due under that contract, there is no evidence in the record estahlishing that Mr. Mechwart contracted for the sale of roofing supplies on a credit account. Roofing Products did not establish that it had an " accounY" with l Ir. Mechwart because Roofing Products did not agree to an extension of any credit to facilitate the purchase of the shingles and roofing supplies. Instead, Mr. Mechwat-t paid far the order in full at the time of sale using his Arnerican Express credit e rd. Although this method of payment permitted him to sul sequently revers the payment, the record is devoid of any evidence that the parties intended ai the time of the sale to create an account" with a " balance" that was to be pazd by Mr. Mechwart a a later date. The intention of the parties at the time of the sale should control the determination of whether an open account was formed. See Gulfstream Services, Inc. v. Hot 6 Energy Services, Ine., 2G04- 1223 ( I, a. Ap, 1s` Gir. 3124/ OS), 907 So. 2d 96, 100, writ denied, 2005- 1064 ( La. 6/ 17% je 9 4 So. 2d 706 ( finding no open account 05 because the record contained no evidence of' the parties' intent or agreement to extend credit or create an open account ir conr e tion with the use of certain equipment). The nature of the transaction-- a sale with a payment at the time of the purchase was not subsequently converted to a saie on an open account by Mr. Mechwart' s unilateral action that resulted in the reversal of the payment. Accordingly, we find that Roofing Products did not establish that the contract of sale with Mr. Mechwart was an apen account pursuant to La. R.S. 9: 2781. Therefore, that portion of the March 14, 2013 judgment of the trial court awarding attorney fees in the amount of $9, 083. 70 is reversed. All costs of this appeal are assessed equally between the parties. REVERSED IN PART AND AFFIRMED IN PART. We have not found, nor have we been directed to, any other statute that would authorize an award of attorne fees under the facts of this ase. 7
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