Opinion
NUMBER 2013 CA 0549
09-30-2014
ROBERT M. COLEMAN & PARTNERS, ARCHITECTS v. CRAWFORD LEWIS, C&L PROFESSIONAL SERVICES, INC., TOWNE CENTER OFFICE PARK DEVELOPMENT, LLC, SCOTT H. CRAWFORD, AND JAMES R. LEWIS
John Stone Campbell, III L. Adam Thames Jonathan A. Moore Baton Rouge, LA Counsel for Plaintiff/Appellee Robert M. Coleman & Partners, Architects Michael W. McKay Douglas J. Cochran Baton Rouge, LA and Christopher L. Whittington Baton Rouge, LA Counsel for Defendants/Appellants Scott J. Crawford & James R. Lewis
NOT DESIGNATED FOR PUBLICATION
Appealed from the Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge State of Louisiana
Suit Number 570,232
Honorable Wilson Fields, Presiding John Stone Campbell, III
L. Adam Thames
Jonathan A. Moore
Baton Rouge, LA
Counsel for Plaintiff/Appellee
Robert M. Coleman & Partners,
Architects
Michael W. McKay
Douglas J. Cochran
Baton Rouge, LA
and Christopher L. Whittington
Baton Rouge, LA
Counsel for Defendants/Appellants
Scott J. Crawford & James R. Lewis
BEFORE: PARRO, GUIDRY, AND DRAKE, JJ.
GUIDRY, J.
Defendants, Scott Crawford and James Lewis, appeal from judgments of the trial court awarding plaintiff, Robert M. Coleman & Partners, Architects (Coleman), $280,614.26 for the defendants' breach of the A.I.A. Standard Form Agreement Between Owner and Architect (A.I.A. Agreement) and $249,505.09 in attorney's fees, costs, and amounts for plaintiff's time and expenses spent in collection. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
Crawford and Lewis are lawyers and owners of Crawford Lewis Law Firm in Baton Rouge, Louisiana. In early 2007, Crawford and Lewis contemplated construction of a commercial office building in Towne Center in Baton Rouge. After reviewing a list of potential architects for the project, Crawford selected Dale Songy with Coleman, mainly because Crawford already knew Songy socially.
Initially, Songy provided a site analysis, which determined whether the project would fit on the proposed site. Thereafter, in April 2007, Crawford, Lewis, Songy, and Mark Wilson, the general contractor on the project, had meetings wherein they discussed the project schedule, budget, and permitting issues. Particularly, Crawford and Lewis wanted to try to take advantage of "go zone" benefits, which provided financial incentives for new construction that had occupancy prior to the end of December 2008. Based on construction estimates provided by Wilson, this required that the initial phase of the design needed to be completed within two to three months. These initial drawings included the shell design, which detailed the structural, mechanical, and electrical design.
On May 1, 2007, Lewis, Songy, and Wilson had another meeting, wherein the schedule for the project was finalized and the cost of the project was discussed. Particularly, Crawford and Lewis articulated that they needed a guaranteed maximum price for the construction of the project. Additionally, Lewis asked Songy to provide him with a contract setting forth his fee for architectural services in order to put together a pro forma to obtain financing. The following day, Songy had his secretary forward an A.I.A. Agreement to Lewis. The agreement, which was unsigned by Songy, detailed Songy's fee for the project as 5.9% of the total construction cost of the project. The A.I.A. Agreement also provided that payments to the design professional shall not be withheld, postponed, or made contingent on the construction, completion, or success of the project. The cover letter accompanying the agreement requested that Lewis sign the agreement and return it to Songy's office if he was in agreement with its terms. Lewis acknowledged receiving the agreement and reading the section regarding the calculation of the architect's fee; however, he did not read the remainder of the agreement and did not sign and return the agreement to Songy. Neither Songy nor Lewis thereafter discussed the A.I.A. agreement.
On May 15, 2007, Crawford forwarded an email to Songy, stating that the budget for the shell of the building needed to be $140 per square foot and requesting that Songy design the shell around that budget. The parties continued to participate in design meetings from May to August 2007, during which time the project schedule, budget, and design details were discussed. Specifically, it was discussed that the steel for the project needed to be ordered by the middle of September 2007, and therefore, the steel design package needed to be completed by the first week in September.
On September 6, 2007, Songy sent an email to Crawford and Lewis, requesting an update on plan submittals, the budget, and construction. Thereafter, on October 5, 2007, Songy sent an invoice to Crawford and Lewis in the amount of $226,217.76 for professional services rendered to date. Songy noted that prior to the project being placed on hold, architectural drawings were within weeks of being ready for a permit, and the structural drawings were ready for the steel to be ordered and for construction to begin. Despite follow-up communications with Crawford and Lewis, the invoiced amount remained unpaid. In April and May 2008, Crawford informed Songy that all parties to the project, including Coleman, were working on a contingency fee basis. Thereafter, Songy sent Crawford and Lewis a formal demand for payment of the invoices. In a July 14, 2008 letter, Crawford reiterated his position and stated that if Coleman removed its demand for payment and agreed to be compensated on a contingent fee basis, Crawford and Lewis would continue their relationship with Coleman, and Coleman would be compensated once the project was realized.
Thereafter, on August 27, 2008, Coleman filed a petition, naming Crawford Lewis, PLLC, C & L Professional Services, Towne Center Office Park Development, LLC, Crawford, and Lewis as defendants and asserting claims for breach of contract, open account, recovery of compensation for professional services, unjust enrichment, detrimental reliance, and negligent misrepresentation. Coleman also requested attorney fees pursuant to the written contract. Coleman asserted that the defendants had paid $10,603.50 of the invoiced amount and that an outstanding balance of $215,614.26 remained.
Prior to the trial of the matter, the parties entered into several joint stipulations. Specifically, the parties agreed that the correct party defendants in this matter are Crawford and Lewis, bound together in solido for any fault or liability, and that any actions, omissions, conduct, representations, statements, inaction, silence, or otherwise of one of the defendants is and was on behalf of and for both of the individual defendants.
Following a four-day jury trial, the jury returned a verdict in favor of Coleman, finding that Coleman and the defendants had agreed to be bound by the A.I.A. Agreement proposed by Coleman and that the defendants had breached that agreement. The jury specified the amount of damages owed to be $280,614.26. Thereafter, the trial court signed a judgment in conformity with the jury's verdict, awarding Coleman $280,614.26, together with legal interest thereon from the date the verdict was rendered until paid. The trial court further ordered that pursuant to the parties' agreement, the court would conduct a contradictory hearing as to the amount to be awarded for Coleman's reasonable attorney's fees as well as collection costs pursuant to §1.4.2.4 of the A.I.A. Agreement.
Thereafter, Crawford and Lewis filed a motion for judgment notwithstanding the verdict or alternatively, for new trial. Additionally, Coleman filed a motion for the award of attorney's fees and costs. Following separate hearings on the motion for JNOV/new trial and the motion for attorney's fees/costs, the trial court rendered judgment denying Crawford and Lewis's motion for JNOV and alternatively, for new trial, and awarding Coleman attorney's fees and costs, as well as amounts for Coleman's time and expense spent in collection in the amount of $249,505.09. Crawford and Lewis now appeal from the trial court's judgments.
DISCUSSION
A contract is formed by the consent of the parties established through offer and acceptance. Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances clearly indicates consent. La. C.C. art. 1927. When, in the absence of a legal requirement, the parties have contemplated a certain form, it is presumed they do not intend to be bound until the contract is executed in that form. La. C.C. art. 1947. Acceptance of a contract need not mirror the form of the offer unless the parties contemplate a certain form or the offer states that acceptance must be in that form; the circumstances of each case must control. Baldwin v. Bass, 28,984, p. 4 (La. App. 2nd Cir. 12/11/96), 685 So. 2d 436, 439, writ denied, 97-0111 (La. 3/7/97), 690 So. 2d 20. A party who seeks to enforce a written contract, where signatures were the contemplated form, has the burden of proving that the other party who has not signed agreed to be bound by the terms of that written contract. Baldwin, 29,984 at p. 6, 685 So. 2d at 439.
The jury's determination that a contract was formed between Coleman and Crawford and Lewis is a finding of fact, which is subject to the manifest error standard of review on appeal. See O'Glee v. Whitlow, 32,955, p. 3 (La. App. 2nd Cir. 4/7/00), 756 So. 2d 1288, 1291. Under the manifest error standard, a court of appeal may not set aside a jury's finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1989); Landry v. Leonard J. Chabert Medical Center, 02-1559, p. 8 (La. App. 1st Cir. 5/14/03), 858 So. 2d 454, 463, writs denied, 03-1748, 03-1752 (La. 10/17/03), 855 So. 2d 761. Moreover, a jury's credibility determinations are entitled to great deference; thus, if the factfinder's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Riverside Recycling, LLC v. BWI Companies, Inc. of Texas, 12-0588, p. 4 (La. App. 1st Cir. 12/28/12), 112 So. 3d 869, 872.
In the instant case, the cover letter to the A.I.A. Agreement specified that acceptance of the agreement was to be made by signing the agreement and returning it to Coleman. It is undisputed that neither Crawford nor Lewis signed the A.I.A. Agreement. Therefore, Coleman bore the burden of proving that Crawford and Lewis otherwise agreed to be bound by the terms of the A.I.A. Agreement. See Baldwin, 29,984 at p. 6, 685 So. 2d at 439.
The jury, in rendering its verdict in favor of Coleman, apparently determined that Coleman had proved by a preponderance of the evidence that Crawford and Lewis had clearly manifested their intention to be bound by the terms of the A.I.A. Agreement through their actions and/or inaction in requesting the agreement from Coleman and by thereafter directing Coleman to perform substantial amounts of architectural services and/or failirig to object to the amount of architectural work being performed. From our review of the record, we find no error in the jury's determination.
Crawford and Lewis, attorneys in a firm with experience representing clients in the construction and/or development business, had conversations with Songy regarding the construction of the office building in Towne Center, and Songy initiated site drawings at the request of Crawford and Lewis to determine if the project was suitable for the proposed site. All parties and the lay and expert witnesses at trial testified that these initial drawings were normally performed by the architect at no cost to the client. However, after these initial drawings were completed, the parties continued to meet regarding the schedule, budget, and design of the project. There was conflict in the testimony as to whether the fee for the architectural services was ever discussed at these subsequent meetings. Songy testified that during these meetings, he made Crawford and Lewis aware that architects work on a percentage of the construction cost basis. This testimony was corroborated by Wilson, who stated that he told Lewis that an architect's fee runs between 4-8% of the construction cost. Crawford and Lewis, however, stated that architect fees were not discussed in any respect at these meetings.
Nevertheless, following a May 1, 2007 meeting, where the parties finalized the schedule for the project and discussed the architectural work that needed to be done to move the project forward, Lewis requested that Songy forward a contract to him setting forth the architect's fee so that he could finalize the budget for the project. The following day, Songy had his secretary forward an A.I.A. Agreement to Lewis, which listed the architect's fee as 5.9% of the total construction cost of the project. Additionally, the A.I.A. Agreement provided that payments to the design professional shall not be withheld, postponed, or made contingent on the construction, completion, or success of the project and contained provisions relating to the recovery of damages and attorney's fees. This agreement was not signed by Songy; however, the cover letter was signed by Songy's secretary on his behalf and requested that Lewis sign the agreement and return it to Coleman if Lewis was in agreement with its terms. Lewis, however, stated that he only read the page detailing the architect's fee, and he failed to sign or return the document to Coleman.
Thereafter, by email dated May 15, 2007, Crawford requested that Songy design the shell of the building around a budget of $140 per square foot. Due to the compressed schedule for the construction of the project, which was driven by Crawford and Lewis's desire to take advantage of "go zone" tax benefits, Songy continued to work on the steel package and the design development drawings. Crawford and Lewis stated at trial that during their entire working relationship, they believed that the project was still in the conceptual phase and that they were not aware of the amount of work being performed or the extent of expenses being incurred by Coleman, nor did they authorize Coleman to incur those expenses or perform that amount of work. Additionally, they testified that Songy ran the design meetings, and that he dictated what work needed to be done and decided what work Coleman was going to do.
However, the documentary evidence in the record demonstrates that Songy and Crawford and/or Lewis attended monthly design meetings from May to August 2007, and the minutes from these meetings indicate that the project schedule, budget, and specific design details were discussed at that time. Additionally, deadlines for specific sets of drawings were discussed in these meetings, particularly that the structural steel package needed to be completed by the first week in September of 2007 so that the steel could be ordered by the middle of September, and that the design development drawings needed to be completed by the end of July. Lewis admitted that he was present at these meetings and that the parties discussed designing the structure so that steel could be ordered, and he admitted knowing that Songy was preparing illustrations, schematic drawings, and documents from which construction could be done. Wilson also confirmed that during these meetings, Lewis gave Coleman the authority to design the structural steel package. Songy subsequently completed and submitted the structural steel and design development drawings to Crawford and Lewis.
From our review of the record, we find no error in the jury's determination that Crawford and Lewis agreed to be bound by the terms of the A.I.A. Agreement proposed by Coleman. Considering the conflict in the evidence, the jury was reasonable in concluding that Crawford and Lewis were aware that Coleman was paid on a percentage basis, that they requested a contract from Coleman after the initial drawings were completed that set forth Coleman's fee, and that thereafter, they not only were aware of the substantial amount of architectural work being performed by Songy and failed to object to the amount of work being performed, but they in fact directed Songy to perform these specific services. Therefore, although it is presumed that, because the parties intended for the contract to be in writing and signed by the parties, they are not bound until the contract is executed in that form, the jury was reasonable in determining that Coleman rebutted this presumption by establishing that Crawford and Lewis' actions and inaction subsequent to their request for an architectural contract from Coleman were clearly indicative of their consent to the agreement and reasonably led Coleman to believe that its offer had been accepted and that a contract had been formed. See La. C.C. arts. 1927 and 1942; see also Baldwin, 28,984 at p. 6, 685 So. 2d at 438-439; see also Lambert v. Don M. Barron Contractor. Inc., 42,868 (La. App. 2nd Cir. 1/9/08), 974 So. 2d 198 (regarding tacit acceptance of an oral contract); Davillier v. Physicians Association of Louisiana, Inc., 03-1353 (La. App. 4th Cir. 3/10/04), 873 So. 2d 731, writ denied, 04-1807 (La. 12/10/04), 888 So. 2d 836 (recognizing that actions of a party can establish intent to be bound by terms of written contract even if contract is not signed); and Schulingkamp v. Aicklen, 534 So. 2d 1327 (La. App. 4th Cir. 1988) (recognizing that tacit acceptance of a written contract may be proved by the actions of the offeree).
Crawford and Lewis, however, argue that Coleman could not reasonably believe that a contract had been formed when Songy, as a representative of Coleman, failed to sign the A.I.A. Agreement presented to Crawford and Lewis and when Coleman failed to comply with the agreement's terms. First, the record does demonstrate that Songy did not sign the A.I.A. Agreement. However, Songy testified that at the time the A.I.A. Agreement was forwarded to Lewis, he was out of town, and he had his secretary forward the A.I.A. Agreement, which is a standard form agreement, with a cover letter signed on Songy's behalf, to Lewis. Further, although Crawford and Lewis assert that Coleman failed to comply with the contract terms regarding billing monthly for services rendered, an examination of the A.I.A. Agreement shows that, while the payments on an account must be made monthly, there is no requirement that the architect submit an invoice or statement of services to the owner monthly. In fact, Songy testified that Coleman typically did not submit bills on a monthly basis, and Coleman's architectural expert, David Brinson, also stated that work performed on a percentage basis is generally not invoiced until the end of a phase. Further, although the agreement does provide for mediation and arbitration, a supplemental provision in the A.I.A. Agreement provides that mediation is nonbinding and waivable by the parties. Finally, Coleman presented evidence that it complied with other terms of the A.I.A. Agreement, including compiling a budget, which is produced for the defendants to allow them to understand the costs of the design that the architect is putting together. Therefore, given the deference afforded the jury as the fact finder, and considering the evidence in the record, we find no error in the jury's finding that Coleman was reasonable in believing that a contract had been formed, and that Crawford and Lewis agreed to be bound by the terms A.I.A. Agreement.
Furthermore, we find no error in the jury's failure to accept Crawford and Lewis's argument that the parties had an oral agreement that the architectural work was to be performed on a contingent fee basis. According to their testimony, neither Crawford nor Lewis communicated to Coleman that its services were to be performed on a contingent fee basis. Rather, the evidence in the record demonstrates that Crawford and Lewis raised the issue of paying Coleman on a contingent fee basis months after Coleman had submitted its invoice for payment for services rendered. Furthermore, Wilson and George Kurtz, the real estate agent involved in the project, testified that, though they were working on a contingent fee basis, they had no idea if Coleman was working on a contingent fee basis.
Crawford and Lewis assert that the trial court erred in admitting a May 31, 2008 email from Crawford to Songy, wherein Crawford stated that all the other parties to the construction project believed that Coleman was working on a contingent fee basis, and he offered to work something out by developing the property. Crawford and Lewis assert that this evidence relates to efforts of collection and deals with settlement negotiations, and therefore, in accordance with La. C.E. art. 408, it is inadmissible.
Generally, the trial court is granted broad discretion in its evidentiary rulings, and its determinations will not be disturbed on appeal absent a clear abuse of discretion. Odyssea Vessels. Inc. v. A & B Industries of Morgan City. Inc., 112009, p. 15 (La. App. 1st Cir. 6/13/12), 94 So. 3d. 182, 192. Moreover, an error may not be predicated upon a ruling that admits or excludes evidence unless a substantial right of the party is affected. La. C.E. art. 103(A). The party alleging prejudice by the evidentiary ruling of the trial court bears the burden of so proving. Mapp Construction, LLC v. Soufhgate Penthouses, LLC, 090850, p. 18 (La. App. 1st Cir. 10/23/09), 29 So. 3d 548, 561, writ denied. 092743 (La. 2/26/10), 28 So. 3d 275.
The email at issue was admitted for the purpose of rebutting Crawford and Lewis's defense that the parties agreed that Coleman was to be compensated on a contingent fee basis. From our review of the record, any ruling regarding the admissibility of this evidence is clearly harmless, considering the aforementioned evidence in the record indicating that neither Crawford nor Lewis communicated to Coleman that it was to be paid on a contingent fee basis prior to Coleman submitting its invoice for payment. Additionally, to the extent that there is other evidence in the record that also relates to collection efforts and negotiations, which was admitted at the trial and is not raised as error on appeal, we likewise find any error in the admission of the exhibit at issue to be harmless. Accordingly, this assignment of error is without merit.
Therefore, from our review of the record, and giving deference to the jury as the finder of fact, we find no manifest error in the jury's determination that Crawford and Lewis agreed to be bound by the terms of the A.I.A. Agreement. Furthermore, because the contract provided that payments shall not be withheld, postponed, or made contingent on the construction, completion, or success of the project, we find no error in the jury's determination that Crawford and Lewis breached that agreement when they failed to pay the invoice for services performed by Coleman.
Crawford and Lewis finally assert that the jury erred in awarding damages, when the provisions of the contract mandate that disputes related to the project be submitted to mediation and arbitration. Crawford and Lewis, however, have raised this argument for the first time on appeal. By filing its action in district court, Coleman arguably waived its right to mediation and arbitration. See Regions Bank v. Weber, 10-1169, p. 3 (La. App. 4th Cir. 12/15/10), 53 So. 3d 1284, 1286. Likewise, by failing to file a dilatory exception raising the objection of prematurity in the trial court, or by failing to raise the arbitration defense at any point in the proceedings prior to the instant appeal, Crawford and Lewis also waived any right to demand arbitration that may be set forth in the A.I.A. Agreement. See Ciolino v. First Guaranty Bank, 12-2079, pp. 16-17 (La. App. 1st Cir. 10/30/13), 133 So. 3d 686, 696.
Therefore, finding no error in the jury's determination that Crawford and Lewis agreed to the terms of the A.I.A. Agreement and breached that agreement by failing to pay Coleman the invoiced amount, we likewise find no error in the jury's award of damages in the amount of $280,614.26 and the trial court's award of attorney's fees in the amount of $249,505.09.
CONCLUSION
For the foregoing reasons, we affirm the judgments of the trial court. All costs of this appeal are assessed equally to Scott Crawford and James Lewis.
AFFIRMED.