WELLMEIER v. LANKAU (2025)

Plaintiff, Lynette Wellmeier, appeals the trial court's judgment against her and in favor of Defendant, BCL Woodworks, LLC, in the amount of $5,087.48, court costs, cost for trial book preparation, and $20,475.00 in attorney fees. This included a $400.00 credit to Plaintiff for attorney fees associated with the filing of a Petition for Writ of Mandamus to cancel a lien improperly filed by Defendant. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff undertook the remodeling of her home, and on September 10, 2021, she contacted Brian Lankau, the owner of Defendant, to build and install custom kitchen cabinets for her. The parties agreed to an initial bid of $25,330.00 for the construction, painting, and installation of the custom kitchen cabinets, however the scope of the work was modified several times.¹

Plaintiff asserts she requested a contract, however Defendant insisted that the parties rely on their estimates. Plaintiff also asserts that Defendant assured Plaintiff that it had a State of Louisiana contractor's license.² Plaintiff made a deposit to Defendant of $24,530.00, which consisted of two payments on her American Express card totaling $20,765.00 and a check for $3,765.00.

Prior to the cabinet installation, Plaintiff performed some demolition work and removed a load-bearing wall from her kitchen. This resulted in the need for electrical and plumbing work that had to be completed before the new cabinets could be installed. Defendant, at Plaintiff's request, arranged for and paid electrical and plumbing contractors to perform the necessary work. Defendant also sent its cabinet maker to Plaintiff's home to get measurements and prepare for the installation of the cabinets once the kitchen work had been completed.

Plaintiff and her husband inspected the completed and painted cabinets before their installation and indicated they were pleased with the workmanship. When Defendant's cabinet maker arrived for the installation of the cabinets, it was discovered that Plaintiff had installed stacked stone where the cabinets were to be placed. This new stacked stone prevented the cabinets from fitting onto the wall and made necessary the construction of a new box for the cabinets so they would fit properly against the wall.

During the delay for the construction of the new cabinet box, Mr. Lankau underwent surgery on his knee. While Mr. Lankau was in the hospital, he was notified that Plaintiff had contacted American Express, alleging that she had been defrauded and was displeased with Defendant's workmanship. At Plaintiff's request, American Express reversed the two payments totaling $20,765.00 that had been paid to Defendant as a deposit for the cabinets.

As a result of Plaintiff's reversal of the American Express payments, Defendant refused to complete the installation of the cabinets or perform any additional work for Plaintiff until the reversed payments and all payments that were owed were received. In order to recover the payment that had been reversed out of its bank account, Defendant filed a contractor's lien in the amount of $34,236.81 against Plaintiff. Plaintiff demanded that Defendant remove the lien, and when Defendant refused to do so, Plaintiff filed a Petition for Mandamus to have the lien canceled.³

In response to Plaintiff's Petition for Mandamus, Defendant filed a reconventional demand for non-payment under the contract ⁴ and for attorney fees pursuant to the Louisiana open account statute. Plaintiff then filed an amended petition against Mr. Lankau and Defendant, asserting entitlement to attorney fees and costs for the filing of the petition for the removal of Defendant's lien. Plaintiff also pleaded for the return of all sums paid to Defendant under the oral agreement for renovations and improvements as well as sums necessary to correct the unsatisfactory work performed by Defendant.

Following a bench trial on March 5–6, 2024, the trial court entered judgment in favor of Defendant and against Plaintiff in the amount of $5,087.48 for unpaid money owned to Defendant for work performed for Plaintiff. This amount reflected a $400.00 credit for attorney fees incurred by Plaintiff to have the improperly-filed lien canceled. Plaintiff was also awarded reimbursement of the court costs she incurred in filing her Petition for Mandamus against the clerk of court. Plaintiff was also cast in judgment for court costs, $392.33 for trial book copy preparation costs, and $20,475.00 in attorney fees. The trial court rejected Plaintiff's motion for reconsideration and/or new trial, and therefore, Plaintiff filed this appeal asserting the following assignment of errors:

1. The lower court erred by determining that [Plaintiff] was unjustly enriched, when Defendant fraudulently induced [Plaintiff's] agreement to a null contract by misrepresenting that they possessed a valid contractor's license during all relevant times. Further, Defendants did not introduce competent evidence as to their cost, absent profit, to provide proper basis for unjust enrichment award.

2. The lower court erred by determining that Defendants could recover damages under the theories of unjust enrichment and quantum merit, when the evidence at trial demonstrated that the quality of Defendants’ workmanship was substandard. The evidence at trial established that Plaintiff was not unjustly enriched, because Defendants never installed the cabinets or replaced the mismatched window Lankau installed.

3. The lower court erred in dismissing [Plaintiff's] claim for damages and attorney's fees related to those damages, when any payments made to Defendants were made under an absolutely null contract, and when Defendants filed an illegal and improper lien and refused to remove it from the record upon demand.

4. The lower court also erred by determining that Defendants were entitled to attorney's fees, when the contract did not provide for any such fees, and any contract between the parties was absolutely null because Defendants did not have a valid contractor's license during all relevant times.

5. The [lower] court erred when it refused to hold Defendant Lankau personally liable for the debts of his LLC.

OPINION

The trial court's determination that there was a valid contract between the Parties and recovery by Defendant pursuant to the contract and unjust enrichment.

In ruling in favor of Defendant regarding the payment for the cabinets and the construction work performed, the trial court, in its Reasons for Ruling, stated:

Moreover, the Court has concluded that the plaintiff had contracted with BCL Woodworks, LLC, specifically for designing and constructing kitchen cabinets. Although BCL did perform some services related to the kitchen cabinets and some preparation work, they were not the general contractor on the job. The plaintiff was responsible for hiring several entities for various parts of the home remodel and was acting as the general contractor.

While BCL did not have a valid contractor's license in effect at the time the work was performed, the court finds that under the exceptions to this rule, the theories of unjust enrichment and quantum merit will apply. Therefore, the court finds that the defendant, BCL Woodworks, LLC, had clean hands and is allowed to recover the cost of labor, material, and services. The court also finds that the defendant -in-reconvention, Lynette Wellmeier, acted in bad faith and breached the agreement for BCL to build and install kitchen cabinets. The following is a breakdown of the undisputed estimates, values, costs, and expenses testified to by the parties at trial. These values were not objected to at trial.

The Court awards the plaintiff-in-reconvention, BCL Woodworks, LLC, damages in the amount of $5,487.48, court costs associated with the Petition in Reconvention, and attorney's fees to be determined.

It is Plaintiff's position that since Defendant was not licensed by the State at the time the agreement between the parties was confected, said agreement between the parties was null and void.⁵

Louisiana Revised Statutes 37:2150 provides the legislative intent regarding the licensing of contractors, including home improvement contractors, stating:

The purpose of the legislature in enacting this Chapter is the protection of the health, safety, and general welfare of all those persons dealing with persons engaged in the contracting vocation, and the affording of such persons of an effective and practical protection against the incompetent, inexperienced, unlawful, and fraudulent acts of contractors with whom they contract. Further, the legislative intent is that the State Licensing Board for Contractors shall monitor construction projects to ensure compliance with the licensure requirements of this Chapter.

At the time the parties reached an agreement as to the price and work that would be performed, La.R.S. 37:2160(A)(1) provided, “It shall be unlawful for any person to engage or to continue in this state in the business of contracting, or to act as a contractor as defined in this Chapter, unless he holds an active license as a contractor under the provisions of this Chapter.”⁶

The trial court determined Plaintiff was acting as the general contractor ⁷ for her remodeling project, and Defendant's role in this matter was not that of a contractor. Therefore, Defendant was not required to possess a valid contractor license for the sale and installation of the cabinets.⁸ The September 10, 2021 text from Plaintiff to Defendant provided: “I am completely renovating a kitchen and living space. Please call me at your earliest convenience.” The trial court noted that Plaintiff and a worker performed the demolition of the kitchen, the old kitchen cabinets, and a wall in Plaintiff's home before Defendant ever took the measurements for the cabinets. Plaintiff admitted she told Defendant that she was going to do the demolition herself. Plaintiff bought remodeling supplies and obtained a roofing subcontractor. Plaintiff also hired additional laborers and painters for her remodeling project. Although Defendant obtained a licensed electrician and licensed plumber, it was done for and at the request of Plaintiff.

Plaintiff also asserts that since Defendant represented that he was a licensed contractor, he committed fraud upon Plaintiff. Because of Defendant's fraud, Defendant would not be entitled to recover under the theory of unjust enrichment. The trial court rejected the assertion that Defendant committed fraud and held that Defendant had “clean hands” and that Plaintiff “acted in bad faith and breached the agreement for BCL to build and install kitchen cabinets.”

Here, the trial court determined that the contract between the parties consisted of a sales portion, involving the design, building, and installation of the custom cabinets, and a home-improvement construction portion, regarding Defendant's other activities such as floor removal, painting, sheet rocking, and window installation. As to the sums awarded, the parties stipulated as to the cost, expenses, and payments made in this matter.⁹ In regard to the sales portion of the contract, the $25,330.00 cost for the cabinets, less the previous payments made by Plaintiff in the amount of $24,530.00, was awarded to Defendant. Therefore, Defendant was paid for the cabinets as per the contract between the parties.

As to the construction aspect of the contract, because Defendant did not have a contractor's license, the trial court removed the profit of $504.27 from the $3,361.75 construction portion of the contract, leaving $2,857.48 for the construction work performed by Defendant. The trial court also reimbursed Defendant for the costs paid to the licensed plumber and electrician obtained by Defendant for and at the request of Plaintiff.¹⁰ The court held that this money was due to Defendant not under the contract, but under quantum meruit.

In Bieber-Guillory v. Aswell, 98-559, pp. 8-9 (La.App. 3 Cir. 12/30/98), 723 So.2d 1145, 1150 (alteration in original), this court discussed recovery under the doctrine of unjust enrichment versus quantum meruit, stating:

We, like the trial judge, find a judgment based on the doctrine of actio de in rem verso or unjust enrichment is appropriate. In Fogleman v. Cajun Bag & Supply Co., 93–1177 (La.App. 3 Cir. 6/15/94), 638 So.2d 706, writ denied, 644 So.2d 375 (La.1994), we addressed the choice between employing the quantum meruit theory as opposed to applying unjust enrichment principles as a substantive ground of recovery. Relying on the Supreme Court's discussion of quantum meruit in Morphy, Makofsky & Masson v. Canal Place, 538 So.2d 569 (La.1989), we recognized “quantum meruit, as a substantive basis for recovery is now viewed with disfavor by Louisiana law.” Fogleman, 638 So.2d at 708. We also noted the United States Fifth Circuit reached the same conclusion in SMP Sales Manag’t, Inc. v. Fleet Credit Corp., 960 F.2d 557, 560 (5th Cir.1992), citing the holding in Morphy and stating:

Although both the district court and the parties relied on quantum meruit as a substantive basis of recovery, it is not recognized as such in Louisiana but is only used as a measure of compensation or price in quasi-contract or when none is stated in a contract․

Thus, “where a plaintiff seeks to employ a quantum meruit theory as a substantive ground for recovery, we believe the analysis is more properly made under the doctrine of actio de in rem verso or unjust enrichment.” Fogleman, 638 So.2d at 709.

Quaternary Resource Investigations, LLC v. Phillips, 18-1543 (La.App. 1 Cir. 11/19/20), 316 So.3d 448, writ denied, 20-1450 (La. 3/2/21), 311 So.3d 1059, involved a contractor's suit against homeowners for the payment of the remaining sums due under a contract for renovations and an addition to the homeowners’ residence. The homeowners filed a reconventional demand against the contractor alleging, among other things, false and intentional misrepresentations and that the contract was null and void ab initio because the contractor did not possess the required residential building contractor's license. The court addressed those situations in which an unlicensed contractor is entitled to recover under unjust enrichment by explaining:

Since it is illegal for a contractor to enter into a contract without being properly licensed, the court will not enforce an illegal contract by allowing a contractor to recover damages for breach of that contract. See United Stage Equip., Inc. v. Charles Carter & Co., Inc., 342 So. 2d 1153, 1154-55 (La. App. 1st Cir. 1977). In Boxwell v. Dep't of Highways, 203 La. 760, 14 So. 2d 627, 631 (1943), the Louisiana Supreme Court held that a contract made in violation of a prohibitory law is illegal and its enforcement is precluded, even though work has been done or materials furnished, and further, “neither can recovery be had on a [quantum meruit] basis.” However, under the theory of unjust enrichment, the Supreme Court ruled that the vendor could recover the actual cost of its materials, labor, and services, without recovery of any profit or overhead expenses. Id. at 632. The Supreme Court held:

The evidence discloses the existence of no fraud on the part of either the Louisiana Metal Culvert Company or the Highway Commission in the consummation of the sales. Furthermore, both parties were equally guilty in failing to respect the mandate of the statute—the vendee neglecting to advertise for bids and the vendor selling and delivering its merchandise in the regular course of business. Also, the materials were received and accepted by the Commission; and it used them for the benefit of itself and of the people represented.

Under these circumstances[,] it would clearly be unjust to permit the Commission to reap the mentioned benefits and escape liability for them altogether. There is imbedded deeply in our civil law the maxim that no one ought to enrich himself at the expense of another. Revised Civil Code, Article 1965. On the [other] hand, considering the law's expressed prohibition for making the sales in the manner shown it would also be improper for the vendor to profit by the transactions.

Id. at 632. The Supreme Court has applied the rationale of Boxwell (involving a public works contract) to private individuals and contracts. See Scott v. Apgar, 238 La. 29, 113 So. 2d 457, 460 (1959).

The root principle of unjust enrichment is that the plaintiff suffers an economic detriment for which he should not be responsible, while the defendant receives an economic benefit for which he has not paid. State By & Through Caldwell v. Fournier Industrie et Sante, 2017-1552 (La. App. 1st Cir. 8/3/18), 256 So. 3d 295, 303, writ denied, 2018-2065 (La. 4/8/19), 267 So. 3d 607. Louisiana Civil Code article 2298, titled “Enrichment without cause; compensation,” provides:

A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.

The amount of compensation due is measured by the extent to which one has been enriched or the other has been impoverished, whichever is less.

The extent of the enrichment or impoverishment is measured as of the time the suit is brought or, according to the circumstances, as of the time the judgment is rendered.

To prevail on an unjust enrichment claim, the plaintiff must prove by a preponderance of the evidence all five elements: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the resulting impoverishment; (4) an absence of justification or cause for the enrichment and impoverishment; and (5) the lack of another remedy at law. See Minyard v. Curtis Prod., Inc., 251 La. 624, 205 So. 2d 422, 432 (1967), and Berthelot v. Berthelot, 2017-1332 (La. App. 1st Cir. 7/18/18), 254 So. 3d 735, 738.

Thus, using the theory of unjust enrichment, the Supreme Court limits the recovery of unlicensed contractors to the actual costs of their materials, services, and labor in the absence of a contract or in the case of a null contract, with no allowance for profit or overhead. Boxwell, 14 So. 2d at 632. See also Villars v. Edwards, 412 So. 2d 122, 125 (La. App. 1st Cir.), writ denied, 415 So. 2d 945 (La. 1982).

Id. at 462–63 (alterations in original) (footnotes omitted).

In discussing the deference to be given to the finding of fact made by the trial court, this court, in Thymes v. Golden Nugget Lake Charles, LLC, 23-100, pp. 4-5 (La.App. 3 Cir. 11/2/23), 373 So.3d 129, 133 (alterations in original), writ denied, 23-1576 (La. 1/24/24), 378 So.3d 69, explained:

When reviewing a verdict in a civil case, the manifest error-clearly wrong standard applies, and the appellate court should not disturb a finding of fact made in the trial court unless it is clearly wrong. The Louisiana Supreme Court fashioned a two-part test when applying this standard: (1) is there a reasonable factual basis for the finding of the trial court; and (2) does a reading of the record establish that the finding is not clearly wrong or manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In Rosell v. ESCO, 549 So.2d 840, 844 (La.1989), the court discussed the manifest error-clearly wrong standard in detail, stating:

It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter v. Koehring, 283 So.2d 716, 724 (La.1973)․ [I]f the trial court or jury 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. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Arceneaux, supra at 1333,, Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985)․

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Canter, supra at 724.

We cannot say the trial court committed manifest error in holding that Plaintiff was the contractor for her remodeling project rather than Defendant. The trial court also did not commit manifest error in determining that the contract between the parties had a sales component regarding the custom cabinets and a construction aspect regarding the home-improvement work. Under this contract, Defendant was entitled to be paid for the cabinets pursuant to the contract of sale. Defendant was also entitled to be paid for the costs of materials, services, and labor, with no allowance for profit or overhead for the construction work performed under the theory of unjust enrichment. This is precisely what the trial court awarded in this case, and we find no error in this award.

The trial court's determination that Defendant's work was not substandard.

Plaintiff urges on appeal that the work performed by Defendant was substandard, and therefore, the theory of unjust enrichment is not appliable. Plaintiff cites Quaternary, 316 So.3d 448, for the proposition that when a worker performs substandard work, the substandard work exception precludes the worker from recovering the cost of their labor, materials, and services under unjust enrichment. In this regard, the Quaternary court stated:

In Hagberg [v. John Bailey Contractor, 435 So.2d 580, (La.App. 3rd Cir. 1983), writs denied, 444 So.2d 1245 (La. 1984),] and Dennis Talbot [Construction Co. v. Privat General Contractors, Inc., 10-1300 (La.App. 3 Cir. 3/23/11), 60 So.3d 102], the Third Circuit held that if a contractor's actions fall into the “substandard work exception,” it is not entitled to recover its actual cost of materials, services, and labor under the theory of unjust enrichment. Using this rationale in light of the findings by the Special Master and adopted by the trial court, it is clear that QRI defectively and sub-standardly constructed the addition to the Phillips’ home.

Thus, like the subcontractor in Dennis Talbot, QRI's actions fall into the “substandard work exception” outlined by the court in Hagberg. This case represents the type of situation the Legislature sought to prevent by enacting the Contractors Licensing Law. QRI's actions fall into the “substandard work exception”. Therefore, QRI is not entitled to claim the remedy of unjust enrichment. The Phillips may invoke the Contractors Licensing Law to prohibit recovery by QRI of its actual cost of materials, services, and labor under the theory of unjust enrichment.

Id. at 466.

The trial court, here, rejected Plaintiff's allegations of substandard work on behalf of Defendant and specifically found that the theory of unjust enrichment applied to the work performed by Defendant. There was ample evidence that Defendant's work was not substandard. Dusty Boudreaux, the cabinet maker, testified that Plaintiff and her husband both indicated they were pleased with the cabinets when they inspected them just prior to installation. Jonathon Bordelon, the cabinet painter, also confirmed that Plaintiff indicated approval of the finished cabinets. The fact that Plaintiff and her husband inspected the cabinets just prior to installation and were obviously pleased confirms that the workmanship was not substandard. The only reason the cabinets were not installed was because when the cabinet maker arrived for the installation of the cabinets, Plaintiff had altered the wall where the cabinets were to be installed, which prevented the cabinets from fitting. Plaintiff's changes to the wall required Defendant to construct a new box for the cabinets to fit. Although the new box was constructed, the cabinet installation was not completed because Defendant refused to perform any additional work for Plaintiff until it received the reversed American Express payments and all other payments due.

Plaintiff also asserted that Defendant had improperly ordered and installed an incorrect window. Plaintiff stated that she complained to Defendant and forwarded a picture of the window by text to Defendant. However, a review of the text and emails between the parties revealed no evidence of such communication. Apparently, Plaintiff wanted a different colored window. Defendant did place an order for a new window but cancelled the order when Plaintiff had the American Express payments reversed.

Likewise, as to Plaintiff's assertions of substandard work regarding the painting and sheetrock work, she was unable to present any evidence of a complaint made to Defendant. To the contrary, there was testimony by Liz Cormier, who was responsible for taping, floating, and finishing the sheetrock, that Plaintiff indicated she was very excited and satisfied with the sheetrock work.

We find the evidence supports the trial court's rejection of Plaintiff's allegations regarding substandard work and that it was proper to reimburse Defendant for the work and sums expended for the benefit of Plaintiff.

The trial court's refusal to award Plaintiff damages for Defendant's improperly filing a lien against Plaintiff.

Plaintiff asserts that because La.R.S. 37:2175.6 ¹¹ mandated that an unlicensed contractor may not file a lien for sums due under a contract, the trial court committed error in its failure to award Plaintiff damages and to only award $400.00 in attorney fees for having Defendant's lien cancelled. Plaintiff asserts these amounts should be increased to an award of $4,920.00 in attorney fees and $762.98 in costs.

While it is true that Defendant's filing of the lien was improper since he was not a licensed contractor, he filed the lien in response to Plaintiff's improper allegations of fraud to American Express, which resulted in the payments that had been made to Defendant being reversed. Additionally, Defendant dismissed the lien prior to the court hearing regarding the lien. The trial court held that Plaintiff “acted in bad faith and breached the agreement” for Defendant to build and install the cabinets.

An appellate court reviews the trier of fact's award of damages under the abuse of discretion standard. See Barber Brothers Contracting Co., LLC v. Capitol City Produce Co., 23-788 (La. 12/19/24), 397 So.3d 404 (on rehearing). “[T]he abuse of discretion standard is highly deferential to the trial court unless the court exercised its discretion based upon an erroneous view of the law or a clearly erroneous view of the facts.” Tran v. Collins, 20-246, p. 5 (La.App. 4 Cir. 8/20/21), 326 So.3d 1274, 1279 (citing Show & Tell of New Orleans, L.L.C. v. Fellowship Missionary Baptist Church, 14-843 (La.App. 4 Cir. 12/17/14), 156 So.3d 1234).

In explaining what constitutes an abuse of discretion, the court in Torrance v. Caddo Parish Police Jury, 119 So.2d 617, 619 (La.App. 2 Cir. 1960), stated:

Generally an abuse of discretion results from a conclusion reached capriciously or in an arbitrary manner. “Capriciously” has been defined such as “a conclusion of a commission when the conclusion is announced with no substantial evidence to support it to a conclusion contrary to substantiated competent evidence.” 12 C.J.S. verbo Capriciously, p. 1137. The word “arbitrary” implies “a disregard of evidence or of the proper weight thereof.” 6 C.J.S. verbo Arbitrary, p. 145.

We cannot say the trial court committed an abuse of discretion in its award to Plaintiff, and therefore, this assignment of error is without merit.

The award of attorney fees to Defendant.

Defendant, in its reconventional demand, requested attorney fees for recovery pursuant to an open account. The trial court rejected Plaintiff's assertion that there was no valid contract between the parties, and thus, no basis to award Defendant attorney fees. Instead, the trial court awarded Defendant attorney fees based on a finding that Plaintiff had an open account with Defendant regarding the sale of the custom cabinets. In the judgment, the trial court instructed Defendant to submit an affidavit of attorney fees for the court's consideration. This affidavit reflected attorney fees of $25,637.50.¹² The trial court awarded Defendant the sum of $20,475.00 in attorney fees.

Plaintiff contends that the award of attorney fees was improper because there must be a valid contract to have an open account, but if there had been a valid contract, then the trial court's award under the theory of unjust enrichment ¹³ would not be applicable since one of the requirements for the application of unjust enrichment is that there is “no other remedy available at law.” Bieber-Guillory, 723 So.2d at 1150. If there had been a valid contract, then the “other remedy available” would be an action for breach of contract.

Where Plaintiff's argument fails is that the trial court did find a valid sales contract regarding the cabinets and awarded Defendant sums due under that contract, including attorney fees. Regarding the construction aspect of the agreement between the parties, the trial court utilized unjust enrichment to reimburse Defendant for his materials, services, and labor. No profit or attorney fees were included for this aspect of the work Defendant performed.

Regarding an open account, this court, in Bieber-Guillory, 723 So.2d at 1149–150, explained:

An open account is a legal term of art. “In the normal course of business an open account is analogous to a credit account.” La.Atty.Gen.Op. 87-240 (June 9, 1987); Dixie Mach. v. Gulf States Marine Tech., 96-869, p.6 (La.App. 5 Cir. 3/12/97), 692 So.2d 1167, 1169; Jacobs v. Loeffelholz, 94-1123, p.5 (La.App. 4 Cir. 12/15/94), 647 So.2d 1282, 1285.

This Court has outlined, in a prior case, the evidence a plaintiff must present to establish the existence of an open account. In Broussard v. Guilbeaux, 93-1353, p.4 (La.App. 3 Cir. 5/4/94), 640 So.2d 509, 512 we said:

In proving an open account, plaintiff first must prove the account by showing that the record of the account was kept in the course of business and by introducing supporting testimony regarding its accuracy. Once a prima facie case has been established by a plaintiff-creditor; the burden shifts to the debtor to prove the inaccuracy of the account or to prove that the debtor is entitled to certain credits. General Elec. Co. v. La. Elec. Supply, 460 So.2d 34 (La.App. 1st Cir.1984). The amount of an account is a question of fact which may not be disturbed absent manifest error. Cole Oil & Tire Co., Inc., v. Davis, 567 So.2d 122 (La.App. 2d Cir.1990).

This required showing by the plaintiff presupposes the existence of an enforceable contract between the parties. “For there to be an action on an open account, there must necessarily be a contract which gave rise to the debt.” Blackie's Rental Tool & Supply v. Vanway, 563 So.2d 350, 353 (La.App. 3 Cir.1990). A creditor suing on open account must prove that the debtor contracted for the sales on open account. Id.; Advertiser Div. v. Southwest Mortg. & Inv., 424 So.2d 1284 (La.App. 3 Cir.1982). When there is no meeting of the minds between the parties, there is no consent, thus no enforceable contract. La.Civ.Code art.1927. Such that, if there is no enforceable contract, the plaintiff's attempt to prove the existence of an open account by establishing a prima facie case becomes extraneous.

Bieber-Guillory involved an action by an interior designer against homeowners for amounts due under an agreement to remodel a family home that was destroyed in a fire. The parties had a history of business relations, with the plaintiff having provided interior-design work for the defendants on four prior occasions, all without incident. When the parties discussed the remodeling of the family home, it was agreed that plaintiff would decorate and assist in selecting and providing furnishing and accessories for the residence. The plaintiff dealt almost exclusively with the wife. At the end of the project, the plaintiff forwarded to the defendants an invoice for the services she performed and the purchases made on their behalf. Payments were regularly made on the invoice until the defendants separated, at which time the payments stopped. Plaintiff filed suit on the balance, asserting an open account and entitlement to attorney fees. Although the court awarded the plaintiff money under the theory of unjust enrichment, it rejected the assertion that there was an open account because no agreement was ever reached regarding the plaintiff's fees or the prices for the merchandise purchased. The defendants knew nothing about the prices of any items or the amount of the plaintiff's fees until the plaintiff sent a bill months later. No terms were ever negotiated, and no written agreement was ever entered into.

In contrast to Bieber-Guillory, in the present case Plaintiff contacted Defendant to build custom cabinets for her. Defendant supplied an estimate for this service, which was accepted by Plaintiff. As stated by the trial court in its Reasons for Ruling, “Ultimately the parties agreed on the defendant installing custom kitchen cabinets and some other construction work in the plaintiff's kitchen. The defendant submitted a bid to the plaintiff and modified the bid several times per the plaintiff's request.” Defendant provided Plaintiff with paperwork setting forth descriptions of all work to be done and the amounts being charged for each activity. There was certainly an agreement between the parties and a meeting of the minds.

Louisiana Revised Statutes 9:2781 provides, in pertinent part:

A. When any person fails to pay an open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Citation and service of a petition shall be deemed written demand for the purpose of this Section. If the claimant and his attorney have expressly agreed that the debtor shall be liable for the claimant's attorney fees in a fixed or determinable amount, the claimant is entitled to that amount when judgment on the claim is rendered in favor of the claimant. Receipt of written demand by the person is not required.

․

D. For the purposes of this Section and Code of Civil Procedure Articles 1702 and 4916, “open account” includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. “Open account” shall include debts incurred for professional services, including but not limited to legal and medical services. For the purposes of this Section only, attorney fees shall be paid on open accounts owed to the state.

In Frey Plumbing Co., Inc. v. Foster, 07-1091 (La. 2/26/08), 996 So.2d 969, the defendant hired the plaintiff to repair a plumbing line on her property. When the defendant did not pay for the completed work, the plaintiff filed suit alleging there was an open account and that it was entitled to attorney fees. The defendant filed a Motion for Partial Summary Judgment denying the existence of an open account. The trial court granted the defendant's motion, noting there was only one transaction between the parties, without the intention for future services. The plaintiff filed an application for writs to the fourth circuit, which was denied. The supreme court granted the writ and remanded the case to the court of appeal. On remand, the appellate court affirmed the trial court, reasoning that the facts did not support a finding of an open account whether the contract was considered to be a historically excluded construction contract or if one applied the four-factor test.¹⁴ The supreme court reversed, holding that La.R.S. 9:2781 must be applied as written, and there is no requirement that there be more than one transaction between the parties, nor is there any requirement that there must be an anticipation of future transactions. The court also held that professional services are included in an open account, but it is not mandatory that the services rendered be professional.

In Scofield, Gerard, Singletary & Pohorelsky, L.L.C. v. Barr, 10-1347, pp. 3-4 (La.App. 3 Cir. 3/9/11), 58 So.3d 1127, 1130, this court addressed the award of attorney fees on an open account, stating:

An award of reasonable attorney fees to the successful plaintiff in a suit on an open account is authorized by La.R.S. 9:2781. It is clear that the amount of attorney's fees awarded is left to the sound discretion of the trial court. On appeal, we should not disturb the amount of attorney's fees awarded absent a showing of abuse of discretion. Metro. Reporters, Inc. v. Avery, 95-504 (La.App. 5 Cir. 11/28/95), 665 So.2d 547. Several factors, including the ultimate result obtained, the nature of the case, the amount of time and skill involved and the ability of the party liable to pay, are to be considered in determining the reasonableness of the amount of attorney's fees awarded. Id.

In the present case, the evidence was undisputed that, although there was an initial agreement involving the building and installation of the custom cabinets, there were numerous changes and additions to the work originally requested by Plaintiff. As Defendant was attempting to complete the requested work, Plaintiff, without cause, asserted to American Express that she had been defrauded and demanded that the payments previously made to Defendant be reversed. This resulted in Defendant having to prove to American Express that Plaintiff's assertions were false. It took fifty-one days for American Express to finally reimburse Defendant. Because of Plaintiff's allegations, Defendant had to aggressively litigate this matter and defend against Plaintiff's attempts to avoid making payments through her allegations that there was no contract between the parties and that the work performed by Defendant was substandard. The trial court determined Plaintiff “acted in bad faith and breached the agreement[.]” As such, we cannot say the trial court's award of attorney fees in the amount of $20,475.00 was an abuse of discretion.

The failure of the trial court to hold Mr. Lankau personally liable for the debts of BLC Woodworks, LLC.

Mr. Lankau and Defendant were both named as defendants in Plaintiff's Petition for Writ of Mandamus and First Amended Petition. Mr. Lankau was the owner of Defendant but all of the estimates and paperwork provided to Plaintiff were in the name of Defendant. Even more relevant is the fact that Mr. Lankau was not held liable to Plaintiff. To the contrary, Plaintiff was cast in judgment to Defendant.¹⁵ In that there was no debt of Mr. Lankau that was due to Plaintiff, this assignment of error is moot and without merit.

Defendant's request for an award of attorney fees for work associated with this appeal.

Defendant asserts, in brief, that attorney fees in the amount of $25,637.50 as provided by the affidavit of attorney fees should have been awarded, rather than the $20,475.00 granted by the trial court. Defendant also requests an increase in attorney fees for work performed by its counsel associated with this appeal. We will not address these issues as Defendant failed to file a formal answer to Plaintiff's appeal.

Louisiana Code of Civil Procedure Article 2133(A) provides, in pertinent part:

An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court. If an appellee files such an answer, all other parties to the incidental demand may file similar answers within fifteen days of the appellee's action.

Therefore, as Defendant did not formally answer the appeal as required by La.Code Civ.P. art. 2133, it is precluded from seeking a modification of the judgment on appeal.

DECREE

For the foregoing reasons, the judgment of the trial court, awarding Defendant, BCL Woodworks, LLC, the sum of $5,087.48, court costs, $392.33 for trial book preparation cost, and $20,475.00 in attorney fees, is affirmed. All costs of this appeal are assessed to Plaintiff, Lynette Wellmeier.

AFFIRMED.

FOOTNOTES

1.   Plaintiff changed the style of doors for the cabinets and requested dovetail drawers, which had to be ordered and manufactured by a third party. Plaintiff also changed the original cabinet order by adding an additional 5.5 feet of cabinets, raised panel doors, and full overlay on the back. Plaintiff later requested additional custom cabinets for her refrigerator freezer. Plaintiff ultimately also requested that Defendant perform some floor removal, window installation, and sheetrock work. There was a total of eighty-one change orders, which raised the total estimate for the cabinet construction and house remodel to $53,480.00.

2.   Unbeknownst to Defendant, its contractor license had been suspended based on Mr. Lankau's failure to complete continuing education. Mr. Lankau subsequently completed the mandatory continuing education, and Defendant's license was reinstated on October 13, 2022.

3.   The petition also named Mr. Lankau, individually, and the Lafayette Parish Clerk of Court and Recorder of Mortgages, through its clerk, the Honorable Louis J. Perret, as defendants. Plaintiff asserted the lien had prescribed and since Defendant was not licensed at the time the estimate was prepared, there was no statutory authority for the filing of the lien pursuant to La.R.S. 37:2159(D). Mr. Perret was named for his failure to erase the inscription of the lien. Defendant on July 27, 2023, filed a request to cancel the lien. As a result, Plaintiff's claims against Mr. Perret were dismissed.

4.   American Express eventually reimbursed Defendant the $20,765.00 in payments they had reversed at Plaintiff's request once Defendant submitted evidence that the work had, in fact, been performed.

5.   Plaintiff also asserts Defendant was required to obtain a permit from the City of Lafayette to install the cabinets. However, Section 105.2(7) of the International Building Code exempts from permit requirements, “Painting, papering, tiling, carpeting, cabinets, countertops and similar finish work.” The City of Lafayette, in Section 26-91 of its Code of Ordinances, adopted the International Building Code.

6.   Louisiana Revised Statutes 37:2160 was amended by 2022 La. Acts No. 195, § 1, and 2025 La. Acts No. 422, § 1.

7.   Plaintiff was an interior designer for over a decade, and her husband was a painting contractor for over thirty years.

8.   Louisiana Revised Statutes 37:2175.5(A) at the time of contracting of the parties exempted from the home improvement contractor licensing requirement a homeowner who performs the home improvement work on his own residence and anyone who performs labor or services for a home improvement contractor for wages or salary and who does not act in the capacity as a home improvement contractor. This statute was repealed by 2022 La. Acts No. 195, § 2.

9.   Plaintiff in her assignment of error states that Defendant did not introduce competent evidence as to its cost, however the trial court noted the parties stipulated as to the cost, expenses and payments made.

10.   Defendant had previously paid the electrical contractor $1,580.00 and the plumbing contractor $250.00 for the work done for Plaintiff.

11.   The version of this statute in effect at the time Defendant's lien was filed provided, in pertinent part, “No home improvement contractor who fails to obtain a certificate of registration as provided for in this Part shall be entitled to file a statement of claim or a statement of lien or privilege with respect to monetary sums allegedly owed under any contract[.]” This statute was repealed by 2022 La. Acts No. 195 § 2, effective August 1, 2022.

12.   This was based on 73.25 hours at a rate of $350.00 per hour.

13.   The trial court, in its Reasons for Ruling, stated, “While BCL did not have a valid contractor's license in effect at the time the work was performed, the court finds that under the exceptions to this rule, the theories of unjust enrichment and quantum merit will apply.”

14.   In Acme Window Cleaners v. Natal Construction Co., 95-448 (La.App. 4 Cir. 8/23/95), 660 So.2d 926, the court of appeal listed the following factors to be considered as guidelines for determining when the agreement between parties may qualify as an open account: “(1) whether there were other business transactions between the parties; (2) whether a line of credit was extended by one party to the other; (3) whether there are running or current dealings; and (4) whether there are expectations of other dealings.” Frey, 996 So.2d at 970, n.1.

15.   Although Plaintiff was awarded $400.00 in attorney's fees for having to file the Petition for Writ of Mandamus, the judgment indicated this was to be in the form of a credit against the sums owed by Plaintiff to Defendant.

KYZAR, Judge.