Small Case, Important Principles For Written Agreements

Small Case, Important Principles For Written Agreements

Robert M. Steeg

Robert M. Steeg

January 17, 2019 05:38 PM

A relatively small case, recently decided by the Louisiana state Court of Appeal for the Fifth Circuit illustrates two important principles:

First, a court will often find a way to get around legal technicalities when they are being used by a party to achieve what the court perceives to be an unfair result; and

Second, written contracts may always be modified orally or by the conduct of the parties, so be careful what you say and do after the ink is dry.

Vinet vs. D and M Renovation, L.L.C., et al

In the case of Vinet vs. D and M Renovation, L.L.C., et al, Mr. and Mrs. Vinet were homeowners who hired a contractor to perform various repairs, pursuant to a written construction contract. During the course of the work, the homeowners requested various changes and additions to the work, including the addition of a second Jacuzzi tub, installing a clothing dryer vent and a hall furnace vent, changing certain floors from laminate tile to more expensive ceramic tile, and installing bi-fold doors instead of standard doors in the kitchen, hall, closet and living room. In other words, the modifications were meaningful and clearly went above and beyond the original work that was the subject of the written contract.

At the end of the job, the homeowners felt that the contractor had performed shoddy work. As part of the homeowners’ overall dispute with the contractor, the homeowners refused to sign a written change order for the additional work, claiming that the contractor had agreed to include all of the extra work for no additional charge.

The Rulings

The trial court held that the contractor was entitled to receive payment for the additional work, and the appeals court agreed. Both courts clearly felt that the homeowner was withholding payment for the additional work as “leverage” in the larger dispute over the contractor’s allegedly shoddy performance.

On the facts, the trial court held that the contractor’s work was not defective or shoddy, and the appeals court did not disturb these findings of fact.

Then the appeals court turned to a question of law, which is where this case is instructive for all persons dealing with written agreements of any kind.

The construction contract at issue contained a provision to the effect that any changes in the specified work would require a written change order, after which the cost of the additional work would be added to the contract sum. Further, the contract provided that “[a]ll agreements must be made in writing.”

The homeowners did not deny requesting the contractor to perform the additional work. However, the homeowners contended that without a written change order, the additional work was unauthorized and the cost thereof could not be added to the amount owed to the contractor under the construction contract.

In order to achieve the “fair” result of requiring the homeowners to pay the contractor for the additional work that the homeowners had admittedly requested and received, the appeals court made the following rulings, as a matter of law:

  1. Written contracts may be modified by oral contracts and/or by the conduct of the parties.
  2. The conduct of the parties may include silence, inaction or implication.
  3. By oral agreement and/or the conduct of the parties, the parties may modify the very provision of a contract that requires changes to be in writing.

In this particular case, the homeowners had requested the changes and had observed them being performed. The homeowners lived in the house while all of the construction work was going on, and so they observed the additional work. There was no question that the additional work was performed, and was over and above the work as originally described in the written agreement.

By their conduct, then, the homeowners modified the provision of the written contract that required all changes to be in writing. If they had intended to comply with the provision requiring all change orders to be in writing, they would have refused to receive the additional work or would have objected that the additional work was being performed without a written change order. Their inaction showed that they were not requiring compliance with the letter of the written contract, and thus achieved a modification of the terms of the written contract.

The Bottom Line

Based solely on a reading of the published decision of the Fifth Circuit, this would appear to be a fair and equitable result. However, go back and read the legal points 1-3 above. They could lead to unanticipated consequences in any number of other contract scenarios.

The bottom line is that if you willingly and agreeably act in a manner that is outside of the terms of a written contract, you may well be deemed to be modifying the terms of that written contract as you do so – even the terms of the written contract that forbid non-written modifications. The written contract may not contain the “entire” agreement of the parties, after all.

Trending Articles

Presenting The Best Lawyers in Australia™ 2025

by Best Lawyers

Best Lawyers is proud to present The Best Lawyers in Australia for 2025, marking the 17th consecutive year of Best Lawyers awards in Australia.

Australia flag over outline of country

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™

by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

How To Find A Pro Bono Lawyer

by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

How Palworld Is Testing the Limits of Nintendo’s Legal Power

by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

Announcing The Best Lawyers in New Zealand™ 2025 Awards

by Best Lawyers

Best Lawyers is announcing the 16th edition of The Best Lawyers in New Zealand for 2025, including individual Best Lawyers and "Lawyer of the Year" awards.

New Zealand flag over image of country outline

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom

by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Announcing The Best Lawyers in Japan™ 2025

by Best Lawyers

For a milestone 15th edition, Best Lawyers is proud to announce The Best Lawyers in Japan.

Japan flag over outline of country

The Best Lawyers in Singapore™ 2025 Edition

by Best Lawyers

For 2025, Best Lawyers presents the most esteemed awards for lawyers and law firms in Singapore.

Singapore flag over outline of country

Announcing the 16th Edition of the Best Lawyers in Germany Rankings

by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

How Much Is a Lawyer Consultation Fee?

by Best Lawyers

Best Lawyers breaks down the key differences between consultation and retainer fees when hiring an attorney, a crucial first step in the legal process.

Client consulting with lawyer wearing a suit

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™

by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Presenting the 2024 Best Lawyers Employment and Workers’ Compensation Legal Guide

by Best Lawyers

The 2024 Best Lawyers Employment and Workers' Compensation Legal Guide provides exclusive access to all Best Lawyers awards in related practice areas. Read below and explore the legal guide.

Illustration of several men and women in shades of orange and teal

Things to Do Before a Car Accident Happens to You

by Ellie Shaffer

In a car accident, certain things are beyond the point of no return, while some are well within an individual's control. Here's how to stay legally prepared.

Car dashcam recording street ahead

Combating Nuclear Verdicts: Empirically Supported Strategies to Deflate the Effects of Anchoring Bias

by Sloan L. Abernathy

Sometimes a verdict can be the difference between amicability and nuclear level developments. But what is anchoring bias and how can strategy combat this?

Lawyer speaking in courtroom with crowd and judge in the foreground

The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery

by Elizabeth M. Midgley and V. Christopher Potenza

The New York State Legislature recently went about updating certain wrongful death provisions and how they can be carried out in the future. Here's the latest.

Red tape blocking off a section of street

Attacked From All Sides: What Is Happening in the World of Restrictive Covenants?

by Christine Bestor Townsend

One employment lawyer explains how companies can navigate challenges of federal and state governmental scrutiny on restrictive covenant agreements.

Illustration of two men pulling on string with blue door between them