McCLENDON, J.
In this redhibition case involving a boat, plaintiff appeals the trial court judgment to the extent that it awarded the defendant manufacturer credit for use and denied plaintiff damages for mental anguish and loss of profits. Plaintiff also seeks an increase in the amounts awarded for preservation of the boat and attorney's fees. For the following reasons, we amend the judgment to decrease the amount awarded defendant for a use credit, and we affirm the judgment as amended and award additional attorney's fees.
On April 1, 2005, Travis Lovell purchased a used 2004 Blazer Bay 2220 Fisherman boat, motor, and trailer from Derek Johnson for $26,500.00. Mr. Lovell subsequently discovered stress cracks along the port side of the boat. In May 2006, the boat was shipped to the manufacturer, Blazer Boats, Inc. (Blazer), for repairs. The manufacturer made said repairs and returned the boat to Mr. Lovell, after which Mr. Lovell went on two fishing trips. However, the stress cracks began to reappear. In October 2006, Blazer, instead of repairing the stress cracks on the vessel for a second time, agreed to manufacture a new hull and cap for the vessel.
When stress cracks began to reappear in the reconditioned vessel in 2008, Mr. Lovell again sent the boat to Blazer for repairs. Blazer repaired the stress cracks, but after Mr. Lovell received the boat and began using it, the stress cracks reappeared. Additionally, Mr. Lovell noticed a hole on the starboard side of the stern of the boat, which caused water to leak into the vessel.
On February 12, 2009, Mr. Lovell filed suit against Blazer, alleging damages for breach of warranty, negligence, fraud, and a claim in redhibition.
Mr. Lovell has appealed, assigning the following as error:
Mr. Lovell also requests an award of additional attorney's fees for prosecution of this appeal.
Louisiana Civil Code article 2520, regarding warranty against redhibitory defects, provides as follows:
The extent of a seller's liability to a buyer for breaching this warranty depends on whether the seller knew, or did not know, of the defect. See LSA-C.C. art. 2531 and 2545. With regard to a seller who knew of the defect, LSA-C.C. art. 2545 provides as follows:
Although the code articles on redhibition appear to allow a suit by a buyer only against a "seller" for redhibitory defects, the Louisiana Supreme Court has recognized that a buyer can recover directly from the manufacturer for breach of warranty, despite the fact that there is no privity of contract between them. See Aucoin v. Southern Quality Homes, LLC, 07-1014, p. 9 (La.2/26/08), 984 So.2d 685, 692 (citing Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 La. 80, 262 So.2d 377, 380-81 (La.1972)).
Mr. Lovell contends that the trial court, in rescinding the sale through redhibition, erred in failing to award nonpecuniary damages for mental anguish. Mr. Lovell notes that Article 2545 allows recovery of nonpecuniary damages when the requirements set forth in Article 1998 are met. See Comment (j) to LSA-C.C. art. 2545. Louisiana Civil Code article 1998 provides:
If the obligee can show that he intended to gratify a significant and nonpecuniary interest by way of the contract, and the nature of the contract supports his contention, and that the obligor either knew or should have known that failure to perform would cause nonpecuniary loss to the obligee, then nonpecuniary damages may be recovered. Young, 595 So.2d at 1133.
To illustrate under what circumstances an award of nonpecuniary damages may be appropriate, the supreme court wrote:
Id. In Young, the supreme court concluded that the purchase of a pickup truck did not warrant an award of nonpecuniary damages under the specific facts of that case, reasoning as follows:
Id.
More recently, the Second Circuit Court of Appeal concluded that the trial court did not commit manifest error in failing to instruct the jury on nonpecuniary damages in a redhibition case involving a motor home. See Jones v. Winnebago Industries, Inc., 47,137 (La.App. 2 Cir. 5/16/12), 92 So.3d 1113. The Jones court reasoned:
Jones, 47,137 at p. 14, 92 So.3d at 1122.
In the instant case, the boat Mr. Lovell purchased from Mr. Johnson was neither custom-built nor specifically designed. Also, Mr. Lovell did not indicate that he purchased the boat due to any unique quality or characteristic that the boat possessed. Rather, when questioned why he purchased this specific boat from Mr. Johnson, Mr. Lovell responded: "He's a friend of mine. He got into a bind at work and was looking at losing the boat. At that time[,] I purchased the boat from him for recreational fishing." Considering the foregoing, we cannot conclude that the trial court was clearly wrong in failing to award nonpecuniary damages. Accordingly, assignment of error number 2 is without merit.
Mr. Lovell also contends that the trial court's failure to award damages for lost profits/income constitutes manifest error. Mr. Lovell testified that in June 2008, he opened a business, Reelin Good Charters, LLC. Mr. Lovell notes that his tax returns reflected revenues from his business in 2008 totaling $500.00 and in 2009 totaling $15,656.00. Mr. Lovell testified that because of problems with his boat, however, he was not actively pursuing business like he should have.
Damages for lost profits must be proven to a reasonable certainty and must not be based on evidence that is speculative or conjectural. Pelts & Skins Export, Ltd. v. State ex. rel. Dep't of Wildlife and Fisheries, 97-2300, pp. 11-14 (La.App. 1 Cir. 4/1/99), 735 So.2d 116, 126-28, writs denied, 99-2036, 99-2042 (La. 10/29/99), 748 So.2d 1167, 1168. An appellate court will not disturb such damage awards in the absence of a manifest abuse of discretion. Pelts & Skins Export, Ltd., 97-2300 at p. 11, 735 So.2d at 126.
Although Mr. Lovell testified that he lost charters due to his boat's condition, it is uncontradicted that Mr. Lovell was able to take charters on other occasions. Moreover, Mr. Lovell provided no evidence with regard to the specific charters he lost, and any award under these circumstances would be mere speculation. Accordingly, we conclude that the trial court did not manifestly err or abuse its discretion in
The trial court awarded Mr. Lovell $150.00 for costs of the preservation of the boat. Mr. Lovell notes, however, that he testified he paid $150.00 a month to Blue Marlin storage to store his boat and had been doing so since 2008. Mr. Lovell asserts that the judgment was contrary to the evidence and that the damages for preservation of the boat should be increased from $150.00 to $3,750.00 for monthly storage from January 2008 through May 2010.
At trial, however, Mr. Lovell only produced one invoice in the amount of $150.00 reflecting costs of storing the boat at Blue Marlin. The trial court awarded Mr. Lovell the total amount reflected by the invoice. As the trier-of-fact, a trial court is charged with assessing the credibility of witnesses and, in so doing, is free to accept or reject, in whole or in part, the testimony of any witness. In re Succession of Wagner, 08-0212, p. 19 (La.App. 1 Cir. 8/8/08), 993 So.2d 709, 722. As such, we cannot conclude that the trial court's award of $150.00 for preservation of the boat was manifestly erroneous. Assignment of error number 4 is without merit.
Mr. Lovell contends that the trial court erred as a matter of law in awarding $19,500.00 to Blazer as a credit for use. In reaching this amount, the trial court relied upon Mr. Lovell's estimate that he used the boat 78 times since its purchase and upon the testimony of Eric Boudreaux,
Under Louisiana law, both good faith and bad faith sellers are entitled to a credit for a buyer's use if the buyer reaped a benefit from that use. LSA-C.C. arts. 2531, 2545. There is no established rule for the calculation of credit for use. Chenniliaro v. Kaufman & Broad Home Systems of Louisiana, Inc., 93-1126 (La. App. 1 Cir. 1/19/94), 636 So.2d 246, 253. Compensation for the buyer's use, however, ought not be granted automatically by the courts; even the value of an extensive use may be overridden by great inconveniences incurred because of the defective nature of the thing and constant interruptions in service caused by the seller's attempts to repair. Alexander v. Burroughs Corp., 359 So.2d 607, 610-611 (La.1978). The burden of proof is on the party asserting the entitlement to the credit. Alleman v. Hanks Pontiac-GMC, Inc., 483 So.2d 1050, 1057 (La.App. 1 Cir.1985), writ denied, 485 So.2d 54 (La.1986).
This court, in the context of motor vehicles, has rejected using lease values to
We recognize, as did the trial court, that Mr. Lovell did benefit from use of the boat for recreational fishing and as a charter boat. However, the credit for use of a defective boat should not be in the same amount of that for a non-defective boat. See Breaux, 282 So.2d at 769. As such, the trial court manifestly erred in awarding the total sum of $19,500.00 for the use of a defective boat. We conclude that the highest amount the trial court could have awarded for credit for use in this instance is $10,000.00. Accordingly, we find merit in assignment of error number 1, and we will amend the judgment to reflect a credit for use of $10,000.00.
Mr. Lovell also asserts the court's award of only $5,000.00 in attorney's fees was manifestly erroneous. Mr. Lovell avers that at the time of trial, he had been billed between $8,000.00 and $9,000.00, not including the costs for trial. Mr. Lovell submits that the trial court should have awarded at least $9,000.00 in attorney's fees insofar as that was the only evidence the trial court had.
We note that the factors to be taken into consideration in determining the reasonableness of attorney fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence of counsel; and (10) the court's own knowledge. See Rule 1.5(a) of the Rules of Professional Conduct; Anglin v. Anglin, 09-0844, p. 7 (La.App. 1 Cir. 12/16/09), 30 So.3d 746, 752. The trial court has much discretion in fixing an award of attorney fees, and its award will not be modified on appeal absent a showing of an abuse of discretion. Id.
The trial court ruled that "given the skill of counsel and complexity of the case, Travis Lovell is awarded Five Thousand Dollars ($5,000.00) in attorney's fees." The trial court presided over the entire trial and made its own determination of the fee it deemed reasonable. After reviewing the entirety of the record and considering the factors enunciated above, we cannot conclude that the trial court abused its discretion in awarding $5,000.00 in attorney's fees. Accordingly, assignment of error number 5 is without merit.
Mr. Lovell also requests that this court award him additional attorney's fees for this appeal. We note that the basis for awarding additional attorney's fees for work performed on appeal is that the litigant incurred additional expense to protect rights or increase awards established at the trial level. Vander v. Safeway Ins. Co.
In this case, Mr. Lovell successfully sought reduction of the credit for use awarded by the trial court from $19,500.00 to $10,000.00. Considering the work performed on appeal by counsel for Mr. Lovell, we find that an additional award of $2,000.00 in attorney fees is reasonable under these circumstances. We therefore will award Mr. Lovell an additional $2,000.00 as attorney fees for this appeal.
Mr. Lovell asserts that while the judgment granted his claim for redhibition, the trial court failed to address two key issues — fraud and breach of warranty.
Where a trial court's ruling is silent as to any demand at issue under the pleadings, such silence constitutes an absolute rejection of such demand. Tramontin v. Tramontin, 04-2286, p. 3 n. 2 (La.App. 1 Cir. 12/22/05), 928 So.2d 29, 31 n. 2. writ denied, 06-0155 (La.5/26/06), 930 So.2d 20. The trial court's findings with respect to a claim of fraud are subject to the manifest error standard of review. Boudreaux v. Jeff, 03-1932, p. 9 (La.App. 1 Cir. 9/17/04), 884 So.2d 665, 672. Under the manifest error standard, a factual finding cannot be set aside unless the appellate court finds that the trier of fact's determination is manifestly erroneous or clearly wrong. Smith v. Louisiana Dep't of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132. In order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id.
The following evidence supports the trial court's implicit conclusions. Keith Craft, Blazer's owner, testified that Blazer manufactured a new hull for Mr. Lovell's boat in October 2006, but did not place a new hull number "[b]ecause it wasn't going to be a
In light of the foregoing testimony, we cannot conclude that the trial court was manifestly erroneous in failing to find that Blazer committed fraud. Accordingly, assignment of error numbers 6 and 7 are without merit.
For the foregoing reasons, we amend the September 15, 2010 judgment to reduce the value of Mr. Lovell's use of the boat and trailer from $19,500.00 to $10,000.00. We affirm the judgment in all other respects. Also, we award Mr. Lovell an additional $2,000.00 in attorney's fees for the work performed by his counsel on appeal. Costs of this appeal are assessed to appellee, Blazer Boats, Inc.
PETTIGREW, J., concurs.
WELCH, J., concurs in part and dissents in part with reasons.
GUIDRY, J., concurs in the result.
HIGGINBOTHAM, J., concurs in part and dissents in part with reasons.
WELCH, J., concurring in part and dissenting in part.
I agree with the majority opinion that the manufacturer sold a defective boat to the purchaser and is therefore liable to the purchaser pursuant to Civil Code article 2520, 2531 and 2545. However, I disagree with the majority's determination that there was insufficient proof of lost profits, that the plaintiff failed to prove non-pecuniary damages, that the plaintiff was only entitled to $150.00 for preservation of the boat, that the defendant was entitled to a credit for the plaintiffs use of the boat, and that the plaintiff is only entitled to a total of $7,000.00 for attorney fees and costs in the lower court and for this appeal.
With respect to lost profits, the plaintiff established that he made $15,656.00 in a 2009, and that he could not use the boat in 2010 because of a hole in the side, which caused it to leak water. Therefore, the plaintiff was at least entitled to an award of $6,177.00
Further, the plaintiff proved that he was entitled to non-pecuniary damages. The evidence established that the boat was purchased in April 2005, with the intent to use it for recreation, i.e., fishing, which is a hobby with non-pecuniary implications. The plaintiffs business was not started until 2008. Therefore, the loss of use of the boat for non-pecuniary gratification from 2005-2008 was adequately proven and plaintiff should be awarded a minimum $5,000.00 for non pecuniary damages
With respect to the costs of the preservation of the boat, the trial court only awarded the plaintiff $150.00, which was one-month of the storage fee/rent at Blue Marlin. However, the plaintiff established (and the defendants did not dispute) that the boat was in fact stored at Blue Marlin from January 2008 through May 2010 (a period of twenty-nine months) at the rate of $150.00 per month. Therefore, the plaintiff should be awarded $4,350.00
Also, I do not believe that the defendant is entitled to a credit for any use of the boat by the plaintiff, and therefore would amend the judgment of the trial court to eliminate this credit. Lastly, with respect to attorney fees and costs for work performed in the lower court and in this appeal, the plaintiff is entitled to at least a total of $12,000.00 and I would amend the trial court's judgment to provide such an award.
Thus, I respectfully concur in part and dissent in part.
HIGGINBOTHAM, J., concurring in part and dissenting in part.
I respectfully concur in part and dissent in part with the majority opinion. While I concur in the findings that the manufacturer sold a defective boat to Mr. Lovell, I disagree with the amounts awarded for damages, and I dissent on that basis.
