PARRO, J.
In this dispute about three contracts between a drilling rig company and two barge building companies, a jury found the drilling rig company had breached its obligations
On or about December 4, 2007, Superior Derrick Services, L.L.C. (SDS), entered into the first of three contracts with LAD Services of Louisiana, L.L.C. (LAD). In the initial contract, LAD leased two small deck barges to SDS. In the second and third contracts, SDS engaged LAD to build a barge under each contract. They entered into the second contract on December 5, 2007. In that contract, SDS engaged LAD to build a barge measuring 180' long by 70' wide by 11' deep. Once LAD completed building that barge, SDS intended to add additional equipment to it, then deliver it to an SDS customer, Petroleos de Venezuela (PDVSA). The parties entered into the third contract on March 20, 2008. The third contract was very similar to the second, in that SDS engaged LAD to build it another barge of the same size. For each barge, the parties arranged to have SDS furnish, at the start of the contract, a down payment as well as the funds that LAD would use to pay for the steel to build each barge.
When the construction of barge one was well along, and the construction of barge two was still in its early stages, SDS advised LAD that it was cancelling the contract for barge two. SDS told LAD that it was cancelling because its customer for both barges, PDVSA, wanted SDS to use a barge builder other than LAD for barge two.
Around July 11, 2008, LAD finished barge one and turned it over to SDS. However, when SDS sent LAD its final payment for barge one, it deducted an amount equal to its down payment for barge two, which was $225,600. LAD's owner, Lee Dragna, said at trial he was not aware of that deduction when LAD gave SDS possession of the barge, but once LAD delivered it "there was nothing we could really do about it."
In about February 2009, LAD ascertained that it had not been sending monthly invoices to SDS for renting the two barges it had leased to SDS in December 2007, and that SDS had not been paying the rent. Mr. Dragna said that when he inquired about the barges, an SDS representative said it would not release them because LAD still owed SDS money from the contract for barge two. Subsequently, LAD did retake possession of its two rental barges from SDS.
On August 28, 2009, LAD sued SDS for amounts it claimed SDS owed under all three contracts. It alleged generally that SDS was liable for: (1) underpaying it by $235,000 for barge one; (2) causing LAD to lose profits from the cancellation of the contract for barge two; (3) failing to pay $100 per day for each of the two barges it leased from LAD, subject to a 60-day credit on the first rental barge; (4) storage fees for storing the steel for barge two in LAD's yard; and (5) the cost of two trips LAD was required to make to retrieve its two rental barges.
SDS reconvened, alleging generally that LAD was liable for: (1) $704,000 that SDS had paid to LAD to start work on barge two, which LAD had not returned after the contract for barge two was cancelled; (2) $20,000 for LAD's breach of the barge one contract by using inferior materials; and (3) liquidated damages for delivering barge one after the construction period specified in the contract.
The parties tried their claims to a jury in November 2011. At the conclusion of LAD's case in chief, SDS moved for a directed verdict on two issues related to the contract for barge two: (1) whether PDVSA's not wanting SDS to use LAD to build the second barge constituted a fortuitous event that either made SDS's performance impossible, or constituted a failure of cause; and (2) whether LAD had breached the security agreement provision in the barge two contract. The trial judge denied the motion for directed verdict on the first issue, namely, impossibility or failure of cause. However, the trial judge granted the motion for directed verdict on the second issue, finding that LAD breached the security agreement provision in the barge two contract. Nonetheless, the trial judge permitted that issue to go to the jury.
The jury found in favor of LAD.
Subsequently, SDS moved for a new trial, a JNOV, or remittitur. The trial judge granted the motion for JNOV. In that JNOV, the trial judge vacated the jury verdict in its entirety, dismissed all claims against SDS, directed that LAD return $624,300 to SDS, and found SDS was entitled to attorney fees and costs.
As noted, LAD's first assignment of error urges that the trial judge erred in granting a directed verdict of favor of SDS.
Louisiana Code of Civil Procedure article 1810 provides:
This court summarized the jurisprudence on directed verdicts in McNeely v. Ford Motor Co., Inc., 98-2139 (La.App. 1st Cir. 12/28/99), 763 So.2d 659, 664, writ denied, 00-0780 (La. 4/28/00), 760 So.2d 1182 (citations omitted):
In the present case, although the trial judge granted a directed verdict for SDS on one issue, she nonetheless allowed that issue to go to the jury. The issue was whether LAD had breached the security provision in the contract for barge two. She later acknowledged in her reasons for judgment on the JNOV that this issue should not have gone to the jury.
Our research has not found any legal authority directly on point regarding such a procedural situation. However, two cases with related procedural situations provide helpful guidance.
In Dunaway v. Rester Refrigeration Service, Inc., 428 So.2d 1064, 1066 (La. App. 1st Cir.1983), the plaintiff sued a general contractor, Hearn, and its plumbing
Additionally, in Goza v. Cornwell, 622 So.2d 704, 705 (La.App. 1st Cir.1993), the plaintiff was a horse rider seeking damages from the owner of another horse and other defendants. At the conclusion of the plaintiff's case, the defendant horse owner moved for a directed verdict. The trial judge took the motion under advisement, and the defendants then presented their evidence to the jury. The jury returned a verdict finding the plaintiff 20% at fault, and the owner of the other horse 80% at fault. Id. At that point, the trial judge granted the pending motion for directed verdict, finding that the defendant's horse had created no unreasonable risk of harm. The plaintiff appealed the judgment granting the directed verdict. This court found that it was error for the trial judge to have granted a directed verdict after the case had been submitted to the jury, because:
Id. at 708.
Reading these two cases together yields the conclusion that where a motion for a directed verdict is made, but the subject of that motion nonetheless goes to the jury, then the jury verdict will control over the directed verdict. Applying that reasoning here, we find that when the trial judge granted the motion for directed verdict on the issue of breach of the security clause, and then permitted that same issue to go to the jury without objection of the parties, the jury's verdict controls. That finding makes moot the first assignment of error.
LAD's second assignment of error urges that the trial judge erred in vacating the jury verdict, and granting the JNOV in favor of SDS.
The procedural device of JNOV, authorized by LSA-C.C.P. art. 1811, allows a trial judge to rectify an erroneous jury verdict by changing the jury's finding on liability, or damages, or both. See Smith v. State, Dept. of Transp. & Dev., 04-1317, 04-1594 (La. 3/11/05), 899 So.2d 516, 524. In the Smith decision, our supreme court summarized the jurisprudence on how a trial court is to assess a motion for a JNOV:
Id. at 524-25 (citations omitted). The supreme court explained in Smith that "[t]he JNOV strict criteria is predicated on the rule that `when there is a jury, the jury is the trier of fact.'" Id. at 525 (citations omitted).
The Smith decision then went on to summarize the approach that an appellate court is to use when it reviews a trial judge's grant of a JNOV:
Id. (citations omitted).
Applying those principles, the setting here is one in which the jury generally returned a verdict in favor of LAD, and the trial court's JNOV reversed that verdict and generally found in favor of SDS. In reviewing the JNOV, we will address each of the three contracts separately.
As noted above, one of LAD's claims was for back rent on two barges that it had leased to SDS. At trial, the jury returned a verdict on this issue, awarding LAD $99,700 for SDS's breach of the rental contract. In the judgment granting the JNOV, although the trial judge stated that she was vacating the verdict in favor of the plaintiff, she did incorporate into her judgment a credit of $99,700 that SDS owed LAD for barge rent. In her written reasons for that judgment, the trial judge explained that, on the issue of back rent for the two rental barges, she found that this $99,700 was properly deducted out of the initial funds SDS paid to LAD at the start of the contract for barge two. The trial judge characterized this as an imputation of payment that SDS had directed LAD to make from the funds it paid at the start of the contract to construct barge two. Thus, while the trial judge took a different approach in how she attributed the amount owed, she actually agreed with the jury's verdict on the main point on this issue: SDS did owe LAD the sum of $99,700 in unpaid rent.
As an appellate court, our concern is to review judgments, because "appellate courts review [a] judgment, not reasons for judgment." Moreno v. Entergy Corp., 12-0097 (La. 12/4/12), 105 So.3d 40, 52 (citation omitted). A trial judge's reasons for judgment form no part of the judgment, but are merely an explanation of the judge's determinations. See Wooley v. Lucksinger, 09-0571 (La.4/1/11), 61 So.3d 507, 572. Therefore, we need not
On this contract, LAD alleged in its petition that SDS underpaid it $235,000 for barge one, and thereby breached that contract. By contrast, SDS claimed that it had paid in full for barge one, by imputing the final $225,600 it owed on barge one, from its initial payment of $929,600 on barge two.
As we noted in our discussion of the rental contract, as an appellate court, our concern is to review judgments, because "appellate courts review [a] judgment, not reasons for judgment." Moreno, 105 So.3d at 52 (citations omitted). Therefore, we need not decide whether the $204,600 remainder that SDS owed LAD should be seen as a breach of contract or as a debt whose payment is imputable out of a payment on a different contract. Hence, there is nothing for this court to review on the issue of the $204,600 remainder that SDS owed LAD under the barge one contract, because the JNOV did not materially differ from the jury's verdict on this issue. As we later reverse the JNOV in its entirety because of a different issue, and as the jury's verdict and the JNOV on this point did not differ in substance, the judgment in accordance with the jury's verdict will become this court's judgment on the barge one contract issue.
This part of the dispute is what the parties devoted most of their attention to at trial. It is the issue for which the jury awarded the most damages. It also proved to be the pivotal issue for the trial judge's decision to grant the JNOV. In this claim, LAD alleged that it was entitled to unspecified lost profits from SDS's cancellation of the contract to construct the second barge, as well as bad faith damages. SDS alleged that it was entitled to recoup $704,000 of its initial payment of $929,600 to LAD on this contract that PDVSA had SDS cancel.
The jury awarded LAD $566,806.50 for SDS's breach of this contract. Then, in sharp contrast, the trial judge's JNOV found that SDS was entitled to recoup
As an appellate court, we are to assess a JNOV using the same standard a district judge is to use: "determine whether the facts and inferences adduced at trial point so overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary finding of fact." Smith, 899 So.2d at 525.
The trial judge's reasoning on the barge two contract was that LAD failed to adhere to the security provision in that contract and, in doing so, precluded itself from requiring SDS to perform its obligations under the contract, because "a party cannot claim breach when he himself is in default." Thus, in granting the JNOV, the trial judge found that SDS had proved an affirmative defense that legally excused it from performing its end of the contract, and had proved it so overwhelmingly that no reasonable jury could have found otherwise.
The security agreement clause in the barge two contract required LAD to do several things: grant SDS a security interest in the materials for the barge and the barge itself, segregate the materials for the barge from other inventory, plus mark, tag, or otherwise identify the materials, and indicate SDS's security interest.
Our review of the record requires us to disagree with the trial judge's decision for four reasons.
First, the trial judge's statement of the applicable legal rule concerning contractual breach that precludes enforcement was incomplete. Her statement was that "a party cannot claim breach when he himself is in default." However, the full statement in the primary case that the trial court cited as authority on this point says the following: "where one party substantially breaches a contract, the other party to it has a defense and an excuse for nonperformance." Commerce Ins. Agency, Inc. v. Hogue, 618 So.2d 1048, 1052 (La.App. 1st Cir.1993), writ denied, 626 So.2d 1171 (La.1993).
It should also be noted that one party's substantial breach, which would preclude his enforcement of the contract, is an affirmative defense that may be asserted by the other party. See id. The party asserting the affirmative defense has the burden of proving it by a preponderance of the evidence. Hurst v. Judson, 02-2412 (La.App. 1st Cir.7/2/03), 859 So.2d 53, 55. Thus, it was SDS's burden at trial to prove that LAD had substantially breached the contract.
The question to resolve on this affirmative defense should have been: whether the record showed that SDS had proved that LAD had substantially breached the contract's security agreement provision so overwhelmingly that no reasonable jury could have found otherwise.
The word "substantially" is critical, as one of the cases cited by Hogue illustrates. That case is Central La. Electric Co. v. Giant Enterprises, Inc. 371 So.2d 641 (La. App. 3rd Cir.1979). In Giant Enterprises, a property owner, CLECO, had engaged a contractor to clear the trees from a parcel of forested land. When CLECO sued the contractor, Giant Enterprises, alleging that it had failed to perform fully and timely, Giant Enterprises asserted that CLECO itself had breached the contract in several ways and thus could not complain about its performance. The Third Circuit found none of those arguments by Giant Enterprises persuasive.
Illustrative of Giant Enterprises' arguments was that CLECO failed to provide adequate access to the land Giant Enterprises was to clear. The Third Circuit held that the actual cause of the contractor's lack of timely performance in clearing the land was not because of anything CLECO had done, but because of something the contractor failed to do: drain the land's swampy areas. The Court explained:
Giant Enterprises, 371 So.2d at 648.
The reasoning of Giant Enterprises applies here. As with CLECO, even if LAD had failed to properly adhere to the security agreement clause in the barge two contract, and even if no notice by SDS to LAD of that lack of performance were required, LAD's failure was not a substantial breach because it was not an actual cause of SDS's failure to comply with its obligations. Here, the real cause of SDS's failure to perform was not anything LAD had done, but something SDS had done: go along with a request by its client, PDVSA, that it not use LAD for barge two.
Second, and further applying the reasoning of the Giant Enterprises case, a reasonable jury also could have concluded that SDS did not consider LAD's lack of adherence to the security clause in the barge two contract an actual cause of SDS's nonperformance. The project manager for SDS, Mr. Albert, testified that he never sent LAD any written notice of default, even though paragraph 13 of the contract required that SDS provide LAD with written notice of any default.
Third, a separate reason why a reasonable jury could have concluded that SDS failed to prove its affirmative defense of LAD breaching the security clause is that written notice of default was required by the contract. That part of the contract required not only written notice of any default by LAD, but also provided that LAD then had 30 days in which to cure any such default. That lack of the contractually-required written notice of default, in and of itself, could have caused a reasonable jury to conclude that SDS had not proved that LAD breached the security clause.
Fourth, yet another reason why a reasonable jury could have concluded that SDS did not prove that LAD's actions in regard to the security agreement constituted a substantial breach is that conflicting proof was adduced at trial about whether LAD did, or did not, adhere to the security clause. As noted above, that part of the barge two contract required that LAD grant SDS a security interest in the materials for the barge and the barge itself, segregate the materials for the barge from other inventory, as well as mark, tag, or otherwise identify the materials, and indicate SDS's security interest.
As for marking, tagging, or identifying the barge two materials, LAD's employee handling logistics, Wade Trahan, testified
Mr. Trahan also said that while he was directed to mark some of the steel for barge two with orange paint, he also acknowledged that some of the steel was delivered to LAD already painted in various colors by the manufacturer, making it hard to mark it with a color that would specifically identify the steel as being for barge two. Likewise, the LAD superintendent who ran its yard, Joe Cavalier, acknowledged that paint marks identifying the barge two steel would fade and rust over time; however, he said that LAD was still able to identify which steel was for barge two because LAD kept it all in a certain area of its yard.
Mr. Cavalier acknowledged that LAD had moved the barge two steel around its yard at least a dozen times; however, he said LAD was able to continue to identify which steel was for barge two because, when it moved that steel, "we moved it all at one time."
LAD's owner, Lee Dragna, conceded at trial that LAD did not write onto each piece of steel that it was for SDS. He explained that it was not possible to write on every piece of steel specifically that it was owned by SDS. However, Mr. Dragna also testified that his employees' painting of the barge two steel with orange paint did identify it to everyone at LAD as SDS's steel. He admitted that the paint marking did not "tell the world" that it was SDS's steel. However, he also stated that it was never his intent when he wrote the security clause to identify the steel to non-parties to the contract, such as a sheriff who might show up at LAD's yard to seize LAD's inventory.
While the evidence ran both ways on the issue of whether LAD had breached the security clause, in the JNOV context, our review of the record leads us to conclude that a reasonable jury could have found that SDS failed to prove that LAD's actions substantially breached the security clause. Accordingly, as to the barge two contract, we find that the trial judge erred in granting the JNOV on the issue of whether LAD had substantially breached the contract for barge two and thereby precluded itself from enforcing that contract. Because that reasoning by the trial judge was the foundation upon which the entire JNOV rested, we are required to reverse the JNOV granted by the trial judge in its entirety and reinstate the judgment reflecting the jury's verdict.
We review the issue of the appropriate damages associated with SDS's breach of the barge two contract in our review of assignment of error three.
LAD's third assignment of error urges that the jury erred in failing to award LAD bad faith damages. The jury found that SDS had breached the barge two contract in bad faith and awarded LAD $566,806.50 in damages. On appeal, LAD argues that this award does not fully compensate it for SDS's bad faith breach of the contract for the second barge, because it would only compensate LAD for its lost
As we noted earlier, the trial judge's granting of a JNOV in favor of SDS rested on her conclusion that LAD breached the security clause in the barge two contract and thereby precluded itself from enforcing the contract against SDS. We have already determined that conclusion was incorrect and, accordingly, the JNOV must be reversed and the jury verdict reinstated. Thus, for purposes of the third assignment of error, we now review the jury's verdict on damages for breach of the barge two contract.
The judgment rendered in accordance with the jury's verdict is somewhat incomplete when compared with the jury verdict form. The initial language in the judgment, preceding its decretal language, states that the jury found SDS breached the barge two contract in bad faith and awarded $566,806.50 for that breach. However, the corresponding sentence in the decretal portion of the judgment states simply that there is judgment in favor of LAD and against SDS for $566,806.50. A review of the jury verdict form sheds more light on the award for $566,806.50. The corresponding answers to the jury interrogatories about the barge two contract state that the jury found: (1) LAD proved that SDS breached the barge two contract, (2) LAD proved that SDS breached the barge two contract in bad faith, and (3) the "award to LAD for [SDS's] breach of the second barge contract" was $566,806.50. Thus, while the verdict form shows that the jury's award of $566,806.50 was for breach of the barge two contract, it fails to say how much it awarded for each of the two types of breach. Therefore, to address the question this assignment poses about the amount of bad faith damages the jury should have awarded for breach of the barge two contract, we must consider both types of breach of the barge two contract: the bad faith breach and the simple breach.
We will first consider the bad faith aspect of this part of the jury's finding on SDS's breach of the barge two contract.
The Second Circuit recently summarized what constitutes a bad faith breach of contract in Volentine v. Raeford Farms of La., L.L.C., 48,219 (La.App. 2nd Cir. 7/24/13), 121 So.3d 742, 753, writ denied, 13-2493 (La. 1/17/14), 130 So.3d 948 (citations omitted), as follows:
The Second Circuit also recently explained that "bad faith means more than mere bad judgment or negligence; it implies the conscious doing of a wrong for dishonest or morally questionable motives." Benton v. Clay, 48,245 (La.App. 2nd Cir.8/7/13), 123 So.3d 212, 219.
In the present case, the jury found as a fact that SDS had breached the barge two contract in bad faith. Our review of the jury's finding of bad faith is governed by the manifest error or clearly wrong standard, which provides that a
The jury's verdict here does not spell out how, in its view, SDS acted in bad faith in its breach of the contract for barge two. LAD argues that the jury's verdict on this point found bad faith from SDS's cancellation of the contract for barge two. Our examination of the record does not lead us to that conclusion.
At trial, SDS's project manager, Charlie Albert, testified that SDS cancelled the contract because the customer to whom it planned to deliver the second barge, PDVSA, did not like the quality of LAD's craftsmanship on the first barge. LAD's owner, Lee Dragna, testified that Mr. Albert told him that PDVSA's reason was that the yard where LAD built barges was not nice enough. Mr. Albert also testified that he inspected the work LAD did on the first barge three or four times during construction, and had no complaints to LAD about the work it was doing. Notably, the record also contains stipulated testimony from Mr. Albert that "SDS had millions of dollars invested in its relationship with PDVSA." In his oral testimony, Mr. Albert explained that SDS felt compelled to cancel the contract with LAD, because it simply could not afford to lose PDVSA as a customer. While the record clearly shows that when SDS cancelled the barge two contract, it breached that contract intentionally, our reading of the record fails to show that SDS's cancellation was "for dishonest or morally questionable motives." See Benton v. Clay, 123 So.3d at 219.
Thus, the record provides no reasonable factual basis for the jury to have found that SDS's act of cancelling the barge two contract constituted a bad faith breach and, in our view, such a finding would have been clearly wrong (manifestly erroneous). See Mart v. Hill, 505 So.2d at 1127. Inasmuch as the record does not supply a factual basis for the jury to have concluded that the cancellation of the barge two contract constituted a bad faith breach of contract by SDS, that finding forecloses further inquiry on the issue of whether SDS's actions after the breach constituted a bad faith breach. That conclusion flows from Comment (b) to LSA-C.C. art. 1997, Revision Comments — 1984.
We next review the amount of damages that should be awarded for SDS's simple breach of the barge two contract.
We begin by noting that the Civil Code instructs that damages, other than those for bad faith breach, are measured by the loss sustained by the obligee and the profit of which he has been deprived. See LSA-C.C. art. 1995. Furthermore, an obligor in good faith is liable only for the damages that were foreseeable at the time the contract was made. LSA-C.C. art. 1996. We also note that the Louisiana Supreme Court has stated that, "[g]enerally, recovery for damages upon the breach of a contract is limited to the loss a person has sustained or the profit of which he has been deprived." Meador v. Toyota of Jefferson, Inc., 332 So.2d 433, 434-35 (La. 1976).
At trial, Mr. Dragna testified that his projected profit for barge two was $787,806.50. He derived that figure by using his profit from barge one, which had the same specifications as barge two. However, one must deduct from the total projected profit the initial payment of $225,600 that LAD received from SDS for barge two on March 21, 2008.
Also relevant to the damage calculation is the fact that SDS sent LAD a payment of $704,000 on March 21, 2008, for LAD to use to buy the steel for the second barge. However, Mr. Dragna acknowledged he did not spend all of that amount to buy steel for barge two. He testified that he only purchased $676,458.40 worth of steel. Mr. Dragna conceded at trial that the barge two contract did not permit LAD to simply keep any overage in the $704,000 payment. Thus, the overage for the steel, which amounts to $27,541.60, must also be deducted from Mr. Dragna's net profit to arrive at LAD's true lost profit.
Thus, the record supports the conclusion that LAD's lost profit from barge two, adjusted, is as follows:
Gross lost profit on barge two: $787,806.50 Minus initial payment on contract: -225,600.00 Minus overage in steel payment: -27,541.60 __________________________________________________ Adjusted lost profit on barge two: $534,664.90
Therefore, we conclude that the record supports the conclusion that a reasonable jury could have awarded LAD $534,664.90 for SDS's simple breach of the barge two contract.
Assessing the amount of damages for SDS's breach of the barge two contract inherently involves resolving questions of fact. Thus, we review the jury's finding on the amount of those damages under the manifest error standard. As we have noted, under that standard, if a reasonable factual basis exists, an appellate court may set aside a factual finding only if, after reviewing the record in its entirety, it determines the factual finding was clearly wrong. See Stobart, 617 So.2d at 882.
The jury verdict form specifically states that the jury found that SDS breached the barge two contract, that SDS breached the barge two contract in bad faith, and that SDS's breach of the barge two contract resulted in damages of $566,806.50. However, there are some details the verdict form does not supply. For example, the verdict form does not explicitly state whether the jury found that SDS committed a simple breach; and, if so, what dollar amount of damages it assigned to SDS's simple breach. The portion of the judgment rendered in accordance with the jury verdict that corresponds to the breach of the barge two contract simply states that there be judgment against SDS and in favor of LAD for $566,806.50. Thus, in reviewing the issue of the barge two contract damages, we do not have as much information about the jury verdict as we would like to have.
The present case is not unique in having a judgment and jury verdict form lacking all the detail a court of appeal would like to have. For example, the Third Circuit faced a similar situation recently in Monte v. State Farm Mut. Auto. Ins. Co., 13-979 (La.App. 3rd Cir. 5/21/14), 139 So.3d 1139, 1148. The court noted that "the fact that
The jury's ultimate finding on the damages for the breach of the barge two contract was that those damages, all totaled, amounted to $566,806.50. Logically, this total amount appears to have included some amount for what the jury saw as SDS's bad faith breach of the barge two contract. However, from our review of the record no reasonable factual basis exists in the record to support a finding that SDS's breach of the barge two contract was in bad faith. Thus, it would have been error for the jury to have made any award based on a finding that SDS's actions constituted a bad faith breach of the barge two contract. As we have determined that the record does support an award of damages of $534,664.90 for SDS's simple breach of the barge two contract, we draw the logical inference that the jury's award for bad faith breach was the difference between $534,664.90 and the total damages the jury awarded, $566,806.50. That difference is $32,141.60. As we have found the record does not support the conclusion that SDS breached the barge two contract in bad faith, we likewise find that the record does not support awarding the amount of $32,141.60 as bad faith damages to LAD.
Accordingly, we affirm the portion of the jury's award that we have determined represents damages for simple breach of the barge two contract, $534,664.90; and, we reverse the portion of the jury's award that we have determined represents damages for bad faith breach of the barge two contract, $32,141.60.
The judgment rendered in accordance with the jury's verdict stated that a ruling on the issues of legal interest, attorney fees, and court costs was reserved until a later hearing on a motion regarding those matters. The JNOV found SDS was entitled to attorney fees and costs associated with the litigation "under the contract," and taxed LAD with the court costs for the trial. However, we have found that SDS is liable to LAD, as follows: (1) under the contract to rent two barges, $99,700; (2) under the contract to build barge one, $204,600; and (3) under the contract to build barge two, $534,664.90. In addition, legal interest is awarded on all three amounts from the date of judicial demand.
The contract for the rental of two barges contained no provision regarding attorney fees; therefore, we award none in relation to the dispute over that contract. However, the contracts to construct barges one and two provided that "[t]he prevailing party in any action brought hereunder shall be entitled to recover its attorney's fees and cost[s] from the non-prevailing party, including those fees and costs incurred in the trial and appellate courts." As LAD has now prevailed in the dispute over those two contracts, we therefore find LAD is entitled to its attorney fees and costs related to the trial and appeal of those two contracts. Furthermore, we find that the court costs of the trial and this appeal shall be taxed to SDS, which costs shall be determined by a rule to show cause in the district court pursuant to LSA-C.C.P. art. 1920.
We reverse the trial judge's granting of the JNOV in its entirety. Further, we
GUIDRY, J., concurs in the result.
