Abrams v. Dinh

471 So. 2d 994
CourtLouisiana Court of Appeal
DecidedJune 25, 1985
DocketCA 84 0697
StatusPublished
Cited by10 cases

This text of 471 So. 2d 994 (Abrams v. Dinh) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abrams v. Dinh, 471 So. 2d 994 (La. Ct. App. 1985).

Opinion

471 So.2d 994 (1985)

Mathew ABRAMS
v.
Van-Phuc T. DINH, State Farm Insurance Company Her Insurer, State Farm Insurance Company and Miller-Terrell Buick, Inc.

No. CA 84 0697.

Court of Appeal of Louisiana, First Circuit.

June 25, 1985.

*995 Robert C. Williams, Baton Rouge, for plaintiff-appellant Mathew Abrams.

Paul M. Marks, Jr., Baton Rouge, for defendant-appellee State Farm Mut. Auto. Ins. Co. and Van-Phuc T. Dinh.

E. Wade Shows, Baton Rouge, for defendant-appellee Miller-Terrell Buick, Inc.

Before COLE, CARTER and LANIER, JJ.

LANIER, Judge.

This is a suit for damages in tort arising out of an automobile accident cumulated with a suit for damages for breach of contract *996 against an automobile repairer.[1] A trial by jury on these two actions resulted in the following verdicts: (1) in the tort action, the defendant-driver was at fault, this fault was a cause of the accident, the fault of the defendant-driver was 100% and the plaintiff's damages were $2,020;[2] (2) in the breach of contract action, the repairer performed the repairs in an unworkmanlike manner, there was an unreasonable delay in completing the repairs and the plaintiff's damages for these breaches were $2,137. The plaintiff took this devolutive appeal contending he was entitled to $5,574.96 for rentals for loss of use of his vehicle. The repairer answered the appeal contending the trial court committed error by allowing the plaintiff to expand his pleadings during the trial to include a claim for automobile rental for loss of use of his vehicle. In brief, the repairer also contends the trial court committed error by failing to require an itemized jury verdict on damages.

FACTS

On December 10, 1980, Mathew Abrams was driving his 1979 Mercedes Benz automobile in a southerly direction on Airline Highway in the City of Baton Rouge, East Baton Rouge Parish, Louisiana. When he reached the intersection of Airline Highway and Greenmoss Drive, the right front of his vehicle was struck by a 1980 Chevrolet driven by Van-Phuc Dinh, who was traveling on Greenmoss Drive in an easterly direction across the intersection. The Abrams vehicle was towed from the scene of the accident to Miller-Terrell Buick, Inc. (Miller-Terrell) for repairs.

On September 11, 1981, Abrams retrieved his vehicle from Miller-Terrell. On October 12, 1981, Abrams presented his vehicle to Stephens Imports, Inc. (Stephens) of New Orleans for completion of repairs. The repairs were completed on October 21, 1981. Abrams rented a substitute vehicle from Travel Master, Inc. d/b/a Thrifty Rent-a-Car from December 19, 1980, until November 8, 1981, at a rate of $647.13 per thirty day period.

AMENDMENT OF PLEADING TO CONFORM TO THE EVIDENCE

(Miller-Terrell Assignment of Error No. 1)

Miller-Terrell contends the trial court committed error "[b]y allowing the jury in this matter to consider damages against Miller-Terrell Buick, Inc., for `inconvenience and loss of automobile use (rental car)', when the plaintiff did not demand this sum of money from the defendant-appellee herein, Miller-Terrell Buick, Inc."

In his petition, Abrams sought two elements of damage from Miller-Terrell: (1) vehicle loss of value—$1,500; and (2) cost of additional repairs—$4,898.32. A pretrial conference was held on September 8, 1983. The pretrial order signed by the trial judge contained the following:

III. Other Claims: Plaintiff respectfully request leave of court to submit prior to trial a written amendment to his petition, formally claiming the amount of $6,308.22 (auto rentals) against Miller-Terrell as well as State Farm.
....
IX. Amendments: Plaintiff, orally, and with leave of court will submit a written amendment to his original petition to make his claim for loss of automobile use in the amount of $6,308.22 against defendant, Miller-Terrell Buick.

By letter dated December 16, 1983, counsel for Miller-Terrell advised the trial court judge as follows:

In the pretrial order, the plaintiff indicates that he will orally request that his original petition be amended to assert an additional claim for loss of the use of his automobile. On behalf of Miller-Terrell Buick, Inc., we would object to this oral amendment since such an amendment *997 would be a supplement to his original petition and contrary to Louisiana Code of Civil Procedure 1155.

The trial of this case was held on January 31, 1984. Counsel for Abrams failed to file a written amendment to the petition prior to trial. Counsel for Miller-Terrell again objected to any evidence which expanded the pleadings to incorporate the loss of use (rental) claim. The trial judge overruled this objection and allowed in the evidence.

Initially, we note La.C.C.P. art. 1155 is not controlling because it pertains to "damages ... which have become exigible since the date of filing the original petition". The loss of use claim was exigible prior to the filing of suit. It is well settled under La.C.C.P. art. 1151 that a trial court has much discretion in allowing amendments to the pleadings. Such amendments should be allowed where there is a factual connexity between the original and amended assertions and the opponent is given fair notice of the new relief sought. Mason v. Stauffer Chemical Company, 451 So.2d 32 (La.App. 1st Cir. 1984), writ denied, 452 So.2d 1175 (La. 1984). However, since the authorized amendment was not actually filed, this issue is controlled by La.C.C.P. art. 1154 which provides, in pertinent part, as follows:

If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

The record reflects that by September 8, 1983, almost four months in advance of trial, Miller-Terrell was aware Abrams would seek loss of use damages. Miller-Terrell did not ask for a continuance to respond to this claim and failed to demonstrate the evidence would prejudice its defense on the merits. The trial judge did not abuse his discretion by allowing this evidence in to expand the pleadings. Carter v. Rockwood Insurance Company, 341 So.2d 595 (La.App. 2nd Cir.1977).

This assignment of error is without merit.

AMOUNT OF LOSS OF USE DAMAGES

(Abrams' Assignment of Error No. 1)

Abrams contends the jury abused its discretion in not fully indemnifying him for his car rental expenses.

A repair contract is a lease of labor and/or industry. La.C.C. art. 2745 et seq. Every contract for work or services carries an implied obligation that the contractor will perform in a good workmanlike manner, in default of which he must respond in damages for the losses that may ensue. La.C.C. arts. 1930[3] and 2769; Tiger Well Service, Inc., v. Kimball Production Company, 343 So.2d 1153 (La.App. 3rd Cir. 1977). The jury found Miller-Terrell breached its contract to repair in two ways: (1) the repairs were performed in an unworkmanlike manner and (2) there was an unreasonable delay in making the repairs. Miller-Terrell has not contested either of these findings in this appeal.

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Bluebook (online)
471 So. 2d 994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abrams-v-dinh-lactapp-1985.