Bayou Fleet, Inc. v. Bollinger Shipyards, Inc.

197 So. 3d 797, 2015 La.App. 4 Cir. 0487, 2016 La. App. LEXIS 1418, 2016 WL 3959214
CourtLouisiana Court of Appeal
DecidedJuly 21, 2016
DocketNos. 2015-CA-0487, 2015-CA-0702
StatusPublished
Cited by13 cases

This text of 197 So. 3d 797 (Bayou Fleet, Inc. v. Bollinger Shipyards, Inc.) 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
Bayou Fleet, Inc. v. Bollinger Shipyards, Inc., 197 So. 3d 797, 2015 La.App. 4 Cir. 0487, 2016 La. App. LEXIS 1418, 2016 WL 3959214 (La. Ct. App. 2016).

Opinions

SANDRA CABRINA JENKINS, Judge.

| jThis is an appeal from a December 18, /2014 final judgment, ■ rendered after ■ a bench trial on the merits,, which dismissed an action for the .wrongful conversion of a crane boom filed by appellant, Bayou Fleet, Inc. (“Bayou Fleet”), against appel-lees, Bollinger Shipyards, Inc. and Bollinger Gulf Repair, L.L.C. (collectively, “Bol-linger”), on the grounds that Bayou Fleet’s claim was prescribed. The judgment also dismissed; with prejudice, Bollinger’s re-conventional demand against Bayou Fleet for fees for storing the crane boom, at Bollinger’s shipyard. In a separate appeal, Bayou Fleet seeks review of the trial court’s June 10, 2015 judgment taxing costs against Bayou Fleet in the amount of $19,794.50. In its Answer to that appeal, Bollinger requests an increase in the award of costs against Bayou Fleet.

For the reasons that follow, we affirm the' December 18, 2014 final judgment. With respect to the June 10, 2015 judgment taxing costs, we reduce the judgment by .$511.53, a deposition-related travel expense that is not taxable under La. R.S. 13:4533. We deny Bollinger’s request for an upward modification of the Raward of costs. We further vacate that portion of the judgment that reimburses Bollinger $11,754.41 in expert fees, and remand this matter for the limited purpose of conducting an evidentiary hearing on the issue of expert fees. : .

FACTUAL AND PROCEDURAL BACKGROUND

This lawsuit arises out of the scrapping of a more than 50-year-old crane boom that had been left for more than 15 years [801]*801in an isolated area at the south end of a shipyard located along the east bank of the Industrial Canal in New Orleans, Louisiana. At all relevant times, the leased property was owned by the Board of Commissioners for the Port of New Orleans (the “Port”).

The nearly 60-acre property between the Industrial Canal and Jourdan Road was leased in the early 1960s to American Marine Corporation (“AMC”), a company owned by Leslie Durant, the father- of Robin Durant and Peter Durant, who are the co-owners of Bayou Fleet, which owns a fleet of tug boats and Mississippi River barges. AMC operated a shipyard at the Jourdan Road site (the “Shipyard”). In 1993, AMC filed for bankruptcy. In 1995, in connection with the bankruptcy, AMC sold certain assets to Trinity Gulf Repair (“Trinity”), and Trinity assumed the' lease on the Shipyard. Later, Trinity sold and assigned the lease on the Shipyard to Halter Gulf Repair (“Halter”). In 2000, Halter sold and assigned the lease on the Shipyard to Bollinger.

The boom at issue was one piece of a three-part crane that at one time was owned by Cajun Crane Co, (“Cajun Crane”), a company owned by Leslie Durant. In 2003, Cajun Crane merged with Bayou Fleet, with Bayou Fleet as the surviving entity. There was testimony at trial that the boom- had been placed on pipe racks and left out in the open at the Shipyard since the late 1980s or early 1990s. The laother parts of the crane, including a cab and draw-works, were stored elsewhere and are not a part of this litigation.

After Hurricane Katrina devastated the New Orleans area in August 2005, the U.S. Corps of Engineers decided to close the Mississippi River-Gulf Outlet (“MR-GO”). Bollinger notified the Port in May 2006 that it wanted to terminate its lease on the Shipyard. By letter dated May 31, 2006, the Port agreed to terminate the lease as long as Bollinger completely cleared out the Shipyard. In late October 2007, Bol-lihger hired Tri-Native Contractors,, Inc. (“Tri-Native”) .and Franklin Services, Inc. (“Franklin Services”) to clear everything out of the Shipyard, including scrap and debris.. The large boom was cut into pieces, and hauled off the site for sale as scrap metal.

On March 16, 2009, Bayou Fleet filed a Petition for Damages against Bollinger asserting a single claim for wrongful conversion .of the boom. In the. Petition, Bayou Fleet alleged that, it owned the boom and had stored it at the Shipyard with Bollinger’s permission. Bayou Fleet asserted that Bollinger wrongfully destroyed the boom in November 2007 by cutting it up and allowing it to be sold for scrap, without Bayou Fleet’s knowledge, permission, or consent. Bayou Fleet also alleged that it did not discover that Bollinger had destroyed the boom until July 2008. Bayou Fleet sought damages in the amount of the full replacement value of the boom.

On April 8,-2009, Bollinger filed a Re-conventional Demand against Bayou Fleet, asserting that if Bayou Fleet owned the boom (which Bollinger denied), then Bol-linger was entitled to an award of storage fees for keeping the boom on the leased property. .

Lin February 2011, Bollinger filed an Exception of Prescription arguing that, because the Petition, on its face, alleged, that the boom was destroyed in November 2007, Bayou Fleet’s conversion claim was prescribed because the lawsuit was .not filed until March 16,-2009. In opposition to Bollinger’s Exception of Prescription, Bayou Fleet argued that it had learned through discovery that the boom was still in existence in 2008 and “in all likelihood, had not been destroyed until some point after March 15, 2008, less than a year [802]*802before Bayou Fleet, filed its lawsuit.” On January 20, 2012, the trial court denied Bollinger’s Exception of Prescription.

After a seven-day bench trial, on December 18, 2014, the trial' court entered a final judgment against Bayou Fleet and in favor of Bollinger, dismissing Bayou Fleet’s sole conversion claim, with prejudice. The judgment also dismissed Bol-linger’s Reconventional Demand, with prejudice. ■ The trial court’s judgment taxed costs against Bayou Fleet. On December 18, 2014, the trial court issued its detailed Findings of Fact and Conclusions of Law. The trial court found that Bayou Fleet’s conversion claim was prescribed. The trial court further found that Bollinger was not entitled to storage fees because there was no proof at trial that Bayou Fleet owned the boom.

On June 10, 2015, the trial court entered a separate judgment ordering Bayou Fleet to reimburse Bollinger for costs in the amount of $19,794.50. The trial court denied Bollinger’s request for reimbursement of $29,866.61 in additional costs. These consolidated appeals followed.

|,.DISCUSSION

Standard of Review

When prescription is raised by peremptory exception, with evidence being introduced at the trial on the exception, the trial court’s findings bf fact on the issue of prescription are subject to the manifestly erroneous or clearly wrong standard. London Towne Condo. Home-owner’s Ass’n v. London Towne Co., 06-401, p. 4 (La.10/17/06), 939 So.2d 1227, 1231. Where the fact-finder’s conclusions are based on determinations regarding the credibility of the witnesses, the manifest error standard demands great deference to the trier of fact because only the trier of fact 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. Daniels v. Burridge, 00-1089, p. 3 (La.App. 4 Cir. 3/21/01), 785 So.2d 906, 909. The reviewing court must always keep in mind that if a trier of fact’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even if convinced that if it had been sitting as trier of fact, it would have weighed the evidence differently. Id.

Trial Court’s Adoption of One Party’s Proposed Findings of Fact and Conclusions of Law

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Bluebook (online)
197 So. 3d 797, 2015 La.App. 4 Cir. 0487, 2016 La. App. LEXIS 1418, 2016 WL 3959214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bayou-fleet-inc-v-bollinger-shipyards-inc-lactapp-2016.