Boone v. Top Dollar Pawn Shop of Bossier, LLC

188 So. 3d 1093, 2016 La. App. LEXIS 329, 2016 WL 740297
CourtLouisiana Court of Appeal
DecidedFebruary 24, 2016
DocketNo. 50,493-CA
StatusPublished
Cited by7 cases

This text of 188 So. 3d 1093 (Boone v. Top Dollar Pawn Shop of Bossier, LLC) 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
Boone v. Top Dollar Pawn Shop of Bossier, LLC, 188 So. 3d 1093, 2016 La. App. LEXIS 329, 2016 WL 740297 (La. Ct. App. 2016).

Opinion

PITMAN, J.

11 Defendant Top Dollar Pawn Shop of Bossier, LLC, appeals the judgment of the trial court rendered in favor of Plaintiff Betty Boone in the amount of $14,000 in damages, plus legal interest from the date of judicial demand and all costs, and the order to pay expert witness fees of $1,175. For the following reasons, we affirm.

FACTS

In June and September 2018, Plaintiff made two separate loans with Defendant, one in the amount of $425 (with a total amount due of $595), and the other in the amount of $500 (with a total- amount due of $800). The total of the two loans was $1,395. In return for these loans, Plaintiff was required to pledge certain items of her jewelry, which were described, on the pawn tickets. The first transaction took place on June 10, 2013, and the tieket describes the same jewelry in two separate locations asfollows:

1. Cluster diamonds 19, scrap .gold pieces, diamonds four flours (sic), gold rope bracelet tanzanite ring; and
2. Diamonds four flowers, gold roped bracelet, cluster diamonds 19 diamonds, tanzinite (sic) ring with,four diamonds and black coral on the1

The second transaction took place on September 16, 2013, and the pawn ticket describes the jewelry as follows:

14KT 29.8 scrap gold pieces 2 gold rings and gold necklace.

Plaintiff made some payments and interest on the first loan and attempted • to retrieve the pawned jewelry, but was informed by Defendant that it was no longer at the pawn shop. Defendant frozé the second loan and | ¿would not accept' further payment from’ Plaintiff since the pawned jewelry could no longer be found.

Plaintiff filed.suit to recover the valúe of the missing jewelry and alleged that she had owned the. jewelry in. excess of 20 years and that it had great sentimental value because some of it- belonged to her deceased husband. She also alleged that she had paid off the first loan of $595 when she attempted to retrieve her jewelry, but the jewelry was never returned to her. She claimed that Defendant violated La. R.S. 37:1804(6) and (9) in that it failed to exercise reasonable care to protect her pledged jewelry and failed to return the [1096]*1096pledged items after she paid the loans. For these reasons, she asserted that she was entitled to a money judgment against Defendant for the replacement of the jewelry.

A trial was held, and Plaintiff testified that some of the jewelry she pledged had belonged to her late husband. She stated that her late husband had given some of the pieces to her son, who had later given them to her. She further testified regarding payment of the first loan, the loss of the jewelry and the freezing of the second loan.

Plaintiff introduced the testimony of Mr. Ralph Forrester, an expert in the field of jewelry appraisals and gemology, who stated that the replacement value of the jewelry was $27,500 and the fair market value was $19,300. He based his opinion on conversations he had with Plaintiff regarding the description of the jewelry, his review of photographs of the jewelry, his knowledge of this type of jewelry commonly sold in the marketplace and his contact with other jewelers in the area concerning these | ¡¡particular pieces of jewelry. Internet printouts of allegedly similar jewelry and third-party invoices from a retailer, Service Merchandise, were introduced into evidence, but no one from the retailer appeared and testified as to their authenticity. Mr. Forrester testified that his expert witness fee is $125 per hour, with a four-hour minimum. He testified for one hour. He also submitted a $425 invoice for rendering his appraisals.

Defendant objected to Mr. Forrester being accepted as an expert due to alleged flaws in his methodology, the rendering of a hypothetical appraisal and the lack of an actual examination of the subject property. Defendant claimed that Mr. Forrester’s opinion was based upon assumed facts not supported by the record or by sufficient facts or data.

Following the testimony, Defendant’s attorney argued that Plaintiff had admitted that she was not the owner of all of the jewelry; therefore, she could not have rightfully pledged it. The trial court summarily dismissed this argument, stating that, clearly, Plaintiff had received the jewelry following her husband’s death, either directly from her husband or from her son. Either way, the trial court opined that the jewelry was hers to pledge and orally ruled that it found Defendant liable to Plaintiff for the loss of the jewelry. It ordered that post-trial briefs be filed regarding the amount of damages due Plaintiff.

After considering the post-trial briefs, the trial court rendered judgment in favor of Plaintiff in the amount of $14,000 for the replacement of the jewelry and expert witness fees of $1,175. Defendant filed this appeal seeking review of that judgment. Plaintiff answered the appeal, | ¿claiming that the amount awarded by the trial court should be increased to $27,500, or, in the alternative, to $19,300.

After this appeal was filed, Defendant filed an exception of no right of action based on its assertion that Plaintiff did not have ownership of all of the jewelry and, thus, could not have legally pledged it. Defendant claimed that the sworn descriptive list in the succession of Plaintiffs husband does not list the items of jewelry pledged by Plaintiff. In opposition to the exception, Plaintiff argues that she was the owner of the jewelry by virtue of her husband’s death and the gifts from her son.2

[1097]*1097 DISCUSSION

Objection of No Bight of Action

An exception of no right of action may be first filed in the appellate court. La. C.C.P. art. 2163. The function of the exception is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Hood v. Cotter, 08-0215 (La.12/2/08), 5 So.3d 819. La. C.C.P. art. 681 provides, “Except as otherwise provided by law, an action can only be brought by a person having a real and actual interest which he asserts.”

The Louisiana Civil Code articles concerning pledges provide that one can only pledge that which belongs to him and can only confer the rights in the thing pledged that he had himself. La. C.C. art. 3151. A pledge given over a thing that the pled-gor does not own is established when |Bthe thing is acquired by the pledgor and the other requirements for the establishment of the pledge have been satisfied. La. C.C. arts. 3152.

At the trial on the merits, Plaintiffs testimony indicated that some of the items were hers and some were her husband’s prior to his death. Upon his death, she retained possession of all of the jewelry. Despite the fact that the jewelry was not listed on the sworn descriptive list of Mr. Boone’s succession, Plaintiff clearly was the owner of the various items of jewelry on the date she pledged them since no evidence was presented to the contrary.

For these reasons, we find that Defendant’s exception of no right of action, filed after the trial concluded, is without merit.

Judgment on the merits

La. R.S. 37:1804(9) states that a pawnbroker shall not:

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188 So. 3d 1093, 2016 La. App. LEXIS 329, 2016 WL 740297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boone-v-top-dollar-pawn-shop-of-bossier-llc-lactapp-2016.