Fenner v. Schley

246 So. 3d 770
CourtLouisiana Court of Appeal
DecidedMarch 14, 2018
DocketNo. 51,842–CA
StatusPublished
Cited by4 cases

This text of 246 So. 3d 770 (Fenner v. Schley) 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
Fenner v. Schley, 246 So. 3d 770 (La. Ct. App. 2018).

Opinion

WILLIAMS, J.

The plaintiff, Gary Fenner, appeals a judgment that awarded him $3,500 in damages and denied his claim for attorney fees and expert witness fees. For the following reasons, we affirm the trial court's determination that the defendant was liable to the plaintiff for conversion; we affirm the court's conclusion that the plaintiff is not entitled to attorney fees and expert witness fees; we vacate the trial court's award of damages; and we remand with instructions.

FACTS

On February 29, 2016, the plaintiff, Gary Fenner, and the defendant, Kyndal Schley, entered into a Real Estate Buy/Sell Agreement whereby the plaintiff agreed to sell the defendant a parcel of immovable property in Belcher, Louisiana. The agreement provided that the "[p]roperty being purchased includes all land, all buildings, component parts and permanently installed improvements thereon, including fencing, unless otherwise stated[.]" The buy/sell agreement also contained a provision for reasonable attorney fees and expert witness fees "[i]in the event of non-performance by either Party[.]"

The property did not include a residence. However, it contained a barn and a shed which were included in the appraisal and purchase price of the property. Further, a custom-made 1,000-gallon fuel tank had been placed on the property. The fuel tank was on "skidders" to allow it to be moved from one location to another, was secured by metal stakes that had been inserted into the ground, and it contained an electrical wire that was connected to an electrical junction box attached to a "chicken coop." The plaintiff had purchased the fuel tank in 2009 for $14,486.53.

On the day of the closing, the plaintiff informed the defendant that he had not removed all of his belongings from the property and that he would "need a few days" to retrieve them. The defendant agreed to allow the plaintiff time to remove his items. Two days later, the defendant went to the property and noticed that the shed, which was included in the purchase, had been removed. However, the fuel tank and multiple other items (including two dogs and "stuff" in the barn) remained *772on the property. After consulting with her realtor, the defendant demanded that the plaintiff either return the shed or pay her its replacement value. The plaintiff returned the shed and continued removing his belongings from the property. Subsequently, when the plaintiff went to the property to retrieve the fuel tank, a lock had been placed on the gate and he was unable to enter the property. Initially, the defendant testified that she believed the tank was included in the purchase of the property and that it belonged to her. She later stated that she decided to keep the fuel tank because the plaintiff "was dragging his feet on returning [the shed]." The plaintiff's attempts to regain possession of the fuel tank were unsuccessful.

Thereafter, Josh Schley, the defendant's husband, listed the fuel tank for sale on Craigslist for $1,000. Schley testified that he determined the value of the fuel tank by "research[ing] the value of similar products ... on the Internet through Google and other search engines for similar products." He stated that he decided to lower the price and sold the tank to an acquaintance for $800.

On July 5, 2016, the plaintiff filed a lawsuit for "Damages Based Upon Conversion." The plaintiff alleged that the fuel tank was not included in the real estate transaction and that the defendant had "converted, misappropriated, and refused to allow [him] to take possession of his property." Further, the plaintiff alleged that he was entitled to attorney fees in accordance with the buy/sell agreement.

At trial, several witnesses testified. However, only the fuel tank's manufacturer, Kenneth Hudson, of Kenny Hudson Construction, LLC, testified with regard to its value. Hudson, who was accepted by the trial court as an expert in construction, testified as follows: he owns and operates a construction company; he manufactured, constructed and delivered the fuel tank to the plaintiff in 2009; manufacturing fuel tanks is not a task he performs in his normal course of business; the fuel tank was a "custom" tank that he constructed from steel at the plaintiff's request; the tank was "an oilfield service tank" and was "built with a lot heavier material" than regular tanks; the tank was placed on two I-beam skids to allow it to be moved with a truck or tractor; the tank was not meant to be mounted to the ground; the total invoice price of the tank was $14,486.53; the cost of the materials used to manufacture the tank was $7,286.53, the cost of labor was $6,800, and the delivery charge was $400; due to rising costs in the industry, it would cost more than $14,000 to manufacture a similar tank in today's market; and $10,000 would be a reasonable price to pay for a used eight-year-old custom-made fuel tank.

On cross-examination, Hudson testified that it took approximately two months to construct the fuel tank. When he delivered the tank, he gave the plaintiff an invoice, and the plaintiff paid him with a check. During Hudson's direct testimony, the plaintiff had introduced an invoice from Kenny Hudson Construction, LLC, which indicated that the fuel tank had been purchased for $14,486.53. Thereafter, counsel for the defendant asked Hudson how he could have given the invoice to the plaintiff in 2009, when Kenny Hudson Construction, LLC, was not organized as a business entity until 2012. Hudson explained that he had been operating the construction company and performing jobs long before he formally received a tax identification number and filed the documents to form the limited liability company. He admitted that he was operating the company and issuing invoices in the name of "Kenny Hudson Construction, LLC" before he filed for limited liability status with the State of Texas. Hudson also testified that when he constructed *773the plaintiff's fuel tank, he was employed at a plant and was performing construction jobs "on the side." He reiterated that he was completing jobs and issuing invoices, despite not being "filed with the state."

At the conclusion of the trial, the trial court found that the fuel tank was a movable and was neither a component part nor a permanently installed improvement on the property. The court determined that the defendant was liable to the plaintiff for conversion and entered judgment in favor of the plaintiff in the amount of $3,500, "with interest from date of judicial demand and all costs of these proceedings." The court denied the plaintiff's request for attorney fees, finding that the provision for attorney fees in the contract "is inapplicable as said provision applies to the sale of the property, not the issue at hand[.]"

The plaintiff appeals.1

DISCUSSION

The plaintiff contends the trial court erred in awarding $3,500 in damages. He argues that the evidence unequivocally established that he paid $14,486.53 for the fuel tank and the current value of the tank exceeds $10,000.

The measure of damages for wrongful conversion is the return of the property, or if it cannot be returned, the value of the property at the time of conversion. Dual Drilling Co. v. Mills Equip. Invs., Inc. , 1998-0343 (La. 12/1/98), 721 So.2d 853 ; Noel v. Landry

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Bluebook (online)
246 So. 3d 770, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fenner-v-schley-lactapp-2018.