IV Waste, LLC v. Jim Hotard Properties, LLC

Opinion

IV WASTE, LLC * NO. 2023-CA-0610

VERSUS * COURT OF APPEAL JIM HOTARD PROPERTIES, * LLC FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 20-1108, DIVISION “A” Honorable William M. McGoey, Judge ****** Judge Dale N. Atkins ****** (Court composed of Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown, Judge Dale N. Atkins, Judge Rachael D. Johnson)

JENKINS, J. DISSENTS

Gregory J. Noto NOTO LAW FIRM 532 East Judge Perez Drive, Suite 102 Chalmette, LA 70043

COUNSEL FOR PLAINTIFF/APPELLEE, IV Waste, L.L.C.

Vallerie Lynn Oxner 3500 N. Hullen Street, Suite 17-A Metairie, LA 70005

COUNSEL FOR DEFENDANT/APPELLANT, Jim Hotard Properties, LLC

AFFIRMED IN PART; VACATED IN PART; AND REMANDED SEPTEMBER 17, 2024 DNA DLD

PAB

RDJ

This is a breach of contract action. Appellant, Jim Hotard Properties, LLC

(“Hotard Properties”), seeks review of the trial court’s July 12, 2023 judgment,

which held Hotard Properties liable to Appellee, IV Waste, LLC (“IV Waste”), for

breach of contract. Additionally, the July 12, 2023 judgment awarded $13,913 in

lost profits and consequential damages to IV Waste. The July 12, 2023 judgment

also awarded attorney fees to IV Waste, but the judgment did not specify the

amount and, instead, stated that it would be determined at a later date. For the

following reasons, we affirm the July 12, 2023 judgment in part; we vacate the

judgment in part; and we remand this matter for further proceedings consistent

with this Opinion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Petition for Damages

On October 5, 2020, IV Waste, filed a Petition for Damages (“Petition”) in

the Thirty-Fourth Judicial District Court for the Parish of St. Bernard, which

named Hotard Properties as the defendant. The Petition alleged that IV Waste and

Hotard Properties entered into “Standard Services Contracts for Non-Hazardous

Non-Industrial Waste” (collectively “Contracts”) on or around April 6, 2018, and

October 1, 2018, for properties located at 1434 St. Andrew Street, New Orleans, LA 70130 (“St. Andrew Street Property”) and 4028 Rye Street, Metairie, LA

70002 (“Rye Street Property”), respectively.1 IV Waste further alleged that these

contracts were each for five-year terms and that the contracts outlined an

agreement by which “IV Waste agreed to provide[] and [Hotard Properties] agreed

to accept certain equipment and services having to do with waste and debris

collection removal” (i.e., garbage pickup).

The Petition contended that “[t]he Contracts require[d] [Hotard Properties

to] provide proper ‘[a]ccess’ such that IV Waste [would be] able to perform its

obligations under the [C]ontract[s].” The Petition provided that Article I, Section

(e) of the Contracts was titled “Access,” and the Petition quoted that provision

(“Access Provision”) as stating:

Access. Customer grants Contract[or] a right of access to its designated equipment locations and warrants the sufficiency of such right of way over and between the public way and equipment locations. Customer acknowledges that it is directing Contractor to perform these activities, and that Customer warrants that Customer’s pavement, curbing, or other driving surface or any right of way reasonably necessary for Contractor to provide the services described herein are sufficient to bear the weight of all Contractor’s equipment and vehicles reasonably required to perform such services. Contractor will not be responsible for damage to any such pavement, curbing, driving surface or right of way, and Customer agrees to assume all liabilities for any such damages, which results from the weight of Contractor’s vehicles providing service at Customer’s location. Customer agrees to indemnify and hold harmless the Contractor for damage to private or public paving, curbing, aprons, or subsurface installations of any route used to perform the services covered by this Agreement. Customer may, at Contractor’s discretion, be assessed an

1 We note that IV Waste also alleged in the Petition that the parties entered a contract for the same equipment and services at 2217 Lapeyrouse Street, New Orleans, LA 70119 (“Lapeyrouse Property”). However, in the July 12, 2023 Judgment, the trial court found that the contracting entity relative to the Lapeyrouse Property, Elderly Housing of America, LLC, had not been named a party to the suit. Accordingly, the trial court concluded that the claims asserted by IV Waste as to the Lapeyrouse Property failed. The Lapeyrouse Property is not at issue in this appeal.

2 extra pick-up charge when said right of way is obstructed and prevents Contractor’s normal service.

Discussing the above Access Provision, IV Waste alleged that it “was damaged in

trying to perform its obligations under the [C]ontracts because of improper access

to” its waste collection containers at the St. Andrew Street and Rye Street

Properties and that the lack of proper access constituted a breach of the Contracts

by Hotard Properties. IV Waste further alleged that it had “made several attempts

to accommodate” Hotard Properties, yet “the continued improper access not only

prevented [IV Waste] from fully providing removal services, but caused significant

damages to IV Waste and it equipment.”

Photocopies of the Contracts

Attached to its Petition, IV Waste provided photocopies of the St. Andrew

Street Contract and the Rye Street Contract. Of note, the first page of the St.

Andrew Street Contract listed the monthly service charge as $105; and the first

page of the Rye Street Contract listed the monthly service charge as $75. The first

page of the St. Andrew Street Contract listed the start date as April 6, 2018, while

the first page of the Rye Street Contract listed the start date as October 2, 2018.

The first page of the Rye Street Contract contained a “One Time Fees” section,

which contained boxes to be checked off for delivery, removal, exchange, and lock

change fees. Though the box is checked off and a handwritten notation of “$50”

appears next to the delivery fee box, the box next to the $100 removal fee was not

selected.2 Additionally, the first page of the St. Andrew Street Contract contained a

handwritten notation that stated: “Driver can not [sic] pull truck on the property,

[container] must be wheeled to the street.”

2 The St. Andrew Street Contract did not contain a similar “One Time Fees”

section. 3 The first page of both Contracts provided that each property would have one

container. The second page of both Contracts contained “Article I – Specific

Provisions,” which included the above-quoted Access Provision, as well as a

provision titled “Default & Remedies” (“Default Provision”). The Default

Provision provided:

Customer is in default if payments are not made timely, fails to perform any obligation herein, makes an assignment for the benefit of creditors, or files a petition in bankruptcy. In the event of Customer’s default, Contractor may terminate this agreement without notice, demand, or legal process and shall have immediate access to remove any equipment provided pursuant to this Agreement without liability for any damages occasioned by the repossession. Customer is responsible for the costs and expenses of its default, and Contractor’s lost profits and consequential damages, including cost of collection and reasonable attorney[] fees. After notice, Contractor may immediately suspend or terminate service for failure to make any required payment on time until account is made current, without credit to the account balance.

Additionally, on the second page of the Contracts under Article I – Specific

Provisions, was a section titled “Term” (“Term Provision”). The Term Provision

stated: “Unless agreed in writing, this Agreement’s term is five (5) years from the

Service Commencement Date on the front and is renewed for successive . . . terms

unless either party gives a written termination notice by certified mail ninety (90)

days before a term’s expiration.”

November Letters

In addition to the photo copies of the Contracts, IV Waste attached a copy of

a letter dated November 11, 2019 regarding the St. Andrew Street Property

(“November St. Andrew Street Letter”) and a copy of a letter dated November 11,

2019 regarding the Rye Street Property (“November Rye Street Letter”)

(collectively “November Letters”). The November Letters were addressed to

Hotard Properties’ attorney and stated that IV Waste was “disappointed to learn 4 that [Hotard Properties] wishe[d] to continue [its] efforts to cancel [IV Waste’s]

services.” The November St. Andrew Street Letter explained that, as of the date of

the letter, the St. Andrew Street Contract had 41 months remaining until its

expiration. The November St. Andrew Street Letter stated that if Hotard Properties

continued in its efforts to cancel the St. Andrew Street Contract then “[l]iquidated

[d]amages in the amount of $4,735.50 plus . . . a container removal fee” would be

assessed against Hotard Properties. The November St. Andrew Street Letter

detailed the damages allegedly owed in the following manner:

Current Rate x 41 months = $4,735.00 Container Removal Fee $150.00 per [container] = $150.00 TOTAL . . . AMOUNT DUE TO IV Waste LLC = $9,885.50

Similarly, the November Rye Street Letter explained that, as of the date of

the letter, the Rye Street Contract had 47 months remaining until its expiration.

The November Rye Street Letter stated that if Hotard Properties continued in its

efforts to cancel the Rye Street Contract then “[l]iquidated [d]amages in the

amount of $4,027.50 plus . . . a container removal fee” would be assessed against

Hotard Properties. The November Rye Street Letter detailed the damages allegedly

owed in the following manner:

Current Rate x 41 Months[3] = $3,877.50 Container Removal Fee $150.00 per [container] = $150.00 TOTAL . . . AMOUNT DUE TO IV Waste LLC = $4,027.50

The November Letters ended by stating that if IV Waste did not hear from Hotard

Properties or receive payment of the above-detailed damages within ten days, IV

3 Though the body of the November Rye Street Letter stated that the Rye

Street Contract had 47 months remaining, the section that calculated the amount allegedly due to IV Waste stated that the Rye Street Contract had 41 months remaining.

5 Waste would assume that Hotard Properties had decided to continue to honor the

Contracts.

January Letter

IV Waste also attached to its Petition, a letter dated January 31, 2020

(“January Letter”), and sent by then-counsel for IV Waste to counsel for Hotard

Properties, which was titled “Notice of Cancellation of Contracts.”4 The January

Letter stated that it was “to serve as formal notice that [Hotard Properties] [was] in

breach of the . . . [C]ontracts and” that “due to [Hotard Properties’] breach, said

[C]ontracts [were] . . . cancelled.” Additionally, the January Letter quoted the

Access and Default Provisions from the Contracts, contending that the lack of

proper access to the containers constituted a breach of the Contracts. The January

Letter demanded liquidated damages (and detailed the amount allegedly owed) and

instructed Hotard Properties to notify IV Waste by February 7, 2020, if it was

willing to pay the liquidated damages.

February Letter

IV Waste attached another letter as an exhibit to its Petition. This letter,

which was dated February 12, 2020 (“February Letter”), reiterated that IV Waste’s

containers were “being placed in improper areas not in accordance with [the]

Contract[s].” The February Letter also stated that IV Waste had not received a

response to the January Letter and that “[r]egardless of the parties’ positions

concerning the breach of the . . . [C]ontracts, the parties appear to agree that the

contracts have been cancelled.” In closing, the February Letter explained that IV

Waste intended to pick up its containers from the St. Andrew Street and Rye Street

4 We note that the attorney who sent the January Letter on behalf of IV

Waste is not the same attorney representing IV Waste in this appeal. 6 Properties and that Hotard Properties’ failure to respond by the close of business

that same day would confirm that Hotard Properties did not object to IV Waste

picking up the containers.

Answer

On December 3, 2020, Hotard Properties filed its Answer to IV Waste’s

Petition, wherein Hotard Properties alleged that IV Waste was actually the party

who had breached the Contracts by failing to perform the services contracted for;

by picking up its equipment; by cancelling the Contracts; and by driving its trucks

on the properties in violation of the Contracts. In fact, Hotard Properties asserted

that IV Waste owed money for the damage done to the St. Andrew Street and Rye

Street Properties by IV Waste driving its trucks on the properties in violation of the

Contracts. Further, Hotard Properties contended in its Answer that Hotard

Properties had paid all amounts that were due to IV Waste under the Contracts.

Trial

On May 31, 2023, this matter proceeded to trial. IV Waste provided

testimony from Julie Tufaro (“Ms. Tufaro”); and Jim Hotard (“Mr. Hotard”)

testified on behalf of Hotard Properties. The trial centered on whether Hotard

Properties breached the Contracts as alleged by IV Waste and, if so, whether IV

Waste was entitled to damages, as well as attorney fees.

Testimony of Ms. Julie Tufaro

Ms. Tufaro testified that as general manager of IV Waste, she reported to IV

Waste’s owner, Sidney Torres, IV (“Mr. Torres IV”), and that her duties included

overseeing operations, managing customers with concerns or issues, and hiring and

firing staff. Ms. Tufaro stated that IV Waste’s standard contracts were for five

years with a five-year renewal option, which was the standard in the waste 7 collection business. When asked further why IV Waste’s standard contracts were

for five years in duration, Ms. Tufaro explained that this timeframe allowed IV

Waste to recoup its investment in the container provided to the customer. As to IV

Waste’s standard procedures for cancelling a contract, Ms. Tufaro testified, that

when a customer wished to cancel, the procedure under the contract was for the

customer to send a cancellation letter via certified mail at least 90 days prior to the

contract’s expiration. When asked whether anyone at IV Waste had the authority to

release a party from their contract early, Ms. Tufaro responded that only she and

Mr. Torres IV had the authority to do so.

Turning to the details of the Contracts at issue in this matter, counsel for IV

Waste showed photocopies of the Contracts to Ms. Tufaro. When asked if she

knew what happened to the original Contracts, Ms. Tufaro responded, “I do not,”

noting that the original Contracts had been signed five years prior. Nonetheless,

Ms. Tufaro discussed the Contracts, explaining that IV Waste and Hotard

Properties entered into the five-year Contracts to service waste containers at the St.

Andrew Street and Rye Street Properties, with the St. Andrew Street Contract

commencing in April 2018 and the Rye Street Contract commencing in October

2018. She further explained that the St. Andrew Street Contract was for a 4-yard

container with service once per week and the Rye Street Contract was for a 2-yard

container with service two times per week. The trial court admitted the photocopies

of the Contracts into evidence.

Ms. Tufaro also read the Default Provision of the Contracts aloud during her

testimony. When asked about “improper access” at the St. Andrew Street and Rye

Street Properties, Ms. Tufaro testified that IV Waste “went to service the

containers on a normal service day and the containers [were not] there for the 8 drivers to pick up and” that the driver “reported to the office that [the container]s

were not in their original location.” Ms. Tufaro explained that she did not

personally visit the St. Andrew Street and Rye Street Properties on the same date

the drivers first reported the containers missing; but she explained that the driver

took a timestamped photograph of the location of the missing container on each

property. Further, when asked the specific day the containers were missing, Ms.

Tufaro testified that the drivers went “multiple times” only to find that the

containers were missing. Ms. Tufaro stated that, at some point after the drivers

reported the containers missing, she visited the St. Andrew Street and Rye Street

Properties, at which point she also took photographs showing that the containers

were missing. However, Ms. Tufaro explained that she did not have either the

photographs that she had taken or the photographs that the drivers had taken with

her at the trial. Discussing Rye Street in particular, Ms. Tufaro testified that when

she visited the property, there was a blue container in the location where IV

Waste’s container should have been. Upon being asked when IV Waste picked up

the containers, Ms. Tufaro responded, “We did not pick up our [containers]. They

disappeared.”

Ms. Tufaro also testified about the November Letters, explaining that she

authored them and had already been in communication with Mr. Hotard about the

missing containers at the time she wrote the letters. Ms. Tufaro stated that the

November Letters were designed to “tak[e] the proper steps to . . . remind [Hotard

Properties of] the contract terms.” Additionally, Ms. Tufaro explained that she

calculated the damages listed in the November Letters by using the number of

months remaining on the contract and adding in a container removal fee.

9 Further, Ms. Tufaro testified about a meeting that she arranged between Mr.

Hotard and Sidney Torres V (“Mr. Torres V”) at another property located at Deer

Field Road (“Deer Field Road Property”)5 to discuss resolution of issues with the

pickup service there. Ms. Tufaro stated that she was present at the Deer Field Road

Property meeting, at which “[t]he final outcome was that IV Waste let Mr. Hotard

out of the Deer Field [Property] contract because there was no solution [Mr.

Hotard] would accept.” However, Ms. Tufaro clarified that at no time did IV

Waste agree to cancel the St. Andrew Street Contract and the Rye Street Contract.

Testimony of Mr. Jim Hotard

Mr. Hotard identified himself as the sole member of Hotard Properties.

Regarding the Rye Street Property, Mr. Hotard stated the container was located in

the front in a corral (fenced area) with a gate and was approximately 15 yards from

the street. Mr. Hotard explained that the container for the St. Andrew Street

Property was located in the back of the property; but, pursuant to the St. Andrew

Street Contract, Mr. Hotard stated that IV Waste was not permitted to drive onto

the property to access the container, and, instead, the container had to be wheeled

to the street for IV Waste to be able to access it. To this end, Mr. Hotard stated that

the container had always been wheeled to the street as required by the St. Andrew

Street Contract. Mr. Hotard testified that during the duration of the time IV Waste

serviced the St. Andrew Street Property and the Rye Street Property, nothing

changed in terms of where the containers were placed. He stated that nothing

interfered with IV Waste’s access to the containers and that Hotard Properties

never breached the Contracts.

5 The Deer Field Road Property is not at issue in this appeal.

10 Mr. Hotard also answered in the negative when asked whether he ever

cancelled the St. Andrew Street and Rye Street Contracts. Instead, he contended

that IV Waste cancelled the contracts during and following the meeting at the Deer

Field Road Property. Thereafter, the following colloquy occurred:

Q How did it come about that [IV Waste] cancel[l]ed the contracts- -these . . . contracts that we are talking about?

A I know Sidney Torres[6] was there and [I am] not sure if it was Julie Tufaro or Julie Ricks.[7] I apologize. I just [do not] remember. But my conversation was mostly with Sidney Torres. He was [a] very nice gentleman, and he said that the wheels are coming off of the [containers] and that I needed to start paying for them because [IV Waste] already repaired them twice and [was] not going to do that anymore. And I said, I [do not] want to pay for the wheels. You need to put a more aggressive wheel[,] a bigger wheel or suggested maybe using a metal plate and they slide down the curbs to load the truck, and he said that they are going to cancel the contracts. And I said no, I have a contract. I [do not] want to cancel the contracts. He said, no, we are going to pick up our [containers]. And we were texting back and forth after that when he said pick up the [containers] . . . .

I said, well, I have to go find another company. This is not going to be easy. And he said, [w]ell, [I will] give you more time.

....

Q But IV Waste came and picked up the [containers]?

A Yes, they were gone.

Counsel for Hotard Properties then asked Mr. Hotard whether he had moved the

containers (as opposed to IV Waste picking them up), and Mr. Hotard responded

that he had not moved the containers.

6 In his testimony, Mr. Hotard did not specify if this was Mr. Torres IV or

Mr. Torres V; but, based on Ms. Tufaro’s testimony, Mr. Torres V was the one present at the Deer Field Road Property meeting. 7 Ms. Julie Ricks is not identified in the record. Again, however, based on

Ms. Tufaro’s testimony, she was the one present at the Deer Field Road Property, not Julie Ricks. 11 Counsel for Hotard Properties showed Mr. Hotard an exhibit, which was a

screenshot photograph of an October 1, 2019 text message conversation between

Mr. Hotard and Mr. Torres V (“October Text Conversation”). Mr. Hotard read

aloud a text message he received during the October Text Conversation as follows:

“Jim, we are terminating the [contract][.] [W]e are going to pick up the

[containers]. [I]f we can help you with anything further, please let me know. Thank

you.” Mr. Hotard testified that he then sent a “thumbs up,” in response, to which

Mr. Torres V asked, “Does that mean we can take [the containers]?” Mr. Hotard

explained that he again sent a “thumbs up” in response. When asked whether the

October Text Conversation pertained to all of Hotard Properties’ contracts with IV

Waste (i.e., the St. Andrew Street Contract, the Rye Street Contract, and the Deer

Field Road Contract), Mr. Hotard responded in the affirmative. Mr. Hotard

testified that, as he understood it, IV Waste cancelled the St. Andrew Street

Contract, the Rye Street Contract, and the Deer Field Road Contract in the October

Text Conversation. On cross-examination, counsel for IV Waste asked Mr. Hotard

about the fact that the text message used the word “contract” (i.e., singular), and

counsel for IV Waste stated, “[That is] referring to one contract. Is that what it

says?” Mr. Hotard responded, “[I am] not sure what [it is] referring to [sic].”

July 12, 2023 Judgment

The trial court signed a judgment on July 13, 2023, which stated, in pertinent

part:

After reviewing the record, evidence presented at trial, post-trial memoranda, and the applicable law, this court finds the following[:]

....

That the plaintiff has met its burden of proof with regard to [the St. Andrew Street and Rye Street Properties][.] The court finds that 12 defendant Jim Hotard Properties, LLC[,] is liable for breach of contract[.]

IT IS HEREBY ORDERED that Jim Hotard Properties, LLC[,] is liable to plaintiff IV Waste in the amount of $13,913 in lost profits, and consequential damages[.] [Jim Hotard Properties] must also pay reasonable attorney[] fees[.]

....

IT IS FURTHER ORDERED that a hearing is set for August 17, 2023[,] at 9[:]30 [a.m.] to determine the amount of reasonable attorney[] fees to be awarded to the plaintiff[.8]

IT IS FURTHER ORDERED this is the final judgment of the Court[.]

Thereafter, Hotard Properties timely filed its appeal with this Court.

ASSIGNMENTS OF ERROR

On appeal, Hotard Properties assigns four errors to the trial court’s July 12,

2023 judgment. Specifically, Hotard Properties contends:

1. The trial court erred in admitting photocopies of the service contracts rather than requiring [IV Waste] to produce the original contracts.

2. The trial court erred in finding that [IV Waste] had met its burden of proof as to breach of contract.

3. The trial court erred in awarding [IV Waste] liquidated damages when the contracts did not provide for liquidated damages and when [IV Waste] did not meet its burden of proof as to damages.

4. The trial court erred in finding [Hotard Properties] liable for damages after the contract had been cancelled by [IV Waste].

Before turning to the merits of these assignments of error, we address a

preliminary matter.

8 As will be discussed later in this Opinion, the record reveals that the trial court ultimately cancelled the August 17, 2023 hearing upon Hotard Properties filing the instant appeal.

13 PRELIMINARY MATTER/JURISDICTION

Attorney Fees Awarded but Not Set in Judgment

“Before addressing the merits of an appeal, appellate courts have a duty to

determine sua sponte whether a valid, final judgment properly invoked their

appellate jurisdiction.” LZM Props., LLC v. Priv. Connection Prop., Inc., 2023-

0707, 0708, p. 12 (La. App. 4 Cir. 4/25/24), ___ So.3d ___, ___, 2024 WL

1793245, at *6 (citing Safford v. New Orleans Fire Dep’t, 2023-0495, p. 18 (La.

App. 4 Cir. 2/1/24), 384 So.3d 909, 925-26). The July 12, 2023 judgment ordered

Hotard Properties to pay reasonable attorney fees to IV Waste, but the judgment

did not specify the amount of those fees. Instead, the judgment set a hearing for

August 17, 2023, to determine the amount of reasonable attorney fees. Upon

Hotard Properties filing this appeal, however, the trial court postponed the hearing

on attorney fees without date. As such, the trial court has not yet determined the

attorney fees in this case.

Louisiana Code of Civil Procedure Article 2088 is titled “Divesting of

jurisdiction of trial court.” It states, in relevant part:

A. The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to do any of the following:

....

(10) Set and tax costs, expert witness fees, and attorney fees.

La. C.C.P. art. 2088(A)(10).

14 As this Court recently explained, “[i]n 2021, the Louisiana Legislature

amended La. C.C.P. art. 2088(A)(10) to ‘clarif[y] that the trial court retains

jurisdiction for purposes of setting attorney fees after an appeal has been taken

from the initial judgment.’” LZM Props., LLC, 2023-0707, 0708, p. 13, ___ So.3d

at ___, 2024 WL 1793245, at *6 (second alteration in original) (quoting La. C.C.P.

art. 2088(A)(1), Comments 2021, comment (a)). The reason the Louisiana

Legislature so amended La. C.C.P. art. 2088(A)(10) “is because ‘[t]rial courts

award reasonable attorney fees in many judgments, but often these judgments are

appealed before the attorney fees are set.’” Id. (alteration in original). With the

2021 amendment, however, “it is no longer necessary for an appellate court to

dismiss an appeal in order to allow the trial court to set the amount of the attorney

fees, because the trial court has jurisdiction to set attorney fees while the appeal is

pending.” Id. (finding that this Court’s jurisdiction was not affected when the

judgment awarded attorney fees but did not set the amount of the fees). See also

Raymond v. Lasserre, 2022-0793, p. 13 (La. App. 1 Cir. 3/6/23), 368 So.3d 82, 93

(holding that the trial court did not have jurisdiction to grant the plaintiff’s request

to set attorney fees incurred at the trial court and that “this request is more properly

directed to the trial court” because the trial court retained jurisdiction while the

appeal was pending to set attorney fees); Benoist v. Jackson Nat’l Life Ins. Co.,

2022-0879, p. 4 (La. App. 1 Cir. 3/1/23), 362 So.3d 957, 961 (holding that “the

judgment awarding attorney fees and costs in an indefinite amount did not divest

the trial court of jurisdiction to determine, after a hearing and consideration of

evidence, the actual amount to be awarded as attorney fees and costs” per La.

C.C.P. art. 2088(A)(10)); Locke v. MADCON Corp., 2022-0630, pp. 5-6 (La. App.

1 Cir. 12/22/22), 360 So.3d 519, 523 (finding the subject judgment “to be precise, 15 definite, and certain for purposes of constituting a valid, final judgment on appeal”

even though the trial court left to be determined the costs of the proceeding

because the trial court retained jurisdiction pursuant to La. C.C.P. art. 2088(A)(10)

(citing Advanced Leveling & Concrete Sols. v. Lathan Co., 2017-1250, p. 4 (La.

App. 1 Cir. 12/20/18), 268 So.3d 1044, 1046)).

In Raymond, the Louisiana First Circuit Court of Appeal specifically noted

that “the present version of [La.] C.C.P. art. 2088(A)(10) . . . requires the appellate

court to treat a judgment as final even though it awards attorney fees but fails to set

the amount of attorney fees.” 2022-0793, p. 14, 368 So.3d at 93 n.6. Accordingly,

the fact that the trial court’s July 12, 2023 judgment did not set the amount of

attorney fees to be awarded to IV Waste does not affect this Court’s jurisdiction.

As amended, La. C.C.P. art. 2088(A)(10) requires us to treat this as final judgment

even though it awarded attorney fees but failed to set the amount of those fees.

Having determined that a valid, final judgment properly invoked our appellate

jurisdiction, we next turn to the standards of review applicable in this matter.

STANDARDS OF REVIEW

Hotard Properties, by its assignments of error, presents multiple issues

which require different standards of review. For ease of discussion and the flow of

this Opinion, we address the applicable standards of review in this part of the

Opinion prior to our analysis of the issues.

In its first assignment of error, Hotard Properties argues the trial court erred

in admitting into evidence the photocopied duplicates of the contracts. As to the

admission or exclusion of evidence, this Court has previously explained that “[a]

trial court is afforded great discretion concerning the admission of evidence” at

trial, “and its decision to admit or exclude evidence may not be reversed on appeal 16 in the absence of abuse of that discretion.” Robert v. State through Governor Div.

of Admin., 2023-0397, p. 17 (La. App. 4 Cir. 12/6/23), 381 So.3d 715, 729-30

(quoting Alfred Conhagen, Inc. of La. v. Ruhrpumpen, Inc., 2021-0396, 0397, p. 5

(La. App. 4 Cir. 4/13/22), 338 So.3d 55, 62). Further, the abuse of discretion

standard of review for the admissibility of evidence has been explained by this

Court in Youngblood v. Hampton as follows:

The abuse of discretion standard is highly deferential to the trial court unless the court exercised its discretion based upon an erroneous view of the law or a clearly erroneous view of the facts. Tran v. Collins, [20]20-0246, p. 5 (La. App. 4 Cir. 8/20/21), 326 So.3d 1274, 1279 (citing Show & Tell of New Orleans, L.L.C. v. Fellowship Missionary Baptist Church, [20]14-0843, p. 2 (La. App. 4 Cir. 12/17/14), 156 So.3d 1234, 1237). If an appellate court finds the trial court erred in its decision to admit or exclude evidence, the appellate court must evaluate whether the errors, cumulatively, are prejudicial to the extent they constitute reversible error. Lovecchio v. Romain, [20]19-0779, [0864, 0865,] p. 11 (La. App. 3 Cir. 3/25/20), 364 So.3d 202, 211.

2022-0202, pp. 9-10 (La. App. 4 Cir. 12/9/22), 367 So.3d 676, 684.

In its second assignment of error, Hotard Properties contends that the trial

court erred in finding that IV Waste met its burden of proving breach of contract.

Hotard Properties’ third and fourth assignments of error also relate to the trial

court’s finding that IV Waste met its burden of proving that Hotard Properties

breached their Contracts. In discussing the standard of review concerning a trial

court’s finding of breach of contract, this Court has previously held that “[a] trier

of fact’s factual conclusions respecting a breach of contract claim are governed by

the manifest error or clearly wrong standard of review.” Brenner v. Zaleski, 2014-

1323, p. 3 (La. App. 4 Cir. 6/3/15), 174 So.3d 76, 79 (citing Tarifa v. Riess, 2002-

1179, p. 10 (La. App. 4 Cir. 5/7/03), 856 So.2d 21, 27). See also Wolfe v. Hamdan,

2014-0974, p. 4 (La. App. 4 Cir. 6/24/15), 171 So.3d 1154, 1157. This Court has

established that, under the manifest error or clearly wrong standard of review, 17 “[w]here there is conflict in the testimony, reasonable evaluations of credibility

and reasonable inferences of fact should not be disturbed upon review, even though

the appellate court may feel that its own evaluations and inferences are as

reasonable.” Ratliff v. LSU Bd. of Supervisors, 2009-0012, 0013, 0014, p. 6 (La.

App. 4 Cir. 5/7/10), 38 So.3d 1068, 1074 (citing Foley v. Entergy La., Inc., 2006-

0983, p. 10 (La. 11/29/06), 946 So.2d 144, 153). See also Inter City Express, Inc.

v. Mallory Grp., Inc., 2006-1340 (La. App. 4 Cir. 5/16/07), 2007 WL 7711153, at

*2 (holding that “reasonable evaluations of credibility and reasonable inferences of

fact should not be disturbed” when there is a conflict in the testimony (citing

Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989))). However, this Court has held

that “if the trial court makes a legal error that interdicts the fact-finding process,

the appellate court must conduct a de novo review of the record.” 1100 S. Jefferson

Davis Parkway, LLC v. Williams, 2014-1326, p. 3, 165 So.3d 1211, 1215 (citing

Dejoie v. Guidry, 2010-1542, p. 14 (La. App. 4 Cir. 7/13/11), 71 So.3d 1111,

1120).

With these standards of review in mind, we next turn to discussion of the

issues.

DISCUSSION

Assignment of Error Number One: Admissibility of the Photocopies of the Contracts

As stated previously, in its first assignment of error, Hotard Properties

asserts that the trial court erred in admitting into evidence the photocopied

duplicates of the Contracts. Hotard Properties contends that the duplicates are

illegible and that without the original Contracts, there was no way for the trial

court to determine what Hotard Properties’ obligations were and what constituted a

18 breach of those obligations under the Contracts. Accordingly, Hotard Properties

contends that the trial court should have dismissed IV Waste’s Petition due to IV

Waste’s failure to produce the original Contracts because the Contracts were the

basis of IV Waste’s claims in its Petition. As previously discussed under the

Standards of Review section of this Opinion, this Court will not reverse the trial

court’s evidentiary determination absent a finding of abuse of discretion.

“[A]n original document is generally required to prove the content[s] of a

writing.” Miss Bee’s Snoworld, LLC v. Guidry, 2020-0946, p. 11 (La. App. 1 Cir.

6/18/21), 328 So.3d 477, 484 (citing La. C.E. art. 1002). That is, under La. C.E.

art. 1002, “[t]o prove the content[s] of a writing, recording, or photograph, the

original writing, recording, or photograph is required, except as otherwise provided

by [the Code of Evidence] or other legislation.” Commonly referred to as the “best

evidence” rule, La. C.E. art. 1002 “is to be applied sensibly and with reason.” State

v. Vice, 2022-512, p. 9 (La. App. 3 Cir. 4/19/23), 365 So.3d 155, 162 (quoting

State v. Jackson, 30,473, pp. 13-14 (La. App. 2 Cir. 5/13/98), 714 So.2d 87, 95-

96). See also State in Interest of K.B., 2023-0409, p. 28 (La. App. 4 Cir. 9/26/23),

372 So.3d 864, 883 (referring to La. C.E. art. 1002 as the best evidence rule)

(quoting State v. Mattire, 2011-2390 (La. App. 1 Cir. 9/21/12), 2012 WL 4335432,

at *9). If the original is unavailable, then copies are admissible under certain

circumstances. To this end, La. C.E. art. 1003 provides:

A duplicate is admissible to the same extent as an original unless:

(1) A genuine question is raised as to the authenticity of the original;

(2) In the circumstances it would be unfair to admit the duplicate in lieu of the original; or

19 (3) The original is a testament offered for probate, a contract on which the claim or defense is based, or is otherwise closely related to a controlling issue.

As La. C.E. art. 1003(3) states, a duplicate is not admissible to the same extent as

an original if it pertains to “a contract on which the claim or defense is based.”

In interpreting La. C.E. art. 1003(3), however, the Louisiana Supreme Court

has explained that even “[w]hen a duplicate is inadmissible under [La. C.E. art.

1003], it may nevertheless be admissible under [La. C.E. art.] 1004.” In re

Succession of Morgan, 2022-01763, p. 4, 370 So.3d 399, 402 (quoting La. C.E. art.

1003, comment (a)). This is because La. C.E. art. 1004 “sets out the exceptions to

the general rule that the original writing is required to prove the contents of a

writing,” i.e., La. C.E. art. 1003. Chauvin v. Jefferson Par. Sch. Bd., 595 So.2d

728, 730 (La. App. 5th Cir. 1992). Louisiana Code of Evidence Article 1004

provides, in pertinent part:

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:

(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;

(2) Original not obtainable. No original can be obtained by any available judicial process or procedure;

....

(5) Impracticality of producing original. The original, because of its location, permanent fixture, or otherwise, cannot as a practical matter be produced in court; or the cost or other consideration to be incurred in securing the original is prohibitive and it appears that a copy will serve the evidentiary purpose.

For its admission into evidence, the proponent of a duplicate must first

establish an excuse for non-production of the original under La. C.E. art. 1004,

e.g., if the original has been lost or destroyed. In re Succession of Morgan, 2022- 20 01763, p. 4, 370 So.3d at 402 (citing La. C.E. art. 1003, comment (b)); La. C.E. art.

1004(1). Thus, according to the Louisiana Supreme Court, “an excuse for non-

production of an original under La. C.E. art. 1004 . . . enables a proponent of a lost

or destroyed [original] to rely on a duplicate which would otherwise be prohibited

under La. C.E. art. 1003(3).” In re Succession of Morgan, 2022-01763, pp. 4-5,

370 So.3d at 402.9 In interpreting La. C.E. arts. 1003 and 1004, Louisiana courts

have concluded in contract cases that “the original is not required and other

evidence of the contents of a writing, recording, or photograph is admissible if all

originals are lost or have been destroyed, unless the proponent lost or destroyed

them in bad faith.” Miss Bee’s Snoworld, LLC, 2020-0946, p. 11, 328 So.3d at 484

(citing Evans v. Graves Pontiac-Buick-GMC Truck, Inc., 576 So.2d 1025, 1027-28

(La. App. 1st Cir. 1991)). Therefore, if a “trial court [finds] that the original

contract was lost, stolen, or destroyed (for which finding there is factual support),

parol[] evidence [i]s permissible to prove its . . . contents.” Id. (citing In re

Succession of Etienne, 2012-1120, p. 5 (La. App. 4 Cir. 6/5/13), 118 So.3d 1224,

1226).

Here, Hotard Properties challenges the admissibility of the photocopies of

the contracts, asserting that the fine print is illegible and that even Ms. Tufaro was

unable to make out words when asked to read from the Contracts during her

9 We note that in In re Succession of Morgan, the Louisiana Supreme Court

considered the trial court’s decision to admit into evidence an unsigned copy of a lost notarial testament. Though that case concerned a testament rather than a contract as in the matter sub judice, we find the Louisiana Supreme Court’s analysis applicable. Louisiana Code of Evidence Article 1003(3) lists both testaments and contracts as circumstances in which a duplicate is not admissible to the same extent as the original. Nonetheless, the Louisiana Supreme Court explained that La. C.E. art. 1004 provides an avenue by which a proponent of a lost or destroyed testament can rely on a duplicate which would otherwise be prohibited under La. C.E. art. 1003(3). 21 testimony at trial. To this end, Hotard Properties contends that “[w]ithout the

original, there is simply no way to prove the contents of the contract.” However,

we disagree that there was no way to prove the contents of these Contracts without

the originals. In fact, Ms. Tufaro testified as to certain aspects of the contents of

the Contracts. In particular, she stated that IV Waste’s standard service agreement

is for five-years with a five-year renewal option. When counsel for IV Waste

showed Ms. Tufaro a copy of the Rye Street Contract, she identified it as IV

Waste’s standard service agreement but specified that it pertained to the Rye Street

Property and listed the container size and pick-up frequency for that property.

Then, when counsel for IV Waste showed Ms. Tufaro a copy of the St. Andrew

Street Contract, she identified it as IV Waste’s standard service agreement but

specified that it pertained to the St. Andrew Street Property and listed the container

size and pick-up frequency for that property. Further, Ms. Tufaro read aloud the

Default Provision from one of the Contracts, and, according to her testimony, it

stated, in pertinent part, that the customer would be in default if the customer failed

to perform any obligations delineated in the contract. Regarding the originals of the

Rye Street and St. Andrew Street Contracts, Ms. Tufaro stated that she did not

know what happened to them, noting that the Contracts were years old (five years

old by the time of trial).

Moreover, we disagree with Hotard Properties’ contention that the

photocopies are entirely illegible: in particular, this Court can ascertain the

important aspects of the Access, Default, and Term Provisions of the Contracts, all

of which are relevant to whether a breach of contract occurred in this matter and

whether IV Waste proved its damages (as will be more fully discussed throughout

this Opinion). Based on Ms. Tufaro’s testimony that she was unaware what 22 happened to the original contracts (i.e., that they were lost) and our determination

that the relevant portions of the photocopies of the Contracts are legible anyway,

we conclude that the trial court did not abuse its discretion in permitting IV Waste

to introduce the photocopies of the Contracts into evidence per La. C.E. art. 1004.

Assignment of Error Number Two: Breach of Contract

In its second assignment of error, Hotard Properties asserts that “[t]he trial

court erred in finding that [IV Waste] met its burden of proof as to breach of

contract.” Specifically, Hotard Properties contends that although IV Waste’s

Petition alleged breach of contract on the basis of lack of proper access, “at the

trial on the merits, not a single piece of evidence was introduced by IV Waste on

the issue of improper access.” Hotard Properties asserts that the only information

about an alleged breach came from Ms. Tufaro’s testimony, yet IV Waste “had no

corroborating evidence to support [her] testimony,” such as records, and did not

“provide dates when this alleged breach occurred.” Further, Hotard Properties

reiterates its argument that “[t]he photocopies of the contracts introduced are

unreadable so that it is impossible to determine from the contracts what the

obligations of each party was.” Hotard Properties counters that Mr. Hotard’s

testimony established that Hotard Properties did not remove IV Waste’s containers

in breach of the Contracts and that IV Waste actually removed its own containers.

As previously discussed in this Opinion, in breach of contract cases, “an

appellate court may not set aside a trial court’s findings of fact in the absence of

manifest error or unless it is clearly wrong.” 1100 S. Jefferson Davis Parkway,

LLC, 2014-1326, p. 3, 165 So.3d at 1215 (citing Howard v. La. Citizens Prop. Ins.

Corp., 2010-1302, p. 3 (La. App. 4 Cir. 4/27/11), 65 So.3d 697, 699). This Court

has previously held that “[t]he ‘elements of a breach of contract claim are the 23 existence of a contract, the party’s breach thereof, and resulting damages.’”

Thomas v. Housing La. Now, L.L.C., 2023-0296, p. 5 (La. App. 4 Cir. 3/21/24),

___ So.3d ___, ___, 2024 WL 1208366, at *3 (quoting Payphone Connection Plus,

Inc. v. Wagners Chef, LLC, 2019-0181, p. 8 (La. App. 4 Cir. 7/31/19), 276 So.3d

589, 595). The burden of proof for establishing a breach of contract is on the party

making the claim for the breach and for damages. See Fleet Intermodal Servs.,

LLC v. St. Bernard Port, Harbor & Terminal Dist., 2010-1485, p. 4 (La. App. 4

Cir. 2/23/11), 60 So.3d 85, 88 (citing Rebouche v. Harvey, 2000-2327, p. 3 (La.

App. 4 Cir. 12/19/01), 805 So.2d 332, 334).

Existence of a Contract

Regarding the first element of a breach of contract claim, the existence of a

contract, neither Hotard Properties nor IV Waste dispute that Contracts existed

between them for the Rye Street and St. Andrew Street Properties. The parties did

not dispute the existence of the Contracts for both properties before the trial court

nor do they do so before this Court. Accordingly, we move onto the breach

element.

Breach

Turning to the second element, breach, this Court has also described this

element as “the obligor failed to perform the obligation” that the parties established

in the contract. Favrot v. Favrot, 2010-0986, p. 14 (La. App. 4 Cir. 2/9/11), 68

So.3d 1099, 1109 (first citing 1436 Jackson Joint Venture v. World Constr. Co.,

499 So.2d 426, 427 (La. App. 4th Cir. 1986); and then citing Hercules Machinery

Corp. v. McElwee Bros., Inc., 2002 WL 31015598, at *9 (E.D. La. 9/2/02)). We

begin our discussion of this element by distinguishing Sanga v. Perdomo, 2014-

609 (La. App. 5 Cir. 12/30/14), 167 So.3d 818, a case cited by Hotard Properties in 24 its brief to this Court in support of its assertion that IV Waste did not produce

evidence of lack of proper access. Hotard Properties contends that in Sanga, the

Louisiana Fifth Circuit Court of Appeal “found that the plaintiff did not carry her

burden of proof in a contract case when she did not admit any evidence to support

her allegations beyond her own testimony.” In Sanga, after the defendant failed to

replace her roof as the parties had contracted for, Reine Pema Sanga (“Ms. Sanga”)

ultimately received her full deposit back but nonetheless proceeded with a claim

for damages for breach of contract. In support of her claim, Ms. Sanga merely

offered her own testimony, in which she contended that she had to borrow money

to replace her roof until she received the full deposit back from the defendant; that

her homeowner’s insurance rate increased because she had not replaced her roof

sooner; and that she had to spend more money on the roof replacement than what

the defendant quoted. Id. at p. 8, 167 So.3d at 822. In concluding that the trial court

had not manifestly erred in determining that Ms. Sanga failed to meet her burden

of proof with regard to damages as to her breach of contract claim, the Fifth Circuit

noted that Ms. Sanga admitted no evidence beyond her own testimony in order to

prove her financial damages. Id. In particular, the Fifth Circuit further noted that

Ms. Sanga had not even admitted into evidence the contracts at issue in the case

and that “[g]enerally, the damages in breach of contract cases are governed by the

four corners of the contract.” Id. (citing Corbello v. Iowa Prod., 2002-0826 (La.

02/25/03), 850 So.2d 686, 714).

We find Sanga distinguishable and, accordingly, find Hotard Properties’

reliance on it for the breach element to be misguided. First, the discussion in Sanga

centered on whether the trial court erred in failing to find the defendant liable for

breach of contract due to the lack of corroborating evidence for the damages 25 element of breach of contract, not the breach element. Second, in Sanga the

contracts were not in evidence; but, in the matter sub judice, we already

determined in assignment of error number one that the trial court did not abuse its

discretion in admitting IV Waste’s photocopies of the contracts into evidence.

Thus, unlike in Sanga, we have the Contracts to inform what obligations Hotard

Properties had to perform (and to what damages IV Waste was entitled as will be

more fully discussed throughout the Opinion). Having distinguished Sanga from

the matter sub judice, we next turn to the Contracts to determine Hotard Properties’

obligations and whether the record supports the trial court’s finding that they were

breached.

In the Access Provision, the Contracts provided that “Customer grants

Contractor a right of access to its designated equipment location and warrants the

sufficiency of such right of way over and between the public way and equipment

location.” Additionally the St. Andrew Street Contract contained the notation that

“driver can not [sic] pull truck on the property, [container] must be wheeled to the

street.” The Default Provision of the Contracts stated that “Customer is in default

if” Customer “fails to perform any obligation herein.” Thus, both the Rye Street

and St. Andrew Street Contracts specified that Hotard Properties, as the customer,

had to ensure that IV Waste had access to the containers and that failure to provide

access to the containers rendered Hotard Properties in default of the Contracts, i.e.,

such action constituted a breach of the Contracts. Next, we consider the evidence

adduced at trial as to whether Hotard Properties breached the Contracts.

Ms. Tufaro testified that IV Waste’s drivers reported IV Waste’s containers

were missing at the St. Andrew Street and Rye Street Properties on multiple

occasions sometime before November 2019, i.e., before IV Waste sent the 26 November Letters. Ms. Tufaro explained that after the drivers informed her of the

missing containers, she visited the Rye Street Property and St. Andrew Street

Property; observed that the containers were missing; and took photographs of

where the containers should have been. Ms. Tufaro testified that IV Waste was

unable to perform its services pursuant to the Contracts because the containers

were missing at the Rye Street and St. Andrew Street Properties. In contrast with

Ms. Tufaro’s testimony, Mr. Hotard testified that the containers were accessible

and that he moved the St. Andrew Street Property container to the street for pick-

up pursuant to the St. Andrew Street Contract.

Neither party produced additional evidence about the breach element, so the

trial court’s resolution hinged on the credibility of these witnesses. As previously

noted, under the manifest error standard of review, the trial court’s “reasonable

evaluations of credibility and reasonable inferences of fact should not be disturbed

upon review[;]” and “[w]here there are two permissible views of the evidence,” the

trial court’s determination cannot be manifest error. Ratliff, 2009-0012, 0013,

0014, p. 6, 38 So.3d at 1074 (citations omitted); Rosell v. ESCO, 549 So.2d 840 at

844. Considering the language of the Contracts in the Access and Default

Provisions, as well as Ms. Tufaro’s testimony that the drivers reported the missing

containers and that she herself observed the missing containers, one “permissible

view of the evidence” was that Hotard Properties failed to fulfill its obligations

under the Contracts to provide proper access and thus breached the Contracts.

Thus, because this was a permissible view of the evidence, the trial court’s finding

that Hotard Properties breached the Contracts cannot be manifest error, and we will

not disturb the credibility determinations that the trial court made in arriving at this

conclusion. Thus, we find that the trial court did not manifestly err in finding that 27 IV Waste satisfied the breach element. We next turn to the third and final element,

damages.

Damages

The final element that a plaintiff must prove in a breach of contract claim is

damages. As this Court has explained, this element means that the obligor’s

“failure to perform resulted in damages to the obligee.” Favrot, 2010-0986, pp. 14-

15, 68 So.3d at 1109. See also La. C.C. art. 1993 (stating that “[a]n obligor is liable

for the damages caused by his failure to perform a conventional obligation”). In

discussing the damages element in breach of contract claims, the Louisiana First

Circuit Court of Appeal has held that “[l]oss of profit is an item of damages

recoverable for breach of contract.” Landry v. Bourque, 460 So.2d 33, 34 (La.

App. 1st Cir. 1984) (citation omitted). Additionally, as previously stated,

“[g]enerally, the damages in breach of contract cases are governed by the four

corners of the contract.” Sanga, 2014-609, p. 7, 167 So.3d at 822.

Turning to the Contracts in this matter, the Default Provision stated that

“Customer is responsible for the costs and expenses of its default, and Contractor’s

lost profits and consequential damages, including cost of collection and reasonable

attorney[] fees.” Thus, the Contracts established that in the event of a breach,

Hotard Properties not only had to pay IV Waste’s lost profits but also a container

removal fee for each property. In support of the damages element, IV Waste

offered the November Letters, wherein IV Waste determined its lost profits as a

calculation of the monthly service charge multiplied by the number of months

remaining on each of the Contracts as of that date. On top of that number, IV

Waste added a container removal fee to arrive at its damages number for each

property. IV Waste also offered Ms. Tufaro’s testimony in support of the damages 28 element. At the start of her testimony, Ms. Tufaro explained that IV Waste’s

standard service agreements were for five years because that duration of time

“helps [IV Waste] to recoup [its] investment for the container that [it] provide[s] to

the customer.” Ms. Tufaro testified that she authored the November Letters and

determined that IV Waste had been damaged in the amount of lost profits (“broken

down by the number of months remaining on the contract”) plus the container

removal fee. Ms. Tufaro specified the number of months remaining on the Rye

Street and St. Andrew Street Contracts when Hotard Properties failed to provide

proper access to the containers and IV Waste sent the November Letters to Hotard

Properties. Considering the Contracts, the demand letters, and Ms. Tufaro’s

testimony we find the trial court did not manifestly err in finding that Hotard

Properties’ breach of the Contracts resulted in damages to IV Waste in the amount

of profit IV Waste lost for the remainder of the Contracts’ terms and in the cost

incurred by IV Waste to pick up its containers.

Having found that the trial court did not manifestly err in finding that IV

Waste proved the three elements of breach of contract, we conclude that Hotard

Properties’ second assignment of error is without merit.

Assignment of Error Number Three: Damages

In its third assignment of error, Hotard Properties argues that “[t]he trial

court erred in awarding [IV Waste] liquidated damages when the contracts did not

provide for liquidated damages and when [IV Waste] did not meet its burden of

proof as to damages.” Regarding the first part of this assignment of error, Hotard

Properties cites to Amacker v. Wedding, 363 So.2d 223 (La. App. 4th Cir. 1978)

for the assertion that “[i]f [a] contract . . . does not provide for stipulated or

liquidated damages, then the plaintiff has the burden of proving the amount of the 29 damages.” To this end, Hotard Properties contends that “there is no provision in

the [C]ontracts” in this matter “that provide [sic] for the stipulation of damages or

for liquidated damages.” Instead, according to Hotard Properties, “IV Waste’s

[C]ontracts . . . provide that in the event of a default, the customer is responsible

for the costs and expenses of its default, and for lost profits and consequential

damages.” This leads to the second part of this assignment of error whereby Hotard

Properties argues that IV Waste had the burden of proving its damages yet “did not

present a shred of evidence to itemize its damages.”

Stipulated (Liquidated) Damages

We begin with Hotard Properties’ contention that “there is no provision in

the contracts” in this matter “that provide [sic] for the stipulation of damages or for

liquidated damages.” Louisiana Civil Code Article 2005 states that “[p]arties may

stipulate the damages to be recovered in case of nonperformance, defective

performance, or delay in performance of an obligation.” The expression “stipulated

damages” that stems from the language of La. C.C. art. 2005 “is similar to the

common law ‘liquidated damages.’” La. C.C. art. 2005, comment (b) (1984). See

also Macy P. Spencer, Buyers Beware: Understanding the Consequence of

Intentionally Breaching a Real Estate Purchase Agreement in a Civil Law

Breaching a Real Estate Purchase Agreement in a Civil Law Jurisdiction, 83 LA.

L. REVIEW 1431, 1469 n.329 (2023) (explaining that “[i]n common law, liquidated

damages are synonymous with Louisiana’s stipulated damages” (citing Mahoney

v. Tingley, 529 P.2d 1068, 1069 (Wash. 1975)); Bodin v. Butler, No. 09-30025,

2009 WL 2240800, at *451 (U.S. 5th Cir. 2009) (explaining that use of the phrase

“stipulated damages” or the phrase “liquidated damages” in a contract provision is

unimportant because the substance of the provision is what determines whether it 30 is a stipulated or liquidated damages clause); Lombardo v. Deshotel, 1994-1172, p.

8 (La. 11/30/94), 647 So.2d 1086, 1091 (explaining that sometime after 1949

Louisiana courts began equating stipulated damages clauses with the common-law

concept of liquidated damages). In the November Letters, IV Waste used the

phrase liquidated damages, and Hotard Properties uses the phrase liquidated

damages in its brief when arguing that the Contracts did not provide a liquidated

damages clause; but, because Louisiana’s stipulated damages are analogous to

liquidated damages, we will consider whether the Contracts contained a stipulated

damages provision.

As previously stated, La. C.C. art. 2005 establishes that parties to a contract

can predetermine the damages that are recoverable in the case of nonperformance,

defective performance, or delay in performance. To determine whether a contract

provision provides for stipulated damages, courts should consider whether “[t]he

substance of the clause is clear and unequivocal in its purpose to set a fixed amount

of damages for breach of the agreement.” Bodin, No. 09-30025, 2009 WL

2240800, at *451. As the Louisiana Supreme Court has explained, “the essential

ingredients of a stipulation of damages” are that “it was stipulated in advance by

the parties, provides the sum to be recovered in case of nonperformance, and gives

rise to a secondary obligation for the purpose of enforcing the principal one.”

Lombardo, 1994-1172, p. 6, 647 So.2d at 1090 (citing La. C.C. art. 2005). The

notion behind a stipulated damages clause is “to fix the measure of damages in

advance and to help ease the burden of proving loss with certainty.” Henderson v.

Ayo, 2011-1605, pp. 7-8 (La. App. 4 Cir. 6/13/12), 96 So.3d 641, 646 (first citing

Heirs of Gremillion v. Rapides Par. Police Jury, 493 So.2d 584, 587 (La.

09/08/86); and then citing Philippi v. Viguerie, 606 So.2d 577, 579 (La. App. 5 Cir. 31 09/29/92). Thus, a party seeking to enforce a stipulated damage clause need not

“show[] . . . pecuniary or other actual damage . . . to enforce the clause.” Id. With a

stipulated damages clause, the parties either select an amount for the stipulated

damages or a set method for determining the stipulated damages. See, e.g.,

Grimsley v. Lenox, 1993-1618, p. 5 (La. App. 3 Cir. 9/14/94), 643 So.2d 203, 206

(finding that the written agreement required the defendant to forfeit her $500

deposit to the plaintiffs in light of the stipulated damages clause); White v. Strange,

2011-523, pp. 6-7 (La. App. 3 Cir. 12/21/11), 80 So.3d 1189, 1193 (holding that

“the trial court correctly applied the stipulated amount of damages listed in the buy

and sell agreement,” which provided for stipulated damages in the amount of 10%

of the purchase price).

Turning to the Contracts, the only provision that concerns what will happen

in the event of a default (or breach), the Default Provision, provided that Hotard

Properties would be responsible for the costs and expenses of its default, as well as

for lost profits and consequential damages. This is not a stipulated damages clause

because it does not state the specific sum to be recovered or even a method for

calculating the sum to be recovered in the event of a default (or breach). Thus, we

agree with Hotard Properties that the Contracts in this matter did not contain a

stipulated damages clause. Further, we agree with Hotard Properties that because

the Contracts did not provide for stipulated damages, IV Waste had the burden of

proving its actual damages. See Henderson, 2011-1605, p. 8, 96 So.3d at 646

(holding that the contract did not contain a stipulated damages provision, such that

the plaintiff’s recovery was limited to her actual damages, and then determining

what the plaintiff proved in terms of her actual damages). Accordingly, we turn our

32 consideration to what IV Waste proved in terms of its actual damages as a result of

Hotard Properties’ breach of the Contracts.

Proof of IV Waste’s Damages

In support of this part of assignment of error number three, Hotard

Properties asserts that “IV Waste did not present a shred of evidence to itemize its

Damages.” Further, Hotard Properties argues that “[t]he amount of the monthly

payment does not take into account the costs and expenses associated with the

performance of the contract. Not all of the monthly payments constitutes profit.”

According to La. C.C. art. 1995, “[d]amages are measured by the loss

sustained by the obligee and the profit of which he has been deprived.” Only if

“damages are insusceptible of precise measurement” will “much discretion . . . be

left to the court for the reasonable assessment of these damages.” La. C.C. art.

1999. The party asserting a breach of contract claim bears “the burden of proving

any damage suffered by it as a result of a breach of contract.” Payphone

Connection Plus, Inc., 2019-0181, p. 13, 276 So.3d at 597 (quoting L & A

Contracting Co. v. Ram Indus. Coatings, Inc., 1999-0354, p. 20 (La. App. 1 Cir.

6/23/00), 762 So.2d 1223, 1235).

As previously stated, the damages in a breach of contract case are generally

governed by the four corners of the contract; and the Contracts at issue herein

stated that breach of the Contracts would render Hotard Properties liable for IV

Waste’s lost profits and consequential damages. This Court recently discussed the

proof required in terms of lost profits in Huntsman Int’l, L.L.C. v. Praxair, Inc.:

“As a general rule[,] ‘damages for loss of profits may not be based on speculation and conjecture; however, such damages need be proven only within reasonable certainty.’” PVCA, Inc. v. [Pac.] [W.] TD Fund LP, [20]20-0327, p. 14 (La. App. 4 Cir. 1/20/21), 313 So.3d 320, 331 (quoting Breton Sound Oyster Co., [20]17-0955, p. 14, 299 33 So.3d at 90). “Broad latitude is given in proving lost profits because this element of damages is often difficult to prove and mathematical certainty or precision is not required.” Id. “The plaintiff bears the burden of proving entitlement to special damages by a preponderance of the evidence.” Cox, Cox, Filo, Camel & Wilson, LLC, [20]21- 00566, p. 11, 338 So.3d at 1157 (first citing Breaux v. Woods, [20]20- 0161, p. 8 (La. App. 3 Cir. 11/18/20), 307 So.3d 395, 402; and then citing Caruso v. Acad. Sports & Outdoors, [20]18-0496, p. 7 (La. App. 5 Cir. 4/24/19), 271 So.3d 355, 362). “That is, the plaintiff must show that the loss of profits is more probable than not.” Breton Sound Oyster Co., [20]17-0955, p. 14, 299 So.3d at 90 (quoting Wasco, Inc. v. Econ. Dev. Unit, Inc., 461 So.2d 1055, 1057 (La. App. 4th Cir. 1985)). Moreover, if the defendants do not refute the evidence offered by the plaintiffs to prove their special damages, and the record supports the plaintiffs’ assertion, the district court does not err if it awards those damages. See Cox Commc’ns v. Tommy Bowman Roofing, LLC, [20]04-1666, p. 9 (La. App. 4 Cir. 3/15/06), 929 So.2d 161, 167.

2022-0777, p. 7 (La. App. 4 Cir. 4/19/24), ___ So.3d ___, ___, 2024 WL 1695071,

at *3 (first alteration in original). Further, as the Louisiana First Circuit Court of

Appeal has explained, “lost profits are calculated by deducting the expenses that

would have been incurred if the parties had complied with the contract from the

gross revenues that would have been derived from the contract.” First Alarm Fire

Equip., Inc. v. Southland Int’l of La., 47,823, p. 7 (La. App. 2 Cir. 5/8/13), 114

So.3d 1168, 1172 (citing Rosbottom v. Off. Lounge, Inc., 1994-894 (La. App. 3 Cir.

4/5/95), 654 So.2d 377). Though “[a] party’s own detailed testimony as to his loss

may be sufficient to support an award for loss of profits,” typically “a claim for

lost profits cannot rest solely on the testimony of the injured party without being

substantiated by other evidence.” Id. at pp. 7-8, 114 So.3d at 1172 (citing Simpson

v. Restructure Petroleum Mktg. Servs., Inc., 36,508 (La. App. 2 Cir. 10/23/02), 830

So.2d 480). If the plaintiff’s evidence and/or testimony “lack[s] . . . even a minimal

degree of detail or specificity as to the extent of loss,” then this “precludes an

34 award.” Id. (quoting Jackson v. Lare, 34,124, p. 8 (La. App. 2 Cir. 11/1/00), 779

So.2d 808, 814).

For example, in another breach of contract case, Payphone Connection Plus,

Inc., this Court considered the testimony of Suzanne Wimsatt (“Ms. Wimsatt”),

who was alleged to be Payphone Connection Plus, Inc.’s (“Payphone”) president

and owner. 2019-0181, p. 3, 276 So.3d at 592. At the hearing held by the trial

court, Ms. Wimsatt replied in the affirmative when asked “whether she prepared a

‘calculation of the anticipated revenue’ resulting from the alleged breach of

contract,” and she “indicated that the anticipated amount was ‘[$]296,389.05,’”

which was the amount of lost profits for which she sought judgment. Id. at pp. 13-

14, 276 So.3d at 598 (alteration in original). Thereafter Payphone’s counsel offered

into evidence a document identified as “Calculation of Lost Revenue.” Id. at p. 14,

276 So.3d at 598. However, counsel did not ask Ms. Wimsatt any specific

questions regarding that document nor did Ms. Wimsatt provide an “explanation as

to how she arrived at the sum . . . given” or give any “‘degree of detail and

specificity’ as to the issue of lost profits.” Id. This Court concluded that

Payphone’s attempts to prove its lost profit claim fell below the “minimal degree”

required to support a lost profit claim, vacated the trial court’s judgment, and

remanded the matter. Id.

In terms of proving its lost profits, IV Waste offered the testimony of Ms.

Tufaro, as well as the November Letters, both of which demonstrated that IV

Waste determined its lost profits were a calculation of the number of months

remaining on each of the Contracts multiplied by the monthly service charge

specific to each contract. Hotard Properties asserts that by simply using the

monthly payment under the Contracts, IV Waste’s calculation method failed to 35 account for the costs and expenses associated with performance of its obligations

under the Contracts and that not all of the monthly payments would have

constituted profit. We agree with Hotard Properties and find Ms. Tufaro’s

testimony analogous to Ms. Wimsatt’s testimony in Payphone Connection Plus,

Inc. Though Ms. Tufaro testified that she calculated the lost profit number included

in the November Letters by multiplying the number of months remaining on the

contract by the monthly service charge, as in Payphone Connection Plus, Inc.,

counsel for IV Waste did not elicit further testimony from Ms. Tufaro in terms of

how she arrived at those lost profit numbers so as to provide sufficient detail and

specificity that this was an accurate calculation of IV Waste’s lost profits. In

particular, IV Waste’s calculation failed to deduct the expenses that would have

been incurred if the parties had complied with the Contracts from the gross

revenues that would have been derived from the Contracts. Even if all of Hotard

Properties’ monthly payments would have constituted profit for IV Waste, IV

Waste offered no testimony or evidence in support of same. Though lost profits

need not be proven with mathematical certainty or precision, IV Waste’s failure to

even reference costs and expenses in relation to gross revenue falls below the

minimal degree required to support a lost profit claim.

Additionally, in terms of the container removal fee, IV Waste merely offered

the November Letters without any evidence or testimony to support the amount

asserted ($150) as the container removal fee. In fact, as previously noted, the box

next to the one-time $100 removal fee on the Rye Street contract was not even

selected. Thus, it is unclear why the Rye Street Contract provided for the option of

including a $100 removal fee, yet IV Waste did not select this option. Even if IV

Waste were to contend that this constitutes a consequential damage, it is unclear 36 why IV Waste asserted a removal fee of $150 upon Hotard Properties breaching

the Contracts but IV Waste apparently had $100 as its removal fee in its standard

service contracts at some point in time.

Moreover, we note that the lost profit calculations performed by IV Waste

(and accepted by the trial court) are incorrect. In the body of the November Rye

Street Letter, IV Waste stated that 47 months remained on the Rye Street Contract.

However, in the section of the November Rye Street Letter detailing the damages

allegedly owed, IV Waste multiplied the monthly service charge by 41 months.

Based on the record, the number of months remaining on the Rye Street Contract

appears to be 47: two for the year 2019 (November and December); twelve for the

year 2020; twelve for the year 2021; twelve for the year 2022; and nine for the year

2023 (January through September before the Rye Street Contract expired on

October 1, 2023). Regardless, the lost profit calculation done by IV Waste in the

November Rye Street Letter does not appear to use 41 or 47 months remaining:

41 remaining months x $75 monthly fee = $3,075 47 remaining months x $75 monthly fee = $3,525

Yet, IV Waste arrived at a lost profit calculation of $3,877.50, without any

explanation for this increased amount.

Similarly, the lost profit calculations performed by IV Waste (and accepted

by the trial court) are incorrect for the St. Andrew Street Property too. In the body

of the November St. Andrew Street Letter, IV Waste stated that 41 months

remained on the St. Andrew Street Contract; and in the section of the November

St. Andrew Street Letter detailing the damages allegedly owed, IV Waste

multiplied the monthly service charge by 41 months. Based on the record, IV

Waste correctly determined that 41 months remained on the St. Andrew Street

37 Contract: two for the year 2019 (November and December); twelve for the year

2020; twelve for the year 2021; twelve for the year 2022; and three for the year

2023 (January through March before the St. Andrew Street Contract expired on

April 6, 2023). Regardless, the lost profit calculation done by IV Waste in the

November St. Andrew Street Letter does not appear to use 41 months:

41 remaining months x $105 monthly fee = $4,305

Instead, IV Waste arrived at a lost profit calculation of $4,735.50, without any

explanation for this increased amount. Additionally, IV Waste arrived at a total

amount due for the St. Andrew Street Property of $9,885.50, without any

explanation as to how it arrived at that amount when the only items alleged were

lost profit in the amount of $4,735.50 plus a container removal fee of $150 (which,

even if the lost profit amount were accurate, would only total $4,885.50).

Accordingly, we conclude that the trial court did not err in finding that IV

Waste proved lost profits and consequential damages; however, the amount of

$13,913.00 in lost profits and consequential damages is not supported by the

record. Therefore, we vacate the trial court’s judgment only as to the amount

awarded, and we remand this matter to the trial court for a determination consistent

with this Opinion as to IV Waste’s correct amount of lost profits and consequential

damages.

Assignment of Error Number Four: Cancellation of Contracts by IV Waste

Hotard Properties, in its fourth assignment of error, argues that “[t]he trial

court erred in finding [Hotard Properties] liable for damages after the contract had

been cancelled by [IV Waste].” In support of this assignment of error, Hotard

Properties points to the October Text Conversation between Mr. Hotard and Mr.

38 Torres V. Hotard Properties contends that further support for a finding that IV

Waste cancelled the Contracts is the fact that IV Waste picked up its containers

from the Rye Street and St. Andrew Street Properties which thereby concluded

service by IV Waste. Additionally, Hotard Properties argues that the January and

February Letters sent by IV Waste to Hotard Properties confirmed that IV Waste

cancelled the Contracts. Countering, IV Waste contends that Ms. Tufaro’s

testimony supports the finding that Hotard Properties cancelled the contracts first

by breaching them by failing to provide proper access to containers. We have

already concluded in assignment of error number two that the trial court did not

manifestly err in finding that IV Waste proved that Hotard Properties breached the

Contracts. However, to resolve this fourth and final assignment of error, we must

determine whether the trial court erred in finding that Hotard Properties breached

the Contracts before any alleged cancellation of the Contracts by IV Waste.

Because this involves the issue of breach of contract again, as previously

stated, our standard of review is manifest error. Also as previously iterated, if there

is conflicting testimony, we will not disturb the trial court’s reasonable evaluations

of credibility and inferences of fact. Rosell, 549 So.2d at 844. Additionally, under

this standard of review, if there are two permissible views of the evidence, the trial

court’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

The record evidence presented in the matter sub judice provides conflicting

testimony. One instance of conflicting testimony is in terms of whether the meeting

at the Deer Field Road Property and the subsequent October Text Conversation

about contract cancellation pertained solely to the Deer Field Road Property (as

Ms. Tufaro contended) or whether it pertained to the St. Andrew Street and Rye

Street Properties too (as Mr. Hotard contended). When questioned about the fact 39 that the October Text Conversation used the word “contract” (singular) after the

parties had just recently met and discussed cancelling the Deer Field Road

Property, Mr. Hotard did not have an explanation for this. Additionally, in terms of

Hotard Properties’ contention that the October Text Conversation constituted a

cancellation of the St. Andrew Street and Rye Street Contract, we point to the

Term Provision of the Contract. It stated that the term of the Contracts was for five

years “unless either party g[ave] a written termination notice by certified mail

ninety (90) days before a term’s expiration.” Clearly, the October Text

conversation did not constitute termination notice by certified mail, so Hotard

Properties should not have relied on it as a cancellation of the Contracts as Mr.

Hotard purports to have done.

Another conflict in the testimony is about why the containers were missing

in the first place. With regard to Hotard Properties’ contention that IV Waste

cancelled the Contracts by picking up the containers, Ms. Tufaro testified, “We did

not pick up our cans. They disappeared.” Thus, Ms. Tufaro’s testimony indicated

that the reason the containers were missing when the drivers went to service them

was the fault of Hotard Properties, not because IV Waste had already picked them

up after the dispute between the parties. By contrast, Mr. Hotard’s testimony

indicated that the containers were only missing once IV Waste picked them up for

good following the dispute between the parties.

Additionally, Hotard Properties argues on appeal that the January and

February Letters sent by IV Waste to Hotard Properties confirmed that IV Waste

cancelled the Contracts. However, Ms. Tufaro’s testimony indicated that IV Waste

sent the November Letters and subsequent January and February Letters only after

40 IV Waste could not locate the containers. That is, according to Ms. Tufaro, only

after Hotard Properties breach the Contracts did IV Waste send the various letters.

Considering the foregoing, one permissible view of the evidence was that

established by Ms. Tufaro’s testimony: the Deer Field Road Property meeting and

subsequent October Text Conversation pertained solely to cancellation of the

contract for the Deer Field Road Property; IV Waste did not remove the containers

until after Hotard Properties breached the Contracts by failing to provide proper

access to the containers as required by the Contracts (i.e., the containers were

missing when IV Waste drivers arrived to service them); and IV Waste did not

send any of its letters until after Hotard Properties breached the Contracts. Under

our standard of review, the trial court’s choice between Ms. Tufaro’s testimony

and Mr. Hotard’s testimony cannot be manifestly erroneous or clearly wrong; so

we conclude that this assignment of error is without merit. The trial court was not

manifestly erroneous or clearly wrong in finding that Hotard Properties had already

breached the Contracts before any purported actions taken by IV Waste that may

have demonstrated cancellation of the Contracts.

41 DECREE

For the foregoing reasons, we affirm the trial court’s July 12, 2023

judgment, which held that Hotard Properties breached its Contracts with IV Waste.

Because we find that the trial court did not err in finding that IV Waste proved lost

profits and consequential damages but that the amount of $13,913.00 in lost profits

and consequential damages is not supported by the record, we vacate the trial

court’s judgment only as to the amount awarded. Further, we remand this matter to

the trial court for a determination consistent with this Opinion as to IV Waste’s

correct amount of lost profits and consequential damages.

AFFIRMED IN PART; VACATED IN PART; AND REMANDED