Lapeyrouse v. Barbaree

836 So. 2d 417, 2002 WL 31895082
CourtLouisiana Court of Appeal
DecidedDecember 20, 2002
Docket2002 CA 0086
StatusPublished
Cited by3 cases

This text of 836 So. 2d 417 (Lapeyrouse v. Barbaree) 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
Lapeyrouse v. Barbaree, 836 So. 2d 417, 2002 WL 31895082 (La. Ct. App. 2002).

Opinion

836 So.2d 417 (2002)

Eric LAPEYROUSE Sr. M/V Miss Georgiana
v.
Joe William BARBAREE M/V Risky Business.

No. 2002 CA 0086.

Court of Appeal of Louisiana, First Circuit.

December 20, 2002.

*419 Carlton J. Cheramie, Cut Off, Counsel for Defendant/Appellant Joe William Barbaree.

Philip J. McMahon, Houma, Counsel for Plaintiff/Appellee Eric Lapeyrouse, Sr.

Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.

GUIDRY, J.

In this appeal of an adverse tort judgment, the owner of a shrimping vessel asserts that the trial court erroneously found that there was sufficient evidence to find him liable for the damages sustained by another shrimping vessel. Based on a thorough review of the record, we affirm.

FACTS AND PROCEDURAL HISTORY

In November 1997, the appellee, Eric Lapeyrouse, owned a forty-one foot, wooden shrimp trawling boat named the M/V Miss Georgiana. The appellant, Joe Barbaree, owned a fifty-foot, steel hull shrimp trawling boat called the M/V Risky Business. On November 17, 1997, the M/V Miss Georgiana sustained certain structural damage, though the parties' disagree as to how and to what extent the vessel sustained any damage.

A bench trial was held on April 9, 2001, at the conclusion of which the trial court found in favor of Mr. Lapeyrouse. A written judgment in accordance with the trial court's oral ruling was signed on April 12, 2001. It is from that judgment that Mr. Barbaree appeals, asserting that the trial court erred in: (1) finding that Mr. Lapeyrouse proved his claim by a preponderance of the evidence; (2) allowing certain testimony of Mr. Lapeyrouse's expert witness; (3) examination of Mr. Lapeyrouse as a pro se litigant and the admission of certain evidence in conjunction therewith; and (4) failing to take into account Mr. Lapeyrouse's failure to mitigate damages in the judgment award.

DISCUSSION

In his first assignment of error, Mr. Barbaree alleges that the trial court erroneously found that Mr. Lapeyrouse had proven his claim for damages by a preponderance of the evidence. At the *420 trial on the merits, Mr. Lapeyrouse testified on his own behalf and presented the testimony of three eyewitnesses who stated that the M/V Miss Georgiana was damaged when another vessel's rigging or boom became entangled with the rigging of the M/V Miss Georgiana.

The eyewitnesses testified that they heard a lot of banging and clanking that caused them to observe the entangled vessels, but admitted that they could not see nor identify the name of the vessel that became entangled with the M/V Miss Georgiana. One other witness, Jeffery Scott, testified that he observed the M/V Miss Georgiana tied or moored to the M/V Risky Business on the day of the incident. Mr. Lapeyrouse testified that he observed the accident when it occurred and identified the offending vessel as the M/V Risky Business. Mr. Lapeyrouse also presented the testimony of Robert Hale III, qualified as a marine surveyor expert, who opined that, based on his inspection of the M/V Miss Georgiana following the incident, the damage sustained by the vessel was consistent with the account that the rigging of the vessel had become entangled with that of another vessel.

Conversely, Mr. Barbaree and one witness, a deckhand for the M/V Risky Business, Timothy Kelly, testified that the M/V Risky Business did not damage the M/V Miss Georgiana. Mr. Barbaree and Mr. Kelly both acknowledged that on the date of the incident, the M/V Miss Georgiana was moored to the M/V Risky Business. They further testified that in preparation for sailing that day, they turned the M/V Miss Georgiana around, by virtue of that vessel being moored to the M/V Risky Business, so that it could be moored directly to the Scottco dock and loosed from the M/V Risky Business. Mr. Barbaree and Mr. Kelly then testified that they traveled a short way up the bayou away from the dock to stock up on supplies before launching out to sea.

Mr. Barbaree testified that at no time did the M/V Risky Business become entangled, collide with or otherwise damage the M/V Miss Georgiana. In partial contradiction to Mr. Barbaree's testimony, Mr. Kelly testified that at one point while moving the M/V Miss Georgiana, the "pelican stabilizer" of the M/V Risky Business started to become entangled with the cable of the M/V Miss Georgiana, so he pulled the "pelican stabilizer" down onto the deck. He stated that the contact did not cause any damage to the M/V Miss Georgiana. Mr. Kelly explained that the "pelican stabilizer" was a chain mounted about two and a half feet from the top of the boom.

After considering the above-referenced testimony, the trial court made a factual determination that the M/V Miss Georgiana was damaged by the M/V Risky Business. Factual determinations of the trier of fact may not be reversed absent manifest error or unless they are clearly wrong. Pinsonneault v. Merchants & Farmers Bank & Trust Company, 01-2217, p. 11 (La.4/3/02), 816 So.2d 270, 278. To reverse a factual finding of the trial court, an appellate court must: (1) find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) further determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Pinsonneault, 01-2217 at 12, 816 So.2d at 279.

*421 As explained in Short v. Plantation Management Corporation, 99-0899 (La.App. 1st Cir.12/27/00), 781 So.2d 46:

Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, shows the fact or causation sought to be proved is more probable than not. To carry his burden of proof, the plaintiff must produce evidence from which the factfinder can reasonably conclude that his injuries, more probably than not, were caused by the negligence of the particular defendant. The plaintiff, however, does not have to conclusively exclude all other possible explanations for his injuries, because the standard is not proof beyond a reasonable doubt.

Short, 99-0899 at 9, 781 So.2d at 54 (citation omitted) (emphasis added).

Based on our review of the record, including the testimony presented by both parties, we find no merit in Mr. Barbaree's contention that Mr. Lapeyrouse did not prove his claim for damages by a preponderance of the evidence. Although Mr. Barbaree's evidence substantially contradicted that of Mr. Lapeyrouse, that alone was not sufficient to weigh against finding that the plaintiff proved his case by a preponderance of the evidence. See Short, 99-0899 at 9, 781 So.2d at 54. Mr. Lapeyrouse's testimony, largely corroborated by that of the three eyewitnesses, Mr. Scott, and Mr. Hale, was sufficient to establish by a preponderance of the evidence that the M/V Miss Georgiana was damaged by the operation of the M/V Risky Business on November 17, 1997. Thus, we reject this assignment of error.

In his second assignment of error, Mr. Barbaree contends that the trial court erred in allowing Mr. Hale to testify beyond the stated expertise for which he was qualified. The trial court accepted Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
836 So. 2d 417, 2002 WL 31895082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lapeyrouse-v-barbaree-lactapp-2002.