NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
22-384
LOUISIANA STORAGE MANNING, LLC
VERSUS
LARRY BAYONNE d/b/a BAYONNE’S FENCING
********** APPEAL FROM THE TENTH JUDICIAL DISTRICT COURT PARISH OF NATCHITOCES, NO. C-92,232 HONORABLE LALA B. SYLVESTER, DISTRICT JUDGE
********** CHARLES G. FITZGERALD JUDGE
**********
Court composed of Candyce G. Perret, Jonathan W. Perry, and Charles G. Fitzgerald, Judges.
AFFIRMED. David L. White 3985 Airline Drive Bossier City, Louisiana 71111 (318) 747-7023 Counsel for Plaintiff/Appellant: Louisiana Storage Manning, LLC
William D. Dyess Dyess Law Firm, LLC Post Office Box 18 Natchitoches, Louisiana 71457 (318) 352-5880 Counsel for Defendant/Appellee: Larry Bayonne d/b/a Bayonne’s Fencing FITZGERALD, Judge.
In this appeal, we are asked to review the judgment in an action for breach of
contract.
FACTS AND PROCEDURAL HISTORY
Plaintiff, Louisiana Storage Manning, LLC, negotiated with Defendant, Larry
Bayonne d/b/a Bayonne’s Fencing, to construct fences around three separate
storage-facility properties in Natchitoches, Louisiana. The properties are commonly
referred to as the “office” property, the “Blanchard” property, and the “skating rink”
property.
By all accounts, the parties agreed to use industrial fencing around the office
and Blanchard properties. It is unclear whether a similar agreement was reached for
the skating rink property, but that is of no consequence in this appeal.
Oversimplifying slightly, it is undisputed that the fence around the office
property was completed and paid in full; the fence around the Blanchard property
was partially completed and paid in full; and the fence around the skating rink
property was in the initial stages when payment issues arose and Bayonne’s Fencing
stopped its work.
Shortly thereafter, Plaintiff hired Alex Hanes to inspect Bayonne’s work and
finish the job. Alex initially concluded that Bayonne had improperly used residential
fencing rather than industrial fencing. Alex then removed and disposed of the
residential-fencing materials from the Blanchard and skating rink properties and
completed the fencing work on those two jobs. The office property fence remained
intact despite the allegation of substandard materials.
Ultimately, in October 2020, Plaintiff filed suit against Bayonne’s Fencing for
breach of contract. Plaintiff specifically sought the return of its payments for the office and Blanchard fences, along with the costs of removing the residential-grade
materials.
A bench trial was held in January 2022. The matter was taken under
advisement. And on February 24, 2022, the trial court issued a final written
judgment denying Plaintiff’s claims. Plaintiff appealed.
On appeal, Plaintiff asserts three assignments of error:
1. The trial court erred in not accepting the expert opinion of Alex Hanes that [Bayonne] used residential fencing as opposed to industrial fencing.
2. The trial court erred in determining that Dedrick Ratliff was credible. The trial court erred in finding that Bayonne used industrial grade fencing for the appellant’s projects.
3. The trial court erred in ruling against appellant for appellant’s failure to produce the physical fence used by [Bayonne].
LAW AND ANALYSIS
Findings of fact are reviewed on appeal using the manifest error-clearly
erroneous standard of review. Stobart v. State through Dep’t of Transp. & Dev., 617
So.2d 880 (La.1993). To reverse a trial court’s determination of fact under this
standard, an appellate court must review the record in its entirety and (1) find that a
reasonable factual basis does not exist for the finding, and (2) further determine that
the record establishes that the trial court is clearly wrong or manifestly erroneous.
Id. The appellate court must not reweigh the evidence or substitute its own factual
findings even if it would have decided the case differently. Id. And “where two
permissible views of the evidence exist, the factfinder’s choice between them cannot
be manifestly erroneous or clearly wrong.” Id. at 883.
2 First and Second Assignments of Error
The dispositive issue at trial was whether Bayonne used industrial fencing or
residential fencing for the projects. To this end, the trial court was presented with
two contradictory opinions: one from an expert witness; the other from a lay witness.
Plaintiff asserts that the trial court erred in rejecting the expert opinion, that the trial
court erred in determining that the lay witness was credible, and that the trial court
erred in finding that Bayonne used industrial fencing. This is the essence of
Plaintiff’s first and second assignments of error. And we review these assignments
together in the discussion below.
At trial, Alex testified as Plaintiff’s expert. As noted previously, Alex was
hired by Plaintiff to inspect Bayonne’s work and finish installing the fencing. No
other experts were offered at trial by either party. Alex testified that after personal
inspection, he determined that the materials used by Bayonne were of residential
rather than industrial grade. In contrast, Bayonne’s ten-year employee Dedrick
Ratliff testified that he personally installed the fencing and that it was of industrial
grade. No other evidence was adduced to prove this fact.
As the trial court explained: “The only testimony that the fencing was not
industrial came from the plaintiff’s witness who actually charged the plaintiff to tear
it down and replace it.” In the end, the trial court chose to believe Dedrick’s
testimony.
In Louisiana, the assessment of expert testimony is within the fact finder’s
great discretion. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990). Even
uncontradicted expert testimony as to ultimate facts is not binding on the trial court.
Naquin v. Hile, 536 So.2d 676 (La.App. 3 Cir. 1988). “Although experts may aid
3 the trial court in the determination of ultimate facts, the final conclusions drawn from
those facts belong exclusively to the trier of fact.” Id. at 679.
In its ruling, the trial court noted that Alex removed the materials installed by
Bayonne’s Fencing and replaced them with his own materials, and at no time during
the process was Bayonne notified of the problem or given an opportunity to remedy
the situation. The trial court then homed in on Alex’s disposal of the alleged inferior
materials. As the trial court put it:
Even though it would have been so simple to do, the plaintiff[] brought no physical evidence of the fence that allegedly had to be torn down, not even a photograph. They did bring samples to discuss, but nothing from the actual fence installed by Bayonne Fencing. The only testimony that the fencing was not industrial came from the plaintiff’s witness who actually charged the plaintiff to tear it down and replace it. It would have been so easy to have kept a piece of the fence that was allegedly torn down and replaced.
....
Because there is no physical evidence of the fencing that was installed by Bayonne Fencing, it becomes a credibility issue. The court finds that the most credible witness was Dedrick Ratliff and finds that Bayonne Fencing did in fact install industrial fencing and did the job they were hired to do.
When findings of fact are based on evaluations of witness credibility, the
manifest error standard gives the trial court great deference.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
22-384
LOUISIANA STORAGE MANNING, LLC
VERSUS
LARRY BAYONNE d/b/a BAYONNE’S FENCING
********** APPEAL FROM THE TENTH JUDICIAL DISTRICT COURT PARISH OF NATCHITOCES, NO. C-92,232 HONORABLE LALA B. SYLVESTER, DISTRICT JUDGE
********** CHARLES G. FITZGERALD JUDGE
**********
Court composed of Candyce G. Perret, Jonathan W. Perry, and Charles G. Fitzgerald, Judges.
AFFIRMED. David L. White 3985 Airline Drive Bossier City, Louisiana 71111 (318) 747-7023 Counsel for Plaintiff/Appellant: Louisiana Storage Manning, LLC
William D. Dyess Dyess Law Firm, LLC Post Office Box 18 Natchitoches, Louisiana 71457 (318) 352-5880 Counsel for Defendant/Appellee: Larry Bayonne d/b/a Bayonne’s Fencing FITZGERALD, Judge.
In this appeal, we are asked to review the judgment in an action for breach of
contract.
FACTS AND PROCEDURAL HISTORY
Plaintiff, Louisiana Storage Manning, LLC, negotiated with Defendant, Larry
Bayonne d/b/a Bayonne’s Fencing, to construct fences around three separate
storage-facility properties in Natchitoches, Louisiana. The properties are commonly
referred to as the “office” property, the “Blanchard” property, and the “skating rink”
property.
By all accounts, the parties agreed to use industrial fencing around the office
and Blanchard properties. It is unclear whether a similar agreement was reached for
the skating rink property, but that is of no consequence in this appeal.
Oversimplifying slightly, it is undisputed that the fence around the office
property was completed and paid in full; the fence around the Blanchard property
was partially completed and paid in full; and the fence around the skating rink
property was in the initial stages when payment issues arose and Bayonne’s Fencing
stopped its work.
Shortly thereafter, Plaintiff hired Alex Hanes to inspect Bayonne’s work and
finish the job. Alex initially concluded that Bayonne had improperly used residential
fencing rather than industrial fencing. Alex then removed and disposed of the
residential-fencing materials from the Blanchard and skating rink properties and
completed the fencing work on those two jobs. The office property fence remained
intact despite the allegation of substandard materials.
Ultimately, in October 2020, Plaintiff filed suit against Bayonne’s Fencing for
breach of contract. Plaintiff specifically sought the return of its payments for the office and Blanchard fences, along with the costs of removing the residential-grade
materials.
A bench trial was held in January 2022. The matter was taken under
advisement. And on February 24, 2022, the trial court issued a final written
judgment denying Plaintiff’s claims. Plaintiff appealed.
On appeal, Plaintiff asserts three assignments of error:
1. The trial court erred in not accepting the expert opinion of Alex Hanes that [Bayonne] used residential fencing as opposed to industrial fencing.
2. The trial court erred in determining that Dedrick Ratliff was credible. The trial court erred in finding that Bayonne used industrial grade fencing for the appellant’s projects.
3. The trial court erred in ruling against appellant for appellant’s failure to produce the physical fence used by [Bayonne].
LAW AND ANALYSIS
Findings of fact are reviewed on appeal using the manifest error-clearly
erroneous standard of review. Stobart v. State through Dep’t of Transp. & Dev., 617
So.2d 880 (La.1993). To reverse a trial court’s determination of fact under this
standard, an appellate court must review the record in its entirety and (1) find that a
reasonable factual basis does not exist for the finding, and (2) further determine that
the record establishes that the trial court is clearly wrong or manifestly erroneous.
Id. The appellate court must not reweigh the evidence or substitute its own factual
findings even if it would have decided the case differently. Id. And “where two
permissible views of the evidence exist, the factfinder’s choice between them cannot
be manifestly erroneous or clearly wrong.” Id. at 883.
2 First and Second Assignments of Error
The dispositive issue at trial was whether Bayonne used industrial fencing or
residential fencing for the projects. To this end, the trial court was presented with
two contradictory opinions: one from an expert witness; the other from a lay witness.
Plaintiff asserts that the trial court erred in rejecting the expert opinion, that the trial
court erred in determining that the lay witness was credible, and that the trial court
erred in finding that Bayonne used industrial fencing. This is the essence of
Plaintiff’s first and second assignments of error. And we review these assignments
together in the discussion below.
At trial, Alex testified as Plaintiff’s expert. As noted previously, Alex was
hired by Plaintiff to inspect Bayonne’s work and finish installing the fencing. No
other experts were offered at trial by either party. Alex testified that after personal
inspection, he determined that the materials used by Bayonne were of residential
rather than industrial grade. In contrast, Bayonne’s ten-year employee Dedrick
Ratliff testified that he personally installed the fencing and that it was of industrial
grade. No other evidence was adduced to prove this fact.
As the trial court explained: “The only testimony that the fencing was not
industrial came from the plaintiff’s witness who actually charged the plaintiff to tear
it down and replace it.” In the end, the trial court chose to believe Dedrick’s
testimony.
In Louisiana, the assessment of expert testimony is within the fact finder’s
great discretion. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990). Even
uncontradicted expert testimony as to ultimate facts is not binding on the trial court.
Naquin v. Hile, 536 So.2d 676 (La.App. 3 Cir. 1988). “Although experts may aid
3 the trial court in the determination of ultimate facts, the final conclusions drawn from
those facts belong exclusively to the trier of fact.” Id. at 679.
In its ruling, the trial court noted that Alex removed the materials installed by
Bayonne’s Fencing and replaced them with his own materials, and at no time during
the process was Bayonne notified of the problem or given an opportunity to remedy
the situation. The trial court then homed in on Alex’s disposal of the alleged inferior
materials. As the trial court put it:
Even though it would have been so simple to do, the plaintiff[] brought no physical evidence of the fence that allegedly had to be torn down, not even a photograph. They did bring samples to discuss, but nothing from the actual fence installed by Bayonne Fencing. The only testimony that the fencing was not industrial came from the plaintiff’s witness who actually charged the plaintiff to tear it down and replace it. It would have been so easy to have kept a piece of the fence that was allegedly torn down and replaced.
....
Because there is no physical evidence of the fencing that was installed by Bayonne Fencing, it becomes a credibility issue. The court finds that the most credible witness was Dedrick Ratliff and finds that Bayonne Fencing did in fact install industrial fencing and did the job they were hired to do.
When findings of fact are based on evaluations of witness credibility, the
manifest error standard gives the trial court great deference. “[R]easonable
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.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).
Here, the trial court observed Alex and Dedrick as they testified under oath
and subject to cross examination. “[O]nly the fact finder can be aware of the
variations in demeanor and tone of voice that bear so heavily on the listener’s
understanding and belief in what is said.” Powell v. Craft, 48,004, p. 5 (La.App. 2
4 Cir. 6/26/13), 117 So.3d. 298, 301. The trial court ultimately rejected Alex’s expert
opinion as to the type of fencing that had been used, choosing instead to believe
Dedrick’s testimony. And indeed, Dedrick’s lay opinion on this ultimate fact was
proper under La.Code Evid. arts. 701 and 704: it was based on his first-hand
knowledge, and it assisted the trial court in understanding the evidence.
After review of the record, we conclude that the trial court was presented with
two permissible views as to whether Bayonne had used industrial or residential
fencing. The trial court’s finding was therefore not manifestly erroneous. And
Plaintiff’s first and second assignments of error are without merit.
Third Assignment of Error
In its third assignment, Plaintiff asserts that “[t]he trial court erred in ruling
against appellant for appellant’s failure to produce the physical fence used by the
appellee.” This assignment misstates the record before us.
In its written reasons, the trial court pointed out the obvious: the subject
fencing (the real evidence) had not been produced or otherwise utilized by Plaintiff
at trial. As noted above, Alex testified that he removed the fencing materials used
by Bayonne and disposed of them. Thus, the trial court correctly noted that
“[b]ecause there is no physical evidence of the fencing that was installed by Bayonne
Fencing, it becomes a credibility issue.” And as between Alex and Dedrick, the trial
court found that Dedrick was the more credible witness. The trial court accepted
Dedrick’s testimony as the basis for its decision. And we again find no manifest
error in that determination. Consequently, this assignment of error also lacks merit.
5 DISPOSITION
For the above reasons, we affirm the trial court’s judgment of February 24,
2022. The costs of this appeal are assessed to Plaintiff, Louisiana Storage Manning,
LLC.
AFFIRMED.
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Uniform Rules, Courts of Appeal, Rule 2-16.