Mears v. Midco Louisiana Co.

449 So. 2d 592, 1984 La. App. LEXIS 8523
CourtLouisiana Court of Appeal
DecidedApril 3, 1984
DocketNos. 83 CA 0560, 83 CA 0561
StatusPublished

This text of 449 So. 2d 592 (Mears v. Midco Louisiana Co.) 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
Mears v. Midco Louisiana Co., 449 So. 2d 592, 1984 La. App. LEXIS 8523 (La. Ct. App. 1984).

Opinion

SAVOIE, Judge.

Originally, Herbert G. Mears sued Midco Louisiana Company (Midco) for damages resulting in Midco’s delay in repairing Mears’ dozer. In response thereto, Midco [594]*594filed a separate suit against Mears, d/b/a Mears Sand & Gravel, on open account, representing the cost of the repairs made to the dozer.1 These two suits were consolidated for trial.

With respect to the first suit, the trial court awarded Mears $2,000.00 in damages for Midco’s inordinately long delay in repairing the dozer. As to the latter suit, the trial court determined the cost of the overhaul to be $8,000.00 and awarded this sum to Midco.2 In addition, the trial court awarded Midco attorney's fees in the amount of 25°/° of the principal and interest owed.

Both parties have appealed the award for the transmission repair work. In addition, Midco contends the trial court erred in awarding $2,000.00 for loss of business profits to Mears. Further, Mears assigns as error the trial court’s granting of attorney’s fees on the open account.

I. AWARDS FOR TRANSMISSION REPAIR WORK AND ATTORNEY FEES

At the outset of the trial, Mears stipulated that if the repairs were properly made, then Midco’s demand therefor met all procedural requirements under the open account statute.3 Therefore, the only question before the trial court with respect to the suit on open account was whether the repairs were properly made.

The record reflects that in September, 1978, Mears’ dozer failed to operate in low gear, and the second and high gears were weak. Further, the dozer would not pull correctly and would overheat. With respect thereto, Robert Mears called Midco about repairing the dozer. He talked with Midco’s shop foreman, Jerry Harris, who advised rebuilding the transmission. The dozer was tendered to Midco for his repair work. The repair work was done and on November 16, Mears picked up the dozer. In mid-January, mechanical problems recurred. Midco was called and it discovered that the charging pump shaft was sheared off. Midco changed the pump at no cost to Mears. Later, in January, the dozer was losing low gear power and would not steer properly. Again, Midco came out and, this time, changed the steering valve.4 Thereafter, the dozer became inoperable in low gear. Although Midco made several requests for Mears to return the dozer for further investigation of the problem, Mears refused to do so. Neither did Mears take the dozer to any other company for further repairs.

Mears contends that Midco’s repair work was defective and thus, Mears does not have to pay for such work. While it is true that the owner is not required to pay for defective repairs, Wendelken Machine Shop, Inc. v. Dibert, Bancroft & Ross Co., Ltd., 279 So.2d 226, 228 (La.App. 1st Cir. 1973), the burden is on the party alleging defective repairs to prove same by a preponderance of the evidence.

In this instance, the record is devoid of any proof that the recurrence of the low gear failure was caused by defective repairs by Midco. The record reflects only that the problem recurred. Thus, in the absence of any proof that the repair work [595]*595done by Midco was done in an improper manner and was defective, Midco is entitled to be paid for its work. See Wendelken Machine Shop, Inc., supra.

As previously noted, Mears stipulated the cost of the repair work, if properly done, was the $15,520.81 demanded by Mid-co. By such stipulation, any question as to the amount owed by Mears on the open account was removed from the purview of the trial court. Accordingly, the trial court erred in determining that $8,000.00 was the binding sum for the cost of the overhaul, which cost formed the basis of Midco’s open account suit.

Further, due to Mears’ stipulation that the procedural requirements of L.S. A.-R.S. 9:2781 were met, Mears is liable also for attorney fees. The trial court awarded 25% of the principal and interest owed and we find this award is proper.

II. AWARD OF $2,000.00 TO MEARS

Midco contends the trial court’s award of $2,000.00 for loss of business profits was based purely on speculation. It claims that Mears failed to prove that Midco was delinquent in repairing the dozer and, if it was, that Mears did not prove any business loss as a result thereof. We note that these claims by Midco contradict the trial court’s factual findings.

The trial court found that delay in repairing the dozer was inordinately long under the circumstances and, therefore, unreasonable. In reaching this conclusion, the trial court noted that while no fixed period was set for completion of the repairs, Mid-co was advised of the urgency for the work to be done. Further, the trial court believed that Harris, Midco’s shop foreman, made some assurance to Mears that the repairs would be completed within three to four weeks, excepting some delay for delivery of parts. No such parts delivery delay was found by the court.

Factual findings by the trial court based on its reasonable evaluations of credibility are entitled to great weight and should not be overturned on appeal absent manifest error. Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973), rehearing denied, Oct. 26, 1973.

In support of the trial court’s findings, we note that Harris testified that he estimated the repair time to be three to four weeks, which is the normal time frame for such work. According to Robert Mears, the dozer was delivered on September 6, 1978. Midco’s invoice indicates that work was not begun until the 22nd and, then, only on the 22nd and 23rd for the month of September. Work was not resumed thereon until October 4th. Although the invoice shows the last work was performed on October 31, Robert and Ray Mears testified the dozer was not released to them until November 16. Even assuming the dozer could have been picked up at the earlier date, Midco would have had the dozer for almost eight weeks. Although Harris mentioned at one point in his testimony that he had ordered parts for the dozer, he did not attribute any delay in repair to this fact.

Further, Robert Mears testified that he informed Midco as to the urgency of the repairs. Although Harris testified to the contrary, it can be inferred by the tremendous amount of overtime that was charged to this job that Midco was aware of this fact. Midco’s service department invoice shows that, beginning on September 23, the second day any work was performed on the dozer, out of a total of over 150 hours charged to the job, the regular hours and the overtime hours were approximately the same.

In light of the above, we find no error in the trial court’s findings and its conclusions that the delay time in repairing the dozer was unreasonable.

As to the issue of damages for delay, L.S.A.-C.C. art. 1930 and 2769 provide:

“1930. Liability for violation of contract “The obligations of contract [contracts] extending to whatsoever is incident to such contracts, the party who violates them, is liable, as one of the incidents of his obligations, to the payment of the [596]*596damages, which the other party has sustained by his default.”
“2769. Contractor’s liability for noncompliance with contract

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Related

Almerico v. Highlands Ins. Co.
388 So. 2d 1176 (Louisiana Court of Appeal, 1980)
Canter v. Koehring Company
283 So. 2d 716 (Supreme Court of Louisiana, 1973)
Folds v. Red Arrow Towbar Sales Co.
378 So. 2d 1054 (Louisiana Court of Appeal, 1979)
Wendelken Machine Shop, Inc. v. Dibert, Bancroft & Ross Co.
279 So. 2d 226 (Louisiana Court of Appeal, 1973)

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Bluebook (online)
449 So. 2d 592, 1984 La. App. LEXIS 8523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mears-v-midco-louisiana-co-lactapp-1984.