Morton M. Goldberg Auction Galleries, Inc. v. Canco, Inc.

650 So. 2d 801, 94 La.App. 4 Cir. 0734, 1995 La. App. LEXIS 100, 1995 WL 36222
CourtLouisiana Court of Appeal
DecidedJanuary 31, 1995
Docket94-CA-0734
StatusPublished
Cited by5 cases

This text of 650 So. 2d 801 (Morton M. Goldberg Auction Galleries, Inc. v. Canco, Inc.) 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
Morton M. Goldberg Auction Galleries, Inc. v. Canco, Inc., 650 So. 2d 801, 94 La.App. 4 Cir. 0734, 1995 La. App. LEXIS 100, 1995 WL 36222 (La. Ct. App. 1995).

Opinion

650 So.2d 801 (1995)

MORTON M. GOLDBERG AUCTION GALLERIES, INC., et al.
v.
CANCO, INC., et al.

No. 94-CA-0734.

Court of Appeal of Louisiana, Fourth Circuit.

January 31, 1995.

*802 Frank H. Walk, Jr., New Orleans, for appellant, Morton M. Goldberg Auction Galleries, Inc.

Arthur W. Landry, Plauche, Maselli & Landry, New Orleans, for appellees Canco, Inc. and American Mfrs. Mut. Ins. Co.

Robert M. Johnston, Anne Derbes Keller, Shannon Howard-Duhon, Adams and Johnston, New Orleans, for appellee Whitney Nat. Bank.

René A. Pastorek, Neal & Pastorek, Metairie, for appellee Mintz & Mintz Realty, Inc.

Before BARRY, PLOTKIN and WALTZER, JJ.

PLOTKIN, Judge.

Following a bench trial on the merits, plaintiff, Morton M. Goldberg Auction Galleries, Inc., brings this appeal seeking an increase in damages for lost profits it was awarded against defendants, Canco, Inc. ("Canco"), Whitney National Bank ("the Whitney"), and Mintz & Mintz Realty, Inc. ("Mintz & Mintz"). Based on our review of the record, we affirm.

FACTS

Plaintiff is a well-known dealer of antiques in the New Orleans area. In November of 1990, it moved its business from Magazine Street to a building located at 543-47 Baronne Street. Plaintiff leased the building from its owner, defendant Mintz & Mintz. Defendant Canco owned an adjoining piece of property fronting on Dryades Street known as the Civic Theatre. This piece of property included an arcade alleyway. Also adjoining plaintiff's building was a building owned by defendant the Whitney.

On June 10, 1991, metropolitan New Orleans suffered a serious rainstorm. According to plaintiff's petition, as a result of this deluge, rain water fell onto defendants' buildings, drained into the arcade alleyway, and ultimately overflowed into plaintiff's premises. Plaintiff alleged that the water caused damage to his business, including the costs of cleaning up the mess created by the flood and lost profits. Plaintiff brought suit against defendants on June 5, 1992.

The matter went to bench trial on February 8 and 9, 1994. On the morning of trial, defendants stipulated to their shares of liability, apportioning 90% to Canco and 5% each to the Whitney and Mintz & Mintz. At the close of the trial, the court took the matter under advisement. On February 11, 1994, the trial court rendered its decision, finding defendants at fault in causing the flooding of plaintiff's premises. It awarded plaintiff $28,650.28 in special damages and $27,157 in lost profits. Plaintiff has appealed devolutively, attacking only the trial court's award of damages for lost profits.

ISSUES

The only issue that we must resolve is whether the trial court was correct in calculating plaintiff's award for business interruption losses. However, in order to answer this inquiry, we are required to resolve four discreet sub-issues, to-wit:

1. Whether the trial court erred in subtracting fixed expenses from gross revenues in its calculation of lost profits?

2. Whether the trial court erred in relying on the regression analysis offered by defendants' expert witness to calculate plaintiff's lost profits?

*803 3. Whether the trial court erred in awarding lost profits only for the three months following the flood?

4. Whether the trial court erred in denying an award of lost profits following plaintiff's European buying trip in August, 1991? We will address each of these questions in turn.

DISCUSSION

Deduction of Fixed Expenses

In its first assignment of error, plaintiff contends that the trial court erred in deducting fixed expenses in calculating plaintiff's lost profits. Defendants contend that both variable and fixed expenses must be deducted in calculating lost profits. In its Reasons for Judgment, the trial court noted in pertinent part:

[W]ith respect to the loss of profit or business interruption the Court finds that the approach by Dr. Wood [defendants' expert] with respect to lost revenues, cost of goods sold and variable costs is more appropriate than the competing conceptual approach and figures by Mr. Berger and Mr. Boudreaux [plaintiff's experts].
The plaintiff experts calculated loss profits by subtracting variable costs from revenues but not fixed costs. Dr. Wood subtracted both variable costs as well as fixed costs.
This latter method is the appropriate method and is in accordance with the decision in Graham v. Edwards, [614 So.2d 811, 819 (La.App. 2d Cir.1993)].

Before turning to an examination of the merits of plaintiff's claim, we must first address defendants' contention that the trial court's written reasons for judgment are not subject to appellate review. In support of this argument, defendants cite this court's statement in Cornelius v. Housing Authority of New Orleans, 539 So.2d 1250 (La.App. 4th Cir.1989), that "[w]ritten reasons for a judgment do not constitute the judgment and are not appealable. Thus our review is limited to the trial court's result, i.e., its judgment and not the reasons." Id. at 1252 (citations omitted). Defendants also point to similar language in this court's decision in Succession of Velasquez-Bain, 471 So.2d 731, 751 (La.App. 4th Cir.), writ denied, 476 So.2d 354 (La. 1985).

Defendants' argument is misplaced. In both Cornelius and Velasquez-Bain, this court was addressing cases in which the trial court had entered a single, combined judgment and reasons for judgment. Such a document contravenes the requirements of Code of Civil Procedure article 1918, which states that written reasons for judgment "shall be set out in an opinion separate from the judgment." La.C.C.P. art. 1918. Thus, in cases in which the trial judge has failed to comply with article 1918, only the "judgment" portion of the document in question is appealable. However, this does not mean that the appellate court may not consider the trial court's reasons for judgment when it reviews the record and applies the appropriate standard of review. In fact, the entire reason for having the trial court provide written reasons for judgment is to furnish the appellate court with guidance in understanding how the lower court reached its decision. As we noted in Velasquez-Bain, "it is the preference of the appellate court to receive written reasons for judgment." 471 So.2d at 751 n. 16. Defendants' contention that we may not examine the trial court's reasons for judgment in this case is without merit.

In order to facilitate resolution of the question we now confront, a brief statement of economic principles relied on by the experts in this case is necessary. All businesses have two categories of expenses: fixed costs and variable costs. As explained by plaintiff's expert, Mr. Kent Berger, fixed costs "are those costs that the business must expend regardless of the sales level. For example, something like rent." In contrast, variable expenses are those that change in relation to the level of sales by a business. Naquin v. Department of Trans. & Dev., 604 So.2d 62, 68 (La.App. 1st Cir.), writ denied, 608 So.2d 169 (La.1992). The court in David Sloane, Inc. v. Stanley G. House & Assocs., Inc., 311 Md. 36, 532 A.2d 694 (1987), offers this explanation of the distinction between fixed and variable costs:

In the broad sense, all of the seller's costs are necessary to the production of revenues.

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650 So. 2d 801, 94 La.App. 4 Cir. 0734, 1995 La. App. LEXIS 100, 1995 WL 36222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morton-m-goldberg-auction-galleries-inc-v-canco-inc-lactapp-1995.