Razorback Oil Tools v. Taylor Oil Tools

626 So. 2d 28, 1993 WL 429027
CourtLouisiana Court of Appeal
DecidedOctober 15, 1993
Docket92 CA 1708
StatusPublished
Cited by2 cases

This text of 626 So. 2d 28 (Razorback Oil Tools v. Taylor Oil Tools) 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
Razorback Oil Tools v. Taylor Oil Tools, 626 So. 2d 28, 1993 WL 429027 (La. Ct. App. 1993).

Opinion

626 So.2d 28 (1993)

RAZORBACK OIL TOOLS INTERNATIONAL, INC. and Roscoe B. Smith
v.
TAYLOR OIL TOOLS COMPANY and William T. Taylor.

No. 92 CA 1708.

Court of Appeal of Louisiana, First Circuit.

October 15, 1993.

*29 Bernard F. Levy, Houma, for plaintiff and appellant, Razorback Oil Tools et al.

Robert Picou, Guy Matthews, Houma, for defendants and appellees, Taylor Oil Tools et al.

William W. Stagg, Lafayette, for Taylor Oil Tools Co., et al.

Before WATKINS, SHORTESS and FOGG, JJ.

WATKINS, Judge.

In this breach of contract suit, the trial court rendered judgment in excess of $15 million on a reconventional demand. Finding merit in appellants' contention that the court erred in failing to grant a new trial, we reverse and remand.

On September 11, 1990, Razorback Oil Tools International, Inc. (Razorback) and Roscoe B. Smith filed suit against William T. Taylor and Taylor Oil Tools Company (Taylor Tools). The petitioners alleged that on April 4, 1988, Mr. Smith and Mr. Taylor entered into an agreement for Mr. Smith to buy from Mr. Taylor certain patents, patent applications, designs, drawings, and product inventions (referred to as "tools"), as well as trade secrets of certain unpatentable tools. The seller, Mr. Taylor, agreed "[t]o oversee all research and development, engineering, the filing of patent applications, the building and testing of proto-types"; to make himself available on a full-time basis for further duties until such time as the buyer was producing the tools; and to perform the obligations without the payment of salary to him. The buyer, Mr. Smith, agreed to commence production within six months or as each of the tools became available, "[t]o pay all legal and agent expenses on all patent applications, renewals and maintenance"; to market the tools worldwide on a "best effort" basis; and to defend against all patent infringements from any other party. The purchase price stated in the agreement was $650,000.00, which was to be payable on a scheduled time payment.[1] However, the agreement contained the provision that the full balance of the purchase price would be paid when the buyer became "financially capable." In addition to the purchase price, the buyer agreed to pay to the seller a royalty of seven percent of gross revenues for sales of the tools during the life of the patents. The petition continues to allege that Mr. Taylor breached the agreement by failing, since approximately May of 1990, to undertake and fulfill the agreed-upon duties.

*30 The petitioners further alleged that on August 25, 1989, Razorback entered into an exclusive license agreement with Mr. Taylor and Taylor Tools for Mr. Taylor and Taylor Tools to market wireline, coil tubing, and snubbing fishing tools manufactured by Razorback. Petitioners claimed certain tools were manufactured and delivered, but not paid for; they demanded payment of balances of $4,000.00 and $55,338.75, on tools delivered to Taylor Tools, as well as payment of $37,825.00 for tools ordered by Mr. Taylor and not delivered.

On February 15, 1991, Mr. Taylor and Taylor Tools filed an "amended original answer and counterclaims." On July 18, 1991, a court order was issued setting a bench trial for September 9, 1991, which date was later changed to September 26, 1991. On August 28, 1991, Michael D. Carbo and Jerry H. Schwab filed a motion to withdraw as counsel for Mr. Smith and Razorback.[2] The trial judge, absent objection by counsel for Mr. Taylor, granted Mr. Schwab's motion to withdraw. In denying Mr. Carbo's motion to withdraw, the court stated, in pertinent part:

The record in this case establishes that Mr. Carbo has represented the plaintiffs since this action was originally filed on September 11, 1990. The Motion to Withdraw was filed on August 12, 1991, exactly five months after counsel last spoke with his client and, more significantly, less than a month before the original trial date of September 9, 1991. Under these circumstances, allowing counsel to withdraw from the case at this time will be prejudicial to both his clients and defendants.

On September 26, 1991, counsel for Mr. Smith and Razorback filed several exceptions, including a declinatory exception of insufficiency of service of process on the ground that service of the amended answer and counterclaims was not made by the sheriff but was attempted by certified mail to the attorney of record for Razorback and Mr. Smith. The issue of insufficient service of process became moot when Mr. Carbo and counsel for Mr. Taylor agreed to a continuance, the trial was continued to February 3, 1992, and Mr. Taylor and Taylor Tools were able, during the interim, to refile their answer and counterclaims (reconventional demands) and obtain proper service on counsel of record.

The other exceptions filed on September 26, 1991, were denied by the trial court.[3]

On January 10, 1992, with no answer having been filed to the reconventional demands, counsel for Mr. Taylor took a preliminary default.

On January 29, 1992, Mr. Carbo filed another motion to withdraw as counsel, explaining that he had succeeded in making telephone contact with Mr. Smith in Dubai, United Arab Emirates, only on January 21, 1992. Immediately after the telephone conference, Mr. Carbo faxed to Mr. Smith the documents containing the demands of Mr. Taylor. The following day, Mr. Carbo confirmed by telephone that Mr. Smith had received and reviewed the documents, including the notice of trial for February 3, 1992. Mr. Carbo informed Mr. Smith that he was withdrawing as attorney of record for both Mr. Smith and Razorback. On January 30, 1992, absent objection by counsel for Mr. Taylor, the trial court granted Mr. Carbo's motion to withdraw as counsel of record. However, before withdrawing, to fulfill his duty to his clients, Mr. Carbo filed another motion to continue the trial, which was denied by the court, and filed several exceptions on behalf of Mr. Smith and Razorback.

On February 3, 1992, the matter was called for trial. Neither Mr. Smith nor a representative for him was present. Prior to hearing testimony on the confirmation of the default, the trial court overruled the exceptions *31 filed on January 30, 1992, observing that they were the same exceptions that had been considered on September 26, 1991.[4]

To confirm the default against Razorback and Mr. Smith, counsel for Mr. Taylor presented the testimony of the following witnesses: Mr. Taylor, Yvonne Taylor, Mark Taylor, Mark Fanguy, Don Owens, Steve Matherne, Terry Blanchard, and Robert L. Picou. Exhibits numbers 1 through 121, contained in counsel's trial book, were entered into evidence. Counsel specifically sought and received permission of the court to enter the copies of the promissory notes contained in the trial book in lieu of the originals. After hearing the testimony, the trial judge rendered judgment in open court against Razorback and Mr. Smith "as prayed for." Thereafter, the court signed a judgment on February 14, 1992, the various parts of which will be discussed hereinafter.

On February 26, 1992, Mr. Bernard F. Levy filed a motion to be enrolled as attorney of record for Razorback and Mr. Smith; at the same time he filed a motion for new trial on behalf of both Razorback and Mr. Smith. By judgment rendered May 15, 1992, and signed on May 20, 1992, the trial court denied Razorback's motion for new trial.[5]

NEW TRIAL

The pertinent Louisiana statutory provisions for granting a new trial are as follows:

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Related

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Cite This Page — Counsel Stack

Bluebook (online)
626 So. 2d 28, 1993 WL 429027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/razorback-oil-tools-v-taylor-oil-tools-lactapp-1993.