Southern Siding Co. v. Raymond

703 So. 2d 44, 96 La.App. 1 Cir. 2168, 1997 La. App. LEXIS 2360, 1997 WL 600764
CourtLouisiana Court of Appeal
DecidedSeptember 19, 1997
DocketNo. 96 CA 2168
StatusPublished
Cited by3 cases

This text of 703 So. 2d 44 (Southern Siding Co. v. Raymond) 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
Southern Siding Co. v. Raymond, 703 So. 2d 44, 96 La.App. 1 Cir. 2168, 1997 La. App. LEXIS 2360, 1997 WL 600764 (La. Ct. App. 1997).

Opinions

I2FOGG, Judge.

In this collection suit, third-party defendant, Eric O. Person, appeals from a judgment awarding Mr. and Mrs. Paul Raymond damages for violation by Person of the Federal Fair Debt Collection Practices Act1 (hereinafter “FDCPA”), 15 U.S.C. § 1692 et seq.

Southern Siding Company, Inc. and Mr. and Mrs. Paul Raymond entered into a contract on November 13, 1990 wherein Southern Siding agreed to manufacture and install twenty-five custom-made thermo-seal insulating windows in the Raymond home for a purchase price of $17,500. The terms of the sale included a $3,000 down-payment by personal check and a promissory note in the [46]*46amount of $14,500 to cover the remaining balance.

Within a few hours of the sale, the Ray-monds telephoned Southern Siding to notify the company that they desired to cancel the order. The sales representative returned to their home in an effort to convince the couple to follow through with the terms of the contract. Despite this, the Raymonds cancelled the contract and stopped payment on their $3,000 check. In addition to verbal cancellation, on the same day the Raymonds sent a letter via certified mail, return receipt requested, stating that they wished to have their order cancelled.

Southern Siding immediately presented the matter to attorney Eric O. Person for collection. At the direction of the company, Mr. Person sent a demand letter addressed to Mr. and Mrs. Raymond via overnight express mail. In the letter, dated November 16, 1990, Mr. Person advised that, because the couple was not entitled to a rescission of the contract, he could sue them for over $21,000. Furthermore, he threatened that if the couple did not pay the full amount of the contract within fifteen days, he would be forced to have a hen placed against their home and to hpress criminal charges against Mr. Raymond for the “worthless cheek.” He warned the couple that such a charge is serious and “can lead to jail time.”

Southern Siding filed the instant suit against the Raymonds for breach of contract in January of 1991. The couple filed a reeon-ventional demand against the company and a third-party demand against Mr. Person alleging that his collection letter violated the FDCPA. Prior to trial, the claims between Southern Siding and the Raymonds were settled.

Relative to their claim against Mr. Person, the Raymonds filed a motion for partial summary judgment. Although the motion was initially opposed, on the morning of trial Mr. Person entered an oral stipulation to liability under the FDCPA. Evidence relative to the issue of damages was presented at trial.

The trial court found that the Raymonds were entitled to damages as follows: (1) $1,000 each in statutory damages; (2) $12,500 in general damages to Mr. Raymond for “physical pain and suffering” and “mental pain and anguish;” (3) $7,500 in general damages to Mrs. Raymond for “mental pain and anguish;” and (4) $5,000 for attorney fees. From this judgment, Mr. Person filed a motion for new trial which was denied by the trial judge.

On appeal, Mr. Person contends initially that the general damage awards to Mr. and Mrs. Raymond are excessive and unsupported by law and evidence. The trier of fact has much discretion in the assessment of damage awards in tort actions. LSA-C.C. art. 2324.1. We note the appellate standard of review of these damage awards as set forth by the Louisiana Supreme Court in Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993):

Our jurisprudence has consistently held that in the assessment of damages, much discretion is left to the judge or jury, and upon appellate review such awards will be disturbed only when there has been a clear abuse of discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). And, “[i]t is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review be considered either excessive or insufficient,” Reck v. Stevens, 373 So.2d 498, 501 (La.1979). Appellate courts review the evidence in the light which most favorably supports the judgment to determine whether the, trier of fact was clearly wrong in its conclusions. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Before an appellate court can disturb the quantum of an award, the record must clearly reveal that the jury abused its discretion. In order to make this determination, the reviewing court looks first to the individual circumstances of the injured plaintiff. Only after analysis of the facts and circumstances peculiar to the particular case and plaintiff may an appellate court conclude that the award is inadequate. See Reck v. Stevens, supra; Cariere v. State Farm Insurance Co., 467 So.2d 867 (La.App. 2d Cir.1985).
Prior awards under similar circumstances serve only as a general guide. If the [47]*47appellate court determines that an abuse of discretion has been committed, it is then appropriate to resort to a review of prior awards, to determine the appropriate modification of the award. In such review, the test is whether the present award is greatly disproportionate to the mass of past awards for truly similar injuries. See Reck v. Stevens, supra; Wactor v. Pickens Lumber Co., 505 So.2d 815 (La.App. 2 Cir. 1987), writ denied, 508 So.2d 827 (La.1987). In instances where the appellate court is compelled to modify awards, the award will only be disturbed to the extent of lowering or raising an award to the highest or lowest point which is reasonably within the discretion afforded the trial court. American Motorist Insurance Company v. American Rent-All, Inc., 579 So.2d 429 (La.1991); Scott v. Hospital Service District No. 1 of the Parish of St. Charles, 496 So.2d 270 (La.1986); Camilo v. Wilson, 353 So.2d 249 (La.1977); Coco v. Winston Industries, Inc., supra.

Appellate review of damages awarded pursuant to the FDCPA is governed by this clear abuse of discretion standard. Carroll v. Wolpoff & Abramson, 53 F.3d 626 (4th Cir.1995).

Considering the evidence presented at trial, we conclude that the trial court’s assessment of damages is grossly excessive and does not bear a reasonable relationship to the damages proven. See Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). In the instant case, the evidence supports the conclusion that Mr. Person’s letter caused the Ray-monds to suffer undue stress, anxiety, and sleeplessness. Both testified that the correspondence caused them to fear the loss of their home (which was paid for) as the result of a lien being placed against it. Furthermore, the Raymonds were fearful that Mr. Raymond would be criminally prosecuted and incarcerated on a “worthless check” charge. Mr. Raymond acknowledged that his attorney advised him not to take the threat of jail seriously, but noted that it was “easy for someone else to tell you not to take the threat seriously, but when the threat is against you, |5personally, you have to pay attention to it, and it concerned me quite a bit.”

Mr. Raymond testified that he sought medical treatment after becoming withdrawn and depressed over the situation.

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703 So. 2d 44, 96 La.App. 1 Cir. 2168, 1997 La. App. LEXIS 2360, 1997 WL 600764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southern-siding-co-v-raymond-lactapp-1997.