Waterbury v. Quebedeaux

497 So. 2d 382, 1986 La. App. LEXIS 8052
CourtLouisiana Court of Appeal
DecidedNovember 5, 1986
DocketNo. 86-4
StatusPublished
Cited by2 cases

This text of 497 So. 2d 382 (Waterbury v. Quebedeaux) 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
Waterbury v. Quebedeaux, 497 So. 2d 382, 1986 La. App. LEXIS 8052 (La. Ct. App. 1986).

Opinion

LABORDE, Judge.

This is a suit for wrongful conversion. Plaintiff, Robert L. Waterbury, appeals the trial court’s determination that the sale of Mr. Waterbury’s car by defendant, L.J. Quebedeaux, was proper pursuant to LSA-R.S. 32:521. The trial court denied plaintiffs damage demand for the seizure and sale of the car along with plaintiffs demand for embarrassment and inconvenience damages. The trial court also denied the reconventional demand asserted by L.J. Quebedeaux for wrecker and storage fees. Both plaintiff and defendant appeal. We affirm.

FACTS

On July 1, 1980, plaintiff, while attempting to enter his driveway, allegedly bogged down his 1979 Ford LTD on a mound of dirt. The car was stuck in a disputed area which may or may not have been part of a portion of land expropriated by the State of Louisiana as a highway right-of-way. The plaintiff, at that time, had a judgment against him which prevented him from “contacting, harassing, delaying, harming, threatening, obstructing and/or preventing in any manner whatsoever, any person or persons from working on the [expropriated] property.” After plaintiff left the scene, the state police arrived and had defendant tow plaintiffs automobile to his Union Street service station. Plaintiff returned to the road within one hour of the car allegedly being bogged down. He noted the disappearance, but investigated no further. The defendant held the plaintiffs vehicle for a few days at his Union Street station and then had it towed to a storage facility on Compress Road. Defendant testified that he kept towed automobiles at his Union Street station for a couple of days and then he would routinely move them to his Compress Road facility as a safety measure.

Beyond the initial towing of the defendant’s automobile, the testimony of the plaintiff and defendant is conflicting as to when the plaintiff first knew his automobile was in the possession of the defendant. Morgan Goudeau, St. Landry Parish District Attorney, testified that the plaintiff notified him regarding the disappearance of his automobile in 1980 and a number of times thereafter. Goudeau testified he advised the plaintiff to contact the state police and possibly contact an attorney because of the expropriation suit. The record reflects that at that time the plaintiff did neither.

In July of 1980, the defendant notified the Louisiana state police by mail that the plaintiff’s 1979 Ford LTD was in his possession. The state police wrote back notifying the defendant that the vehicle was registered in the name of the plaintiff, Robert L. Waterbury. Three months later, in October of 1980, the plaintiff notified the St. Landry Parish Sheriff’s office that his vehicle was missing. The record shows that the next day, while checking on his vehicle, the plaintiff was informed by a sheriff’s deputy, Milton Hargroder, that his automobile had not been stolen, but was in the possession of the defendant. Plaintiff denies this testimony.

In April of 1981, defendant sent a registered letter to plaintiff informing him that his vehicle could be recovered by paying the wrecker and storage fees. The plaintiff never responded. Instead, the plaintiff filed suit 1½ years later for wrongful seizure. The suit was dismissed under an exception of prescription. In [384]*384June of 1983, two years after the letter was received by the plaintiff, the defendant decided to sell the plaintiff’s automobile to recoup the wrecker and storage fees. On June 17, 1983, the defendant’s attorney sent a letter to the plaintiff informing him (1) where the vehicle was located; (2) the outstanding wrecker and storage fees; and (3) that the automobile would be sold pursuant to LSA-R.S. 32:521, if not retrieved by the plaintiff within 15 days.

On July 5, 1983, the defendant obtained two “appraisals” in the amount of $675.00 and $600.00. Subsequently, application was made and granted by the Department of Public Safety, State of Louisiana, to sell the vehicle. On July 27, 1983, after advertisement in the local newspaper as required under LSA-R.S. 32:521, the automobile was sold by public auction to the defendant’s son for $425.00, two-thirds of the high and low “appraisals.” The next day, the plaintiff went to the defendant’s service station and proceeded to get into the automobile, start the engine and move it towards the gas pump. At this point, the plaintiff was stopped and confronted by the defendant. The City Police were called and plaintiff was taken into custody. On November 3, 1983, plaintiff filed the present suit alleging wrongful sale and demanding the return of his automobile and damages for its deterioration plus damages for humiliation, inconvenience, and embarrassment.

The trial court found “[t]hat the defendant was not a depository in such a status that required him to protect the automobile from ordinary wear and tear, weather or passage of time.” The court also found that the “plaintiff deliberately refused to regain his car” after learning of its whereabouts in October of 1980. Instead, the plaintiff decided to play a waiting game for purposes of his own. Further, the court found that the appraisal of the automobile, although technically defective in procedure, would be allowed and that the sale was valid under LSA-R.S. 32:521. Having found the sale of the automobile valid, the trial court denied any damages. Further, the defendant was also denied any wrecker or storage fees. In this case, the defendant received $425.00 for wrecker and storage fees totaling $5,240.00.

ASSIGNMENT OF ERROR NUMBER 1

Plaintiff asserts that “[t]he trial court erred in finding that the operator of a towing service and storage yard who picked up an automobile and held it as a compensated bailee, pusuant to the provisions of La.R.S. 32:521, was not a depositary, or in such status, that he would be required to protect the automobile in any fashion while it was in his possession.”

Plaintiff would have us rely on the principles of a compensated deposit as explained in Douglas v. Haro, 32 So.2d 387 (La.App.1947), reversed on other grounds, 214 La. 1099, 39 So.2d 744 (La.1949). In Douglas, the court explains the concept of a depository and how one put in possession of property has a responsibility of protecting that property. In Douglas, an automobile garage accepted for storage a vehicle which was later taken from the premises by an employee and wrecked. The garage was found liable and had to pay damages to the owner of the wrecked automobile.

Defendant cites Swain v. Hymel, 377 So.2d 888 (La.App. 4th Cir.1979), where the plaintiff brought suit for the value of his automobile which plaintiff claimed was lost while in the possession of the defendant. In Swain, the plaintiff’s automobile was towed at the request of the state police. The plaintiff removed some articles from his automobile the next day. The court held that once the defendant knew the location of his automobile and did nothing to protect it “until somebody told the plaintiff that defendant had moved his vehicle,” constituted abandonment. Since the plaintiff effectively abandoned the vehicle by leaving it with the defendant from September of 1972 until May of 1974, the plaintiff was responsible for the vehicle and could not “shift to defendant his blame for failing to protect his property over a long period of time.” Id. at 888.

In the instant case, the plaintiff's car was removed from the highway right-[385]*385of-way in July of 1980. The trial court found that the plaintiff knew in October of 1980 the location of his vehicle.

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Related

Fike v. Fike
719 So. 2d 716 (Louisiana Court of Appeal, 1998)
Waterbury v. Quebedeaux
499 So. 2d 88 (Supreme Court of Louisiana, 1987)

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Bluebook (online)
497 So. 2d 382, 1986 La. App. LEXIS 8052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waterbury-v-quebedeaux-lactapp-1986.