Wilson v. T & T Auto Repair & Towing, LLC

180 So. 3d 437, 2015 La. App. LEXIS 1903, 2015 WL 5715454
CourtLouisiana Court of Appeal
DecidedSeptember 30, 2015
DocketNo. 50,095-CA
StatusPublished
Cited by4 cases

This text of 180 So. 3d 437 (Wilson v. T & T Auto Repair & Towing, LLC) 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
Wilson v. T & T Auto Repair & Towing, LLC, 180 So. 3d 437, 2015 La. App. LEXIS 1903, 2015 WL 5715454 (La. Ct. App. 2015).

Opinion

PITMAN,J.

|) Defendant T <& T Auto Repair and Towing, LLG, appeals the judgment of the West Monroe City Court rendered in favor of Plaintiff Kimberly Wilson awarding her damages of $3,275 for the wrongful conversion of her automobile and general damages and attorney fees of $2,500 under the Louisiana Unfair Trade Practices .Act (“LUTPA”). For the following reasons, we affirm. ■

FACTS

On February 5, 2013, Plaintiff purchased a 1997 Honda Accord from Milner Auto Sales in Monroe. On February 11, 2013, the car broke down at the AutoZone in West Monroe. An employee of AutoZone told her she could leave the car in the parking lot, where it remained for approximately three months. On February 26, 2013, Plaintiff filed suit in Monroe City [439]*439Court, against Milner Auto Sales seeking to rescind the sale of the vehicle.

On May 14, 2013, the raanagér of Auto-Zone, Jeff Sturdivent, called the West Monroe Police Department to determine how he could have the car removed from his lot. In accordance with police instructions, he called Defendant to remove the car, whereupon a driver was immediately dispatched and the car was towed that day..

Plaintiff noticed the car was no longer parked at AutoZone; and calléd the business to find out 'where it was. She was told that it had been towed by Defendant' and was at its lot. She then contacted Defendant and was told where the car was located and the amount due for it to be released. On May 16, 2013, Defendant sent her a “Right to Hearing” notice showing a balance due of $204.12.' Plaintiff claimed she never 'received the notice, I ¿which was sent by regular mail instead of certified mail.1 Notice was sent to Defendant that litigation was pending over the ownership of the car/rescission of the sale. Plaintiff made no effort to pay Defendant or to regain possession of the car.

On June 10, 2013, attorneys for both Plaintiff and Milner Auto* Sales examined the vehicle at Defendant’s lot.

On July 1, 2013, Defendant sent a “final notice” to Plaintiff showing that the total amount now due was $1,060.02; however, because Plaintiff had moved, she did not receive the notice.

■ On September 30, 2013, a judgment was granted in Plaintiff’s favor in the suit against Milner Auto Sales, rescinding , the sale of the car and returning to her the purchase price of $3,401.02, as well as $205 for repairs to a CV joint and attorney fees of $2,852.50. That judgment was. not signed until December 6,2013.

In the interim, on October 16, 2013, a company named Towing and Recovery Professionals of Louisiana prepared the paperwork necessary for a “permit to sell” to be issued so that the title of the vehicle could be transferred to Defendant and the vehicle sold.

In early December 2013, a representative of Milner Auto Sales contacted Defendant inquiring about the vehicle and was informed that thé title had been transferred to Defendant, presumably because of unpaid | stowing and storage fees. Plaintiff also contacted Defendant asking to be notified about the status ■ of the car, but received no response.

On January 24, 2014, Plaintiffs attorney was advised that title to the car had been transferred to Defendant pursuant to the permit to sell and that the car was on the lot to be sold. Defendant claimed that it had expended $897.90 in repairs to the car before it could be sold. On an unknown date thereafter, the car was sold to Nikki Powell for $2,000. Defendant could not provide a copy of the bill of sale.

On February' 3, 2014, Plaintiff filed this suit against Defendant in West. Monroe City Court seeking either return of the car or the value of the car. She alleged that Defendant had engaged in unfair trade practices and sought general damages and attorney fees based on the LUTPA. On October 23, 2014, judgment was rendered in Plaintiffs favor “in the full amount of $3,275.00, .together with attorney’s fees and general damages in the amount of [440]*440$2,500.00.” The judgment was signed on November 11, 2014.

Defendant now appeals that judgment.

DISCUSSION

Defendant argues that the trial court erred (1) in its finding that Defendant did not comply with the Louisiana Towing and Storage Act, La. R.S. 32:1711, et seq. (“LTSA”); (2) in awarding Plaintiff $3,275 for damages under the LTSA, which only allows the extinguishment of towing and storage fees; and (3) in awarding attorney fees under the LUTPA, which is inapplicable to the facts of this case.

LPlaintiff argues that the issues are: (1) whether Defendant sold the vehicle without complying with the requirements of the LTSA; (2) whether Defendant’s sale of the vehicle constituted a conversion and was an unfair trade practice in violation of the LUTPA; and (3) whether the trial court erred in awarding excessive damages and/or in awarding attorney fees.

Defendant argues that towing companies are under the jurisdiction of the Department of Safety and Corrections and that the penalty for not following the LTSA is found in La. R.S. 32:1724. Under Part A of that statute, any person who fails to comply with any provision required by the chapter “shall forfeit all claims for towing services and storage of such vehicles and shall be subject to an administrative fine.” Defendant claims it complied with all aspects of the law; and, therefore, the only penalty which could be assessed against it is forfeiture of its $1,060.02 claim for towing and storage fees. It asserts that it spent $897.90 to repair the vehicle so it could be sold. It further argues that all parties knew where the vehicle was located, but failed to take any action to preserve it; and, therefore, it should not be penalized for the other parties’ inaction.

Defendant asserts that attorney fees are not allowed unless authorized by statute and that Plaintiff failed to cite any authority by which attorney fees could be awarded. It claims that the LUTPA is inapplicable to a regulated towing company and that attorney fees should not have been awarded under that statute.

Plaintiff argues that Defendant towed her vehicle, illegally acquired title to it and sold it. She contends that the law requires that she receive ^notice by certified mail that the towing and storage company has possession of her car, of the amount due and of its intention to seize and sell the car. She further asserts that neither she, nor her attorney, ever received notice of the towing and storage fees accruing or of the proposed sale, even though Defendant was aware rescission of the sale of the car was in the process of being litigated.

Plaintiff also argues that the law requires Defendant to keep for three years all records relating to the towing and sale of a vehicle, and only a few records relating to the sale of her vehicle were produced by Defendant at trial. She claims that those records, and the lack thereof, affirmatively document that Defendant did not follow the procedures required by law prior to the sale of a stored motor vehicle. There were no receipts for the notices, which should have been sent by certified mail, and no bill of sale of the vehicle by Defendant to Nikld Powell was produced. Thus, Plaintiff argues, Defendant violated the LTSA.

Plaintiff further argues that the sale of her vehicle was a conversion and, as such, constituted a claim for damages and attorney fees under the LUTPA.

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180 So. 3d 437, 2015 La. App. LEXIS 1903, 2015 WL 5715454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-t-t-auto-repair-towing-llc-lactapp-2015.