Opinion
2011 CA 2335
09-21-2012
H & E EQUIPMENT SERVICES, INC. v. BAYOU HEAVY CONSTRUCTION, LLC
Carrol] Devillier, Jr. Baton Rouge, Louisiana Attorneys for Plaintiff/Appellee H & E Equipment Services, Inc. Bernard L. Charbonnet, Jr. Darryl Harrison David M. Fink New Orleans, Louisiana Attorneys for Third-Party Defendants/Appellants Maritrend, Inc. and Bergeron Marine Services, Inc. Mark Alan Jolissaint Slidell, Louisiana Attorney for Defendant/Appellee Bayou Heavy Construction, LLC
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE TWENTY-SECOND DISTRICT COURT
IN AND FOR THE PARISH OF ST. TAMMANY
STATE OF LOUISIANA
DOCKET NUMBER 2007-11756
THE HONORABLE REGINALD T. BADEAUX, III, JUDGE
Carrol] Devillier, Jr.
Baton Rouge, Louisiana
Attorneys for Plaintiff/Appellee
H & E Equipment Services, Inc.
Bernard L. Charbonnet, Jr.
Darryl Harrison
David M. Fink
New Orleans, Louisiana
Attorneys for Third-Party
Defendants/Appellants
Maritrend, Inc. and Bergeron Marine
Services, Inc.
Mark Alan Jolissaint
Slidell, Louisiana
Attorney for Defendant/Appellee
Bayou Heavy Construction, LLC
BEFORE: GAIDRY, McDONALD, AND HUGHES, JJ.
McDONALD , J.
This case involves a dispute over a commercial lease of a crane from Maritrend, Inc. (Maritrend) to Chris Gagnon (Gagnon), as managing member of Bayou Heavy Construction, L.L.C. (Bayou). For the following reasons the judgment appealed is affirmed in part and reversed in part.
On February 28, 2006, Bayou entered into a commercial Bare Lease Agreement with Maritrend (a sister corporation of Bergeron) to lease a crane for a three (3) month period for thirteen thousand dollars per month. The crane needed to be OSHA certified in order for Bayou to utilize the crane for the completion of its contract with the U.S. Army Corps of Engineers. Louis Lawrence, an OSHA Certified Field Mechanic from H & E Equipment Services, Inc. (H & E), was called by Gagnon to inspect the crane after it was delivered to the job site. Lawrence found that the crane was in need of several repairs before it could be OSHA certified. Initially, some minor repairs and parts were authorized by the lessor, Maritrend. However, the significant repairs for which H & E seeks payment here were found by the trial court to have been made without Maritrend's knowledge or authorization.
H & E had the serial number of the crane in its computer system because it had repaired the crane in the past. Its records indicated that the crane was owned by Bergeron Marine Service, Inc. When Gagnon called H & E to order the repairs he said, "this is Chris from Bergeron." H & E assumed that Gagnon was an authorized agent of Bergeron and allowed the repairs to commence. When the repairs were completed, an invoice totaling $20,820.72 was sent to Bergeron for payment. Not having authorized the expense, Bergeron declined to pay. The intent of the Bergeron brothers was to sell the crane "as is, where is." However, the decision to lease the crane was ultimately made, partly because Gagnon's father had been in the construction business for a long time and was known to the Bergerons.
Bergeron Marine Service, Inc. and Maritrend, Inc. are both owned by Roland J. Bergeron and his brother, Bill. However, there is some question about which entity owned the crane.
H & E filed a petition for sums due on open account on April 13, 2007, against Bayou. A third party demand was filed by Bayou against Bergeron. After discovery, including the taking of depositions, the matter was heard by the trial court on November 17, 2010. Nine pages of reasons for judgment and a court-prepared judgment were issued on March 16, 2011. The judgment held Maritrend and Bergeron liable in solido to H & E. in the amount of $20,820.72 including legal interest from the date of judicial demand, for all of H & E's court costs in the amount of $533.76 and for reasonable attorney's fees in the amount of $10,000.00. The judgment also ordered that Bayou is liable to Maritrend in the amount of $6,500.00, including legal interest from the date of judicial demand, plus, not only its own court costs, but also the court costs incurred by Maritrend and Bergeron in the amount of $188.00, and for reasonable attorney's fees in the amount of $3,500.00. Bayou did not appeal the judgment. Maritrend and Bergeron have appealed and that is the matter before us.
Maritrend and Bergeron assert that the assignment of liability to them is erroneous and challenge the court's use of the theory of unjust enrichment as the basis for its judgment. They also assert that the lower court erred in ruling that Bergeron is liable in solido with Maritrend.
We review the district court judgment using the manifest error or clearly wrong standard. A court of appeal may not set aside a trial court's findings of fact in the absence of "manifest error" or unless it is "clearly wrong". Rosell v. ESCO,549 So.2d 840, 844 (La. 1989). As long as the record contains a reasonable factual basis for its decision, the appellate court cannot reverse the district court judgment unless it is manifestly erroneous or clearly wrong. The issue for the appellate court is not to determine whether the fact finder was right or wrong, it is whether the fact finder's conclusions were reasonable. Stobart v. State through Dept. of Trans. and Development, 617 So.2d 880, 882 (La. 1993).
Appellants argue that Gagnon benefited from the repairs and so he should share in the liability, and also that H & E was partially responsible because they assumed that Gagnon was an employee of Bergeron and never attempted to inquire as to the owners of the crane nor ask if the crane was on a lease. The district court gave extensive and excellent reasons for its decision on the issue of unjust enrichment or actio de in rem verso. He discusses each of the five pre-requisites necessary for proving unjust enrichment and explains the facts that support each one. We are not persuaded that these findings are manifestly erroneous or clearly wrong.
E. F. Menyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422.
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In their appellate brief, appellants also claim that Maritrend is the owner of the crane and the decision to hold Bergeron liable is in error. The district court acknowledged that it was not clear who was the owner of the crane. We agree that the record is not clear. The lease was between Bayou and Maritrend and the computer records at H & E indicated that Bergeron was the owner of the crane. However, the record contains a letter (Plaintiff Exhibit #6) dated June 20, 2006, from Bergeron to Mike Duhe, Credit Manager of H & E, stating that "Mari Trend, Inc., the legal owner of the subject crane, had a Bare Lease Agreement with Bayou Heavy Construction, LLC." This letter was signed by William T. Bergeron, President of Bergeron. Thus, there is some evidence that Maritrend is the crane's owner and we fail to find a legal basis to hold Bergeron liable in solido. Therefore, to the extent the judgment finds Bergeron liable in solido it is reversed. Therefore, to the extent the judgment finds Bergeron Marine Services, Inc. liable in solido it is reversed.
Accordingly, we vacate the judgment of March 16, 2011 insofar as it imposes solidary liability between Maritrend and Bergeron. In all other respects, the judgment is affirmed. There is also pending before us a Motion to Strike Appellant's Brief. This motion is denied.
Costs of this appeal are assessed to the appellant, Maritrend.
REVERSED IN PART; AFFIRMED IN PART; MOTION TO STRIKE DENIED.