Opinion
NO. 2011 CA 2170
12-17-2012
SHIH CHANG HU v. EVERGREEN OF THE SOUTH, INC. D/B/A TASTE OF CHINA RESTAURANT & YI HUA & FANG HUA
BRENT P. FREDERICK BATON ROUGE, LA ATTORNEY FOR PLAINTIFF-APPELLEE SHIH CHANG HU ROBERT T. TALLEY BATON ROUGE, LA ATTORNEY FOR DEFENDANTS-APPELLANTS YI HUA & FANG HUA AND DEFENDANT-APPELLEE EVERGREEN OF THE SOUTH, INC.
NOT DESIGNATED FOR PUBLICATION
Appealed from the
19th Judicial District Court
in and for the Parish of East Baton Rouge, Louisiana
Trial Court No. 562,149
Honorable Timothy E. Kelley, Judge
BRENT P. FREDERICK
BATON ROUGE, LA
ATTORNEY FOR
PLAINTIFF-APPELLEE
SHIH CHANG HU
ROBERT T. TALLEY
BATON ROUGE, LA
ATTORNEY FOR
DEFENDANTS-APPELLANTS
YI HUA & FANG HUA AND
DEFENDANT-APPELLEE
EVERGREEN OF THE SOUTH,
INC.
BEFORE: PETTIGREW, McCLENDON, AND WELCH, JJ.
PETTIGREW , J.
This is a suit for breach of contract arising out of the sale of a restaurant business. Defendants purchased plaintiff's business by signing a 10-year promissory note, but abandoned their obligations three years later, Defendants left behind unpaid bills, a deteriorated building, and unusable equipment. Accordingly, plaintiff filed suit to recover all out-of-pocket expenses, the principal balance due on the promissory note, lease payments, costs, interest, and attorney fees. From a judgment rendered in favor of plaintiff, the defendants have appealed. We hereby amend, and as amended, affirm.
FACTS
For many years, plaintiff, Shih Chang Hu ("Dr. Hu"), owned and operated the "Taste of China" Chinese restaurant located at 9716 Airline Highway, Baton Rouge, Louisiana. Dr. Hu operated his restaurant through a corporation that he owned at the time, defendant, Evergreen of the South, Inc. ("Evergreen"). Wanting to retire (and unable to sell his restaurant outright), Dr. Hu, through Evergreen, conveyed the building and the two lots upon which it was situated, together with an adjacent third lot, to Shriver Enterprises, LLC ("Shriver"), in 2003, for the sum of $1,100,000.00. While attempting thereafter to find a buyer for the business, excluding the property that had been conveyed to Shriver, Dr. Hu continued to operate his restaurant. In his capacity as then-president of Evergreen, Dr. Hu leased the building from Shriver through a five-year triple-net lease, commencing November 1, 2003, and extending through October 31, 2008. Evergreen was responsible under the terms of its lease with Shriver for the payment of rent, utilities, insurance, maintenance, and taxes. Jeff Shriver, the managing member of Shriver, further requested that Dr. Hu post a security deposit equivalent to two years advance rent, as security for the payment of rent and potential repairs to the building. This amount was secured by a $200,000.00 certificate of deposit belonging to Dr. Hu.
It is unclear exactly how the parties were introduced; however, defendants, Yi "Steve" Hua ("Mr. Hua") and his wife, Fang Hua ("Mrs. Hua"), of Waco, Texas, expressed interest in purchasing Dr. Hu's Baton Rouge "Taste of China" Chinese restaurant. Negotiations ensued between Mr. Hua and Dr. Hu regarding the sale of the restaurant business that culminated in the execution of a purchase agreement. Although Mr. and Mrs. Hua speak Mandarin Chinese, they claim to have difficulty speaking and reading English. Dr. Hu speaks and reads both English and Mandarin Chinese. Due to Mr. and Mrs. Hua's language limitations, the purchase agreement was written entirely in Mandarin Chinese.
The purchase agreement was subsequently translated into English at the trial of this matter, and introduced into evidence. The purchase agreement between Mr. Hua and Dr. Hu provided, as follows:
I have hereby received Twenty Thousand US Dollars as a deposit for the purchase of Taste of China Restaurant. Both parties clearly state the following agreed detail:
1. The selling price of the Restaurant is US$300,000. Of which $100,000 [is to be paid] by cash. The remaining $200,000 is to be paid over a ten year period, at [a rate of] Two Thousand Dollars per month.
2. The [binding] deposit is Twenty Thousand Dollars. Should either side want to change [mind on the deal], will have to bear legal responsibility. (Should the Buyers want to change mind, the Seller shall keep the Twenty Thousand Dollar deposit. Should the Seller want to change mind, the deposit shall be returned at double the amount of Twenty thousand dollars, (initialed by Dr. Hu in Chinese)
3. The transfer of the store shall be before June 1, 200[4].
4. The apartment [annex] shall be vacated [for the Buyers] ten days before the transfer.
5. The Buyers shall inherit the current lease with the real estate owner, or the Buyers will renegotiate a new lease with the real estate owner by themselves.
(signed in both Chinese and English)
Seller . . . .Shih Chang Hu
Buyers . . . Yi Hua, Fang Hua
Date: 12-24-2003
Upon being apprised of Dr. Hu's impending sale of the business, Mr. Shriver had no objection. The Huas purportedly renegotiated the lease of the building with Shriver, but due to the Huas inability to post the required security deposit of two years advance rent, Mr. Shriver required Dr. Hu to continue to guarantee the payment of the lease and any needed repairs to the building through his continued pledge of his certificate of deposit.
Mr. and Mrs. Hua closed on the sale of Dr. Hu's business on March 1, 2004. In connection with the sale of the business, the parties executed a Stock Purchase Agreement, a Promissory Note, a Waiver of Right of First Refusal, a Stock Pledge Agreement, a Financing Statement, and a Commercial Security Agreement.
The promissory note signed by Mr. and Mrs. Hua called for the payment of $240,000.00 in 120 consecutive monthly installments of $2,000.00 beginning on March 1, 2004.
In early 2006, Mr. and Mrs. Hua executed an amendment to the lease agreement with Shriver whereby the parties and Dr. Hu as guarantor agreed to the release of one of the tracts subject to the lease under the same terms. In a handwritten addendum on the lease amendment, the parties further agreed to an extension of the primary term of the lease under the same terms with an option to renew through February 1, 2011. The parties also agreed to a second option that would extend the lease at a slightly higher rent through February 1, 2021.
The parties apparently remained in agreement until later in 2006, when numerous disputes began to arise between the parties, particularly with respect to repairs to the building. The building's roof leaked regularly as a result of damage occasioned by Hurricane Katrina in 2005. It was incumbent upon Mr. and Mrs. Hua, under the terms of their lease with Shriver, to maintain and/or repair the building's roof. When the Huas indicated they were financially unable to replace the building's roof, Mr. Shriver and Dr. Hu sought to assist Mr. and Mrs. Hua by splitting with them the cost of the roof replacement. Mr. and Mrs. Hua were apparently having marital problems, and Mr. Hua appeared to be in poor health.
In the summer of 2007, Mr. Hua sought advice from Dr. Hu about problems he was experiencing with the business. Dr. Hu advised Mr. Hua to sell the business. Mr. Hua returned to Dr. Hu in August 2007, and related that he had been unsuccessful in his efforts to sell the business. Mr. Hua asked Dr. Hu to "take back" the business. Although he did not rule out the possibility of assuming control of the business, Dr. Hu advised Mr. Hua that while he could not do so at the present time, he might take it over later provided certain conditions were met.
Without notifying anyone, Mr. and Mrs. Hua vacated the premises in early November 2007, and left the restaurant in poor repair. Upon learning of the Huas' departure, Dr. Hu realized that the business was unmarketable in the condition in which it was left. Dr. Hu further realized that as the guarantor of the lease, he remained responsible for the payment of the lease, taxes, and repairs to the building. Rather than forfeit his entire $200,000.00 certificate of deposit, Dr. Hu paid the November rent to Shriver, and retained an attorney to represent him.
Dr. Hu also attempted to restart his business. Fearing that Mr. Hua may have left a large amount of outstanding debt, Dr. Hu formed a new corporation, "Hu's Taste of China, Inc." In addition, Dr. Hu had discussions with Mr. Shriver regarding his possible repurchase of the building and the two lots upon which it was situated. Mr. Shriver indicated he would be willing to sell the building for the same price he had previously purchased them from Dr. Hu. Dr. Hu thereafter filed the present litigation in East Baton Rouge Parish, on December 14, 2007.
Mr. Shriver testified that during his ownership of the building and the three properties sold to him by Dr. Hu, he sold the adjacent third lot for approximately $90,000.00. The third lot was previously released through an amendment to the lease agreement executed in early 2006.
While attempting to mitigate his damages following the Huas' departure, Dr. Hu was placed in contact with Qui Q. Chen and Xing G. Wang, the owners of a restaurant in New York City. Mr. Chen and Mr. Wang indicated that they were interested in purchasing a restaurant in Louisiana. On December 19, 2007, Mr. Chen, Mr. Wang, and two other men met with Dr. Hu, in a party room located behind Dr. Hu's restaurant, in Baton Rouge. According to Mr. Chen, the group was told by Dr. Hu that they could not view the interior of the restaurant or the adjacent apartment because the electrical power was not turned on. Nevertheless, following negotiations on that date, an agreement was worked out whereby Mr. Chen agreed to purchase Dr. Hu's business for $138,000.00 as well as Shriver's building for $1,100,000.00. Mr. Chen gave Dr. Hu a down payment of $13,800.00, and agreed that if he and Mr. Wang failed to close the sale of the business before March 1, 2008, they would nevertheless become responsible for the payment of the rent to Shriver as well as the obligations of the lease.
Thereafter, on January 5, 2008, Dr. Hu took Mr. Chen to meet Mr. Shriver. Mr. Shriver agreed to sell the building to Mr. Chen and Mr. Wang under the same terms as he had offered to Dr. Hu. In addition to the November rent, Dr. Hu paid rent to Shriver for December, January, and February. Dr. Hu also supervised repairs to the building that were paid for by Mr. Chen, and in return, Dr. Hu agreed to deduct the repair costs from the price he was asking for the business.
Beginning in March 2008, Mr. Chen and Mr. Wang assumed responsibility for the lease obligations, but did not close on the sale of. Dr. Hu's business. After undertaking extensive repairs to the building, Mr. Chen and Mr. Wang began operation of their business as "Lin's Taste of China, Inc." on April 10, 2008. Mr. Chen and Mr. Wang closed on the sale of the building with Mr. Shriver on June 1, 2008.
After purchasing the building from Mr. Shriver and undertaking the requisite repairs, Mr. Chen and Mr. Wang allegedly advised Dr. Hu that they did not have enough money to purchase Dr. Hu's business. Mr. Chen and Mr. Wang purportedly negotiated unsuccessfully with Dr. Hu in June, July, and August of 2008. The pair continued to operate their business for three and a half years, but according to Dr. Hu, business was not very good, and Mr. Chen and Mr. Wang ultimately left.
ACTION OF THE TRIAL COURT
On December 14, 2007, Dr. Hu filed a Petition on Promissory Note, Commercial Guaranty, Recognition of Security Interests, and Damage to Collateral, in East Baton Rouge Parish, and named Evergreen and Mr. and Mrs. Hua (collectively, "defendants") as defendants therein. The sheriff's office was directed to make service of process on defendants; however, on December 19, 2007, the sheriff filed a return that stated service could not be made as the subjects were in China. On February 21, 2008, Dr. Hu obtained a court order appointing a private process server to effect service of process. Personal service on Mr. Hua was accomplished on June 6, 2008. Domiciliary service was made on Mrs. Hua and Evergreen through Mr. Hua.
On June 19, 2008, Dr. Hu also obtained issuance of an ex parte Prejudgment Writ of Attachment Without Bond based upon La. Code Civ. P. art. 3541(1) and (4). Said writ of attachment authorized the seizure of the family home of Mr. and Mrs. Hua, located at 3822 Windsong Drive, in Baton Rouge. On June 25, 2008, Dr. Hu moved for entry of a preliminary default, which was entered against defendants on June 30, 2008.
Dr. Hu requested in his "Motion for Issuance of Writ of Attachment Without Bond" that "[p]ursuant to the [La, Code Civ. P. arts.] 3544, 5122 . . . that no bond be required for the issuance of the Writ of Attachment."
On July 3, 2008, defendants filed an answer and a reconventional demand against Dr. Hu. In their reconventional demand, defendants alleged that Dr. Hu fraudulently misrepresented his business, causing defendants to invest funds they claim they would not otherwise have done. Defendants further assert a claim for treble damages under the Louisiana Unfair Trade Practices Act, together with attorney fees, interest, and all costs of these proceedings. On December 3, 2008, defendants moved for a trial by jury.
On September 9, 2009, Dr. Hu moved to deposit into the registry of the court, the $101,587.93 in proceeds resulting from the sale of the Huas' family home, located at 3822 Windsong Drive in Baton Rouge.
On October 6, 2009, counsel for defendants filed a Petition of Intervention on behalf of Qui Q. Chen, Xing G. Wang, Airway Realty Corp., and Lin's Taste of China, Inc. (collectively, "interveners"). Through allegations mirroring those set forth in defendants' reconventional demand, interveners alleged in their Petition of Intervention that Dr. Hu and his son, Ben Hu, "fraudulently induced [interveners] into purchasing the subject business and property through deliberate and knowing misrepresentations of material facts regarding the business and property." Intervenors also asserted a claim for treble damages under the Louisiana Unfair Trade Practices Act, together with attorney fees, interest, and all costs of these proceedings. Intervenors similarly prayed for a trial by jury.
Through a motion filed on October 20, 2009, Mrs. Hua sought to dissolve the previously-issued writ of attachment by alleging that as she had already been served with citation, the grounds for issuance of the writ were "clearly and demonstrably false," as she could not have concealed herself to avoid service, or permanently leave the state. Mrs. Hua further alleged that said writ should never have issued without a bond. Mrs. Hua requested that the trial court vacate ex parte the alleged wrongfully-issued writ, disburse to her the funds on deposit ($101,587.93) together with accrued interest, and set a date to fix damages, costs, and attorney fees pursuant to La. Code Civ. P. art. 3506. Alternatively, Mrs. Hua prayed for a contradictory hearing pursuant to La. Code Civ. P. art. 3506 on all issues. Through an order signed October 21, 2009, the trial court declined to vacate the writ of attachment, or to release the funds held in the registry of the court. The trial court further scheduled the matter for a contradictory hearing to be held on December 7, 2009, on all issues.
On October 21, 2009, Dr. Hu filed an opposition to the intervenors' petition on the grounds that intervenors had no connection to the Huas or to the instant contract dispute between the Huas and Dr. Hu. Dr. Hu also questioned the propriety of the intervenors being represented by the same attorney as Mr. and Mrs. Hua, and suggested that if intervenors wished to litigate any cause of action they believe existed, they should do so in a separate action so as not to confuse the issues in the instant case. Through an order signed October 28, 2009, the trial court scheduled the matter for a contradictory hearing to be held on December 7, 2009, with respect to whether intervenors should be permitted to intervene in the instant litigation. These matters were passed and reassigned for hearing on December 9, 2009.
At the conclusion of the hearing on December 9, 2009, the trial court, for reasons orally assigned, found that the contractual relationship between Dr. Hu and defendants was separate, distinct, and not interrelated with the contractual relationship between Dr. Hu and intervenors. For this reason, the trial court denied without prejudice the Petition of Intervention filed on behalf of intervenors herein. Intervenors were given until January 8, 2010, to amend their Petition of Intervention. The trial court further denied Mrs. Hua's Motion to Dissolve Writ of Attachment and Motion to Withdraw Deposit from the Registry of the Court on the grounds that, based upon the information available to Dr. Hu, he had good cause to seek a writ of attachment. The trial court maintained the attachment, but Dr. Hu was nevertheless ordered to furnish a security bond in the amount of $320,563.44 by 4:30 p.m. on December 11, 2009.
Dr. Hu subsequently posted timely a property bond in the requisite amount to serve as security for the writ of attachment previously issued at his request.
Following the trial court's denial of Mrs. Hua's Motion to Dissolve Writ of Attachment and Motion to Withdraw Deposit from the Registry of the Court, Mrs. Hua applied for supervisory writs from this court, and later the Louisiana Supreme Court. Said writ applications were ultimately denied by this court and the supreme court.
Shih Chang Hu v. Evergreen of the South, d/b/a Taste of China Restaurant and Yi Hua and Fang Hua, 2010-CW-0044 (La. App. 1 Cir. 2/17/10)(Unpublished Writ Action).
Shih Chang Hu v. Evergreen of the South, d/b/a Taste of China Restaurant and Yi Hua and Fang Hua, 2010-0653 (La, 5/28/10), 36 So.3d 249.
On June 8, 2010, Dr. Hu moved to set this matter for a status conference. A status conference was held between the parties and the court on September 1, 2010. At that time, the parties and the court assigned this matter for a trial by jury commencing on May 2, 2011, and agreed to specific cutoff dates detailed in the Case Management Schedule. The Case Management Schedule provided that a jury bond in the amount of $4,500.00 was to be filed by the requesting party no later than March 14, 2011.
As previously noted, defendants filed a motion on December 3, 2008 requesting a trial by jury.
Rather than posting a jury bond by the requisite date, March 14, 2011, defendants filed an ex parte Motion to Proceed In Forma Pauperis. The trial court subsequently signed the order granting Mr. and Mrs. Hua pauper status on March 21, 2011. Dr. Hu contested the veracity of the information supplied by defendants in their application for pauper status and filed a motion to traverse on Aprii 27, 2011. Said motion was set for hearing on May 2, 2011, the morning of trial. In a judgment signed May 3, 2011, the trial court granted Dr. Hu's motion and rescinded its" March 2.1, 2011 order, granting defendants pauper status, and further waived the jury trial scheduled to be held in this matter. From the judgment, defendants filed applications with this court and the supreme court seeking supervisory writs; however, said applications were later denied.,
Mr. and Mrs. Hua have raised the issue of the trial court's denial of their request for a trial by jury in connection with their appeal in this matter.
Shih Chang Hu v. Evergreen of the South, d/b/a Taste of China Restaurant and Yi Hua and Fang Hua, 2011-CW-0806 (La. App, 1 Cir. 5/4/11)(Unpublished Writ Action).
Shih Chang Hu v. Evergreen of the South, d/b/a Taste of China Restaurant and Yi Hua and Fang Hua, 2011-0929 (La. 5/6/11), 62 So.3d 130 (Unpublished Writ Action).
The trial of this matter resumed on Friday, May 6, 2011, and continued through Tuesday, May 10, 2011. At the close of the evidence, the trial court, for oral reasons assigned, found in favor of plaintiff, Dr. Hu, and against the defendants, Evergreen and Mr. and Mrs. Hua. The trial court dismissed the Petition of Intervention filed on behalf of Mr. Chen, Mr. Wang, Airway Realty Corp., and Lin's Taste of China, Inc. Defendants, Evergreen and Mr. and Mrs. Hua, individually and collectively, were ordered to pay plaintiff, Dr. Hu, the sum of $35,463.31 for the repairs made by Dr. Hu to the restaurant leased by defendants. Said defendants were also ordered to pay Dr. Hu the sum of $15,800.00, for property taxes he paid on their behalf for the 2007 tax year. In addition, defendants were ordered to pay Dr. Hu $34,000.00 for unpaid rent accrued during the term of their lease. Defendants were further ordered to pay Dr. Hu $7,101.90, for utilities accrued during the lease term, together with $3,267.26, which represents the amount of accrued commercial liability insurance required under the lease, both of which he also paid on their behalf.
The trial court further ordered defendants to pay Dr. Hu $152,000.00, plus judicial interest from November 1, 2007 (the date of default), until paid, which sum represents the balance due on the note executed by defendants on March 1, 2004. Defendants were also ordered to pay the sum of $51,348.51, which represents attorney fees incurred by Dr. Hu from the inception of this lawsuit through May 6, 2011, together with those attorney fees accrued from May 7, 2011, through the signing of the judgment.
In a written judgment signed on May 18, 2011, the trial court rendered judgment in favor of Dr. Hu and against defendants in the sum of $333,089.56 plus all costs of said proceedings together with judicial interest until full payment of the judgment. The trial court further ordered the Clerk of Court for the Parish of East Baton Rouge to release to Dr. Hu the funds held in the Registry of the Court in connection with the subject litigation. Following the subsequent denial of their motion for a new trial, Mr. and Mrs. Hua have appealed.
The sums awarded to Dr. Hu in the trial court's judgment total $298,980.98, not 333,089 56 There is an unexplained discrepancy of $34,108.58.
ISSUES PRESENTED ON APPEAL
In connection with their appeal in this matter, Mr. and Mrs. Hua present the following issues for resolution by this court:
1. Was there a valid "meeting of the minds" between the parties as to the price of the subject property?
2. Did the trial court err in denying [Mr. and Mrs. Hua] a jury trial?
3. Did the trial court err in failing to address the issue of detrimental reliance?
4. Did the trial court err in failing to address the issue of application of the [Louisiana] Unfair Trade Practices Act? ,
5. Did the trial court err in failing to grant [Mr. and Mrs. Hua] credit and offset for the re-sale of the restaurant property by [Dr. Hu] to [Mr. Chen]?
STANDARD OF REVIEW
The Louisiana Constitution of 1974 provides that the appellate jurisdiction of the courts of appeal extends to both law and facts. La. Const., art. V, § 10(B). A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882, n. 2 (La. 1993). When the court of appeal finds that a reversible error of law or manifest error of material fact was made in the trial court, it is required to redetermine the facts de novo from the entire record and enter a judgment on the merits. Rosell v. ESCO, 549 So.2d 840, 844, n. 2 (La. 1989).
DISCUSSION AND ANALYSIS
Enforceability of the Contract
The initial issue raised by Mr. and Mrs. Hua in this appeal is whether or not the agreement between themselves and Dr. Hu constituted an enforceable contract as Mr. and Mrs. Hua contend there was never a meeting of the minds as to price. The Huas argue that while the original purchase agreement executed by the parties in Mandarin Chinese specified the sale price of the Taste of China restaurant at $300,000.00, the trial court enforced a document subsequently prepared in English that specified $340,000.00 as the price of the restaurant. The Huas claim that after execution of the purchase agreement, Dr. Hu unilaterally altered the sale price of the restaurant to gratuitously award himself $40,000.00 as "interest." At trial, Mr. Hua testified that had he known the price had been changed, he would not have purchased the restaurant.
In support of their position, Mr. and Mrs. Hua cite La. Civ. Code art. 2439, which provides:
Art. 2439. DefinitionMr. and Mrs. Hua also cite La. Civ. Code art. 2466, which provides, in pertinent part:
Sale is a contract whereby a person transfers ownership of a thing to another for a price in money.
The thing, the price, and the consent of the parties are requirements for the perfection of a sale.
Art. 2466. No price fixed by the parties
. . . .
Nevertheless, if the parties intend not to be bound unless a price be agreed on, there is no contract without such an agreement.
Consequently, Mr. and Mrs. Hua argue "there never was a 'meeting of the minds' regarding the price of the restaurant, there never existed an enforceable obligation or contract under Civil Code art. 2466, and it was therefore error for the trial court to render judgment enforcing the non-existent agreements."
Finally, Mr. and Mrs. Hua cite Coon v. Smith Monument Works, Inc., 43,190, p. 8 (La. App. 2 Cir. 4/9/08), 981 So.2d 765, 773, writ denied, 2008-1029 (La. 8/29/08), 989 So.2d 104 and Marcantel v. Jefferson Door Co., Inc., 2001-1307, p. 6 (La. App. 5 Cir. 4/10/02), 817 So.2d 236, 239 for the proposition that where there is no "meeting of the minds" on an essential element of the sale, no contract is perfected and ownership is not transferred. Mr. and Mrs. Hua argue that in the foregoing cases, the courts set aside the sales and ordered a refund of the sums paid. Accordingly, Mr. and Mrs. Hua ask this court to similarly set aside the judgment of the trial court and order a return of the sums paid under the voided agreement, as payment of a thing not due.
Mr. and Mrs. Hua claim they are entitled to a return of the $100,000.00 payment that they made to Dr. Hu at the closing together with interest. Additionally, Mr. and Mrs. Hua seek return of the $88,000.00 ($2,000.00 per month for 44 months) that they paid to Dr. Hu to finance the restaurant with interest thereon. Finally, Mr. and Mrs. Hua seek return of an $8,333.00 deposit that they paid to Dr. Hu also with interest.
Dr. Hu asserts that although Mr. and Mrs. Hua allege that there was not an enforceable contract, their only dispute centers on a misunderstanding of the price. Mr. and Mrs. Hua contend that the final agreement reflected a price $40,000.00 more than they agreed to pay; however, Dr. Hu argues that the preliminary agreement contemplated that the Huas would purchase the restaurant through a lump-sum payment of $300,000.00. Dr. Hu avers that the price of the restaurant increased during subsequent negotiations when the Huas insisted on a long-term payout. Additionally, Dr. Hu points out that the parties did not have just one enforceable contract; they in fact had several - a Stock Purchase Agreement, a Promissory Note, a Waiver of Right of First Refusal, a Stock Pledge Agreement, a Financing Statement, and a Commercial Security Agreement.
Mr. and Mrs. Hua claim that because they could not speak or read English, they were unaware that the price of the restaurant had been changed. Dr. Hu argues that Mr. and Mrs. Hua understand English much better than they attempt to portray, and that the price of the restaurant is the easiest aspect of the agreement to interpret as the amount is set forth in English and also noted numerically in multiple places. During the three months between the parties' initial discussions and the closing of the sale, Mr. and Mrs. Hua had assistance from their children who speak English fluently, as well as their friend, Bob Lin, an attorney who specializes in restaurant mergers and acquisitions. Perhaps most importantly, Mr. and Mrs. Hua operated the Taste of China restaurant and made payments In accordance with the agreement for three years without ever asking to rescind or amend the agreement.
In support of his position, Dr. Hu cites Tweedel v. Brasseaux, 433 So.2d 133, 137-38 (La. 1983); Griffin v. Lago Espanol, LLC, 2000-2544, p. 9 (La. App. 1 Cir. 2/15/02), 808 So,2d 833, 840; and Sonnier v. Boudreaux, 1995-2127, p. 7 (La. App. 1 Cir. 5/10/96), 673 So.2d 713, 717, for the proposition that a person who signs a written contract is presumed to know its contents and cannot avoid its obligations by contending he did not read the document, or it was not explained, or that he did not understand it, barring misrepresentation, fraud, or violence. When a party has pled ignorance of the contents of the writing on the score of not having read it, the party pleading error must establish the error by clear and convincing evidence. Willis v. Sempe, 139 La. 877, 72 So. 427, 428 (1916).
After consideration of the evidence presented, the trial court found as follows:
[The] agreements and obligations were fully set forth in the documents that were drafted in this matter and were signed by both parties.
Now, there's been much testimony made of whether or not [Mr. Hua] understood what he was signing. I can treat him no different than I treat anyone who signs a contract. You are deemed to understand what you signed. If you don't have someone explain it to you properly or translate it to you properly, that's not [Dr. Hu]'s fault.
. . . .
Again, if you don't have someone explain it to you properly, or translate it for you properly, or arrange to have that done, that's not [Dr. Hu]'s fault. Clearly, [Mr. Hua] was aware that attorneys were involved. Clearly, he's testified he didn't understand the papers in front of him. He did not indicate during the closing on the matter that he didn't understand it. He should have had an attorney or translator there if he did not understand what he was signing, but it's not [Dr. Hu's] fault that he didn't do that. [Mr. Hua], in fact, is deemed to understand what he is signing.
Based upon the testimony presented and the evidence in the record before us, we cannot hold that the trial court was incorrect in concluding that Dr. Hu's sale of the restaurant to Mr. and Mrs. Hua was an enforceable contract. This issue is without merit. Denial of right to a trial by jury
The second issue raised by Mr. and Mrs. Hua is whether the trial court erred in denying them a trial by jury.
The Case Management Schedule as well as the minutes of court reflect that on September 1, 2010, this matter was fixed for a jury' trial on May 2, 2011. The trial court set the jury bond in this matter at $4,500.00 to be filed no later than March 14, 2011. Instead of posting a jury bond by.the March 14, 2011 deadline, Mr. and Mrs. Hua, at 2:09 p.m. on the deadline date, filed an ex parte Motion to Proceed In Forma Pauperis as provided for in La. Code Civ. P, arts. 5181, et seq. The trial court subsequently signed the order granting Mr. and Mrs. Hua pauper status on March 21, 2011.
On April 14, 2011, Dr. Hu filed an ex parte Motion to Convert Jury Trial to Bench Trial on the ground that a jury bond had never been filed. By order dated April 26, 2011, the trial court granted Dr. Hu's ex parte Motion to Convert Jury Trial to Bench Trial.
Dr. Hu thereafter filed a Motion to Traverse In Forma Pauperis Status on April 27, 2011, which was set for hearing on May 2, 2011, the date the trial was scheduled to begin. Following a hearing, the trial court rescinded Mr. and Mrs. Hua's pauper status, and for this reason waived Mr. and Mrs. Hua's request for a jury trial. The trial court further denied Mr. and Mrs. Hua's oral motions to grant a delay within which to furnish a jury bond, and to reduce the jury bond of $4,500.00 for the 4-1/2 day jury trial. The trial court further ordered that barring a stay or reversal by this court, the trial would proceed as a bench trial on May 5, 2011.
Dr. Hu claimed he had no knowledge of Mr. and Mrs. Hua's request for pauper status until the judge's clerk telephoned him to advise that although the trial court had signed his motion seeking a bench trial, there was a conflict as Mr. and Mrs. Hua had filed a motion to proceed in forma pauperis.
The trial court initially granted Mr. and Mrs. Hua's oral motion for a reasonable delay within which to furnish a jury bond, and set the deadline for the following day, May 3, 2011, at 4:30 p.m. However, the trial court later reconsidered after realizing that the original request was untimely.
Mr. and Mrs. Hua filed emergency writs with this court and the supreme court that were later denied., Thereafter, Mr. and Mrs. Hua applied for writs from the supreme court, which were similarly denied.
Shih Chang Hu v. Evergreen of the South, d/b/a Taste of China Restaurant and Yi Hua and Fang Hua, 2011-CW-0806 (La. App. 1 Cir. 5/4/11)(Un published Writ Action).
Shih Chang Hu v. Evergreen of the South, d/b/a Taste of China Restaurant and Yi Hua and Fang Hua, 2011-0929 (La. 5/6/11), 62 So.3d 130 (Unpublished Writ Action).
In connection with the present issue, Mr. and Mrs. Hua contend that they complied with the law when requesting their pauper status. Mr. and Mrs. Hua argue that on the final day to post a jury bond, they timely filed an ex parte motion requesting pauper status in accordance with La. Code Civ. P. art. 5181, et seq. Louisiana Code of Civil Procedure article 5183 provides, as follows:
Art. 5183. Affidavits of poverty; documentation; order
A. A person who wishes to exercise the privilege granted in this Chapter shall apply to the court for permission to do so in his first pleading, or in an ex parte written motion in requested later, to which he shall annex:
(1) His affidavit that he is unable to pav the costs of court in advance, or as they accrue, or to furnish security therefor, because of his poverty and lack of means, accompanied by any supporting documentation; and
(2) The affidavit of a third person other than his attorney that he knows the applicant, knows his financial condition, and believes that he is unable to pay the costs of court in advance, or as they accrue, or to furnish security therefor.
(3) A recommendation from the clerk of court's office as to whether or not it feels the litigant is in fact indigent, and thus unable to pay the cost of court in advance, or as they accrue, or to furnish security therefor, if required by local rule of court.
B. When the application and supporting affidavits are presented to the court, it shall inquire into the facts, and if satisfied that the applicant is entitled to the privilege granted in this Chapter it shall render an order permitting the applicant to litigate, or to continue the litigation of, the action or proceeding without paying the costs in advance, or as they accrue, or furnishing security therefor. The submission by the applicant of supporting documentation that the applicant is receiving public assistance benefits or that the applicant's income is less than or equal to one hundred twenty-five percent of the federal poverty level shall create a rebuttable presumption that the applicant is entitled to the privilege granted in this Chapter. The court may reconsider such an order on its own motion at any time in a contradictory hearing.
Rule 8.2 of the Rules for Louisiana District Courts and Juvenile Courts and Numbering System for Louisiana Family and Domestic Relations Procedures eliminates the requirement of the recommendation from the Clerk's office.
Rule 8.2 of the Rules for Louisiana District Courts and Juvenile Courts and Numbering System for Louisiana Family and Domestic Relations Procedures eliminates the requirement of the recommendation from the Clerk's office.
In conformity with La. Code Civ. P. art. 5183, Mr. and Mrs. Hua filed a written motion requesting pauper status, together with sworn affidavits completed by themselves and on behalf of Evergreen of the South, Inc., attesting to their inability to furnish security or pay court costs as they accrue. Mr. and Mrs. Hua also submitted the affidavit of their son, Justin Hua, attesting to the fact that he knew affiants, had knowledge of their financial condition, and believed they were unable to pay court costs as they accrue or furnish security therefor.
Dr. Hu argues in response that Mr. and Mrs. Hua not only failed to post a jury bond by the court's March 14, 2011 deadline, they also failed to timely obtain the right to proceed in forma pauperis. In addition, Mr. and Mrs. Hua failed to file the affidavit specified by the Rules for Louisiana District Courts - Rule 8.0.
The Rules for Louisiana District Courts provides, as follows, with respect to forma pauperis affidavits:
Rule 8.0. Uniform In Forma Pauperis Affidavit
A party, other than an inmate, who wishes to proceed in forma pauperis shall complete and file the affidavit in Appendix 8.0. [Underscoring supplied.]
Dr. Hu asserts that because Mr. and Mrs. Hua failed to file the appropriate affidavit, the trial court was deprived of evidence necessary to properly evaluate whether Mr. and Mrs. Hua were entitled to the privileges provided for in La. Code Civ. P. art. 5181, et seq. Specifically, Dr. Hu argues that had Mr. and Mrs. Hua filed the required affidavit, the trial court would have information regarding the length of Mr. and Mrs. Hua's current employment, their current wages, and whether the couple's current earnings exceed their current liabilities. Dr. Hu further argues that unlike the affidavits submitted by Mr. and Mrs. Hua, the required affidavit would have disclosed whether the Huas had any federal or state subsidized income, as well as what arrangements had been made to pay attorney fees along with all amounts that had been paid to date. In his brief to this court, Dr. Hu points to Mrs. Hua's testimony to the effect that she has paid at least $10,000,00 in legal expenses related to the present litigation brought by Dr. Hu.
Upon review of this matter, we find no clear error in the trial court's disallowance of a jury trial under the circumstances of this case. Mr. and Mrs. Hua had over six months within which to post the requisite jury bond or obtain, through an ex parte proceeding, the right to proceed in forma pauperis. Instead, Mr. and Mrs. Hua waited until the jury bond deadline date to seek pauper status. Although the trial court later granted Mr. and Mrs. Hua's request for pauper status, it rescinded same prior to trial. The fact remains that as of the trial court's March 14, 2011 deadline, Mr. and Mrs. Hua had neither posted the required jury bond nor obtained the valid right to proceed in forma pauperis. Our supreme court has held that where a sufficient jury bond is not timely filed, the litigant loses the statutory right to a jury trial. Riddle v. Bickford, 2000-2408, p. 6 (La. 5/15/01) 785 So.2d 795, 799. This issue is similarly without merit. Failure to address issue of detrimental reliance
The next issue raised by Mr and Mrs. Hua is whether the trial court erred in failing to address the issue of detrimental reliance. Specifically, Mr. and Mrs. Hua contend that Dr. Hu agreed to take back the Taste of China Restaurant at the end of October 2007, and remit the debt owed by Mr. and Mrs. Hua. As a result, Mr. and Mrs. Hua claim that Dr. Hu is equitably estopped from further enforcement of the debt that Mr. and Mrs. Hua allege he agreed to remit. In furtherance of the purported agreement, Mr. and Mrs. Hua claim they notified their employees and reduced their inventory in anticipation of the transfer. Additionally, Mr. and Mrs. Hua allege that Dr. Hu received a set of restaurant keys and allegedly began to renovate the facility.
The theory of detrimental reliance, also referred to in the jurisprudence as promissory or equitable estoppel, is codified in La. Civ. Code art. 1967, which provides, in pertinent part:
A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying.To establish detrimental reliance, a party must prove three elements by a preponderance of the evidence: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change In position to one's detriment because of the reliance. Suire v. Lafayette City-Parish Consolidated Government, 2004-1459, p. 31 (La. 4/12/05), 907 So.2d 37, 59. The doctrine of detrimental reliance is designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations, or silence. Id. However, it is difficult to recover under the theory of detrimental reliance, because estoppel is not favored in Louisiana law. Doss v. Cuevas, 2007-1803, p. 4 (La. App. 1 Cir. 3/26/08), 985 So.2d 740, 743; May v. Harris Management Corporation, 2004-2657, p. 6 (La. App. 1 Cir. 12/22/05), 928 So.2d 140, 145.
Mr. and Mrs. Hua claim that the testimony of Mr. Hua established that following the purported agreement to transfer the restaurant, Dr. Hu requested that Mr. Hua continue to operate the restaurant through the end of November 2007, and further order and pay for necessary food and inventory. Mr. and Mrs. Hua also claim that Dr. Hu did not contradict this testimony. It is the position of Mr. and Mrs. Hua that when Mr. Hua refused Dr. Hu's request to continue operation of the restaurant, Dr. Hu took actions that culminated in the present litigation.
As part of his testimony, Dr. Hu stated that in June or July 2007, Mr. Hua came to him for advice, and related that his wife frequently travelled to China, and his son was not interested in the business. Dr. Hu stated that he advised Mr. Hua to sell the restaurant. Dr. Hu further testified that Mr. Hua came back to him again in August 2007, appearing in poor health, and related that he had been unable to sell the restaurant, and was currently experiencing marital problems. Mr. Hua asked Dr. Hu if he would take back the restaurant. Dr. Hu emphatically denied giving anyone a definite time as to when he might be able to take over operation of the restaurant, but Dr. Hu stated he told Mr. Hua that three conditions had to be met before he would agree to take over the restaurant. These conditions were: (1) a buyer needed to be found for the po-boy sandwich shop that Dr. Hu was operating on behalf of his daughter; (2) Mr. Hua had to pay all of the outstanding bills related to the restaurant; and (3) Mr. Hua had to maintain the restaurant in workable condition. Contrary to Mr. and Mrs. Hua's contentions that in furtherance of the transfer to Dr. Hu, they notified their employees and reduced their inventory, Dr. Hu testified that he learned that Mr. Hua had abandoned the restaurant when he received a telephone call from a restaurant employee who was startled to find the doors locked
Following our review of this matter, we find that Mr. and Mrs. Hua have failed to establish even the first element necessary to put forth a claim for detrimental reliance. It is well settled in Louisiana law that a trial court's findings of fact may not be reversed absent manifest error or unless clearly wrong. Stobart v. State of Louisiana, Through Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993). The manifest error standard demands great deference to the trier of fact's findings; for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1.989), Thus, where two permissible views of the evidence exist, the fact finder's choice between tnem cannot be manifestly erroneous or clearly wrong. Id.
Despite Mr. and Mrs. Hua's claims to the contrary, it is evident from the record that Dr. Hu steadfastly denied there existed any alleged agreement for him to take back the Taste of China Restaurant at the end of October 2007. It is further evident that the trial court had sufficient evidence to conclude that Mr. and Mrs. Hua had no justification for relying to their detriment on an alleged promise that Dr. Hu testified he never made. Accordingly, we find this issue to also be without merit. Failure to address application of the Louisiana Unfair Trade Practices Act
The fourth issue raised by Mr. and Mrs. Hua is whether the trial court erred in failing to address the application of the Louisiana Unfair Trade Practices Act.
The Louisiana Unfair Trade Practices and Consumer Protection Law (LUTPA) (La. R.S. 51:1401 et seq.) declares unfair or deceptive acts or practices in the conduct of any trade or commerce to be unlawful. La. R.S. 51:1405(A). The broad language of this statute necessarily requires a case-by-case determination of what constitutes an unfair trade practice. Walker v. Louisiana Health Management Company, 1994-1396, p. 9 (La. App. 1 Cir. 12/15/95), 666 So.2d 415, 421, writ denied, 1996-0571 (La. 4/19/96), 671 So.2d 922. The courts decide what constitutes an unfair trade practice. Capitol House Preservation Company, L.L.C. v. Perryman Consultants, Inc., 1998-1514, p. 11 (La. App. 1 Cir. 12/10/98), 725 So.2d 523, 529. "Generally, the courts have held that a trade practice is unfair when it offends public policy, and when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers, or when it involves fraud, misrepresentation, deception, breach of fiduciary duty, or other unethical conduct." Capitol House, 1998-1514 at 11, 725 So.2d at 529 (Citations omitted).
An unfair trade practice claim "prescribes" one year from the transaction or act which gives rise to the right of action. La. R.S. 51:1409(E). This court has construed the one-year period as peremptive, rather than prescriptive. Accordingly, the one-year term is not subject to interruption or suspension, even if the aggrieved party was unaware of acts giving rise to the right of action. Capitol House, 1998-1514 at 10, 725 So.2d at 529.
In their brief to this court, Mr. and Mrs. Hua argue that Dr. Hu's representations and actions in "unilaterally altering the original price of the restaurant by $40,000.00 and in agreeing to take back the Taste of China Restaurant, and then reneging on the agreement in November, 2007, constituted misrepresentation, deception, and unethical conduct sufficient to bring these actions and representations under the purview of the Louisiana Unfair Trade Practices Act." We disagree.
As we determined in our earlier discussion of the initial issue raised by Mr. and Mrs. Hua, the March 2004 sale from Dr. Hu to Mr. and Mrs. Hua was an enforceable contract. Three months after signing an agreement to purchase the restaurant, the parties executed the contract of sale for $40,000.00 more than the amount set forth in the purchase agreement. In his trial testimony, Dr. Hu explained that price increase was necessary because Mr. and Mrs. Hua wanted a long-term payout. The record reflects that Mr. and Mrs. Hua agreed to the terms of the sale following consultation with their friend, Bob Lin, an attorney who specializes in restaurant mergers and acquisitions. Thereafter, Mr. and Mrs. Hua operated the Taste of China restaurant and made payments for three years in accordance with the contract that they now claim was deceptive. Mr. and Mrs. Hua have not alleged any misrepresentation, deception, or unethical conduct sufficient to bring the contract for the sale of the restaurant under the purview of the LUTPA aside from the increase in the price of the restaurant. It further appears that Mr. and Mrs. Hua's unfair trade practices claim regarding the 2004 sale may also be extinguished by the peremptive one-year term for bringing an action under the LUTPA.
As we noted in our discussion of the third issue put forth by Mr. and Mrs. Hua, there is no evidence to support Mr. and Mrs. Hua's contention that Dr. Hu agreed to take over the Taste of China restaurant at the end of October 2007. Accordingly, we cannot conclude that Dr. Hu reneged on the alleged agreement in November 2007, and that such action constituted misrepresentation, deception, and unethical conduct sufficient to bring these actions and representations under the purview of the Louisiana Unfair Trade Practices Act.
This issue also lacks merit. Failure to grant a credit and offset
The final issue raised by Mr. and Mrs. Hua is whether the trial court erred in failing to grant them a credit and offset for Dr. Hu's re-sale of the restaurant business to Mr. Qui Chen.
The trial court, finding the evidence to be in favor of Dr. Hu, in reasons oraliy assigned, ruled as follows:
I am going to allow repairs of $35,463.31, . . . taxes in the amount of $15,800.00; rent in the amount of $34,000.00 that [Dr. Hu] had to pay for [Mr. Hua]; utilities that [Dr. Hu] had to pay for [Mr. Hua] in the amount of $7,101.90; insurance that [Dr. Hu] had to pay for [Mr. Hua] in the amount of $3,267.26. Those matters are recoverable and subject to interest from the date of judicial demand.
Additionally, [Dr. Hu] is entitled to recover on the note, the accelerated amount of $152,000.00, plus interest from 11-1-07, which was the date of default. Additionally, [Dr. Hu] is entitled under the contracts to - and those contracts were the promissory note, the stock purchase agreement, the stock pledge agreement, and the . . . first amended lease, all of which provide for attorney's fees to the successful party regarding disputes in this matter. So attorney's fees through last Friday, which is . . . May 6 of 2011 of $51,348.51, plus attorney's fees incurred up to and through the signing of the judgment on this matter, because I have not been presented evidence of that. If there's a disagreement on that additional amount, please file a motion for determination of attorney's fees.
Any and other all claims [sic] by [Dr. Hu] are rejected. Any other claims by the defense are rejected. The costs assessed against [Mr. Hua].
Mr. and Mrs. Hua point out that on December 19, 2007, less than two months after they left the Taste of China restaurant, Dr. Hu negotiated a sale of his business together with the building owned by Shriver to Mr. Chen, In their brief to this court, Mr. and Mrs. Hua argue that Dr. Hu had a legal obligation, pursuant to Civ. Code art. 2002, to make reasonable efforts to mitigate his damages, and further, that contract damages are measured, under Civ. Code art. 1995, by the actual loss sustained. Mr. and Mrs. Hua claim that they are entitled to an offset or credit for $188,000.00, the price for which Dr. Hu agreed to sell the business, or for any sums paid by Mr. Chen to Dr. Hu.
In response, Dr. Hu argues that Mr. and Mrs. Hua have failed to plead any entitlement to a credit or an offset for payments of any kind. Dr. Hu admits that in an attempt to mitigate his damages, he negotiated a deal whereby Mr. Chen would take over the business; however, Dr. Hu claims that while Mr. Chen bought the building from Shriver, Mr. Chen never made any payments to him for the business..
We disagree. In connection with his trial testimony, Dr. Hu brought with him a document handwritten in Mandarin Chinese that he identified as the purchase agreement executed by himself and Mr. Chen at their meeting at the restaurant on December 19, 2007. The agreement, which was read into the record by a court translator, provided, in part, that Mr. Chen, identified as "Party A," had the right to purchase the building for $1,100,000.00, and the "equipment" for $138,000.00. The agreement further provided that Mr. Chen was to pay to Dr. Hu, identified as "Party B," a down payment of $5,000.00 for the property, and 13,800.00 for the equipment. This agreement was later introduced into the record as "Exhibit D-4." Earlier in his testimony, Dr. Hu stated repeatedly that Mr. Chen paid him $13,800.00 as a down payment. Dr. Hu further stated that Mr. Chen paid him additional sums that he used to pay for the necessary repairs, which he in turn, deducted from the asking price of the business Dr. Hu ciaimed that Mr. Chen never paid him for his business,
Accordingly, based upon the testimony in the record, we conclude that Mr. and Mrs. Hua are entitled to a credit and offset of the $13,800,00 down payment made to Dr. Hu by Mr. Chen. The trial court erred in failing to offset this amount from the sums owed to Dr. Hu by Mr. and Mrs. Hua.
Additionally, we note that at the conclusion of its oral reasons, the trial court directed counsel for Dr. Hu to put together a judgment memorializing the decision of the court. The trial court's written judgment provides, in pertinent part:
[Evergreen], [Mr. Hua] and [Mrs. Hua], individually and collectively, be ordered to pay to [Dr. Hu], plaintiff, the sum of $35,463.31 which represents the cost of repairs made by [Dr. Hu] to the property located at
9716 Airline Highway, Baton Rouge, Louisiana 70816 and formerly known as the Taste of China Restaurant;
[Evergreen], [Mr. Hua] and [Mrs. Hua], individually and collectively, be ordered to pay to [Dr. Hu], plaintiff, the sum of $15,800.00 which represents the amount of property taxes paid by [Dr. Hu] on defendants' behalf for the 2007 tax year;
[Evergreen], [Mr. Hua] and [Mrs. Hua], individually and collectively, be ordered to pay to [Dr. Hu], plaintiff, the sum of $34,000.00 which represents the amount of unpaid rent accrued during the Defendants' Lease term;
[Evergreen], [Mr. Hua] and [Mrs. Hua], individually and collectively, be ordered to pay to [Dr. Hu], plaintiff, the sum of $7,101.90 which represents the amount of accrued utilities paid by [Dr. Hu] on defendant's behalf during the Lease term;
[Evergreen], [Mr. Hua] and [Mrs. Hua], individually and collectively, be ordered to pay to [Dr. Hu], plaintiff, the sum of $3,267.26 which represents the amount of accrued commercial liability insurance required under the Lease and paid on defendants' behalf by [Dr. Hu];
[Evergreen], [Mr. Hua] and [Mrs. Hua], individually and collectively, be ordered to pay to [Dr. Hu], plaintiff, the sum of $152,000.00, plus judicial interest from November 1, 2007 until paid, which represents the balance due on the Note executed by [Evergreen], [Mr. Hua] and [Mrs. Hua] on March 1, 2004;
[Evergreen], [Mr. Hua] and [Mrs. Hua], individually and collectively, be ordered to pay to [Dr. Hu], plaintiff, the sum of $51,348.51 which represents attorney fees paid by [Dr. Hu], plaintiff, from the inception of the subject lawsuit to and including May 6, 2011;
[Evergreen], [Mr. Hua] and [Mrs. Hua], individually and collectively, be ordered to pay to [Dr. Hu], plaintiff, accrued attorney fees from May 7, 2011 through the signing of this Judgment; and
[Evergreen], [Mr. Hua] and [Mrs. Hua], individually and collectively, be ordered to bear all costs of these proceedings.
IT IS ORDERED, ADJUDGED AND DECREED that there be Judgment herein in favor of plaintiff, [Dr. Hu], and against defendants, [Evergreen], [Mr. Hua] and [Mrs. Hua], individually and collectively, in the full and true sum of THREE HUNDRED THIRTY-THREE THOUSAND EIGHTY-NINE AND 56/100 ($333,089.56) DOLLARS, plus all costs of this proceeding and together with judicial interest to accrue until the entirety of this Judgment is paid.
There is no evidence in the record to substantiate any additional attorney fees accrued by plaintiff, Dr. Hu, from May 7, 2011 through the signing of this Judgment.
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There is no evidence in the record to substantiate any additional attorney fees accrued by plaintiff, Dr. Hu, from May 7, 2011 through the signing of this Judgment.
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Based upon our review of the amounts awarded by the trial court in its oral reasons for judgment, and in the foregoing written judgment, we note that the amounts orally enumerated by the trial court and set forth above, do not equal the total amount awarded by the written judgment. We are of the opinion that this was merely an error in the mathematical calculations made by the trial court, and therefore amend the $333,089.56 sum set forth in the written judgment to reflect the sum of the specific amount awarded, which totals $298,980,98. Additionally, the amended judgment in the sum of $298,980.98 in favor of the plaintiff, Dr. Hu, is further reduced to provide defendants, Mr. Hua and Mrs. Hua, a credit for the $13,800.00 down payment made to Dr. Hu by Mr. Chen.
CONCLUSION
For the reasons set forth above, the written judgment's $333,089.56 award in favor of plaintiff, Shih Chang Hu, is hereby amended to reflect the total of the amounts specifically awarded by the trial court or $298,980.98. Additionally, the amended judgment in the sum of $298,980.98 in favor of the plaintiff, Shih Chang Hu, is further reduced to provide defendants, Yi Hua and Fang Hua, credit for the $13,800.00 down payment made to Shih Chang Hu by Qui Chen. In all other respects, the trial court's judgment is hereby affirmed. All costs of this appeal shall be split equally between the plaintiff, Shih Chang Hu, and defendants, Yi Hua and Fang Hua.
AMENDED, AND AS AMENDED, AFFIRMED.
2011 CA 2170
SHIH CHANG HU
VERSUS
EVERGREEN OF THE SOUTH, INC. D/B/A TASTE OF CHINA
RESTAURANT & YI HUA & FANG HUA
McCLENDON, J., concurs and assigns reasons.
I concur with the majority's conclusion that defendants are only entitled to a credit of $13,800.00. The failure to mitigate damages is an affirmative defense, and the burden of proof is on the party asserting the defense. Brassette v. Exnicios, 2011-1439 (La.App. 1 Cir. 5/14/12), 92 So.3d 1077, 1083, writ denied, 2012-1583 (La. 11/9/12), -- So.3d --. I agree with the majority that defendants failed to establish that they were entitled to the full credit of $138,000.00.