Opinion
NO. 2018 CA 0383.
09-21-2018
Gabriel E. RINCON v. OWENS COLLISION AND REPAIR SERVICE CENTER, LLC.
MICHAEL J. REMONDET, JR. , MICHAEL R. GUIDRY , LAFAYETTE, LA, AND ERIK M. TADDA , BATON ROUGE, LA, ATTORNEYS FOR, PLAINTIFF-APPELLEE GABRIEL E. RINCON. ASHLY VAN EARL , BATON ROUGE, LA, ATTORNEY FOR, DEFENDANT-APPELLANT OWENS COLLISION AND REPAIR, SERVICE CENTER, LLC. BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.
MICHAEL J. REMONDET, JR. , MICHAEL R. GUIDRY , LAFAYETTE, LA, AND ERIK M. TADDA , BATON ROUGE, LA, ATTORNEYS FOR, PLAINTIFF-APPELLEE GABRIEL E. RINCON.
ASHLY VAN EARL , BATON ROUGE, LA, ATTORNEY FOR, DEFENDANT-APPELLANT OWENS COLLISION AND REPAIR, SERVICE CENTER, LLC.
BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.
PETTIGREW, J.
In this case arising from a dispute over the repair of a vehicle following a collision, the defendant appeals a judgment in favor of the plaintiff under Louisiana's Unfair Trade Practices and Consumer Protection Law ("LUTPA"). For the reasons set forth herein, we vacate the award of treble damages; amend the judgment to award $2,629.08 in actual damages and $12,500.00 in attorney fees; and as amended, affirm.
FACTS AND PROCEDURAL HISTORY
On April 3, 2014, Gabriel Rincon brought his approximately four-week-old 2014 Honda Accord Hybrid Touring vehicle to Owens Collision and Repair Service Center, L.L.C. ("Owens") to obtain an estimate for repair of damage to the vehicle from a March 31, 2014 collision. Owens' original estimate, totaling $4,774.54, was for repairs using only original equipment manufacturer ("OEM") parts, because the vehicle was brand new and Mr. Rincon did not want to affect the warranty. On April 4, 2014, Mr. Rincon signed a Contract for Motor Vehicle Repair prepared by Owens and dropped the vehicle off to be repaired. Mr. Rincon was allegedly told by Owens' office manager, Devon Furlow Stephens, that the repairs would take around seven to ten days.
Owens then issued a supplement to its original estimate on April 10, 2014, increasing the repair cost to $8,370.16. Mr. Rincon's insurer allegedly rejected parts of Owens' supplemental estimate as excessive. Negotiations over the repair costs between Owens and the insurance company went on for weeks, during which time Mr. Rincon's vehicle was not being repaired and Mr. Rincon was driving a rental car, which was only partially covered by his insurance company for the first twenty days.
In the beginning of May 2014, Mr. Rincon told Owens that he needed his car fixed, or he would take it somewhere else to be repaired. Mr. Rincon then met with Greg Owens, the sole member/manager of Owens, and agreed to a "Budget Repair Service" on his vehicle, using certain non-OEM parts, for an amount not to exceed $7,018.67, which Mr. Rincon testified was the amount his insurance company had approved. Mr. Rincon signed an addendum to his original repair contract on May 13, 2014, selecting the Budget Repair Service option. According to Mr. Rincon, he agreed to the Budget Repair Service option because he was told that the repairs would be completed by May 27, 2014, and he needed his car back so that he would not continue to accrue rental car charges.
On Friday evening, May 16, 2014, Mr. Rincon emailed Ms. Stephens, stating "Please note that I have not asked you to not repair my vehicle. I am merely asking about this for documentation." It is unclear what prompted Mr. Rincon to send this email, but Ms. Stephens responded to his email on that same date, stating "[W]e are not fixing your vehicle at this point. You will have to have it moved on monday (sic)." At the time he was told to pick up his vehicle, the vehicle was in a disassembled state and would have to be towed. Owens sent Mr. Rincon a bill for charges related to the vehicle totaling $6,288.20. After subtracting the insurance payments, there was a balance due by Mr. Rincon of $4,044.07, which would have to be paid in order to retrieve the vehicle. This invoice included the following charges, some of which the original repair contract stated would be due in the event the vehicle was removed before the repairs were fully completed:
On May 20, 2014, Mr. Rincon filed a Consumer Complaint Form with the Louisiana Attorney General, alleging that Owens' actions related to the repair of his vehicle amount to "pure extortion and unfair trade practices." Mr. Rincon discussed his options with his attorney, Erik Tadda, and decided that it did not make sense to pay Owens $4,044.07 to retrieve his vehicle, and then pay to have the vehicle repaired elsewhere. According to Ms. Stephens, Mr. Tadda gave verbal authorization to Owens to proceed with the repairs of the vehicle and also authorized Owens to order an additional part in excess of the limit stated by Mr. Rincon in the Budget Repair Service agreement.
According to Ms. Stephens, all communication regarding the repair was with Mr. Tadda at this point, because Mr. Rincon was considered a "troubled customer."
After Mr. Tadda instructed Owens to repair the vehicle, the work was put "on hold" due to one or more parts being on backorder. Mr. Rincon testified that he sent an email to Ms. Stephens on May 27, 2014, expressing his understanding that the repairs were delayed due to a backordered sensor, and requesting that if the vehicle could be made "operational" and "road worthy" without the sensor, he would like to get it back so that he would not continue to incur charges for a rental vehicle. According to Mr. Rincon, he was told by Owens that the car could not be released without the sensor for safety reasons. On May 29, 2014, Mr. Rincon's attorney emailed Ms. Stephens seeking to document the delay caused by the backordered part, asking when the part had been ordered and reminding her that Mr. Rincon was continuing to incur charges for a rental car. Ms. Stephens responded to Mr. Tadda's email on June 2, 2014, stating that she would check on the part and let him know. There is no further response to Mr. Tadda about this part in the record, but Ms. Stephens testified that she believed this part arrived in June and was installed within "a couple of days."
On June 4, 2014, another attorney representing Mr. Rincon faxed a letter to Owens, advising that Mr. Rincon no longer wished to do business with Owens and requesting immediate release of the vehicle so that Mr. Rincon could have the repairs completed elsewhere, as well as an accounting for the amount already paid by the insurance company towards the repairs. Another letter was faxed to Owens on June 12, 2014, again demanding return of the vehicle and explaining that as of June 4, 2014, any authorization for Owens to work on the vehicle was rescinded. The letter expressed Mr. Rincon's willingness to pay "justified charges" for work actually performed on the vehicle, and requested a detailed, itemized breakdown of the charges, including copies of invoices for any parts or supplies which were ordered and copies of the applicable return policies for those parts or supplies. Mr. Rincon's attorney also requested documentation that Owens is authorized to charge storage fees, since it is not a licensed storage facility.
On June 23, 2014, Mr. Rincon filed a Petition for Declaration of Ownership, Revindication, Conversion, and Damages against Owens, requesting a declaration of ownership and return of the vehicle, in addition to recovery of damages, costs, and attorney fees. The petition alleged that Owens violated LUTPA and requested treble damages and other relief available thereunder. Owens opposed Mr. Rincon's request for return of the vehicle, claiming a mechanic's privilege for payment of the cost of repairs, and requested that the matter be referred to Arbitration as required by the original repair contract signed by Mr. Rincon.
An updated invoice, dated July 31, 2014, was prepared by Owens for Mr. Rincon's vehicle. This invoice included charges of $7,697.09 for "Work Completed" and $1,081.00 for "Storage Fees" for the period of 06/12/14-07/28/14. According to Mr. Owens, Mr. Rincon was charged storage fees after June 12, 2014, because the repairs were complete at that time, but the vehicle had not been picked up by the customer. These storage fees were eventually removed from the invoice, and Mr. Rincon was only charged for the work completed ($7,697.09), which totaled $5,452.96 after the insurance payments received by Owens were applied.
On August 5, 2014, Mr. Rincon paid Owens $5,452.96, and the vehicle was released to him. Mr. Rincon testified that immediately upon starting the vehicle, it showed that the sensor was malfunctioning. He reported this to Mr. Owens' son, Brad Owens, who also works at the business, and Brad told him to bring the car back the next day and they would take care of it then. Mr. Rincon left with the vehicle as instructed, but did not return it to Owens the next day. After driving for a few days without the sensor working, he noticed other things that were not working properly and decided to have the vehicle inspected to ensure that the repairs had been done properly.
On August 14, 2014, Mr. Rincon brought the vehicle, along with a copy of Owens' bill for the repairs performed, to Medine's Collision Center (Medine's), an auto body repair shop in Baton Rouge that offers post-collision repair inspections. Medine's owner, Chris Medine, took apart Mr. Rincon's vehicle and inspected the repair work done by Owens, which he compared to Owens' bill. Based on his inspection, Mr. Medine informed Mr. Rincon that his vehicle had not been properly repaired by Owens, and he estimated that completing the repairs would cost $1,950.66.
Although the bill for the repairs to Mr. Rincon's vehicle was entitled "Preliminary Estimate" and dated 6/13/14, Mr. Owens testified that this was the final bill for the work performed on Mr. Rincon's vehicle.
From the time Mr. Rincon paid Owens and retrieved his vehicle, the lawsuit was delayed numerous times and took over three years to get to trial. On Mr. Rincon's motion, a status conference to set trial deadlines was held on July 17, 2015, and the trial court set the matter for a bench trial on January 12, 2016. The trial court issued a case management schedule with the trial deadlines, which stated that "Mediation has been seriously discussed and the parties believe that this case is not suited for Mediation because the amount in dispute is not enough to warrant the cost." This case management schedule does not mention Owens' request for Arbitration. Less than a month before the January 12, 2016 trial date, and after Mr. Rincon's pretrial statement was filed, Owens filed a motion requesting that the trial court order the parties to arbitrate and issue a stay of all proceedings. After a hearing on January 12, 2016, the trial court granted Owens' motion, but noted that its order directing the parties to arbitrate would expire in sixty days if Arbitration was not scheduled. On May 26, 2016, Mr. Rincon filed a motion in the trial court, seeking to dismiss the Arbitration and to reset the matter for trial due to the fact that the Arbitration proceeding scheduled for June 14, 2016, had been cancelled due to Owens' failure to pay Arbitration fees and provide a signed confirmation of Arbitration and fee agreements. Owens opposed the motion to dismiss the Arbitration on the grounds that the judgment ordering Arbitration and staying the trial court proceedings was a final judgment between the parties, and therefore any ruling regarding the payment of costs of the Arbitration would have to come from the Arbitrator. A hearing was held in the trial court, after which the trial court dismissed Mr. Rincon's motion on the grounds that the trial court no longer had jurisdiction over the matter due to the pending Arbitration proceeding. Mr. Rincon then filed a motion in the Arbitration proceeding and obtained a dismissal of the Arbitration and a remand of the matter to the trial court on October 10, 2016. After remand, counsel for Mr. Rincon filed a motion for status conference in the trial court to set another trial date. A telephone conference was held, and the one-day bench trial was scheduled for September 15, 2017.
At trial, Mr. Medine testified as an expert in auto body repair regarding his post-collision repair inspection of Mr. Rincon's vehicle. Mr. Medine testified that when he inspected the sensor that Mr. Rincon reported was malfunctioning, he found that it was damaged, despite the fact that Owens' bill included a $1,437.00 charge for a replacement sensor, plus labor for installation of the replacement sensor. Mr. Medine's opinion was that the sensor had not been replaced at all by Owens, or had been replaced with a damaged sensor. In addition to the sensor, Mr. Medine testified that he found a number of other issues with the repair work performed by Owens:
I took off the front bumper cover, and the bumper reinforcement still had the same damage on the vehicle that was originally on the vehicle. It was not replaced. There wasn't a [sic] energy absorber that he ... paid for — that was not there. There was some damage on the rear body panel that I — I noticed that the bumper wasn't fitting properly, so I asked him if I could take that off, and he said yes. So we took the rear body bumper cover off, and the rear body panel still had damage, and it had some rust on the — right in the center. And there was some frame damage still on the — it was evident — on the left and right rear frame rails, and there was some damage to the rear bumper. The rear bumper mounting brackets where they attached to the frame, there was some damage to that, also.
In addition to charging for parts which were not replaced, Mr. Medine testified that Owens included labor charges for work that was not done and double-billed for labor related to painting the hood of the vehicle. Mr. Medine estimated that it would cost $1,950.66 to repair Mr. Rincon's vehicle properly. This estimate included the cost of having the hood of the vehicle repainted, as Mr. Medine testified that the workmanship of the paint job done by Owens was "below the standard of any body shop." Although his reason for doing so was unclear, Mr. Medine did not include replacement of the damaged, malfunctioning sensor in this estimate.
Mr. Rincon testified that the seven-to-ten day timeframe he was given by Owens for the repairs to his vehicle was one reason he chose to bring his vehicle there after receiving estimates from three repair shops. According to Mr. Rincon, his car is a "very important tool" to his business, as he travels to visit his clients in Louisiana and Mississippi, and he was required to rent a vehicle to use for business during the time his vehicle was at Owens. Mr. Rincon testified that his insurance coverage only paid for part of the cost of the rental vehicle for the first twenty days, and altogether, he incurred about $3,000.00 in rental charges while waiting for Owens to repair and release his vehicle. Ms. Stephens maintained that Owens was not responsible for the delay in Mr. Rincon receiving his vehicle; rather, she claimed the cause was a combination of drawn-out insurance negotiations, Mr. Rincon "stopping and starting the repairs multiple times," and backordered parts. Ms. Stephens testified that the repairs on the vehicle were complete by June 3 or 4, and that she notified Mr. Tadda by phone at that time that the vehicle was ready, but the vehicle was not picked up until August 5. She admitted that she did not inform either Mr. Rincon or Mr. Tadda in writing that the car was ready, that she did not have any documentation that she notified anyone that the repairs were complete, and she testified that she did not know if a final bill was sent after the repairs were completed. Furthermore, contrary to her testimony that the repairs were complete by June 3 or 4, she also testified that an antenna needed for the repair, which had been on backorder, was not received until June 10 or 11.
Mr. Rincon did not offer any evidence of the amount he incurred in rental fees, and the trial court did not include rental charges in its calculation of damages.
Mr. Owens denied ever personally telling Mr. Rincon that the repairs would take seven-to-ten days, but acknowledged that he may have been given an estimate by someone else when he brought his car in. Like Ms. Stephens, Mr. Owens blamed the months-long delay on Mr. Rincon changing his mind and on backordered parts. Furthermore, Mr. Owens testified that Mr. Rincon's vehicle was completely repaired by June 13, 2014, and that Ms. Stephens notified Mr. Tadda at that time that the vehicle was ready, but the vehicle was not released to Mr. Rincon until August because he had not paid Owens' bill.
Brad Owens testified at trial that he runs the service department at Owens, and he personally did the mechanical work on Mr. Rincon's vehicle, including installing the sensor, in June 2014. According to Brad, mechanical work is done "sort of middle, late in the process before [the vehicle] goes back to the body man to be completely rebuilt." Brad testified that the mechanical work was done on Mr. Rincon's vehicle as soon as the backordered part came in, and then the vehicle went to the "body man" to be rebuilt. Brad denied having any knowledge that the sensor was not working when Mr. Rincon picked up the vehicle, but said that he could not be certain it was working at that time. He admitted that mistakes are sometimes made in vehicle repair, but said that Owens has a "full lifetime warranty" and will fix any problems that arise as long as the customer owns the vehicle.
At the conclusion of the one-day bench trial, the trial court rendered judgment in favor of Mr. Rincon and awarded treble damages under LUTPA in the amount of $7,887.24, attorney fees of $25,000.00, and the expert witness fee of $750.00. Owens filed a suspensive appeal, assigning the following trial court errors:
1. The trial court's finding that Owens engaged in unfair trade practices was manifestly erroneous;
2. The trial court erred in awarding treble damages absent the notice to Owens from the Louisiana Attorney General required by La. R.S. 51:1409(A);
3. The trial court erred in awarding attorney fees in an excessive amount and without taking any evidence on the issue;
4. The trial court erred in awarding expert fees in an excessive amount and without taking any evidence on the issue;
5. The trial court erred in awarding damages in an amount not supported by the evidence.
DISCUSSION
LUTPA, La. R.S. 51:1401 et seq., does not enumerate those instances of conduct that constitute unfair trade practices, but La. R.S. 51:1405(A) provides that "Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." Van Hoose v. Gravois, 11-0976, p. 10 (La. App. 1 Cir. 7/7/11), 70 So.3d 1017, 1023. What constitutes unfair competition or unfair or deceptive trade practices under LUTPA must be decided on a case-by-case basis. Walker v. Louisiana Health Management Co., 94-1396, p. 9 (La. App. 1 Cir. 12/15/95), 666 So.2d 415, 421, writ denied, 96-0571 (La. 4/19/96), 671 So.2d 922. The purpose of LUTPA is to halt unfair business practices and sanction the businesses that commit them. Quality Environmental Processes, Inc. v. I.P. Petroleum Co., 13-1582, p. 22 (La. 5/7/14), 144 So.3d 1011, 1025. Only egregious actions involving elements of fraud, misrepresentation, deception, or other unethical conduct will be sanctioned based on LUTPA. A LUTPA plaintiff must show the alleged conduct offends established public policy and is immoral, unethical, oppressive, unscrupulous, or substantially injurious. Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 09-1633, pp. 10-12 (La. 4/23/10), 35 So.3d 1053, 1059-60.
Given that the seminal determination of whether an entity is in violation of La. R.S. 51:1405 is fact based, the standard of review applicable to the trial court's finding that a business engaged in unfair trade practices is manifest error. McFadden v. Import One, Inc., 2010-952, p. 10 (La. App. 3 Cir. 2/9/11), 56 So.3d 1212, 1220, citing Rosell v. ESCO, 549 So.2d 840 (La. 1989).
Owens argues on appeal that its failure to perform all of the repairs to Mr. Rincon's vehicle may have been a breach of the contract for repairs between the parties, but that its negligence or error in failing to complete the repairs did not constitute fraud or bad faith. In finding that Owens committed unfair trade practices, the trial court said:
I do find that Owens charging for work that was not done is a definite unfair and deceptive trade practice. I believe it was knowingly done by them after receiving notice of the complaint from the Attorney General's Office.... Owens did argue that it had a lifetime warranty and would be willing to repair the vehicle at no cost to Mr. Rincon, but, again, I find it unfair and deceptive to charge for repairs that were not made and then fall back on the guarantee if the customer finally discovers that, in fact, the repairs were not made. These are repairs that were all covered up, and then the vehicle had to be taken apart to find out. that the repairs were not made. So, again, I think it was knowingly done by Owens figuring if they got caught, they would just take the vehicle in, and repair it as they were supposed to do it in the first place.
After a thorough review of the record, we find no manifest error in the trial court's conclusion that Owens' act of charging Mr. Rincon for repairs to his vehicle that were not actually performed was done knowingly, rather than negligently, and amounted to an unfair and deceptive trade practice.
Despite our conclusion that the trial court did not err in finding that Owens knowingly used unfair or deceptive trade practices, Owens' second assignment of error, that the court erred in awarding treble damages, has merit. Louisiana Revised Statutes 51:1409(A) provides, in pertinent part, that "If the court finds the unfair or deceptive method, act, or practice was knowingly used, after being put on notice by the attorney general, the court shall award three times the actual damages sustained." (Emphasis added). The notice required by La. R.S. 51:1409(A) is to serve the specific purpose of a "cease and desist" notice to the defendant that it may be subject civilly to a treble damages claim. B & G Crane Service, L.L.C. v. Duvic, 05-1798, p. 10 (La. App. 1 Cir. 5/5/06), 935 So.2d 164, 170, writ denied, 06-1820 (La. 10/27/06), 939 So.2d 1280. Thus, in order to recover treble damages, Mr. Rincon had to prove that Owens was put on notice of the potential for treble damages by the attorney general and thereafter continued its use of unfair or deceptive trade practices. Mr. Rincon failed to carry this burden of proof.
Mr. Rincon argues in his appellate brief that the issue of lack of notice from the attorney general was raised by Owens for the first time on appeal, therefore this court should not consider it. However, a review of the record reveals that Owens denied the allegation in paragraph 16 of Mr. Rincon's petition that it was put on notice by the attorney general via a May 23, 2014 letter, and therefore this allegation was at issue before the trial court. See, Courtebray v. Rils, 9 Rob. 511, 513 (La. 1845).
There is no evidence in the record that Owens was put on notice of the potential for treble damages by the attorney general or when such notice occurred relative to Owens' use of unfair or deceptive trade practices. A copy of the Consumer Complaint Form that Mr. Rincon completed and filed with the attorney general, dated May 20, 2014, was filed in evidence at the trial. This form contained Mr. Rincon's handwritten explanation of his complaint against Owens and Greg Owens, including a statement that their actions amounted to "pure extortion and unfair trade practices." However, despite Mr. Rincon's allegation of unfair trade practices, the form does not reference LUTPA or the possibility of treble damages in any way. Mr. Owens acknowledged at trial that Owens received a copy of Mr. Rincon's Consumer Complaint Form, but there was no evidence offered as to when it was received. The Consumer Complaint Form, standing alone, is insufficient to serve the purpose of a "cease and desist" notice to Owens that it may be subject to treble damages under LUTPA. Furthermore, even if the copy of the complaint form had been sufficient to put Owens on notice, with no evidence as to when the document was sent to or received by Owens, Mr. Rincon cannot carry his burden of proving that Owens continued to use unfair or deceptive trade practices after having been put on notice.
Mr. Rincon's attorney asked Mr. Owens at trial if he recalled the date when Mr. Rincon filed the consumer complaint, and he responded that he did not. Mr. Owens was not asked when Owens received the copy of the complaint.
Mr. Rincon attempted to introduce into evidence at the trial copies of "13 or 14" LUTPA notice letters issued by the attorney general to Owens in relation to complaints filed by its customers. However, because the copies of the letters were not authenticated in any way, the trial court correctly ruled that they were not admissible. See, Schexnayder v. Gish, 41,819, pp. 7-8 (La. App. 2 Cir. 2/7/07), 948 So.2d 1259, 1264; La. C.E. arts. 901, 902, & 904. Mr. Rincon argues on appeal that his failure to prove that Owens was put on notice by the attorney general was not fatal to his claim for treble damages, despite this court's holding in B & G Crane Service, L.L.C., 05-1798 at p. 10, 935 So.2d at 170, that an award of treble damages is punitive in nature and must be strictly construed, and therefore where the plaintiff is unable to prove the issuance of the requisite notice to the defendants mandated by the statute, treble damages are not available. In support of this argument, Mr. Rincon points out that La. R.S. 51:1409(B) was amended in 2006 after this court's ruling in B & G Crane Service, L.L.C., to provide:
Although Mr. Rincon's attorney proffered the copies of the LUTPA notice letters sent to Owens by the attorney general, Mr. Rincon did not answer the appeal seeking reversal of this ruling. Thus, this objection was abandoned.
Upon commencement of any action brought under Subsection A of this Section, the plaintiffs attorney shall mail a copy of the petition to the attorney general, and, upon entry of any judgment or decree in the action, shall mail a copy of such judgment or decree to the attorney general, but failure to conform with this Subsection shall not affect any of plaintiff's rights under this Section. [Emphasis added.]
Despite the apparent implication of Mr. Rincon's brief that the statute was amended in response to our ruling in B & G Crane Service, L.L.C. to provide that a failure to comply with the notice requirements of the statute would not affect a plaintiff's rights to treble damages, the changes made to La. R.S. 51:1409 by Acts 2006, No. 218, § 1, which became effective less than a month after this court's opinion in B & G Crane Service, L.L.C., involved only the deletion of references to a Director (executive assistant to the governor in charge of consumer affairs) and changes to capitalization and punctuation. Furthermore, the provision in Subsection B that "failure to conform with this Subsection shall not affect any of plaintiff's rights under this Section" does not apply to the notice requirement for the award of treble damages. Subsection B merely states that a failure to conform to the requirements of "this Subsection," meaning the requirements of Subsection B (that the plaintiff's attorney must mail a copy of any petition filed and any judgment or decree obtained under Subsection A to the attorney general), will not affect any of the plaintiff's rights under "this Section," meaning the plaintiff's rights under La. R.S. 51:1409 (the right to bring an individual action to recover actual damages, treble damages, attorney fees, and costs, and to obtain injunctive relief, where appropriate). This argument by Mr. Rincon in support of maintaining the award of treble damages has no merit.
Since Mr. Rincon was unable to prove the issuance of the requisite notice to Owens mandated by the statute, the trial court erred in awarding treble damages, and this portion of the award must be vacated. However, this does not affect Mr. Rincon's entitlement to actual damages, attorney fees, and costs under LUTPA. See, Thomas v. Busby, 95-1147, pp. 10-11 (La. App. 3 Cir. 3/6/96), 670 So.2d 603, 610, writ granted, judgment vacated, 96-0891 (La. 5/17/96), 673 So.2d 601, aff'd on remand, 95-1147 (La. App. 3 Cir. 11/13/96), 682 So.2d 1025, writ denied, 96-2990 (La. 2/21/97), 688 So.2d 517.
Owens' next assignment of error is that the court erred in awarding an excessive amount of attorney fees without taking any evidence on the issue. The trial court in this case awarded Mr. Rincon $25,000.00 in attorney fees. Although Mr. Rincon offered no evidence of the amount of attorney fees charged or attorney hours spent on this case, the trial court explained how it arrived at the amount:
I ran through the history of how Owens drug the case out and then asked for
Arbitration. Had the case referred to Arbitration. Refused to pay the Arbitrator's fee causing additional attorney's fees to be incurred by Mr. Rincon. Then, having to go through the entire process of again having the case set for trial and eventually trying the case. Clearly, Owens has caused substantial attorney's fees....
Louisiana Revised Statutes 51:1409(A) provides that in the event damages are awarded to a plaintiff in a private action under La. R.S. 51:1409, the court "shall award to the person bringing such action reasonable attorney fees and costs." Thus, because the trial court awarded damages to Mr. Rincon under La. R.S. 51:1409, an award of reasonable attorney fees and costs was mandatory. See, McFadden, 10-952 at p. 14, 56 So.3d at 1222.
The mandatory award of reasonable attorney fees and costs under La. R.S. 51:1409(A) sanctions egregious actions involving elements of fraud, misrepresentation, deception, or other unethical conduct, and is clearly penal in nature. See, Quality Environmental Processes, Inc., 13-1582 at p. 21, 144 So.3d at 1025; Glod v. Baker, 04-1483, p. 5 (La. App. 3 Cir. 3/23/05), 899 So.2d 642, 646, writ denied, 05-1574 (La. 1/13/06), 920 So.2d 238. Where a statutory award of attorney fees is penal in nature, the value of the attorney fee does not need to be proven. See, Quality Environmental Processes, Inc. v. IP Petroleum Co., Inc., 16-0230, p. 25 (La. App. 1 Cir. 4/12/17), 219 So.3d 349, 377, writ denied, 17-00915 (La. 10/9/17), 227 So.3d 833.
Although the value of the attorney fee did not have to be proven, the award still must be reasonable. The Louisiana Supreme Court has set forth ten factors to be considered in determining the reasonableness of attorney fees: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances made; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court's own knowledge. Quality Environmental Processes, Inc., 16-0230 at p. 25, 219 So.3d at 377.
Considering the above-listed factors and the circumstances of this case, especially the amount of Mr. Rincon's claim for damages and the fact that the award of treble damages has been vacated on appeal due to the failure of plaintiff's counsel to properly authenticate the evidence of notice required by the statute, we believe that an award of $25,000.00 in attorney fees was unreasonable and an abuse of discretion. Considering the circumstances of this case, we believe that an attorney fee award of $12,500.00 is reasonable, and amend the judgment to reduce the attorney fee award to that amount.
Owens also argues on appeal that the trial court's award of an expert witness fee of $750.00 for Mr. Medine without evidence of the cost was an abuse of discretion.
Louisiana Code of Civil Procedure article 1920 provides, in part, that "Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable." However, the provisions of La. R.S. 51:1409(A) make the award of costs against a defendant who violated LUTPA mandatory. Expert witness fees are to be taxed as costs. La. R.S. 13:4533. Louisiana Revised Statutes 13:3666, which governs compensation of expert witnesses, provides, in pertinent part:
A. Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required.
B. The court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party cast in judgment either:
(1) From the testimony of the expert relative to his time rendered and the cost of his services adduced upon the trial of the cause, outside the presence of the jury, the court shall determine the amount thereof and include same,
(2) By rule to show cause brought by the party in whose favor a judgment is rendered against the party cast in judgment for the purpose of determining the amount of the expert fees to be paid by the party cast in judgment, which rule upon being made absolute by the trial court shall form a part of the final judgment in the cause.
The trial court has great discretion in awarding costs, including expert witness fees. However, the party seeking costs has the burden of proving the reasonable value of the expert's out-of-court work. If the parties do not stipulate to the specifics and costs of the out-of-court work, then the expert must testify at the trial, or a subsequent hearing on the rule to fix costs, and be subject to cross examination. Dakmak v. Baton Rouge City Police Dept., 12-1850, p. 6 (La. App. 1 Cir. 9/4/14), 153 So.3d 511, 515.
The factors to be considered by the trial court in setting an expert witness fee include the time spent testifying, time spent in preparatory work for trial, time spent away from regular duties while waiting to testify, the extent and nature of the work performed, and the knowledge, attainments and skill of the expert. Additional considerations include the helpfulness of the expert's report and testimony to the trial court, the amount in controversy, the complexity of the problem addressed by the expert, and awards to experts in similar cases. Although a party can have taxed as costs the reasonable cost of time spent by the expert in gathering facts necessary for his testimony, he may not include the time spent in consultation which only assists the attorney in preparation for the litigation. Most importantly, expert witnesses are entitled only to reasonable compensation. In assessing expert witness fees, the trial court is not bound by agreements between an expert witness and the party calling him concerning fees, the expert's statements concerning his charges, nor the actual fees paid. In fact, those facts should not be considered by courts when determining fees. However, the trial court may award the full amount charged by the expert if the amount is reasonable in light of the many factors considered in fixing expert witness fees. Dakmak, 12-1850 at pp. 4-5, 153 So.3d at 514.
Although Mr. Medine did not testify as to exactly how many hours he spent outside of court gathering information and preparing for his expert testimony, Mr. Medine did testify at trial, subject to cross examination, in detail about the work he did outside of court. Using Owens' final bill for the repair work, which was provided to him at the time of the inspection, Mr. Medine testified that he disassembled the vehicle, inspected all of the repair work listed on the bill, took photographs of his findings, reassembled the vehicle, and prepared an estimate of the cost to repair the vehicle, Mr. Medine also testified to his experience and training in auto body repair, and Owens stipulated to his expertise in that field. In its oral reasons for judgment, the trial court stated that:
The final bill for repairs contained 65 line items.
The court was impressed with the expert testimony of Mr. Chris Medine, another repair mechanic here in Baton Rouge, who showed what I believe was very credible photographic and testimonial evidence that the repairs — many of the repairs for which Owens charged and was eventually paid, were not actually done.
Based on this evidence, we do not believe that the trial court abused its discretion in setting an expert witness fee of $750.00 under La. R.S. 13:366(B)(1).
Owens' final assignment of error is that the trial court erred in awarding damages in an amount not supported by the evidence. The total amount of actual damages awarded by the trial court was $2,629.08. This amount included $678.42, the amount charged by Owens in excess of the amount agreed to in the Budget Repair Service addendum to the repair contract; and $1,950.66, the amount Mr. Medine determined it would cost to properly fix Mr. Rincon's vehicle.
On appeal, Owens argues that the trial court erred in awarding the additional $678.42, because Ms. Stephens testified at trial that this charge was for an antenna that was needed for the repairs and was authorized by Mr. Tadda. However, the total, marked-up charge for the antenna on the final bill from Owens was only $52.30. The trial court is free to accept or reject, in whole or in part, the testimony of any witness. In re Succession of Wagner, 08-0212, p. 21 (La. App. 1 Cir. 8/8/08), 993 So.2d 709, 723. The trial court obviously did not believe Ms. Stephens' testimony that the additional $678.42 charged by Owens had been authorized by Mr. Tadda. Based on the evidence before the court, we do not find that the trial court's calculation of the amount of actual damages was in error.
CONCLUSION
For the reasons set forth herein, the award of treble damages to plaintiff, Gabriel E. Rincon, under La. R.S. 51:14G9(A) is vacated. The judgment is amended to reflect the amount of actual damages awarded, $2,629.08, and to reduce the attorney fee award to $12,500.00. As amended, the judgment is affirmed.