July 15, 2015
RAJENDRA T. GANDHI, M.D. and VIBHA R. GANDHI, Plaintiffs-Appellees
SONAL FURNITURE AND CUSTOM DRAPERIES, L.L.C., SHYAM GARG, and LYNN GUNTER, Defendants-Appellants
Appealed from the First Judicial District Court for the
Parish of Caddo, Louisiana. Trial Court No. 568891. Honorable
Scott J. Crichton, Judge.
PLAISANCE, RICK FAYARD, Counsel for Appellant.
ODOM, L.L.P., By: John S. Odom, Jr., J. Marshall Jones, Jr.,
Counsel for Appellees.
CARAWAY, DREW and LOLLEY, JJ.
La.App. 2 Cir. 1] CARAWAY, J.
redhibition and unfair trade practices suit against the
seller of designer furniture, the trial court granted
judgment in favor of the furniture buyer against both the
seller furniture company and its representative. Rescission,
the return of price, nonpecuniary damages and attorney fees
were awarded. Violations of both redhibition and unfair trade
practices law were recognized. The seller appeals this ruling
and its representative also contests the judgments assessment
of personal liability against him. We amend the judgment and
as amended, affirm.
2012, Dr. Rajendra Gandhi and his wife, Vibha (" the
Gandhis" ), began investigating the idea of redecorating
their home with custom designer furniture and draperies. In
pursuit of this plan, Dr. Gandhi, a devout Hindu, visited the
Sonal Furniture and Custom Draperies, L.L.C. ("
Sonal" ) website. The company is located in Georgia. Dr.
Gandhi became interested in the business which represented
itself to be culturally and religiously like-minded with him
and advertised the finest furniture and
by what he saw on the website, Dr. Gandhi placed a phone call
to Shyam Garg, a " partner" and employee of Sonal.
The two arranged an appointment to meet, and Garg first
visited the Gandhis' home on December 24, 2012. During
this visit, Garg took photographs of the home [49,959 La.App.
2 Cir. 2] and indicated to the Gandhis that his interior
designer, Lynn Gunter, was the best designer to be found.
the first week of January 2013, the Gandhis and their son,
Viraj, traveled to visit Sonal's Global Mall showroom.
The Gandhis and Garg walked through the showroom for 45
minutes before traveling to Garg's show house in Macon
Georgia, some 70 minutes away. Dr. Gandhi observed that the
furniture in the showrooms appeared to be of very high
quality and stressed to Garg his expectations that he receive
high quality furniture in his home. Garg assured Dr. Gandhi
that he would receive nothing but the best and guaranteed
that everything would be delivered " on approval"
and could be returned if the client did not want it.
parties agreed that Garg and Gunter would return to the
Gandhis' home at a later date. No written contract was
ever entered into between the parties who corresponded by
email and telephone. On January 10, 2013, upon Garg's
return to Shreveport with Gunter to take measurements and
solicit Dr. Gandhi's business, Dr. Gandhi gave Garg a
the second week of February, Dr. Gandhi was in India visiting
his ill father when he received a telephone call from Garg.
Garg indicated that he and Gunter had " laid out
furniture" and wanted to show it to the Gandhis. No date
was set, but on February 18, 2013, Garg, Gunter and a
four-person team arrived at the Gandhis' home with three
to four trucks, only two days after Dr. Gandhi returned from
India. Dr. Gandhi was at work when he received a frantic call
from his wife regarding the situation. He was unable to leave
his practice until noon and could not supervise the work
going on in his home.
La.App. 2 Cir. 3] Garg's entourage worked in the
Gandhis' home for five days. Dr. Gandhi trusted Garg to
do his job and provide the best furniture. When Mrs. Gandhi
pointed out scratches, Garg assured the couple that he would
fix any problems or remove any unwanted items when he
returned on March 31, 2012. When the work was completed, in
the late evening hours of February 23, 2012, Garg presented
the Gandhis with an invoice for a total amount of $210,000.
The February 23rd invoice showed the individual cost of each
item installed in the office, foyer, dining room, family
room, grand room, breakfast room, master bedroom, temple room
and landing, in addition to a bed for the Gandhis'
daughter and a grandfather clock and draperies. Dr. Gandhi
had been unable to completely inspect the work and denied
ever approving the work and furniture. Six items were
returned at that time, however.
following morning, Garg showed up at the house to discuss
payment. Dr. Gandhi tendered a check for $150,000 (dated
February 23, 2013 and deposited on February 27) from his
personal account and a March 15, 2012 postdated second check
from his business account in the amount of $40,000. In turn,
Garg claimed to have presented the February 23rd several page
final invoice to the Gandhis. Garg claimed that he provided
the Gandhis with a final invoice containing handwritten notes
indicating the parties' agreement to 100% satisfaction
after 7 days' inspection with no questions or returns
upon final payment on February 23, 2013. The Gandhis
acknowledged receipt of an invoice, but denied ever seeing
the handwritten [49,959 La.App. 2 Cir. 4] notes or agreeing
that final payment precluded their return of unfavorable
two weeks that followed, the Gandhis began to notice issues
with the goods. Upon closer inspection, they found that
" every piece was damaged," and of a much lesser
quality than what they had seen in the showroom and expected
to receive. Mrs. Ghandi called Garg on March 11 reporting
that one of the breakfast chairs was broken. She called again
on March 15 with complaints about a broken leg on an Italian
console and black nails in the woodwork. During school break,
Viraj also contacted Garg about the family's
dissatisfaction with the work and goods. After these events,
Dr. Gandhi placed a stop payment on the $40,000 check on
March 18, 2013. He spoke with Garg and informed him of the
emails of March 18 and 19, 2013, Garg acknowledged the
Gandhis' complaints and attempted to prevent Dr. Gandhi
from stopping payment on the check by warranting the "
furniture for 25 years," and explaining away any
complaints. Garg also continued to promise his removal of
anything unsatisfactory to the Gandhis.
March 21, 2013, Garg emailed Dr. Gandhi again, requesting
that he be allowed to come to the house on March 31, 2013,
" to fix and do whatever is necessary to make looks
things good to your satisfaction." However, on March 28,
2013, Dr. Gandhi sent an email to Garg instructing [49,959
La.App. 2 Cir. 5] him to pick up everything delivered and
installed in the house and requesting a full refund by April
Garg did not respond, Dr. Gandhi sent him a second email on
March 31. Garg responded by email informing Dr. Gandhi that
he had filed a criminal complaint against him and his wife
for stopping payment on the $40,000 check and defrauding the
IRS by using corporate funds to pay for home furniture. Garg
also claimed that Dr. Gandhi failed to pay for services
rendered. Garg informed Dr. Gandhi that the case was going
before a grand jury and he would be arrested. He threatened
to report Dr. Gandhi to the IRS and suggested that he would
lose his medical license. Garg informed Dr. Gandhi that a
wire transfer of $42,500 would be sufficient for him to
withdraw the criminal complaint.
claimed that as he had promised, he had returned to
Shreveport on March 30 and 31, 2012, and unsuccessfully made
several attempts to contact the Gandhis. When he failed to
make contact with the Gandhis, however, Garg filed the
criminal complaint. No further communication between the
Mrs. Gandhi instituted suit against Sonal, Garg and Gunter on
June 3, 2013, initially seeking restitution, reasonable
damages and sums for violation of the Louisiana Racketeering
Act. In October of 2013, the Gandhis' amended their suit
to add claims in redhibition and violations of the Louisiana
Unfair Trade Practices Act (LUTPA).
trial occurred on February 4 and 5, 2014. Garg, the Gandhis,
Viraj and two experts testified.
La.App. 2 Cir. 6] Specifically, plaintiffs' expert Kirk
Thomas, an expert in interior design, testified that he had
inspected the furniture and accessories at issue in April of
2013 and based his opinion upon his personal observations.
Upon his inspection, Thomas " began to question what
kind of materials the pieces were constructed of," and
ultimately concluded that the furnishings were " not
actually intended for functional use, almost like movie set
furniture," and " would be very difficult to
repair," because they were " a product of how they
were originally constructed." In Thomas's opinion,
the furniture was not functional. He testified that much of
the actual quality of the furniture was misrepresented and
pointed to items that had been previously repaired. Thomas
also testified to " many inconsistencies in how the
draperies were fabricated and installed," and ultimately
described the workmanship as " shoddy."
plaintiffs submitted into evidence 157 photographs of the
furniture and draperies placed in the home by Sonal.
Defendants also introduced 42 photographs into evidence
showing the furniture delivered and work done by the
defendants on the Gandhi home.
written reasons for judgment on the issue of liability on
March 5, 2014, the trial court concluded that the Gandhis had
proven liability under redhibition and LUTPA. Specifically,
the court determined that Garg's action amounted to a
" bait and switch" tactic, misrepresented the
quality of the furniture, preyed upon the cultural and
religious heritage of the Gandhis and included outrageous
threats, coercion and extortive behavior. The court also
rejected Garg's testimony and determined that he had
fraudulently [49,959 La.App. 2 Cir. 7] submitted the February
23 final invoice to the court. The liability assessment was
against both Sonal and Garg.
subsequent written reasons for judgment on March 20, 2014,
the court ruled that the Gandhis had proven their entitlement
to nonpecuniary damages under redhibition and LUTPA. With
regard to redhibition damages, the court determined that the
" customized furnishing of [the Gandhis'] unique
home consistent with their Indian culture and inclusive of a
temple for worship, was made for the gratification of a
nonpecuniary interest," and that Garg should have known
that his failure to perform would cause extreme mental
anguish, humiliation, and inconvenience. The trial court
fixed the nonpecuniary award pertaining to this ruling at
to LUTPA damages, the court concluded that the "
extortive conduct of Garg was outrageous and abhorrent and
the multiple violations of the unfair trade practices act
were shocking." The court therefore awarded $50,000 as a
nonpecuniary award for the mental anguish associated with the
written judgment memorializing these rulings was entered on
April 25, 2014, in favor of the Gandhis against Sonal and
Garg in his individual capacity, awarding the Gandhis
pecuniary damages of $170,000 (for refund of price paid) and
nullification of the $40,000 obligation on the stop payment
check. Additionally the court entered judgment for $100,000
in nonpecuniary damages, awarded attorney fees in the amount
of $69,163.75, costs of $3,171.10 and expert witness fees of
La.App. 2 Cir. 8] Defendants moved for a new trial contesting
the admissibility of the photographic evidence and on the
grounds that the law and evidence failed to support recovery
in either redhibition or LUTPA. When the motion for new trial
was denied, this appeal by the defendants ensued.
appellants take issue with the following observation in the
trial court's written ruling:
4. There is abundant evidence in the record to support either
of the plaintiffs' legal theories--that the transaction
was one of a completed sale of defective redhibitory
merchandise with the right of inspection, or that it was a
conditional sale with the suspensive condition of right of
view. During the period of view, Dr. and Mrs. Gandhi notified
Mr. Garg that the items were unacceptable and they requested
removal and a full refund. Mr. Garg breached his promises to
the Gandhis as to both the quality and fitness of the items,
as well as his promise to pick up the merchandise with a full
refund if they were not satisfied.
take the position that the sale was conditional within the
initial 7-day period upon Sonal's delivery of the items
of sale. According to their argument, " [t]his knowledge
placed upon the plaintiffs the duty to inspect the furniture
at the time of delivery and object to either the quality or
condition of the furniture." With no objection by the
Gandhis and their payments of $170,000 of the price,
appellants assert that the claims for redhibition are
precluded because, after the period of inspection,
redhibition protection no longer exists.
chapter 4 of the law of sale dealing with the perfection of
the sale, Article 2460 provides as follows:
[49,959 La.App. 2 Cir. 9] When the buyer has reserved the
view or trial of the thing, ownership is not transferred from
the seller to the buyer until the latter gives his approval
of the thing.
C.C. art. 2460.
regarding the sale of movables, Article 2604 provides as
The buyer has a right to have a reasonable opportunity to
inspect the things, even after delivery, for the purpose of
ascertaining whether they conform to the contract.
C.C. art. 2604.
articles, cited by appellants, deal with the buyer's
right to check whether the delivered item conforms to the
contract, the perfecting of the sale, and the risk attendant
to the loss of a thing as the sale is perfected. With both
parties acting in good faith, the sale may either be
completed or a meeting of the minds over the thing delivered
may be found lacking. Importantly, neither of these settings
is addressed in the law of sale under the chapter on
other hand, the law of redhibition for a completed sale
begins with the general provision of warranty that "
[t]he seller warrants the buyer against redhibitory defects,
or vice, in the thing sold." La. C.C. art. 2520. A
particular vice stemming from the actions of a bad faith
seller is addressed in Article 2545, as follows:
. . . [A] seller who declares that the thing has a quality
that he knows it does not have, is liable to the buyer for
the return of the price with interest from the time it was
paid, for the reimbursement of the reasonable expenses
occasioned by the sale and those incurred for the
preservation of the thing, and also for damages and
reasonable attorney fees.
C.C. art. 2545.
La.App. 2 Cir. 10] Without addressing in brief the above
quoted provision of Article 2545, the appellants instead cite
Article 2529, which provides as follows:
When the thing the seller has delivered, though in itself
free from redhibitory defects, is not of the kind or quality
specified in the contract or represented by the seller, the
rights of the buyer are governed by other rules of sale and
C.C. art. 2529.
this provision, appellants argue that rescission of sale and
return of the price is the only possible remedy for the
Gandhis and that attorney fees under redhibition are not
our review of the evidence, the ruling of the trial court and
these Civil Code articles, we believe that the confusion and
deception regarding the parties' transaction do not
permit a finding of an agreement for a conditional sale. The
sale in this case was completed and fell directly under
Article 2545 because of the seller's bad faith and
misrepresentation of the quality of the merchandise sold.
Article 2529 is not in conflict with the quoted provision of
Article 2545. The representation of the seller addressed in
Article 2545 is made in bad faith because the seller "
knows" the item of sale will not have the quality
desired by the buyer. That known deficient quality is now
recognized as a redhibitory vice. Under Article 2529, the
seller may have been confused regarding the exact quality of
the item sold and the quality desired by the buyer. However,
he does not act in bad faith in any representation of the
product. Thus, the article indicates that the additional
remedy of attorney fees in redhibition is not provided the
successful buyer for the rescission of such sale.
La.App. 2 Cir. 11] Apart from this legal exercise with the
articles on sale, appellants do not challenge the trial
court's fact findings regarding Garg's bad faith and
fraud. They do not contest Thomas's opinions about the
" movie set" furniture which led the trial court to
label the sale as a " bait and switch."
extent that appellants' arguments suggest that the
Gandhis had to immediately understand the quality of the
delivered items before payment of $150,000, we disagree. The
defendants made a hurried, unannounced delivery. The finding
that Garg preyed on the cultural and religious heritage of
the Gandhis and the trust they placed in him was
appropriately described in the trial court's ruling with
the adjectives abhorrent, outrageous, and oppressive. When
Garg finally left their home after his sales rush, the
Gandhis began to realize his deception. Therefore, from our
review of the record, we affirm that Sonal's contract of
sale was subject to rescission under the redhibition
principle of Article 2545 with remedies awarded by the trial
court, including attorney fees.
Garg argues that he cannot be personally liable as a "
partner" of Sonal, a limited liability company
(LLC). In making this argument, Garg makes no
assertions regarding the state law under which Sonal was
formed. The petition alleges Sonal as a Georgia LLC. Garg
makes no citation to any state's LLC law, but only
asserts the general limitations on liability, or the [49,959
La.App. 2 Cir. 12] corporate shield principle, pertaining to
corporate shareholders, LLC members or agents.
our law, La. R.S. 12:1320 sets forth the law regarding
liability of the members and managers of an LLC to third
parties, as follows:
liability of members, managers, employees, or agents, as
such, of a limited liability company organized and existing
under this Chapter shall at all times be determined solely
and exclusively by the provisions of this Chapter.
Except as otherwise specifically set forth in this Chapter,
no member, manager, employee, or agent of a limited liability
company is liable in such capacity for a debt, obligation, or
liability of the limited liability company.
member, manager, employee, or agent of a limited liability
company is not a proper party to a proceeding by or against a
limited liability company, except when the object is to
enforce such a person's rights against or liability to
the limited liability company.
Nothing in this Chapter shall be construed as being in
derogation of any rights which any person may by law have
against a member, manager, employee, or agent of a limited
liability company because of any fraud practiced upon him,
because of any breach of professional duty or other negligent
or wrongful act by such person, or in derogation of any right
which the limited liability company may have against any such
person because of any fraud practiced upon it by him.
Louisiana Supreme Court in Ogea v. Merritt, 13-1085
(La. 12/10/13), 130 So.3d 888, addressed the limited
liability protection for members and managers of LLCs under
La. R.S. 12:1320. Concerning the " negligent and
wrongful act" exception of Section 1320(D), the court
Therefore, if a traditional tort has been committed against
any cognizable victim(s), that situation weighs in favor of
the [49,959 La.App. 2 Cir. 13] " negligent or wrongful
act" exception and in favor of allowing the victim(s) to
recover against the individual tortfeasor(s).
Ogea v. Merritt, supra at 901 . The wrongful act in
this case is further addressed in Section 1320(D) as "
fraud" by a member/actor of an LLC that falls outside of
the corporate liability shield protection.
is a misrepresentation or a suppression of the truth made
with the intention either to obtain an unjust advantage for
one party or to cause a loss or inconvenience to the other.
La. C.C. art. 1953. Fraud need only be proved by a
preponderance of the evidence and may be established by
circumstantial evidence. La. C.C. art. 1957. The party
against whom rescission is granted because of fraud is liable
for damages and attorney fees. La. C.C. art. 1958. Fraud may
be predicated on promises made with the intention not to
perform at the time the promise is made. The trial
court's findings with respect to a claim of fraud are
subject to the manifest error standard of review. Benton
v. Clay, 48,245 (La.App.2d Cir. 8/7/13), 123 So.3d 212.
above Civil Code provisions on fraud pertain to conventional
obligations and the vitiation of consent between the parties
to a contract. Nevertheless, fraud may furnish a cause of
action for damages as an intentional wrong under La. C.C.
art. 2315. 1 William Crawford, Sales § 12:21 at 250 in
12 Louisiana Civil Law Treatise (2d. ed. 2009); see
also, Revision Comments (C), La. C.C. art. 1958. Such tort
can arise in a contract between a corporate entity and the
plaintiff when the actor/representative of the corporate
entity intentionally conducts the fraud against the
plaintiff. [49,959 La.App. 2 Cir. 14] In light of the
definition and review of fraud, the evidence indicates that
Garg had both the intent to cause a loss or inconvenience to
the Gandhis and to obtain an unjust advantage for Sonal of
which he benefitted as a member. While the rescission of the
sale pertains to the contract between Sonal and the Gandhis,
Garg's participation in the fraud as a third party to the
contract is an intentional tort making him personably liable
in damages to the Gandhis.
the broad perspective, the trial court awarded $100,000 in
mental anguish or nonpecuniary damages to the Gandhis.
Nevertheless, the trial court segmented those damages. First,
there was an award of $50,000 for mental anguish damages
under Civil Code Article 1998 because the nature and
object of the sale were intended to gratify certain religious
interests of the Gandhis and Garg knew that his fraudulent
conduct would aggrieve the feelings of the Gandhis. Second,
the egregious conduct of Garg was found to be a violation of
LUPTA, and the threats and coercion Garg directed at the
Gandhis in attempts to complete the transaction were remedied
by an additional $50,000 award for mental anguish.
appeal, appellants do not assign as error or challenge two
significant aspects of these rulings regarding nonpecuniary
damages. First, they do not dispute the award of $50,000 for
nonpecuniary damages [49,959 La.App. 2 Cir. 15] associated
with the nature of the sale under Article 1998. According to
Revision Comment (j) for Civil Code Article 2545, the
redhibition remedies do not include nonpecuniary damages even
in the case where the seller declares that the thing has a
quality that he knows is untrue. The test for nonpecuniary
damages remains Article 1998, upon which the trial court
rests its initial $50,000 award for damages. Appellants do
not challenge the factual or legal basis for that ruling.
Second, neither of the $50,000 awards, which arose from
separate factors for mental abuse, are challenged for their
amounts or for quantum.
primary argument raised by appellants concerns the
nonpecuniary damages awarded under LUTPA. They dispute that
LUTPA was violated and that this award is a LUTPA remedy.
LUTPA claim is set forth as follows:
A. Unfair methods of competition and unfair or deceptive acts
or practices in the conduct of any trade or commerce are
hereby declared unlawful.
R.S. 51:1405(A). Acts constituting unfair or deceptive trade
practices are not specifically defined but are determined on
a case-by-case basis. Johnson Const. Co. v. Shaffer,
46,999 (La.App.2d Cir. 2/29/12), 87 So.3d 203; Tyler v.
Rapid Cash, LLC, 40,656 (La.App.2d Cir. 5/17/06), 930
So.2d 1135. Only egregious actions involving elements of
fraud, misrepresentation, deception, or other unethical
conduct will be sanctioned based on LUTPA. LUTPA does not
provide an alternate remedy for simple breaches of contract.
There is a great deal of daylight between a breach of
contract claim and the egregious behavior the statute
proscribes. Cheramie Services, Inc. v. Shell Deepwater
Prod. Inc., 09-1633 (La. 4/23/10), 35 So.3d 1053 [49,959
La.App. 2 Cir. 16].
been held that recovery of general damages is available under
LUTPA. These include damages for mental anguish and
humiliation. Slayton v. Davis, 04-1652 (La.App.3d
Cir. 5/11/05), 901 So.2d 1246; Laurents v. Louisiana
Mobile Homes, Inc., 96-976 (La.App.3d Cir. 2/5/97), 689
So.2d 536; Vercher v. Ford Motor Co., 527 So.2d 995
(La.App.3d Cir. 1988). A LUTPA violation also results in an
award for attorney fees. La. R.S. 51:1409(A).
most egregious aspect of Garg's conduct stemmed from the
trust he built with the Gandhis from his representations
about their common Hindu beliefs. Dr. Gandhi testified that
Garg " started [a] binding family bond," and began
referring to Dr. Gandhi as his younger brother and to Mrs.
Gandhi as his younger sister. Garg's apparent spiritual
and cultural like mindedness caused Dr. Gandhi to feel "
comfortable" and to place his trust in Garg. This is in
contrast to the great sham of the sales transaction visited
upon the Gandhis by Garg. This violation of trust served as
the basis of the trial court's ruling for fraud,
misrepresentation, deception and unethical conduct, which our
Supreme Court in Cheramie Services, supra,
recognized as central to a LUTPA violation.
the fraudulent relationship built by Garg, his criminal and
professional charges against the Gandhis caused great mental
anguish as recognized by the trial court's award. As
Garg's conduct was tortious under our law for fraud and
unethical by his twist and abuse of religious belief, [49,959
La.App. 2 Cir. 17] nonpecuniary damages under LUTPA and our
tort law were authorized. We also find that these LUTPA
damages inflicted by Garg for the economic benefit of Sonal
were primarily employment related, making Sonal vicariously
liable for Garg's acts. Ermert v. Hartford Ins.
Co., 559 So.2d 467 (La. 1990); Johnson v. First
Nat'l Bank of Shreveport, 00-870 (La.App.3d Cir.
6/20/01), 792 So.2d 33, writs denied, 01-2770 (La.
1/4/02), 805 So.2d 212, 01-2783 (La. 1/4/02), 805 So.2d 213.
also contests the admissibility of the 157 photographs
submitted by the plaintiffs into evidence on the grounds that
they not only violated the court's pretrial orders, but
were also unreliable and prejudicial. The subject
photographs, taken two weeks before trial, depict damage
and/or places of repair to the furniture, substandard
furniture and upholstery and drapery installation, including
mismatched curtain tie backs. The defendants filed a motion
in limine to exclude the photographs from evidence
on the grounds that they were taken in the weeks before trial
and were first received by defendants on February 3, 2014, in
violation of the trial court's scheduling order. Prior to
trial, the court considered the motion and allowed the
photographs into evidence " subject to vigorous cross
examination and identification." Defense counsel lodged
a continuing objection.
may not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of a party is affected.
La. C.E. art. 103. [49,959 La.App. 2 Cir. 18] The trial court
is granted broad discretion in its evidentiary rulings, which
will not be disturbed absent a clear abuse of that
discretion. Politz v. Politz, 49,242 (La.App.2d Cir.
9/10/14), 149 So.3d 805; Simmons v. Christus Schumpert
Medical Ctr., 45,908 (La.App.2d Cir. 6/15/11), 71 So.3d
407, writs denied, 11-1592 (La. 10/7/11), 71 So.3d
317; 11-1591 (La. 10/7/11), 71 So.3d 318; Graves v.
Riverwood Int'l Corp., 41,810 (La.App.2d Cir.
1/31/07), 949 So.2d 576, writ denied, 07-0630 (La.
5/4/07), 956 So.2d 621. On appeal, the court must consider
whether the complained of ruling was erroneous and whether
the error affected a substantial right of the party. If not,
reversal is not warranted. Hays v. Christus Schumpert N.
Louisiana, 46,408 (La.App.2d Cir. 9/21/11), 72 So.3d
955. The determination is whether the error, when compared to
the record in its totality, has a substantial effect on the
outcome of the case. Id.
the lower court is given broad discretion to determine
whether or not to modify a pretrial order. Wilhite v.
Thompson, 42,395 (La.App.2d Cir. 8/15/07), 962 So.2d
493, writ denied, 07-2025 (La. 2/15/08), 976 So.2d
175; Vernon v. Wade Correctional Inst., 26,053
(La.App.2d Cir. 8/19/94), 642 So.2d 684. This discretion is
controlled by the principle that it must be exercised to
prevent substantial injustice to the parties who have relied
on the pretrial rulings or agreements and structured the
preparation and presentation of their cases accordingly.
Absent an abuse of discretion, the decision of the trier of
fact will be upheld. Wilhite, supra .
matter, Thomas testified that all items depicted in the
photographs submitted into evidence and listed in the final
invoice were present in the home at the time of his initial
inspection in 2013 and that no [49,959 La.App. 2 Cir. 19]
difference existed between the photographs and his personal
inspection of the items. Mrs. Gandhi corroborated these
conclusions upon her review of the photographs.
trial court afforded the defendants unlimited
cross-examination of the witnesses. Thus the defendants'
opportunity to reveal any inconsistencies in the
witnesses' testimony was protected. In these
circumstances, the independent recollections of the witnesses
at the time of the sale removed any arguable prejudice in
this disputed photographic evidence. Thus, when compared to
the full record, the photographs failed to have a significant
effect on the outcome of the case. Accordingly we find no
abuse of discretion in the trial court ruling.
appellants take issue with the judgment's failure to
require the Gandhis to return the furniture.
buyer who obtains rescission because of a redhibitory defect
is bound to return the thing to the seller, for which purpose
he must take care of the thing as a prudent administrator,
but is not bound to deliver it back until all his claims, or
judgments, arising from the defect are satisfied. La. C.C.
art. 2532. The Gandhis' counsel at oral argument before
the court conceded the applicability of Article 2532.
Accordingly, the judgment is amended to add this provision.
foregoing reasons, the judgment of the of the trial court
awarding damages, attorney fees and costs is affirmed. The
judgment is amended to provide that upon payment of sums due
under the original [49,959 La.App. 2 Cir. 20] judgment of the
trial court, the Gandhis are ordered to deliver the defective
items to the defendants. Costs of the this appeal are
assessed to appellants.
AMENDED AND, AS AMENDED, AFFIRMED.
According to Dr. Gandhi, it was Shyam
Garg's personal affirmations of these facts as well as
his promises to take care of the Gandhis which caused him to
believe in and rely upon Garg.
In his testimony, Garg identified the
invoice which was introduced into evidence by the Gandhis.
However, Garg also introduced into evidence that same invoice
containing handwritten notes. The trial court ultimately
ruled that the invoice with the handwritten notes was not
submitted to the Gandhis.
The court rejected the individual liability
Sonal's website indicated that Garg was
the president of the LLC.
Appellants have not alleged or proven that
Georgia law applies. We recognize that La. C.E. art. 202
requires the court to take judicial notice of the laws of
every state of the United States. However, courts have
continued to adhere to the judicial rule that when the
parties do not offer proof of the other state's law, the
court may presume that law is the same as Louisiana. See,
Verstichele v. Marriner, 04-354 (La.App.3d Cir.
9/29/04), 882 So.2d 1265; Edwards v. Dominick,
01-1245 (La.App. 5th Cir. 3/26/02), 815 So.2d 236. Like
Louisiana, Georgia's L.L.C. law allows piercing of the
corporate veil when a member perpetrates fraud. OCGA §
14-11-303; Bonner v. Brunson, 262 Ga.App. 521, 585
S.E.2d 917 (2003).
Damages for nonpecuniary loss may be
recovered when the contract, because of its nature, is
intended to gratify a nonpecuniary interest and, because of
the circumstances surrounding the formation or the
nonperformance of the contract, the obligor knew, or should
have known, that his failure to perform would cause that kind
of loss. Regardless of the nature of the contract, these
damages may be recovered also when the obligor intended,
through his failure, to aggrieve the feelings of the obligee.
La. C.C. art. 1998.
As we have found that Garg was liable under
La. C.C. art. 2315, his extreme and outrageous conduct, along
with his knowledge that severe emotional distress would
result from his abuse of religious belief, also allows for
recovery for intentional infliction of emotional distress.
White v. Monsanto Co., 585 So.2d 1205 (La.