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Fenner v. Schley

Court of Appeals of Louisiana, Second Circuit

March 14, 2018

GARY FENNER Plaintiff-Appellant
v.
KYNDAL KAY SCHLEY Defendant-Appellee

         Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 593862 Honorable Craig Marcotte, Judge

          THOMAS, SOILEAU, JACKSON, BAKER & COLE, LLP By: Steven E. Soileau Counsel for Appellant

          WEEMS, SCHIMPF, HAINES, LANDRY, SHEMWELL & MOORE By: Robert H. Shemwell, Jr. Counsel for Appellee

          Before WILLIAMS, STONE, and STEPHENS, JJ.

          WILLIAMS, J.

         The plaintiff, Gary Fenner, appeals a judgment that awarded him $3, 500 in damages and denied his claim for attorney fees and expert witness fees. For the following reasons, we affirm the trial court's determination that the defendant was liable to the plaintiff for conversion; we affirm the court's conclusion that the plaintiff is not entitled to attorney fees and expert witness fees; we vacate the trial court's award of damages; and we remand with instructions.

         FACTS

         On February 29, 2016, the plaintiff, Gary Fenner, and the defendant, Kyndal Schley, entered into a Real Estate Buy/Sell Agreement whereby the plaintiff agreed to sell the defendant a parcel of immovable property in Belcher, Louisiana. The agreement provided that the "[p]roperty being purchased includes all land, all buildings, component parts and permanently installed improvements thereon, including fencing, unless otherwise stated[.]" The buy/sell agreement also contained a provision for reasonable attorney fees and expert witness fees "[i]in the event of non-performance by either Party[.]"

         The property did not include a residence. However, it contained a barn and a shed which were included in the appraisal and purchase price of the property. Further, a custom-made 1, 000-gallon fuel tank had been placed on the property. The fuel tank was on "skidders" to allow it to be moved from one location to another, was secured by metal stakes that had been inserted into the ground, and it contained an electrical wire that was connected to an electrical junction box attached to a "chicken coop." The plaintiff had purchased the fuel tank in 2009 for $14, 486.53.

         On the day of the closing, the plaintiff informed the defendant that he had not removed all of his belongings from the property and that he would "need a few days" to retrieve them. The defendant agreed to allow the plaintiff time to remove his items. Two days later, the defendant went to the property and noticed that the shed, which was included in the purchase, had been removed. However, the fuel tank and multiple other items (including two dogs and "stuff" in the barn) remained on the property. After consulting with her realtor, the defendant demanded that the plaintiff either return the shed or pay her its replacement value. The plaintiff returned the shed and continued removing his belongings from the property. Subsequently, when the plaintiff went to the property to retrieve the fuel tank, a lock had been placed on the gate and he was unable to enter the property. Initially, the defendant testified that she believed the tank was included in the purchase of the property and that it belonged to her. She later stated that she decided to keep the fuel tank because the plaintiff "was dragging his feet on returning [the shed]." The plaintiff's attempts to regain possession of the fuel tank were unsuccessful.

         Thereafter, Josh Schley, the defendant's husband, listed the fuel tank for sale on Craigslist for $1, 000. Schley testified that he determined the value of the fuel tank by "research[ing] the value of similar products . . . on the Internet through Google and other search engines for similar products." He stated that he decided to lower the price and sold the tank to an acquaintance for $800.

         On July 5, 2016, the plaintiff filed a lawsuit for "Damages Based Upon Conversion." The plaintiff alleged that the fuel tank was not included in the real estate transaction and that the defendant had "converted, misappropriated, and refused to allow [him] to take possession of his property." Further, the plaintiff alleged that he was entitled to attorney fees in accordance with the buy/sell agreement.

         At trial, several witnesses testified. However, only the fuel tank's manufacturer, Kenneth Hudson, of Kenny Hudson Construction, LLC, testified with regard to its value. Hudson, who was accepted by the trial court as an expert in construction, testified as follows: he owns and operates a construction company; he manufactured, constructed and delivered the fuel tank to the plaintiff in 2009; manufacturing fuel tanks is not a task he performs in his normal course of business; the fuel tank was a "custom" tank that he constructed from steel at the plaintiff's request; the tank was "an oilfield service tank" and was "built with a lot heavier material" than regular tanks; the tank was placed on two I-beam skids to allow it to be moved with a truck or tractor; the tank was not meant to be mounted to the ground; the total invoice price of the tank was $14, 486.53; the cost of the materials used to manufacture the tank was $7, 286.53, the cost of labor was $6, 800, and the delivery charge was $400; due to rising costs in the industry, it would cost more than $14, 000 to manufacture a similar tank in today's market; and $10, 000 would be a reasonable price to pay for a used eight-year-old custom-made fuel tank.

         On cross-examination, Hudson testified that it took approximately two months to construct the fuel tank. When he delivered the tank, he gave the plaintiff an invoice, and the plaintiff paid him with a check. During Hudson's direct testimony, the plaintiff had introduced an invoice from Kenny Hudson Construction, LLC, which indicated that the fuel tank had been purchased for $14, 486.53. Thereafter, counsel for the defendant asked Hudson how he could have given the invoice to the plaintiff in 2009, when Kenny Hudson Construction, LLC, was not organized as a business entity until 2012. Hudson explained that he had been operating the construction company and performing jobs long before he formally received a tax identification number and filed the documents to form the limited liability company. He admitted that he was operating the company and issuing invoices in the name of "Kenny Hudson Construction, LLC" before he filed for limited liability status with the State of Texas. Hudson also testified ...


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