from the First Judicial District Court for the Parish of
Caddo, Louisiana Trial Court No. 593862 Honorable Craig
THOMAS, SOILEAU, JACKSON, BAKER & COLE, LLP By: Steven E.
Soileau Counsel for Appellant
SCHIMPF, HAINES, LANDRY, SHEMWELL & MOORE By: Robert H.
Shemwell, Jr. Counsel for Appellee
WILLIAMS, STONE, and STEPHENS, JJ.
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.
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[.]"
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.
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.
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.
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
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.
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 ...