LUV N' CARE, LTD. Plaintiff-Appellant
JACKEL INTERNATIONAL LIMITED Defendants-Appellees
Appealed from the Fourth Judicial District Court for the
Parish of Ouachita, Louisiana Trial Court No. 2010-1891
Honorable Daniel J. Ellender, Judge.
LAW By: Robert M. Chiaviello, Jr. Joe D. Guerriero Counsel
& LEWIS By: Shannon S. Holtzman Carol W. Reisman HAYES,
HARKEY, SMITH & CASIO, LLP By: Thomas M. Hayes, III FISH
& RICHARDSON P.C. By: John Goetz Counsel for Appellees
WILLIAMS, MOORE, and STEPHENS, JJ.
plaintiff, Luv N' Care, Ltd. ("LNC"), appeals a
judgment ordering LNC to pay an expert witness fee of $19,
433.24 and attorney fees of $172, 621.10 to the defendants,
Jackel International Limited, Product Marketing Mayborn,
Ltd., Mayborn Group Limited, Mayborn USA, Inc., Mayborn ANZ
Pty, Ltd., and Jackel China, Ltd. The trial court ordered the
payments after denying LNC's motion for contempt and LNC
has not appealed the court's denial of the motion. For
the following reasons, we amend the judgment and affirm as
matter arises from a distribution agreement between LNC,
which is a manufacturer of baby products, and the defendants
(collectively "Mayborn"). In 2010, LNC filed a
lawsuit alleging that Mayborn had breached the distribution
contract by copying LNC products. After a trial in 2013, the
jury found that Mayborn had breached its obligations under
the contract. The trial court rendered judgment awarding
damages to LNC for Mayborn's sale of seven particular
cups which used a silicone compression valve. The trial court
entered a permanent injunction prohibiting Mayborn from
selling those cups and other products that are copies or
"colorable imitations" of LNC's silicone
2016, LNC filed a motion for contempt alleging that Mayborn
had sold products in violation of the permanent injunction.
After Mayborn filed a number of exceptions, urging vagueness,
unauthorized use of summary proceedings and no cause of
action, LNC amended its motion for contempt to identify
Mayborn's "Tommee Tippee Sippee Trainer" with
spout as the product that violated the injunction. The trial
court sustained the exception of unauthorized use of summary
procedure, dismissed LNC's damage claims and denied
Mayborn's exception of no cause of action.
contempt hearing in October 2017, Mayborn presented the
testimony of Dr. Kimberley Cameron, who was accepted as an
expert in mechanical engineering. Dr. Cameron testified that
the LNC products subject to the injunction contain a
compression valve, which has a movable part that opens or
closes when compressive force is applied. She stated that
there is no similar compression valve in the Tommee Tippee
Sippee cup, which does not have a part that is moved by
compression. After the hearing, the trial court issued
written reasons for judgment finding that the Mayborn cup did
not contain or imitate LNC's compression valve and
denying the motion for contempt. The trial court assessed
costs against LNC, including reasonable expert witness fees.
Mayborn then filed a motion for attorney fees under La. R.S.
13:4611 and to set the amount of expert witness fees.
hearing on the fee motion, Dr. Cameron testified about the
work she had performed and identified the invoices of her
firm. Additionally, Mayborn introduced into evidence the
attorney affidavits as to the hourly rates charged and the
time expended in defending the contempt motion. In oral
reasons, the trial court found that the expert's fees
were fairly reasonable and assessed the amount of $19, 433.24
in expert witness fees. The trial court also found that LNC
was liable for Mayborn's attorney fees because the
statute provides that the court may award attorney fees to
the prevailing party in a contempt proceeding. After further
briefing, the trial court issued written reasons for judgment
on attorney fees, finding that the court was not constrained
by the rates charged by local attorneys in this type of
"specialized" case, which involved the issue of
whether Mayborn's product infringed on LNC's design.
The trial court rendered judgment denying LNC's motion
for contempt and ordering LNC to pay $19, 433.24 in expert
fees and $172, 621.10 in attorney fees. LNC appeals the
judgment. Mayborn answers the appeal seeking additional
attorney fees for work on appeal.
contends the trial court erred in awarding attorney fees to
Mayborn. LNC argues that the award of attorney fees should be
vacated because the statutory prerequisite for the imposition
of attorney fees is that a person be adjudged guilty of a
contempt of court.
wilful disobedience of any lawful judgment or order of the
court constitutes a constructive contempt of court. La.
C.C.P. art. 224. The punishment that a court may impose on a
person guilty of contempt is provided in R.S. ...