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Ltd. v. Jackel International Ltd.

Court of Appeals of Louisiana, Second Circuit

April 10, 2019

LUV N' CARE, LTD. Plaintiff-Appellant

          Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 2010-1891 Honorable Daniel J. Ellender, Judge.

          NUBY LAW By: Robert M. Chiaviello, Jr. Joe D. Guerriero Counsel for Appellant

          LISKOW & 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

          Before WILLIAMS, MOORE, and STEPHENS, JJ.

          WILLIAMS, C.J.

         The 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 amended.


         This 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 compression valve.

         In 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.

         At the 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.

         At the 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.


         LNC 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.

         The 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. ...

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