197 So. 3d 797
La. Ct. App.2016Background
- Bayou Fleet owned a large crane boom stored at a New Orleans shipyard for many years; Bollinger later leased and operated the shipyard.
- Bollinger contracted Tri-Native and Franklin Services in Oct. 2007 to clear and demolish the yard; contractors cut up and sold scrap metal, including the boom per their testimony and scrap tickets.
- Bayou Fleet sued Bollinger for conversion on March 16, 2009, alleging Bollinger destroyed the boom in November 2007 but did not learn of it until July 2008.
- Bollinger asserted prescription as an affirmative defense and sought storage fees in reconventional demand; the trial court found Bayou Fleet’s conversion claim prescribed and dismissed both claims.
- Trial court taxed costs to Bayou Fleet ($19,794.50); appellate court reduced costs by $511.53 (travel for deposition), vacated $11,754.41 in expert fees for lack of supporting invoices, and remanded for an evidentiary hearing on expert fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conversion claim prescribed under one-year delictual prescription | Bayou Fleet: destruction occurred no later than July 2008; suit timely | Bollinger: boom destroyed by Nov. 16, 2007; suit filed after one-year period | Court: found credible evidence (contractor testimony, scrap tickets, photos) that boom destroyed by Nov. 16, 2007; claim prescribed |
| Burden of proof on prescription | Bayou Fleet: trial court previously denied exception, plaintiff shouldn't bear burden | Bollinger: petition alleges Nov. 2007 destruction; prescription evident on face; burden shifts to plaintiff | Held: where petition shows prescription on its face, burden shifts to plaintiff; Bayou Fleet failed to show otherwise |
| Applicability of contra non valentem (discovery rule) | Bayou Fleet: did not discover destruction until July 2008; discovery rule delays prescription | Bollinger: Bayou Fleet should have known with reasonable diligence given public notice and industry knowledge | Held: discovery rule not met—DuRants were experienced, inspections infrequent, public notice existed; ignorance due to plaintiff's lack of diligence |
| Admissibility and weight of scrap tickets and missing contract exhibit | Bayou Fleet: tickets inadmissible; missing “Exhibit 1” should trigger adverse inference | Bollinger: tickets are business records tied to demolition; no evidence of intentional spoliation of exhibit | Held: tickets admissible (witness identified them); no adverse inference—no proof of intentional withholding; trial court discretion upheld |
| Taxable costs and expert fees | Bayou Fleet: many costs improper; travel expenses and improper expert fee award | Bollinger: seeks full taxation and upward modification | Held: reduced costs by $511.53 (travel not taxable); denied additional costs; vacated expert-fee award and remanded for hearing due to inadequate invoice/support |
Key Cases Cited
- London Towne Condo. Home-owner’s Ass’n v. London Towne Co., 939 So.2d 1227 (La. 2006) (standard of review for factual findings on prescription)
- Daniels v. Burridge, 785 So.2d 906 (La. App. 4th Cir. 2001) (deference to fact-finder on witness credibility)
- Dual Drilling Co. v. Mills Equip. Inv., Inc., 721 So.2d 853 (La. 1998) (conversion occurs when a movable is destroyed)
- Spott v. Otis Elevator Co., 601 So.2d 1355 (La. 1992) (burden on exception of prescription generally lies with pleader, but shifts when prescription is clear on the face)
- Wells v. Zadeck, 89 So.3d 1145 (La. 2012) (elements and application of contra non valentem discovery rule)
- Marin v. Exxon Mobil Corp., 48 So.3d 234 (La. 2010) (constructive knowledge and reasonableness standard for discovery rule)
- Stobart v. State Through Dep’t of Transp. & Dev., 617 So.2d 880 (La. 1993) (appellate court may not substitute its credibility determinations for the trier of fact)