|! This is а case where a consumer wishing to purchase a vehicle and a business that sells vehicles negotiated a sales agreement that was dependant upon the business obtaining financing for the consumer in order to perfect the sale. As part of the purported sale, the business took the consumer’s vehicle as a trade-in.
The business was unable to obtain financing according to the agreed upon terms. However, the business was able to obtain financing for the consumer at a higher interest rate with a longer life of the loan. The business did this in order to keep thе monthly payments close to the original agreed upon financing terms. The consumer refused to enter into second financing agreement and requested that she return the vehicle to the business and the business return her vehicle to her. The business refused and sent a letter to the consumer threatening to report the business’ vehicle in the consumer’s possession as stolen if the consumer did not agree to enter into a sale.
The business reported the vehicle as stolen, as it had threatened. Law enforcement seized the vehicle at the consumer’s workplacе in front of the consumer’s coworkers and clients. After the business obtained possession of the vehicle, it refused to return the consumer’s vehicle to her.
Thereafter, the consumer filed suit against the business alleging, inter alia, that the business had engaged in unfair trade practices under La.R.S. 51:1401, et seq. and that the business committed conversion of her vehicle. The consumer filed suit and also filed a complaint with the Louisiana Attorney General’s office against the business for unfair trade practices under La.R.S. 51:1401, et seq. After a trial, the trial court awarded the consumer damages for conversion, loss of use of the vehicle, insurance payments made on the vehicle, humiliation and embarrassment, and ^attorney’s fees under La.R.S. 51:1409(A).
Both parties appealed. We affirm, as amended, and award the consumer attorney’s fees for work done on appeal.
FACTS AND PROCEDURAL HISTORY:
In January 2008, Millie S. McFadden (McFadden) went to the Lafayette, Louisiana location of Import One, Inc. (Import One) to purchase a vehicle. She selected a 2005 Infiniti G35 and signed a sales agreement that reflected a purchase price of $27,462.86 with a condition that Import One would obtаin the financing for McFadden at an interest rate of 7.82% from Capital One Bank. Also part of the sales agreement was that McFadden agreed to trade in her 2002 Saturn L300. Although the sales agreement was not contemporaneously signed by Import One, it allowed McFadden to leave with the Infiniti while it retained possession of the Saturn.
Later, Import One learned that Capital One refused to finance McFadden’s loan. At that point, Kim Guidry, Import One’s general manager, obtained financing for McFadden from Trustmark National Bank at a rate of 9.69%. Import One informed McFadden of this chаnge and attempted to
McFadden, on multiple occasions, attempted to return the Infiniti to Import One in exchange for her Saturn. Import One refused, instead attempting to force McFadden to agree to purchase the Infini-ti. Import One then sent a letter to McFadden wherein it stated that it would report the Infiniti as stolen if McFadden did not return the vehicle. In response, McFadden agаin attempted to arrange that she lsreturn the Infiniti in exchange for the Saturn. Rather than make this exchange, Import One reported the Infiniti as stolen.
In early March 2008, the Crowley Police went to McFadden’s workplace due to the report filed by Import One and took possession of the Infiniti. Thereafter, the police returned the Infiniti to Import One. After Import One gained possession of the Infiniti, it still refused to return McFadden’s Saturn.
On March 25, 2008, McFadden filed suit against Import One seeking return of her vehicle and damages for, inter alia, conversion, insurance payments, car payments, loss оf use, humiliation and embarrassment, and attorney’s fees. On June 19, 2008, the Louisiana Attorney General’s office sent a letter to Import One notifying it that McFadden sought the return of her vehicle and that McFadden alleged that Import One had engaged in unfair trade practices under La.R.S. 51:1401, et seq. Still, Import One did not return McFadden’s Saturn until September 2008.
After a trial on the merits, the trial court awarded McFadden damages for conversion, embarrassment and humiliation, loss of use of her vehicle, insurance and car payments made on her vehicle, and attorney’s fees. The trial court denied McFadden’s claim to entitlement of treble damages under La.R.S. 51:1401, et seq. Both parties appealed the judgment of the trial court, alleging the following assignments of error:
IMPORT ONE’S ASSIGNMENTS OF ERROR:
1. The trial court erred in ruling that Import One committed the act of conversion.
2. The trial court erred in awarding McFadden damages for insurance payments, car payments, and conversion since it awarded specific damages for loss of use and embarrassment and humiliation.
3. The trial court erred in awarding McFadden attorney’s fees.
LMcFADDEN’S ASSIGNMENT OF ERROR:
1. The trial court erred in failing to award treble damages undеr La.R.S. 51:1409(A) which allows treble the actual damages as well as reasonable attorney’s fees.
IMPORT ONE’S ASSIGNMENT OF ERROR NUMBER ONE:
Import One alleges in its first assignment of error that the trial court erred in ruling that Import One committed the act of conversion.
The facts at issue on this particular assignment are not in dispute. We must determine, given the undisputed facts, whether the trial court was legally correct in finding that Import One committed conversion on McFadden’s Saturn. When conducting a review of such questions of law, appellate courts merely determine whether the lower court was legally correсt. Sanchez v. La. Nursery,
A conversion is committed when any of the following occurs: 1) possession is acquired in an unauthorized manner; 2) the chattel is removed from one place to another with the intent to exercise control over it; 3) possession of the chattel is transferred without authority; 4) possession is withheld from the owner or possessor; 5) the chattel is altered or destroyed; 6) the chattel is used improperly; or 7) ownership is asserted over the chattel. FraNK L. Maraist & Thomas C. Galligan, Louisiana Tort Law § 1-2, at 3 (1996 & Supp.1998); Import-sales, Inc. v. Lindeman,231 La. 663 ,92 So.2d 574 (La.1957); see also Louisiana State Bar Assoc. v. Hinrichs,486 So.2d 116 (La.1986).
Import One argues that no conversion took place because McFadden offered the Saturn аs trade-in for the Infiniti, and, at that time, she voluntarily executed documents to complete her intended purchase of the Infiniti. It contends that Import One was justified in the subsequent withholding of McFadden’s Saturn because the | .^parties were involved in a bona fide dispute as to whether McFadden had purchased the Infiniti, and Import One “continued to operate under the good faith belief that a sale had taken place and that it had the rightful ownership to McFadden’s Saturn.”
First, this court has stated, in a case that is cited in Import One’s brief, that “good faith on the part of the defendant is not a defense to the tort of conversion.” Ducote v. City of Alexandria, 95-1269, p. 5 (La.App. 3 Cir. 7/17/96),
Second, this argument raised by Import One is disingenuous. On one hand, Import One argues that it was justified in keeping the Saturn because of a bona fide dispute whether there was a sale based on a good faith belief that it owned the Saturn. On the other hand, Import One argues that it was also justified in reporting to law enforcement that the Infiniti was stolen by McFadden and have it seized from her at her workplace because Import One always owned the Infiniti.
We take issue with this argument because Import Onе had the Infiniti seized months prior to returning the Saturn to McFadden. Thus, its “good faith belief that it owned the Saturn” is counterintui-tive. In order to genuinely make this argument, Import One must have believed that it owned both cars at the same time. Import One is a sophisticated entity that engages in the sale of vehicles as a business. Surely, such a belief could not have been held in good faith.
Focusing on the case before us, the trial court based its judgment that Import One committed conversion on a finding that no sale had taken place between Import One and McFadden. Thus, the trial court found that MсFadden was the owner of the Saturn throughout the dispute. Import One did not assign as error, nor did it argue that the trial court erred in finding that no sale had taken place between the parties. | ^Further, Import One admittedly withheld possession of the Saturn from McFadden even after McFadden tried to return the Infiniti in order to retrieve her Saturn, and even after law enforcement seized the Infiniti and returned it to Import One at Import One’s behest. Given these facts, it is abundantly clear that Import One committed conversion of McFadden’s Saturn, as McFadden’s possession of the Saturn was withheld from her. Accordingly, we find that the trial court did not
In its second assignment of error, Import One argues that the trial court erred in awarding McFadden damages for insurance payments, car payments, and conversion since it awarded specific damages for loss of use and embarrassment and humiliation. Import One’s contention in this assignment is two-fold: that the trial court improperly awarded duplicitous damages; and that the trial court awarded excessive damages.
The standard of review applicablе to these two contentions is different. Damages for conversion are awarded under La.Civ.Code art. 2315(A).
Import One first contends that the trial court erred in awarding duplicate 17damages. We agree.
Import One fails to specifically address which items it deems duplicitous. However, our review of the record indicates that the award for loss of use of the Saturn and for reimbursement of car payments McFadden made on the Saturn are close enough in kind to support a finding by this court that the trial court erred in awarding both to McFadden.
Had the Saturn properly been returned to McFadden, she would still have had to make the payments on the vehicle per her previous financing arrangements, yet she would not have made paymеnts for a rental vehicle. Alternatively, McFadden would have had to make payments on the Infiniti or for a rental vehicle. Thus, she would have been making payments on whichever vehicle she was using while she was using it. The award by the trial court absolves McFadden from making any type of payments on any vehicle, while still having use of at least one vehicle, either the Infiniti or the rental. This position makes McFadden more than whole, and, therefore, is an error of law.
Accordingly, we amend the judgment awarded to McFadden by removing the award of $2,446.60 for reimbursement of car paymеnts, as it is duplicitous. We find no other error by the trial court in awarding duplicate damages to McFadden.
Next, we must address the propriety of the amounts of damages awarded for each item properly given to McFadden. Whether the lower court, in properly choosing to award damages, does so excessively is merely a quantum assessment that is reviewed on appeal by the much discretion standard. Reck v. Stevens,
As before, Import One fails to address which award it asserts was abusively high. Thus, we will look to the record and analyze each item.
An award of $1,000.00 for the embarrassment and humiliation for having a vehicle taken by police as it was maliciously reported as stolen by Import One, to this court, is certainly not abusively high. In fact, the opposite may be true, given that these events transpired in view of McFadden’s coworkers and clients. However, McFadden has not raised as error that this award was abusively low. Accordingly, we uphold the amount awarded by the trial court.
Finally, the trial court awarded McFadden $11,475.00 in attorney’s fees. The evidence in the record is such that McFadden’s attorney worked fifty-one hours on the case. This calculates to a $225.00 per hour rate. A review of work performed at the trial level suggests that this hourly rate and the number of hours that McFadden’s counsel claimed to have worked on the case are both reasonable and, thus, not abusively high.
In summation, we find that the trial court erred in awarding duplicate damages to McFadden for the loss of use of her Saturn and for reimbursement of the payments |3made on loan for her Saturn. We amend the judgment to remove the award of reimbursеment to McFadden for car payments she made on the Saturn while it was in the possession of Import One. We find no other duplicate damages. Further, we find that none of the remaining awards given by the trial court were abusively high.
IMPORT ONE’S ASSIGNMENT OF ERROR NUMBER THREE:
In its final assignment of error, Import One asserts that the trial court erred in awarding McFadden attorney’s fees. We do not agree.
By law, it is necessary that an award of attorney’s fees is authorized by statute or contract. State, Dept. of Transp. and Dev. v. Wagner, 10-50 (La.5/28/10),
Any person who suffers any ascertainable loss of money or mоvable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act, or practice declared unlawful by [La.JR.S. 51:1405 may bring an action individually but not in a representative capacity to recover actual damages.... In the event that damages are awarded under this Section, the court shall award to the person bringing such action reasonable attorney fees and costs.
The language of La.R.S. 51:1409(A) is clear. If an entity utilizes unfair trade practices and a consumer is awarded damages based on the consumer’s loss of property or money as a result of those practices, then it is mandatory that the trial court award attorney’s fees to the consumer.
Thus, the first step in our review is limited to whether the trial court’s finding that Import One employed unfair trade practices is correct. “The determination of what constitutes an unfair trade practice is fact-sensitive and, as such, can only be decided on a case-by-case basis.” Doland v. ACM Gaming Co., 05-427, p. 8
I m“[C]onduct that violates the Unfair Trade Practices Act must involve fraud, misreprеsentation, deception, or unethical conduct.” Glod v. Baker, 04-1483, p. II (La.App. 3 Cir. 3/23/05),899 So.2d 642 , 649[, unit denied, 05-1574 (La.1/13/06),920 So.2d 238 ] “A trade practice is considered unfair when it offends established public policy and when it is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.” Laurents v. La. Mobile Homes, Inc., 96-976, p. 10 (La.App. 3 Cir. 2/5/97),689 So.2d 536 , 542 (citing Thomas v. Busby, 95-1147 (La.App. 3 Cir. 3/6/96,670 So.2d 603 ), unit granted and judgment vacated, 96 — [ ]891 (La.5/17/96),673 So.2d 601 , aff'd on remand,95-1147 (La.App. 3 Cir. 11/13/96) ,682 So.2d 1025 , unit denied, 96-2990 (La.2/21/97),688 So.2d 517 ).
Brown v. Romero, 05-1016, pp. 6-7 (La. App. 3 Cir. 2/1/06),
Given that the seminal determination of whether an entity is in violation of La.R.S. 51:1405 is fact based, the standard of review applicable to the first step in reviewing this assignment is manifest error. Rosell v. ESCO,
In the case before us, both Import One and McFadden argue extensively regarding whether it was proper for the trial court to find that Import One wrongfully seized the Infiniti from McFaddеn. The trial court did state that it found Import One wrongfully seized the Infiniti from McFadden while orally giving reasons for its eventual ruling. However, the final judgment rendered by the trial court made no mention of damages awarded to McFadden due to wrongful seizure, and the final judgment was for Import One committing conversion on McFadden’s Saturn. This court, in LaRocca v. Bailey, 01-618, p. 12 (La.App. 3 Cir. 11/7/01),
“When the oral reasons or minute entry conflicts with the written judgment, the latter governs. The trial judge may, within his authority, render judgment which differs substantially from his prior oral statements. Such oral reasoning forms no part of the judgment. It is the formal, signed judgment which governs the controversy.” Marino v. Marino,576 So.2d 1196 , 1198 (La.Aрp. 5 Cir.1991)[ ] ([c]itation omitted). Even written reasons for judgment contained in the record are unappealable until qualified within the context of a written, final, and appealable judgment. City of Kaplan v. Mayard,616 So.2d 826 (La.App. 3 Cir.1993).
Therefore, we will not address the issue of wrongful seizure of the Infiniti, as that issue is not properly before this court. Rather, we will address whether Import One’s actions in committing conversion on McFadden’s Saturn throughout the dispute can reasonably be characterized as a violation of La.R.S. 51:1404.
After a thorough review of the record, we find that a reasonable basis exists in the record for the triаl court to find that Import One violated La.R.S. 51:1404. Neither party argues that the trial court was incorrect in finding that there was never a sale due to Import One’s inability to gain financing for McFadden under the agreed upon terms of the sales agreement. It is from this point that Import One’s actions can reasonably deemed in violation of La. R.S. 51:1404. After failing to secure financing for McFadden at the agreed upon terms, Import One tried to coerce McFadden into a sale with different financing terms. Once McFadden refused to enter into the second sale offered by Import
Import One, through its general manager, Kim Guidry, sent McFadden a letter on February 29, 2008, that contained the following language (emphasis added):
This is to notify you that you are in possession of an Infiniti G35 |12VIN# [ ] that is the property of Import One, Inc. We have mаde numerous requests to you individually and through your counsel for payment of this vehicle. As of today[,] February 29, 2008[,] you have failed to satisfy your required participation according to the bill of sale contracted between Import One[] Inc. and you dated January 26, 2008.
This is the last request that will be sent to you. If you fail to consummate your responsibilities in accordance with this bill of sale by Monday[,] March 3, 2008[,] at 10:00 a.m., this vehicle will be reported to the Acadia Parish Sheriffs Department as a stolen vehicle[,][a]nd Import One will assist in every way with the prosecution of this crime.
We find the contents of this letter shocking. Import One, a sophisticated entity in the business of selling vehicles, clearly had knowledge that no sale had taken place on January 26, 2008. Yet, it chose to memorialize via writing a threat to a consumer, i.e. McFadden, that if she would not “satisfy” her “required participation” in a sale that was not legally binding, it would falsely accuse her of a crime. Clearly this conduct alone is “immoral, unethical, oppressive, unscrupulous, or substantially injurious.” See Brown,
However, Import One did not stop there. McFadden’s attorney then sent a letter to Import One on March 2, 2008, again offering to exchange the vehicles. Import One did not accept that offer. Instead, it actually reported the Infiniti as stolen. From that false report, the Crowley Police went to McFadden’s work environment and questioned her regarding the reported theft in front of coworkers and clients. Thankfully, the Crowley Police exercised exorbitantly better judgment than Import One, as once they were made aware of the circumstances, they simply repossessed the vehicle rather than arrest McFadden.
This conduct alone clearly validates the trial court’s finding that Import One violated La.R.S. 51:1404 as reasonable, but Imрort One was not finished. Once Import One had the Infiniti in its possession, it continued to violate La.R.S. 51:1404 |isby refusing to return McFadden’s Saturn to her. It was not until September 2008, when Import One relinquished the Saturn to McFadden, that its conduct could no longer reasonably be considered in violation of La.R.S. 51:1404.
We note that not all actions for conversion will amount to unfair trade practices under La.R.S. 51:1401, et. seq. However, as cited above in Doland v. ACM Gaming Co.,
Import One attempts to minimize its actions to get McFadden to agree to the altered terms in the second sale by stating
Having concluded that Import One unequivocally violated La.R.S. 51:1404, we must now determine whether the trial court awarded any damages to McFadden based on her loss of property or money as a result of those practices. We find that it did.
114The trial court awarded McFadden $5,000.00 for conversion of the Saturn as a result Import One’s improper conduct and $1,250.00 as compensation for McFadden’s loss of use of the Saturn. The Saturn was the property of McFadden. Thus, the attorney’s fees awarded to McFadden were proper by the trial court as La.R.S. 51:1409(A) mandates an award of attornеy’s fees to McFadden. Accordingly, we find that this assignment of error raised by Import One is without merit.
McFADDEN’S ASSIGNMENT OF ERROR:
McFadden argues that the trial court erred in failing to award treble damages under La.R.S. 51:1409(A). We find that this assignment has merit.
McFadden’s assignment posits a question of law. As such, we will conduct a de novo review of the record to determine whether the trial court was legally correct in failing to award McFadden treble damages under La.R.S. 51:1409. Sanchez,
Louisiana Revised Statutes 51:1409(A) states, in pertinent part:
Any person who suffers any ascertainable loss of money or movable property, corporeаl or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act, or practice declared unlawful by [La.]R.S. 51:1405 may bring an action individually but not in a representative capacity to recover actual damages. If the court finds the unfair or deceptive method, act, or practice was knowingly used, after being put on notice by the attorney general, the court shall award three times the actual damages sustained.
A letter was sent by the Louisiana Attorney General to Import One and “Kim A. Lаndry” with a notice date of June 19, 2008. That letter states (emphasis in original),
[t]he purpose of this notice is to place Import One, Inc. and Kim A. 11sLandry on notice of [McFadden’s] claim, and provide the defendant the opportunity to evaluate its position and[,] if necessaryf,] to cease such activity. Having received this notice, should the same be found, by a court of competent jurisdiction, to constitute a violation of Louisiana Revised Statute 51:1401, et seq., the Unfair Trade Practices Act and Consumer Protection Law, the petitioner in said suit will have fulfilled the notice requirement under La.R.S. 51:1409, and may be entitled to treble damages under the statutes.
The language of La.R.S. 51:1409(A) is clear. If the conduct in violation of La. R.S. 51:1409(A) continued after the attorney general’s notice, treble damages shall be awarded. The award of treble damages
The trial court awarded $5,000.00 to McFadden for Import One’s conversion as well as $1,250.00 for the loss of use of her Saturn, yet did not award McFadden treble damages. The conduct that gave rise to these damages continued after Import One was placed on notice of exposure to treble damages.
Import One first argues against the award of treble damages by contending that any conduct in violation of La.R.S. 51:1405 that it had was prior to that date. This contention lacks merit. Import One continued its conversion of McFadden’s Saturn causing McFadden damages for the loss of use of her Saturn in an attempt to coerce McFadden into a sale until September 2008. Thus, the conduct continued after June 19, 2008, the date notice was received by Import One.
Next, Import One argues that it did not receive proper notice as person referenced in the letter was Kim A. Landry rather than Kim Guidry, Import One’s general manager. This argument is without merit in two regards. First, the trial court’s judgment was against Import One, not Kim Guidry who was dismissed by the judgment. Thus, the argument on Gui-dry’s behalf is moot, as the notice for potential | ^exposure of treble damages needs to be properly given to Import One, not Guidry. Second, the letter was sent to the proper address of Import One, and the letter clearly references the pending case at the trial court level and the name of the individual filing the complaint. To claim that Import One had no notice of the potential for treble damages is unreasonable considering the lеtter specifically states that McFadden “will have fulfilled the notice requirement under La.R.S. 51:1409, and may be entitled to treble damages under the statutes.”
Accordingly, we find that the trial court committed legal error by not awarding McFadden treble damages. Accordingly, we amend the judgment to reflect that McFadden is awarded $15,000.00 for conversion and $3,750.00 for loss of use of her Saturn in accordance with the treble damages provision in La.R.S. 51:1409(A).
ANCILLARY MATTER:
In brief, McFadden requests additional attorney’s fees for work done on appeal. We grant this request.
When an award for attorney’s fees is grantеd at a lower court level, the recipient of those fees is entitled to additional fees for work done on appeal. This keeps the appellate judgment consistent with the underlying judgment. Wilczewski v. Brookshire Grocery Store, 08-718, p. 18 (La.App. 3 Cir. 1/28/09),
A review of work performed on appeal suggests that $5,000.00 in attorney’s fees is reasonable. Accordingly, we grant this request and award McFadden $5,000.00 in additional attorney’s fees for work done on this appeal.
CONCLUSION:
| |7Import One raises three assignments of error. We find that the trial court improperly awarded McFadden for the loss of use of the Saturn and for reimbursement for car payments she made on the Saturn, as they are duplicitous. Thus, we amend the judgment to remove the award to McFadden for reimbursement of the car payments she made on the Saturn. The remaining assignments of error raised by Import One are without merit.
McFadden raised one assignment of error, that the trial court was in legal error in failing to award her treble damages under La.R.S. 51:1409(A). We found that the trial court failed to award McFadden
Finally, McFadden requested and was awarded attorney’s fees for work done on this appeal in the amount of $5,000.00. All costs of this appeal are taxed to Import One.
AFFIRMED, AS AMENDED.
Notes
. Louisiana Civil Code Article 2315(A) states, "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it."