author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    Bruce L. FEINGERTS v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION
    NO. 2018-CA-0381
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 13, 2019
    MICHAEL C. DARNELL, EDWIN R. MURRAY, MURRAY, DARNELL & ASSOCIATES, 1540 North Broad Street, New Orleans, Louisiana 70119, COUNSEL FOR PLAINTIFF/APPELLANT
    DAVID E. WALLE, BIENVENU, FOSTER, RYAN & O'BANNON, L.L.C., 1010 Common Street, Suite 2200, New Orleans, Louisiana 70112-2401, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods )
   JAMES F. MCKAY III, CHIEF JUDGE

This suit was brought by the plaintiff, Bruce L. Feingerts ("Feingerts"), against the defendant insurer, Louisiana Citizens Property Insurance Company ("Citizens"), for Hurricane Katrina-related property damages. Feingerts appeals the trial court's December 16, 2016 judgment, which awarded him $ 45,000.00 in property damages, but failed to find that Citizens acted arbitrarily and capriciously in handling his claim. For the reasons set forth below, we amend to increase the property damage award to $ 100,000.00, and find that the trial court erred in failing to find Citizens arbitrary and capricious. Accordingly, we affirm in part as amended, reverse in part, and remand for further proceedings.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

In 2003, Feingerts' home was damaged during a windstorm. The contents of the home suffered significant mold damage and was transferred to two facilities, Environmental Remediation Services ("ERS") and CRDN/Young's Dry Cleaning ("CRDN"), for cleaning/repair and storage. Travelers Insurance Company, Feingerts' homeowner's insurer, paid for the mold remediation of the home along with the cleaning, repair/replacement and storage of the contents.

After the 2003 storm, Feingerts temporarily leased an apartment in the American Can Company while his home underwent extensive mold remediation and renovation. While living at the American Can Company, Feingerts purchased a renter's policy with Citizens providing coverage for property damage caused by wind and hail, including wind-driven rain. The policy did not cover property damages caused by flood. Specifically, the policy provided $ 100,000.00 in coverage for personal property damage and $ 20,000.00 in coverage for loss of use/additional living expenses ("ALE"). It is undisputed that the policy included coverage for Feingerts' personal property stored offsite, i.e. , the property located at the ERS and CRDN storage facilities.

When Hurricane Katrina made landfall on August 29, 2005, the contents of Feingerts' home were still being stored at ERS and CRDN. The items that were cleaned/repaired were ready to be returned to his home. Both storage facilities flooded during the hurricane. The American Can Company, where Feingerts was still residing, sustained flood and wind-driven rain damage. As a result, Feingerts relocated to a hotel in Baton Rouge.

On August 31, 2005, Feingerts, through his insurance agent, notified Citizens regarding the damage to his personal property located in the storage facilities, and the need for ALE. Feingerts asserted that ERS and CRDN suffered roof damage in the hurricane and that his stored property was damaged by wind-driven rain prior to the flooding. Citizens proceeded to investigate the claim, utilizing a number of different adjusters over the course of several years.

Feingerts began receiving ALE payments, but received nothing on the property damage claim for the items stored at ERS and CRDN. As a result, Feingerts filed a petition for damages against Citizens on August 28, 2007, asserting that his personal property sustained damage from hurricane related wind, which is a peril covered under the renters' policy. Feingerts also asserted that Citizens did not fully compensate him for the ALE provided by the policy. Finally, the petition sought damages, penalties and attorney's fees against Citizens for its arbitrary and capricious handling of the claims.

The matter proceeded to a bench trial on August 24-26, August 31, and September 2, 2015. Judgment was rendered on December 16, 2016, awarding Feingerts $ 45,000.00 on his property damage claim. Sanctions were not assessed against Citizens on the arbitrary and capricious claim. The motion for new trial filed by Feingerts was denied on April 18, 2017.

In this appeal, Feingerts asserts that the trial court erred in: (1) failing to award sanctions against Citizens for failure to timely pay the ALE claim; (2) failing to find that Citizens waived its flood exclusion coverage defense; (3) failing to award sanctions against Citizens for failure to timely pay the property damage claim; (4) giving Citizens a full credit or offset for Feingerts' settlement with the excess insurer at the CRDN facility; and (5) awarding only $ 45,000.00 for property damage.

LAW AND ANALYSIS

Assignments of Error No. 1 and No. 3: Denial of Feingerts' arbitrary and capricious claim asserted against Citizens for its failure to timely pay the ALE and property damage claims.

Because assignments of error No. 1 and No. 3 relate to Feingerts' arbitrary and capricious claims, we will address them together.

The petition for damages alleges that Citizens acted arbitrarily and capriciously pursuant to La. R.S. 22:658 and La. R.S. 22:1220 in handling Feingerts' claims for ALE and property damage. Although the record reflects that the arbitrary and capricious claims were fully litigated, the trial court's judgment is silent on this issue. It is well established that when a judgment is silent as to a litigated claim, it is presumed that the claim is denied. Mason v. Bankers Ins. Group , 2013-0704, p. 12 (La. App. 5 Cir. 1/31/14), 134 So.3d 29, 36 (citing Cambre v. St. John the Baptist Parish , 2012-0590 (La. App. 5 Cir. 5/16/13), 119 So.3d 73, 81 ).

Both La. R.S. 22:1892 (formerly La. R.S. 22:658 ) and La. R.S. 22:1973 (formerly La. R.S. 22:1220 ) set forth affirmative duties for insurers and prescribe penalties for their breach. La. R.S. 22:1892 requires insurers to pay "the amount of any claim due any insured" and imposes penalties if the insurer arbitrarily, capriciously, or without probable cause fails to make such payment "within thirty days ... after receipt of satisfactory proofs of loss of that claim." See La. R.S. 22:1892(A)(1) and (B)(1). Similarly, La. R.S. 22:1973 imposes an obligation of good faith and fair dealing on an insurer, including the affirmative duty to "adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both." See La. R.S. 22:1973(A). Penalties may be imposed if an insurer arbitrarily, capriciously, or without probable cause fails to pay "the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss." See La. R.S. 22:1973(B)(5) and (C).

Regarding our standard of review on this issue, "[a]ppellate courts review the imposition of sanctions using the manifest error/clearly wrong standard." In ReSuccession of Horrell , 2007-1533, p. 11 (La. App. 4 Cir. 10/1/08), 993 So.2d 354, 364 (citing Mathis v. Mathis , 2006-1589, p. 3 (La. App. 4 Cir. 7/25/07), 964 So.2d 426, 428 ). "The bad faith statutes are penal in nature and should be strictly construed." Jones v. Gov.'t Employees Insurance Co. , 2006-1168, p. 7 (La. App. 4 Cir. 6/14/17), 220 So.3d 915, 922-21 (citing Guillory v. Lee, 2009-0075, p. 37 (La. 6/26/09), 16 So.3d 1104, 1130 ). "In order to recover these penalties, a claimant must show: (1) the insurer received satisfactory proof of loss; (2) the insurer failed to pay the claim within the applicable statutory period; and (3) the insurer's failure to pay was arbitrary, capricious or without probable cause." Citadel Broadcasting Corp. v. Axis U.S. Ins. Co. , 2014-0326, pp. 6-7 (La. App. 4 Cir. 2/11/15), 162 So.3d 470, 476 (citing Louisiana Bag Co., Inc. v. Audubon Indem. Co. , 2008-0453, pp. 11-12 (La. 12/2/08), 999 So.2d 1104, 1112-13 ).

As this Court further explained:

Satisfactory proof of loss, as required for an insured to obtain penalties from an insurer, is that which is sufficient to fully apprise the insurer of the claim and the extent of the damage. Yount v. Lafayette Ins. Co. , 08-0380, p. 17 (La. App. 4 Cir. 1/28/09), 4 So.3d 162, 172 (citing Talton v. USAA Cas. Ins. Co. , 06-1513, p. 15 (La. App. 4 Cir. 3/19/08), 981 So.2d 696, 707 ). The insurer becomes subject to penalties when the failure to pay within the thirty day time frame is found to be arbitrary, capricious or without probable cause. La. R.S. 22:1892(B)(1) ; see also Aghighi v. Louisiana Citizens Prop. Ins. Corp. , 2012-1096, p. 4 (La. App. 4 Cir. 6/19/13), 119 So.3d 930, 933. "Arbitrary, capricious, or without probable cause, as used in statutes allowing for penalties and attorney fees when an insurer fails to timely pay a claim is synonymous with vexatious, and a vexatious refusal to pay means unjustified, without reasonable or probable cause or excuse." Sher v. Lafayette Ins. Co. , 07-2441, p. 27 (La. 4/8/08), 988 So.2d 186, 206 quoting Reed v. State Farm Ins. Co., 03-0107, p. 13 (La. 10/21/03), 857 So.2d 1012, 1020-21. Louisiana law requires insurers who dispute the extent of the loss to "tender the reasonable amount which is due," that is "a figure over which reasonable minds could not differ." McDill v. Utica Mut. Ins. Co. , 475 So.2d 1085, 1091-92 (La. 1985). An insurer who fails to tender any amount within the statutory period must have relied on a reasonable defense that would preclude recovery in order to avoid a bad faith finding. Id. Arbitrariness is a question of fact to be decided by the jury. See Coig v. Gregoire , 07-1296, p. 4 (La. App. 4 Cir. 4/9/08), 989 So.2d 786, 789. Whether an insurance company's actions were "arbitrary, capricious or without probable cause" is a fact issue, and thus a bad faith verdict will not be reversed on appeal unless the verdict is manifestly erroneous or clearly wrong. Jouve v. State Farm Fire & Cas. Ins. Co. , 10-1522, p. 9 (La. App. 4 Cir. 8/17/11), 74 So.3d 220, 226. "Great deference" must be accorded to the trier of fact with respect to bad faith. Coig , 989 So.2d at 789.

Citadel , 2014-0326, pp. 7-8, 162 So.3d at 476.

Moreover, in Louisiana Bag Co., Inc. , 2008-0453, pp. 14-15, 999 So.2d at 1114-15 (internal citations omitted), the Supreme Court stated:

[w]hen there are substantial, reasonable and legitimate questions as to the extent of an insurer's liability or an insured's loss, failure to pay within the statutory time period is not arbitrary, capricious or without probable cause.
While an insurer need not tender payment for amounts that are reasonably in dispute, this court has explicitly found that "there can be no good reason "-or no probable cause-for withholding an undisputed amount. Where there is a substantial, reasonable and legitimate dispute as to the extent or amount of the loss, the insurer can avoid the imposition of penalties only by unconditionally tendering the undisputed portion of the claim.

Stated otherwise, "[a]n insurer who does not tender unconditionally a reasonable payment, a figure over which reasonable minds could not differ, will be subject to penalties and attorney's fees." Guillory , 2009-0075, p. 32, 16 So.3d at 1127 (citing McDill v. Utica Mut. Ins. Co. , 475 So.2d 1085 (La.1985) ).

Applying these legal precepts in the present case, we find that the evidence clearly demonstrates Citizens' arbitrary and capricious handling of Feingerts' ALE and property damage claims. The following timeline and facts, which support our conclusion, are derived from the record:

• On August 29, 2005, Hurricane Katrina made landfall in southeast Louisiana.
• On August 31, 2005, Feingerts filed a claim with Citizens for ALE and property damages through his insurance agents.
• On September 8, 2005, Citizens issued a check for ALE in the amount of $ 1,000.00. (For unexplained reasons, two additional ALE checks, each in the amount of $ 500.00, were later drafted but never sent to Feingerts).
• On October 6, 2005, Feingerts met with Citizens' adjuster Stuart Nunley at his apartment in the American Can Company. Feingerts notified Nunley that while he was living in Baton Rouge, his apartment had been broken into and vandalized. Feingerts claims that Nunley would not visit the two storage facilities because he incorrectly thought that the property stored offsite was not covered under the Citizens' policy. Nunley never visited the two storage facilities. For a substantial length of time, Nunley's report, dated January 17, 2006, was unaccounted for and not turned over to Citizens until 2008. Feingerts testified that he gave Nunley a computerized printout of the inventory of the contents in the CRDN facility.
• On October 6, 2005, Feingerts (through his insurance agents) rendered a complaint against Nunley.
• On October 24, 2005, Feingerts sent an email to Larry Crowder (with York Claims Service), informing him that Citizens had the address for the American Can Company apartment building wrong, and providing him with the correct address. Feingerts further states that the offsite storage where his furniture was stored is Environmental Remediation Services, Inc. on Earhart Blvd. (ERS is actually on Broad Street, at the corner of Earhart Blvd. Thus, Citizens submits that Feingerts did not provide the correct address for the storage facility.) The email fails to mention the CRDN storage facility. The email further states that his fourth floor apartment at the American Can Company had water as a result of roof damage to the building. Finally, the email states that "after weeks of begging, I have only received $ 1,000.00 for loss of use [ALE] even though we've been living a hotel and eating in restaurants in Baton Rouge for over 7 weeks now."
• On November 16, 2005, Citizens reassigned the property damage claim file to James Kotter.
• On November 17, 2005, Kotter met with Feingerts at his apartment in the American Can Company. He did not take pictures of the apartment building. Feingerts provided Kotter with receipts for his ALE claim.
• On December 12, 2005, Kotter inspected the ERS facility and took photographs of the roof and interior, showing Feingerts' contents. He did not visit the CRDN facility. For unexplained reasons, Kotter's report was not submitted to Citizens until March 15, 2006. Regarding personal property at ERS, Kotter states in his report that "[o]ur inspection revealed wind damage to the roofing materials of the storage warehouse. Hurricane force winds and flying debris caused damage to the build- up roofing allowing wind driven rain to damage the contents. Presently waiting on insured for a detailed list of damaged items. A supplement will be filed for contents."
Regarding ALE, the report recommends a payment of $ 8,255.80. The report states: "The insured was unable to stay in his apartment because the main roof of the complex was damaged. The damaged roof allowed water to enter the structure resulting in mold growth. The tenants were not allowed back in to the facility. Attached are Mr. Feingerts' hotel bills." (Emphasis added).
• On March 31, 2006, Feingerts received a second ALE check in the amount of $ 5,553.00 (less than the amount recommended by Kotter).
• By February 22, 2006, according to the testimony of Citizens' senior claims examiner Allison Blossman, the Citizens' claim file contained receipts for all of Feingerts ALE from September through December of 2005.
• In June 2006, Citizens adjuster Kenneth Starr visited Feingerts at the American Can Company to assess Feingerts' theft claim that occurred months earlier in the fall of 2005. He took pictures in the apartment and made a list of stolen items. After documenting the theft claim, Feingerts urged him to visit the ERS facility in connection with his property damage claim. Starr accompanied Feingerts to ERS. He took photographs of the interior of the building, including Feingerts' stored property.
• On January 29, 2007, Feingerts issued a letter to Citizens, expressing his frustration and stating that the attached ALE invoices were never paid. In response to the letter, Citizens' file reflects that adjuster Kara Wilkins could not find the documentation to support the ALE claim because photographs to support the fact that the American Can Company apartment was uninhabitable were not in the file. The claim file notes that Wilkins confirmed the fact that the apartment sustained wind damage (a covered loss) and was rendered uninhabitable with the building manager. She indicated, however, that she needed a written confirmation of that fact.
• In February 2007, Feingerts' claim was re-assigned to adjuster, Heather Bass. She authorized no payments on the ALE claim.
• In March 2007, adjuster Chuck Sadtler reviewed the file and agreed to pay the additional ALE. On March 14, 2007, two checks were overnighted to Feingerts, which satisfied the $ 20,000.00 policy limit on his ALE claim.
• On August 28, 2007, Feingerts filed the instant suit.
• On March 11, 2008 claims adjuster Peter Spangenberg inspected ERS on behalf of Citizens. At that time, he took pictures and met with Jay Zimmer, the owner of the facility. Spangenberg did not inspect the CRDN facility.
• On August 17, 2010, Citizens answered the petition, asserting that the policy excluded coverage for flood damages.
• In August 2010, Citizens issued Interrogatories and a Request for Production of Documents to Feingerts concerning the contents at ERS and CRDN. It is undisputed that Feingerts did not fully respond to the discovery. For example, in answer to Interrogatory No. 2, asking for specific information on the purchase of the stored items, Feingerts stated that a significant portion of the documents that would be responsive to the requests were lost and/or destroyed during Hurricane Katrina.
• On April 26, 2011, Feingerts' attorney sent a letter to Citizens' attorney stating ... "I am enclosing an updated listing of the items and replacement costs that were stored at the CRDN Storage facility at 5357 Franklin Avenue, New Orleans, La., which is an offsite storage [sic] covered by Mr. Feingerts' insurance policy with Louisiana Citizens. You already have the computer printout of these items prepared by CRDN, but these replacement costs will update your files. All of these items were damaged by the Hurricane Katrina wind and rain water intrusion. We will be providing you with an updated replacement cost list of the items lost due to Hurricane Katrina at the ERS facility on S. Broad St." The value of the CRDN list totaled $ 77,435.00. Feingerts testified that shortly after the April 26, 2011 letter, he and his attorney personally met with Citizens' attorney and went over the CRDN list.
• On February 2, 2012, Citizens filed a motion to compel responses to discovery.
• On April 26, 2012, Feingerts forwarded the ERS contents list, which included values of the items, totaling $ 171,010.00.
• On July 25, 2013, and July 17, 2015, Citizens' engineering expert, Nicholas G. Cammarata, inspected the ERS facility to evaluate the roof damage.
• On January 16, 2015, Feingerts' expert in mechanical engineering, Lawrence H.Townsend, inspected the ERS facility to evaluate the roof damage.
• On August 24, 2015, the matter proceeded to trial.

Considering the evidence and the testimony set forth in the record, we summarize our findings of Citizens' handling of the ALE and property damage claims as follows:

Citizens' handling of the ALE Claim

Citizens acknowledges that the payments made on Feingerts' ALE claim were late. However, Citizens argues that the late payments were not in bad faith because there was a "legitimate controversy." We disagree. Blossman testified that she did not know the reason for the delay in making the payment to Feingerts. Blossman did state that after Feingerts complained about Nunley, Citizens could not immediately assign a new adjuster because they did not have Nunley's report. Nunley's report was not entered into Citizens' claims file until 2008.

Blossman explained in her trial testimony that ALE is paid on an incurred basis; that is not in dispute. Blossman testified that Citizens had all of Feingerts' receipts for his living expenses by February 2006, yet there was no further activity on the ALE claim until January 29, 2007. Citizens asserts on appeal that Kotter was waiting on more ALE receipts. The record does not support that assertion. Kotter states in his report that he turned in the ALE claim but was waiting on an inventory list of the offsite premises. On January 29, 2007, Feingerts issued a letter to Citizens expressing his frustration that the attached and previously submitted receipts remained unpaid. Adjuster Wilkins indicated that she would not pay the claim because she believed evidence of the American Can Company being uninhabitable as a result of a covered peril was absent from the file.

To the contrary, the record reflects that Feingerts informed adjuster Crowder by email on October 19, 2005, that his apartment was uninhabitable and that he was living in a hotel for seven weeks without ALE reimbursement. The record also reflects no follow up to that email. More importantly, the evidence regarding roof damage to the American Can Company had been in Citizens' file since Kotter's report was submitted on March 15, 2006. That report stated specifically that "[t]he insured was unable to stay in his apartment because the main roof of the complex was damaged. The damaged roof allowed water to enter the structure resulting in mold growth. The tenants were not allowed back in to the facility." (Emphasis added). The fact that the American Can Company (and Feingerts' apartment) sustained wind driven rain/roof damage was never really in dispute. Rather, the record demonstrates that there was simply a long delayed bad faith effort on the part of Citizens to confirm and properly document that fact.

Louis G. Fey, Jr., qualified as an expert in insurance industry standards, claims management, and claims adjustment, testified on behalf of Feingerts. According to his affidavit, Fey has over thirty-three years of practical experience handling complex property casualty claims. From his review of the file, Fey concluded that the delays in paying the ALE claims were unreasonable.

For the foregoing reasons, we find that Feingerts timely presented the proper documentation for his ALE claim. However, Citizens demonstrated no justifiable reason for the delay in paying the claim. Accordingly, the trial court erred in failing to find that Citizens acted arbitrarily and capriciously in handling Feingerts' ALE claim.

Citizens' handling of the Property Damage Claim

It is well documented that Citizens made no inspection of ERS until December 12, 2005, when Kotter visited the facility. Kotter testified that he did not inspect the CRDN facility at this time because he was told the facility had already been cleared out. Dale Velez, owner of CRDN, testified that he started clearing out the building in late October 2005, finishing sometime in December 2005. There is no indication in the record that Citizens ever inspected CRDN (even after the contents were cleared) to determine whether the building sustained roof damage that would have allowed for wind-driven rains to enter the building.

As previously explained, Kotter stated in his report that his November 2005 investigation of ERS "revealed wind damage to the roofing materials of the storage warehouse. Hurricane force winds and flying debris caused damage to the build-up roofing allowing wind driven rain to damage the contents." (Emphasis added). Kotter testified at trial that he spent approximately thirty minutes on the roof. He also stated that he saw water damage on some of Feingerts' property. Kotter conceded that there were items high on the shelves that may not have been damaged. Feingerts testified that he did not give Kotter an ERS inventory list at the time, but that they went through all the items located in the facility. Kotter testified that he told Feingerts that "it appeared that he had gone over the $ 100,000.00 [policy] limit." Kotter's report on the ERS facility was not submitted to Citizens until March 15, 2006. At that time, the report did not contain his photographs or other documentation.

ERS owner, Zimmer, corroborated Kotter's testimony that ERS sustained roof damage. He testified at trial that the repair estimate for the roof damage was $ 51,600.00. Minor repairs were made shortly after the hurricane and the roof was later replaced. Zimmer testified that the photographs of the building offered into evidence show water stains on the ceiling and walls.

In June 2006, adjuster Starr visited ERS after meeting with Feingerts on his theft claim at the American Can Company. (It is unclear from the record why there was no activity on the theft claim from the time it was reported to Nunley in October 2005, until Starr's visit in June 2006). Starr testified that he noticed no water stains on the ceiling at ERS. He did not go onto the roof. Starr denied Feingerts' assertion that he was provided with an inventory list of the contents at that time. It was Feingerts' testimony that he gave Starr the list (a box-by- box inventory) that Zimmer had prepared when the contents were cleaned and stored. Information obtained by Starr on the property damage claim - including the addresses of ERS and CRDN - mistakenly ended up, for some period of time, in Citizens' theft claim file. This apparently led to some confusion on Citizens' part.

Adjuster Spangenberg testified that he saw no damage to Feingerts' contents when he visited ERS in March 2008. However, Spangenberg did not unwrap, touch, or inspect the contents. He stated that he was not there to evaluate the damage to the contents. Spangenberg stated that on this visit he was told by Zimmer that there was no roof damage directly above the room where Feingerts' contents were stored. He acknowledged that those statements conflicted with statements made in Zimmer's affidavit. Based on Zimmer's statements and his visual inspection, Spangenberg determined that there was no roof damage above the room where Feingerts' goods were stored.

In the statement made to Spangenberg in March 2008, Zimmer stated that he did not see water leaks coming through the ceiling above the room where Feingerts' contents were stored. However, Zimmer explained in his trial testimony that the reason he "did not see" water leaking onto Feingerts' property was because he did not return to the building for a couple weeks after the Hurricane. On October 9, 2013, Zimmer executed an affidavit clarifying that the building sustained significant roof damage from Hurricane Katrina, and significant roof leaks entered the warehouse and stained the ceilings and walls over the room where Feingerts' furniture and contents were stored.

Feingerts' mechanical engineering expert, Townsend, executed an affidavit on July 22, 2015, stating that after reviewing all pertinent documentation on February 1, 2012, he concluded that the ERS roof "suffered extensive damage to the drip edge running along a building joint and to an area of built-up roof. The roof damage allowed wind driven rain to damage Mr. Feingerts' belongings that were stored in the warehouse. The damage to the contents was confirmed by photographs depicting water damage to the ceiling of the warehouse." Townsend's opinion remained the same after inspecting the facility on January 16, 2015.

Townsend testified that based on his review of the findings of the U.S. Corp of Engineers, the wind driven rain entering the ERS facility from the roof damage would have occurred hours prior to the flood waters in that location of the City. On his inspection in January 2015, he noted the edge guard (or gravel guard) that had been replaced on the roof. He also noted that water marks were still present on the ceiling, running down the north wall, and on some of the furniture stored above the flood water line. (Feingerts'

property was still in storage at that time.) He demonstrated on one of the photographs where the water marks on the ceiling, "comes out into the center of the room over the racks of contents." Townsend opined that with the damaged edge guard and the lifting of the roof, the wind driven rain would have been able to reach the area where Feingerts' property was stored.

Cammarata, Citizens' engineering expert, inspected ERS on July 25, 2013, and July 17, 2014. He reviewed the photographs taken by Kotter and Spangenberg, Zimmer's statement, and historical aerial photographs of the roof prior to Hurricane Katrina showing patches/repairs work. Cammarata concluded in his 2014 report that the roof damage from Hurricane Katrina was not in proximity to the storage room where Feingerts' property was stored. Thus, "any rainwater that leaked into the building at these wind-damaged components did not cause damage to the stored goods." At trial, Cammarata disputed Townsend's findings regarding the roof uplifting to allow water inside the building. Cammarata also testified that Kotter's photographs, taken in the room where Feingerts' property was stored, depicted peeling paint on the walls and ceilings, not water stains. He did not believe that the marks shown on some of Feingerts' furniture were water marks.

Fey, Feingerts claims expert, stated that the Feingerts claim file was one of the worse claim files he had ever seen. He noted that documents were missing, reports were late and/or missing, and the entire file was missing at certain points in time. These assertions were corroborated by Blossman, Citizens' senior claims examiner. Fey also concluded that misrepresentations were made to Feingerts by adjusters regarding insurance coverage.

Fey pointed out that Citizens received the inventory lists, with valuations, for CRDN in April 2011, and for ERS in April 2012. However, Citizens paid nothing on the claim and never responded with any kind of defense to the inventory lists.

Fey further testified that an insurance company has a duty to investigate the contents, as well as, the structure on this type of property damage claim. Here, he noted that Citizens never did an independent evaluation of the property located at ERS. Moreover, because of their delay, they completely missed their opportunity to view the contents at CRDN.

In his affidavit, Fey opined that Citizens violated industry standards in the handling of Feingerts' claim. He stated that if Citizens disagreed with Kotter's initial findings regarding causation, it was required to voice its concern promptly and conduct a thorough investigation at the time the report was submitted. Citizens did not retain an engineering expert to determine causation for almost nine years, when Cammarata inspected ERS in July 2013.

The facts derived from this record clearly support Fey's assertions and opinions provided in connection with Citizens' handling of this claim. Based on our review of the record, we are compelled to conclude that Feingerts presented a satisfactory proof of loss and that Citizens acted arbitrarily and capriciously in handling his property damage claim.

For the reasons set forth in this discussion, we find that the trial court erred in failing to find Citizens arbitrary and capricious in handling both the ALE and property damage claims. Accordingly, we remand for a determination of sanctions.

Assignment of Error No. 5 : Awarding only $ 45,000.00 on the property damage claim. (Assignments of error No. 2 and No. 4 will be addressed out of sequence below).

In reasons for judgment, the trial court determined that items of property contained in the ERS facility were damaged from wind-driven rain, and thus covered by the policy. Clearly, the evidence supports this conclusion. However, the trial court further determined that Feingerts was only entitled to $ 45,000.00, essentially the "salvage value" of the property that was previously damaged in the 2003 storm at Feingerts' home. There is no support for this factual finding in the record. For the reasons that follow, we find that the trial court erred in not awarding the $ 100,000.00 policy limits.

This assignment of error calls into question the trial court's findings of fact. "Findings of fact are reviewed by this Court under a manifest error/clearly wrong standard." Aghighi v. Louisiana Citizens Prop. Ins. Corp. , 2012-1096, p. 2 (La. App. 4 Cir. 6/19/13), 119 So.3d 930, 932 (citing Detraz v. Lee , 2005-1263, p. 6 (La. 1/17/07), 950 So.2d 557, 561 ). "Under the manifest error/clearly wrong standard, a factual finding cannot be set aside unless, after reviewing the record, this Court finds that there is no reasonable factual basis for the finding." Id. (citing Smith v. Louisiana Dept. of Corrections , 93-1305 (La. 2/28/94), 633 So.2d 129, 132 ).

Feingerts testified that the 2003 storm that damaged his home caused extensive mold damage to the inside of the home and its contents. It was not a flood event. He made a damage claim through his homeowners' insurer (Travelers) and contracted with Zimmer and ERS for the remediation.

Feingerts introduced a letter from Zimmer dated July 22, 2005, stating that the remediation work should be completed by Friday, July 29, 2005 (just one month before Hurricane Katrina). Zimmer testified that the property was still in storage at this time because they were waiting for the house to be remediated and remodeled.

Citizens argues that much of the property stored at ERS had little or no value, yet they made no independent investigation to determine values. In support of their argument, Citizens relies on an inventory list prepared by ERS entitled "Items Not Feasible to Clean." Regarding that list, Zimmer explained in his trial testimony that the items were initially assessed not feasible to clean based on a monetary assessment. "Not that it cannot be properly remediated. It's just costs." He stated for example that books are expensive to clean. While the list included many books, he stated that they might have cleaned some books. He acknowledged that things not remediated were boxed up and placed in the warehouse. However, he stated that "[i]f its [sic] something of value then we probably cleaned it." Citizens made no attempt to examine the contents in order to determine which items were cleaned and which items were not cleaned.

Feingerts introduced evidence that after the list of items designated "not feasible to clean" was prepared by ERS, Travelers agreed to pay for the additional time needed to clean more items, rather than pay to replace them. Zimmer's testimony corroborated this assertion.

On the issue of valuation, Blossman acknowledged in her trial testimony that Feingerts' inventory lists from CRDN and ERS totaled $ 248,000.00. ($ 171,010.00 at ERS and $ 77,435.00 at CRDN). When asked if she had any documentation to suggest that the value of the contents for both units was below the $ 100,000.00 policy limits, she answered "no" stating that she had no documentation on the items to support a value at all. She also stated that other than Kotter, no one from Citizens ever physically went to ERS to examine the contents, i.e. , no one followed up after the December 2005 visit.

Stephanie Jackson, Citizens' corporate representative, testified that it is industry standards that property inspections and appraisals should be scheduled immediately as part of the insurer's investigation of a claim. She did not know whether these standards were applied in Feingerts' case.

Our review of the record reveals no evidence that anyone from Citizens opened any boxes or removed the shrink wrap to assess the items for water damage, and/or placed a value on the items. Citizens did not respond to Feingerts after his last supplemental inventory list was provided to Citizens' attorney in April 2012. Moreover, Citizens presented no expert to dispute the values assigned by Feingerts or to assign a depreciated value.

It is undisputed that Citizens presented no evidence to contradict the valuation proposed by Feingerts. "[W]here no contradictory evidence is presented the plaintiff's testimony as to the value and description of the property, including the place of purchase and the price, may satisfy the burden of proof of the plaintiff, provided such testimony contains a minimal degree of detail or specificity as to value to support an award of monetary damages." Cho v. Royal Oldsmobile Co., Inc. , 98-0527, p. 8 (La. App. 5 Cir. 11/25/98), 722 So.2d 1138, 1142 (citing Unique Const. Co., Inc. v. S.S. Mini Storage, Inc., 570 So.2d 161 (La. App. 5 Cir.1990) ). See also Vallee v. Hyatt Corp. , 433 So.2d 1070 (La. App. 4 Cir.1983).

We recognize that a plaintiff has the burden of proving the amount of his property damage claim. Here, in order to recover the policy limits, Feingerts had to prove $ 100,000.00 in damages (including any depreciation). On the uncontroverted evidence presented, we find that Feingerts satisfied his burden in establishing his property damages.

For the reasons stated herein, we find that the trial court erred in its award of $ 45,000.00 on Feingerts' property damage claim. We amend to increase the award to $ 100,000.00, the limits of the Citizens' policy. As amended, we affirm.

Assignment of Error No. 2: Failure to find that Citizens waived its flood exclusion coverage defense.

Feingerts argues that Citizens was required to obtain a non-waiver agreement or send him a reservation of rights letter as soon as it became aware of a possible coverage defense, i.e., the flood exclusion. He submits that the failure to do so waives the defense. Because we have determined that Feingerts is entitled to the $ 100,000.00 policy limits on his property damage claim, we deem this assignment of error to be moot. Thus, we pretermit any discussion on this issue.

Assignment of Error No. 4 : Giving Citizens a full credit for Feingerts' settlement with the excess insurer.

Feingerts recovered a gross settlement of $ 105,316.00 for his property stored at CRDN from CRDN's insurer. Feingerts argues that the trial court erred in granting Citizens a credit for that settlement. As with the previous assignment of error, our award of the policy limits on Feingerts' property damage claim renders this issue moot.

DECREE

For the foregoing reasons, that portion of the trial court's judgment granting Feingerts $ 45,000.00 in property damages is amended to increase the award to $ 100,000.00. As amended, we affirm. The trial court's denial of Feingerts' arbitrary and capricious claim against Citizens is reversed. The matter is remanded for a determination of attorney's fees and penalties to be assessed against Citizens in accordance with this opinion.

AMENDED AND, AS AMENDED, AFFIRMED IN PART; REVERSED IN PART; REMANDED

      "Acts 2008, No. 415, § 1 amended and reenacted Title 22 of the Louisiana Revised Statutes of 1950, the Louisiana Insurance Code, and directed the Louisiana State Law Institute to redesignate the provisions of Title 22, formerly comprised of R.S. 22:1 to 22:3311, into a new format and numbering scheme comprised of R.S. 22:1 to 22:2371, without changing the substance of the provisions." See Editors' Notes, La. R.S. 22:1892, La. R.S. 22:1973.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana IN the INTEREST OF E.O.
    18-803
    Court of Appeal of Louisiana, Third Circuit.
    February 20, 2019
   Daniel Ginnetty, Fifteenth Judicial Public Defender's Office, Post Office Box 3622, Lafayette, Louisiana 70502-3622, COUNSEL FOR DEFENDANT/APPELLANT: A.F. (Mother)

Keith A. Stutes, Lafayette Parish District Attorney, Tracey Davenport-McGraw, Lafayette Parish Assistant District Attorney, Post Office Box 3306, Lafayette, Louisiana 70502-3306, COUNSEL FOR APPELLEE: State of Louisiana

Leah Antoinette Beard, Diane E. Cote, 825 Kaliste Saloom Road, Brandywine III, Suite 150, Lafayette, Louisiana, COUNSEL FOR APPELLEE: Louisiana Department of Children and Family Services

Jeremy Daye c/o CWS I, Case Worker, 100 Asma Boulevard, Suite 260, Lafayette, Louisiana 70508

Lloyd Dangerfield, 703 East University Avenue, Lafayette, Louisiana 70503, COUNSEL FOR DEFENDANT: Z.O. (Father)

Franchesca L. Hamilton-Acker, Acadiana Legal Service Corporation, Post Office Box 4823, Lafayette, Louisiana 70502-4823, COUNSEL FOR THE MINOR CHILD: E.O.

Alexander Hurd, Fifteenth Judicial Public Defender's Office, 215 West Saint Peter Street, New Iberia, Louisiana 70560, COUNSEL FOR THE MINOR CHILD: E.O.

Court composed of Billy Howard Ezell, Van H. Kyzar, and Jonathan W. Perry, Judges.

PERRY, Judge.

A.F., the biological mother of the minor child, E.O., appeals the judgment of the trial court terminating her parental rights. At the termination trial, the State of Louisiana, through the Department of Children and Family Services ("DCFS"), contended that A.F. had not completed any component of her court-approved case plan. A.F. challenged her case plan and claimed that her efforts were sufficient to maintain her parental relationship. The trial court determined that there was no substantial compliance and there was no reasonable expectation that A.F.'s conduct would significantly improve. Further, the trial court concluded it was in E.O.'s best interest to terminate A.F.'s parental rights. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

E.O., born March 2, 2017, came into the custody of DCFS on April 4, 2017, after an oral instanter order was obtained on the grounds of neglect and dependency. The trial court issued the order based on the affidavit of Renee Forgason, a child protection case worker employed by DCFS.

In her affidavit, Ms. Forgason asserted that on April 2, 2017, DCFS received a report of suspected abuse and neglect of E.O. The basis for E.O.'s removal began on April 1, 2017, when the Youngsville Police Department received a report of domestic violence between A.F. and Z.O. in the home of mutual friends. A.F. admitted to the violence and to possessing marijuana; however, Z.O. left the home with E.O. before police officers arrived.

On April 2, 2017, the Youngsville Police Department responded to the same home after receiving reports that Z.O. had made threats to kill E.O. After police found Z.O. hiding in the home, he was arrested and charged with domestic abuse battery. Additionally, Ms. Forgason asserted in her affidavit that A.F. and Z.O. exhibited substance abuse and domestic violence issues, lacked stable housing and employment, and that A.F. and Z.O. were using E.O. against one another, placing E.O. at a serious risk of harm.

The trial court confirmed the instanter order after an April 5, 2017 hearing. E.O. was adjudicated a child in need of care on May 24, 2017. A case plan was created for A.F. with an aim toward reunification with a concurrent goal of adoption.

The case plan established for A.F. required she: 1) establish safe and stable housing; 2) pay $ 5 a month in child support; 3) cooperate and maintain contact with the agency; 4) submit to a psychological/psychiatric evaluation and follow all recommendations; 5) submit to and comply with all recommendations relative to a substance abuse assessment, including participation in substance abuse support groups; 6) submit to random drug screens; 7) attend anger management counseling; 8) obtain and maintain legal employment; and 9) visit with E.O.

After A.F.'s noncompliance, the case plan goal, originally reunification, changed to adoption at the April 10, 2018 case review hearing. On May 24, 2018, DCFS petitioned to terminate A.F.'s parental rights pursuant to La.Child.Code art. 1015(5) and (6) so that E.O. could be certified eligible for adoption.

A termination proceeding was held on August 13, 2018. Thereafter, the trial court rendered judgment concluding DCFS established the parental rights of A.F. should be terminated pursuant to La.Child.Code art. 1015(5) and (6). Specifically, the trial court found A.F. failed to contribute to E.O.'s care, failed to maintain contact with E.O., and failed to substantially comply with her case plan. The trial court further concluded that the best interest of E.O. would be served by the termination of A.F.'s parental rights to him. The trial court executed a written judgment to this effect on August 14, 2018, and A.F. perfected this appeal.

In her appeal, A.F. alleges that the trial court legally erred by admitting hearsay and by restricting relevant testimony which, consequently, substantially prejudiced A.F.'s constitutional right to a fair proceeding. She asserts the trial court erred in finding that DCFS proved by clear and convincing evidence that she abandoned her child, she failed to substantially comply with the requirements of her case plan, or that there was no reasonable expectation for significant improvement in A.F.'s conduct in the near future, such that her parental rights should be terminated. She further asserts the trial court failed to consider whether it was in the best interest of her child that her parental rights be terminated.

STANDARD OF REVIEW

This court reviews a trial court's findings on whether or not parental rights should be terminated using the manifest error standard of review. State ex rel K.G. , 02-2886, 02-2892 (La. 3/18/03), 841 So.2d 759. Under this standard, we may not set aside any factual findings of the trial court unless the findings are manifestly erroneous or clearly wrong. Rosell v. ESCO , 549 So.2d 840 (La.1989).

LAW AND DISCUSSION

The Louisiana Supreme Court has held in an involuntary termination proceeding, two private interests must be balanced-those of the parents and those of the child. State ex rel. H.A.B. , 10-1111 (La. 10/19/10), 49 So.3d 345. "On the one hand, parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children." Id. at 366.

On the other hand, however, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care as "[t]here is little that can be as detrimental to a child's sound development as uncertainty over [where] he is to remain." Lehman v. Lycoming County Children's Servs. Agency , 458 U.S. 502, 513, 102 S.Ct. 3231, 3238, 73 L.Ed.2d 928 (1982).

State ex rel. H.A.B. , 49 So.3d at 366 (alterations in original).

While a parent's interest warrants deference and protection, our courts regard the interest of the child to be "superior and paramount." Id. (citing Lassiter v. Dep't of Soc. Servs. , 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) ). The primary concern of a termination of parental rights proceeding is to secure the best interest of the child. La.Ch.Code art. 1001. "Nonetheless, courts must proceed with care and caution as the permanent termination of the legal relationship existing between natural parents and the child is one of the most drastic actions the State can take against its citizens." State ex rel. J.A. , 99-2905, p. 9 (La. 1/12/00), 752 So.2d 806, 811.

Louisiana Children's Code Article 1015 provides the statutory grounds by which a court may involuntarily terminate the rights and privileges of a parent. In order to terminate rights, the State need establish only one ground set forth in La.Ch.Code art. 1015 by clear and convincing evidence. La.Ch.Code art. 1035(A). Additionally, the trial court must also find the termination is in the best interest of the child. La.Ch.Code art. 1039.

In this matter, the trial court found that DCFS proved by clear and convincing evidence that termination of A.F.'s parental rights was warranted under La.Ch.Code art. 1015(5) and (6). Louisiana Children's Code Article 1015(5), amended by 2016 La. Acts No. 608, § 1, states:

Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(a) For a period of at least four months as of the time of the hearing, despite a diligent search, the whereabouts of the child's parent continue to be unknown.
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child's care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.

Louisiana Children's Code Article 1015(6) amended by 2016 La. Acts No. 608, § 1, states:

Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent's custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child's age and his need for a safe, stable, and permanent home.

Furthermore, La.Ch.Code art. 1036(C) and (D) set forth the evidence that may be used to prove a lack of parental compliance with a case plan or the lack of a reasonable expectation of significant improvement in the parent's future conduct or condition:

C. Under Article 1015(6), lack of parental compliance with a case plan may be evidenced by one or more of the following:
(1) The parent's failure to attend court-approved scheduled visitations with the child.
(2) The parent's failure to communicate with the child.
(3) The parent's failure to keep the department apprised of the parent's whereabouts and significant changes affecting the parent's ability to comply with the case plan for services.
(4) The parent's failure to contribute to the costs of the child's foster care, if ordered to do so by the court when approving the case plan.
(5) The parent's repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent's lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.
D. Under Article 1015(6), lack of any reasonable expectation of significant improvement in the parent's conduct in the near future may be evidenced by one or more of the following:
(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

Evidentiary Due Process Violations

The first assignment of error alleges hearsay was admitted into evidence. A.F. argues the testimony was not only hearsay, but irrelevant and unduly prejudicial.

At issue is testimony elicited from the DCFS case worker, Jeremy Daye, regarding A.F.'s compliance with her case plan. Mr. Daye became A.F.'s case worker in December 2017. After Mr. Daye testified that A.F. had not submitted to any drug screens since his involvement began, DCFS asked whether A.F. submitted to any drug screens with her previous case worker. A.F. objected to Mr. Daye testifying about things of which he had no personal knowledge. Louisiana Code of Evidence Article 602 states: "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter." The trial court overruled the objection, noting Mr. Daye could not testify what the previous worker said, but he could reflect on notes and records kept by the previous case worker in testifying relative to A.F.'s case plan.

A.F. presents State in the interest of Z.D. , 17-0616 (La.App. 4 Cir. 10/10/18), 257 So.3d 260, to support her argument the trial court wrongly permitted hearsay. In Z.D. , the trial court declined to adjudicate the child as a child in need of care as to the father. The petition requesting the child be adjudicated a child in need of care alleged the father was incarcerated and was thus not available to provide for the child's medical, emotional, or housing needs, and the father had not made a plan for the child's care. The father, conversely, asserted he wished for his mother, the child's paternal grandmother, to assume custody of the child. The father alleged the DCFS investigator was aware yet had disregarded the paternal grandmother's unequivocal willingness to assume custody of the child. At the adjudication hearing, the DCFS investigator testified only that the child's father was in prison where he would remain until 2027. The trial court, noting the investigator's testimony was hearsay, found it to be insufficient to carry the State's burden by a preponderance of the evidence. State in the interest of Z.D. , 257 So.3d at 267 ; La.Ch.Code art. 665.

On appeal, our colleagues on the Fourth Circuit found the trial court did not abuse its discretion in declining to adjudicate the child as a child in need of care as to the father, expressing, "Louisiana courts have repeatedly expressed concern about child in need of custody judgments grounded in hearsay. The narrow time constraints imposed on the State in child in need of care proceedings does not relieve the State of its burden to offer admissible evidence." Id. at 267 (footnote omitted). We, however, do not find Z.D. instructive in the matter before us.

Louisiana Code of Evidence Article 801(C) defines hearsay as "a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted." Hearsay is inadmissible at trial unless one of the exceptions in the Louisiana Code of Evidence applies. La.Code Evid. art. 802. A trial court's rulings on evidentiary issues will not be disturbed absent a clear abuse of discretion. In re Succession of Jones , 08-1088 (La.App. 3 Cir. 3/4/09), 6 So.3d 331.

After reviewing the record, we find no abuse of discretion on the part of the trial court. Mr. Daye testified from his personal knowledge as well as from the DCFS record focusing on the elements of A.F.'s case plan and on whether or not A.F. compiled therewith. He did not testify as to what A.F.'s previous case worker said, nor did he testify about the results of A.F.'s drug screens. Accordingly, this assignment lacks merit.

In her second assignment of error, A.F. asserts the trial court's restriction of relevant testimony at various points deprived her of a fair trial. A.F. contends because of these erroneous restrictions, the trial court further erred by failing to consider mitigating evidence which she contends were essential to her defense.

In the first instance, Mr. Daye was asked on cross-examination whether A.F.'s age was taken into account when DCFS formulated her case plan. After answering in the negative, Mr. Daye was asked, "Did [A.F.] receive the same case plan that a 28-year-old would receive if her children were removed for substance abuse?" DCFS objected to relevance, asserting whether a case plan is rightly tailored for a parent should have been addressed at either the Family Team Conferences or the judicial review hearings. Counsel for A.F. responded, "We start on a blank slate ... this isn't a continuation of the Child in Need of Care case. This is a new hearing, and potentially [A.F.] could have new lawyers. She doesn't in fact, but she could." The trial court sustained the objection, stating its consideration focused on A.F.'s compliance. A.F. argues the questions regarding the tailoring of the case plan were relevant and should have been allowed.

In another instance, A.F. complains Mr. Daye was permitted to testify under direct examination that E.O. was taken into custody because A.F. and Z.O. were engaging in domestic violence. Yet, when A.F. was asked under direct examination whether she was a victim of domestic violence, the trial court sustained the objection of DCFS on the basis this testimony was not relevant to whether or not A.F. complied with her case plan. A.F. argues this testimony was relevant to the issue of whether she was appropriately referred to the right kind of domestic violence counseling.

Lastly, A.F. asserts the trial court also erred in restricting both A.F. and T.G., her mother, from testifying about how A.F.'s grandmother's death had, ironically, positively affected her. The trial court sustained DCFS's objection to relevance. A.F. asserts this testimony was relevant to her likelihood of near-future compliance and, therefore, relevant to her defense.

A.F. was seventeen when E.O. was born. She attributes her failure to comply with her case plan to her "juvenile" status. A.F. contends it was unfair for the trial court to deprive her permanently of her parental rights "without considering in mitigation whether she may be growing out of the immaturity that hindered her from perfectly complying with her case plan." A.F. relies upon Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), for this proposition, asserting "the evolving jurisprudence on juvenile criminal sentencing is helpfully analogous to a court's duty when it has a juvenile mother before it on the termination docket: at least to consider mitigating factors before taking an action that permanently terminates a fundamental liberty interest."

In Miller , the Supreme Court of the United States held "that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.' " Id. at 465, 132 S.Ct. 2455. A.F. contends the Miller court's rationale rested in part on "developments in psychology and brain science" which demonstrated "transient rashness, proclivity for risk, and inability to assess consequences[.]" Id. at 471-72, 132 S.Ct. 2455 (quoting Graham v. Florida , 560 U.S. 48, 68, 130 S.Ct. 2011, 2026, 176 L.Ed.2d 825 (2010) ). A.F. asserts her behavior exhibits some of these qualities. One example is her decision not to request transportation to visits because she was afraid her dependency would be held against her. She contends whereas a rational adult knows to ask for help, a child is more likely to opt for an all-or-nothing approach.

DCFS acknowledges A.F. was seventeen when E.O. was born; however, A.F. turned eighteen three months later, and for the majority of the case she was of the age of majority. Therefore, DCFS argues A.F.'s contention her case plan should have been tailored for a juvenile mother is not relevant and this case is distinguishable from a juvenile criminal case. Further, at each of the review hearings, the trial court approved A.F.'s case plan, finding it consistent with the health and safety of and in the best interest of E.O.

Louisiana Code of Evidence Article 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." A.F.'s retrospective criticisms of the case plan have no bearing on whether or not she complied with requirements of her case plan and, thus, are not relevant to the issue before the trial court. Consequently, we find it was not an abuse of the trial court's discretion to restrict the aforementioned testimonies.

Abandonment

A.F. asserts the trial court erred in finding that DCFS proved she abandoned E.O. as that term is defined in La.Ch.Code art. 1015(5). Mr. Daye testified that A.F. failed to contribute $ 5 per month to E.O.'s care while he was in foster care. A.F. denied knowing this was a requirement of her case plan. Mr. Daye testified A.F. failed to maintain contact with E.O. for six consecutive months. A.F. acknowledged at the August 2018 termination hearing that her last visitation with E.O. was in December 2017. That being the case, we find no manifest error in the trial court's finding that DCFS proved by clear and convincing evidence A.F. abandoned E.O. by failing to provide contributions to E.O.'s care and by failing to maintain contact with her child.

Failure to Comply with Case Plan

We also find no manifest error in the trial court's factual finding that DCFS proved by clear and convincing evidence that A.F. failed to substantially comply with the requirements of her case plan, and there is little likelihood that her condition or conduct will improve in the near future. The evidence of record established that from the inception of A.F.'s case plan until the termination trial, she made virtually no progress in fulfilling the case plan requirements.

In order to terminate the parental rights of a parent under La.Ch.Code art. 1015(6), DCFS has to prove by clear and convincing evidence that a year has passed since the child was removed pursuant to court order; (2) there has been no substantial compliance of the case plan by the parent; and (3) there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future.

There is no dispute that a year has passed since E.O. was removed pursuant to court order. A.F.'s case plan required her to obtain stable housing, obtain a legal source of income, make the aforesaid monthly parental contributions, undergo substance abuse treatment or a mental health assessment/psychological evaluation, participate in parenting classes, and maintain contact with E.O.

According to the record, A.F. only made an effort to comply with visitation and the requirement to undergo substance abuse treatment. A.F. entered into inpatient treatment for substance abuse twice in 2017; however, she left treatment both times against medical advice. A.F. missed the vast majority of her scheduled visits with E.O. Mr. Daye testified that before trial in August 2018, A.F.'s last visit with E.O. was on December 13, 2017, and her visits were sparse and sporadic prior to that.

Mr. Daye testified A.F. failed to provide verification of stable housing, a legal source of income, and participation in parenting classes. A.F. claimed to have stable housing and testified that she was cleaning houses for cash. However, A.F. acknowledged not providing Mr. Daye with verification of her claims.

Based upon our review of the record, A.F.'s arguments are not supported. Thus, we find no error in the trial court's finding that DCFS proved by clear and convincing evidence A.F. failed to substantially comply with her case plan and there is no reasonable expectation of significant improvement in her conduct in the near future.

Best Interests of the Child

Finally, A.F. alleges DCFS did not offer, nor could the trial court have possibly considered, evidence pertaining to E.O.'s best interest. Thus, A.F. argues the trial court clearly erred by finding it was in E.O.'s best interest A.F.'s parental rights be terminated. We disagree.

As the Louisiana Supreme Court stated in State ex rel. K.G. , 841 So.2d at 762, (quoting State ex rel. J.A. , 99-2905 (La. 1/12/00), 752 So.2d 806, 810-11 ), "[t]he fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing." In the instant case, E.O. was just one month old when he was removed from his parents' care. At the time of the termination trial, he had been in foster care for sixteen months.

Despite being given time and opportunity, the evidence is clear that A.F. was unable to show she could consistently provide for the physical, emotional, and mental needs of E.O. Accordingly, we find it was not manifestly erroneous for the trial court to find that DCFS satisfied its burden of proving that it was in the best interest of E.O. that A.F.'s parental rights be terminated.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court terminating the parental rights of A.F. to her minor child, E.O. Costs of this appeal are assessed to A.F.

AFFIRMED.

      The initials of the parties will be used to protect and maintain the privacy of the minor child involved in this proceeding. Uniform Rules-Courts of Appeal, Rules 5-1 and 5 -2.

      Z.O., the biological father of E.O., stipulated to the surrender of his parental rights on August 13, 2017.

      The trial court held permanency and case review hearings on August 8, 2017, January 23, 2018, and April 10, 2018.

      Originally, trial was scheduled for July 16, 2018, but continued on the unopposed motion of DCFS because E.O.'s biological father had not been transported from jail.

      We note that at the time of trial in this matter, La.Ch.Code art. 1015(5) and (6) had been amended by 2016 La.Acts No. 608, § 1.

      The supreme court offered the following definition of "clear and convincing" in Johno v. Doe , 16-087, p. 5 (La. 12/6/16), 218 So.3d 1004, 1008 (quoting Burmaster v. Plaquemines Parish Gov't , 07-2432 (La. 5/21/08), 982 So.2d 795 (alteration in original) ):
      Black's Law Dictionary 209 (8th ed.2004) defines "burden of proof" generally as "[a] party's duty to prove a disputed assertion or charge." Black's entry for "burden of proof" also includes this definition of "middle burden of proof": "A party's duty to prove a fact by clear and convincing evidence. This standard lies between the preponderance-of-the-evidence standard and the beyond-a-reasonable-doubt standard."

      The child was removed from his mother's custody as a result of abuse and was already adjudicated a child in need of care as to his mother.


author: GREMILLION, Judge.

text:
    Courtney MARKS v. MOTOR CITY, J.P. Market Management, LLC, et al.
    18-548
    Court of Appeal of Louisiana, Third Circuit.
    February 20, 2019
    Christopher J. Piasecki, Jordan T. Precht, Davidson, Meaux, Sonnier, McElligot, Fontenot, Gideon & Edwards, 810 South Buchanan Street, Lafayette, LA 70501, (337) 237-1660, COUNSEL FOR DEFENDANTS/APPELLEES: J.P. Market Management, LLC, Motor City, Jean Paul Guidry
    Charlotte M. Washington, Washington Law Office, LLC, 124 West Washington Street, Suite C, New Iberia, LA 70560, (337) 306-2367, COUNSEL FOR PLAINTIFF/APPELLANT: Courtney Marks
    Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   GREMILLION, Judge.

The plaintiff-appellant, Courtney Marks, appeals the trial court's judgment in her favor relating to the repossession of a vehicle she purchased from the defendants for failure to award treble damages under the Louisiana Unfair Trade Practices Act (LUTPA). The defendants-appellants, J.P. Market Management, LLC d/b/a/ Motor City (Motor City) and Jean Paul Guidry (Guidry) also appeal the award to Marks. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The trial court accurately summed up the following undisputed facts in its written reasons for judgment:

Courtney Marks brought this action to recover damages for the wrongful repossession of a 2009 Acura Automobile that she purchased from J.P. Market Management, L.L.C., d/b/a Motor City (hereinafter referred to as "Motor City"). Plaintiff purchased the vehicle on March 15, 2016 for the sum of $ 13,990.00, which she satisfied by trading in a 2007 BMW automobile valued at $ 6,500.00 (less a payoff balance of $ 1,515.83), making a $ 2,500.00 cash down payment, and executing a Retail Installment Contract and Security Agreement for the balance (including taxes and fees) of $ 7,484.47. The installment contract was subsequently assigned by Motor City to Westlake Financial Services.
Under the terms of the installment contract, plaintiff was to make 36 monthly payments of $ 294.90 beginning on April 14, 2016. However, plaintiff did not submit any payment until May 16, 2016, the day after the second payment was due. On that date, she tendered a personal check in the amount of $ 604.55 to Westlake Financial Services, but the check was subsequently returned by her bank due to insufficient funds in her account. On May 16, 2016, Westlake Financial Services re-assigned the installment contract to Motor City.
Motor City engaged the services of Hazelwood Towing/Recovery & Investigative Services, L.L.C. to repossess the 2009 Acura. On May 19, 2016, Chad Hazelwood, appeared at plaintiff's residence to take possession of the vehicle. Upon learning of his intent, plaintiff facilitated a telephone conversation between Chad Hazelwood and her attorney, Peggy Garris ... Chad Hazelwood called Jean Paul Guidry, a member of J.P. Market Management, L.LC., to inform him of Ms. Garris' statements and ascertain whether he wanted to go through with the repossession. Mr. Guidry instructed Mr. Hazelwood to tow the vehicle, and he did so after plaintiff had removed her personal possessions. Plaintiff declined to sign a form presented by Chad Hazelwood indicating that she was voluntarily surrendering the vehicle.

Marks filed a petition for damages in May 2016. Marks subsequently filed several motions for summary judgment which were denied by the trial court because it found there was a genuine issue of fact whether Marks protested the repossession. Following a trial in March 2018, the trial court found that Marks did protest the repossession resulting in a "breach of the peace," and an illegal repossession occurred based on the notion that extrajudicial repossession can only occur if there is no breach of the peace pursuant to La.R.S. 6:966(B). The trial court awarded Marks $ 12,734.07, which included the value of her trade-in less the balance she owed ($ 4,984.07), her cash down payment ($ 2,500.00), $ 500.00 in general damages, $ 2,250.00 for lost wages, and $ 2,500.00 for attorney fees, but found that she was not entitled to treble damages pursuant to La.R.S. 51:1409. Marks appealed. Motor City and Guidry answered the appeal and also assign errors.

ASSIGNMENTS OF ERROR

Marks assigns as error:

1. The trial court erred in ruling that Courtney Marks was not entitled to treble damages under LUTPA.
2. The trial court erred in ruling that the Attorney General was not put on notice.
3. The trial court erred in ruling that Motor City was required notice before the [sic] engaging in the acts complained of by Marks.
4. The trial court erred in casting the cost to [sic] the two motions for summary judgment to Courtney Marks.
5. The trial court erred in awarding $ 2,500.00 in attorney fees.
6. The trial court erred in not awarding cost[s] to the claimant.

Motor City assigns as error:

1. The Court erred in finding that Appellee, J.P. Market Management, LLC d/b/a Motor City, and another Defendant, Hazelwood Recovery & Investigative Services were solidary obligors;
2. The Court erred in finding that sufficient evidence was presented to support Appellant's, Courtney Marks, contention that she objected to the recovery of the vehicle undertaken by Hazelwood Recovery & Investigative Services, and erred that a breach of the peace occurred pursuant to the provisions of La.R.S. 6:965 ;
3. The Court erred in finding that Appellee, J.P. Market Management, LLC d/b/a Motor City was/is liable for the action(s) of its independent contractor, Hazelwood Recovery & Investigative Services; and
4. The Court erred in finding that Appellee, J.P. Market Management, LLC d/b/a/ Motor City, and another Defendant, Hazelwood Recovery & Investigative Services were/are liable unto Appellant, Courtney Marks in the full sum of TWELVE THOUSAND SEVEN HUNDRED THIRTY FOUR AND 07/100 DOLLARS ($ 12,734.07).

DISCUSSION

Standard of Review

The supreme court summarized the manifest error standard of review:

This court has announced a two-part test for the reversal of a factfinder's determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). See Mart v. Hill , 505 So.2d 1120, 1127 (La.1987). This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's findings. See id. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous. See id.

Lobell v. Rosenberg , 15-247, p. 10 (La. 10/14/15), 186 So.3d 83, 90.

A trial court is in a better position to make credibility determinations, as it has the benefit of examining the nuances of a witness's testimony and demeanor. Lopez v. Lopez , 00-660 (La.App. 3 Cir. 11/2/00), 772 So.2d 364.

Breach of the Peace

Louisiana Revised Statutes 6:966 permits the repossession of motor vehicles upon default by the debtor without judicial process if it can be accomplished "without a breach of the peace." Louisiana Revised Statutes 6:965 defines "breach of peace" as follows: "Oral protest by a debtor to the repossessor against repossession prior to the repossessor seizing control of the collateral shall constitute a breach of the peace by the repossessor." Whether a breach of the peace has occurred is a question of fact subject to manifest error review. See Cook v. Spillers , 574 So.2d 464 (La.App. 2 Cir. 1991). The trial court found that unquestionably there was a breach of the peace because Marks' attorney disputed the taking over the phone. Motor City argues that La.R.S. 6:965 requires protest by the debtor, not the debtor's representative, because there is no way that a repossessor can verify with whom he is speaking on the phone.

At trial, Marks testified about the day of the repossession. She said that a representative from Hazelwood Recovery & Investigative Services (Hazelwood Recovery) arrived to repossess the car. Marks testified that she immediately called Peggy Garris, a lawyer, and handed the phone to the Hazelwood Recovery representative. She testified that, thereafter, he called the dealership and was told to repossess the car. Marks testified that she was employed with the Daily Iberian as a newspaper deliverer but she lost her job once the car was repossessed. She did not recall giving permission for the car to be taken or removing any items from the vehicle.

Chad Hazelwood (Hazelwood) of Hazelwood Recovery testified that after talking to the person on the phone, he called Motor City and spoke with Guidry, who told him to remove the vehicle. He stated that Marks did not sign the form which would indicate that she removed her items from the vehicle and that she voluntarily consented to the removal of the vehicle. Hazelwood testified, though, that Marks never said to not take the vehicle. Based on his ten years in the industry, Hazelwood testified that he did not feel the taking of the vehicle was involuntary.

Peggy Garris testified that she told Hazelwood "[Marks] made a payment and he should not take the car." She further stated that she told him, "if he repossessed the car that day, I would have a lawsuit filed by twelve noon." She then said that she faxed a letter to Guidry informing him that she was going to report him to the Attorney General for unfair trade practices and that she did just that; filed suit and notified the Attorney General.

Guidry, owner of Motor City, testified that he hired Hazelwood Recovery to repossess and recover the vehicle.

In its written reasons for judgment, the trial court stated:

Defense counsel's argument that there was no protest because it was not voiced by plaintiff is unsupportable. The evidence left no doubt that Ms. Garris was speaking on behalf of her client and that Chad Hazelwood had informed Jean Paul Guidry of that fact. Plaintiff's position that she objected to the taking of the automobile could not have been any clearer.

We find no manifest error in the trial court's finding, as it was reasonably supported by the record. The trial court clearly believed that Marks called her attorney who, on behalf of her client, protested the taking of the vehicle thereby breaching the peace. Although we are sympathetic to the defendants' arguments, we are constrained by the law that allows a party to prevent the repossession of a car that she refuses to pay for. Accordingly, Motor City's assignment of error number two assignment is without merit.

Treble Damages

The trial court found that Marks was not entitled to treble damages because she produced no evidence to establish service on the Attorney General or notice to the defendants. Further, the trial court found that Motor City would have had to be put on notice before the wrongful seizure occurred in order to be liable for treble damages.

Louisiana Revised Statutes 51:1409(A) states (emphasis added):

Any person who suffers any ascertainable loss of money or movable 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 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. 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. Upon a finding by the court that an action under this Section was groundless and brought in bad faith or for purposes of harassment, the court may award to the defendant reasonable attorney fees and costs.

We find no error in the trial court's finding that treble damages were not warranted, as there was no evidence in the record that any of the defendants had been put on notice by the attorney general. The repossession complained of occurred long before the attorney general was notified of the defendants' actions and certainly before any notice was given to the defendants by the attorney general that they were committing unfair trade practices. In her brief, Marks claims that Garris "testified that she received a carbon copy of the letter sent by the Attorney General to Motor City, putting them on notice that if they did not cease the activity complained of, Ms. Marks would be entitled to treble damages if successful in her civil action." As noted by the defendants, Marks does not set forth one single record-page reference in her brief, in violation of Uniform Rules-Court of Appeal, Rule 2-12.4. We have read Garris's testimony and find no evidence whatsoever to substantiate the above claim. Marks's assignments of error one through three are without merit.

Attorney Fees

In assignment of error five, Marks argues that the trial court's award of $ 2,500.00 in attorney fees was unreasonable. We disagree. The trial court provided the following reasons for its award of attorney fees:

Plaintiff also failed to submit any evidence to support her claim for attorney's fees.... Despite having been provided oral and written reasons for the denial of plaintiff's first motion for partial summary judgment, her current attorney filed a second motion for a partial summary judgment without curing the deficiencies in the evidence. After the second motion for a partial summary judgment was denied, this matter was set for the trial. Plaintiff's counsel made a brief appearance at the taking of one trial deposition. She also made a brief appearance at the trial, where she presented very little evidence in support of plaintiff's claims for damages. Throughout these proceedings, including her post-trial memorandum, plaintiff's counsel has advanced arguments that the Court found to be erroneous and of no assistance in resolving plaintiff's claims. In light of these facts, the Court will award attorney's fees in the amount of $ 2,500.00.

In her brief, Marks makes the following remarks regarding attorney fees:

In this case, Courtney Marks is entitled to an amount in attorney fees and costs equal to that of her liability to her attorney/s[sic] pursuant to her contingency contract....
As a practicing attorney with over seven (7) years of experience as is the case here, an average median hourly rate ranges between $ 200 and $ 250 per hour. However, Ms. Marks contracted with her attorney/s [sic] to handle this matter on a contingency basis. The attorney in this matter: has spent approximately two years preparing this case for trial, has made at least two court appearances in this matter, excluding trial; have argued two motions for summary judgment; have conducted hours of pre-trial and post-trial research; have drafted several motions and memorandums in connection with this matter; obtained a favorable decision after a trial on the merits; and have expended usual costs in preparing a case for trial, including but not limited to, the cost of depositions, postage, conference calls, interviewing of witness(es), travel and lodging expenses and paralegal costs. Because the trial court did not take up argument or evidence on attorney fees and costs, the court should have awarded attorney fees and costs that were reasonable under the circumstances of this case or in the alternative, the court should have awarded Ms. Marks attorney fees on a contingency basis.

In the conclusion of her appellate brief, she requests remand for the trial court to "take up evidence on attorney fees and costs or alternatively, awarding her attorney fees that are contingent at 33.1/3% to her recovery and consistent with contractual obligation for attorney fees, and for costs that are consistent with her contractual obligation for costs associated with these proceedings." Based on the trial court's factual findings and the lack of any evidence to support Marks' counsel's request, we find no error in the trial court's award of $ 2,500.00 in attorney fees. This assignment of error is without merit.

Costs

In assignments of error four and six, Marks argues that the trial court erred in casting her with the costs relating to two summary judgment motions she filed and in not awarding her the costs associated with prosecuting her case. Given the trial court's reasons regarding how it arrived at the amount of attorney fees awarded to Marks, we find no error in its assessment of costs to the plaintiff for the summary judgment filings. As to Marks' assertion that the trial court erred in not awarding her costs, we find this claim to be erroneous. In its judgment, the trial court clearly cast the defendants with "all costs of the proceedings." These assignments of error are without merit.

Solidary Obligors

Louisiana Civil Code Article 2324(A) provides that, "He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act." In order for a conspiracy to exist there must be agreement to commit the illegal act, the commission of the act, and agreement as to the result of the act. Curole v. Delcambre , 16-550 (La.App. 3 Cir. 8/2/17), 224 So.3d 1074, writs denied , 17-1506, 14-1491 (La. 1/9/18), 231 So.3d 652, 653.

Louisiana Civil Code Article 2324(A) requires a meeting of the minds or collusion between the parties for the purpose of committing wrongdoing. Evidence of such a conspiracy can be actual knowledge of both parties or overt actions with another , or can be inferred from the knowledge of the alleged co-conspirator of the impropriety of the actions taken by the other co-conspirator.

Id. at 1082.

The trial court stated that the "evidence clearly established that the repossession of the automobile was an intentional act undertaken in concert by Motor City and the Hazelwood defendants." It went on to cast Motor City with the full judgment because Motor City failed to plead extinguishment of the debt as an affirmative defense. We find no manifest error in that finding. Hazelwood called Guidry after the phone conversation with Garris in order to determine if he should go ahead with the repossession in spite of Garris's protests on behalf of her client. Accordingly, both Hazelwood Recovery and Motor City are solidarily liable for the repossession resulting in a breach of the peace. We find no merit to Motor City and Guidry's first assignment of error.

Vicarious Liability/Independent Contractors

In the same vein, Motor City argues that it is not vicariously liable for Hazelwood Recovery's actions because Motor City and Hazelwood Recovery are independent businesses with no control over each other. A finding of vicarious liability is not necessary in order to find Motor City and Hazelwood Recovery to be solidary obligors under the facts set forth above. Nor do we find anywhere in the record where the trial court determined Motor City was vicariously liable for the acts of Hazelwood Recovery. Rather, the trial court found Hazelwood Recovery and Motor City worked in concert to repossess the car as Hazelwood did not effectuate the repossession until after he called Guidry to confirm he should do so under the particular facts of this case. Although Hazelwood was the party present on the scene who ultimately carried out the repossession, Guidry's physical presence at the scene was not required for a conspiracy to exist. Accordingly, we find no error in the trial court's finding that these parties are solidarily liable for the repossession. Motor City and Guidry's third assignment of error lacks merit.

Attorney Fees and Costs on Appeal

We award Marks' counsel $ 2,500.00 for work done on appeal. All costs associated with the appeal are assessed to the defendants.

CONCLUSION

The judgment of the trial court awarding $ 12,734.07 to the plaintiff-appellant, Courtney Marks, is affirmed. Marks is awarded $ 2,500.00 for attorney fees for work performed on appeal. All costs of this appeal are assessed against the defendants-appellants, J.P. Market Management, LLC d/b/a/ Motor City.

AFFIRMED.

      There is no dispute that Marks was in "default" as she had failed to make two consecutive payments for the vehicle on the due date. See La.R.S. 6:965.