Ross and Wallace Paper Products, Inc. v. Team Logistics, Inc. and Pittsburgh Logistics, Inc. d/b/a PLS Logistics Services

STATE OF LOUISIANA

COURT OF APPEAL

J FIRST
S CIRCUIT

2019 CA 0196

ROSS AND WALLACE PAPER PRODUCTS, INC.

VERSUS

TEAM LOGISTICS, INC., AND PITTSBURGH LOGISTICS SYSTEMS INC.
D/ B/ A PLS LOGISTICS SERVICES

JUDGMENT RENDERED: Fiul 0 8 2020

Appealed from the
Twenty -First Judicial District Court
In and for the Parish of Tangipahoa • State of Louisiana
Docket Number 2016- 407 • Division " E"

The Honorable Brenda B. Ricks, Judge Presiding

John C. Funderbunk ATTORNEYS FOR APPELLANT
Elisabeth Quinn Prescott DEFENDANT— Pittsburgh Logistics

Mallory McKnight Fuller Systems, Inc. d/ b/ a PLS Logistics
Baton Rouge, Louisiana Services

Benjamin J. Steinberg, pro hac vice
Kristine A. Grega, pro hac vice
Jeffrey P. Myers, pro hac vice
Warrendale, Pennsylvania

Glen R. Galbraith ATTORNEYS FOR APPELLEE
Kenneth LeVergene Ross PLAINTIFF— Ross and Wallace Paper
Hammond, Louisiana Products, Inc.

GUIDRY, MCCLENDON, WELCH, THERIOT, AND HOLDRIDGE, JJ.

R

WELCH, J.

In this breach of contract suit, the defendant, Pittsburgh Logistics Systems,

Inc. d/ b/ a PLS Logistics Services (" PLS"), appeals the trial court' s judgment

rendered in favor of the plaintiff, Ross and Wallace Paper Products, Inc. (" Ross

and Wallace"), following a bench trial on the merits. Based on the foregoing, we

affirm.

FACTUAL AND PROCEDURAL HISTORY

Ross and Wallace is a paper company that operates a factory in Hammond,

Louisiana, manufacturing paper products, including paper bags. Ross and Wallace

purchased a machine used to produce " four -pound" paper bags from Cougar Paper

Corporation in San Bernadino, California in July 2015. Ross and Wallace

contracted with PLS, a third party freight broker/logistics company, to ship its

newly purchased paper bag machine from California to Louisiana. Ross and

Wallace paid PLS for a " full truck" transport, i.e., an 18 -wheeler tractor -trailer

with no other cargo transported in the bed of the trailer with the paper bag

machine.'

PLS contracted with another company, Team Logistics, Inc., to ship the

paper bag machine to Louisiana. Prior to the shipment, the CEO of Ross and

Wallace, Kenneth Ross, and its maintenance manager, Kenneth Klingman, traveled

to California to personally inspect the paper bag machine, loaded it onto the bed of

the tractor -trailer, and secured it at the front of the bed of the trailer. When the 18 -

wheeler tractor -trailer transporting the paper bag machine arrived in Hammond, the

machine was unsecured, was at the rear of the bed of the trailer, and was present

along with other cargo. The machine had sustained visible damage in transit and

was no longer in working order. Ross and Wallace received a repair estimate

The terms " full truck" or " full load" or " designated load" or " designated truck" or " non -LTL
not less than truckload)" were used interchangeably throughout the trial to indicate a truck load
that is for the sole purpose of hauling only the freight of one customer.

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quote from Custom Machine Works, Inc. in the amount of $ 19, 000. 00 to

19, 500. 00, but elected to repair the machine in-house to reduce costs, for

16, 660. 00.

Thereafter, Ross and Wallace filed a petition for damages against PLS and

Team Logistics on February 11, 2016, alleging breach of contract and seeking

damages for labor and materials used to repair the damaged paper bag machine,

lost use of the machine during repairs, lost profits, and lost opportunities.

PLS answered the petition, asserting general denials, except admitting that

Ross and Wallace purchased a paper bag machine from Cougar Paper Corporation

in San Bernadino, California and that the paper bag machine suffered damage

during shipment. PLS denied, however, that a contract existed between it and Ross

and Wallace to ship the paper bag machine from California to Louisiana. PLS

further raised the affirmative defense that Ross and Wallace' s claims against PLS

were barred, in whole or in part, because the alleged damages were caused by the

act or omissions of a third party ( namely, Team Logistics) for whom PLS is not

liable.

Team Logistics failed to file an answer to the February 11, 2016 petition;

thereafter, Ross and Wallace moved for the entry of a preliminary default against

Team Logistics, which the trial court granted on May 17, 2016. Ross and Wallace

then moved to confirm the preliminary default against Team Logistics. The trial

court confirmed the preliminary default, entering judgment in favor of Ross and

Wallace and against Team Logistics, Inc. in the total amount of $ 36, 810. 00,

together with interest from the date of judicial demand ( February 11, 2016) and

costs, in a judgment signed on August 22, 2016.2

2 No party appealed from the August 22, 2016 confirmation of default judgment. A judgment of
default against one defendant, not appealed from, is held to be final. Green Tree Servicing,
LLC v. Edwards, 2017- 214 ( La. App. 5" Cir. 11/ 15/ 17), 232 So. 3d 688, 696. Accordingly, the
August 22, 2016 confirmation of default judgment resolved all of Ross and Wallace' s claims
against Team Logistics, who is no longer a party to this suit.

3

On October 4, 2018, the trial court held a bench trial on the merits of Ross

and Wallace' s claims against PLS. At the conclusion of the bench trial, the trial

court held the record open for fifteen days to allow the parties to submit written

closing arguments in the form of findings of fact and conclusions of law.

Thereafter, the trial court issued reasons for judgment on October 29, 2019. The

trial court rendered judgment in accordance therewith on November 26, 2018, in

favor of Ross and Wallace and against PLS, awarding Ross and Wallace

46, 660. 00 in damages, plus all costs of the proceedings. 3 PLS now suspensively

appeals the November 26, 2018 judgment.

LAW AND DISCUSSION

Assignment of Error 1: Federal Preemption of State Law Regarding Liability to
a Shipper for Losses Related to the Interstate Shipment of Goods; Conflicts of
Law

PLS argues that the trial court erroneously applied Louisiana State contract

law to Ross and Wallace' s claims against it, versus federal law governing a motor

carrier' s liability to a shipper for the loss of, or damage to, an interstate shipment

of goods. The issue of whether federal law preempts state law is a question of law

that must be reviewed de novo by this court. See Jackson v. City of New

Orleans, 2012- 2742 ( La. 1/ 28/ 14), 144 So. 3d 876, 882; Dahiya v. Talmidge Int' l

Ltd., 2005- 0514 ( La. App. 0 Cir. 5/ 26/ 06), 931 So. 2d 1163, 1167, writ denied,

2006- 1913 ( La. 12/ 8/ 06), 943 So. 2d 1088.

3 The November 26, 2018 judgment is a valid, final judgment that is subject to our appellate
jurisdiction. See La. C. C. P. art. 2083( A); Rose v. Twin River Development, LLC, 2017- 0319
La. App. 1St Cir. 11/ 1/ 17), 233 So. 3d 679, 683. The judgment is precise, definite, and certain.
See Laird v. St. Tammany Parish Safe Harbor, 2002- 0045, 2002- 0046 ( La. App. 1St Cir.
12/ 20/ 02), 836 So. 2d. 364, 365. The November 26, 2018 judgment contains decretal language
and names the party in favor of whom the ruling is ordered ( Ross and Wallace), the party against
whom the ruling is ordered ( PLS), and the relief that is granted or denied ($ 46, 660. 00 in
damages, plus costs). See DeVance v. Tucker, 2018- 1440 ( La. App. 1St Cir. 5/ 31/ 19), 278 So.
3d 380, 382. It is evident from the language of the November 26, 2018 judgment, without
reference to other documents in the record, that Ross and Wallace' s claims against PLS are
dismissed, as Ross and Wallace was awarded the damages that it sought in its petition. See

Advanced Leveling & Concrete Sols. v. Lathan Co., Inc., 2017- 1250 ( La. App. 1St Cir.
12/ 20/ 18), 268 So. 3d 1044, 1046.

M

The Interstate Commerce Act, 49 U.S. C. § 11706 et seq., contains several

provisions governing a motor carrier' s liability to a shipper for the loss of, or

damage to, an interstate shipment of goods. These provisions are commonly

referred to collectively as the Carmack Amendment, 49 U.S. C. § 14706 et seq. See

Grigg v. SAIA Motor Freight Line, Inc., 30, 293 ( La. App. 2nd Cir. 2/ 25/ 98), 709

So. 2d 896, 898. The Carmack Amendment established a uniform national liability

policy for interstate carriers. New York, New Haven & Hartford RR Co. v.

Nothnagle, 346 U.S. 128, 131, 73 S. Ct. 986, 988, 97 L. Ed. 1500 ( 1953).

The Carmack Amendment governs " motor carriers" and " freight

forwarders" and provides the exclusive cause of action for loss or damages to

goods arising from the interstate transportation of those goods by a common carrier

and preempts all state common law claims against such carrier and freight

forwarders. 49 U.S. C. § 14706( a)( 1) and ( 2). See also Hoskins v. Bekins Van

Lines, 343 F. 3d 769, 778 ( 5th Cir. 2003); Hughes Aircraft Co. v. N. Am. Van

Lines, Inc., 970 F. 2d 609, 613 ( 9th Cir. 1992).

However, the Carmack Amendment does not apply to " brokers." See

Chubb Grp. of Ins. Companies v. H.A. Transp. Sys., Inc., 243 F. Supp. 2d

1064, 1068- 69 ( C. D. Cal. 2002); Adelman v. Hub City Los Angeles Terminal,

Inc., 856 F. Supp. 1544, 1547- 48 ( N.D. Ala. 1994). Pursuant to 49 U.S. C. §

13102( 2):

The term " broker" means a person, other than a motor
carrier or an employee or agent of a motor carrier, that as
a principal or agent sells, offers for sale, negotiates for, or
holds itself out by solicitation, advertisement, or

otherwise as selling, providing, or arranging for,
transportation by motor carrier for compensation.

Consequently, courts have held that brokers may be held liable under state tort or

contract law in connection with shipments. See Chubb Grp. of Ins. Companies,

E

243 F. Supp. 2d at 1069, and Corbin v. Arkansas Best Corp., No. 2: 08CV00006

JLH (E.D. Ark. Mar. 16, 2009), 2009 WL 707407, at * 3 ( unpublished).

It is undisputed, and PLS has asserted throughout the record, that PLS was a

broker at all times pertinent to the instant matter. In its reasons for judgment, the

trial court held: " In this matter, PLS asserts that it was merely a broker, to which

this Court would agree. However, the further assertion that any claim in this Court

would be preempted by the Carmack Amendment would be contradicted by the
cases."
Like the trial court, we hold that the Carmack Amendment does not apply,

and PLS may be held liable under Louisiana State contract law for the claims

asserted against it by Ross and Wallace.

PLS further argues that the trial court failed to apply federal law to the facts

of this case pursuant to a conflicts of law analysis under La. C. C. art. 3515 et seq.

PLS contends that under a conflicts of law analysis, federal law ( i.e., the Carmack

Amendment) applies to the facts of this case instead of Louisiana state contract

law. This court reviews conflicts of law questions de novo. See Jackson, 144 So.

3d at 882; Wooley v. Lucksinger, 2006- 1140 ( La. App. 1St Cir. 12/ 30/ 08), 14 So.

3d 311, 358- 59, writsrte, 2009- 0586, 2009- 0585, 2009- 0584, 2009- 0571 ( La.

12/ 18/ 09), 23 So. 3d 951, 952, 953, affd in part, rev' d in part, 2009- 0571 ( La.

4/ 1/ 11), 61 So. 3d 507.

Louisiana' s Conflicts of Law provisions afford the balancing of competing

interests between states. The objective of those provisions is to identify the state

whose policies would be most seriously impaired if its laws were not applied to the

issue at hand. La. C. C. arts. 3515 and 3537; Champagne v. Ward, 2003- 3211

La. 1/ 19/ 05), 893 So. 2d 773, 786. The threshold question in determining the

application of La. C. C. art. 3515 et seq. is whether there is a true conflict, a false

conflict, or no conflict. See Champagne, 893 So. 2d at 786.

0

The supremacy clause of the United States Constitution governs federal

preemption of state law. See U.S. Const. art. VI, cl. 2; Baca v. Sabine River

Auth., 2018- 1046 ( La. App. 1St Cir. 12/ 27/ 18), 271 So. 3d 223, 229, writ denied,

2019- 0149 ( La. 3/ 18/ 19), 267 So. 3d 95. The Louisiana Code of Civil Procedure

governs the raising of affirmative defenses, including federal preemption. See La.

C. C. P. arts. 1003 and 1005. As noted by Ross and Wallace in their appellee brief,

Louisiana' s conflicts of law rules would apply to federal law if a Louisiana court

was deciding whether to apply United States law versus the law of a foreign

country. Accordingly, under our de novo review, we find that there is no true

conflicts of law issue and that the arguments raised by PLS on appeal encompass

federal preemption of state law. This assignment of error is without merit.

Assignments of Error Nos. 2 and 3: Is PLS solidarily liable with Team
Logistics? Was PLS' s Obligation Extinguished?

PLS argues that the trial court erred in finding it solidarily liable with Team

Logistics for the entirety of Ross and Wallace' s damages. PLS avers that there is

no evidence that PLS or Team Logistics ever intended that the obligation to

transport Ross and Wallace' s paper bag machine from California to Louisiana was

a solidary obligation. PLS contends that it was not responsible for the obligation

of Team Logistics regarding the actual shipment of the paper bag machine.

PLS further argues that its only obligation to Ross and Wallace was to

arrange a full truck shipment of the paper bag machine, while Team Logistics'

obligation to Ross and Wallace was to physically ship the paper bag machine in a

full truck transport. Thus, PLS contends that its obligation was separate from that

of Team Logistics. Upon awarding the Ross and Wallace shipment to Team

Logistics, PLS averred that it performed its obligation to Ross and Wallace, which

was extinguished by the substitution of Team Logistics as the contracting party

known as a promesse de portefort). See La. C. C. arts. 1786, 1787, and 1854.

7

Louisiana Civil Code article 1977 describes a promesse de portefort: " The

object of a contract may be that a third person will incur an obligation or render a

performance. The party who promised that obligation or performance is liable for

damages if the third person does not bind himself or does not perform." In a

promesse de porte fort, as long as the third party does not bind himself, the

original obligor is the only obligor; however, the moment the third party binds

itself or renders performance, the obligor is released from the underlying

obligation. See Revision Comments --1984( b) to La. C. C. art. 1977.

Conversely, La. C. C. art. 1821 pertinently provides that an obligor and a

third person may agree to an assumption by the latter of an obligation of the

former, and unless released, the obligor remains solidarily bound with the third

person. Crosstex Energy Servs., LP v. Texas Brine Co., LLC, 2018- 1213 ( La.

App. 1St Cir. 7/ 11/ 19), 2019 WL 3049762, at * 4 ( unpublished), writ denied, stay

denied, 2019- 01126 ( La. 7/ 17/ 19), 277 So. 3d 1180. Louisiana Civil Code article

1821 states:

An obligor and a third person may agree to an
assumption by the latter of an obligation of the former.
To be enforceable by the obligee against the third person,
the agreement must be made in writing.

The obligee' s consent to the agreement does not
effect a release of the obligor.

The unreleased obligor remains solidarily bound
with the third person.

Under La. C. C. art. 1821, an obligor and a third party can agree to the assumption

of an obligation; however, to be enforceable against the obligee, the agreement

must be made in writing. Failure to do so results in solidary liability as between

the obligor and the third party assignee. See La. C. C. art. 1821.

The object of the respective contracts is the key difference between La. C. C.

arts. 1977 and 1821. Under La. C. C. art. 1977, the third party incurs the

obligation, whereas La. C. C. art. 1821 contemplates that an obligor— owing an

existing obligation to the obligee— separately agrees with a third party that the

third party will assume the obligor' s obligation and render performance to the

obligee.

The application of La. C. C. arts. 1977 or 1821 to this case depends upon

whether the object of the contract between Ross and Wallace contemplated

performance of the object by a third party. The evidence indicates that Ross and

Wallace ( the obligee) entered into a contract with PLS ( the obligor). The contract

between Ross and Wallace and PLS was confected via email and telephone

conversations. The contract was for the shipment of a paper bag machine on a

full truck" or " full size designated truck" from San Bernadino, California to

Hammond, Louisiana. The parties agreed on a price of $2, 900. 00 and a shipment

date.

The evidence also indicates that PLS contracted with Team Logistics ( the

third party) to have Ross and Wallace' s paper bag machine shipped on a " full

truck" or " full size designated truck" from San Bernadino, California to Hammond,

Louisiana.'

The evidence further indicates that the contract between Ross and Wallace

and PLS was breached when the paper bag machine arrived in Hammond,

Louisiana, unsecured and damaged in the bed of an 18 -wheeler tractor -trailer,

along with other cargo.

At trial, the general manager of Ross and Wallace, Phyllis Love, testified

that PLS never informed Ross and Wallace that a party other than PLS was

shipping the paper bag machine. Love testified that while she understood that PLS

PLS sent Team Logistics a written award notification. The award notification included the
specifics of the Ross and Wallace shipment, including the location and origin of destination, the
times for pick-up and drop- off, the type of machinery to be used, the date that the award was
given, the rate for the payment, and that the load was a to be hauled on a full truck. PLS also
required Team Logistics to obtain a certificate of insurance to confirm that any cargo it hauled
would be insured, which Team Logistics provided.

01

was a broker and not a carrier, she had no knowledge of what carrier actually

shipped the paper bag machine until she received a claims form from PLS after the

damage to the machine occurred. Love further testified that PLS always billed

Ross and Wallace directly for the shipment of goods.

The evidence indicates that the object of the contract between Ross and

Wallace and PLS was for the shipment of the paper bag machine from California

to Louisiana via a " full load" truck. There is no evidence that the contract

contemplated performance of the object by a third party. Furthermore, Ross and

Wallace and PLS were the only parties involved in the contract negotiations, and

Ross and Wallace was not aware that Team Logistics would be shipping its paper

bag machine. Since the object of the contract did not contemplate shipment by a

third party, the contract is not a promesse de portefort as described in La. C. C. art.

1977. Even assuming arguendo that the contract was a promesse de portefort,

PLS would still be liable to Ross and Wallace for the damages to its paper bag

machine. In a promesse de portefort, the original promisor is not released from

the obligation if the third party does not perform as contracted. La. C. C. art. 1977.

Since Team Logistics did not provide Ross and Wallace with a dedicated " full

truck" as required by the original obligation, which resulted in damages to Ross

and Wallace' s paper bag machine, PLS is not released from its obligation and

would be liable to Ross and Wallace under La. C. C. art. 1977.

Thus, La. C. C. art. 1821 applies to the instant case. When PLS ( the obligor)

and Team Logistics ( the third party) entered into a contract to ship the paper bag

machine from California to Louisiana, Team Logistics assumed PLS' s obligation.

See La. C. C. art. 1821. The agreement between PLS ( the obligor) and Team

Logistics ( the third party) did not require Ross and Wallace' s ( the obligee) consent

10

or knowledge to be effective.' See La. C. C. art. 1821. However, PLS failed to

assign its obligation in such a way to release PLS from solidary liability with its

third party assignee, Team Logistics. While La. C. C. art. 1821 permits an obligor

and third party to agree to the assumption of an obligation by the third party, to be

enforceable against the obligee, the assumption must be in writing. Here, PLS and

Team Logistics did not reduce the assumption of the obligation to writing. The

failure to do so results in solidary liability between the original obligor and the

third party assignee. La. C. C. art. 1821.

Under Louisiana law, "[ a] n obligation is solidary for the obligors when each

obligor is liable for the whole performance. A performance rendered by one of the

solidary obligors relieves the others of liability toward the obligee." La. C. C. art.

1794. The Louisiana Supreme Court has held that a solidary obligation exists

when the obligors ( 1) are obliged to the same thing, ( 2) so that each may be

compelled for the whole, and ( 3) when payment by one exonerates the other from

liability toward the creditor. Bellard v. Am. Cent. Ins. Co., 2007- 1335 ( La.

4/ 18/ 08), 980 So. 2d 654, 663- 64. An obligee, at his choice, may demand the

whole performance from any of his solidary obligors, and a solidary obligor may

not request division of the debt. La. C. C. art. 1795. Among solidary obligors,

each is liable for his virile portion. If the solidary obligation arises from a contract

or quasi -contract, virile portions are equal in the absence of agreement or judgment

to the contrary; however, where the solidary obligation arises from an offense or

quasi -offense, a virile portion is proportionate to the fault of each obligor. A

5 First, Ross and Wallace stood to lose nothing because PLS was not released from its obligation
by Team Logistics' assumption thereof. Second, unless Ross and Wallace had an interest in
performance only by PLS ( which there is no evidence of in the record)— such as when the
obligation is strictly personal on the part of the obligor— under La. C. C. art. 1855, performance
may be rendered by a third party, even against the will of the obligee. See Saul Litvinoff and
Ronald J. Scalise, Jr., " Agreement entered into by the obligor," Law of Obligations § 10. 11, 5
LA. Civ. L. TREATISE ( 2d ed. Dec. 2019 Update). " Freedom of contract" signifies that parties to
an agreement have the right and power to construct their own bargains. It is not the province of
the courts to relieve a party from a bad bargain. See Sunrise Const. & Dev. Corp. v. Coast
Waterworks, Inc., 2000- 0303 ( La. App. 1St Cir. 6/ 22/ 01), 806 So. 2d 1, 5, writ denied, 2001-
2577 ( La. 1/ 11/ 02), 807 So. 2d 235.

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solidary obligor who has rendered the whole performance, though subrogated to

the right of the obligee, may claim from the other obligors no more than the virile

portion of each. La. C. C. art. 1804. See Giles v. Oak Lane Mem' 1 Park, LLC,

2019- 0357 ( La. App. 1St Cir. 11/ 15/ 19), 290 So. 3d 685, 689.

Because PLS and Team Logistics did not agree to Team Logistics'

assumption of PLS' s obligation to Ross and Wallace in writing, PLS is not

released from its obligation to Ross and Wallace and remains solidarily bound with

Team Logistics. See La. C. C. art. 1821. Accordingly, PLS and Team Logistics

could be liable for the whole performance. See La. C. C. art. 1794; Bellard, 980

So. 2d at 663- 64. Between PLS and Team Logistics, each is liable for its virile

portion, which in this instance, is an equal portion. See La. C. C. art. 1804.

Based on the foregoing, these assignments of error are without merit.

Assignment ofError No. 4: Damages

PLS contends that the trial court erred in awarding lost profit damages to

Ross and Wallace. PLS argues that there is no evidentiary support for the trial

court' s calculation of damages, which it alleges failed to account for the difference

in production between Ross and Wallace' s new paper bag machine versus its

existing machine.

Actual damages arising from a breach of contract must be proven; they

cannot be merely speculative or conjectural. It must appear reasonably certain that

the amount of damages rests upon a certain basis. Such proof need be only by a

preponderance of the evidence; proof by direct or circumstantial evidence is

sufficient to constitute a preponderance when, taking the evidence as a whole, such

proof shows that the facts or causation sought to be proved is more probable than

not. The sufficiency of proof of damages must be determined in relation to the

particular contract at issue and the circumstances surrounding its breach. The

question of the certainty of proof of damages becomes a matter for decision in each

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individual case. ODECO Oil & Gas Co. v. Nunez, 532 So. 2d 453, 458 ( La. App.

1St Cir. 1988), writ denied, 535 So. 2d 745 ( La. 1989) ( citing Hall v. Arkansas -

Louisiana Gas Company, 368 So. 2d 984, 991 ( La. 1979)).

Loss of profit is an item of damages recoverable for breach of contract. La.

C. C. art. 1934. The general rule is that while damages for loss of profits may not

be based on speculation and conjecture, such damages need be proven only within

a reasonable certainty. Broad latitude is given in the proving of lost profits as

damages. Landry v. Bourque, 460 So. 2d 33, 34 ( La. App. 1St Cir. 1984), writ

denied, 464 So. 2d 1378 ( La. 1985).

As a determination of fact, a judge' s or jury' s assessment of quantum, or the

appropriate amount of damages, is one entitled to great deference on review.

Because the discretion vested in the trier of fact is so great, and even vast, an

appellate court should rarely disturb an award on review. Menard v. Lafayette

Ins. Co., 2009- 1869 ( La. 3/ 16/ 10), 31 So. 3d 996, 1007.

The trial court awarded Ross and Wallace a total of $46, 660. 00 in damages.

In its reasons for judgment, the trial court held:

Ross and Wallace] asserts damages in the amount of
46, 660, including $ 16, 660 for the cost of repairs and
30, 000 in lost profits. The $ 16, 660 estimate was

provided by Mr. Klingman, the " in-house" repairman.

This estimate was stated to be the minimal estimate
needed to return the machine to working condition
without improvements. Phyllis Love, General Manager
of [Ross and Wallace], stated that profit margins for this
machine could range from $ 150 - $ 800 per day, with this
machine being on the higher end of that scale because it
was a three -color machine. [ Ross and Wallace]

additionally states that the machine would have been out
of service for 10 weeks, 6 weeks for parts and 4 weeks
for repairs. Five working days over 10 weeks is 50
working days that the machine was out of use. Using the
600 estimate that was provided, this figure would come
to $ 30, 000. This Court believes that the estimates

provided by [ Ross and Wallace] are reasonable, and

additionally, no evidence was submitted to contravene
Ross and Wallace' s] estimate, and therefore both the

13

estimate for repairs and estimate for lost profits will be
accepted.

Based on the documentary and testimonial evidence presented by Ross and

Wallace at trial, the trial court found that Ross and Wallace proved its actual

damages by a preponderance of the evidence and proved its lost profits within

reasonable certainty. See ODECO Oil & Gas Co., 532 So. 2d at 458; Landry,

460 So. 2d at 34. As stated by the trial court, PLS did not contravene Ross and

Wallace' s damage estimates for repairs and lost profits of the new paper bag

machine. Based on our extensive review of the record on appeal, we cannot say

the trial court abused its discretion in awarding Ross and Wallace $ 46, 660. 00 in

damages. Accordingly, this assignment of error is without merit.

DECREE

Based on the foregoing, the trial court' s November 26, 2018 judgment is

hereby affirmed. All costs of the proceedings in this court are assessed to

Pittsburgh Logistics Systems, Inc. d/b/ a PLS Logistics Services.

AFFIRMED.

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STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 0196

PITTSBURGH LOGISTICS SYSTEMS, INC. d/ b/ a PLS LOGISTICS SERVICES

VERSUS

ROSS AND WALLACE PAPER PRODUCTS, INC.

7

McCLENDON, J., DISSENTS.

I disagree with the majority's conclusion that the November 26, 2018 judgment is

final. The judgment grants relief to Ross & Wallace by rendering a money judgment in

favor of Ross and Wallace and against PLS. However, the judgment does not contain

appropriate decretal language dismissing PLS or Team Logistics, nor does it dismiss any

claim. Thus, it is unclear from the judgment whether the entirety of Ross & Wallace' s

case is disposed of or dismissed by the judgment, a determination which must be evident

from the language of the judgment without resort to pleadings filed or reference to other

documents in the record. Accardo v. Chenier Prop. Partners, LLC, 2010- 0825

La. App. 1 Cir. 10/ 29/ 10), 2010 WL 4272906 ( unpublished opinion). When it is impossible

to ascertain what parties or claims may have been dismissed by a judgment without

referring to and reviewing other judgments and pleadings in the record, the judgment is

not precise, definite, or certain. Joseph v. Ratcliff, 2010- 1342 ( La. App. 1 Cir. 3/ 25/ 11),

63 So. 3d 220, 224; See also Costanza v. Snap- On Tools, 2013- 0332 ( La. App. 1 Cir.

3/ 5/ 14), 2014 WL 886021 ( unpublished opinion) (" As no party is dismissed by the

judgment, it is unclear from the judgment whether the entirety of plaintiffs' case is

disposed of or dismissed by the judgment"). Therefore, the November 26, 2018 judgment

is not a final appealable judgment and I find that this court lacks subject matter

jurisdiction.

ROSS AND WALLACE PAPER NO. 2019 CA 0196

PRODUCTS, INC.

VERSUS COURT OF APPEAL

TEAM LOGISTICS, INC., AND FIRST CIRCUIT
PITTSBRUGH LOGISTICS
SYSTEMS INC. D/ B/ A PLS STATE OF LOUISIANA
LOGISTICS SERVICES

HOLD IDGE, J., dissenting.

c I respectfully dissent. This is a contract case and the terms of the contract

establishes the law between the parties according to the general rules of contract

interpretation. See La. C. C. arts. 2045- 2057; Waterworks District No. 1 of Desoto

Parish v. Louisiana Dep' t of Public Safety & Corrections, 2016- 0744 ( La. App. 1

Cir. 2/ 17/ 17), 214 So. 3d 1, 5, writ denied, 2017- 0470 ( La. 5/ 12/ 17), 219 So. 3d

1103. In this case, it appears from the evidence and the terms of the contract in

question that Ross and Wallace was contracting with Pittsburgh Logistics Systems

Inc. ( PLS) to act as a broker to find someone to transport a paper bag machine to

its Hammond plant. Even if this court finds that the terms of the contract in

question were not clear, we must attempt to determine the common intent of the

parties. See La. C. C. art. 2045; Miller v. Miller, 44, 163 ( La. App. 2 Cir. 1/ 14/ 09),

1 So. 3d 815, 817. Determination of the intent of the parties becomes, in part, a

question of fact. Eiche v. East Baton Rouge Parish School Board, 623 So. 2d 167,

170 ( La. App. 1 Cir. 1993), writ denied, 627 So. 2d 657 ( La. 1993).

The record reveals that Ross and Wallace only contracted with Pittsburgh

Logistics Systems, Inc. d/b/ a PLS Logistics Services ( PLS) as a broker to obtain

someone to transport its new paper bag machine to its plant in Hammond,

Louisiana. PLS did not agree to transport the machine and it is clear from the

record that Ross and Wallace knew, in fact, that it was not PLS that was

transporting the paper bag machine but it was, in fact, Team Logistics. While the

majority gives validity to the claim by the plaintiff that it did not know Team

Logistics was transporting the paper bag machine, the evidence clearly shows that

the CEO and maintenance manager went to California and personally loaded the

paper bag machine on the truck owned by Team Logistics. In its petition, the

plaintiff alleges it contracted with Team Logistics to transport the paper bag

machine to Louisiana. Furthermore, Ross and Wallace sued Team Logistics for

the damage to their paper bag machine in transit and obtained a final default

judgment against them. One can only presume that Ross and Wallace obtained a

final default judgment against Team Logistics because it is clear from the record

that the only party responsible for any damage to the paper bag machine in transit

was Team Logistics. PLS did not contractually assume any responsibility for any

damage that might occur in transit to the paper bag machine nor is there any

provision wherein PLS was required to insure the machine in transit. Clearly, all

parties to the contract knew that PLS was only a broker and not the transporter

because there is nothing in the record to show that Ross and Wallace did anything

other than contract with PLS to arrange shipment of the paper bag machine.

Similarly, there is no provision in the contract or in the record between the parties

wherein PLS agreed to be liable in solido with Team Logistics for any damage that

occurred to the paper bag machine in transit. Civil Code article 1796 states

s] olidarity of obligation shall not be presumed. A solidary obligation arises from

a clear expression of the parties' intent or from the law." There is no clear

expression of the parties' intent that a solidary obligation was created between PLS

and Team Logistics. Therefore, since the plaintiff has failed to offer any proof of a

contractual obligation of PLS to either be responsible for any damage to the paper

bag machine while in transit or that it was liable in solido with Team Logistics for

any damage, there is no legal basis for a judgment to be rendered against PLS and

the trial court' s judgment should be reversed.