Joseph Malmay v. Western Star Trucks

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-193

JOSEPH MALMAY

VERSUS

WESTERN STAR TRUCKS, ET AL.

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 54,762
HONORABLE ROBERT E. BURGESS, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Marc T. Amy, Judges.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH
INSTRUCTIONS.

Colvin G. Norwood, Jr.
McGlinchey Stafford, PLLC
643 Magazine Street
New Orleans, LA 70130
(504) 586-1200
COUNSEL FOR DEFENDANT/APPELLANT:
Western Star Truck Sales, Inc.

Charles D. Soileau
Soileau & Garcie, L.L.C.
730 San Antonio Avenue
Many, LA 71449
(318) 256-0076
COUNSEL FOR PLAINTIFF/APPELLEE:
Joseph Malmay

AMY, Judge.

A truck purchased for the plaintiff’s logging business suffered a number of

mechanical problems, eventually leading the plaintiff to file suit in redhibition. The

trial court found the presence of redhibitory defects, warranting a reduction in the

sales price. The trial court awarded $36,158.58 related to the reduced sales price and

$25,121.98 in attorney’s fees. The defendant appeals. For the following reasons, we

affirm in part, reverse in part and remand with instructions.

Factual and Procedural Background

The plaintiff, Joseph Malmay, purchased a 1996 heavy duty diesel truck from

Texarkana Truck Center, Inc. d/b/a Shreveport Truck Center (hereinafter Shreveport

Truck) in September 1996. The previously owned vehicle had approximately 13,000

miles on the odometer at the time of the purchase. Mr. Malmay purchased the truck

for $69,570.00 and began using it in his logging business.

Due to repeated breakdown, particularly those related to engine problems and

broken pistons, the truck was repeatedly returned to the Shreveport Truck for repairs.

These repairs were made under warranty. As outlined in the plaintiff’s brief, an

outline supported by evidence and testimony, the truck was repaired as follows:

[R]eplacement of the camshaft at 12,000 miles, the fuel injector pump
at 12,000 miles, head group/cylinders at 12,000 miles, the fuel injector
lines at 13,000 miles, the block and cylinder covers at 74,000 miles, the
fuel injection pump at 106,000 miles, the fuel injector valves and lines
at 130,000 miles, the crankshaft and main bearing at 131,000 miles,
another fuel injector pump at 131,000 miles, impeller at 141,000 miles,
a piston at 174,000 miles, the camshaft at 207,000, piston and rod rings
at 254,000 miles, camshaft at 343,000 miles, fuel injector pump at
350,000 miles, broken piston at 355,000 miles, engine oil leak at
356,000 miles, fuel injector pump at 355,000 miles, fuel injector pump,
various new gaskets seals, ring and cylinder liner at 368,000 miles[.]

According to Mr. Malmay, after the truck again experienced a broken piston

following the expiration of the warranty, in February 2001, he “parked” the truck

rather than pay for repairs himself.

The plaintiff filed the instant matter in January 2002 alleging redhibitory

defects. He sought rescission of the sale, or alternatively, damages related to the

alleged defects. Western Star Truck Sales, Inc. (hereinafter Western Star), the truck’s

manufacturer, was named as a defendant, as was Shreveport Truck Center, the truck’s

seller. In addition to the claim in redhibition, the petition contained a claim against

Shreveport Truck for negligent repair. Shreveport Truck filed a third party demand

against Caterpillar, Inc., the truck engine’s manufacturer. By joint motion of the

plaintiff and Shreveport Truck, the claim for negligent repair was dismissed in

February 2004. Furthermore, on February 20, 2004, on joint motion of the plaintiff

and Shreveport Truck, the trial court dismissed the entirety of the plaintiff’s claim

against Shreveport Truck due to what the parties termed “an amicable settlement[.]”

The plaintiff’s claims against the remaining parties were reserved. Due to

Caterpillar’s presence solely through Shreveport Truck’s third party demand, it too

was dismissed at the time of trial.

The matter against Western Star proceeded to a bench trial in August 2004.

The trial court found in favor of the plaintiff, finding that the evidence established the

presence of redhibitory defects. Damages in the amount of $36,168.58 plus interest

and attorney’s fees in the amount of $25,121.98 were awarded.

Western Star appeals, assigning the following as error:

1. The trial court erred in finding that plaintiff had proven that his
truck was redhibitorily defective when it left Western Star.

2. The trial court erred to the extent it may have awarded plaintiff
nonpecuniary damages.

3. The trial court erred to the extent it may have awarded plaintiff
damages for economic loss.

4. The trial court erred to the extent it awarded plaintiff any
reduction of his purchase price of the truck.

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5. The trial court erred in awarding plaintiff $36,168.58 as a
reduction of his purchase price of the truck.

6. The trial court erred in awarding plaintiff $25,121.98 in attorney’s
fees.

The plaintiff also requests attorney’s fees for work performed on appeal.

Discussion

Redhibition

In its first assignment of error, Western Star contends that the trial court erred

in finding that the plaintiff established the presence of redhibitory defects at the time

the vehicle left the Western Star facility. In particular, it points out that the truck was

purchased after having been previously used, that many of the complained of repairs

were made under Caterpillar’s warranty, and that the plaintiff used it for more than

five years and logged over 450,000 miles after its purchase. Western Star

acknowledges testimony indicating that the engine problems encountered were more

than would have been expected for this type of engine, but states that other testimony

indicated that there could have been other causes of the problem. In its brief to this

court, Western Star argues that: “[U]pholding the judgment would tacitly relieve a

plaintiff in redhibition from proving anything other than that a mechanical thing gave

mechanical problems throughout its life, and it would judicially extend a

manufacturer’s written warranty indefinitely.”

With regard to redhibition, La.Civ.Code art. 2520 indicates that:

The seller warrants the buyer against redhibitory defects, or vices,
in the thing sold.

A defect is redhibitory when it renders the thing useless, or its use
so inconvenient that it must be presumed that a buyer would not have
bought the thing had he known of the defect. The existence of such a
defect gives a buyer the right to obtain rescission of the sale.

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A defect is redhibitory also when, without rendering the thing
totally useless, it diminishes its usefulness or its value so that it must be
presumed that a buyer would still have bought it but for a lesser price.
The existence of such a defect limits the right of a buyer to a reduction
of the price.1

Furthermore, “[t]he warranty against redhibitory defects covers only defects that exist

at the time of delivery. The defect shall be presumed to have existed at the time of

delivery if it appears within three days from that time.” La.Civ.Code art. 2530.

Although not as extensive, the warranty of La.Civ.Code art. 2520 is applicable

to used as well as new things. Karageorge v. Cole, 565 So.2d 502 (La.App. 2 Cir.

1990). Used things must operate “reasonably well for a reasonable period of time.”

Id. at 508. See also Wagnon v. Hebert, 520 So.2d 1136 (La.App. 3 Cir. 1987).

A trial court’s determination as to the existence of a redhibitory defect is

factual in nature and will not be reversed absent manifest error. Ollis v. Miller,

39,087 (La.App. 2 Cir. 10/29/04), 886 So.2d 1199; Gaston v. Bobby Johnson Equip.

Co., 34,028 (La.App. 2 Cir. 11/3/00), 771 So.2d 848; Parker v. Dubus Engine Co.,

563 So.2d 355 (La.App. 3 Cir. 1990). Our review of the record reveals no manifest

error in the trial court’s finding of redhibitory defects.

Mr. Malmay explained that he purchased the Western Star truck for his logging

business and that it was delivered to the dealership for repeated repairs during the

500,000 mile warranty period. He explained that repeated piston scalding or

“galding” was the most serious of the truck’s engine problems. Each time the truck

required repair, it would be removed from service. Mr. Malmay confirmed that he

1
Louisiana Civil Code Article 2541 also provides that:

A buyer may choose to seek only reduction of the price even when the
redhibitory defect is such as to give him the right to obtain rescission of the sale.

In an action for rescission because of a redhibitory defect the court may limit
the remedy of the buyer to a reduction of the price.

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had driven “a lot” of logging trucks, but denied that he had encountered one with

similar piston failure.

Glen Kernagan, a service manager at Shreveport Truck Center until 2001, was

qualified as an expert in diesel mechanics. Mr. Kernagan testified regarding the

truck’s repair history and provided explanation as to a Caterpillar report that tracked

and reported a vehicle’s repairs under warranty.

Mr. Kernagan noted that the first repair reported was to a fuel injection valve

line in January 1996, when the truck had mileage of 13,601. Also in January 1996,

the truck underwent repairs to the camshaft assembly and the fuel injection pump.

Mr. Kernagan confirmed that these repairs were made early in the truck’s life and that

they relate to pressure inside of the cylinder that can cause damage to the pistons. He

continued review of the repairs, noting that an oil leak had been repaired at 74,279

miles and that the timing advance unit was replaced after breaking at 106,489 miles.

Mr. Kernagan confirmed that this latter problem could have affected the pistons.

Again, in September 1997, at 130,491 miles, an oil leak within the engine was

repaired. He confirmed this repair could have affected piston breakage. The next

work occurred at 131,000 miles when the rear crankshaft seal and the water pump

impeller were repaired. Mr. Kernagan testified that these repairs are not typically

required of a truck with similar mileage. He explained that the repairs incurred up to

that point were more than that which would be expected of a Caterpillar engine.

When the truck reached 174,899 miles, it sustained a broken piston. Mr.

Kernagan explained that broken pistons were not typical of a different model of

Caterpillar engines with similar mileage, but that “we saw quite a bit of it” in the type

of engine in Mr. Malmay’s truck. In July 1998, the truck was diagnosed with a faulty

camshaft, a problem directly related to the operation of the cylinder head. At that

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time, the truck had mileage of 207,341. The truck sustained a second piston failure

in January 1999 at 254,752 miles. The fuel pump and camshaft again required repair

at 343,125 miles. At 350,000 miles, o-rings on the fuel pump mounting began to

leak. A piston again broke at 355,000 miles. At 368,674 miles, a fuel injector pump

was replaced.

After the warranty expired, the truck again experienced a broken piston.

Although Mr. Kernagan no longer worked at Shreveport Truck at the time of the July

2001 breakdown, he examined the truck at Mr. Malmay’s request. He testified that

he did not recommend that Mr. Malmay change the pistons at his own expense as he

did not think that changing the pistons would solve the problem. Recalling his

conversation with Mr. Malmay, Mr. Kernagan testified:

[Mr. Malmay] had called me to go by and listen to it. I did. I
listened to the engine. He’s got a galded piston in it. He asked me
about overhauling. I told him I didn’t recommend it. He said why. I
said because this engine I’ve just seen repeated failures in this particular
- I don’t know how many of those engines was manufactured but there
weren’t a lot. It was just a stepping stone to get to the electronic engine.
Some people refused to go electronic and wanted to use the old
mechanical engine. I advised Joe to replace the engine was my advice
to him at that point. I’d priced an engine. To my knowledge today, a
8PN prefix is not available in a re-manufactured engine from Caterpillar.

When asked whether the list of repairs examined in court were “the types of things

that occur under normal use absent a defect[,]” Mr. Kernagan responded: “No sir.”

He also stated that the failure rate experienced by the truck was not an acceptable one

in the industry. Upon questioning by the trial court, Mr. Kernagan again explained

that he felt that this engine’s repair record was beyond that which would be common.

When asked by the trial court about the common failure rate among logging trucks,

Mr. Kernagan stated: “[I]t’s not uncommon to see an internal engine failure with an

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engine in 500,000 miles. And that’s why the coverage is, you know, we sell a five

year 500,000 mile coverage to cover the consumer.”

Similarly, Raymond Ezernack, an expert in diesel mechanics, testified that,

although he did not service the truck, he diagnosed it a number of times. The related

warranty work would then be performed at Shreveport Truck. Mr. Ezernack stated

that he would recommend replacement of the engine rather than an overhaul of the

engine as it was not “a lemon, it’s a bad lemon.” When asked about the life

expectancy of a diesel truck before an overhaul is required, he explained that “four

or 500,000 [miles] is nothing.” He testified that he had encountered trucks with well

over this type of mileage.

Western Star presented the testimony of Michael Thornton, a manager with

Caterpillar who acts as a liaison between the company and truck manufacturers, and

who also served as a “team leader” in the development of the vintage of engine at

issue. Although he testified that this series of engine was satisfactory in terms of the

general range of Caterpillar engines, he further acknowledged that he did not like to

see the repair history experienced by this truck.

Given the above testimony regarding the truck’s repeated failures, the trial

court was not manifestly erroneous in concluding that redhibitory defects existed and

that they existed from the time of the manufacture of the engine. The problems

commenced relatively early in the truck’s life and continued to occur. Testimony was

presented indicating that these problems were beyond those that would be expected

for diesel engines. Certainly, given the expected life of the truck’s engine, the trial

court did not err in concluding that problems commencing within 13,000 miles and

continuing thereafter indicated that the defects existed at the time of its manufacture

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and that recurrence after the plaintiff’s purchase was within a reasonable period of

time. See Wagnon, 520 So.2d 1136.

As for Western Star’s argument that the truck was improperly maintained or

abused, the trial court apparently discounted this defense. Mr. Malmay explained his

maintenance habits and denied that the truck was overworked or that it was operated

with low fluid levels. Furthermore, repair was never denied under the warranty due

to an allegation of misuse. Mr. Kernagan explained that warranty work is denied in

situations of abuse or poor maintenance. He denied that any repairs to Mr. Malmay’s

truck were refused due to maintenance issues and stated that there was nothing to

suggest that the truck was subjected to anything other than normal use. Additionally,

defense expert Michael Thornton explained that he could not conclude that neglect

or misuse caused the piston failure in the truck. Given the totality of this evidence,

the trial court was free to accept the version of events presented by the plaintiff and

discount the defense theory of abuse to the truck.

This assignment lacks merit.

Damages

Western Star next questions the trial court’s award of $36,168.58 to the

plaintiff. Although no written reasons identify the elements of the trial court’s lump

sum award, it is clear from the quantum awarded that the trial court found a reduction

in the sales price appropriate rather than a rescission of the sale. Western Star makes

alternative arguments as to what the award should not include. For example, it

contends that consideration of nonpecuniary damages would be inappropriate. It also

questions the sufficiency of the plaintiff’s evidence as to economic loss, arguing that

there was insufficient proof of such loss either to Mr. Malmay personally or to the

business.

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As seen above, La.Civ.Code art. 2541 provides for the reduction of the sales

price of an item with a redhibitory defect. This remedy permits the recovery of the

difference between the original sales price and the price that a reasonable buyer

would have paid if he or she had been made aware of the defects. Destefano v.

Crump, 96-951 (La.App. 5 Cir. 4/9/97), 694 So.2d 424, citing Capitol City Leasing

Corp. v. Hill, 404 So.2d 935 (La.1981). Factors to be considered in determining the

quantum to be awarded in price deduction cases “include the number of defects, the

frequency and length of attempted repairs of the defects, the inconvenience associated

with the repairs, the actual damage, if any, caused by the defects, the actual cost of

repairs and the curtailed use of the thing due to its defects.” Fly v. Allstar Ford

Lincoln Mercury, Inc., 95-1216, pp. 6-7 (La.App. 1 Cir. 8/21/96), 690 So.2d 759,

763. See also Rhodes v. All Star Ford, Inc., 599 So.2d 812 (La.App. 1 Cir. 1992).

A trial court’s determination as to the quantum of recovery is not to be modified on

appeal absent an abuse of discretion. Karageorge v. Cole, 565 So.2d 502 (La.App.

2 Cir. 1990).

We begin review of this portion of the defendant’s brief by again noting that

there is no indication that written reasons were requested of the trial court, nor are any

contained in the record.2 While Western Star approaches its arguments as if separate

damages were awarded, damages that would require the type of precision urged by

Western Star, our review indicates that the $36,168.58 is supported by the record as

2
At the close of the trial, the court observed that it did not feel that the evidence supported
rescission of the sale, but that the case was one for damages. The trial court stated:

I do think this is not a rescission case. It is a reduction case or it is a damage claim
and that’s the question. It is that component that I’m primarily looking at. I think
there are certain damages here that should be considered. I think the testimony
established by a preponderance of the evidence that there was a defect attributable
to Western Star trucks but not rising to the level of recision [sic] but rather a
compensation, be it reduction of price or damages, however that plays out.

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a reflection of the reduction in the $69,570.00 sales price. In light of the relatively

subjective factors enunciated in Fly, 690 So.2d 759, we find the quantum awarded by

the trial court supported by the record.

Rene Malmay, Mr. Malmay’s wife, was responsible for the bookkeeping of the

logging business. She explained that the $69,570.00 purchase price was financed and

that $29,822.42 was paid in interest. The record indicates that the truck experienced

numerous breakdowns as seen in the recitation of repairs. Although these repairs

were covered by the warranty, it cannot be said that these difficulties would have had

no effect on the sales price had the plaintiff known of them at the time of purchase.

Even prior to the final failure, each repair took the truck from service.

According to Ms. Malmay’s records and calculations, the truck was out of

service for as many as seventy-seven days before the final piston failure that caused

the plaintiff to “park” the truck. The calculation does not include days that otherwise

would have been lost through poor weather or the occurrence of holidays. Ms.

Malmay explained that the net daily profit from the truck was $340.00. This figure

reflects daily deductions of approximately $60.00 in fuel and $125.00 for the truck’s

driver. Had the trial court accepted this version of events, this factor, alone, could

have accounted for a sizeable portion of the trial court’s $36,000 award; perhaps even

the majority. Although Western Star points to other expenses that would have

arguably created less of a daily net profit, such as maintenance and insurance, the trial

court was able to consider this relatively minor type of expenditure in considering the

degree to which lost income would have factored into the price a reasonable buyer

would have paid for the truck had he or she known of the defects. We also point out

that the above figures related to lost profits during the existence of the warranty.

However, the truck was entirely removed from service after the final piston failure in

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November 2001. Certainly this ultimate loss of service, absent a costly repair, could

factor into a lesser sales price.

Further, as seen by reference to Fly, 690 So.2d at 763, “[a] principal element

in formulating the amount of the reduction in the purchase price is the cost of

repairs.” Most of the repairs were covered by the warranty. However, in January

1999, when the truck had a piston replaced, Mr. Malmay replaced the remaining

pistons as a precautionary measure on the advice of Mr. Kernagan. This replacement

was not covered by the warranty and cost $1,908.58. The trial court’s consideration

of this element can be seen in its $36,168.58 award. Testimony was also introduced

as to the cost associated with repairing the truck after the final piston failure in

November 2001. Mr. Kernagan opined that replacement with a new engine would be

the optimal method of repair. He explained that replacement would range from

$20,000.00 to $25,000.00, depending upon the model installed.3 Given these figures,

the trial court could have correctly included $26,908.58 for the costs of repairs in

calculating the award for the reduced sales.

Between evidence related to lost income from the truck being out of service

and testimony regarding costs of repairs needed, the $36,168.58 awarded by the trial

court is supported by the record.

This assignment of error lacks merit.

Party Sustaining Damages

Mr. Malmay, in his personal capacity, filed the petition in the instant matter

and the judgment was entered in his favor. Western Star contends that Mr. Malmay

failed to prove that he, personally, suffered damages related to the vehicle. Rather,

3
Even an overhaul of the engine, a method of repair Mr. Kernagan did not recommend,
would cost approximately $12,000.00. Whether the trial court found the relevant repair to be
replacement with a new engine or the overhaul to be necessary is not decided on review. Rather, the
record supports the consideration of as much as $25,000.00 regarding replacement costs of the
engine.

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Western Star contends that tax returns indicate that Mr. Malmay’s personal income

increased over the years and, furthermore, that income from the truck only benefitted

Mr. Malmay’s business, Joe Malmay Timber Harvesters, Inc. Thus, Western Star

contends that the judgment in the plaintiff’s favor must be reversed.

The record indicates that Mr. Malmay personally purchased the Western Star

truck and it remains in his name. Joe Malmay Timber Harvesters, Inc. did not come

into existence until well after the truck was purchased. Furthermore, the business is

an “S Corp.” wholly owned by Mr. Malmay and his wife. The record is clear that

income was lost due to the truck’s service record. This is true whether the income

would have been immediately realized by Mr. Malmay, as it would have after the

initial purchase, or would have been received by Mr. Malmay in his salary from the

corporation. We are not persuaded by Western Star’s assertion that lost income was

not proven as income tax returns indicate that Mr. Malmay’s income increased

through the years. Testimony was clear that, when the truck was out of service,

income was lost, whether through missed loads or through the use of a replacement

truck that could have been earning income elsewhere.

Again, we point out that we do not review this case as involving an actual

award for lost income. Rather, this lost income or “curtailed use of the thing” as

discussed in Fly, 690 So.2d at 763, is a factor considered in calculating the reduced

sales price of the truck. Mr. Malmay purchased the truck and retained title of the

truck in his name. Certainly, had a purchaser known from the outset that the truck’s

use would have been curtailed to such a degree, this could have been a significant

factor in determining the purchase price.

This argument lacks merit.

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Dismissal

Western Star contends that the trial court’s award of damages cannot include

a reduction in the sales price as the plaintiff’s pretrial settlement with the seller,

Shreveport Truck, extinguished any right in this regard. Western Star points to

jurisprudence indicating that sellers and manufacturers are treated as solidary

obligors. Western Star also references La.Civ.Code art. 18034 and contends that the

pretrial settlement with Shreveport Truck, “‘benefit[t]ed’ Western Star as a matter of

law, ‘in the amount of the portion of’ Shreveport Truck.” The plaintiff contends that

the merits of this argument are controlled, not by La.Civ.Code art. 1803, but by

La.Civ.Code art. 2531.

As the issue of liability between solidary obligors and any necessary reduction

in the amount of judgment was neither raised below nor addressed by the trial court,

we do not address the merits of the argument in this review. See Uniform Rules –

Courts of Appeal, Rule 1–3 (providing that “[t]he Courts of Appeal will review only

issues which were submitted to the trial court . . . .”).

This assignment lacks merit.

Attorney’s Fees

In its final assignment of error, Western Star questions the $25,121.98 awarded

in attorney’s fees.5 Western Star contends that the quantum awarded is excessive as

4
Louisiana Civil Code Article 1803, entitled “Remission of debt to or transaction or
compromise with one obligor,” provides:

Remission of debt by the obligee in favor of one obligor, or a transaction or
compromise between the obligee and one obligor, benefits the other solidary obligors
in the amount of the portion of that obligor.

Surrender to one solidary obligor of the instrument evidencing the obligation
gives rise to a presumption that the remission of debt was intended for the benefit of
all the solidary obligors.
5
As the defendant is the manufacturer, attorney’s fees are available in the present case
through operation of La.Civ.Code art. 2545, which provides:

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the judgment awarded only $36,168.58 on the merits of the claim. Western Star also

challenges the award procedurally, as it was not allowed to traverse the plaintiff’s

statement as to attorney’s fees at a hearing. A request for such a hearing was denied

and is contained in the record.

Without commenting on the appropriateness of the fee, we note that Western

Star’s objection to the billing records submitted by the plaintiff’s attorney was

brought to the trial court’s attention. However, a motion to set the matter for hearing

was denied. We conclude that this denial was an abuse of discretion given the

presence of multiple parties and Western Star’s desire to probe the reasonableness of

the entries. Accordingly, we reverse the award of attorney’s fees and remand this

matter for the trial court to set a hearing at which the parties’ respective arguments

regarding the fees can be heard. The trial court is then ordered to impose attorney’s

fees as the case requires.

Attorney’s Fees on Appeal

In its brief to this court, the plaintiff asks for additional attorney’s fees for work

performed on appeal. However, the plaintiff neither answered the appeal nor filed a

separate appeal. Accordingly, an award for additional attorney’s fees is

inappropriate. See La.Code Civ.P. art. 2133.

A seller who knows that the thing he sells has a defect but omits to declare
it, or a seller who declares that the thing has a quality that he knows it does not have,
is liable to the buyer for the return of the price with interest from the time it was paid,
for the reimbursement of the reasonable expenses occasioned by the sale and those
incurred for the preservation of the thing, and also for damages and reasonable
attorney fees. If the use made of the thing, or the fruits it might have yielded, were
of some value to the buyer, such a seller may be allowed credit for such use or fruits.

A seller is deemed to know that the thing he sells has a redhibitory defect
when he is a manufacturer of that thing.

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DECREE

For the foregoing reasons, the trial court’s award of $36,168.58 is affirmed.

That portion of the judgment awarding attorney’s fees is reversed and the matter is

remanded to the trial court for a hearing and imposition of attorney’s fees as

explained above. All costs of this proceeding are assessed to the appellant, Western

Star Truck Sales, Inc.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH
INSTRUCTIONS.

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