Adonis Raphael v. Geraldine Elizabeth Rapheal

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

05-1403

ADONIS RAPHAEL, ET AL.

VERSUS

GERALDINE ELIZABETH RAPHAEL, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 00-73793, DIVISION “J”
HONORABLE KRISTIAN D. EARLES, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Michael G. Sullivan, Billy H. Ezell, and James T. Genovese,
Judges.

AFFIRMED.

R. Chadwick Edwards, Jr.
Edwards & Edwards
114 East Lafayette Street
Post Office Box 217
Abbeville, Louisiana 70511-0217
(337) 893-2884
COUNSEL FOR PLAINTIFFS/APPELLEES:
Adonis Raphael and Victor Raphael

Steven G. Durio
Robert L. Broussard
Durio, McGoffin, Stagg & Ackerman
220 Heymann Boulevard
Post Office Box 51308
Lafayette, Louisiana 70505-1308
(337) 233-0300
COUNSEL FOR DEFENDANT/APPELLANT:
Geraldine “Jerry” Raphael Caillier

GENOVESE, Judge.

Defendant appeals a jury award of $75,000 in favor of Plaintiffs for lost profits

stemming from the operation of a family funeral home business. Plaintiffs have

answered the appeal seeking an increase in the lost profit jury award and damages for

frivolous appeal. We affirm the jury award, deny Plaintiffs’ request for an increase

in the jury award, and deny Plaintiffs’ request for damages for frivolous appeal.

FACTS

Plaintiffs, Adonis Raphael (Adonis) and Victor Raphael (Victor), and

Defendant, Geraldine “Jerry” Raphael Caillier (Jerry), are siblings. Their parents,

Henry Raphael and Sylvania Raphael, now deceased, were the owners of three

funeral homes in Louisiana–one in Lafayette, another in Jennings, and a funeral

chapel in Abbeville. These businesses were included in the assets of the estates of

Henry and Sylvania Raphael along with the family home and various tracts of land.

Henry and Sylvania Raphael also had a daughter, Emma Taylor (Emma), who

predeceased them.

Following the deaths of their parents, on January 6, 2000, Adonis and Victor

filed suit against Jerry and Emma’s five children for a partition of the estate assets

and for an accounting.

The parties submitted the matter to mediation on May 8, 2000. As a result

thereof, they executed a written compromise agreement whereby Jerry agreed to

transfer all of her ownership interest in the funeral home business, the business’ real

estate, inventory, and other assets, to Adonis and Victor. In return, Jerry was to

receive from Adonis and Victor their respective interests in four tracts of land and a

payment from them of $180,000. The written compromise agreement provided for

a closing on the final documents within ninety days of May 8, 2000, subject to one

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thirty-day extension to September 5, 2000.

Adonis and Victor exercised the thirty-day extension option. Disagreements

arose concerning two of the tracts of land that Jerry was to receive; consequently, the

documents translative of title required to effectuate the compromise agreement were

not executed by the September 5, 2000 deadline.

On September 11, 2000, Adonis and Victor filed a motion to enforce the

compromise agreement. At a prehearing conference, the parties agreed to resubmit

the matter to mediation. However, on January 16, 2002, after efforts toward a second

mediation failed, Adonis and Victor filed a first supplemental and amending petition,

requesting that the mediation agreement be enforced and asserting that they incurred

damages due to Jerry’s delay in completing the transfers necessary to effectuate the

compromise agreement.

On March 19, 2001, the trial court heard the motion to enforce the compromise

agreement, but not the remaining issues of liability and damages due to Jerry’s delay,

as raised by Plaintiffs’ supplemental and amending petition. The trial court granted

the motion and ordered the parties to sign the documents necessary to transfer their

ownership interests in the assets of their parents’ estates within ten days of the date

of the hearing. Jerry then filed a peremptory exception of res judicata asserting that

the trial court’s judgment enforcing the mediation agreement effected a complete

resolution of the matter. The trial court granted the exception and dismissed the

remaining causes of action asserted by Adonis and Victor against Jerry. Adonis and

Victor appealed the trial court’s grant of the exception of res judicata, and this court

reversed the trial court judgment and remanded the matter for further proceedings.

Raphael v. Raphael, 01-1564 (La.App. 3 Cir. 5/8/02), 817 So.2d 462.

On April 5, 2001, the parties executed the partition and equalization agreement

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whereby the transfer of ownership interest was accomplished, and Plaintiffs took over

the operations of funeral home business from Jerry who had been exclusively

operating same since September 1, 2000.

On May 9, 2005, the remaining issues of liability and damages due to Jerry’s

delay proceeded to trial by jury. The jury found that: (1) Jerry was liable for

breaching her obligation to sign the partition and deliver possession of the business

to Adonis and Victor; (2) Jerry’s failure to deliver possession of the business in

September of 2000 denied Adonis and Victor the ability to earn revenue; and (3)

Jerry’s failure to deliver possession of the business diminished Adonis and Victor’s

ability to conduct business or interfered with their ability to market their business or

solicit clientele. The jury awarded damages of $75,000 in lost profits in favor of

Adonis and Victor.

Jerry appealed the damage award as being excessive. Adonis and Victor

answered the appeal, seeking an increase in the lost profits jury award and seeking

damages for frivolous appeal. It is to be noted that Appellant, in her appellate brief,

does not contest the jury’s finding of liability. The only issue before this court is

damages. For the following reasons, we affirm the jury award and deny Adonis and

Victor’s request for an increase in said award. We also deny damages for frivolous

appeal.

ISSUES

The issues presented for our review are: (1) whether there was manifest error

by the jury in awarding Plaintiffs lost profits of $75,000; (2) whether Plaintiffs are

entitled to an increase in the jury award; and (3) whether Plaintiffs are entitled to

damages for frivolous appeal.

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LAW AND ARGUMENT

Standard of Review

The standard of review for findings of the trial court has been
clearly established in this circuit. A court of appeal may not set aside a
judge’s factual finding unless that finding was manifestly erroneous or
clearly wrong. Stobart v. State, through Dep't Of Transp. & Dev., 617
So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly
wrong,’ the jury or trial court’s findings of fact may not be disturbed on
appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111
(La.1990). “If the trial court or jury’s findings are reasonable in light of
the record reviewed in its entirety, the court of appeal may not reverse,
even though convinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently.” Id. at 1112.
Furthermore, when reviewing questions of law, appellate courts are to
determine if the trial court’s ruling was legally correct or not. Cleland
v. City of Lake Charles, 02-805 (La.App. 3 Cir. 3/5/03), 840 So.2d 686,
writ denied, 03-1380, 03-1385 (La.9/19/03), 853 So.2d 644.

Bertini v. Scaife, 04-1229, pp. 2-3 (La.App. 3 Cir. 2/16/05), 895 So.2d 619, 621-22.

Lost Profits

Jerry contends that the jury’s award of lost profits is excessive and not

supported by the evidence in the record. Conversely, Adonis and Victor seek an

increase in the lost profits awarded to them. In addressing this issue, we are guided

by La.Civ.Code art. 1995 which provides that “[d]amages are measured by the loss

sustained by the obligee and the profit of which he has been deprived.”

In the present case, Plaintiffs and Defendant dispute the manner in which lost

profits are to be calculated. Jerry contends that the appropriate measure of lost profits

is “net profits” or “net loss” which she defines as “the amount of money remaining

or loss incurred after all costs, depreciation, interest, taxes, and other expenses have

been deducted from a business’ total revenues.” Stated differently, Jerry equates “net

profits” with “lost profits.” We disagree.

“[L]ost profits are calculated by deducting the expenses that would have been

incurred if the parties had complied with the contract from the gross revenues that

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would have been derived from the contract.” Rosbottom v. Office Lounge, Inc.,

94-894, p. 2 (La.App. 3 Cir. 4/5/95); 654 So.2d 377, 378. Additionally, “[t]he

jurisprudence is clear that fixed costs are not to be deducted from gross revenues in

determining an award for lost profits. Id. at 379 (citing White v. Rimmmer & Garrett,

Inc., 360 So.2d 914 (La.App. 3 Cir. 1978). Finally, while the lost profit award may

not be based upon speculation and conjecture, “the absence of independent,

corroborating evidence may not be fatal to the plaintiff’s burden of proof.” J.B.

Talley & Co., Inc. v. Vilaret Const. Servs., Inc., 98-395, p. 11 (La.App. 3 Cir.

10/7/98), 722 So.2d 9, 14, writ denied, 99-374 (La. 3/26/99), 739 So.2d 798.

In support of her assertion that the award of $75,000 is excessive, Jerry focuses

her analysis on the loss of profits from September 2000 to April 2001, which

comprised the seven-month delay in carrying out the compromise agreement. Jerry

argues that “[e]ssentially, [Adonis and Victor] wholly failed to prove to a reasonable

certainty that they would have performed even one more funeral than [Jerry] did

during this seven-month period.” However, the determination of lost profits is not

limited solely to the seven-month delay period. Rather, if proven, Adonis and Victor

are entitled to profits which were lost after the transfers were accomplished due to

Jerry’s delay.

We find that the record contains ample evidence for the jury to have reasonably

concluded that the loss of profits sustained by Adonis and Victor extended beyond

the day the transfer of ownership interest was accomplished. Although the lost profits

sustained during these seven months may be more readily determinable, “[i]n cases

where direct evidence is not available to establish the exact extent of loss caused by

a breach of contract, resort to customary or forseeable profit as a measure of damage

is proper.” Wasco, Inc. v. Econ. Dev. Unit, Inc., 461 So.2d 1055, 1057 (La.App. 4

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Cir. 1984), writ denied, 465 So.2d 738 (La. 1985) (citing Folds v. Red Arrow Towbar

Sales Co., 378 So.2d 1054 (La.App. 2 Cir. 1979); Al Smith's Plumbing & Heating

Service, Inc. v. River Crest, Inc., 365 So.2d 1122 (La.App. 4 Cir. 1978)). Thus, the

$75,000 jury award for lost profits must be viewed considering both the seven-month

period of delay, as well as lost profits sustained thereafter, to the extent that they were

established by credible evidence.

Jerry contends on appeal that the documentary evidence introduced at trial,

including Plaintiffs’ tax returns, refutes Plaintiffs’ claim for lost profits. She argues

that the tax return for 2001, which encompassed nine months of operations from April

5, 2001 through December 31, 2001, revealed a loss of $19,162. Jerry also argues

that the 2002 tax return only showed a profit of $1,793; and, therefore, she contends

that the business was not profitable. She concludes that Adonis and Victor failed to

prove that any profits were actually lost due to her delay in transferring the business.

To support her contention that the funeral homes were not profitable, Jerry

hired Jeanne Billeaud, a certified public accountant, to examine the business records

and to perform a lost profit analysis. In her own words, Ms. Billeaud “was retained

to quantify the amount of lost profits or the profits that the Raphael brothers might

have earned during the . . . seven-month period that the closing or sale of the business

was delayed.” Notably, her testimony at trial was expressly limited to her opinion of

the profits, if any, which were lost by Adonis and Victor during this seven-month

time period, and she was not able to give an opinion of what lost profits there may

have been after the transfer of ownership interest occurred. Ms. Billeaud testified that

the business “broke even” during said seven-month period and that there were no lost

profits during that time period.

The record reveals conflicting evidence on the customary profit margin in the

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funeral home business. Adonis and Victor both testified that it is standard in the

funeral home business to earn a 65% to 70% net profit. Dr. James Caillier, Jerry

Caillier’s husband, who has been a licensed funeral director since 1970, testified that

the national average net-profit percentage earned in the industry is only between 13%

and 16%. Russell Frederick, the general manager of another funeral home located in

Abbeville, testified that a 13% net profit is indicative of a successful funeral home

business. Given the evidence presented, the jury was free to accept or reject either

estimation in order to reach its ultimate conclusion regarding lost profits.

The jury also heard specific information on the earnings of the Raphael

family’s funeral home facilities from Adonis and Victor. Adonis and Victor were

consistent in their testimony that the average cost of a funeral was between $4,000

and $5,000. They further testified that the profit which they made, after deducting

professional services and the cost of the casket, averaged between $2,000 and $2,500.

This testimony was unrefuted.

Neither party disputes that from May 2001 to December 2001 approximately

thirty-four funerals were performed at the Raphael’s funeral home facilities. This

figure is based upon documented evidence reflected in the funeral home embalming

records which the State of Louisiana requires all funeral homes to maintain. This

figure, considered along with the profit margin testified to by Adonis and Victor,

provides a reasonable factual basis for the jury’s determination of lost profits in the

amount of $75,000. The jury was also able to consider the foreseeable profits which

may have been lost even after the transfer was effectuated.

Although Jerry attempted to convince the jury that the business was not

profitable by the introduction of the tax returns, the jury was presented with evidence

that once Adonis and Victor took over the funeral home operations, there was an

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increase in the number of funerals handled by them and that their income and profits

increased. The tax returns documented that their taxable profit of $1,793 in 2002 had

increased to $24,000 by 2003. When considering the loss of profits extending after

April 2001, the jury was presented with evidence that Adonis and Victor were able

to increase profits from a loss of $19,000 to a profit of $24,000 in less than three

years of their taking over operations. Additionally, Adonis testified that had there not

been the seven-month delay in transferring the business, that it was reasonable to

assume that he and Victor would have had sixty funerals in 2001, as they did in 2002.

Considering the evidence presented, it was within the jury’s discretion, as the

finder of fact, to determine that Jerry’s delay in transferring the business resulted in

a loss of profits during that seven-month period and adversely affected the profits of

the business for a certain period of time thereafter.

For the foregoing reasons, we find that the jury award is not manifestly

erroneous or clearly wrong. Therefore, we affirm the jury award of $75,000 in lost

profits.

Answer to Appeal

In their answer to appeal, Adonis and Victor seek an increase in the award of

lost profits. For the reasons set forth above, we find that the jury’s award of $75,000

is not manifestly erroneous or clearly wrong and the evidence does not support an

increase in said award.

Adonis and Victor also seek damages for frivolous appeal. Louisiana Code of

Civil Procedure Article 2164 provides the authority for an appellate court to award

damages for the filing of a frivolous appeal. This court recently discussed Article

2164, stating as follows:

Louisiana Code of Civil Procedure Article 2164 provides for an
award of damages for frivolous appeal. If the court feels that counsel
for the appellant does not seriously advocate the position taken or that

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the appeal was filed solely for dilatory purposes, then damages for
frivolous appeal are appropriate. Gallien v. Winn-Dixie, 96-832
(La.App. 3 Cir. 12/11/96), 685 So.2d 531 (citing Hampton v. Greenfield,
618 So.2d 859 (La.1993)); Doe v. Roman Catholic Church, 94-1476
(La.App. 3 Cir. 5/3/95), 656 So.2d 5, writ denied, 95-2076
(La.11/13/95), 662 So.2d 478. However, if even the slightest
justification is found for the appeal, and even if the appellant does not
prevail on appeal, damages will not be awarded. Hawkins v. City of
Jennings, 97-1291 (La.App. 3 Cir. 3/6/98), 709 So.2d 292.

Moraus v. Frederick, 05-429, pp. 9-10 (La.App. 3 Cir. 11/2/05), 916 So.2d 474, 481-

82. The Louisiana Supreme Court has instructed appellate courts to award damages

under La.Code Civ.P. art. 2164 only when an appeal is taken for purposes of delay

or an appellate counsel is not sincere in the belief of the view he or she advances on

appeal. Hampton v. Greenfield, 618 So.2d 859 (La.1993).

Although we do affirm the jury award of $75,000 in lost profits in favor of

Adonis and Victor, we find that the evidence in the record of these proceedings does

not warrant an award of damages for frivolous appeal. Accordingly, we deny Adonis

and Victor’s request for damages for frivolous appeal pursuant to La.Code Civ.P. art.

2164.

DECREE

For the reasons set forth above, we affirm the jury award of $75,000 in lost

profits in favor of Adonis Raphael and Victor Raphael against Geraldine “Jerry”

Raphael Caillier. Additionally, we deny Plaintiffs’ claims for an increase in the jury

award and for damages pursuant to La.Code Civ.P. art. 2164 for the filing of a

frivolous appeal.

Costs of this appeal are assessed against the Defendant, Geraldine “Jerry”

Raphael Caillier.

AFFIRMED.

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