Brian Bordelon, Jr. v. Affordable Movers, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-429

BRIAN BORDELON, JR.

VERSUS

AFFORDABLE MOVERS, LLC, ET AL.

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2008-1577-B
HONORABLE WILLIAM J. BENNETT, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Marc T. Amy, Billy Howard Ezell, and James T. Genovese,
Judges.

AFFIRMED.

Jerold Edward Knoll
The Knoll Law Firm
P. O. Box 426
Marksville, La 71351
(318) 253-6200
Counsel for Plaintiff/Appellee:
Brian Bordelon, Jr.

Rodney Marchive Rabalais
P. O. Box 447
Marksville, LA 71351
(318) 253-4622
Counsel for Defendants/Appellants:
Affordable Movers, LLC
Brad Boring

EZELL, JUDGE.

Brad Boring and his company, Affordable Movers, LLC (Affordable Movers),

appeal a trial court judgment awarding Brian Bordelon, Jr. damages for the property

damage caused to his mobile home during its move. The Defendants claim that Mr.

Bordelon failed to carry his burden of proof as to causation and the extent of such

damages. They also allege that Mr. Bordelon should have been assessed a percentage

of the fault for failure to mitigate damages.

FACTS

Brian Bordelon bought a mobile home from a private seller. The home was

located in Odenberg, and he wanted to move the home to his property in Hamburg.

Mr. Bordelon hired Affordable Movers, LLC, owned by Brad Boring, to deactivate

the home in Odenberg, move it Hamburg, and reactivate it.

On December 20, 2007, Affordable Movers began the process of deactivating

the mobile home. The tongue of the trailer was found in the pasture and bolted onto

the chassis. Mr. Boring provided the wheels and axles. On the turn out of the

property and onto the road, the trailer got hung up on the road, so a truck had to pull

the trailer out.

Prior to reaching Hamburg, it began to rain. The decision was made to park the

mobile home and the truck towing it at Maddie’s One Stop, a truck stop in

Simmesport, until the weather improved. The mobile home was finally moved to

Hamburg on December 27. At the time it was raining. When the mobile home was

initially placed on the property, the front door was facing the levee in the back, and

the back door was facing the road. Mr. Bordelon requested that the front door face

the road, so Mr. Boring and his crew then proceeded to turn the mobile home around,

utilizing a translift. The lot was muddy from the rain. In the process, the tongue hit

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the ground, causing the mobile home to slide down the blocks and tilt over. At that

point, Mr. Boring told Mr. Bordelon he could find someone else to finish setting up

and leveling the mobile home.

Mr. Bordelon filed suit against Mr. Boring and Affordable Movers asking for

damages to the mobile home as well as general damages. The trial court awarded

$2,500.00 as damages for repair of the chassis, $20,000.00 for damages to the mobile

home, and $10,000.00 in general damages. Mr. Boring and Affordable appeal the

award of damages.

DAMAGES

Mitigation of Damages

Both of Defendants’ arguments center around Mr. Bordelon’s failure to level

the mobile home before determining the amount of damage. Therefore, we will first

address Defendants’ arguments that the trial court erred in finding that they were

required to plead failure to mitigate damages or comparative fault as an affirmative

defense. Alternatively, they claim that the pleadings were enlarged to include these

defenses.

“The law related to the duty of an injured party to mitigate the damages

presumes that further damage has occurred following the tort or breach of contract.”

Schroeder v. DiPascal Cabinet Co., Inc., 467 So.2d 1380, 1382 (La.App. 5 Cir.

1985).

In the present case, there was no testimony or evidence that there was further

damage to the mobile home because it was not leveled. The fact that it was not level

made it difficult to determine what problems with the mobile home would remain

after it was leveled. Therefore, we find that this is not a mitigation of damages or

comparative fault issue. The fact that the mobile home was not level when damages

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were estimated goes to the issue of the amount of damages incurred when the mobile

home was dropped.

Amount of Damages

The Defendants argue that Mr. Bordelon failed to prove his damages by a

preponderance of the evidence and that the damages awarded were excessive. They

argue that the witnesses he called to testify about the amount of damage to the mobile

home all testified that they could not determine, without leveling the mobile home,

the extent of the damages.

In discussing the issue of damages, the trial court stated:

The issue of damages is made somewhat difficult based on the
fact that Bordelon has never secured the services of any mobile home
mover and/or person whatsoever to block and level the mobile home.
Photographs introduced into evidence clearly indicate that there are
serious problems with the mobile home and/or damages in the nature of
cracks in the wall; holes in the wall; moved toilet; chassis damage;
damage to trim; ceiling damage; wall damage; window damage;
disconnected molding; door damage; as well [as] other damages. To
substantiate his claim of damages, Bordelon [introduced] the testimony
of Paul Juneau, George Mayeaux, and Eric Rusk.

....

This Court did perform a personal inspection of the mobile home.
The home remains in a tilted condition. To enter the home, the Court
had to remove cinder blocks holding the rear door shut; climb onto
remaining cinder blocks; hold on to each wall; and climb in. Upon entry
this Court was amazed at the condition of the home - - - it looked like
new. This home certainly has the potential to be a fine home. However,
this inspection did reveal the damages as shown in the photos and
testimony at trial. The question still remains as to whether or not some
of these damages would have been repaired upon proper leveling and
blocking of the mobile home. This, of course, should have been done
by Boring in fulfillment of contractual obligations.

When a person sustains property damage as result of the fault of another, he is

entitled to recover damages including cost of restoration that has been or may be

reasonably incurred or, at his election, he may recover the difference between the

value of the property before and after the damage. Roman Catholic Church of

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Archdiocese of New Orleans v. Louisiana Gas Serv. Co., 618 So.2d 874 (La.1993);

Frisby v. Mugnier, 06-2288 (La.App. 1 Cir. 9/14/07), 971 So.2d 1045, writ denied,

07-2021 (La. 12/7/07), 969 So.2d 638. However, if the costs of restoring the property

to its original condition is disproportionate to the value of the property or

economically wasteful, damages are measured only by the difference between the

value of the property before and after the damage, unless there is a personal reason

to the owner to restore the property to its original condition or there is reason to

believe that the plaintiff will, in fact, make the repairs. Id.

A trial court is given much discretion in the assessment of damages. Williams

v. City of Baton Rouge, 98-1981, 98-2024 (La. 4/13/99), 731 So.2d 240. Therefore,

the appellate court will only disturb the damage award when there has been a clear

abuse of discretion. Id.

Three witnesses testified concerning the damage to Mr. Bordelon’s mobile

home by way of deposition. George Mayeaux testified concerning the value and

condition of the mobile home when he appraised it in December 2007 for the purpose

of the loan to purchase the mobile home. He stated that the mobile home was in

perfect condition. At that time, he valued the mobile home at $30,000.00.

Paul Juneau, a welder, fabricator, and owner of Fab-Tec, offered testimony

concerning the chassis of the mobile home. Mr. Juneau explained that he has repaired

four or five chassis and had actually built one chassis. It was his opinion that the

chassis was bent and twisted so it would need to be replaced. He further testified that

the bent chassis may not interfere with mobility but could affect the leveling of the

mobile home. However, the mobile home would have to be leveled to find out. He

estimated $5,662.25 to replace the chassis and $2,500.00 to twist the bend out.

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Eric Rusk, a residential contractor who has done some repair work on mobile

homes, examined the home to determine the repairs that were necessary. He did agree

that it would be hard to tell what kind of repairs would be absolutely necessary until

the mobile home was leveled. Upon inspection, Mr. Rusk noted that most of the

inside molding was separated from the inside structure, the interior doors could not

be opened, there were four or five buckles in the floor, the kitchen grout was cracked,

and there were cracks in the ceiling. His estimate for materials and labor to repair

these problems, which included leveling the trailer and placing it on blocks, was

$20,036.82.

The trial court also performed a personal inspection of the mobile home. The

trial court’s observation of the damages to the mobile home were consistent with the

testimony and photographs introduced into evidence.

No evidence was offered by the Defendants as to whether any of the observed

defects would be corrected once the trailer was level. Given the testimony and

evidence, we cannot say the trial court abused its discretion in its award of damages.

For the above reasons, the judgment of the trial court is affirmed. Costs of this

appeal are assessed to Affordable Movers, LLC and Brad Boring.

AFFIRMED.

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