Darryrl C. Carroll, Sr. v. Select Motor Company, Inc.

NOT FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1308

DARRYRL C. CARROLL, SR.

VERSUS

SELECT MOTOR COMPANY, INC.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 230,598
HONORABLE HARRY F. RANDOW, PRESIDING
**********

SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, James T. Genovese, and David E. Chatelain*,
Judges.

AFFIRMED AND RENDERED.

Thomas D. Davenport, Jr.
Allen A. Krake
The Davenport Firm, APLC
1628 Metro Drive
Alexandria, LA 71301
(318) 445-9696
COUNSEL FOR PLAINTIFF/APPELLANT:
Darryrl C. Carroll, Sr.

*
Honorable David E. Chatelain participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

Eugene A. Ledet, Jr.
Dalrymple & Ledet, LLC
P.O. Box 14440
Alexandria, LA 71315
(318) 442-1818
COUNSEL FOR DEFENDANT/APPELLEE:
Select Motor Company, Inc.

COOKS, Judge.

This suit arises out of a dispute over the restoration of an antique pick-up truck.

In July of 2004, Darryrl Carroll, the owner of a 1954 GMC pick-up truck, engaged

Select Motor Company, Inc. to restore his truck. Mr. Carroll alleged he told Rance

Brown, a mechanic at Select, that he wanted to spend between $8,000.00 and

$10,000.00 in restoring the vehicle. According to Mr. Carroll, Mr. Brown responded

they could “work with that.” Select denies giving any estimate, stating, as a practice,

it does not give estimates because the amount of work required is too difficult to

determine until a vehicle is taken apart and the condition more accurately assessed.

No testimony from Mr. Brown is found in the record.

Mr. Carroll signed an authorization form, which allowed Select to charge his

credit card for work or parts needed for restoration of the vehicle. An escrow account

in the amount of $5,000.00 was also established. Correspondence between Select and

Mr. Carroll was generally accomplished by e-mail. This was done in large part

because Mr. Carroll was a production and exploration specialist employed by Royal

Dutch Shell, and was out of the country frequently for long periods of time.

Beginning in August of 2004, Select purchased parts, performed work on the

vehicle, periodically charged Mr. Carroll’s credit card, and sent him invoices.

However, in January of 2005, Mr. Carroll was e-mailed and informed a charge on his

credit card had been refused. Subsequently, Mr. Carroll wired funds or occasionally

sent checks to pay outstanding balances on his account.

On April 26, 2007, Select’s bookkeeper, Diane Francis, e-mailed Mr. Carroll

informing him his escrow account had been charged and he had a remaining balance

of $2,936.54. Select continued performing work and, on May 8, 2007, again e-mailed

Mr. Carroll informing him his escrow account had run out and he had an outstanding

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balance of $558.28. Two days later, on May 10, 2007, Mr. Carroll sent a check for

$5,000.00 to pay his outstanding balance and replenish his escrow account.

At this point in May of 2007, Mr. Carroll was current with Select and had a

positive balance in his escrow account. However, after a series of invoices went

unpaid, by June 15, 2007, Select informed Mr. Carroll he had an outstanding balance

of $10,518.69. A week later, on June 22, 2007, Genny Potette, a part-owner of

Select, e-mailed Mr. Carroll to inform him it would no longer work on his truck until

he paid down his balance. Mr. Carroll sent an e-mail to Select requesting an

accounting of how much money he had spent on the vehicle to date. Ms. Francis sent

Mr. Carroll that information on July 5, 2007.

On August 20, 2007, Select again sent a statement to Mr. Carroll delineating

the charges and requesting payment. On August 28, 2007, Select sent a letter by both

e-mail and regular mail to Mr. Carroll requesting payment and informing him if

payment was not received within ten days it would begin charging him $17.00 per

day in storage fees. Select received an e-mail from Mr. Carroll the next day,

informing it his mother was in ICU, and he would work on this in a few days.

On October 9, 2007, Mr. Carroll sent an e-mail to Ms. Francis expressing

concerns over the billing on the vehicle. Ms. Francis responded to the e-mail and,

after setting forth the invoices for work done, informed Mr. Carroll his balance was

now $11,019.22, which included accrued storage fees. No payment was ever made

by Mr. Carroll and the vehicle remained in storage.

On February 15, 2008, Mr. Carroll filed a petition for declaratory judgment and

injunctive relief, claiming that Select made “material misrepresentations and

suppressions of truth” regarding the restoration work on the truck. Mr. Carroll also

filed a petition to recover movable property and a writ of sequestration. The

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sequestration order was signed on February 15, 2008. Select filed an answer to the

petition for declaratory judgment and injunctive relief, and a reconventional demand

for an outstanding balance Select claimed was owed by Mr. Carroll.

Accompanying Select’s answer were interrogatories and discovery requests.

There was no response to the discovery requests. Select filed a motion to compel,

which was set for hearing on January 26, 2009. During the hearing, the judge was

notified the parties had reached an agreement. Mr. Carroll was given twenty-one

days, or until February 18, 2009 to respond to discovery, and agreed his failure to do

so would result in a dismissal of his claims. Mr. Carroll did not respond.

Select then filed a motion to dismiss on February 26, 2009. Counsel for Mr.

Carroll appeared and filed a motion to withdraw, even though the matter was set for

trial on April 1, 2009. The court denied the motion, at which time counsel for Mr.

Carroll informed the court of his intent to file an emergency writ. The court then

continued the hearing on the motion to dismiss until April 1, 2009, the date of the

trial on the merits.

The day prior to trial beginning, a motion to continue was filed by Mr. Carroll,

claiming he was on an oil rig in the South China Sea with limited communication.

The court again accommodated Mr. Carroll and rescheduled the trial to commemce

on April 28, 2009. Mr. Carroll was also ordered to respond to discovery by April 17,

2009.

When the parties appeared for trial on April 28, 2009, the trial court inquired

as to compliance with the discovery order and was informed no discovery responses

were sent. Counsel for Mr. Carroll explained his client did not return from overseas

until April 15, 2009, and “the first thing he did rather than see his lawyer was see his

children and his elderly mother who was in a hospital.” After both counsel were

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allowed to argue, the trial court dismissed Mr. Carroll’s claims against Select, for the

following reasons:

All right. I’m compelled to agree with [counsel for Select]. I’m
going to dismiss Mr. Carroll’s claim against Select Motors. Dismiss it
without prejudice and, I do that because I feel like to do otherwise
would be an injustice to Select Motors.

They have been here every time that the Court has been convened.
To the best of my knowledge, they have responded to discovery and
have done everything that they can to bring this matter to some
resolution. And while I understand that Mr. Carroll works in parts of
the world where communication is an issue, I don’t believe for a minute
that he is without communication totally.

And he has a responsibility to communicate with this attorney, he
had a responsibility to the law to respond to this discovery. And it just
would be unfair to Select to now be presented with discovery at this
time.

So for that reason the Court grants the motion to dismiss, and
dismisses his claim without prejudice.

After granting the dismissal, trial began on the reconventional demand filed by Select.

Following the presentation of evidence, the trial court found in favor of Select and

awarded it $10,518.89 on the open account claim. The court took under advisement

the issues of storage, attorney fees, and whether the sequestration was improvidently

issued. Oral reasons were rendered on May 26, 2009, awarding Select $1,000.00 in

damages and $500.00 in attorney fees as a result of the improvidently issued writ of

sequestration. The court further awarded attorney fees in the amount of $1,250.00 for

the prosecution and collection of the open account as provided by La.R.S. 9:2781.

Mr. Carroll has appealed, arguing the trial court erred in dismissing his suit and

in not allowing him leave to amend his answer to include affirmative defenses. Select

has answered the appeal, requesting additional attorney fees necessitated by

defending this appeal. Select also requests damages and attorney fees, contending

Mr. Carroll’s appeal is frivolous.

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ANALYSIS

I. Mr. Carroll’s Appeal.

Mr. Carroll argues on appeal the trial court erred in dismissing his suit and in

not allowing him leave to amend his answer to include affirmative defenses.

Louisiana Code of Civil Procedure article 1471 sets forth the sanctions available

against a party for failing to comply with discovery orders. This article provides in

pertinent part:

A. If a party . . . fails to obey an order to provide or permit
discovery, . . . the court in which the action is pending may make such
orders in regard to the failure as are just, and among others the
following:

....

(3) An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a judgment by default
against the disobedient party.

The trial court has much discretion in selecting the appropriate sanctions for

failure to comply with discovery orders, and a judgment granting a sanction will not

be disturbed on appeal absent a clear showing of abuse of discretion. Hutchinson v.

Westport Ins. Corp., 04-1592 (La. 11/8/04), 886 So.2d 438; Coleman v. Asplundh

Tree Expert Co., 01-1297 (La.App. 5 Cir. 3/26/02), 815 So.2d 268.

Louisiana Code of Civil Procedure article 1005 provides “[t]he answer shall

set forth any matter constituting an affirmative defense.” (Emphasis added.) The

decision whether to grant a defendant leave to amend an answer is within the sound

discretion of the trial court, and its ruling will not be disturbed on appeal except

where an abuse of discretion has occurred and indicates a possibility of resulting

injustice. Hogan v. State Farm Auto Ins. Co., 94-4 (La.App. 1 Cir. 12/22/94), 649

So.2d 45, writ denied, 95-215 (La. 3/17/95), 651 So.2d 276.

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Counsel for Mr. Carroll repeatedly references his client’s communication

difficulties due to his frequent trips overseas as justification for his failure to both

comply with discovery and assert his affirmative defenses in his answer. While we

accept Mr. Carroll’s representation that it was difficult to communicate, his attorney

was located in Louisiana. It is hard to believe with all the telecommunication

advances across the globe, Mr. Carroll and his counsel were so hampered that they

could not make any efforts to move his case along. His counsel also could have

obtained experts and deposed witnesses to prove Mr. Carroll’s belief that he was

overcharged by Select. The trial court, in our view, gave significant latitude to Mr.

Carroll and his attorneys in pursuing his claim. Mr. Carroll was originally compelled

to respond to discovery by February 18, 2009. That date was extended to March 27,

2009, then April 1, 2009, and finally to April 17, 2009. Further, when the parties

appeared in court on April 28, 2009 (which itself was a continued date at the request

of Mr. Carroll), counsel for Mr. Carroll acknowledged discovery responses still were

not complete. We find no abuse of discretion in the trial court’s dismissal of Mr.

Carroll’s claims and its refusal to grant leave to amend the answer after trial was set

and continued.

II. Select’s Answer to the Appeal.

Select answered Mr. Carroll’s appeal seeking additional attorney fees for work

necessitated by this appeal. After a review of the record and the work done on appeal

by counsel for Select, we find an additional award of $500.00 in attorney fees is

reasonable. We, therefore, will award Select an additional $500.00 in attorney fees

for successfully defending this appeal.

Select, in its answer, also requested damages and attorney fees for a frivolous

appeal. An appeal is not automatically deemed frivolous simply because it lacks

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merit. Louisiana Code of Civil Procedure article 2164 is penal in nature and must be

strictly construed. It provides that an appellate court may award damages for

frivolous appeal when there is no serious legal question, when the appeal is taken

solely for the purpose of delay, or when it is evident that appellant’s counsel does not

seriously believe in the position he advocates. Gallien v. Winn-Dixie, 96-832

(La.App. 3 Cir. 12/11/96), 685 So.2d 531. We do not find that the present matter

meets the requirements of a frivolous appeal, and, therefore, we decline to award

damages and attorney fees.

DECREE

For the above reasons, we amend the trial court judgment to reflect an

additional award of $500.00 in attorney fees in favor of Select for the work

necessitated by this appeal. In all other respects, the judgment is affirmed. Costs of

this appeal are assessed against appellant, Darryrl Carroll.

AFFIRMED AND RENDERED.

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