Louisiana Storage Manning, LLC v. Larry Bayonne D/B/A Bayonne's Fencing

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-384

LOUISIANA STORAGE MANNING, LLC

VERSUS

LARRY BAYONNE d/b/a BAYONNE’S FENCING

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCES, NO. C-92,232
HONORABLE LALA B. SYLVESTER, DISTRICT JUDGE

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CHARLES G. FITZGERALD
JUDGE

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Court composed of Candyce G. Perret, Jonathan W. Perry, and Charles G.
Fitzgerald, Judges.

AFFIRMED.

David L. White
3985 Airline Drive
Bossier City, Louisiana 71111
(318) 747-7023
Counsel for Plaintiff/Appellant:
Louisiana Storage Manning, LLC

William D. Dyess
Dyess Law Firm, LLC
Post Office Box 18
Natchitoches, Louisiana 71457
(318) 352-5880
Counsel for Defendant/Appellee:
Larry Bayonne d/b/a Bayonne’s Fencing

FITZGERALD, Judge.

In this appeal, we are asked to review the judgment in an action for breach of

contract.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Louisiana Storage Manning, LLC, negotiated with Defendant, Larry

Bayonne d/b/a Bayonne’s Fencing, to construct fences around three separate

storage-facility properties in Natchitoches, Louisiana. The properties are commonly

referred to as the “office” property, the “Blanchard” property, and the “skating rink”

property.

By all accounts, the parties agreed to use industrial fencing around the office

and Blanchard properties. It is unclear whether a similar agreement was reached for

the skating rink property, but that is of no consequence in this appeal.

Oversimplifying slightly, it is undisputed that the fence around the office

property was completed and paid in full; the fence around the Blanchard property

was partially completed and paid in full; and the fence around the skating rink

property was in the initial stages when payment issues arose and Bayonne’s Fencing

stopped its work.

Shortly thereafter, Plaintiff hired Alex Hanes to inspect Bayonne’s work and

finish the job. Alex initially concluded that Bayonne had improperly used residential

fencing rather than industrial fencing. Alex then removed and disposed of the

residential-fencing materials from the Blanchard and skating rink properties and

completed the fencing work on those two jobs. The office property fence remained

intact despite the allegation of substandard materials.

Ultimately, in October 2020, Plaintiff filed suit against Bayonne’s Fencing for

breach of contract. Plaintiff specifically sought the return of its payments for the

office and Blanchard fences, along with the costs of removing the residential-grade

materials.

A bench trial was held in January 2022. The matter was taken under

advisement. And on February 24, 2022, the trial court issued a final written

judgment denying Plaintiff’s claims. Plaintiff appealed.

On appeal, Plaintiff asserts three assignments of error:

1. The trial court erred in not accepting the expert opinion of Alex
Hanes that [Bayonne] used residential fencing as opposed to
industrial fencing.

2. The trial court erred in determining that Dedrick Ratliff was
credible. The trial court erred in finding that Bayonne used
industrial grade fencing for the appellant’s projects.

3. The trial court erred in ruling against appellant for appellant’s
failure to produce the physical fence used by [Bayonne].

LAW AND ANALYSIS

Findings of fact are reviewed on appeal using the manifest error-clearly

erroneous standard of review. Stobart v. State through Dep’t of Transp. & Dev., 617

So.2d 880 (La.1993). To reverse a trial court’s determination of fact under this

standard, an appellate court must review the record in its entirety and (1) find that a

reasonable factual basis does not exist for the finding, and (2) further determine that

the record establishes that the trial court is clearly wrong or manifestly erroneous.

Id. The appellate court must not reweigh the evidence or substitute its own factual

findings even if it would have decided the case differently. Id. And “where two

permissible views of the evidence exist, the factfinder’s choice between them cannot

be manifestly erroneous or clearly wrong.” Id. at 883.

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First and Second Assignments of Error

The dispositive issue at trial was whether Bayonne used industrial fencing or

residential fencing for the projects. To this end, the trial court was presented with

two contradictory opinions: one from an expert witness; the other from a lay witness.

Plaintiff asserts that the trial court erred in rejecting the expert opinion, that the trial

court erred in determining that the lay witness was credible, and that the trial court

erred in finding that Bayonne used industrial fencing. This is the essence of

Plaintiff’s first and second assignments of error. And we review these assignments

together in the discussion below.

At trial, Alex testified as Plaintiff’s expert. As noted previously, Alex was

hired by Plaintiff to inspect Bayonne’s work and finish installing the fencing. No

other experts were offered at trial by either party. Alex testified that after personal

inspection, he determined that the materials used by Bayonne were of residential

rather than industrial grade. In contrast, Bayonne’s ten-year employee Dedrick

Ratliff testified that he personally installed the fencing and that it was of industrial

grade. No other evidence was adduced to prove this fact.

As the trial court explained: “The only testimony that the fencing was not

industrial came from the plaintiff’s witness who actually charged the plaintiff to tear

it down and replace it.” In the end, the trial court chose to believe Dedrick’s

testimony.

In Louisiana, the assessment of expert testimony is within the fact finder’s

great discretion. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990). Even

uncontradicted expert testimony as to ultimate facts is not binding on the trial court.

Naquin v. Hile, 536 So.2d 676 (La.App. 3 Cir. 1988). “Although experts may aid

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the trial court in the determination of ultimate facts, the final conclusions drawn from

those facts belong exclusively to the trier of fact.” Id. at 679.

In its ruling, the trial court noted that Alex removed the materials installed by

Bayonne’s Fencing and replaced them with his own materials, and at no time during

the process was Bayonne notified of the problem or given an opportunity to remedy

the situation. The trial court then homed in on Alex’s disposal of the alleged inferior

materials. As the trial court put it:

Even though it would have been so simple to do, the plaintiff[]
brought no physical evidence of the fence that allegedly had to be torn
down, not even a photograph. They did bring samples to discuss, but
nothing from the actual fence installed by Bayonne Fencing. The only
testimony that the fencing was not industrial came from the plaintiff’s
witness who actually charged the plaintiff to tear it down and replace
it. It would have been so easy to have kept a piece of the fence that was
allegedly torn down and replaced.

....

Because there is no physical evidence of the fencing that was
installed by Bayonne Fencing, it becomes a credibility issue. The court
finds that the most credible witness was Dedrick Ratliff and finds that
Bayonne Fencing did in fact install industrial fencing and did the job
they were hired to do.

When findings of fact are based on evaluations of witness credibility, the

manifest error standard gives the trial court great deference. “[R]easonable

evaluations of credibility and reasonable inferences of fact should not be disturbed

upon review, even though the appellate court may feel that its own evaluations and

inferences are as reasonable.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Here, the trial court observed Alex and Dedrick as they testified under oath

and subject to cross examination. “[O]nly the fact finder can be aware of the

variations in demeanor and tone of voice that bear so heavily on the listener’s

understanding and belief in what is said.” Powell v. Craft, 48,004, p. 5 (La.App. 2

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Cir. 6/26/13), 117 So.3d. 298, 301. The trial court ultimately rejected Alex’s expert

opinion as to the type of fencing that had been used, choosing instead to believe

Dedrick’s testimony. And indeed, Dedrick’s lay opinion on this ultimate fact was

proper under La.Code Evid. arts. 701 and 704: it was based on his first-hand

knowledge, and it assisted the trial court in understanding the evidence.

After review of the record, we conclude that the trial court was presented with

two permissible views as to whether Bayonne had used industrial or residential

fencing. The trial court’s finding was therefore not manifestly erroneous. And

Plaintiff’s first and second assignments of error are without merit.

Third Assignment of Error

In its third assignment, Plaintiff asserts that “[t]he trial court erred in ruling

against appellant for appellant’s failure to produce the physical fence used by the

appellee.” This assignment misstates the record before us.

In its written reasons, the trial court pointed out the obvious: the subject

fencing (the real evidence) had not been produced or otherwise utilized by Plaintiff

at trial. As noted above, Alex testified that he removed the fencing materials used

by Bayonne and disposed of them. Thus, the trial court correctly noted that

“[b]ecause there is no physical evidence of the fencing that was installed by Bayonne

Fencing, it becomes a credibility issue.” And as between Alex and Dedrick, the trial

court found that Dedrick was the more credible witness. The trial court accepted

Dedrick’s testimony as the basis for its decision. And we again find no manifest

error in that determination. Consequently, this assignment of error also lacks merit.

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DISPOSITION

For the above reasons, we affirm the trial court’s judgment of February 24,

2022. The costs of this appeal are assessed to Plaintiff, Louisiana Storage Manning,

LLC.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Uniform Rules, Courts of Appeal, Rule 2-16.

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