Henry J. Richard VS Joyce Breaux McElroy and Carolyn Breaux

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 1657 HENRY 7 RICHARD VERSUS JOYCE BREAUX McELROY AND CAROLYN BREAUX V 7udgment Rendered EC j 0 4 2013 On Appeal from the Thirty Judicial District Court Second In and for the Parish of Terrebonne State of Louisiana No 147 922 Honorable George J Larke Jr Judge Presiding J2rry L Hermann Houma Louisiana Counsel for Plaintiff Appellant Henry J Richard and John H Carmouche Donald T Carmouche Baton Rouge Louisiana Robert B Butler III Rouge Louisiana Counsel for Defendants Appellees Baton Joyce Breaux McElroy and Carolyn Breaux Jack R Ricci New Orleans Louisiana John I Goodwin Dalias Texas and Counsel for Defendants Appellants Third Parly Cefendants Appellants kppeliees Bill Boyci Faith Boudreaux Houma s Town County Real Estate Inc Counsel for llefendant Party Third Appellee DefendantjAppeliant Continenta Casualty Company Glenn G Good er Ne Orieans Louisiana BEFORE McDONALD McAND HIGGINBOTHAM JJ d 3 iEND l a S CA C MCCLENDON J This appeal involves the continuing dispute over a backup purchase agreement for the sale of an approximately 13 tract of land in Gray acre 7 Louisiana The current judgment appealed from awarded attorney fees interest and costs to two of the parties For the reasons that follow we amend and affirm as amended the judgment of the trial court FACTUAL AND PROCEDURAL BACKGROUND This litigation began when Henry J Richard filed suit for damages and for specific performance of his agreement to purchase property owned by Joyce Breaux McElroy and Carolyn Breaux seilers sellers the listing real Named as defendants were the s estate agency Houma Town Country Real Estate Inc Country its insurer Continental Casualty Company Continental the Town real estate agency owner and broker Bill G Boyd the listing agent for the s property Faith Boudreaux the buyer of the property West Park Partners L P West Park and Harold and Verlyn Foley who held a purchase agreement dated prior to Mr Richard s After Mr Richard filed suit various incidental demands were filed The sellers filed a reconventional demand against Mr Richard and a third party demand against Town Country Mr Boyd and Ms Boudreaux realtors Noward Trahan Beverly Marcel and their chiidren Seth Joseph Trahan and Keith John Boudreaux intervenors filed an intervention against Mr Richard the sellers and the realtors claiming damages from a cancelled closing on a house that was located on the sellers property On the third day of the trial on the merits of the specific performance claim and after plaintiff rested his case the realtors moved for an involuntary dismissal of Mr Richard sclaims The sellers also moved for dismissal as did the Foleys and West Park In oral reasons for granting the motions the trial court found that there was no meeting of the minds between Mr Richard and the sellers primarily because 1 the parties used a form entitled apurchase Land agreement 2 the price was not clear in the Richards purchase sellers 2 agreement 3 the good faith deposit chec ad not technically been received because Town Country had iot deposited the check in its escrow account and 4 the inclusion in the counteroffer by the sellers of the date of January 31 2006 was not a ciear deadline for the Foley agreement and did not act as a waiver of the sellers discretion to grant the Foleys extensions after that date The trial court also found that Mr Richard had not offered proof that the house was an immovable rather than a movable and therefore the house was not a component part of the land and was not included in the purchase agreement By judgment dated March 14 2007 the trial court held that the agreement to purchase between Mr Richard and the sellers was unenforceable that Mr Richard had no right of ownership ir the property and that the notice of lis pendens was invalid The judgment cancelled the notice in the public record and dismissed the claim far specific performance as well as all claims for damages asserted by Mr Richard against the Foleys West Park and the sellers Additionally by judgment ated March 21 2007 Town Country Mr Boyd Ms Boudreaux and Continental real estate defendants were dismissed from the suit and in a judgmen datEd March Z6 2 the trial court rendered a 0 C judgment on the incidental demands awardir damages to the sellers and y intervenars Three related a arose from these judgments In one appeai we peals determined that the price in Nlr Richard purchase agreement was easily s discernible from the offer and that the counte5rflffer by the sellers raised no questions over price We als faund that the purchase agreement was not unclear about the good faith deposit necessary to complete the agreement and that it was received by Town Country although it was not deposited Therefore we found that the trial ourt erred in its findings on these particular issues This court also held that Mr Richard presented at the least minimally For a full recitation of the facts and procedural background see Richard v McElroy 2Q08 CA 0060 La 1 Cir 10 Richard v McElroy 2008 CA 0064 La 1 Cir 10 App 08 31 App 08 31 and Richard v McElroy 2008 CA OOu La 1 Gr 10 all unpublished opinions App 08 31 z See Richard v MeElroy 2008 CA 00G4 La 1 Cir i0 unpublished opinion App 08 31 3 sufficient evidence to show tha more pr than not the house was a iy b component part that would transfer in the sale of the land Lastly we concluded that the sellers clearly and unambiguously agreed in their counteroffer that the Richard contract would become the primary contract or agreement to purchase at the end of the Foley contract with the date of January 31 2006 specifically denoted Therefore we reversed the finding that Mr Richard purchase s agreement was invalid reversed the dismissal of the sellers from Mr Richard s suit for damages and remanded for the presentation of plaintiff evidence of s damages and defendants evidence in opposition to plaintiff case In the two s other appeals we also reversed the judgment that dismissed the real estate defendants and reversed the judgment that awarded damages to the sellers and intervenors After the decisions of the court of appeal the trial on the merits continued on November 16 and 17 2009 but was continued by the trial court on the motion of the realtors on the grounds that their attorney had a conflict of interest between his insureds and his insurer Thereafter trial recommenced on January 23 2012 and continued on anuary 24 25 and 26 2012 In oral reasons on January 26 2012 the trial court concluded that the realtors engaged in substandard conduct that was the actual cause of Mr s Richard belief that he had an enforceable purchase agreement on February 1 2006 While the court found error negligence and omissions on the part of the realtors it found no fraud The trial court speciFcally stated that the realtors were negligent for not excluding the house from the purchase agreement and for not clarifying a date on which Mr Richard scontract would be enforceable The trial court however also determined that Mr Richard did not prove that he suffered any damages by not purchasing the property finding the testimony of the seller expert real estate appraiser Brian Larose to be more credible than s 3 Mr Richard had abandoned the remedy of specific performance after the first trial and was pursuing a claim for damages only Also the judgment dismissing the Foleys and West Park was affirmed See Richard v McElroy 2008 CA 0065 La 1 Cir 10 unpublished opinion and App 08 31 Richard v McElroy 2008 CA 0060 La 1 Cir 10 unpublished opinion App 08 31 4 the testimony of Mr Richard rtreal esiate a Logan Babin Jr The sexp praiser trial court concluded that Mr Larose appraisal was clearly the more accurate s and therefore found that the value of the property at the time of the proposed sale was 00 000 244 Accordingly the triai court found that Mr Richard suffered no damages related to the proposed sale since he offered 250 00 000 for the purchase price However the trial court awarded damages to Mr Richard and to the sellers and against the realtors for lhe negligently prepared purchase agreement Additionally the krial court found that Continental as the realtors insurer was to indemnify the realtors for all sums the realtors were ordered to pay ta Mr Richard and the sellers l court also ordered each party he to pay their own expert witness fees and assessed court costs against the real estate defendants In accordance with its reasons the triaf court signed its judgment on March 1 2012 in favor of Mr Richard gainst the real estate defendants awarding Mr Richard 6 in attomey fees together with legal interest 0 754 from date of judicial demand and court costs All other claims of Mr Richard were dismissed Additianally the trial court rendered judgment in favor of the sellers against the real estate defendants in the amount of 56 in 00 536 attorney fees with interest and court costs The trial court also dismissed all ciaims of the irtervenors and seilers ay Mr Richard inst Mr Richard devolutively appealed and the real estate defendants filed a suspensive appeaL Additionally Yhe sell anstivered Mr Richard appeal and rs s answered the appeal of the real estate defendants and Mr Richard ar swered the appeal of the real estate defendants In the price seckion of Mr Richard offer khe sum ef approximately 250 was filled in s 000 with the foAowing clarification ll F per survey Acreage to Rule 7R 77 per cre h The trial court also rendered judgnient m favar nf the inkerveno and against the real estate s defendants awarding 25 in c with legal interest and court costs These parties 00 Sp0 ama9es reached a settlement f tlieir c9airns vahile this a ras pending and therefore any issues ipeal between the inter6anors an tha eeal estat edef2ndanGs a no longer before us e 5 RD v OF xte 3 S W It is well settled that a court of appeal may not set aside a trial court s finding of fact in the absence of manifest error or unless it is clearly wrong Rosell v ESCO 549 5o 840 844 La 1989 The issue to be resolved by 2d the reviewing caurt is not whether the fact finder was right or wrong but whether the fact finder conclusian was a reasonable one s Stobart v State through Dept of Transp And Dev 617 So 880 882 La 1993 2tl DISCUSSION The Real Estate Defendants Appeal In their appeal the real estate defendants contend that 1 the trial court erred in finding Mr Richard purchase agreement valid 2 the trial court erred s in finding that the realtors were negligent and in failing to allocate fault to all parties 3 the trial court erred in its award and amount of attorney fees to Mr Richard and to the sellers and the trial court erred in awarding legal interest and costs to Mr Richard and to the sellers Liabilitv of the real estate defendants to the sellers The realtors first contend that the trial court committed legal error because it incorrectly believed that after remand by this court it was constrained to find a valid purchase agreement between Mr Richard and the sellers However our prior opinion in this matter provided at footnote 5 Although we have determined the legally correct interpretation of the contract provisions at issue the defendants on remand maintain their right to challenge the validity of the agreement and present their side of the story by submitting any evidence allowable under the law Following the remand of this matter and another three days of testimony and evidence during which time the real estate defendants had the opportunity to present whatever evidence they could to show that the backup purchase Because of the settlement betweer the real estate defendents and the intervenors we need not address the real estate defendants remaining assiynment of errors See Richard v McElroy 2008 CA OU64 a 1 Cir 0 unpublished opinion App 081 31 6 agreement was invalid the t ca conci t a valid agreement between a1 rt ue at Mr Richard and the sellers did exist Upon our thorough review of the record we find no manifest error in the trial court finding of fact after the case was s remanded and the trial completed that there was a valid purchase agreement The real estate defendants also aver that the trial court erred in finding that they were negligent and solely at fault in this matter A real estate broker is a professional who holds himself out as trained and experienced to render a specialized service in real estate transactions The broker stands in a fiduciary relationship to his client and is bound to exercise reasonable care skill and diligence in the performance of his duties Hughes v Goodreau 01 La 1 Cir 12 836 So 649 660 writ denied 2107 App 02 31 2d 0232 03 La 4 841 So 793 03 21 2d A realtor has a fiduciary duty to his client and a breach of that dury to the client is actionable under LSA art C 2315 Id See also LSA 37 S R 1455 In this matter the sellers contracted with the defendant realtors to act as their agents and handle the listing and sale of the subject property A review of the record supports the trial ceurt conclusion that the defendant realtors failed s to exercise reasonable care skill and diligence in the pertormance of their duties particularly in how they responded on behalf of the sellers to the backup purchase offer by the advice r lar of advice they gave the sellers regarding k the first and secon extensions o the original purchase agreement between the sellers and the Foleys and their failure to communicate fmportant information to the sellers The triai court heard and saw afl the witnesses and attributed all fault to the realtors A reasonable factual basis exists for this finding and we therefore find no manifest error by the trial court The real estate defendants also contend that they cannot be liable for attorney fees because Yhere was no contractual provision providing for the recpvery of attorney fees to ti sellers from thn realtors and khat no statute Q exists providing for sucl an awarcl o ktorney e s 7 As a general rule ur iouisiana ia attorney fees are not allowed a r except where authoriz by statute ur by cor State Dept of Transp d tract and Development v Wagner 10 La 5 38 So 240 241 0050 10 28 3d Ledbetter v Homes hy Paige l C 0005 App L 11 La 1 Cir 3 110 12 23 3d So 141 148 wri denied 12 La 6 90 So3d 445 However the 0899 2 SJ award in this case was not fas an attorn fee in the traditional sense y Ramp St v Paul Fire See Marine Ins CQ 263 La 774 790 269 So 239 2d 245 1972 Ziegler v Pansano 08 La 1 Cir 6unpublished 1495 App 09 30 3d opinion writs denied 09 09 La 11 25 So 810 1787 1788 09 20 A s realtor liability for a breach af the fiduciary duty owed to his or her client includes the amount the dient incurred in defending the underlying litigation as well as general damages Hughes 836 So at 660 See Avegno v Byrd 2d 377 So 268 273 La 1479 2d 74 In the Ramp case th Louisiana Supreme Court held in an attorney malpractice case that the plaintiff was entitled to recover from the negligent attorneys the additional attorneys fees that he would not have incurred but for the negligence of the defendant attorneys This same reasoning has been applied in other cases reyarding breaches of fiduciary duties by real estate agents including Avegno and Ziegler Thus in cases of professional negligence where the professional negligence causes the client to suffer s attorney fees for cnrrecting or defending against the results of the negligence the attorney fees incurred are the damages the client has sustained Because the attorney fees were the damages caused by the wrongful conduct of the realtors we find no error in the award of attarney fees to the sellers as an item of damages 9 See also enkins v St Paul Fire Ias hlarine Co 393 So 851 859 La 2 Cir 2d App 1981 affirmed 422 So 11 La 1982 Plaintiff is entitied to recover the loss he has 2d 09 sustained by reason of having to pay aM fees to indirer pursue his claim against the amey kly railroad The award of this item of loss r damage does not amount to an award of attorney fees incurred in order to pursue the malpractice adion as such but is to compensate for the additional cost i e attorneys fees incurred by plaintiff in order to have the railroad liability to s him judicially determined 8 The real estate defer ne argue that the trial court erred in dants assessing legal interest against them They assert that because the sellers did not request legal interest on an award of attorney fees they are not entitled to same Pursuant to LSA art 1921 t court shall award interest in the P C he judgment as prayed for or as provided by law Moreover as set forth in LSA S 4203 R 13 legal interest shall attach from date of judicial demand on all judgments sounding in damages ex delicto that may be rendered by any of the courts The language of this statute is mandatory Turner v Ostrowe O1 1935 La 1 Cir 9 828 So 1212 1223 writ denied 02 La App 02 27 2d 2940 03 7 2 836 2d So 107 An award of legal interest in tort cases is not discretionary with the court as the interest attaches automatically until the judgment is paid whether prayed for in the petition or mentioned in the judgment Id Because the attorney fees awarded to the sellers were the damages sustained by them in this matter we find no error in the award of interest and this assignment of error is without merit Lastly the real estate defendants maintain that the sellers are not entitled to court costs and the trial court erred in awarding court costs against them The general rule is that costs are to be paid by the party cast in judgment LSA P C art 1920 Stockstill v C Industries Inc 94 La 1 Cir F 2072 App 95 15 12 665 So 802 822 writ denied 96 La 3 669 So 2d 0149 96 15 2d 428 However the trial court is vested with great discretion to assess costs against any party in a manner deemed equitable by the trial court Id at 821 The trial court assessment can be reversed only upon a showing of an abuse of s that court discretion Anglin v Anglin 09 La 1 Cir 12 30 s 0844 App 09 16 So3d 746 754 lu Article 1920 provides Unless the judgment pruvides othen costs shall be paid by the party vise cast and may be taxed by a rule to show cause Except as othenvise provided by law the court may render judgment for costs or any part thereof against any party as it may consider equitable 9 The real estate K i efe c c conter a tne sellers were not the prevailing parties since they were not awarded damages but were only awarded attorney fees Because we ha Iready foirnd that the damages suffered by the e sellers were the attorn2y fees incurred by thern we find no abuse of discretion in it assessment of costs Liabili of the real estate defendants to Mr Rici ard The real estate defend also maintain that the trial court erred in ants finding that they were liable to Mr Richard and they contest the award of attorney fees legal interesk and costs to Mr kichard A purchaser remedy against a rea estate broker is limited to damages s for fraud under I 1s353 et seq or for negiigent misrepresentation C SA art ander LSA C art 5 23I Osborne v adner 96 La 1 Cir 0863 App 97 14 2 691 So 245 1257 Betause the record does not support a finding 2d of intentional misrepresentation of materiai facts by the realtors Mr Richard cannot recover under a theory f fraud herefore 1 the only theory for recovery is limited to an action for negligent misrepresentation he l action for negligent misrepresertaticTn arises ex de rather than icto from contract in order for a plaintifl to recover for negligent misrepresentation there must be a legal duty cn the part of tt defendant to supply correct e a information breach of that dut and dan to the plaintiff caused by the age breach id A real estate broker or agerit wes a specific duty to communicate accurate information to the seller and the purchaser and may be held liable for negligent misrepresentatinn Id See also Reeves v Weber 509 So 158 2d 160 La 1 Cir 1987 A real estate broker alsa has the duty to take the App necessary steps to bring a signed contract far purchase of real properly to act of In his Third Supplemental and Amending Petition ir Richard asserted that the realtors engaged in a cnurre and pattern of conduct that eunskitutes negligence and fraud in or connecYion wikh their dealings invuluina Mr Richard Fraud is defined in LSA art 9 as follbws C r 3 Fraud is a misrepresentation or a suppression of the truth made with the intention eithe to obtain an uniust advanlage for one party or te cause a loss or inconvenience to the other Fraud may also result from silence or inaction 16 sale within the time peri ac b I c d ated t ntra See Markovich v Prudential Gardner Realtors 1Q La 1 Cir 7 unpublished 1886 App il 1 opinion Naqui v Robert 554 So 18 a 4 Cir writ denied 561 d 7 App 2d So 118 La 1990 Whether a defendant has breached a duty is a question of fact and such a factual determination of trial court may not be reversed in the absence ofi the manifest error or unless it is clearly wrong Farmers Bank Pinsonneault v Merchants Trust Co 01 La 4 816 So 270 278 2217 02 3 2d In this case the realtors did not communicate to either the sellers or to Mr Richard complete and accurate information regarding the extensions granted to the first contract or the expiration of the first contract Upon our review of the record we cannot find that the trial court was manifestly erroneous in its finding that the realtors breached their duty to supply correct information to Mr Richard Accordingly this assignment of error is without merit The real estate defendants also contend that the trial court erred in its award of attorney fees legal interest and costs to Mr Richard For the same reasons previously discussed with regard to the sellers we find no error in these awards to Mr Richard Mr Richard sAppeal In his appeal Mr Richard contends that 1 the trial court committed legal error requiring a de nouo review on appeal 2 the trial court erred in failing to award him damages other than attorney fees 3 the trial court erred in failing to allow his expert to testify regarding certain matters and erred in instead relying on the testimony of the sellers expert witness 4 the trial court erred in failing to cast judgment against the seilers who were the parties that contracted with Mr Richard and 5 he is entitled to additional attorney fees on appeal and to his expert witness fees Mr Richard initially argues that this case requires de novo review based on the trial courYs legal error in excfuding key portions of his experYs testimony 11 without conducting a Dauber G S Mr Richard contends that sis ify y c a s the trial court erred in ro allow his experC to testify regarding certain real efusing estate transactions and reyardsna the value of Yhe suhject property He also asserts that de novo review is warranted because of the trial court internally s inconsistent and unreasonable decision We disagree Under the Louisiana Code of Eyidence a witness qualified as an expert by knowledge skill experience training or education should be allowed to testify if his scientific technical or other specia4ized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue LSA art E C 702 Robertson v Doug Ashy Bldg Materials Inc 10 La 1 Cir 1552 App 11 4 3d 10 77 So 339 354 writs denied J and 11 La 1 2468 1 2430 12 13 77 So 972 and 973 In Daubert the United States Supreme Court set forth 3d the criteria for determining the reliability of expert scientific testimony Robertson 77 So at 354 However it is important to note that there is a 3d crucial diffei between yuestioning the metliodology employecf by an expert ence witness and questioning the applicakion of that methodology ur the ultimate conclusions derived from that application Qnly a question of the validity af the methodology employed brings Daubert into play Robertson 77 So at 355 3d Clearly Dauberk is not appli in the case sub judice The trial court able cepted a both Mr Richard witness Logan Bebir Jr and the sellers witness s Brian Larose as experts in the valuation of properly without any objections Both experts utilized compara sales to reach a conclusion as to th2 value of le the subject property Mr Richard does nat estian the methodology used but Daubert v Merrell DQw Pharmac2uticals Int SOq U 579 113 S 2786 125 S Ct 2d LEd 464 7893j l4 In Kumho Tire Comp Ltd 1F Carmichael 52F U 137 141 119 S 1167 1 n S Ct Jl 143 t23 1999 the United States Supreme Caurt held that the Daubert standard 2d Ed governing the admissihility of expert evidence appliecJ not only to testimony based on scientific knowledge trut afso to testimony hased nr techNC land btfier specialized knowledge The Louisiana Supreme Court adopt khe Daubert analysis in State v Foret 628 So 1116 La ed 2d 1993 2 rather questions the conclusi vched b4s n the trial court evidentiary i s ls rulings Mr I Richard rgues tha nis expert shawe hat the property i I at issue was i worth anywhere from 60 to 105 per acre He contends that the 00 00 000 006 value of commercial properties in the northern part of Terrebonne Parish escalated tremendously after Hurricane Katrina and that he suffered severe damages as a result of the sellers failing to sell the property to him In connection therewith Mr Richard tried to introduce testimony from Mr Babin regarding the value of property adjacent to the subject property which sold for 00 000 105 per acre on May 22 2008 Defense counsel objected contending that sales long after any alleged breach of the backup contract were not relevant The trial court sustained the objection finding that only sales around the time the sale was supposed to happen or between January and March of 2006 were relevant The measure of damages for the breach of a contract of sale is the difference between the contract price and the market price on the date of the breach Womack v 5ternberg 247 La 556 576 172 So 683 686 La 2d 1965 Whether evidence is relevant is within the discretion of the trial court and an appellate court will not disturb that ruling in the absence of a clear abuse of discretion State Farm Mut Auto Ins Co v Ford Motor Co 04 1311 App La 1 Cir 6 925 So 1 7 After reviewing the entire record we 05 15 2d can find no abuse of the trial court discretion in excluding the testimony s regarding the value of the property approximately two years after the sale of the subject property to Mr Richard was supposed to have occurred Mr Richard also maintains that the trial court erred in excluding Mr s Babin testimony concerning the value of the subject property on May 1 2006 The record shows that Mr Babin was asked to determine the value of the We also note that Mr Richard waived his objedion to a Daubert hearing when he failed to raise the issue at trial See LSA art 103 Leard v Schenker 06 W 6 931 E C 1116 06 16 2d So 355 357 per curiam 13 property on anuary 5 2007 ir to the firs sct date of the first trial se eduled On cross examination he admitted he gave no testimony as to its valuation at any time in 2006 and had no opinion as to the value of the property at that time On redirect examination Mr Babin was asked to give an opinion as to the value of the property on May 1 2006 Defense counsel objected contending that this testimony was not offered during direct examination or brought forth on cross examination The trial court sustained the objection Louisiana Code of Evidence article 611D provides that a witness who has been cross is subject to redirect examination as to matters covered on examined examination cross and in the discretion of the court as to other matters in the case Arguably the questioning of Mr Babin on redirect examination The first triai was originally scheduled for January 3 and 4 2007 17 Louisiana Code of Evidence article 611 provides A Control by eourt Except as provided by this Artide and Code of Criminal Procedure Article 773 the parties to a proceeding have the primary responsibility of presenting the evidence and examining the witnesses The court however shall exercise reasonable contrnl over the mode and order of interrogating witnesses and presPntfng evidence so as ta 1 Make the interrogation and presentation effective for the ascertainment of the tnath 2 Avoid neediess mnsumption of time and 3 Protect witnesses from harassment or undue emharrassment B Scope of cross A witness may be cross on examination examined any matter relevant to any issue in the case inr credibility However in a luding civil case when a party or person identified with a party has been called as a witness 6yan adverse party to testify oniy as to particular aspects of the case the court shall limit the scope of r matters testified to on examination ross to direct examinaticn unless the interests of justice otherwise require C Leading questions Generally leading questions should not be used on thE direct examination of a witness except as may be necessary to develop his testimony and in examining an expert witness on his opinions and inferences However when a party calls a hostile witness a witness who is unable or g unwilli to respond to proper questioniny an adverse party or a witness identified with an adverse party interrugation may be by leading questions Generaily leading c should be rmitted on cross uestians examination However the court rdinarily sha prahibit coun for a party from using leading l questions when that party or a person identiFie with him is examined by his counsel even when the party r a person identified u him has been called as ith a witness by anotiier parky and teadered for cross ezamination Scope Dof redirect exam rgcrass examination A witness nation who has been cross is subject to redirect amination as to matters amined e covered on cross an camination iin the discreiion of the court as to other a matters in the case VUhen the mi has allowed a parry to bring out new matter rt on redirect the parties sha e pravided an opportunity to recross on such Yher it matters 14 arding re the value of e iy U on r M 2U0 was cavered on cross examination when Mr Babin vas questioned c his lack of opinion as to the r value of the property as r that date However Mr Babin admitted he had no f opinion as to the value of fhe property in 2006 Furkher all discovery conducted by Mr Richard prior to the latest tri lincluding the deposition of Mr Babin was based on the value of the properly in 00 Again after a thorough review of the record we can find no abuse of the trial court discretion in excluding this s testimony Having found that the trial court did not abuse its discretion on these evidentiary rulings we now review the trial court judgment under the appropriate manifest error standard of review Where the fact finder determination is based on its decision to credit the s testimony of one of two or mare N that finding can virtually never be itnesses manifestly erroneous 7his rule applies equally to the evaluation of expert testimony including the evaluation and resoiution of conflicts in expert testimony Ledbetter llp Su at 146 Where expert witnesses present 3d differing testimony it is khe responsibility of the trier of fact to determine which evidence is the most credible Id In the instant case we have two competing expert opinions In reviewing the two expert opinions the trial courl empiqyed its own judgment to determine which expert opinion should be believed over the other The trial court after hearing and seeing both experts testify found one expert more reliable than the other The trial court recognizing that experts are used to help the trier of fact in making their determinations and weighing the testimony of the two experts stated that it had question at all that Mr Larose no stestimony and figures were much more accurate Mr Larose testified that the subject properry is a long relatively narrow tract typical of family tracts which should be compared to E Rebuttel evidence he plaintiff in a civil case and the state in a criminal prosecution shall have the riyht to rebut evidence adduced by their opponents 15 other such tracts he called carruts rathec a apples tracts of land whose length and width do nat vary as greatiy Fie testified that the uses for carrot properties and apple properties varied anc he discussed the differences Mr s Larose expert opinion was that the property value on March 29 2006 the s date of the cash sale between the sellers and the Foleys designee was 00 000 244 Mr Babin did not testify as to the value of the property on March 29 2006 or anytime in 2006 The trial court valued the properry in March 2006 to be 244 which was less than the sales price offered by Mr Richard 00 000 and as such concluded that Mr Richard suffered no damages regarding the sale of the property Upon our own thorough review of the record we find no manifest error in the trial court finding that Mr Richard did not suffer any damages from the loss s of the sale The trial court conclusion that the value of the subject property s was 294 was reasonably supported by the record and is not clearly 00 000 wrong Accordingly we cannot agree with Mr Richard argument that he s suffered damages in an amount beiween 578 and 1for the 42 444 50 944 194 loss of the sale Nor do we find the trial court factual finding that Mr Richard s did not sufFer general damages was manifestly rroneous Additionally the trial court specifically found no bad faith on the part of the realtors While Mr Richard continues to argue bad faith the record tails to support such a finding Mr Richard ne argues that the trial court erred in failing to cast judgment against the sellers He asserts that the breach of the purchase agreement by the sellers tivas caused by the negligence of their realtors According to Mr Ricriard the trial court shouid have assessed the damages directly against the sellers and then have khe real estate defendants indemnify the sellers for the damages assessed against tham 8 1 Mr Larose also testified that the same 294 vaiue was applicable in January 2006 00 000 19 Bad faith has been desc to mean more than mere bad judgment or negligence it implies ibed a dishonest purpose or evil intent S Conibetta v Ordoyne 04 La 1 Cir 5 2347 App 06 934 So 836 842 writ denied 06 2d aIa 9 937 So 389 135 06 22 2d zb The trial courE concluded that defendant realtors breached their duty that owed was to all parties involved including Mr Richard the sellers and the intervenors Finding that the realtors were negligent and the only parties responsible for the damages sustained herein the trial court assessed the damages incurred directly against the real estate defendants Having found that Mr Richard action against the real estate defendants for negligence arose ex s delicto rather than from contract and having found that the realtors negligence supports the imposition of liability against the real estate defendants we find no error in the trial court judgment assessing damages against the only parties s determined to be at fault the real estate defendants Mr Richard also asserts that the trial court erred in failing to award him Mr Babin expert witness fee which was 9 The trial court is vested s 00 925 with great discretion to assess costs against any parly as it may deem equitable even against the party who prevails on the merits however the general rule is that costs are to be paid by the party cast in judgment Stockstill 665 So at 2d 22 821 Louisiana Code of Civil Procedure 2164 governs the scope of appeal and the assessment of costs and provides as follows The appellate court shall render any judgment which is just legal and proper upon the record on appeal The court may award damages including attorney fees for frivolous appeal or application for writs and may tax the costs of the lower or appellate court or any part thereof against any party to the suit as in its judgment may be considered equitable In its March 1 2012 judgment the trial court did not award to Mr Richard Mr Babin expert witness fees Although Mr Richard prevailed in this matter it s was determined that he suffered no damages regarding the loss of the sale of the immovable property other than his attorney fees Further the trial court concluded that Mr Richard expert witness was less credible than the sellers s expert witness Therefore upon our review of the record we find no abuse of the trial court great discretion when it determined that each party would pay s their own expert witness fees 17 ts r to the d Mr Richard filed an ans to the app of the real estate defendants r a and the sellers answered th appeal of Mr Richard and of the real estate defendants See LSA arts 2133 In his answer to the appeal Mr P C Richard asked not only for additional damages which has previously been discussed but also for additional attorney fees for his appeal and for answering the appeal of the real estate defendants Having found no merit to Mr Richard s appeal we decline to award the relief sought in his answer to the appeal See P C LSA art 2164 The sellers also answered the appeal of the real estate defendants and answered the appeal of Mr Richard seeking attorney fees for defending the appeals Because the sellers were successful on appeal we find that an award of attorney fees of 3 is appropriate and equitable for the 00 000 work necessitated by the appeals CONCLUSION For all of the above and foregoing reasons the March 1 2012 trial court judgment is amended to award 3 in attorney fees for work performed 00 000 in defense of this appeaf in favor of the seilers Joyce Breaux McElroy and Carolyn Breaux and against the real est defendants Houma Town te s Country Real Estate Inc Bill G Boyd Faith Boudreaux and Continental Casualty Company in solido In all other respects the judgment is a rmed 20 LSA art 2133 provides P C A An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified revised or reversed in part or unless he demands damages against the appeilant In such cases he must file an answer to the appeal stating the relief demanded not later than fifteen days after the return day or the lodging of the record whichever is later The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer Additionally however an appellee may by answer to the appeal demand modification revision or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court If an appellee files such an answer all other parties to the incidental demand may file similar answers within fifteen days of the appellee saction B A party who does not seek modification revision or reversal of a judgment in an appellate court including the supreme court may assert in support of the judgment any argument supported by the record although he has not appealed answered the appeal or applied for supervisory writs 18 sts Cc of this appeal are assessed qualiy bet Henry J Richard and the real n c ti estate defendants AMENDED AND AFFIRMED AS AMENDED 19

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