Carrier Leasing Corp. v. Ready-Mix Companies, Inc.

• Decision Date: 04 May 1979
• Docket Number: No. 9060,READY-MIX,9060
• Citation: 372 So.2d 601
• Parties: CARRIER LEASING CORPORATION v.COMPANIES, INC. CARRIER LEASING CORPORATION v. ST. CHARLES READY MIX, INC.
• Court: Court of Appeal of Louisiana — District of US

Page 601

372 So.2d 601

CARRIER LEASING CORPORATION v. READY-MIX COMPANIES, INC.

CARRIER LEASING CORPORATION v. ST. CHARLES READY MIX, INC.

No. 9060.

Court of Appeal of Louisiana, Fourth Circuit.

May 4, 1979.

Rehearings Denied July 12, 1979.

Francipane, Regan & St. Pee, Richard T. Regan, Metairie, Kenneth A. Beoubay, Gretna, for relator.

Scariano & McCranie, George Scariano, Metairie, Chaffe, McCall, Phillips, Toler & Sarpy, Peter A. Feringa, Jr., New Orleans, for respondent.

Before LEMMON, GULOTTA and BEER, JJ.

LEMMON, Judge.

This matter is before the court on a writ of review, issued in response to defendants' application for supervisory writs under C.C.P. art. 2201 in order to review a judgment refusing to dissolve a writ of sequestration.

The litigation began when plaintiff filed two separate actions which asserted a lessor's privilege on certain concrete trucks allegedly leased to defendants under several contracts of various dates. The petitions, which alleged defendants were in default on the contracts, demanded immediate seizure of the trucks and judgment, after due proceedings, awarding the amount due and recognizing the privilege.

Immediately after seizure defendants obtained release of some of the trucks by furnishing a sequestration bond and then filed a motion to dissolve the writ and to recover damages for wrongful issuance. The motion was based on the assertion that the sequestration had been illegally obtained because the contracts were not leases, but were actually conditional sales, so that plaintiff had no lessor's privilege to assert.

After a hearing the trial court rendered judgment dismissing the motion to dissolve and denying damages. Defendants immediately applied for a new trial, which was granted on reargument only. Almost a year later (during which period there were ongoing settlement negotiations) the court rendered an order dismissing the application for new trial.

Defendants then applied to this court for supervisory writs, which were granted.

I

Plaintiff first contends that when defendants failed to appeal, the judgment of the trial court became definitive and acquired the authority of the thing adjudged, so that this court now has no jurisdictional power and authority to reverse or modify that judgment.

The original judgment of the trial court, which dismissed the motion to dissolve the sequestration, was set aside and vacated when a new trial was granted. C.C.P. art. 1971; Larose v. Naquin, 145 La. 1025, 83 So. 230 (1919); La Frenz v. La Baw, 21 So.2d 71 (La.App. 2nd Cir. 1945). Granting of a new trial, of course, contemplates rendition of a new judgment. ¹

In this case, however, no new judgment was ever rendered, nor was the original judgment ever reinstated. ² Accordingly, there is no judgment in effect, from which an appeal could have been taken, and we do not reach the issue of whether it was necessary to appeal from a judgment refusing to dissolve a writ of sequestration in order to keep the judgment from acquiring the authority of the thing adjudged. ³

II

We granted supervisory writs because there appeared to be palpable error, at least as to one contract, in the trial court's ruling that the contracts were not conditional sales. ⁴ After review of the record we have concluded all four of the contracts still in dispute constituted conditional sales. A detailed factual analysis is appropriate.

Plaintiff contracted with St. Charles Ready Mix, Inc. (SCRM) in two contracts involving six trucks and with Ready Mix Companies, Inc. (RMC) in seven contracts involving 16 trucks. A separate suit was filed against each defendant, and after consolidation Davis Industries, Inc. (DI) intervened, asserting that it had purchased the trucks and owned them at the time of seizure. ⁵

At trial defendants attempted to show there were two types of contracts. The first group, consisting of five RMC contracts (12 trucks) and called the F & M Bank contracts, were conceded by defendants to be leases, so that plaintiff was undisputedly entitled to possession of these 12 trucks. The second group, consisting of two RMC contracts (four trucks) and two SCRM contracts (six trucks) and called the CIT contracts, were asserted to be conditional sales. These contracts were executed on printed form lease agreements, but defendants contended that at the time of execution plaintiff simultaneously agreed to transfer title upon completion of all lease payments for the additional consideration of only $1.00. A considerable amount of the extensive evidence was directed at this factual contention.

Edson Davis, president of both SCRM and RMC, testified: When he bought the ten trucks under the four CIT contracts, the seller (a corporation of which plaintiff is a subsidiary) agreed title would be transferred after the last contract payment, and plaintiff handled the financing. He put up a cash down payment of $65,000.00 for the four contracts. (There was no down payment for the 12 trucks leased under the F & M Bank contracts in 1972.) When he fell behind on the payments toward the end of the term of the four-year contracts, he sought to pay off the small balances due on the ten trucks by mortgaging them with another lender on the basis of the substantial equity, but he needed to obtain title to do so. Marvin Reeves, plaintiff's collection manager, stated his belief that these contracts were not subject to a purchase option, but after checking confirmed that defendant had been granted an option to purchase. (Davis' wife verified the confirmation in her presence.) However, Stephen Zeligson, plaintiff's president, refused to surrender titles to the ten trucks, stating the option had been lost because defendants had not complied with the terms of the agreement. He (Davis) then refused to make further payments, and these suits followed.

Reeves (the collection manager) recalled the conversations with Davis and admitted he had confirmed to Davis that the four contracts were subject to purchase options "as best as I could determine". Zeligson (the president) testified that he had no recollection of the original transaction, but had found one written purchase option (covering one contract and four trucks) in his files. He pointed out, however, that the purchase options, if granted, were contingent upon the total amount having been paid in accordance with the contract terms and the customer's having "complied with each and every provision of the lease". He further stated that while his company normally only leased equipment, it would enter into a "time purchase agreement" if the customer specifically requested this, but he could not tell if there was such a request in this case without checking the files. On cross examination he explained that the down payment (called advance rental payment in the printed form) was often required in order to make a transaction financially feasible when investigation showed the customer was a credit risk. He could not explain why no advance rental payment was required in the F & M Bank contracts, but suggested that the customer's credit rating may have improved between 1971 and 1972.

The evidence compels the conclusion that at the time the CIT contracts were struck, the parties intended SCRM and RMC would have an option to purchase the trucks for a nominal price when the contract amount was paid. This intention was indisputably shown by the written agreement supplemental to one contract. No one specifically denied Davis'...