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Pratt v. Himel Marine6/21/2002
m for the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, less the credit to which a seller is entitled if the use made of the thing, or the fruits it has yielded, were of some value to the buyer. LSA-C.C. art. 2531.
Pursuant to LSA-C.C. art. 2545, a seller in bad faith "is liable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees." However, as a seller in good faith, pursuant to LSA-C.C. art. 2531, Himel Marine was only bound to repair, remedy, or correct the defect. Thus, in accordance with the jury's finding that Himel Marine was a good faith seller, Dr. Pratt is statutorily barred from recovering attorney's fees from Himel Marine.
Finding merit to this assignment, we amend the judgment to vacate the trial court's award of attorney's fees against Himel Marine. As against Mercury, attorney's fees clearly are due. Thus, we remand the matter to the trial court for a hearing. On remand, the court shall allow the parties to present testimony and evidence as needed to determine the amount of attorney's fees attributable to the prosecution of Dr. Pratt's claims against Mercury and should render judgment accordingly.
CONCLUSION
For the above and foregoing reasons, the March 13, 2001 judgment of the trial court implementing the jury's verdict is affirmed in part, amended in part, vacated in part, and remanded with instructions. Himel Marine's peremptory exception of prescription is denied. Costs of this appeal are assessed equally among appellants, Mercury Marine and Himel Marine, Inc.
AFFIRMED IN PART; AMENDED IN PART; VACATED IN PART; AND REMANDED, WITH INSTRUCTIONS.
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