The opinion of the court was delivered by: CONSTANCE BAKER MOTLEY
FINDS OF FACT AND CONCLUSIONS OF LAW ON DAMAGES
A bench trial was held in this consolidated action on January 13-15, 27-29, 1992. On June 17, 1992, the court issued its Findings of Fact and Conclusions of Law, familiarity with which is presumed. At that time Flexi-Van was directed to provide the court with evidence in the form of charts and/or calculations to support its damages claims. See Findings of Fact P 83. Flexi-Van did so on June 26, 1992 by submitting an affidavit from H. Randolph Snoke, Flexi-Van's Director of Credit, with nine supporting attachments (the "Snoke Affidavit").
After reconsidering the issues, the court determined that Flexi-Van is not entitled to receive casualty value damages for the equipment located at Davis Transportation. Had Flexi-Van mitigated its damages by paying Mr. Davis the $ 6,000.00 he requested for the release of the equipment, Flexi-Van would have had the equipment, and, therefore, could not have requested casualty value damages for the equipment. Therefore, on July 8, 1992, the court directed Flexi-Van to identify the particular units of its equipment located at Davis Transportation. Flexi-Van did so on July 20, 1992, submitting a list of 28 units. At that time, Flexi-Van requested the court to consider forthcoming evidence describing its maintenance and repair costs associated with these units, arguing that Flexi-Van is entitled to such damages under the Lease Agreement. Flexi-Van submitted its proof on July 23, 1992 in the form of a supplemental affidavit from H. Randolph Snoke with three supporting attachments (the "supplemental Snoke Affidavit").
II. Additional Findings of Fact
After weighing the testimonial and documentary evidence received at trial, including the credibility of the witnesses, as well as the Snoke Affidavit and supplemental Snoke Affidavit, the court makes the following additional findings of fact:
1. The total aggregate amount owed by Pharos Lines and Constellation Navigation to Flexi-Van is $ 985,731.04. See Appendix A. This figure consists mainly of Flexi-Van's accounts receivable under the Lease Agreement, recovery expenses and legal fees. Each is discussed in turn.
2. Accounts receivable under the Lease Agreement include (a) rental charges, (b) maintenance and repair charges and (c) casualty values for unreturned equipment.
(1) Pursuant to P 9 of the Terms and Conditions of the Lease Agreement, upon defendants' default Flexi-Van is entitled to recover the balance of rentals due and payable through the remainder of the lease term. Unpaid per diem rental fees from March 1990 to August 1990 amount to $ 105,220.92. Interest amounts to $ 37,187.64.
See Appendix B.
(2) After the default and the expiration of the lease period, defendants failed to return a certain quantity of equipment and converted it for their own benefit. Thus Flexi-Van continued to accrue rental fees from September 1990 forward on unreturned and unrecovered equipment. In the Snoke Affidavit, Flexi-Van calculated these fees as $ 211,468.20 through May 1992. In doing so, Flexi-Van took into account that it could no longer accrue rental fees on any equipment which was recovered or returned, such as the four units recovered from Trident Shipping earlier this year. Flexi-Van also deducted rental fees from February 1, 1991 to June 26, 1992 on its equipment located at Davis Transportation, since the court found that Flexi-Van should have mitigated its damages with respect to this equipment by paying Mr. Davis the $ 6,000,00 he requested for its release in late January 1991.
The court finds that Flexi-Van's figure of $ 211,468.20 is substantially correct. Interest amounts to $ 34,504.61. See Appendix C.
B. Maintenance and Repair Charges.
Pursuant to P 2 of the Terms and Conditions of the Lease Agreement, defendants are obligated to keep and maintain the equipment in good repair and operating condition, normal wear and tear excepted. Additionally, P 4 provides that defendants have an obligation to redeliver the equipment in the same condition as when originally received by defendants. All of the equipment redelivered to Flexi-Van by defendants or recovered by Flexi-Van through other means contained varying degrees of damage beyond normal wear and tear. In the ordinary course of business, Flexi-Van estimated repairs on such equipment and issued repair invoices to defendants covering those types of damage for which defendants are liable under the terms of the Lease Agreement. Any unit which incurred damages in ...