
    Mark MITCHELL v. MERCEDES BENZ CREDIT CORPORATION.
    No. CA-9015.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 12, 1988.
    Rehearing Denied Aug. 11, 1988.
    
      Edward J. Rivera, Favret, Favret, De-marest & Russo, New Orleans, for plaintiff-appellant.
    Daniel A. Smith, Deutsch, Kerrigan & Stiles, New Orleans, for defendant-appel-lee.
    Before GARRISON, BARRY and ARMSTRONG, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the Civil District Court granted in conformity with a Commissioner’s report providing as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein declaring that the plaintiffs liability to defendant consists of the sum of Ten Thousand Nine Hundred Three and 62/100 ($10,903.62) Dollars, representing $3,441.12 in rental payment due and $7,462.50 representing plaintiff’s liability under the early termination of the vehicle lease.”

From that judgment, plaintiff appeals seeking to have the amount reduced and defendant answers seeking to have the amount increased.

On December 10, 1984 Dr. Mark Mitchell entered into a motor vehicle lease agreement with Mercedes Benz Credit Corporation at Stephens Imports, Inc. The lease agreement was not a true bargained for agreement but was rather a pre-printed form prepared by Mercedes Benz Credit Corporation’s home office in Norwalk, Connecticut. In filling in the blanks, employees of Stephens Imports typed “O” next to the line entitled “Adjusted Capitalized Cost.” The lease was for 60 months with a monthly payment of $573.52 a month.

The lease contained an early termination clause as follows:

“I understand that I may terminate this lease at any time provided that I am not in default of any of the lease terms. I agree that my liability to you upon such early termination will be the amount, if any by which the Adjusted Capitalized Cost (Item 2D), less accumulated depreciation, exceeds the vehicle’s realized value plus the sum of a.) an early termination charge of $150; plus b.) any costs resulting from excess wear and tear on the vehicle as described in Section 13; plus c.) charge shown in Item 2K for each mile the vehicle has been driven in excess of the mileage the vehicle would have if it had been driven the average number of miles a year stated in Item 2E; plus d.) any official fees and taxes imposed in connection with lease termination. I further agree that if I terminate this lease within the first twelve (12) months of the lease term my liability to you will include in addition to the items stated above, your lost tax benefits, if any.” (Emphasis added)

Dr. Mitchell testified that the zero “Adjusted Capitalized Cost” amount is in keeping with what the Stephens salesmen had told him. Dr. Mitchell was informed that if he wanted to terminate the lease early but after 2 years he would have to pay an early termination charge of $150.00 plus excess wear and tear, plus excess mileage, plus any fees and taxes, or the total of items (a) through (d).

Mercedes argues that Dr. Mitchell’s understanding was not the agreement even though the zero amount would indicate the contrary, and that the zero is not indicative of an agreement, but rather is a typo.

The Commissioner correctly found for Dr. Mitchell, however, he then proceeded to create his own formula which is unsupported by the record. On this second point he erred.

The contract was prepared by Mercedes and thus should be construed against it. The judgment below should be reduced to reflect the actual formula contained in the contract, namely:

Adjusted Capitalized Cost
Less Accumulated Depreciation
Less Vehicle Realized Value
Plus Early Termination Charge of $150.00
Plus Any Cost From Excess Wear and Tear
Plus Any Excess Mileage Charge at .08$ a mile
Plus Any Official Fees and Taxes

Accordingly, the amount of judgment should be $150.00 plus any cost from excess wear and tear, any excess mileage at .08 cents a mile, plus any official fees and taxes. Because there is no evidence in the record as to the amount of the last three items recited above, those matters should be remanded to the trial court for the limited purpose of determining the amount of excess wear and tear, if any, the amount of any excess mileage charge at .08$ a mile, if any, plus official fees and taxes, if any.

For the reasons discussed, the judgment of the district court is amended as follows and as amended is affirmed, and the matter is remanded to the district court for further proceedings as discussed above:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein declaring that the plaintiffs liability to the defendant consists of the sum of $8,441.12 in rental payments due and $150.00 plus excess wear and tear, if any, excess mileage at .08$ a mile, if any, and official fees and taxes, if any.

AMENDED AND AFFIRMED; REMANDED.  