Clarence D. Horton VS Mary Williams, Wife of/and David B. Williams d/b/a David Williams Trucking
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 CA 1768 CLARENCE D HORTON VERSUS MARY WILLIAMS WIFE OF AND DAVID B WILLIAMS DIBI A DAVID WILLIAMS TRUCKING JtJ On Appeal from the 21st Judicial District Court Parish of Tangipahoa Louisiana Docket No 2002 001541 Honorable Robert H Morrison St Gregory J La Nasa St Angelo Angelo La Nasa LLC Hogan Hogan Hogan C Judge Presiding Attorney for Plaintiff Appellant Clarence D Horton New Orleans LA Thomas J Division III Attorney for Jr Defendants Appellees Mary Williams wife of and David B Williams d b Hammond LA a David Williams BEFORE PARRO Trucking McCLENDON AND WELCH JJ Judgment rendered March 27 2009 PARRO J appeals judgment granting Clarence D Horton Horton verdict against him and dismissing his claims against David d b a David Williams the following a Trucking Williams for wages and reasons we a and B out of directed motion for Mary Williams For pocket expenses affirm the judgment BACKGROUND Horton was hired and in October 1999 to drive a leased tractor trailer employed until August 2001 Horton claimed he He was so his by Williams owed was over 25 000 for driving time and for reimbursement of personal funds that he used for maintenance repair of the tractor trailer When Williams refused to pay him after he had demanded payment he filed this suit January 2008 to trial in support a finding When Horton had which the court directed verdict that any money Williams answered presented his stating there granted was seeking penalties it After many continuances owed to Horton and the case finally came Williams moved for case was a a lack of evidence to Horton filed this appeal and attorney fees for a frivolous appeal DISCUSSION Horton argues that he testified under oath accountant Sheilia with her testimony claims it was Horton Carter legal Since error Procedure article 1672 6 who was also his contrary evidence no for the court to concerning the money owed and his daughter was substantiated his claim presented by grant the motion Williams Horton Louisiana Code of Civil states by the court without a jury after the plaintiff has completed the presentation of his evidence any party without waiving his right to offer evidence in the event the motion is not granted may move for a dismissal of the action as to him on the ground that upon the facts and law the plaintiff has shown no right to relief The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close In an action tried of all the evidence 1 We note that should have a directed verdict under LSA C C P art requested an involuntary 1810 is only applicable dismissal under LSA C C P art 1672 B to a The jury trial judgment The motion in this case grants the motion for directed verdict or in the alternative motion to dismiss We will evaluate the judgment under the burden of proof and standard of review applicable to a motion under Article 1672 B 2 The by case Ford Motor Co v required Tavlor to court may manifestly not used by the a trial La App reverse erroneous or 1st Cir 10 17 08 ruling a to La grant a motion 5 24 05 60vd clearly wrong 118 for to for A trial court has involuntary dismissal but in order to make such a determination 902 So 2d 380 v An 384 appellate involuntary dismissal unless it motion for on a 997 SO 2d 111 925 So 2d 1 4 1st Cir 6 15 05 Gaming 04 2254 motion a State Farm Mut Auto Ins Co preponderance of the evidence determining whether s court to determine plaintiff has presented sufficient evidence weigh and evaluate all evidence Tommie v a 04 1311 much discretion in it is be is whether involuntary dismissal establish his to standard applicable Allied Sianal 07 1409 Inc La is App 1 16 09 998 So 2d chambers settlement conference after which writ denied 08 2682 La 105 The record shows there the court ordered each exhibit that party they intended was an in to provide the other with copies of every document to use at trial result in exclusion of any exhibit present made to the court a along with the or and that failure to do document from proposed reconciliation of net amount of any use at so within 60 trial They days would were amounts claimed versus remaining claim Neither party or also to payments complied with these orders After a telephone pre trial conference the court reiterated that counsel were to file a complete list of exhibits and witnesses with the clerk of do so would result in the exclusion of any unlisted exhibit unlisted witness at trial When neither parties failure Horton filed to an obey the documentation at the trial daughter Neither S s case for failure to the court s orders Therefore this evidentiary testimony of any obey the court s orders exhibit and witness list into the record Horton could ruling 3 only present his Horton On As a result of both the court ruled that it would not testimony without any supporting exhibits party challenged or party filed the exhibit and witness list by the due date Williams moved to dismiss Horton the trial date court and that failure to proffered accept any own a and his number of documents in connection with during trial his When the court daughter s testimony granted Williams motion for involuntary dismissal it commented Im going to grant preponderance test it I have not heard evidence that would meet a as to any amount that s been owing Taking Mr it s very Horton s testimony at face value that he was trying to be helpful in the face of continued problems that he was difficult to understand why experiencing substantiation as this that His far keep up with the was apparently and never continue any amount that in her own daughter driver as would revenue owed and yet s be to done claimed on and there s no thing the testimony said it would be pretty simple to and expenses and to determine how much the we ve been looking for that information that compiled in some form or fashion presented to the Court or to Counsel in was 2000 or thereabouts an effort to resolve this in matter short of this trial daughter s testimony established Horton contends that his and his prima facie and that his claim should be evaluated under the Louisiana open account statute case LSA 5 R 9 2781 reflects 5 R LSA account for which a part one or more or 9 2781 D concluded that other transactions and whether proof of a suit on however that discovery and Co in the court s Horton cites Riverland The and it opinion case ledger was a 1133 the was a La or not contracting the case in which the court one 1846 credible Riverland Food COrD App 5th Cir 1984 plaintiff produced business record a on review proving an open account the plaintiff account was kept first must prove in the course of business and by introducing supporting testimony regarding its accuracy credits has been established inaccuracy of the Heritage Worldwide 11 16 95 We note kept contemporaneously with by showing that the record of the prove the v ledger card during the account case witness and ultimately the basis of the trial court s judgment and the This court has held that in facie the account at the time of fifth circuit See LSA C C art 449 SO 2d 1131 at trial the entries shown appellate Inc or not includes any open account an open account may consist of corroborating circumstances Carriaqe Meat states that all of the balance is past due whether parties expected future transactions Cir a by a plaintiff creditor the burden shifts Once a prima to the debtor to account or to prove that the debtor is entitled to certain Inc 665 So 2d 523 v 527 Jimmv Swagqart writ denied 4 Ministries 96 0415 La 95 0484 3 29 96 La App 1st 670 So 2d 1233 Louisiana 844 So 2d 400 This Gunter Farms Inc v Eggs court has reviewed business and was in trouble the as a 2001 or paid him properly but he only 29 000 was never ruling prepared was not it was not except proffered the court previously noted documents documents counsel was not damages Thus s amount claimed in January 2001 Her In late but since and due to the trial court s not never including her was present any facts estimates of part of the proffer unpaid Other than the s ruling to exclude the We conclude that without the proffered not establish not establish a prima facie case Because Horton entitlement to back wages and expense reimbursement answered to each other and to the accompanying testimony Horton did err in is no under the circumstances in which the trial court shifted to Williams evidence the trial court did not pre proffer during which she identified and produce the documents he did was She admitted that the testimony did However abuse of discretion s was ruling regarding the inadmissibility of the both orders Horton Carter production of evidence Williams trucking amounts Williams may have owed Horton challenged disobeyed was not an documents and Ms his a testimony accounting in the record of the and not know the proffered documents and her accompanying testimony there the court twice ordered counsel to court help him to daughter testified that she working for Williams part of as Her trying business record for Williams various documents on and reimbursements As as a admitted into evidence read the amounts shown information in the His to Williams before trial presented about the amounts owed accurate was following summary of the amounts still owed to her father a done for her father after he had ceased wages notes the concerning the statement help with bookkeeping for Williams consultant to that summary s roughly early 2002 she prepared However 4 2 03 1st Cir App transcript of the trial and Horton that Williams owed him hired trial La they were both ministers and he could tell Williams did out since summary 01 0932 402 Horton testified that Williams never was Inc by a the burden of did not prove his preponderance of the granting the motion for involuntary dismissal appeal claiming that 5 Horton s refusal to provide documentation of his claim to the court s during discovery led documents would be admitted at trial Therefore there was ruling that insufficient evidence in the record for anyone to reach any conclusion other than that reached and the appeal of his none by the trial court is frivolous Louisiana Code of Civil Procedure article 2164 states The appellate court shall render any judgment which is just legal and proper upon the record on appeal The court may award damages for frivolous appeal 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 The courts have been very reluctant to in nature and must be La 0865 are App 1st Cir only allowed when grant damages under this article strictly construed 9 5 07 Bracken appeal opinion that such Cir 9 28 01 view is not meritorious was 809 So 2d 1017 1023 761 So 2d 564 11 5 99 569 Daisey writ denied brief and in oral frivolous La 604 SO 2d 999 argument as to warrant were damages taken brought position he advocates in when the even good faith we that the Consequently though we 06 or that the court is of La La App 1st 1st Cir App appeal lacks serious legal 599 SO 2d 787 790 appeal and or even Wallace 00 2892 We believe the 1992 on v Co solely for delay Time Warner 98 2199 Brown v brought solely for the purpose of delay in the v This is true merit City Nat l Bank of Baton Rouqe Carlin penal Damages for frivolous appeal counsel is not sincere in the view of the law he advocates the it is Inc Pavne and Keller v 970 SO 2d 582 591 92 it is obvious that the as La App 1st Cir in his appellant s contentions The issues raised cannot say that this appellant s counsel decline to award were not so appeal was not was serious damages for frivolous appeal CONCLUSION The judgment of February against Mary and David answer to B 4 Williams 2008 d b dismissing the claims of Clarence a David Williams Trucking appeal are assessed against Clarence JUDGMENT AFFIRMED 6 D Horton Horton is affirmed appeal by Williams requesting damages for frivolous appeal costs of this D is denied The All
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