text:
    Pat McEnery BENTLEY, Plaintiff-Appellant, v. INDUSTRIAL FIRE PROTECTION, INC., Defendant-Appellee.
    No. 13343.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.

      Johnson & Johnson by Don H. Johnson, Monroe, for plaintiff-appellant.
    Farrar & Perry by Bennie Mac Farrar, Monroe, for defendant-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

Plaintiff has appealed the judgment rejecting her request to have an expert witness fee taxed as cost by rule to show cause after final judgment in her favor.

On April 13, 1976, Pat McEnery Bentley was awarded judgment against defendant, Industrial Fire Protection Company, for damages for invasion of her property. Defendant was cast for costs. Defendant appealed the judgment, and it was affirmed by the Court of Appeal on November 1, 1976. On February 3, 1977, approximately two and one-half months after the judgment had become executory, plaintiff filed a rule to fix the fee of a surveyor as an expert and to tax it as costs. The trial court held that although costs had been awarded to plaintiff, no prayer or request was made by plaintiff either in petition or brief to fix the surveyor’s fees as an item of cost. The court concluded that since there had been no specific prayer for expert fees, and since the judgment had become final, the court was without authority to reopen the case and add to the judgment. We reverse.

There are two issues on appeal: 1) Does rendering of judgment for “costs” include expert witness fees? 2) Can a rule to tax costs be filed after a final and executory judgment?

Article 1920 of the Code of Civil Procedure provides the general rule for awarding costs:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

The full scope of the term “costs” can be better understood by reference to Articles 549-552 of the prior Code of Practice which is the source of the present C.C.P. Art. 1920.

Art. 551. If the court have not decreed in their judgment that the party cast should pay the costs, the same are nevertheless due to the party in whose favor the judgment had been given; and such party shall be entitled to have the same taxed, on execution of the judgment.
Art. 552. The costs to be paid by the party cast include not only the taxed costs, but also all the expenses incurred in taking testimony by commission, and the compensation allowed, for their services, to such experts, auditors, or judicial arbitrators, as may have been appointed in the suit; [and also] the costs of copies of notarial acts, of judgments, and other copies of the records of other public officers, necessary in the cause.

We do not believe that the legislature by enacting C.C.P. Art. 1920 intended to change the concept that when costs are taxed, expert witness fees are implicitly included. Supportive of this inference is L.R.S. 13:3666, amended in 1960, adding subsection “B” which states:

The court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party cast in judgment either:
(1) from the testimony adduced upon the trial of the cause, the court shall determine the amount thereof and include same or,
(2) by rule to show cause brought by the party in whose favor a judgment is rendered against the party cast in judgment for the purpose of determining the amount of the expert fees to be paid by the party cast in judgment, which rule upon being made absolute by the trial court shall form a part of the final judgment in the cause. As amended Acts 1960, No. 114, § 1.

The language of subsection “B” mandates that expert fees be taxed under the denomination of “costs”, implying that a rendering of judgment for costs includes expert fees despite the absence of explicit language to this effect.

The issue concerning the period within which to file the rule to fix the fees is clarified by subsection “B” (2) of L.R.S. 13:3666, noted above, which provides that the rule can be filed after the judgment is rendered. The finality of the judgment is not disturbed by a simple numerical determination of an item already adjudged. A judgment on a rule to tax costs is only incidental to the main suit in which an executory judgment for costs has already been rendered. See Chrichton v. Krouse, 150 So. 443 (La.App.2d Cir. 1933). Although suit is terminated, costs remain an incident of the suit and one of its issues until paid. Morries v. Zeller, 4 Orl.App. 411 (1907). An action to obtain compensation for an expert begins to prescribe only when the suit terminates. Penouilh v. Toye Bros. Yellow Cab Co., 1 So.2d 131 (Orl.1941), Hibernia Bank & Trust Co. v. J. M. Dresser Company Ltd., 14 La.App. 555, 131 So.2d 752 (Orl.1930). Therefore, both the legislation and the jurisprudence are in accord that a rule to fix costs may be filed after final judgment.

For the reasons assigned, we reverse and remand for a determination of the expert witness fee. Cost of this appeal is assessed to appellee.


source: Caselaw Access Project

author: JONES, Judge.

license: Public Domain

text:
    Patricia S. TURNER, Plaintiff-Appellant, v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellee.
    No. 13344.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.
    En Banc. Rehearing Denied Oct. 31, 1977.

      Mecon, Scott & Woods by Leroy H. Scott, Jr., Shreveport, for appellant.
    James C. Dixon, Special Counsel, Poye L. Lowe, Jr., Associate Gen. Counsel, Baton Rouge, for appellee.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiff appeals a trial court judgment affirming the decision of defendant’s hearing officer to suspend her driver’s license for refusal to take the Implied Consent Sobriety Test. LSA-R.S. 32:661, et seq. Plaintiff had been arrested for DWI following an automobile accident.

Before a person’s driver’s license can be suspended for failure to take the chemical analysis test, it must be established: (1) the arresting officer had reasonable grounds to believe the person was driving while under the influence of alcoholic beverages; (2) the officer requested the person to submit to the test; (3) the officer advised him of the consequences of his refusal to be tested and his constitutional rights, and (4) the person refused to submit to the test. LSA-R.S. 32:661.

LSA-R.S. 32:667 provides if requirements of LSA-R.S. 32:661 are met, the officer shall submit to the department a sworn statement establishing the existence of these elements. Upon receipt of this sworn report the Department of Public Safety shall issue an order of suspension of the arrested person’s license for six months. The arrested person is notified of the suspension and given an opportunity for an administrative hearing.

LSA-R.S. 32:668 provides:
“ * * * The scope of such a hearing for the purposes of this Part shall cover the issues of whether a law enforcement officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle upon the public highways of this state while under the influence of alcoholic beverages, whether the person was placed under arrest, whether he was warned by the officer as provided in R.S. 32:661(C), whether he refused to submit to the test upon the request of the officer and such additional matters as may relate to the reasonableness of a suspension of the license.” (emphasis added)

Plaintiff’s license was suspended by the department following its receipt of a sworn report by the arresting officer.

Plaintiff requested and was granted an administrative hearing where the department, which had the burden of proof, offered into evidence the officer’s sworn statement, and copies of the accident report and DWI complaint to prove the essential elements justifying suspension. The hearing officer, over the objections of plaintiff’s counsel, admitted and reviewed the exhibits offered into evidence. No witnesses testified.

The hearing officer affirmed the order to suspend plaintiff’s license because he found the evidence presented at the hearing satisfied the requirements of the Implied Consent Law.

After the administrative hearing plaintiff filed in district court a petition to review the agency’s decision under LSA-R.S. 49:964 of the Administrative Procedure Act.

On review of the matter in the district court, the parties agreed to submit the case on the record from the administrative hearing. Based upon the record the trial court rendered judgment affirming the hearing officer’s decision to suspend plaintiff’s license.

At the hearing plaintiff’s attorney entered a general objection to the admissibility of the documents which the hearing officer reviewed. He reurges his objection to the admissibility of these documents on appeal. Defendant contends the documents are admissible under the liberal evidentiary rules contained in the Administrative Procedure Act (APA) R.S. 49:956:

“§ 956.(1) Agencies may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent men in the conduct of their affairs. .
(2) All evidence, including records and documents in the possession of the agency of which it desires to avail itself, shall be offered and made a part of the record, and all such documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference. . . . ”

The copies of the accident report and complaint contained the unsworn signature of the arresting officer. While the APA provides copies of documents and records are admissible into evidence, it is doubtful the unsworn report and complaint could be considered to possess probative value commonly accepted by reasonably prudent men so as to be admissible under the APA. A review of the contents of these documents reflects neither of them contain any indication plaintiff had the odor of alcohol or was unsteady on her feet or spoke with a thick tongue, these being evidentiary facts frequently accepted as establishing that the person who exhibits these symptoms is under the influence of intoxicating beverages. The police report states plaintiff was traveling on the wrong side of the road where she had a collision with one vehicle and ran another off the highway. The complaint states she used abusive language and kicked the arresting officer three times. This conduct may fall short of establishing reasonable grounds to believe plaintiff was under the influence of intoxicating beverages.

The Implied Consent Law requires the arresting officer have reasonable grounds to believe the individual was driving under the influence of intoxicating beverages before he may issue an order directing him to take the sobriety test. Without this requirement all drivers could be required to submit to the test including those who exhibited no indication of intoxication and upon their refusal all could be denied the right to drive for a period of six months. The act requires the reasonable grounds to be established in affidavit form before the department is empowered to suspend the license for refusal to take the test. The party whose license is suspended is entitled to a hearing at which time the department must prove evidentiary facts giving reasonable grounds for the arresting officer to believe the party intoxicated. Jaubert v. Department of Public Safety, 323 So.2d 212 (La.App., 4th Cir. 1975). The act requires more than a sworn conclusion that these grounds existed. It contemplates the hearing officer having an opportunity to hear sworn testimony or review a sworn document containing evidentiary facts which create a reasonable basis for the officer to believe the party being arrested was driving under the influence of alcohol.

The only sworn evidence in this record is the statement by the police officer before a notary public which purports to contain all the information necessary to justify the suspension of plaintiff’s driver’s license. The statement establishes plaintiff refused to take the test after being informed of the consequences of refusal and she had been advised of her constitutional rights. The sworn statement fails to include any circumstance or factual basis to justify the officer’s belief that plaintiff was operating a vehicle under the influence of intoxicating beverages. The statement, insofar as it purports to deal with this requirement, is limited to a conclusionary declaration that he “had reasonable grounds to believe Patricia S. Turner had been driving dr was in the physical control of a motor vehicle upon the highways of this state while under the influence of alcoholic beverages.” From the information contained in this statement it was impossible for the hearing officer to engage in a decisional process and make an independent determination as to whether the facts and circumstances surrounding plaintiff at the time of her arrest justified the officer in having reasonable grounds to believe she was intoxicated. While the accident report and complaint may be admissible under the APA, they are unsworn and cannot be considered as providing a basis for the hearing officer to determine the arresting officer had reasonable grounds to believe the plaintiff intoxicated. The liberal rule on the admissibility of evidence contained in the APA cannot limit the specific provisions of the Implied Consent Law which can only be interpreted to mean the reasonable grounds for the officer’s belief must be submitted in sworn form. Otherwise the Legislature would not have required this information be submitted by affidavit.

The element of reasonable grounds may be satisfactorily complied with by a sworn conclusionary statement of the officer at the stage in the proceedings of the initial suspension. At the second stage of the proceeding LSA-R.S. 32:668 requires the hearing officer to make a determination of the issue of whether the law enforcement officer had reasonable grounds. This issue can only be determined based upon eviden-tiary facts supporting the reasonableness of the officer’s belief. If the Legislature required the elements to be sworn to at the initial stage of the proceedings, it necessarily follows the evidentiary facts must be established at the hearing by sworn documents or testimony. The Legislature could not have intended that evidence of less dignity be used in affirming a suspension than was used as a basis for the initial suspension.

Since the record contained no sworn facts which could form a basis for a reasonable belief that plaintiff was intoxicated, the hearing officer was in error in affirming the suspension of her license. The trial court, upon review of the record, could not have found sufficient sworn evidentiary facts to support a conclusion that the arresting officer had reasonable grounds to believe plaintiff intoxicated, and for this reason it erred in affirming the decision of the hearing officer.

For reasons assigned, the judgment appealed is reversed and it is ordered that there be judgment in favor of plaintiff, Patricia S. Turner, and against the Department of Public Safety, Driver’s License Division, annulling and vacating the administrative decision of the department suspending plaintiff’s driver’s license.


text:
    Percy M. ALEXANDER, Jr., Receiver, et al., Plaintiffs-Appellants, v. BURROUGHS CORPORATION, Defendant-Appellee.
    No. 13345.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.
    En Banc. Rehearing Denied Oct. 31, 1977.

      Nelson & Achee, Ltd. by Harry R. Nelson, Shreveport, for plaintiffs-appellants.
    Lunn, Irion, Switzer, Johnson & Salley by Richard H. Switzer, Shreveport, for defendant-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

Percy M. Alexander, Receiver for Peerless Supply Company, Inc., sought to rescind the sale of a defective accounting computer purchased from the manufacturer, Burroughs Corporation. General Electric Credit Corporation, holder of a chattel mortgage on the computer, joined in the suit as a party plaintiff. The trial court found the machine subject to a redhibitory vice, rescinded the sale and cancelled the chattel mortgage, but denied plaintiffs’ demands for the purchase price and expenses on the theory the claims for these sums were offset by Peerless’s use of the computer. Peerless’s demands for attorneys’ fees and damages were rejected.

Plaintiffs appeal, seeking to affirm the portion of the judgment rescinding the sale and to reverse the rejection of their demands for the purchase price, expenses, attorneys’ fees and damages. Defendant answers, seeking a reversal of the rescission of the sale on the ground of prescription and on the further ground of plaintiffs’ failure to prove the computer defective.

We affirm the rescission of the sale and reverse the trial court’s rejection of plaintiffs’ other demands and award plaintiffs the purchase price, expenses, attorneys’ fees and damages.

Peerless purchased the computer in December, 1970 and it was delivered April 24, 1971. Prior to and after delivery the machine frequently malfunctioned. Peerless’s employees testified some of the computer malfunctions included “finding the wrong line and stacking over figures which caused a double print”, and “picking up one employee’s name from its memory from a prior card and printing it on the next fellow’s check.” Because of these problems plaintiffs’ employees frequently were required to write the payroll by hand and revise accounts receivable. On October 28 Peerless wrote defendant demanding satisfactory repair of the computer within 30 days and use of one of defendant’s employees to post accounts receivable which were not current because of numerous computer malfunctions. This letter stated:

“If the computer is not working to our satisfaction within 30 days from November 1, you will pick up the machine and refund to us and General Electric Corporation the full purchase price of said machine.”

During November the defendant replaced the memory bank (or “the brain”) of the computer and caused Peerless to effectively ground (rewire) its building. Defendant assigned an employee to work with Peerless for 30 days to complete programs, correct defects and assist Peerless’s employees in updating accounting records. For several months following this extensive repair the computer malfunctioned less frequently. However, it eventually returned to the former pattern of serious incorrect operation.

In March, 1972, Burroughs ceased repair efforts on the computer under their warranty and thereafter made standard charges to Peerless for parts and services. The record reflects defendant made service calls on the following dates: March 23, 28, and 31; April 24 and 27; May 1, 3, 5,11,15, 24 and 31, and rendered total charges of $666.93.

Between March and May, 1972 the computer malfunctions included failure to pick up correct name and address on accounts, printing debits instead of credits, computing incorrect balances, poor printer readout, and advancing the balance of one customer’s account to the next customer’s account. In an attempt to maintain accounting efficiency, Peerless’s employees were required to check the computer by using other accounting methods and manually update accounts. This required Peerless’s employees to work overtime.

The receiver, who was appointed to represent Peerless in Chapter XI reorganization under the Bankruptcy Act, testified because of the computer’s malfunctioning Peerless was unable to post its accounts and send out statements to its customers for collection. For these reasons, by letter dated June 29, 1972, the receiver demanded rescission of the sale. Suit was filed October 25, 1972.

The following issues are presented on appeal: (1) had Peerless’s action in redhibition prescribed? (2) did Peerless’s continued use of the computer waive the right to redhibition? (3) did Peerless prove the computer to be subject to a redhibitory vice? (4) should Peerless’s use of the computer offset its claim for purchase price and expenses, and (5) is Peerless entitled to damages and attorneys’ fees against the vendor-manufacturer?

DEFENDANT’S PLEA OF PRESCRIPTION

Defendant filed a plea of prescription based upon LSA-C.C. Arts. 2498, and 2534 which require an action in redhibition be filed within one year from the sale. The trial court rejected the plea of prescription and defendant urges same on appeal. Purchase of the Burroughs computer was completed December, 1970, and delivery of the computer to Peerless’s place of business occurred April 24, 1971. Plaintiffs’ suit was filed October 25, 1972, more than one year from sale and delivery of the unit. Repairs were commenced on the computer at Burroughs’ place of business prior to delivery and continued until May, 1972, including replacement of the memory bank, a substantial repair, in November, 1971.

Prescription does not begin to accrue until the seller has abandoned all attempts to repair the defect. Schamens v. Crow, 326 So.2d 621 (La.App., 2d Cir. 1976). The trial court was correct in denying defendant’s plea of prescription because extensive repairs were made on the machine within less than one year of institution of suit.

PLAINTIFFS’ RIGHT TO RESCIND THE SALE

Defendant urges Peerless waived the right to pursue redhibition by continuing to use the machine for a period from April, 1971 to June, 1972. Use does not constitute waiver of the buyer’s right to rescission where use occurs while the seller is undertaking repairs and thus leading the buyer to believe the defects can be corrected. Purvis v. Statewide Trailer Sales, Inc., 339 So.2d 403 (La.App., 1st Cir. 1976) and Breaux v. Winnebago Industries, Inc., 282 So.2d 763 (La.App., 1st Cir. 1973). Defendant responded to every call of Peerless for help with the computer and upon receipt by Burroughs of Peerless’s demand letter of October 28, Warren Williams, Burroughs’ local manager, advised Peerless the defects in the machine would be remedied. Peerless did not waive its right to rescind the sale by continuing to use the machine as it had been led to believe the malfunctioning would be corrected.

PROOF OF REDHIBITORY DEFECT

The seller is bound by an implied warranty that the thing sold is free of hidden defects and reasonably fit for the product’s intended use. LSA-C.C. Arts. 2475, 2476, 2520; Rey v. Cuccia, 298 So.2d 840 (La.1974). A redhibitory defect entitling the buyer to annul the sale is a defect in a thing sold “which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.” LSA-C.C. Art. 2520; Smith v. Max Thieme Chevrolet Company, Inc., 315 So.2d 82 (La.App., 2d Cir. 1975).

Burroughs contends on appeal plaintiffs failed to establish by a preponderance of the evidence the computer was defective. The vendee need not in a sale of complicated machinery prove the exact cause of the defect which renders the thing unsatisfactory for use in order to establish redhibition, but a showing by a preponderance of evidence that a defect existed is sufficient. Crawford v. Abbott Automobile Company, 157 La. 59, 101 So. 871 (1924); Peters v. Pattison Pontiac Company, 259 So.2d 99 (La.App., 4th Cir. 1972); Kennedy v. Vidalia Home Service, Inc., 256 So.2d 827 (La.App, 3d Cir. 1972).

The evidence established numerous malfunctions of the computer which impaired its effective use and required many service calls by the Burroughs people. While this evidence does not establish the exact nature of the vice of the complex computer, it establishes performance was so imperfect and caused such inconvenience that Peerless would not have purchased the computer had it been aware of the defects. The trial judge evaluated the evidence on redhibition and set the sale aside and his decision in this respect is entitled to great weight on appeal. Canter v. Koehring Company, 283 So.2d 716 (La.1973). We find the record supports the finding Peerless has satisfied the burden of proof required in a redhibitory action.

PLAINTIFFS’ RIGHT TO PURCHASE PRICE, EXPENSES, ATTORNEYS’ FEES AND DAMAGES

In a redhibitory action a buyer is entitled to recover the purchase price and expenses from a seller who has no knowledge of the defect. LSA-C.C. Art. 2531.

The buyer is also entitled to recover expenses, attorneys’ fees and damages if the seller knows of the defect and fails to declare it. LSA-C.C. Art. 2545.

A manufacturer is presumed to know the defects in the things made by him, and consequently is liable under LSA-C.C. Art. 2545 for damages and attorneys’ fees in addition to the price and expenses in connection with the sale. LSA-C.C. Art. 2531. Media Production Consultants, Inc. v. Mercedes-Benz of N. A., Inc., 262 La. 80, 262 So.2d 377 (1972); Rey v. Cuccia, supra; Smith v. Max Thieme Chevrolet Company, Inc., supra.

The defendant manufactured the defective computer sold to Peerless and was therefore liable for the return of the purchase price, expenses, attorneys’ fees and damages.

OFFSET OF VALUE OF USE OF COMPUTER AGAINST PURCHASE PRICE

A seller is entitled to a credit against the claims of a buyer of a defective article for the value of the use the buyer has received from the defective article. Smith v. Max Thieme Chevrolet Company, Inc., supra. The seller has the burden of proving the value of the use of the defective article to the buyer in order to assert the value of the use as a credit against the sums to which the buyer is entitled. Burroughs failed to meet this burden of proof and the trial court erred in denying plaintiffs’ claims by offsetting the use of the computer against them. Boudreaux v. Mazda Motors of America, Inc., 347 So.2d 504 (La.App., 4th Cir. 1977).

There being no evidence in the record of the value to Peerless of the use of the computer, we follow the rule that use of the thing and use of the price are equal, and deny Burroughs any additional offset claim against Peerless for use of the computer. Farmer v. Fisk, 9 Rob. 351 (La.1844); Harvey v. Kendall, 2 La.Ann. 748 (La.1847); Boudreaux v. Mazda Motors of America, Inc., supra. Peerless is not entitled to recover finance charges from Burroughs as these constitute charges for use of a portion of the purchase price and we have held Burroughs entitled to interest free use of the purchase price as an equivalent to Peerless’s use of the computer. Boudreaux v. Mazda Motors of America, Inc., supra.

Plaintiffs are entitled to interest on the purchase price from March 8, 1977, the date of the trial court judgment ordering rescission. Peerless still has possession of the computer and theoretically it has been available for use, although the record reflects Peerless discontinued use of the computer in June, 1972. Therefore, as a practical matter, Burroughs has enjoyed interest-free use of the purchase price for a period over five years in exchange for Peerless’s use of the computer for approximately 13 months. Should Peerless’s use of the computer have a value in excess of the value Burroughs received from use of the purchase price, the damages suffered by Peerless as a result of the inefficiency of its business operations (i. e., late and inaccurate customer billing, overtime pay to accounting personnel) brought about by computer malfunction more than offset any additional use value it may have received from the machine above that which we have allowed Burroughs.

The purchase price of the computer and related expenses of the sale to which plaintiffs are entitled are as follows:

$22,132.68 Purchase Price
$ 1,065.90 Programming

The only damage Peerless has established is the sum of $666.93 expended for repair of the computer.

Considering the complexity of the facts and legal issues involved in this litigation, we find attorneys’ fees in the amount of $5,000 are reasonable for services rendered by Peerless’s attorneys.

The defendant is to pay court costs below and on appeal.

For reasons assigned, the judgment is recast to read as follows:

It is ordered there be judgment in favor of Percy M. Alexander, Jr., Receiver for Peerless Supply Company, Inc. and General Electric Credit Corporation and against Burroughs Corporation rescinding the sale of that certain Burroughs E 4394 Electronic accounting machine, bearing serial number E 15435.

It is further ordered that the chattel mortgage on the Burroughs E 4394 Electronic accounting machine in favor of General Electric Credit Corporation recorded May 12, 1971 as Register Number 411,973, Chattel Mortgage Records, Caddo Parish, Louisiana, be cancelled.

It is further ordered there be judgment in favor of Percy M. Alexander, Jr., Receiver for Peerless Supply Company, Inc., and General Electric Credit Corporation for the purchase price in the sum of $22,132.68 at 7% interest per annum from March 8, 1977, which said amount shall be prorated as follows: $17,955.05 with interest to General Electric Credit Corporation (this being the unpaid balance on the chattel mortgage note) and $4,177.63 with interest to Percy M. Alexander, Jr., Receiver.

It is further ordered that there be judgment in favor of Percy M. Alexander, Jr., Receiver for Peerless Supply Company, Inc., and against Burroughs Corporation for programming and repair expenses in the sum of $1,732.83 at 7% interest per annum from March 8, 1977.

It is further ordered that there be judgment in favor of Percy M. Alexander, Jr., Receiver for Peerless Supply Company, Inc., and against Burroughs Corporation for attorneys’ fees in the sum of $5,000 at 7% interest per annum from March 8, 1977.

It is further ordered that Burroughs Corporation pay all court costs.

Reversed in part, affirmed in part and rendered.


author: BOLIN, Judge.

text:
    R. H. ALAGOOD, Plaintiff-Appellee, v. BOSSIER PRESS, INC., Defendant-Appellant.
    No. 13347.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.
    James B. Wells & Associates by A. R. Snell, Bossier City, for defendant-appellant.
    Naff, Kennedy, Goodman, Stephens, Donovan & Parnall by Robert J. Donovan, Jr., Shreveport, for plaintiff-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

Plaintiff, assignee for an office supply company, sued defendant newspaper company for the balance due on an open account. Defendant denied the debt, claiming the parties had a “trade out” agreement whereby defendant was to pay for the merchandise by running advertisements for the supply company in its newspaper. The trial court found only a portion of the debt was paid by the “trade out” and rendered judgment in plaintiff’s favor for the balance. Defendant appeals and we affirm.

The issue is whether the record supports the findings of the trial judge.

Appellant contends the trial judge erred in according any weight to the testimony of plaintiff’s principal witness, a salesman and officer of the supply company. The trier of fact is in much better position than are we to determine the credibility of witnesses, and we find no reason nor basis for disagreeing with his findings in this case.

We adopt the written reasons of the trial court and the judgment is affirmed at appellant’s cost.


author: PER CURIUM.

text:
    S. Leo GRICE, Plaintiff-Appellee, v. Clyde HAY, Defendant-Appellant.
    No. 13427.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.
    Evans & Auer by Frank M. Auer, Shreveport, for defendant-appellant.
    Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, Hal R. Henderson, Arcadia, for plaintiff-appellee.
   PER CURIUM.

Upon lodging of the record in this case involving a possessory action, the court noted probable lack of jurisdiction due to failure of the appellant to post an appeal bond within the thirty-day period for taking an appeal provided by LSA-C.C.P. Arts. 3662, 2123 and 2087.

Appellant was notified of our probable lack of jurisdiction and failed to respond to our order to show cause why this appeal should not be dismissed.

Judgment was signed May 13, 1977. Appellant applied for a new trial on May 24, which motion was denied June 14. Appellant timely filed a motion for appeal on July 12, but failed to furnish security until July 18 which was not timely.

At appellant’s cost, the appeal is dismissed.


author: GUIDRY, Judge.

text:
    INTERSTATE ELECTRIC COMPANY, INC., Plaintiff-Appellant, v. Charles W. HOLMES d/b/a Holmes Radio and Record Shop, Defendant-Appellee.
    No. 6328.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 1977.
    John G. Williams, Natchitoches, for plaintiff-appellant.
    Makar & Whitaker by John B. Whitaker, Natchitoches, for defendant-appellee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   MOTION TO DISMISS

GUIDRY, Judge.

Because an examination of this record revealed an apparent jurisdictional defect, we issued, ex proprio motu, a rule to show cause why this appeal should not be dismissed due to the appellant’s failure to timely file the appeal bond required by his order of appeal dated June 27, 1977. The appellant has timely responded to the rule.

This is a suit on an open account. Judgment was read and signed in this matter in favor of the defendant on May 17,1977, and according to the record, notices of judgment were mailed to the parties on May 18,1977.

On June 27, 1977, the plaintiff moved for and was granted a devolutive appeal, returnable to this court on August 25, 1977. Bond was set at $300.00. However, the appellant did not file its appeal bond until August 22, 1977, which was later than the 60 days he had under LSA-C.C.P. Art. 2087(1) in which to perfect his appeal.

In its answer, the appellant argues that no notice of judgment was received, therefore it had, citing LSA-C.C.P. Art. 1913, 60 days from the date in which it moved for its appeal in which to file the appeal bond. We disagree. Whether or not the appellant received a notice of judgment is not important in this case, since the record shows that the matter was not taken under advisement, nor was written request for a notice of judgment filed.

Therefore, the appellant was not entitled to notice under LSA-C.C.P. Art. 1913. Under LSA-C.C.P. Art. 2087(1) the appellant’s time for perfecting its appeal began to run on May 18, 1977, and expired on July 25, 1977. Since the appellant did not perfect its appeal by filing its appeal bond by this date, its appeal must be dismissed.

The plaintiff-appellant’s appeal is hereby dismissed at its cost.

APPEAL DISMISSED.


author: REDMANN, Judge.

text:
    Noelie M. HOTARD v. Richard R. HOTARD.
    No. 8830.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Don Almerico, Norco, for plaintiff-appellant.

      Victor E. Bradley, Jr., Norco, for defendant-appellant.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   REDMANN, Judge.

We deny our motion to dismiss for want of “jurisdiction” (C.C.P. 2088; Guilliot v. City of Kenner, La.1976, 326 So.2d 359) this appeal from a January 18, 1977 separation judgment not perfected by filing bond until March 11.

The 30 days C.C.P. 3942 allows for appeal runs from the expiration of the delay for applying for a new trial, C.C.P. 2087(1), since none was applied for. The seven-day delay for applying for new trial would have commenced, C.C.P. 1974, the day after mailing or service of notice, required by C.C.P. 1913 because the case was taken under advisement.

No notice was mailed or served. If we deem appellant’s February 7 motion for appeal an equivalent or a waiver of C.C.P. 1974’s notice, we would still have to allow the seven days of C.C.P. 1974 and then the 30 days of C.C.P. 3942; In re Salmon, La. App. 2 Cir. 1975, 318 So.2d 897. Accordingly the bond filed on March 11, 32 days after the February 7 motion for appeal, would have timely perfected the appeal.

Motion denied.