Audio Plus, Inc. v. Lombardino

105 So. 3d 725, 2012 WL 4127260, 2012 La. App. LEXIS 1160
CourtLouisiana Court of Appeal
DecidedSeptember 20, 2012
DocketNo. 47,488-CA
StatusPublished
Cited by5 cases

This text of 105 So. 3d 725 (Audio Plus, Inc. v. Lombardino) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Audio Plus, Inc. v. Lombardino, 105 So. 3d 725, 2012 WL 4127260, 2012 La. App. LEXIS 1160 (La. Ct. App. 2012).

Opinion

STEWART, J.

_JjAudio Plus, Inc., seeks review of the trial court’s involuntary dismissal of its action in contract against Sidney Patrick Lombardino, d/b/a SPL Corporation d/b/a Wild Orchid Cabaret. For the following reasons, the trial court’s judgment is affirmed.

FACTS

In December 2009, Audio Plus filed suit against Lombardino, alleging that he owed $5,543.54, plus interest and attorney fees, for services performed by Audio Plus and billed on open account. The services consisted of remodeling work done at the Wild Orchid Cabaret in Bossier City, Louisiana. Plaintiffs petition referenced an attached invoice indicating total work completed that, after credit and payments made, left the outstanding balance of $5,543.54.

On March 18, 2010, Lombardino filed an answer generally denying the allegations in plaintiffs petition, and further asserting compromise, lack of consideration, and work not completed in accordance with the agreement. Subsequently, on August 9, 2010, Lombardino amended his answer and added a reconventional demand against Audio Plus and against Komkrit Jim Chimpalee, an employee of Audio Plus, individually. Lombardino asserted that there was no open account agreement, but that the parties’ agreement was for installation of a sound, video and audio system, a television and other items in the Wild Orchid. According to Lombardino, Audio Plus and Chimpalee installed a 46" television, a 93" motorized screen, and a projector that were nonworking; they failed to finish the contract and left the job; and | 2Lombardino had to hire another contractor to finish the job for $6000 — the amount of Lombardino’s reconventional demand.

On December 28, 2010, Lombardino filed a second amended answer and reconven-tional demand making an additional allegation that Audio Plus and Chimpalee contracted to install a lighting system with materials, and that the lighting system was improperly installed. The new pleading also alleged that Audio Plus and Chimpa-lee had removed the 93" motorized screen and a nonworking projector, that they had [727]*727never returned those items, and that they were liable for the value of the items. Furthermore, Lombardino alleged that Audio Plus and Chimpalee were liable for the amount Lombardino paid to have the lighting system installed properly.

Audio Plus and Chimpalee responded on March 7, 2011, with an answer denying the allegations of the reconventional demands, and with an exception of no cause of action on behalf of Chimpalee based upon the argument that, as a mandatary contracting on behalf of a principal, Chimpalee did not bind himself personally.

The matter came on for trial on March 11, 2011. On cross-examination, Lombar-dino he testified that by verbal contract he authorized Audio Plus to do work up to, but not exceeding $5000, and that he paid $5000 prior to receiving any bills from Audio Plus. He also testified that he paid $4000 to repair work done by Chimpalee.

Nannette Chimpalee, the wife of Jim Chimpalee and secretary/treasurer of Audio Plus, testified as to the accuracy of the amount allegedly owed by Lombardino. She indicated that she prepared the bill that was introduced into | ¡¡evidence on behalf of Audio Plus, and that the bill was based upon log records from the employees. She also indicated that the bill, dated September 2, 2009, had been given to Lombardino on that date, prior to his making payments on September 19 and 30, 2009. Additionally she testified that Lom-bardino had not complained about the products or work.

Jim Chimpalee also testified to the accuracy of the amount allegedly owed by Lombardino. He denied ever having a conversation with Lombardino about a limit being placed on the work done, but testified to a continuing course of business with Lombardino. With respect to the projector and screen mentioned in the re-conventional demand, Chimpalee indicated that he still possessed the items, and that Lombardino could have them. He also stated that Lombardino had not complained about anything not working or about the bill being too high. Additionally, he testified that, instead of billing on accounts monthly, Audio Plus had, at that time, billed when a job or project was completed.

After Jim Chimpalee’s testimony, Audio Plus rested its case, and Lombardino moved for an involuntary dismissal. Following a brief recess, the trial court granted the involuntary dismissal, concluding there was no open account because there were no “interval payments and regular interval billing to classify this as an open account....” The court also concluded that the plaintiff had failed to carry its burden by a preponderance of the evidence. In this regard, the court initially stated:

There is no concise determination to be made regarding the outstanding balance as alleged by Audio Plus insomuch that there is no bid on the items prior to or signed off on by the defendant setting forth the amount that’s owed, or the work that will be performed, a L contractual agreement as to the hourly rate, or the material that will be used and because of that, that forces the — the Court to have a credibility call as to the recollection of the plaintiffs as to what work was performed, what amounts were received, how many dollars were outstanding.

When the plaintiffs attorney then asked for clarification regarding not making a prima facie case, the court stated:

My conclusion is, is that it’s unable for the Court to determine that any amounts are owed based upon the — the fact that there’s no contract in place setting, or bid contract, that’s setting [728]*728forth the — the work to be performed. There is a response, or affirmative defense, raised and testimony by the defendant that he agreed to $5,000 as a flat rate contract. There’s testimony by Mr. Chimpalee and Ms. Chimpalee on behalf of Audio Plus that that was not the agreement and that there was subsequent invoices that were dated July 15th of 2009 and June 2nd of 2009, setting out something totally different. There’s been no proof other than the testimony of Mr. testimony (sic) — I mean, Mr. Chimpalee that these items were placed on the premises of the — the defendant’s property along with the hourly work that was performed. And the Court’s having to make a credibility call based upon the testimony and recollection of the plaintiffs, as well as, the defendant and can find no, beyond a preponderance of the evidence, that — that there was not a — either a handshake agreement to do it for $5,000, or that there was a non-agreement for the sequential, or substantive work that was done, or alleged to be done by the plaintiffs in this matter.

After the involuntary dismissal of the plaintiffs case, the court took up the defendant’s reconventional demand. However, because the trial court ultimately rejected the reconventional demand for lack of sufficient evidence, and because the defendant has not appealed, no discussion is warranted in that regard.

DISCUSSION

Audio Plus presents three issues on appeal (verbatim):

1. Was this an open account and what constitutes prima facia (sic) evidence of an open account?
|s2. Were the Trial Court’s conclusions clearly wrong (manifestly erroneous)?
3. Was there a preponderance of evidence substantiating work performed on an open account, charges and credits?

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Cite This Page — Counsel Stack

Bluebook (online)
105 So. 3d 725, 2012 WL 4127260, 2012 La. App. LEXIS 1160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/audio-plus-inc-v-lombardino-lactapp-2012.