Ollis v. Miller

886 So. 2d 1199, 2004 WL 2414494
CourtLouisiana Court of Appeal
DecidedOctober 29, 2004
Docket39,087-CA
StatusPublished
Cited by16 cases

This text of 886 So. 2d 1199 (Ollis v. Miller) 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
Ollis v. Miller, 886 So. 2d 1199, 2004 WL 2414494 (La. Ct. App. 2004).

Opinion

886 So.2d 1199 (2004)

John Wilson OLLIS and Linda Neu Ollis, Husband & Wife, Plaintiffs-Appellees
v.
Adam Edward MILLER and Mary Ann Nimm Miller, Husband & Wife, Defendants-Appellants.

No. 39,087-CA.

Court of Appeal of Louisiana, Second Circuit.

October 29, 2004.

*1201 Charles J. Neupert, Jr., Shreveport, for Appellant.

Katherine Clark Dorroh, for Appellee.

Before BROWN, CARAWAY, and DREW, JJ.

BROWN, C.J.

On January 10, 2000, plaintiffs, John and Linda Ollis, agreed to purchase from defendants, Adam and Mary Miller, a home located at 590 Waterford Place in Shreveport, Louisiana, for the price of $335,000. Prior to the closing, on January 17, 2000, plaintiffs had the property inspected by Jimmy Sitter, who noted numerous defects, including visible moisture rot on the front balcony and visible moisture effects (soft areas) on the east balcony. Prior to plaintiffs' taking possession, repairs were made to the posts on the front balcony. Based upon Sitter's recommendations, plaintiffs did not require that repairs be made to the east balcony. Thereafter, on February 1, 2000, plaintiffs purchased the property from defendants.

In the fall of 2000, plaintiffs hired Ken McDonald to repaint their home. As the painters were preparing the wood on the balconies, several problems were discovered. Plaintiffs hired a civil engineer to determine what repairs would be necessary. The following conditions were found:

Front balcony:
1. The lumber used to originally construct the cantilever beams was not pressure treated or designed for exterior use, resulting in severe wood rot.
2. Drywall mud, designed for interior use, had been used to fill in areas of rotted wood within the beams and spaces between the beams.
3. On the inside, the paint on the drywall had bubbled and peeled because of the dampness of the exterior conditions.
4. Supporting studs as well as the siding on the exterior of the second story of the house had to be replaced.
Side balcony:
1. The balcony had sustained internal fire damage which was not visible during the inspection conducted by plaintiffs prior to closing; this cause the porch to be structurally unsafe.
2. Damaged floor joists in the interior of the house had to be replaced, which also involved removing and replacing the floor decking on the second floor.
3. The ceiling of the bedroom below required repair.
4. The side balcony needed to be made smaller to enable connection to the new floor joists.

Plaintiffs filed suit against defendants in February 2001, seeking a reduction in the *1202 price of the home, together with damages, costs and attorney fees. After dismissing claims related to an allegedly defective septic system and inadequate spacing between sprinkler heads, the trial court found that defendants made repairs "in a fashion (that) amounted to an intentional concealment of the damaged areas." The court awarded plaintiffs repair costs in the amount of $24,980 and damages for inconvenience and aggravation in the amount of $5,000; however, the court reduced the total damage award by 15% because plaintiffs failed to call their painter and contractor, Kenneth McDonald, as a witness or offer his testimony by deposition which made it difficult for the court to determine the exact repairs made, together with the associated costs. Plaintiffs were also awarded expert witness fees in the amount of $2,000, together with attorney fees in the amount of $19,954.38. It is from this judgment that defendants have appealed. For the reasons set forth below, we amend the judgment in part and, as amended, affirm.

Discussion

There are two preliminary matters that bear on our analysis of whether plaintiffs established their redhibitory claim against defendants.

First, defendants argue that without the testimony of their painter and contractor, plaintiffs did not carry their burden of proof, and the trial court erred in finding in their favor. According to defendants, Ken McDonald's testimony was critical inasmuch as he was the person who inspected plaintiffs' home, estimated the necessary repairs, bid on the project, and then performed the repair work on the house.

An adverse presumption exists when a party having control of a favorable witness fails to call him to testify. Louisiana Safety Association of Timbermen Self Insurers Fund v. Malone Lumber, Inc., 34,646 (La.App.2d Cir.06/20/01), 793 So.2d 218, writ denied, 01-2557 (La.12/07/01), 803 So.2d 973. However, the adverse presumption rule is tempered by the fact that a party need only put on enough evidence to prove its case. Id.; State Farm Fire and Casualty Co. v. Torregano, 00-141 (La.App.5th Cir. 09/26/00), 769 So.2d 754. He may do so by calling one or more other witnesses concerning an issue. Wilson v. U.S. Fire and Casualty Co., 593 So.2d 695 (La.App. 4th Cir.1992), writs denied, 597 So.2d 1027, 1037 (La.1992).

For the reasons expressed further in this opinion, we find no merit to this assignment of error, inasmuch as the record contains sufficient testimony from the engineer, Jimmy Sitter, and John Ollis, as well as documentary evidence to support plaintiffs' claim. See Davis v. Puryear, 95-1637 (La.App. 4th Cir.05/01/96), 673 So.2d 1298, writ denied, 96-1380 (La.10/04/96), 679 So.2d 1381.

Second, defendants assert that the trial court erred in allowing into evidence written proposals and invoices prepared by Ken McDonald, who did not testify at trial as set forth above. According to defendants, the proposals and statements constituted inadmissible hearsay.

The proposals and invoices were introduced into evidence during the testimony of Mr. Ollis, who coordinated the repairs and paid for the work as it was completed. These documents were introduced as evidence of payments made by plaintiff to repair the home. Bills, invoices, and statements are admissible under the business records exception to the hearsay rule to prove damages. Carroll v. Coleman, 27,861 (La.App.2d Cir.01/24/96), 666 So.2d 1264; Fidele v. Crescent Ford Truck Sales, Inc., 00-1934 (La.App. 5th Cir.04/11/01), 786 So.2d 147. As noted by this court in Carroll, supra, invoices and *1203 bills are admissible to show a plaintiff's expenses or damages, not to show that the services or work was necessary or that the expenses incurred were reasonable. We find no error in the admission of this documentary evidence.

A more difficult consideration is the fact that the trial court reduced the total damages awarded to plaintiffs by 15% due to McDonald's failure to testify. Plaintiffs did not claim this as error and this is not before us at this time. It does, however, give credence to defendants' claim that plaintiffs failed to prove with exactitude their damages. We will address this issue later in this opinion.

Defendants next take issue with the ruling of the trial court finding that there were redhibitory defects in the home plaintiffs purchased from them.

The warranty against redhibitory defects is set forth in La. C.C. art. 2520, which provides:

The seller warrants the buyer against redhibitory defects or vices in the thing sold. A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect.

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Bluebook (online)
886 So. 2d 1199, 2004 WL 2414494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ollis-v-miller-lactapp-2004.