Scott v. Noel

506 So. 2d 1313
CourtLouisiana Court of Appeal
DecidedMay 6, 1987
Docket18658-CA
StatusPublished
Cited by9 cases

This text of 506 So. 2d 1313 (Scott v. Noel) 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
Scott v. Noel, 506 So. 2d 1313 (La. Ct. App. 1987).

Opinion

506 So.2d 1313 (1987)

Leroy H. SCOTT, Jr., Plaintiff-Appellee,
v.
J.S. NOEL, d/b/a River Boat Inn, Defendant-Appellant.

No. 18658-CA.

Court of Appeal of Louisiana, Second Circuit.

May 6, 1987.

*1314 Francis M. Gowen, Jr., Shreveport, for plaintiff-appellee.

Hal V. Lyons and David G. Moore, Shreveport, for defendant-appellant.

Before JASPER E. JONES, FRED W. JONES, Jr., and NORRIS, JJ.

JASPER E. JONES, Judge.

The plaintiff, Leroy H. Scott, Jr., sued defendant, J.S. Noel, d/b/a River Boat Inn, for the balance of the price due under a lease/purchase agreement for a telephone system. The trial court rendered judgment in plaintiff's favor and defendant appealed. We amend and affirm.

Defendant's appeal raises the following issues:

(1) Did the trial court err in concluding the lease/purchase agreement included the "Terms and Conditions of Lease" contained in pages 3 through 5? and
(2) Did the trial court err in awarding plaintiff attorney fees in the amount of *1315 25% of the balance due, as provided for in the agreement?

Background Facts

On August 6, 1985 Jerry Arthur Whittington—Trust Fund and defendant entered into a written lease/purchase contract which was introduced into evidence at trial as "P-2." By the terms of this agreement, Whittington agreed to supply and install a telephone system in defendant's business and defendant agreed to lease the system for 84 months at the rate of $804.00 per month. Defendant was given an option to purchase the system at the end of the term. He paid the first and last installments up front as per the agreement. The agreement provided defendant with a two year warranty on all parts and labor from Advanced Telecommunication Systems, Inc.

On August 29, 1985 Whittington assigned the lease/purchase contract to plaintiff for $25,000.00 and other consideration. Defendant refused to pay the installments to plaintiff, claiming the system had not been installed. Plaintiff sued defendant for the balance of the price due pursuant to an acceleration clause contained in the agreement, together with interest and attorney fees. Defendant filed an original and supplemental third party demand against Whittington, but the trial court severed the third party demand due to insufficient service of process.

The trial court found defendant liable to plaintiff for $65,928.00, the balance due under the agreement, plus 1½% interest per month from September 11, 1985 until paid. In addition, the trial court awarded plaintiff attorney fees in the amount of 25% of the balance plus interest, as per the agreement.

Issue No. 1—The Terms of the Agreement

Defendant contends the trial court erred in concluding the lease purchase contract included pages 3 through 5 of "P-2" labeled "Terms and Conditions of Lease." He testified when he signed "P-2" it consisted of only the first two pages and four days later Mr. Lynch, who notarized "P-2", presented pages 3 through 5 for his signature. Defendant stated he refused to sign and include these pages in the agreement because they contained a waiver of warranty which was inconsistent with his agreement with Whittington. Defendant relies upon Lynch's testimony that defendant rejected pages 3 through 5.

Plaintiff contends the trial judge's credibility call as to whether pages 3 through 5 were included in the agreement is not clearly wrong. He avers the inconsistencies in the testimony of Lynch and defendant support the trial judge's credibility call. Plaintiff points out defendant testified Lynch did not give him legal advice concerning the lease/purchase agreement, but Lynch testified he discussed the agreement with defendant. He further points out defendant testified he was given two pages on one occasion and given pages 3 through 5 on another occasion, but Lynch testified he handed defendant five pages at one time. Plaintiff relies upon Whittington's testimony to the effect he signed the agreement before sending it to defendant and the agreement consisted of five pages when he signed it and when it was returned containing defendant's signature. Whittington further stated he was never informed defendant rejected pages 3 through 5. Plaintiff contends this testimony of Whittington further supports the trial judge's finding that pages 3 through 5 were included in the agreement.

Applicable Law

Courts are bound to give legal effect to all written contracts according to the true intent of the parties and this intent is to be determined by the words of the contract when they are clear, explicit and lead to no absurd consequences. LSA-C.C. arts. 2045 and 2046;[1]LRH, Inc. v. Tiller, 478 So.2d 630 (La.App. 2d Cir.1985); Smith v. Leger, 439 So.2d 1203 (La.App. 1st Cir.1983).

*1316 All provisions of a contract are interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. LSA-C.C. art. 2050;[2]Pendleton v. Shell Oil Co., 408 So.2d 1341 (La.1982); Franks Petroleum, Inc. v. Mayo, 438 So.2d 696 (La.App. 2d Cir.1983), writ den., 443 So.2d 595 (La.1983).

The trial judge is in a better position to evaluate the credibility of witnesses and the weight of evidence than an appellate court which does not see or hear the witnesses. For this reason, a reviewing court should adopt the trial court's findings as its own in the absence of clear error, even if other conclusions from the same evidence are equally reasonable. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Harris v. Pineset, 499 So.2d 499 (La.App. 2d Cir. 1986); writ den., 502 So.2d 114 and 502 So.2d 117 (La.1987).

In the instant case, we conclude the trial judge's finding that the agreement entered into between defendant and Whittington included pages 3 through 5 labeled "Terms and Conditions of Lease" is not clearly wrong. Defendant admitted signing page 2 of the agreement and agreeing to the terms contained on pages 1 and 2. Page 1 of the agreement provides in pertinent part: "The terms and conditions of the agreement are found on the following pages captioned `Terms and Conditions of Lease'." Page 2 of the agreement provides in pertinent part: "The terms and provisions on the annexed pages shall form a part of this contract." The "Terms and Conditions of Lease" provide, among other things, that the lessor does not warrant anything. These terms and conditions further provide they do not alter any warranty given by Advanced Telecommunication Systems, Inc. to the lessee.

Mr. Lynch testified he took "P-2" which contained five pages to defendant who removed pages 3 through 5 and signed on page 2. Lynch stated he notarized defendant's signature, took the first two pages of "P-2" to Whittington and advised him plaintiff rejected pages 3 through 5. Lynch testified he then notarized Whittington's signature on page 2. Lynch further testified he discussed the agreement with defendant before defendant signed it.

Mr. Whittington testified he signed the agreement, which consisted of five pages, and Lynch requested his commission.[3] Whittington informed Lynch no commission would be paid until defendant executed the contract. Whittington testified when Lynch returned the document with defendant's signature, it contained all five pages and Lynch did not inform him defendant rejected pages 3 through 5.

The defendant testified that Lynch only presented him with pages 1 and 2 of the contract at the time he signed and Lynch notarized the contract.

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Bluebook (online)
506 So. 2d 1313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-noel-lactapp-1987.