Sears, Roebuck and Co. v. Dennies

870 So. 2d 1080, 3 La.App. 5 Cir. 1160, 2004 La. App. LEXIS 670, 2004 WL 626182
CourtLouisiana Court of Appeal
DecidedMarch 30, 2004
Docket03-CA-1160, 03-CA-1161
StatusPublished
Cited by5 cases

This text of 870 So. 2d 1080 (Sears, Roebuck and Co. v. Dennies) 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
Sears, Roebuck and Co. v. Dennies, 870 So. 2d 1080, 3 La.App. 5 Cir. 1160, 2004 La. App. LEXIS 670, 2004 WL 626182 (La. Ct. App. 2004).

Opinion

870 So.2d 1080 (2004)

SEARS, ROEBUCK AND CO.
v.
Patricia DENNIES.

Nos. 03-CA-1160, 03-CA-1161.

Court of Appeal of Louisiana, Fifth Circuit.

March 30, 2004.

Geoffrey H. Longenecker, Covington, LA, Frans J. Labranche, Jr., Mandeville, LA, for Defendant-Appellant, Patricia Dennies (Appearing Pro Bono Publico).

*1081 Gregory M. Eaton, Bartley P. Bourgeois, Baton Rouge, LA, for Plaintiff-Appellee, Sears, Roebuck and Co.

Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.

SUSAN M. CHEHARDY, Judge.

These are two consolidated suits on open account by Sears, Roebuck and Company against Patricia Dennies. Dennies appeals a judgment against her in the amount of $10,020.07, plus legal interest, costs and attorney fees in the amount of 20% of all principal and interest due. We affirm.

The first suit (No. 03-CA-1160 on the docket of this Court, No. 51,713 in the district court) was filed on June 22, 1999. The petition alleged that Dennies was indebted to Sears in the amount of $4,723.78 on account number XX-XXXXX-XXXXX-X, with 6.73% interest accrued from May 10, 1999.

In the second suit (No. 03-CA-1161 in this Court, No. 51,801 in the district court), filed on July 9, 1999, the petition alleged Dennies was indebted to Sears in the amount of $5,296.29 on account number XX-XXXXX-XXXXX-X, with 6.73% interest accrued from May 21, 1999. Both petitions alleged defendant was liable for attorney fees in the amount of 25% of the total of both principal and interest, and for all costs.

Plaintiff filed requests for admissions with both petitions. Defendant timely answered with general denials and also denied the requested admissions. Thereafter the parties engaged in lengthy pretrial proceedings, including the filing of discovery requests, exceptions and motions, which have resulted in a voluminous record. The district court denied the motions for summary judgment and exceptions and eventually the matter went to trial.

EVIDENCE

The only witness for Sears was Martha Clayton, an employee of Sears' legal management center in North Carolina, whose testimony was submitted via deposition for purposes of establishing that the records on which Sears relied were business records. Clayton testified to the usual business practices of the plaintiff, in which customers' purchases and payments are entered electronically into the company's computer records at the point of sale or time of payment.

Clayton testified that the account records produced in connection with her deposition showed that Account No. XX-XXXXX-XXXXX-X was opened on May 1, 1993 and was a regular Sears revolving charge account. Account No. XX-XXXXX-XXXXX-X was opened on September 1, 1996 and was a Sears Plus charge account, used mostly for big-ticket items. She was unsure whether the two accounts had the same terms. (For convenience, hereafter we refer to the accounts respectively as the Regular Account and the Plus Account.)

Clayton did not have copies of the original application agreement forms showing defendant's signature. However, she produced an account agreement she said was basically the same as that which defendant would have received when the accounts were opened. The sample agreement in evidence provides for an annual interest rate of 21% on the unpaid balance and a 25% attorney fee.

Clayton said her records reflected that the unpaid balances on the accounts were $4,723.79 on the Regular Account and $5,296.29 on the Plus Account. The Regular Account was closed on September 23, 1999 and the Plus Account was closed on May 31, 1999 because both accounts were written off by Sears.

*1082 Clayton's record did not indicate that defendant ever disputed any of the charges shown on the statements, although the back of every monthly statement sent to a customer bears instructions on how to contest disputed charges.

Clayton admitted that some of the individual sales slips submitted in support of the itemized listings were duplicative of other sales slips included in the exhibits. She also admitted that some older sales slips are no longer available, because the sales slips are kept for a limited time, particularly if the charges have not been disputed. She was unable to explain why some of the sales slips bore no signature of defendant, although most of them did bear defendant's signature. She stated there were no sales slips in the exhibit relating to the Plus Account.

Clayton admitted that the exhibits submitted with her deposition were given to her by counsel for Sears and that she first saw the records on defendant's account several weeks prior to her first deposition, when she received them from Sears' attorney. She was not personally familiar with defendant's account and she herself had not accessed defendant's account or produced the computer printouts that were placed in evidence. She admitted that interest rates and late fees can vary from account to account.

The only witness for Patricia Dennies was defendant herself. Defendant testified she is a 62-year-old widow, that her husband died in 1996, and her only income is a widow's Social Security benefits. She admitted she did business with Sears during her marriage. She denied that she ever signed a contract with Sears or filled out an application. She said that Sears just sent her a credit card in the mail for her first account.

Defendant said the second account, the Plus account, was opened when she went to Sears the day before her husband's funeral to buy things needed for the funeral. She said the salesperson told her she qualified for a card. She told the salesperson she didn't want it, but she later received one in the mail anyway. According to defendant, it was a special account just for the purchase of large items over $100.

Defendant admitted using the Plus account to purchase a computer that cost between $2,000 and $3,000, She denied purchasing items shown on some of the sales slips introduced by plaintiff, specifically a mechanical tool set, a bench, a bracelet, a scooter, a maintenance agreement, a screwdriver, a bikini, a handbag, Polo shorts and pants, repairs Department 98, stirrups, shoe care, three shirts, and photography service. She admitted, however, that she received a monthly statement from Sears and that she never disputed any of the items. She said the listings were in codes that she didn't understand; they meant nothing to her. She paid whatever minimum monthly payment was listed on the statement and would pay more when she could.

Defendant admitted that she made purchases using both accounts. She said she never disputed any of the statements because after her husband died, "it was like [her] head was not attached to [her] body." She went through severe grief, loneliness and fear, and her decisions were not made rationally. She said she "just tried to function every day" as best she could; she didn't pay attention to anything except the part of the bill that said "amount due," and that is what she paid. It didn't enter her head to dispute the bill.

The trial court took the matter under advisement and ultimately rendered judgment in favor of Sears and against Dennies, finding Dennies liable in the amount *1083 of $10,020.77, with legal interest from the date of judicial demand, for all costs, and for attorney's fees in the amount of 20% of all principal and interest due.

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Bluebook (online)
870 So. 2d 1080, 3 La.App. 5 Cir. 1160, 2004 La. App. LEXIS 670, 2004 WL 626182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sears-roebuck-and-co-v-dennies-lactapp-2004.