Western American Specialized Transportation Services, Inc. v. Chibberton

695 So. 2d 1059, 97 La.App. 5 Cir. 102, 1997 La. App. LEXIS 1545, 1997 WL 277400
CourtLouisiana Court of Appeal
DecidedMay 28, 1997
DocketNo. 97-CA-102
StatusPublished
Cited by2 cases

This text of 695 So. 2d 1059 (Western American Specialized Transportation Services, Inc. v. Chibberton) 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
Western American Specialized Transportation Services, Inc. v. Chibberton, 695 So. 2d 1059, 97 La.App. 5 Cir. 102, 1997 La. App. LEXIS 1545, 1997 WL 277400 (La. Ct. App. 1997).

Opinion

12D ALE Y Judge.

This is a suit by plaintiff, Western Specialized Transportation Services, Inc., to recover from Harry Chibberton d/b/a Chibberton & Sons Engine, Inc. $2,004.76 allegedly due for transporting certain goods on behalf of Chib-berton from Alabama to Massachusetts. Following a trial on the merits, judgment was rendered in favor of Western and against Chibberton in the amount of $2004.76. Plaintiffs request for attorney’s fees was denied. Defendant appeals suspen-sively. We affirm.

Chibberton is in the business of installing marine engines and performing repair work on vessels. He was hired to install an engine in a vessel owned by Sang Van Tran which was located in Massachusetts. Chibberton contacted Western to have the engine transported to Massachusetts. Western performed this task and issued a bill to Chibber-ton. Chibberton refused to pay contending that he had not agreed to be responsible for the bill, but that Western was to charge the transportation to Tran. Western contends that Chibberton was to be responsible for | 3 the bill as evidenced by a copy of the invoice. Because Chibberton refused to pay, this suit followed and judgment rendered as set forth above.

On appeal, Chibberton contends the trial court erred in finding a contract for the carriage of goods existed between Western and Chibberton; that any contract that existed was for the account of Chibberton and not Tran; that allegations in other litigation can be used to prove a contract herein; hearsay was allowed to prove the existence of the contract and admissions by Chibberton; and it was not error to refuse to award attorney’s fees.

In brief, Western contends the trial court erred in failing to award attorney’s fees. However, that portion of the judgment is final as Western has not appealed nor answered the appeal of Chibberton. Matthews v. Consolidated Companies, Inc., 95-1925 (La.12/8/95), 664 So.2d 1191, rehearing denied 95-1925 (La.1/26/96), 666 So.2d 662; W. Handlin Marine, Inc. v. Gulf States Marine, Inc., 624 So.2d 907 (La.App. 5 Cir.1993), writ denied 631 So.2d 1166.

After considering the evidence presented, the trial court found in favor of Western and rendered judgment against Chibberton for $2,004.76. On appeal, this court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). In Mart v. Hill, 505 So.2d 1120 (La.1987), the Supreme Court stated the two-tier test for reversal on appellate review:

(1) [t]he appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
(2) the appellate court must further determine that the record establishes that [1061]*1061the finding is clearly wrong (manifestly erroneous).

|4The issue presented for review is whether Western proved by a preponderance of the evidence that Chibberton contracted with Western for the carriage of goods from Mississippi to Massachusetts. It is undisputed that Chibberton contacted Western and requested that Western transport an engine to Massachusetts for installation into a boat owned by Tran. Western delivered the engine as per the agreement and sent a bill to Chibberton for payment. Chibberton refused to pay stating that the order was placed for Tran and that Western was advised that Tran was responsible for payment.

Western maintains that Chibberton is responsible for the bill. In support, they introduced a Bill of Lading and Waybill identifying the amount due and indicating that the charges would be placed on the account of Chibberton. Western also introduced correspondence concerning attempts to collect the debt from Chibberton. Further, Western introduced a copy of a lawsuit filed in La-fourche Parish on behalf of Chibberton naming Tran as defendant and seeking payment of $20,034.93 allegedly due from Tran. Attached to the Petition is an invoice from Chibberton to Tran evidencing the debt. Included in this invoice is a charge for “freight truck to transport Cat engine to Ms. $1,955.26.” Not only did Chibberton stipulate to this evidence, they also introduced a copy of the Lafourche Parish Petition and attachments, including the invoice. Furthermore, the record indicates the Lafourche matter was concluded as a Judgment was entered on the suit.

Chibberton objected to the introduction of the invoices from Western and the testimony of Angela Langlinais, an employee of Western who testified concerning the invoices, on hearsay grounds. Western maintained the evidence was admissible based on the business records exception of La. C.E. Art. 803(6). Chibberton contends this ruling was in error as Ms. Langlinais was not the custodian of the | .¡records nor did she testify that the person making the business record had knowledge of the transaction.

Ms. Langlinais testified she works in the Collection Department for Western and underwent training in the Receivables Department when she began working there. She testified based on her personal knowledge and training regarding the Chibberton invoice and of the company procedure used to collect on the invoice. She identified the invoice and collection letters as being made in the normal course of Western’s business.

Article 803 provides, in pertinent part, that:

The following are not excluded by the hearsay rule even though the declarant is available as a witness:
‡ ‡ ‡ ‡ ‡
(6) Records of regularly conducted business activity. In a civil case, a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. This exception is inapplicable unless the recorded information was furnished to the business either by a person who was routinely acting for the business in reporting the information or in circumstances under which the statement would not be excluded by the hearsay rule. The term “business” as used in this Paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Public records and reports which are specifically excluded from the public records exception by Article 803(8)(b) shall not qualify as an exception to the hearsay rule under this Paragraph.

[1062]*1062In Cole Oil & Tire Co., Inc. v. Davis, 567 So.2d 122, 129 (La.App.2d Cir.1990) the Court held:

[ (¡The witness laying the foundation for admissibility of business records need not have been the preparer of the records. The person who keeps the books and records and makes the entries need not testify if a person who is in a position to attest to the authenticity of the records is present to testify. U.S. v. Fendley, 522 F.2d 181, 185 (5th Cir.1975).

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695 So. 2d 1059, 97 La.App. 5 Cir. 102, 1997 La. App. LEXIS 1545, 1997 WL 277400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/western-american-specialized-transportation-services-inc-v-chibberton-lactapp-1997.