Opinion
2022 CA 0489.
12-22-2022
SALVADOR VALENCIA, LLC v. ROBERTSON DEVELOPMENT, L.L.C.
Robert P. Cuccia , Houma, Louisiana, Counsel for Plaintiff-Appellee Salvador Valencia, LLC. Nelson Dan Taylor , Baton Rouge, Louisiana, Counsel for Defendant-Appellant Robertson Development, LLC. BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
Robert P. Cuccia , Houma, Louisiana, Counsel for Plaintiff-Appellee Salvador Valencia, LLC.
Nelson Dan Taylor , Baton Rouge, Louisiana, Counsel for Defendant-Appellant Robertson Development, LLC.
BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
CHUTZ, J.
Defendant-appellant, Robertson Development, LLC (Robertson), appeals the trial court's money judgment in favor of plaintiff-appellee, Salvador Valencia, LLC (Valencia), awarding the amount due on an open account. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Valencia is a subcontractor that for five or six years provided sheetrock services to general contractor, Robertson. On January 27, 2020, Valencia filed this lawsuit, claiming that Robertson owed $34,806.00 on an open account as set forth in four invoices. On May 22, 2020, Robertson, represented pro se by its sole officer, Lawrence Robertson, filed an answer. Robertson averred:
1.) [Robertson] denies that we owe [Valencia] $34,806.00. The repayment agreement between the two parties does not have provisions for [Valencia] to collect legal fees, attorney fees, interest, or any other [fees] in the event of any collection attempts.
In paragraph "2.)," the answer provided that Robertson "agreed" in response to Valencia's allegations that Robertson "maintained an open account with [Valencia] for services rendered ... and incurred charges as set forth on the ... invoices, which are attached hereto, made a part hereof and labeled as Exhibit 1 in globo."
Although Robertson asserted that the petition with which it was served did not include attachments of any of the four invoices, in its answer it made no allegations pointing out the alleged omission. Additionally, Robertson acknowledged that it never attempted to contact the clerk's office to request copies of the referenced invoices.
After discovery, the matter proceeded to trial on October 26, 2021, at which testimony and documentary evidence were adduced. During the trial, Valencia objected to Robertson's attempt to admit evidence to support its claim that it had tendered payments to Valencia for sheetrock services rendered. Valencia maintained that Robertson had failed to plead the affirmative defense of extinguishment of the obligation by payment and, therefore, had waived the claim. After the close of evidence, the trial court sustained the objection and disallowed Robertson's evidence supporting the claim.
Robertson maintained that Valencia failed to comply with its requests for answers to interrogatories and requests for production. On October 20, 2021, Robertson filed a motion seeking that the trial court (1) hold counsel for Valencia in contempt and (2) dismiss Valencia's lawsuit for the lack of compliance with Robertson's discovery requests. Although the matter was taken up at the trial on the merits, and the trial court deferred ruling until the close of evidence, the motion was not expressly disposed of. Because silence in a judgment is deemed a rejection of a claim, see Schoolhouse, Inc. v. Fanguy, 2010-2238 (La. App. 1st Cir. 6/10/11), 69 So.3d 658, 664; Robertson conceded that it never filed a motion to compel, see La. C.C.P. art. 1469, seeking instead a pretrial conference; and on appeal Robertson has not complained about the lack of an express denial of its motion, the propriety of the denial is not before us.
In a judgment signed on November 30, 2021, the trial court ruled against Robertson, awarding to Valencia the amount of $34,806.00. Robertson appeals.
On appeal, Robertson has not challenged either the trial court's award of attorney fees or its allocation of costs. Therefore, these determinations are final. See La. R.S. 9:2781 (setting forth the elements of an open account and permitting attorney fees for the prosecution and collection of such claim).
DISCUSSION
Initially, we note that Robertson conceded that it owed for two of the invoiced amounts: $6,495.00 for the Edgewater Baldwin job and $7,696.00 for the Bayou Blue Bypass Road job. Insofar as the Alexis Drive job in Marrero invoiced for $12,420.00, which Robertson has not challenged on appeal, a reasonable factual basis exists to support the trial court's finding that Robertson owed Valencia this amount for the performance of sheetrock services and, therefore, it is not manifestly erroneous. Although Mr. Robertson testified that Robertson never undertook the Marrero job and, hence, did not hire Valencia, the testimony of Mr. Salvador Valencia, Valencia's owner, was to the contrary. As such, we must affirm the trial court's award of $12,420.00 in favor of Valencia. See Stobart v. State, Dep't of Transp. and Dev., 617 So.2d 880, 882-83 (La. 1993) (where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous).
Thus, the only invoice remaining for us to consider on appeal is that for the 1120 Burma Road jobsite dated March 2, 2019, in the amount of $8,195.00. Robertson asserts that the trial court erred in concluding it could not consider the affirmative defense of extinguishment of the obligation by payment. Suggesting that Valencia knew well in advance that Robertson intended to assert the affirmative defense, Robertson urges that Valencia was not surprised when Robertson presented evidence to support its claim of payment. Therefore, Robertson seeks to have the amount of $8,195.00 deducted from the trial court's judgment.
La. C.C.P. art. 1005 provides in relevant part:
The answer shall set forth affirmatively negligence, or fault of the plaintiff and others, duress, error or mistake, estoppel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, and any other matter constituting an affirmative defense.
An affirmative defense raises a new matter that constitutes a defense to the action and will have the effect of defeating the plaintiffs demand on its merits, even assuming the allegations in the plaintiff's petition are true. The purpose of requiring affirmative defenses to be expressly pled is to give the plaintiff fair and adequate notice of the nature of the defense. Succession of Ciervo v. Robinson, 2019-0140 (La. App. 1st Cir. 12/12/19), 291 So.3d 1063, 1075. A party pleading an affirmative defense has the burden of proving it by a preponderance of the evidence. State, Div. of Admin., Office of Risk Mgmt. v. Chennel Lite Clark, 2008-0823 (La. App. 1st Cir. 12/23/08), 2008 WL 5377646, at *3. Extinguishment of the obligation in any manner is an affirmative defense; therefore, if not pled, the trial court correctly renders judgment without consideration of the evidence supporting the defense. See e.g., Edwards v. First Bank & Trust, 2015-0081 (La. App. 1st Cir. 12/23/15), 2015 WL 9464615, at *1.
While the failure to plead an affirmative defense does not automatically preclude the application of the defense in all cases, the general rule is that pleadings may be enlarged by evidence adduced without objection when such evidence is not pertinent to any other issue raised by the pleadings and hence would have been excluded if objected to timely. Dupont v. Hebert, 2006-2334 (La. App. 1st Cir. 2/20/08), 984 So.2d 800, 807, writ denied, 2008-0640 (La. 5/9/08), 980 So.2d 695. The trial judge has great discretion to admit or disallow evidence subject to an objection based upon the scope of the issues and pleadings and to determine whether evidence is encompassed by the general issues raised in the pleadings. A court of appeal will not disturb a trial court's determination in this regard absent an abuse of the trial court's discretion. Elbert v. Elbert, 2008-2139 (La. App. 1st Cir. 5/13/09), 15 So.3d 236, 238, writ denied, 2009-1322 (La. 9/25/09), 18 So.3d 72.
Based on our review of the answer that Robertson filed, the affirmative defense of extinguishment of the obligation was not pled. Nothing in Robertson's answer alerted Valencia that Robertson was claiming entitlement to the application of payments to the balance due to Valencia on the open account.
Insofar as Robertson's contention that Valencia was not surprised that Robertson claimed that it had made payments on the balance of the open account, throughout trial, Robertson insisted that it had answered interrogatories propounded by Valencia which made it obvious that Robertson did not agree with the amount Valencia claimed. Although the answers to the interrogatories were neither produced nor placed into evidence, counsel for Valencia acknowledged that in answers to interrogatories Robertson stated, "We [Robertson] shall show that ... Valencia was paid in full for the 1120 Burma Road job." Thus, the record establishes that Valencia had notice and was not surprised that Robertson was claiming it had paid the amount of $8,195.00 on that invoice. Additionally, although counsel for Valencia argued in closing that he objected to Robertson's attempt to enlarge the pleadings at the time evidence was offered in support of the affirmative defense, the record shows the following occurred prior to the objection by Valencia's counsel. In establishing the validity of the invoiced amount, counsel for Valencia asked Mr. Robertson if he had requested Valencia's sheetrock services at the 1120 Burma Road jobsite. Mr. Robertson replied that he had. Mr. Robertson also acknowledged that Valencia had performed the job in a good workman-like, satisfactory manner and that Robertson had received an invoice in the amount of $8,195.00 for work and materials at that jobsite. When asked whether the invoiced amount had been paid by Robertson, Mr. Robertson testified that it had. Counsel for Valencia then asked Mr. Robertson, "Do you have evidence of that payment?" Mr. Robertson replied that he did. Valencia's attorney inquired, "Do you have it on you?" and "Can you produce copies?" Mr. Robertson produced a copy of a check, adding without prompting by counsel for Valencia that it was check #7384 for $4,195.00 in partial payment for the 1120 Burma Road job as noted in the memo section of the check. Although counsel for Valencia then changed the line of questioning to another topic, he did not object to Mr. Robertson's testimony outlining the details of the check that he described as a partial payment.
Later, during direct examination of Mr. Valencia, counsel showed Mr. Valencia a copy of check #7384, noting its date as April 1, 2019, stating the amount, and indicating it had "1120 Burma Road" marked in the memo section. Mr. Valencia explained that Robertson would get a draw on a job it was working on and would apprise Valencia to apply the payment toward the outstanding balance that Robertson owed Valencia. When counsel for Valencia attempted to place the 1120 Burma Road job invoice into evidence, Mr. Robertson objected. Counsel for Valencia then objected for the first time to the failure of Robertson to plead the affirmative defense of extinguishment of the obligation by payment or partial payment. The trial court deferred ruling on Valencia's objection until the end of trial.
Although according to the transcript counsel stated the amount was "$495 [.00]," the trial court clarified the correct amount as $4,195.00.
Subsequent to the objection, Robertson entered the following evidence of the remainder of its claimed payment of $4,000.00 on the $8,195.00 balance due to Valencia. Mr. Robertson, in his pro se representative capacity, cross examined Mr. Valencia, showing him a text message, dated April 23, 2019, from Mr. Robertson that directed Mr. Valencia to apply $4,000.00 of the proceeds of check #7480, issued in the amount of $6,000.00, to the 1120 Burma Road job. Also subsequent to the objection to the evidence supporting the affirmative defense, Mr. Valencia further elaborated on the manner of payment between Robertson and Valencia. According to that post-objection testimony, Mr. Robertson had directed Valencia to take check #7384 for $4,195.00 and apply it to an earlier debt Robertson owed Valencia. Mr. Valencia was also shown a text dated April 23, 2019, identified as having been sent by Mr. Robertson, which showed the redirection of proceeds including $4,000.00 to the 1120 Burma Road job.
The total of the redirected proceeds in the April 23, 2019 text is $6,079.00.
In its oral reasons for judgment the trial court stated:
I'm going to find that any evidence relating to checks regarding the payment
of the actual debt are not allowed pursuant to Article 1005 of the [Louisiana] Code of Civil Procedure, because the defendant failed to set forth any affirmative defense....
[T]here was no affirmative defense pled and therefore none can be considered.
When the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence. La. C.C.P. art. 1636(A). However, the evidence excluded by the trial court must be available for appellate review. Without a proffer, appellate courts have no way to ascertain the nature of the excluded testimony. Error may not be predicated upon a ruling that excludes evidence unless a substantial right of a party is affected and the substance of the evidence was made known to the court by counsel. See La. C.E. art. 103A(2). Lonesome Dev., LLC v. Town of Abita Springs, 2021-1463 (La. App. 1st Cir. 6/29/22), 343 So.3d 831, 844.
Mr. Robertson did not request, and the trial court did not suggest, that Robertson make a proffer of the evidence. Assuming for purposes of this review that the evidence we have already detailed constitutes a complete record of Robertson's offer of evidence of payment as required by Article 1636, the testimonial evidence of the two payments by Robertson to Valencia in the amounts of $4,195.00 and $4,000.00 toward the $8,195.00 balance due on the 1120 Burma Road job is insufficient to support Robertson's claim of payment so as to warrant reversal of the trial court's award. See Thompson v. Transocean Offshore Deepwater Drilling, Inc., 2019-0440 (La. App. 1st Cir. 2/21/20), 293 So.3d 80, 84, writ denied, 2020-00802 (La. 10/14/20), 302 So.3d 1115 (if a trial court commits an evidentiary error that interdicts its fact-finding process, the court of appeal must conduct a de novo review).
Mr. Valencia's uncontroverted testimony establishes that after 2017, Robertson began to tender checks to Valencia that, despite the notation on the check, were later verbally redirected by Robertson to balances it owed Valencia for earlier jobs. Indeed, the accuracy of the payment of the $4,195.00 by check #7384 to the "1120 Burma Road" job noted in the memo section is called into question by the alleged payment of $4,000.00 on April 23, 2019 which, on its face, diverts the proceeds of check #7480 to balances due for earlier jobs and undermines Mr. Robertson's credibility. Thus, the proffer would be insufficient evidence to support Robertson's burden of proof of the affirmative defense of extinguishment of the obligation by payment or partial payment. Accordingly, the judgment correctly awarded Valencia the amount of $8,195.00 for sheetrock services provided to Robertson at 1120 Burma Road.
Alternatively, because Robertson failed to make a proffer, it cannot now complain that the exclusion of such evidence was erroneous. Lonesome Dev., LLC, 343 So.3d at 844 ("[I]t is incumbent upon the party who contends his evidence was improperly excluded to make a proffer, and if he fails to do so, he cannot contend that the exclusion of such evidence was erroneous.").
DECREE
For these reasons, the trial court's judgment in favor of plaintiff-appellee, Salvador Valencia, LLC, awarding $34,806.00, is affirmed. Appeal costs are assessed against defendant-appellant, Robertson Development, LLC.