Doerle Food Servs., L. L.C. v. River Valley Foods, L. L.C.

273 So.3d 656

DOERLE FOOD SERVICES, L.L.C., Plaintiff-Appellee

v.RIVER VALLEY FOODS, L.L.C., and Leon S. Miletello, Jr., as Guarantor, Defendants-Appellants

No. 52,601-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered May 22, 2019

Rehearing Denied June 20, 2019

JACKSON & JACKSON, PLLC, By: J. Konrad Jackson, Daniel W. Dilzell, New Orleans, Counsel for Appellants

M. RANDALL DONALD, West Monroe, Counsel for Appellee

Before MOORE, GARRETT, and STONE, JJ.

GARRETT, J.

The defendants, River Valley Foods, LLC ("RVF") and Leon S. Miletello, Jr., appeal from the trial court's grant of summary judgment in favor of the plaintiff, Doerle Food Services, LLC ("Doerle"), in a suit on an open account. For the following reasons, we affirm in part, amend in part, and as amended, affirm the trial court judgment.

FACTS

Doerle is a food services provider. On April 22, 2012, RVF entered into an open account credit agreement with Doerle for the purchase of merchandise. The agreement lists Miletello as the principal owner of RVF. The open account credit agreement stated, in pertinent part:

WE HEREBY MAKE APPLICATION FOR CREDIT TO DOERLE FOOD SERVICES, LLC. IF CREDIT IS GRANTED, WE AGREE TO PAY ALL BILLS WITH THE STATED TERMS OF SALE. WE AGREE TO PAY A SERVICE CHARGE OF $ 25.00 FOR ANY CHECKS RETURNED FROM OUR BANK UNPAID FOR ANY REASON. ADDITIONALLY, WE UNDERSTAND THAT A SERVICE CHARGE MAY BE ASSESSED ON ANY UNPAID BALANCE EQUAL TO THE MAXIMUM INTEREST RATE ALLOWED BY LAW. WE ALSO AGREE TO PAY REASONABLE COLLECTION FEES SHOULD IT BECOME NECESSARY THAT A COLLECTION AGENCY BE RETAINED TO SECURE PAYMENT FOR MERCHANDISE RECEIVED AND FOR WHICH PAYMENT IS NOT MADE WITH THE STATED TERMS OF THE SALE. SHOULD AN ATTORNEY BE EMPLOYED TO SECURE PAYMENT FOR MERCHANDISE RECEIVED, WE WILL BE LIABLE FOR ALL EXPENSES INCLUDING ATTORNEY FEES AT THE RATE OF 25% AND ALL COURT COSTS INCURRED BY DOERLE FOODS, LLC. WE AGREE NOT TO TRANSFER OR ASSIGN THIS AGREEMENT WITHOUT THE PRIOR

WRITTEN CONSENT OF DOERLE FOOD SERVICES, LLC.

On May 23, 2012, Miletello executed a continuing guaranty agreement specifying that he unconditionally guaranteed the full and prompt payment for any and all present or future indebtedness owed to Doerle by RVF.

On August 10, 2015, Doerle filed suit on open account, guaranty, and breach of contract against RVF and Miletello, claiming that from June 2013 to April 2015, Doerle provided merchandise to RVF and the defendants failed to pay, therefore they were liable to Doerle for $ 72,308.93, interest of 18% per annum from the date of delivery, costs, and attorney fees of 25%.¹

On February 2, 2017, the defendants answered the petition, denying Doerle's allegations and claiming that they made payments which were not properly applied to the account.

On July 10, 2017, Doerle filed a motion for summary judgment, claiming the defendants owed $ 72,308.93, together with contractual interest at the rate of 12% per annum from the date of delivery until paid, attorney fees of 25% of the outstanding balance, costs, and judicial interest. Doerle claimed that formal demand for the correct amounts due had been made upon the defendants by citation and service of process in accordance with La. R.S. 9:2781(C), and the defendants failed to pay the amounts due within 30 days of the demand for payment. Doerle also noted that the defendants failed to respond to any requests for discovery. According to Doerle, there were no genuine issues of material fact as to the amounts due by the defendants.

In support of the motion, Doerle filed the open account credit agreement and personal guarantee, invoices and statements for merchandise and supplies provided to RVF, documents regarding waiver of service by the defendants, and the discovery requests propounded on April 12, 2016. Also attached was the affidavit of Georgette Romero. She stated that she is the accounting and credit manager for Doerle and her statements in the affidavit were based on her personal knowledge. She averred that her duties included managing open accounts, setting up new accounts, preparing and sending invoices, and obtaining payment for outstanding accounts. She stated that RVF entered into an open account credit agreement with Doerle, secured by the personal guarantee of Miletello. Services were rendered to RVF from April 2013 to April 2015. Romero attached invoices showing that RVF had an outstanding balance of $ 72,308.93, which was in default and the defendants had not disputed the amounts owed.

On October 6, 2017, the defendants filed an opposition to the motion for summary judgment in which they claimed that $ 20,000 to $ 25,000 in payments made by RVF were not credited to the account. They answered the request for admissions and provided the affidavit of Miletello stating that he examined the payment records for RVF and disputed the amount claimed by Doerle. He claimed there were payments by checks and credit cards of $ 20,000 to $ 25,000 that were not credited by Doerle. He stated that he believed that "additional payments may have been made to plaintiff on the account that have not been credited to that account and if any amounts at all are owed, it is significantly less than that claimed by the plaintiff."

The defendants also attached the affidavit of Piper Griffis, an employee of RVF, who said she attempted to reconstruct the records of RVF and compared them to the Doerle invoices. She stated that there were $ 20,000 to $ 25,000 in check and credit card payments made to Doerle that were not credited on the account. She said that she believed additional payments had also been made and not credited. The defendants did not file any documents or other evidence to substantiate and support the statements made in their affidavits.

The parties appeared before the court for a hearing on the motion on October 9, 2017. Doerle noted that the opposition to the motion had been filed on Friday before the court appearance on Monday, and objected that the opposition was untimely. Doerle also pointed out that the defendants provided no support for the statements made in their affidavits. At the urging of the trial court, the parties agreed to hold the record open for a limited time to allow the defendants to provide support. The trial court noted that the hearing conducted on that date would be regarded as an "on the record status conference." The defendants were given until October 20, 2017, to provide documentation.

On January 5, 2018, the parties again appeared in court for a hearing on the motion for summary judgment. Doerle noted that the defendants furnished to them some spreadsheets that were not filed into the record. Doerle did not find that the documents proved that the payments claimed by the defendants had been made. The defendants' attorney stated that he thought the court ordered him to produce the information to Doerle; he admitted that he did not file the documentation into the record.² Doerle pointed out that the debt in this matter had been accruing for approximately four years. The trial court took the matter under advisement and later issued an order by a minute entry granting the motion in favor of Doerle.

On January 31, 2018, the trial court signed a judgment prepared by Doerle in favor of the plaintiff, ordering the defendants to pay the principal sum of $ 72,308.93; contractual interest at a rate of 18% per annum from the date of delivery, totaling $ 51,849.11; attorney fees at a rate of 25% of the outstanding principal balance, totaling $ 18,077.23; judicial interest from the date of judicial demand, totaling $ 7,290.82; and costs.

On February 9, 2018, the defendants filed a motion for new trial, claiming the summary judgment was improperly granted because the "pleadings, evidence, and affidavits of record" show that there are genuine issues of material fact and Doerle was not entitled to judgment as a matter of law.

The hearing on the motion for new trial was held on May 22, 2018. The defendants contended that the competing affidavits filed by the parties created a genuine issue of material fact and, in granting summary judgment in favor of Doerle, the trial court made a credibility call between the affidavits, which was not proper on a motion for summary judgment. Doerle pointed out that the defendants filed self-serving, unsupported affidavits. The documentation they claimed created an issue as to the amount owed was never filed, and there was nothing in the record to support the affidavits. The trial court denied the motion for new trial. The defendants appealed.

SUMMARY JUDGMENT AND NEW TRIAL

On appeal, the defendants argue that the trial court erred in granting summary judgment in this matter because there were contradictory affidavits creating genuine issues of material fact, the trial court improperly made credibility determinations in evaluating the affidavits, and the affidavit of Doerle's accounting and credit manager was deficient because it did not specify that the supporting records were kept in the normal course of business. The defendants also contend that the trial court erred in denying their motion for new trial. These arguments are without merit.

Legal Principles

Appellate courts review motions for summary judgment de novo , using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Peironnet v. Matador Res. Co. , 2012-2292 (La. 6/28/13), 144 So. 3d 791.

The motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Schultz v. Guoth , 2010-0343 (La. 1/19/11), 57 So. 3d 1002. The procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2).

A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled...