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LOUISIANA WELD & PRESS, L.L.C. NO. 09-CA-720
VERSUS FIFTH CIRCUIT
LOUPE CONSTRUCTION AND COURT OF APPEAL CONSULTING COMPANY, INC. STATE OF LOUISIANA
ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT
PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA
NO. 56255, DIVISION "C"
HONORABLE J. STERLING SNOWDY, JUDGE PRESIDING

COURTOFAPPEAL JANUARY 12, 2010 CIRCUIT
CLARENCE E. MCMANUS JUDGE
Panel composed of Judges Edward A. Dufresne, Jr., Susan M. Chehardy, and Clarence E. McManus
FRED R. DEFRANCESCH Attorney at Law 2810 West Airline Highway Post Office Box 1566 LaPlace, Louisiana 70068
AND
JAMES A. HARRY Attorney at Law 27830 Church of God Road Springfield, Louisiana 70462 COUNSELS FOR DEFENDANT/APPELLANT
ROBERT L. ATKINSON CARROLL DEVILLIER, JR. BREAZEALE, SACHSE & WILSON
Attorneys at Law
P. O. Box 3197
Baton Rouge, LA 70821
COUNSEL FOR PLANTIFF/APPELLEE

VACATED AND REMANDED
Plaintiff, Louisiana Weld and Press, LLC (LWP) filed a petition for sums
ue on open account, (LSA-R.S. 9:2781), alleging that from April 17, 2006 through April 7, 2008, it leased certain equipment to Loupe Construction & Consulting Company, Inc. (Loupe). Loupe did not remit all the lease payments, and owed a balance of $79,570.00. LWP's petition prayed for judgment of the principal balance, plus attorney fees as provided by R.S. 9:278 l(A). Loupe answered on October 14, 2008, alleging that it had purchased the equipment for $5,000.00, and that there was no lease agreement.
LWP filed a motion for summary judgment alleging that there were no issues of material fact and that it was entitled to summary judgment as a matter of law. In support of its motion, LWP attached the affidavit of Billy Joe Buzbee, manager of LWP, and LWP's invoices and ledger sheets evidencing the amounts billed to Loupe. Loupe did not file an opposition to the motion for summary judgment prior to the hearing, nor did it appear at the hearing. Thereafter, on March 13, 2009, the trial court rendered judgment in favor of LWP, awarding to it the principle sum of $79,570.00 plus judicial interest, and attorney fees of $750.00.
On March 13, 2009, counsel for Loupe filed a motion for new trial, alleging that he did not have the summary judgment hearing on his calendar, and that he
would have appeared at the hearing. LWP opposed the motion, arguing that Loupe did not assert sufficient grounds for the granting of a new trial. The trial court set the motion for hearing on May 7, 2009.
On May 6, 2009, Loupe filed an opposition to the motion for summary judgment alleging that he had purchased the equipment, however he did not include any documentation, in the form of affidavits or otherwise'.
On May 15, 2009, the trial court denied Loupe's motion for new trial. Loupe filed his motion for appeal on June 26, 2009.
In this appeal, defendant presents two issues for review. First he alleges that the trial court erred in determining that service (of the motion for summary judgment) was proper. Second he alleges that the evidence presented by plaintiff was insufficient to support the granting of the motion for summary judgment.
The record reflects that plaintiff filed its motion for summary judgment and supporting memorandum, certifying that it had been mailed to opposing party, as required by LSA-C.C.P. art. 1313. The hearing was originally set for January 12, 2009. It was defendant who requested a continuance from that date. The hearing was reset for March 3, 2009, pursuant to that motion filed by defendant and not by any pleading filed by plaintiff. At the hearing on the motion for new trial, defense counsel stated that he did not receive notice because the date had not been on his calendar, to which the trial judge specifically stated that he did not know why defendant counsel had not put that date on his calendar because that date was specifically cleared with both counsel. In light of the trial court's assertion that
' Defendant's opposition to the motion for summary judgment states in its entirety that:
The Answer filed in this matter is clear that Loupe Construction and Consulting
Company, Inc. was purchasing the equipment in question. Loupe Construction paid for this
equipment which was older than the hills and he had to repair the equipment to make it work.
When it became an issue, we returned the equipment rather than fight the defendants. This is a
question of fact that the court needs to determine.
My client's answer suffices and no additional affidavit is needed.
both counsel for plaintiff and defendant were informed of the hearing date, we find no merit to this allegation of error.
Second he alleges that the trial court erred in finding that the plaintiff carried its burden of proving each essential element of its case. In support of this argument, he alleges that the affidavit was defective because it was not based on the personal knowledge of the LLC, and as a fictitious entity it cannot have personal knowledge, and furthermore that the manager who signed the affidavit did not indicate he had personal kn'owledge, or state facts on which his personal knowledge would be based. He further alleges that the invoices attached to the motion should not have been considered because they were not certified nor do they have an affidavit asserting their correctness. Finally he argues that there are leases which are mentioned in the affidavit and not produced, or alternatively that these leases are oral and the plaintiff did not present corroborating evidence to prove this contract for lease that was over $500.00.
Summary judgments are reviewed de novo on appeal, with the reviewing court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Louisiana Safety Ass'n of Timbermen Self-Insurers Fund v. Louisiana Ins. Guar. Ass'n, 09

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