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WHOLESALE PRINTABLES NO. 09-CA-880
VERSUS FIFTH CIRCUIT
LOGO EXPRESS MARKETING, INC. AND COURT OF APPEAL RAJU R. SADHWANI STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 636-698, DIVISION "N"
HONORABLE HANS J. LILJEBERG, JUDGE PRESIDING

COURTOF APPEAL February 9, 2010 RFTH CIRCUIT
SUSAN M. CHEHARDY
JUDGE

Panel composed of Judges Edward A. Dufresne, Jr.,
Susan M. Chehardy, and Walter J. Rothschild

DENNIS J. ELFERT Attorney at Law 601 Goode Street Houma, Louisiana 70360 COUNSEL FOR APPELLEE, WHOLESALE PRINTABLES
ELMER G. GIBBONS, III Attorney at Law 3939 Veterans Memorial Boulevard Suite 202 Metairie, Louisiana 70002 COUNSEL FOR APPELLANT, LOGO EXPRESS MARKETING, INC. AND RAJU R. SADHWANI
AFFIRMED
On appeal, Logo Express Marketing, Inc. seeks review of the judgment on open account against it in favor of Wholesale Printables, Inc. For the following reasons, we affirm.
Plaintiff, Wholesale Printables, filed suit on open account against defendants, Logo Express Marketing, Inc. and Raju R. Sadhwani, for unpaid invoices, returned checks, and "finance charges" totaling $156,900.77 with legal interest, attorney fees, and costs. In this case, Wholesale Printables ("WP") sells printable merchandise, such as t-shirts and hats, on which others paint, screen, or embroider their emblems. Logo Express Marketing, Inc. ("Logo") has purchased t-shirts and other printable merchandise from WP since 2002. Throughout their business relationship, Mr. Sadhwani of Logo would place an order then he or one of his designated employees would pick up the order at WP's Harahan warehouse.
At trial, WP presented evidence that, as early as April 22, 2005, Logo picked up merchandise from WP without immediately tendering payment. WP presented testimony from its Secretary/Treasurer, Debbie Marchiafava, that, according to their accounting system, as of August 31, 2005, Logo had an outstanding balance of $143,676.75 with their company. At trial, WP introduced original invoices and reprints of unavailable invoices, which Marchifava testified were either damaged or destroyed when WP's Harahan warehouse was damaged by Hurricane Katrina.
At trial, Mrs. Marchiafava, and two former WP employees, Leann Oubre and Mike Melville, testified about the computer accounting system that WP used in its daily business. In short, when a customer places an order with WP, the WP customer service representative inputs the order into the computer system. The computer system generates a "pick ticket" that details the order, and warehouse employees assemble the order for pickup by or delivery to the customer. Thereafter, an office employee prints an invoice for the order on a three-part form consisting of a white page, a yellow page and a green page.
In WP's ordinary course of business, when an order is picked up by the customer, the customer pays for the merchandise in WP's office (attached to the warehouse) before receiving the goods. After receiving payment, the WP employee gives the white and green pages of the invoice to the customer and retains the yellow copy for their files. On a daily basis, all payments and yellow copies are couriered to WP's Baton Rouge office to be processed by the accounting department. At trial, WP introduced evidence of unpaid invoices to Logo, totaling $140,885.61, plus returned checks from Logo totaling $4,579.80, and accrued "fmance charges" of $11,435.36.
WP employees, Leann Oubre and Mike Melville, who worked in WP's Harahan location, testified that Logo's orders were usually picked up by one of Mr. Sadhwani's employees, Jeff or Sylvester. Further, Ms. Oubre and Mr. Melville identified initials on a number of invoices as Jeff's or Sylvester's initials. Furthermore, Ms. Oubre testified that she remembered Mr. Melville, the office manager, personally handling some of Logo's orders because Logo, since it was a "big" customer, was allowed to pick up merchandise without making payment, i.e.,
"on credit," which was unusual. Mr. Melville also verified that, in order to
cultivate a business relationship, he personally dealt with Logo's employees when
they came to pick up orders.
At trial, Mr. Sadhwani admitted that the undisputed invoices accurately
reflect that Logo currently owed WP about $10,000.00 for merchandise. Mr.
Sadhwani could not, however, verify his employee Jeff's initials on a number of
invoices. Oddly, he admitted that, ifJeff testified that the initials were his, then
Mr. Sadhwani would agree that Logo was responsible for the invoices. He did
verify that Sylvester had initialed several invoices for pick-up.
On June 6, 2008, the trial judge rendered judgment in favor of WP and
against Logo for $143,676.75 with judicial interest. However, the trial judge
denied WP's claim against defendant, Raju R. Sadhwani and refused to award
attorney fees. In his written Reasons for Judgment, the trial judge opined:
To prove a claim on open account, the plaintiff creditor must prove the account by demonstrating its normal course of business and introducing supporting testimony regarding the accuracy of the account. See, National Gypsum vAce Wholesale, 96-215 (La.App. 5 Cir. 11/26/96), 685 So.2d 306, 308-09. Once plaintiff establishes a primafacie case, the burden shifts to the defendant to prove the inaccuracy of the account. Id.
After considering the evidence presented at trial, the credibility of the witnesses, and the post-trial memoranda, the Court finds that the plaintiff Wholesale satisfied its burden to prove the principal amount due on Logo Express' account. Wholesale presented multiple witnesses and records to establish Wholesale's normal course of business with respect to placing orders.
Defendants, on the other hand, failed to present credible evidence to dispute the principal amount owed on the account. The evidence further indicates that prior to April 2005, Logo Express purchased a considerable volume of merchandise from Wholesale. Therefore, defendants' arguments that Logo Express did not make the purchases at issue simply are not credible. As a result, the Court finds that Wholesale is entitled to a judgment against defendant Logo
Express in the amount of $143,676.75, which represents the principal amount due on the account. On appeal, Logo seeks review of that judgment. Logo, in its appellate brief, admits that it still owes WP for the amounts reflected by the returned checks, which is $4,579.80. Further, Logo admits that it owes specific invoices to WP, totaling $12,005.62.1 On appeal, however, Logo argues that the trial judge erred in finding that it owed WP for amounts claimed under any other invoices. Specifically, Logo denies the following invoices: (1) 833757 for $ 2,293.92; (2) 838996 for $ 2,870.64; (3) 840732 for $ 5,328.00; (4) 842052 for $ 3,391.20; and (5) 844937 for $ 1,341.24. Logo claims that the invoices are not initialed by a Logo employee, which means that Logo did not receive the invoiced merchandise. These disputed original invoices total $15,225.00. Further, Logo specifically denies responsibility for any invoice that was a "computer generated print out that plaintiff's representative claim[s] to be copies of additional outstanding invoices." Logo denies responsibility because there is no proof that these invoices, which total $70,129.94, reflect merchandise that was actually received and/or not paid for by his company. Moreover, these invoices are not the original invoices and, as such, were not maintained in the normal course of business and were inadmissible since there is no proofthat the original invoices were destroyed, as WP claims. Finally, Logo asserts that it paid cash for many invoices, which was not credited to Logo's account by WP's employees. In support of its arguments, Logo relies on Cline v. George Kellett & Sons, Inc., 96-456 (La.App. 5 Cir. 11/14/96),
' The specific invoices are (1) 833707 for $ 1,996.10; (2) 834379 for $ 161.60; (3) 834671 for $ 552.96; (4) 834699 for $ 727.92; (5) 835394 for $ 231.60; (6) 835396 for $ 4,579.20; (7) 835446 for $ 968.40; and (8) 838449 for $ 2,787.84.
685 So.2d 206. This Court, in Cline, found that Kellett was not entitled to recover on an mvoice not kept in course of normal business procedures: The trial judge concluded Kellett had not met its burden of establishing aprimafacie case since there was no showing the unstamped and unsigned delivery ticket was kept in the course of business. Furthermore, the evidence also shows that the normal procedure for delivery was that the delivery drivers attempt to obtain a signature and ifthis could not be done then an explanation would be written on the ticket. Thus, this delivery ticket further deviated from Kellett's normal business practice. Additionally, there was no supporting evidence of the accuracy of the ticket since Bernard testified he did not know whether this delivery had been made. Thus, the burden did not shift to Cline to prove the inaccuracy of this delivery. Cline, 685 So.2d at 208.
Wholesalerespondsthatitestablished aprimafaciecase,whichshiftedthe burden of proof to Logo to disprove the existence or correctness of the account. Wholesale notesthat"proofofdelivery" isnotrequiredto establish aprimafacie case where records show that books were kept in a normal course of business and indicated that merchandise has been sold and delivered. Jacobs v Holloway, 589 So2d 31 (La.App 5th Cir. 1990); Cline v Kellett, 96-456 (La. App. 5 Cir. 11/14/96), 685 So.2d 206. We agree.
It is well settled that a court of appeal may not set aside a finding of fact by a trial court in the absence of "manifest error" or unless it is "clearly wrong," and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Upon review, we find no error in the trial judge's finding that WP establishedprimafacie evidence ofthe principal amount due on Logo's account. Accordingly, the judgment is affirmed. Costs of this appeal are assessed against appellant, Logo Express Marketing, Inc.
AFFIRMED
EDWARD A. DUFRESNE, JR.
CHIEF JUDGE
MARION F. EDWARDS SUSAN M. CHEHARDY CLARENCE E. McMANUS WALTER J. ROTHSCHILD FREDERICKA H. WICKER JUDE G. GRAVOIS MARC E. JOHNSON
JUDGES
FIFTH CIRCUIT
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09-CA-880
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