Independent, Inc. v. Watson, 8008

• Decision Date: 04 February 1981
• Docket Number: No. 8008,8008
• Citation: 394 So.2d 710
• Parties: The INDEPENDENT, INC., Plaintiff-Appellee, v. Michael WATSON, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 710

394 So.2d 710

The INDEPENDENT, INC., Plaintiff-Appellee, v. Michael WATSON, Defendant-Appellant.

No. 8008.

Court of Appeal of Louisiana, Third Circuit.

Feb. 4, 1981.

McBride & Brewster, Glynn Rozas, Lafayette, for defendant-appellant.

Dragon & Kellner, Victor Kellner, Lafayette, for plaintiff-appellee.

Before FORET, SWIFT and DOUCET, JJ.

FORET, Judge.

This is an action on open account. The Independent, Inc. (Plaintiff) seeks to recover the sum of $2,371.79 from Michael Watson (Defendant).

The trial court rendered judgment in favor of plaintiff, and defendant appeals. Defendant presents the following issues:

(1) Whether the trial court erred in refusing to allow defendant to amend his answer to conform to the evidence and specifically plead novation, and,

(2) Whether the defendant's obligation under the open account was extinguished by payment.

FACTS

Plaintiff and defendant entered into a written contract on October 20, 1978, by which defendant was obligated to deliver the plaintiff's newspaper to certain subscribers. The plaintiff extended credit by allowing defendant to charge the cost of the newspapers which he delivered. Defendant's credit balance totaled $2,371.79 after ten months of performance under the contract. Defendant executed a promissory note on April 9, 1979, made payable to plaintiff in the amount of $2,678.84. The note was to be paid in monthly installments of $100.00 each until the principal and interest were paid, but defendant defaulted in his payments.

The plaintiff instituted this action on July 26, 1979, seeking recovery on open account instead of the promissory note. Trial of this matter was held on February 12, 1980, and judgment was rendered in favor of plaintiff. Plaintiff was awarded $2,371.79 (the amount owed by defendant on open account) together with legal interest and attorney's fees. Defendant was granted a devolutive appeal from that judgment.

AMENDMENT OF DEFENDANT'S ANSWER

Defendant sought to amend his answer to conform to the evidence to plead specifically the affirmative defense of novation. This request was made at the end of the trial and was denied by the trial court as coming too late in the proceedings.

The question is whether the trial court abused its discretion in refusing to permit defendant to amend his answer.

LSA-C.C.P. Article 1151 provides, in pertinent part:

" .... A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party."

There is no evidence of plaintiff's having given its written consent to defendant's request to amend his answer.

The general rule as to allowing amendments after an answer is filed is that the trial judge has much discretion in such matters and that his ruling will not be disturbed unless there has been an abuse of the discretion vested in him. Calvary Tabernacle v. Louisiana Central Bank, 384 So.2d 814 (La.App. 3 Cir. 1980); Sikes v. McLean Trucking Company, 383 So.2d 111 (La.App. 3 Cir. 1980); Brooks v. Fondren, 199 So.2d 588 (La.App. 3 Cir. 1967).

This Court, in Calvary Tabernacle v. Louisiana Central Bank, supra, said, at page 816, that:

"In his article, Judge Tate says, 'In permitting amendment or not, the most important consideration is whether the opponent is unfairly prejudiced.' In Wallace v. Hanover Insurance Company of New York, supra at p. 120, the court held that it was an abuse of discretion to allow an amendment where the other party did not have adequate time to prepare to meet the new issue or defense. The court there suggests that prejudice may be cured by a continuance. Judge Tate comments that the curative effect of a continuance must be balanced against the prejudice caused by the delay, expense and confusion of a continuance. These factors, he suggests, 'may outweigh the merit-justice interests which favor it (amendment).' " 3

Here, defendant's request came upon conclusion of the trial and raised a new affirmative defense of which plaintiff had no prior notice. We find no abuse of the discretion accorded the trial court.

Defendant also argues that evidence had been adduced without objection which tended to show that the debt, upon which plaintiff brought its action, was novated by plaintiff's acceptance of his promissory note. Therefore, he argues that there was an automatic amendment of his answer to conform to the evidence adduced on the issue of novation.

LSA-C.C.P. Article 1154 governs the amendment of pleadings to conform to the evidence. It reads:

"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence."

The court, in Wallace v. Hanover Insurance Company of New York, 164 So.2d 111 (La.App. 1 Cir. 1964), writ refused, 246 La. 598, 165 So.2d 486 (1964), had occasion to interpret LSA-C.C.P. Article 1154 and the federal sources from which it was derived. It concluded that there are two procedures for amending pleadings to conform to the evidence. The first is an amendment requiring no written or oral pleadings as the original pleadings are simply deemed amended to conform to the proof of issues tried by express or implied consent. The second procedure ¹ authorizes the court to allow the amendment of pleadings where the evidence offered is objected to.

The first procedure was discussed in Wallace v. Hanover Insurance Company of New York, supra, on page 118, where it was stated:

"Article 1154 embodies the first of the two federal procedures just mentioned. The comments indicate that because of the lack of opportunity to file written amendments when the evidence is introduced without objection, the court may, on motion of the party, allow amendment at any time, even after judgment. This is not startling, as the written amendment is actually unnecessary under both State and Federal systems. The pleadings may be treated as amended once the evidence enlarging them has been received without objection or the written amendment may be filed even after judgment.

In order for 1154 to work, an automatic amendment of the pleadings, it is necessary that the evidence not be pertinent to any other issue raised by the pleadings in the case, and thus it would have been excluded if objected to timely. If the evidence is admissible for any purpose it cannot enlarge the pleadings except by express consent of the opposing party. (See comment B, Article 1154 and cases cited therein.)"

LSA-C.C.P. Article 1005 ² requires that the answer set forth any affirmative defenses upon which a party will rely. Defendant's answer failed to set forth the affirmative defense of novation. ³

However, the rule pertaining to an automatic amendment of the pleadings does apply when evidence of an affirmative defense is adduced without objection from the opposing party. Our Supreme Court, in DLJ of Louisiana # 1 v. Green Thumb, Inc., 376 So.2d 121 (La.1979), recognized this in Footnote 9 on page 122, where the Court stated:

" ... Generally, affirmative defenses must be raised in the answer of the defendant, see La.Code Civ.P. art. 1005, and cannot be raised by the court sua sponte. Where, however, an affirmative defense has not been pleaded by the defendant but the plaintiff nevertheless fails to object to the introduction of evidence that bears on the affirmative defense and that is not pertinent to any issues raised in the pleadings, the...