Moore v. Clark
| Decision Date | 10 November 1987 |
| Docket Number | No. CA,CA |
| Citation | 517 So.2d 293 |
| Parties | Benjamin R. MOORE, Edward C. Moore, and Elaine Moore Lytle v. Jack CLARK and Myrtle Reid Clark. 86 1178. 517 So.2d 293 |
| Court | Court of Appeal of Louisiana — District of US |
A.C. Powell, Hammond, for plaintiffs-appellees.
M.H. Gertler, New Orleans, for defendants-appellants.
Before LANIER, CRAIN and LeBLANC, JJ.
This is a suit on a contract of sale and mortgage by the vendors of immovable property seeking payment of the balance due on the sale price (as represented by a promissory note) and recognition of their vendors' lien. The defendants-vendees answered the suit and asserted the obligation sued upon was extinguished by payment. The trial court held that the defendants-vendees failed to prove payment and rendered judgment in favor of the plaintiffs-vendors as prayed for. This suspensive appeal followed.
In July of 1980, Jack and Myrtle Reid Clark orally agreed to purchase from Benjamin, Edward and Paul Moore four tracts of land, located in Hammond, Tangipahoa Parish, Louisiana. The purchase price was agreed to as $50,000. On or about July 25, 1980, $10,000 in cash was paid on the purchase price. This cash was deposited in the Moore brothers bank account.
The parties executed a sale and mortgage (which was titled a credit deed) dated August 22, 1980, which transferred the property for a stated price of $40,000. By check dated August 25, 1980, payable to Paul Moore, $20,000 was paid on the purchase price. The sale and mortgage recites that the balance due on the purchase price was $20,000, which was to be paid by January 5, 1981. Interest was fixed on the balance due at the rate of 10% per annum from date until paid.
By check payable to Benjamin Moore, dated February 2, 1981, $5,000 was paid on the purchase price. On February 6, 1981, Paul Moore died. By check payable to Benjamin Moore, dated February 19, 1981, $5,000 was paid on the purchase price. This last payment was transmitted with the following letter:
Mr. Benjamin
Enclosed is a check for $5000.00. On 2/2/81 I also gave you a $5000.00 check. On January 12, 1981 I gave Mr. Paul $10,000.00.
Thank you kindly for being patient. As I tried to explain to you Mr. Paul agreed to finance the balance at 12% interest. That was the reason I was not in a hurry to pay the balance.
Will try to see you soon after Mardi Gras.
Sincerely,
The dispute herein centers on whether or not Mrs. Clark paid $10,000 in cash to Paul Moore on January 10, 1981.
(Assignment of Error Number 2)
The defendants contend the trial court committed prejudicial error by allowing Benjamin Moore to testify about the contents of a Moore brothers bank statement for the period of December 31, 1980, to January 30, 1981.
At the trial during the testimony of Benjamin Moore, the following occurred:
Q Also I am going to show you the Moore brothers statement from Citizens National Bank from December 31, 1980, through January 30, 1981, and ask if it shows a ten thousand dollar deposit in the month of January of 1981?
A January 19, $1,137.00.
Q But there is no ten thousand dollar deposit made anytime within that period, is there?
A No.
MR. GERTLER:
Your Honor, I am going to object at this point because first of all the statement will speak for itself; secondly, there has been no foundation laid that that statement is a complete statement, that it is authenticated in any way by the bank or the institution from which it comes, and it is being used to suggest something in the case that I think is the essence of the case.
BY MR. POWELL:
Q Is this a statement on the Moore brothers account for that period as shown?
A From December 31 to January 30 of Moore brothers.
Q What years?
A 1980, December, and January, 1981.
Q To the best of your knowledge is that a correct accounting of that statement for that month?
A Yes, sir.
MR. GERTLER:
I am going to object to that, your Honor, in terms of accounting of that statement from the bank.
I don't object to whatever accountings he kept or was aware of. I just object to using a document that was prepared by someone else that hadn't been authenticated in any way to have the witness just simply say that that is a correct accounting.
MR. POWELL:
That document is not that important, your Honor. I can just proffer that document.
I think he would be allowed to say that he received it from the bank without any further authentication of it. I think that would be perfectly all right. Go ahead.
....
As P-6 I would like to offer or at least proffer the statement from Citizens Bank showing that there was no deposit made in the time frame mentioned by her.
It is not clear from the record whether the questioned document was admitted into evidence or merely profferred. 1 The trial court judge does not refer to this evidence in his reasons for judgment, and, thus, we do not know whether or not he considered this evidence in reaching his decision.
Hearsay evidence is defined as testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. State v. Harris, 444 So.2d 257 (La.App. 1st Cir.1983), writ denied, 445 So.2d 1234 (La.1984) and the cases cited therein. Generally, hearsay evidence is not admissible; however, there are many recognized exceptions to this general rule. One of these is the business records exception. Business records are admissible to prove the facts contained therein if the person offering the record in evidence can establish a predicate showing (1) the persons concerned with recording the information are unavailable for testimony, or production of such persons would be a needless burden, (2) the record is the first writing reflecting the transaction, (3) the records are identified by one familiar with the bookkeeping procedure used by the business keeping the records, and (4) the evidence is reliable. Administration of Tulane Educational Fund v. Waters, 497 So.2d 27 (La.App. 5th Cir.), writ denied, 498 So.2d 16 (La.1986); Thigpen v. Administrator, Office of Employment Security, 488 So.2d 1213 (La.App. 4th Cir.1986); American Supply Co. of Morgan City, Inc. v. Genina Marine Services, Inc., 470 So.2d 964 (La.App. 1st Cir.), writ denied, 475 So.2d 1107 (La.1985).
In D. Binder, Hearsay Handbook, Sec. 8.13 Absence of Entry in Business Record, pp. 172-173 (2d Ed.1983), appears the following:
Evidence that a matter is not contained in a business record, where such matter would ordinarily be recorded if it existed or occurred, may be offered as circumstantial evidence to prove the nonexistence or nonoccurrence of the matter. For example, assume that in the ordinary course of its business Harvard University records and preserves the names of all its graduates. Evidence that the University's records do not list the name of Fred Zilch might be offered as circumstantial evidence from which it can be inferred that Zilch did not graduate from Harvard.
Absence of an entry in a business record may constitute circumstantial evidence, i.e., it tends to prove something by implication, not assertion. Its admissibility is governed by principles of relevance, not hearsay.
See also E. Cleary, McCormick's Handbook of the Law of Evidence, Sec. 307, p. 722 (2d Ed.1972); West's Proposed Louisiana Code of Evidence, Comment to Exception (7) of Article 803, p. 156 (1986 Special Pamphlet).
The plaintiffs failed to establish the predicate necessary to admit the bank statement into evidence under the business record exception to the hearsay rule. Thus, we must consider if the bank statement can be used to show an absence of a $10,000 deposit in the Moore brothers account. This evidence was apparently offered as circumstantial evidence to prove by implication that the $10,000 cash payment was not in fact made because it was not deposited in the Moore brothers account. Certainly, Benjamin Moore could testify that the Moore brothers records did not show a $10,000 cash payment or bank deposit. Benjamin Moore could testify that the bank statement was that which was received by Moore brothers. However, we do not believe it was permissible for Benjamin Moore to testify about the accuracy (truthfulness) of the bank statement because he was not a party to its preparation or a custodian of the records used to prepare it. Our review of cases, where the absence of a business record has been relevant, indicates that a custodian of the record, or someone in authority with the owner of the record, is the proper witness to authenticate the records from which the absence of the business record is determined. Cf. State v. Vaughn, 378 So.2d 905 (La.1979); C.M. Masland & Sons v. Charles Carter & Co., Inc., 364 So.2d 197 (La.App. 1st Cir.1978), writ denied, 366 So.2d 563 (La.1979). Benjamin Moore was not such a person, and he could not supply the necessary foundation for the admissibility of the bank statement.
This assignment of error has merit.
SANCTION FOR FAILURE TO COMPLY WITH PRETRIAL PROCEDURE
(Assignment of Error Number 3)
The defendants contend the trial court committed error when it refused to allow Herman and Glenn Reid to testify as defense witnesses.
The record shows that, after Mrs. Clark testified at the trial, the defendants attempted to call Glenn Reid as a witness. Counsel for the plaintiffs objected, asserting the "defendant [sic] has not submitted a pre-trial order naming any witnesses to be called." Counsel for the defendants responded that no pretrial order was submitted by him because the pretrial conference originally scheduled was cancelled and the case was fixed for trial without a pretrial conference being held. The trial court judge observed that "the rules require that a party be notified...
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