VANGUARD VACUUM TRUCKS, L.L.C.
MID-AMERICA RESOURCES CORPORATION
Appeal from the Thirty-Second Judicial District Court In and
for the Parish of Terrebonne State of Louisiana No. 169, 189
Timothy C. Ellender, Jr. Houma, LA Attorney for Plaintiff/
Appellee Vanguard Vacuum Trucks, L.L.C.
P. Brantley, IV Baton Rouge, LA And Stephen C. Hanemann Zoe
W. Vermeulen New Orleans, LA Attorneys for Defendant/
Appellant Mid-America Resources Corporation
BEFORE: HIGGINBOTHAM, HOLDRIDGE, PENZATO, JJ.
lawsuit on an open account, defendant, Mid-America Resources
Corporation (Mid-America), appeals a summary judgment
awarding plaintiff, Vanguard Vacuum Trucks, L.L.C.
(Vanguard), the principal amount due on the account, finance
charges, attorney's fees, and costs of the proceeding.
Mid-America filed a peremptory exception raising the
objection of prescription for the first time in this court,
to which Vanguard responded with a motion to supplement the
record with evidence relating to the prescription objection.
For the reasons that follow, we deny the motion to supplement
the record and remand the matter to the district court to
permit the parties to introduce evidence on the prescription
AND PROCEDURAL BACKGROUND
March 28, 2013, Vanguard filed a petition on an open account
pursuant to La. R.S. 9:2781 et. seq. against
Mid-America. Vanguard alleged that it maintained an open
account with Mid-America and that Mid-America failed to pay
the balance owed on the account. Vanguard further alleged
that Mid-America was indebted to it in the principal amount
of $31, 574.00, together with finance charges in the amount
of 18% per annum on all invoices 30 days past due, reasonable
attorney's fees, and costs of the proceeding. To the
petition, Vanguard attached five invoices dated from July 31,
2008, through September 30, 2009, the affidavit of its
president attesting to the correctness of the account, and a
demand letter it wrote to Mid-America on January 23, 2012.
After a preliminary default judgment was rendered against
Mid-America, Mid-America answered the petition, essentially
denying the allegations and setting fourth four affirmative
11, 2016, Vanguard filed a motion for summary judgment,
seeking to recover the amounts set forth in its petition.
Vanguard later filed an amended motion for summary judgment,
to which it attached the affidavit of its president regarding
the correctness of the account as "Exhibit A" and
seven alleged past-due invoices, dated from July 31, 2008,
through September 30, 2009, as "Exhibit B."
hearing on the amended motion for summary judgment was held,
at which Mid-America failed to appear. Vanguard offered
Exhibits A and B, the documents attached to its amended
motion for summary judgment, in support of the motion.
Finding there was no genuine issue of material fact and that
Vanguard was entitled to judgment as prayed for, the district
court granted Vanguard's motion for summary judgment. On
December 22, 2016, the district court signed a judgment
against Mid-America awarding Vanguard the sum of $31, 574.00,
finance charges in the amount of 18% per annum on all
invoices 30 days past due, attorney's fees equal to 15%
of principal and interest, and costs of the proceeding.
this judgment, Mid-America appeals, contending that summary
judgment was improper for the following reasons: (1) service
of Vanguard's amended motion for summary judgment was
defective because Vanguard sought to have Mid-America served
through an attorney who was not counsel of record at the
time; (2) the demand letter did not correctly set forth the
amount owed, and thus, the attorney fee award was in error;
and (3) the invoices did not indicate that there would be any
finance charges for past due payments, making the award of
finance charges improper. In response, particularly with
respect to the third assignment of error, Vanguard concedes
that it was not entitled to judgment for finance charges,
noting that at the time the invoices in question were
incurred, it did not specify finance charges due and owing on
delinquent accounts. Thus, Vanguard asserts that the judgment
should be amended by this court to remove the order for the
payment of finance charges.
Mid-America also filed a peremptory exception raising the
objection of prescription for the first time in this court.
Therein, it asserts that Vanguard's suit is subject to a
three-year prescriptive period provided for in La. C.C. art.
3494(4), and that the lawsuit has prescribed because it was
filed on March 28, 2013, more than three years after the date
of the last invoice sued upon, September 30, 2009. Vanguard
filed a motion to supplement the record to include two checks
written to it by Mid-America on May 9, 2011, and June 25,
2011, along with a May 13, 2011 accounts receivable open
invoice report and an accounts receivable detail report from
May 1, 2011 to June 30, 2011, referencing invoices issued to
Mid-America. Vanguard insists this evidence demonstrates that
prescription has been interrupted, making this lawsuit
timely. Vanguard asks this court to order that the documents
"be deemed admitted into evidence."
review is limited to the record. La. C.C.P. art. 2164. This
court cannot consider evidence submitted in connection with a
peremptory exception filed for the first time in this court.
Robinson v. Ieyoub, 97-2204 (La.App. 1 Cir.
12/28/98), 727 So.2d 579, 582, writs denied,
99-0933, 99-0981 (La. 9/17/99), 747 So.2d 1096, 1097. The
evidence offered by Vanguard in opposition to the
prescription objection does not appear in the record, and
this court may not consider it in ruling on Mid-America's
prescription objection. Accordingly, Vanguard's motion to
supplement the record is denied.
Code of Civil Procedure article 2163 allows an appellate
court to consider a peremptory exception filed for the first
time in that court "if proof of the ground of the
exception appears of record." The only evidence in the
record which could relate to prescription are the invoices
introduced by Vanguard, all of which are dated more than
three years from the date of the lawsuit. While the face of
the invoices indicate that the lawsuit may be prescribed,
Vanguard is entitled to demonstrate that a suspension,
interruption, or renunciation of prescription has occurred.
We believe that the interests of justice demand that we
remand the matter to permit the parties to develop evidence
on the prescription issue. See La. C.C.P. ...