Clifton Upholstery Co. v. Kayjun Industries, Inc.

MILLER, Judge. Defendant James M. McLemore appealed the trial court’s judgment which awarded [515] plaintiff Clifton Upholstery Company, Inc. $10,350.35 on an open account owed by defendant Kayjun Industries, Inc. and personally guaranteed by McLemore. We affirm. Plaintiff answered the appeal contending that the appeal was frivolous. We find that the appeal was taken solely for purpose of delay and award 5% damages. LSA-C.C.P. Art. 2164. The president of the foreign plaintiff corporation testified that he knew that the merchandise itemized on each of the sixteen invoices attached to plaintiff’s petition was ordered by and shipped to defendant. Defendants, other than having filed a one paragraph general denial for an answer, have not denied receiving the merchandise nor have they denied the correctness of the account. Defendants failed to timely answer a request for admissions. Under LSA-C.C.P. Art. 1515 a default judgment could have been entered against defendants. After plaintiff moved for judgment on the pleadings, McLemore answered the request for admissions by stating that he “cannot truthfully admit or deny” that he owes the account. Defendants offered no testimony and did not explain the failure of Mc-Lemore to testify. His failure to testify creates a presumption that his testimony would be unfavorable. City Stores Company v. Jordan, 211 So.2d 709 at 711 (La.App. 4 Cir. 1968). The trial court’s judgment is correct. We consider the appeal frivolous and will allow damages which we fix at five per cent. F.A.B. Distributing Company v. Marullo, 138 So.2d 656 at 658 (La.App. 4 Cir. 1962). LSA-C.C.P. Art. 2164. The trial court’s judgment is affirmed. It is further ordered that plaintiff appellee recover damages for frivolous appeal in the amount of $517.52 together with legal interest thereon from June 30, 1971, the date the appeal was perfected. Costs are assessed to defendant appellant. Affirmed.