Ray Brandt Nissan, Inc. v. GurvichRay Brandt Nissan, Inc. v. Gurvich
Robert C. Lowther, Jr., Covington, for Defendant-Appellant.
Panel composed of Judges H. CHARLES GAUDIN, EDWARD A. DUFRESNE, Jr. and SUSAN M. CHEHARDY.
DUFRESNE, Judge.
Defendant/Appellant Steven Gurvich appeals the judgment of the trial court ordering him to surrender possession of a used Chevy Blazer to plaintiff/appеllee Ray Brandt Nissan, Inc. For the foregoing reasons, we reverse the decision of the trial court.
On September 17, 1997, defendаnt purchased a used Chevy Blazer from plaintiff Ray Brandt Nissan. The defendant paid a $1,000.00 cash deposit and intended to finance the remainder of the purchase price. When the plaintiff was unable to obtain financing for the defendant through its primary lender, it sought to recover the vehicle pursuant to
The parties appeared before the trial judge on February 17, 1998 оn plaintiff‘s rule to show cause to surrender possession of the vehicle. After hearing arguments of both counsel, the trial judge ruled in favor of the plaintiff. However, no evidence was introduced at trial and no testimony was presented to the court. Frоm this adverse judgement, defendant has taken a suspensive appeal.
Defendant argues that the trial court erred in ruling in favоr of the plaintiff without the introduction and/or benefit of any evidence or testimony whatsoever. While certain documentary evidence was made a part of the record and was reviewed by the trial judge, this evidence was never introduced аt trial and was not made part of the trial transcript.
Introduction of evidence at trial is governed by
Whenever, during the trial of any suit or process, whether civil or criminal, before any of the district courts, either party may desire to offer in evidence any record, paper, or document bеlonging to the files or records of the district court of the parish in which the trial is proceeding, the presiding judge at the request of such party shall direct the clerk of the district court to produce such record, document, or paper, in order thаt it may be used in evidence.
In the present case, no evidence was introduced at trial by either party. In formulating his final judgment, the trial judge reviewed certain documents attached to the plaintiff‘s rule to show cause which had not been introduced as evidence in accordance with
The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.
A similar case was heard before this Court previously in Gulf Coast Bank and Trust Co. v. Eckert, 95-156 (La.App. 5th Cir. 5/30/95), 656 So.2d 1081; writ denied, 95-1632 (La.10/6/95), 661 So.2d 474. In that case, Gulf Coast attached to its opposition memoranda in the district court copies of documents on which it relied to refute the exception of prescription. Id. at 1084. Gulf Coast failed, however, to offer and introduce those documents into evidence at the hearing. Id. Documents attаched to memoranda do not constitute evidence and cannot be considered as such on appeal. Id. Therefore, this Court found that there was a fatal flaw in the evidence on the record. Id. Specifically, none of the documents supporting Gulf Coast‘s claims were properly before the trial court at the hearing on the exceptions. Id.
The First Circuit case of Our Lady of the Lake Hosp. v. Vanner, 95-0754 (La.App. 1st Cir. 12/15/95), 669 So.2d 463, addresses the same legal issues, but differs factually from Gulf Coast, supra and the present case before this Court. According to the judgment and minute entry of the trial court, evidence was introduced at the hearing on the exception of prescription. Our Lady of the Lake Hosp. v. Vanner, 669 So.2d at 465. However, the record contains no evidence and does not indicate what evidence was introduced at the hearing, as there was no transcript of the hearing. Id. Pursuant to
In Our Lady of the Lake Hosp. v. Vanner, supra, there werе indications that evidence had been introduced at the trial court, but
Plaintiff Ray Brandt Nissan requests, in the alternative, that the matter be remanded to allow the relevant dоcuments to be introduced in evidence. This issue has previously been argued before this Court in the case of Gulf Coast Bank and Trust Co. v. Eckert, supra. Gulf Coast argued, аlternatively, that in the interest of justice the case should be remanded to supplement the record by allowing formal introduction of the evidence. Id. at 1084. This Court held that such remedial action is proper only when it has been shown that the item of evidenсe was actually introduced at trial. Id. Although an appellate court is empowered to remand a case either for new trial or for introduction of new evidence, such a procedure is sparingly exercised. Id. In the present case, plaintiff Ray Brandt Nissan is not without recourse. There are other remedies that the plaintiff may avail itself of in order to recover the vehicle in question. Therefore, this Court will not remand the case to formally introduce evidence which should havе been introduced at the trial court the first time.
In summary, the evidence in question was not properly introduced in the trial court and therefore may not be reviewed by this Court. The plaintiff has not borne its burden of proof in this matter and the ruling of the trial court must be reversed in favor of the defendant.
REVERSED.