Donald R. Modicue v. Prince Of Peace Auto Sale, LLC

Judgment rendered September 22, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,095-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

DONALD R. MODICUE Plaintiff-Appellee

versus

PRINCE OF PEACE AUTO SALE, Defendant-Appellant
LLC

*****

Appealed from the
Monroe City Court for the
Parish of Ouachita, Louisiana
Trial Court No. 2019-CV-04012

Honorable Tammy D. Lee, Judge

*****

BRIGETTE SWAYZER Agent for Appellant

OFFICE OF ANTHONY J. BRUSCATO Counsel for Appellee
By: Anthony J. Bruscato

*****

Before THOMPSON, ROBINSON, and HUNTER, JJ.

ROBINSON, J.

Defendant, Prince of Peace Auto Sale, LLC, by and through its agent,

Brigette Swayzer, appeals a judgment by the Monroe City Court in favor of

Donald Modicue awarding damages and attorney fees totaling $7,591.78.

We AFFIRM the judgment, but AMEND to remove the award of general

damages and to include a credit to the seller.

FACTS

The plaintiff, Donald Modicue (“Modicue”), purchased a used 2008

Ford Fusion from the defendant, Prince of Peace Auto Sale, LLC (“Prince of

Peace”), the sole member/owner of which is Brigette Swayzer (“Swayzer”),

on April 13, 2019, for a sale price of $3,995.00. Modicue paid a $1,500.00

down payment and the balance was financed at a 29.9% interest rate payable

to Prince of Peace.

Modicue test drove the vehicle prior to purchase, but claims that he

did not reach any high speed. At the time of purchase, the vehicle had only

one minor issue disclosed, a broken interior door handle. Swayzer promised

to have the door handle repaired and sent representatives to do so, but they

were apparently unable to. According to Modicue, immediately following

the purchase, the car began to develop more problems. Once, when he was

operating the car at a higher rate of speed, the engine began to shake. This

led to the discovery of a defective motor mount which Swayzer promised to

reimburse him for. Other issues with the car included: a failed battery and

alternator, power steering malfunction, and oil leak. These issues allegedly

resulted in the car being in and out of the shop with Modicue having little

use of it, as well as Modicue having to pay for these repairs.

After five months of owning the car, Modicue missed several car

payments (it is disputed the exact number missed or late). Modicue then

sued Swayzer seeking rescission of the sale and damages, alleging that the

vehicle had multiple defects. Swayzer in turn seized the car for Modicue’s

failure to make payments. On July 7, 2020, the Monroe City Court rendered

judgment in favor of Modicue, granting rescission of the sale based on a

redhibition claim, and awarding special damages of $3,591.78, general

damages of $1,500.00, and attorney fees of $2,500.00, for a total damage

amount of $7,591.78, with Prince of Peace maintaining possession of the

vehicle.

Prince of Peace, by and through its agent, Swayzer, now appeals,

arguing that the car was in operating condition when sold and was sold “as

is,” and Prince of Peace should not be held responsible for any unknown

defects. She also claims that Modicue’s claims are inaccurate in an attempt

to avoid responsibility for the payments, and further, that she should be

credited for Modicue’s use of the vehicle during his possession.

DISCUSSION

Several issues were raised on appeal, primarily whether the court

committed manifest error in granting rescission of the vehicle sale due to a

redhibitory defect when there was an “as is” sale, basing its finding on

credibility. Other issues include the appellant’s assertion of bias, and

whether there is jurisdiction over the appeal based on an untimely appeal.

The claim of bias is unfounded and warrants no further discussion. This

Court first addresses the issue of jurisdiction and whether the appeal is

timely in order to proceed with any discussion regarding the validity of the

rescission.
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Jurisdiction – Untimely Appeal

“An appeal from a judgment rendered by a city court or a parish court

may be taken only within ten days from the date of the judgment or from the

service of notice of judgment, when such notice is necessary.” La. C.C.P.

art. 5002. In Myles v. Turner, 612 So. 2d 32 (La. 1993), the Louisiana

Supreme Court stated that “we hold that the 10-day appeal delay provided

for in La. Code Civ. Proc. Art. 5002 commences to run upon receipt of

notice of judgment rather than upon the mere mailing of said notice.”

In this case, a notice of judgment was mailed by the Monroe City

Court to Prince of Peace, through its agent, Swayzer, to the business address

of 1619 South Grand Street, Monroe, LA 71202, on November 9, 2020, as

evidenced by a certificate of mailing. The notice of judgment was stamped

with that same date. Swayzer’s motion for suspensive appeal was filed on

December 3, 2020, which was 24 days following the mailing of the

judgment. An order granting Swayzer’s appeal was entered and filed on

December 7, 2020.

There is a presumption in Louisiana that “[w]hen a letter has been

properly addressed, stamped and mailed it is presumed to reach the

addressee.” Ragas v. Social Security Admin., 99-2684, (E.D. La. March 1,

2002), 2002 WL 362816. It is presumed that the judgment was mailed since

the certificate of mailing was executed by a deputy clerk and is part of the

record, and the address listed on the certificate is what was provided by

Swayzer. Since the notice was properly addressed, stamped, and mailed, it

is presumed to have reached Swayzer at some point. However, there is

nothing in the record showing that the notice of judgment was sent via

certified or registered mail, or some other delivery service in which receipt is
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acknowledged; therefore, it is uncertain the exact date on which notice of the

judgment was received by Swayzer.

Modicue argues this Court lacks jurisdiction due to an untimely

appeal, but provides no evidence to support this argument. There were no

certified mail receipts or any receipt acknowledgments to show receipt by

Swayzer. The record reflects that the motion for appeal sent to Prince of

Peace and Modicue, and the notice of appeal sent to the Judicial

Administrator, Louisiana Second Circuit Court of Appeal, Modicue, and

Prince of Peace, were all delivered via certified mail and included delivery

acknowledgments for all recipients. It is puzzling that there would be no

delivery acknowledgement for the very document for which it would be

most useful, since there is a specific delay applicable to the service of the

judgment.

The facts in Smith v. Winn-Dixie Louisiana, Inc., 626 So. 2d 750 (La.

App. 5 Cir. 1993), are very similar to those in this matter. The trial court

had rendered judgment against Winn-Dixie and notice of the judgment was

mailed to counsel of record for both parties on November 13, 1992. Winn-

Dixie suspensively appealed the judgment on December 9, 1992, 26 days

later. Id. The Fifth Circuit issued an order, sua sponte, directing the parties

to show cause why the appeal should not be dismissed on the basis it was

taken untimely, but neither party ever filed a response to the court’s order.

Id. By issuing the order, the court seemingly acknowledged that there was a

legitimate possibility that the appeal was timely. Here, this Court has

chosen not to issue such an order to show cause, but to proceed with its

opinion based on the reasoning herein.

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The Fifth Circuit in Winn Dixie stated:

While the Myles holding is relevant to the case before us today,
and mindful of its importance, this court cannot speculate that
counsel for Winn-Dixie did not receive the notice of judgment
until November 29, 1992, or later. Moreover, based on the fact
that the defendant was given ample opportunity (through July
26, 1993) to show its appeal was filed timely, and has failed to
file anything with this court since its appeal brief of May 28,
1993, this court must conclude that the notice of judgment was
received by counsel for Winn-Dixie prior to November 29,
1992, and that therefore, the appeal is untimely. Id.

The Fifth Circuit stated that it could not speculate that counsel for appellant

did not receive notice until the date that would allow for a timely appeal,

within ten days of notice. Id. However, the Court based its decision on the

fact that the defendant failed to show its appeal was timely after being given

the opportunity to do so upon the issuance of the rule to show cause order.

This Court finds the opposite result using the Fifth Circuit’s same

reasoning in Winn-Dixie. If we cannot speculate as to notice not being

received, we should not be able to speculate that notice was received. This

Court cannot look at information beyond what is contained in the appellate

record. The appellee presents the argument of lack of jurisdiction due to an

untimely appeal, but provides no support. There is nothing in the record to

show the appeal was untimely filed since there was no acknowledgment of

receipt. “Actual knowledge of the signing of the judgment outside of the

record and absent compliance with the mailing or service requirement is not

sufficient to cause new trial and appeal delays to commence.” Morice v.

Alan Yedor Roofing and Construction, 16-532 (La. App. 5 Cir. 2/8/17), 216

So. 3d 1072. Also, given the timing of the mailing – during the 2020

presidential election and the ongoing COVID pandemic – it is not

unreasonable to believe that mail could have been significantly delayed

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where Swayzer did not receive the notice until at least November 23, 2020,

such that she would have met the filing deadline.

Calogero v. USA Agencies Casualty Insurance Company, Inc., 2019-

0347 (La. App. 4 Cir. 12/4/19), 286 So. 3d 586, is also comparable to this

case and Winn-Dixie. Notice of signing of judgment was issued by the clerk

of court on November 16, 2018, but the plaintiff did not file a motion for

devolutive appeal until January 11, 2019, 54 days later. Id. As in Winn-

Dixie, the Fourth Circuit ordered the plaintiff to show cause as to why the

appeal should not be dismissed as untimely. Id. Counsel for the

plaintiff/appellant did respond with an affidavit stating that she had moved

her law office just two weeks prior to mailing the notice and had not

received the notice. Id. The attorney continued to use her previous office

address on pleadings and correspondence through November 2018 and into

January 2019. Id. The Court cited the relevant city court rule regarding an

attorney’s obligation when moving offices, to change the address on all

pleadings previously filed on which the former address has been shown, the

failure to do so barring the attorney from pleading nonreceipt of a notice

mailed by the court to the address originally shown on the pleadings. Id.

The Court in Calogero recognized the decision in Myles, but ultimately held

that the appeal was untimely, based on the specific court rule regarding an

office relocation that barred the attorney from pleading nonreceipt. Id.

Here, Prince of Peace was not represented by counsel and did not

allege failure of receipt due to change of address or any other reason. In fact,

appellant, appearing pro se, should generally be given wide latitude, as she is

at a disadvantage having no formal training in the law and rules of

procedure. In Re: Medical Review Panel Claim of Scott, 206 So.3d 1049
6

(La. 2016). The Court in Credit Acceptance Corporation v. Prevo, 52,734

(La. App. 2 Cir. 6/26/19), 277 So. 3d 847 stated that, “In the interest of

justice, this court will read pro se filings indulgently and try to discern the

thrust of the appellant's position and the relief she seeks.” Citing Magee v.

Williams, 50,726 (La. App. 2 Cir. 6/22/16), 197 So. 3d 265. A pro se

litigant does assume responsibility for her lack of knowledge of the law,

Scott, supra, but there is nothing in the record that shows appellant claims

ignorance of the law as a defense and this Court does not find such a defense

is necessary.

Appeals are favored in law and any doubt shall be resolved in favor of

maintaining, rather than dismissing an appeal. Alan Yedor Roofing, supra.

Unless the grounds for dismissal are free from doubt, the appeal should be

maintained. Id.

This Court bases its reasoning primarily on the fact that the record

does not show that appellant did not receive the notice of judgment, with the

position that it is not unreasonable to believe that circumstances of the

timing of the mailing were such that the notice could have been received by

Prince of Peace by a date that would result in a timely appeal. This court is

further influenced by its ability to afford some level of leeway to pro se

litigants. The grounds for dismissal based on lack of jurisdiction for an

untimely appeal is not free from doubt, and that doubt should be resolved in

favor of maintaining this appeal.

Warranty of Redhibition:

A seller warrants the buyer against redhibitory defects or vices in the

thing sold. La. C.C. art. 2520. A defect is redhibitory when it “renders the

thing useless, or its use so inconvenient that it must be presumed that the
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buyer would not have bought the thing had he known of the defect.” Id.

The existence of this type of redhibitory defect enables the buyer to obtain

rescission of the sale. Id. A thing can also contain a redhibitory defect when

the defect “diminishes its usefulness or its value so that it must be presumed

the buyer would still have bought it, but for a lesser price.” Id. This type of

defect limits the right of a buyer to seek a reduction of the price. Id.

Further, although minor defects alone do not constitute redhibitory defects,

multiple defects collectively may support redhibition. Young v. Ford Motor

Co., Inc., 595 So. 2d 1123 (La. 1992). The existence of redhibitory defects

is a question of fact which should not be disturbed in the absence of manifest

error. Berney v. Rountree Olds-Cadillac Co., 33,388 (La. App. 2 Cir.

6/21/00), 763 So. 2d 799.

The buyer of an automobile who asserts a redhibition claim need not

show the particular cause of the defects making the vehicle unfit for the

intended purposes, but rather must simply prove the actual existence of such

defects. Young v. Ford Motor Co., supra. In general, the intended purpose

of an automobile is transportation. Guillory v. Morein Motor Co., 322 So.

2d 375 (La. App. 3 Cir. 1975). Inherent in the sale of an older car is the

knowledge that the machinery and parts are worn and subject to breakdown

and that the vehicle will require mechanical work from time to time to keep

it in good running condition. Burch v. Durham Pontiac Cadillac, Inc., 564

So. 2d 380 (La. 1990). Although the warranty against redhibitory defects

does not apply as extensively as with new products, it requires that even

used equipment operate reasonably well for a reasonable period of time.

Berney, supra.

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The warranty against redhibitory defects extends only to defects that

exist at the time of delivery. La. C.C. art. 2530. The buyer must prove that

the vice existed before the sale. Id. Holloway v. Gulf Motors, 588 So. 2d

1322 (La. App. 2 Cir. 1991). Proof of this fact may be made either by direct

evidence or by circumstantial evidence giving rise to a reasonable inference

that the defect existed at the time of sale. Boos v. Benson Jeep-Eagle Co.,

Inc., 98-1424 (La. App. 4 Cir. 6/24/98), 717 So. 2d 661. There is a

presumption that a vice existed before the sale if it has made its appearance

within three days immediately following the sale. La. C.C. art. 2530.

To reverse a factfinder’s determination, the appellate court must find

from the record that a reasonable factual basis does not exist for the finding

of the trial court and that the record establishes that the finding is clearly

wrong. Stobart v. State through Dept. of Transp. & Dev., 617 So. 2d 880

(La. 1993). Even if an appellate court may feel its own evaluations and

inferences are more reasonable than the factfinder’s, reasonable evaluations

of credibility and reasonable inferences of fact should not be disturbed upon

review where conflict exists in the testimony. Cole v. State Dept. of Public

Safety & Corr., 01-2123 (La. 9/4/02), 825 So. 2d 1134. An appellate court

may not set aside a trial court’s finding of fact in the absence of manifest

error or unless it is clearly wrong. Id. Where two permissible views of the

evidence exist, the factfinder’s choice between them cannot be manifestly

erroneous or clearly wrong. Id. Moreover, where the factfinder’s

conclusions are based on determinations regarding credibility of witnesses,

the manifest error standard demands great deference to the trier of fact

because only the trier of fact can be aware of the variations in demeanor and

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tone of voice that bear so heavily on the listener’s understanding and belief

in what is said. Rosell v. ESCO, 549 So. 2d 840 (La. 1989).

The lower court is in the best position to determine credibility of

witnesses. Id. It weighed the testimony of both parties and ultimately

decided that there was a valid redhibition claim that warranted rescission, so

it presumably found in favor of Modicue on all elements necessary to

establish such a claim.

Modicue claims that he had chronic problems with the vehicle

following purchase, including a defective motor mount, failed battery, power

steering malfunction, failed alternator, and oil leak. He alleges that at one

point, the vehicle was in the shop for two months to get the alternator

repaired. He testified that he did not initially notice the problems with the

vehicle, but that they became apparent within a few days of purchase. He

stated that he made numerous trips back to the car lot to get the car fixed.

While there seemed to be some inconsistencies in the exact timeframe the

defects became apparent, the court found Modicue’s testimony that there

were problems with the vehicle shortly after its purchase to be credible.

La. C.C. art. 2522 requires that a buyer give a seller notice of the

defect and allow time for the seller to repair. If the seller has actual

knowledge of the defect, no notice is required. Id. A seller who did not

know that the thing he sold had a defect is considered a “good faith seller.”

Stuck v. Long, 40,034 (La. App. 2 Cir. 8/17/05), 909 So. 2d 686, writ denied,

05-2367 (La. 3/17/06), 925 So. 2d 546. A good faith seller is only bound to

repair, remedy, or correct the defect. La. C.C. art. 2531. The buyer must

afford the good faith seller a reasonable opportunity to repair the defect in

the light of the particular circumstances of each case. Arnold v. Wray Ford,
10

Inc., 606 So. 2d 549 (La. 1992). Factors to consider in determining

reasonableness of the opportunity to cure include whether the buyer was

furnished substitute transportation, the extent to which the buyer’s lifestyle

was disrupted by the unavailability of the vehicle, the nature of the defect,

the difficulty of remedy, and the number of unsuccessful attempts. Dreher

v. Hood Motor Co., Inc., 492 So. 2d 132 (La. App. 1 Cir. 1986). What

constitutes a reasonable opportunity to repair a defect is a question for the

finder of fact. Reid v. Leson Chevrolet Co., Inc., 542 So. 2d 67 (La. App. 5

Cir. 1989). If the seller fails or is unable to remedy the defect, he must

return the purchase price to the buyer with interest from the time it was paid,

reimburse him for reasonable expenses occasioned by the sale and for

preservation of the item, less the credit to the seller if the use of the item was

of value to the buyer. La. C.C. art. 2531; Alexander v. Burroughs Corp.,

359 So. 2d 607 (La. 1978).

The city court made a credibility determination based on testimony

that Modicue notified Swayzer of the defects after they arose and gave a

reasonable opportunity to cure. However, there were never any allegations

or findings that Swayzer had knowledge of any defects at the time of sale.

Therefore, Prince of Peace is considered to be a “good faith seller” who

should have been given notice of the defect and a reasonable opportunity to

remedy any defects. Prince of Peace failed to remedy the defect, so it is

obligated to pay an amount to Modicue equal to the purchase price paid for

the vehicle, including any expenses associated with the sale, and for

expenses to repair/maintain the vehicle, less a credit for the value Modicue

derived from the vehicle.

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According to Modicue’s testimony, he paid a total of $3,208.78 for

the vehicle in the form of a $1,500.00 down payment and $1,708.78 in

monthly payments, which covered both the purchase price and associated

sale expenses such as tax, title, and license. This amount was essentially

uncontested by Swayzer. The city court awarded the $3,208.78 in damages

to Modicue.

The court awarded an additional $383.00 in special damages for repair

expenses allegedly incurred by Modicue. However, Modicue presented no

evidence or documentation of any such expenses paid, other than a basic,

typed list of amounts he paid, presumably self-prepared, in which he claims

to have paid the total amount of $383.00 in parts and labor for repairs.

There were no work orders, testimony by mechanics, copies of invoices,

etc., to support an award of special damages for the repair expenses.

The court also awarded general damages in the amount of $1,500.00.

It is only in the case of a bad faith seller, one who has knowledge of the

defect and fails to declare it, that a seller is answerable to the buyer in

general damages. Since Prince of Peace is a good faith seller, the award of

general damages is error.

When there is a finding of a redhibitory defect warranting rescission,

the seller is to be credited for the use of the vehicle if it were of some value

to the buyer, reducing any amount awarded for return of the purchase price

and reimbursement of expenses relating to the sale and incurred for the

preservation of the item. La. C.C. art. 2531; Alexander v. Burroughs Corp.,

supra. Swayzer presented evidence in the form of the bill of sale from

Prince of Peace’s initial purchase of the vehicle on March 6, 2019, showing

mileage of 212,818 miles, approximately one month prior to Modicue’s
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purchase. She claims that the vehicle had 223,079 miles at the time it was

repossessed, an additional 10,261 miles over a period of 225 days. It was

obviously regularly used and provided value to Modicue as a mode of

transportation. Modicue offered no response to Swayzer’s claim, and the

court failed to address it altogether.

Prince of Peace should have received a credit for the value afforded to

Modicue for his use of the vehicle that offset any damages awarded for the

redhibition claim. In the reconventional demand, Swayzer requested

damages in the amount of $25/day for usage of 225 days for a total of

$5,625.00, and $3,591.35 for 0.35/mile for 10,261 miles. This Court denies

appellant’s specifically requested amounts, but finds the monthly payments

made by Modicue while in possession of the vehicle, a total of $1,708.78, to

be a sufficient amount for the requisite credit to the Prince of Peace for the

value of the vehicle’s use derived by Modicue.

The lower court also awarded attorney fees in the amount of

$2,500.00. Attorney fees in redhibition cases are specifically allowed under

La. C.C. art. 2545. A trial court has great discretion in awarding attorney

fees in redhibition cases. Jones v. Winnebago Indus., Inc., 47,137 (La. App.

2 Cir. 05/16/12), 92 So. 3d 1113. We do not find the city court abused its

discretion in awarding attorney fees to Modicue.

Modicue was awarded a total of $7,591.78. As stated hereinabove,

Modicue should be not be awarded the special damages of $383.00 for

repairs since there was no proof of those amounts. There should also be no

general damages award of $1,500.00. Further, there should be a credit to the

seller for the value afforded to the buyer in the amount of $1,708.78. The

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award of the amounts paid toward the purchase of the car and the attorney

fees should be upheld.

“As Is Sale” - Waiver of Warranty

Swayzer primarily argues that the vehicle was sold “as is” and she

was not responsible for any unknown defects, and claims that there were no

known defects at the time of the sale other than the broken door handle. She

further claims that she was never informed of any defects or provided any

documentation of the supposed defects or any repair expenses paid by

Modicue until after he filed suit.

La. C.C. art. 2548 states, in pertinent part, that the parties may agree

to an exclusion or limitation of the warranty against redhibitory defects. In

order to be effective, a waiver of warranty must: (1) be written in clear and

unambiguous terms; (2) be contained in the contract; and (3) either be

brought to the attention of the buyer or explained to him. Prince v. Paretti

Pontiac Co., 281 So. 2d 112 (La.1973).

The mere fact that a sale is confected “as is” does not create a waiver

of all warranties. Hendricks v. Horseless Carriage, Inc., 332 So. 2d 892

(La. App. 2 Cir. 1976). If the act of sale fails to state that the purchaser

waives express and implied warranties, including the warranty of fitness for

a particular purpose and the warranty against redhibitory vices, it is not

sufficiently clear and the seller remains responsible for implied warranties

associated with the concept that the thing be fit for the use for which it is

intended. La. C.C. art. 2520. The seller bears the burden of proving the

warranty has been waived. Boos v. Benson-Jeep-Eagle Co., supra.

In Sabbath v. Martin, 44,862, (La. App. 2 Cir. 10/28/19), 2009 WL

3449096, the seller claimed that the sale was “as is” and the warranty against
14

redhibitory defects had been waived by the buyer. There were facts that

called into question whether the parties understood the waiver of redhibitory

defects, mainly the fact that the buyer had initially repaired several defects

free of charge without asserting the waiver, resulting in a finding that the

waiver was ambiguous and invalid. Id.

Even if the language waiver requirements were met, personal

assurance of the seller that a car was in good condition qualified a written

waiver, rendering its language ambiguous. Wilks v. Ramsey, 48,738 (La.

App. 2 Cir. 1/15/14), 132 So. 3d 1009.

In this case, the sale contract did contain explicit language that the

purchaser waived express and implied warranties, including the warranty of

fitness for a particular purpose and the warranty against redhibitory vices.

However, there was evidence there was a misunderstanding of the waiver

terms. Prince of Peace inserted language into the contract that there was an

exception to the “as is” sale for the repair of the door handle, a qualification

that resulted in ambiguous terms. In addition, Modicue testified that he

repeatedly contacted Swayzer in an attempt to have Prince of Peace remedy

the vehicle defects, and that Swayzer told him to bring in repair bills for the

defects and she would reimburse him for the amounts, which would operate

as an implied warranty that could be relied upon by the buyer. The lower

court found that although the sale was intended to be “as is,” there was no

waiver of warranty in this case. We agree.

CONCLUSION

This Court upholds the City Court’s finding in favor of the appellee,

Donald Modicue, that redhibitory defects existed that warranted rescission

of the “as is” sale. The lower court based its finding on a credibility
15

determination that this Court does not disturb. As a result, this Court

upholds the award of $3,208.78 for the amounts paid by Modicue for the

purchase of the vehicle, but denies the special damages award of $383.00

since Modicue offered no proof in support thereof. However, Prince of

Peace is entitled to a credit in the amount of $1,708.78 for value derived

from the use of the vehicle by Modicue. Further, since this Court finds

Prince of Peace to be a good faith seller, it finds the $1,500.00 in general

damages awarded to Modicue to be error.

Therefore, this Court AFFIRMS the finding of the lower court of a

claim of redhibition warranting rescission of sale, but AMENDS to remove

the award of general damages and to include a credit to the seller, reducing

the award of damages from $7,591.78 to $4,000.00. All respective costs of

appeal are to be absorbed by the parties.

AFFIRMED AS AMENDED.

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