Why Can t We Be Friends: Top Ten Ways To Be Affirmed or Reversed

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1 2013 Spring Judges Meeting Thursday, April 11, :30 pm Why Can t We Be Friends: Top Ten Ways To Be Affirmed or Reversed I. Default Judgments A. The statutes Hon. D. Milton Moore, III Court of Appeal, Second Circuit mmoore@la2nd.org 1. La. C.C.P. art Judgment by default (the preliminary default). 2. La. C.C.P. art Confirmation of default judgment. Proof of the demand sufficient to establish a prima facie case. a. Conventional obligation. b. Delictual obligation. c. Sum due on open account promissory note or other negotiable instrument. d. Discretion of trial court to require a hearing; clerk s certification. 1 e. Personal injury demands sworn narratives of treating physician or dentist in lieu of live testimony. f. Proceedings under La. C.C. art. 103(1). 3. La. C.C.P. art Confirmation of default without hearing in open court. Minimum requirements, certifications. 1 See Rule 9.1 of Uniform Rules of District Courts which eliminated necessity of filing clerk of court s certification. The rule now provides that by moving for preliminary default, the attorney is certifying to the court that defendant has been properly served and failed to answer within prescribed time period. 1

2 B. 4. La. C.C.P. art Scope of judgment. 5. La. C.C.P. art Confirmation of default judgment and suits against the state or a political subdivision. 6. La. C.E. art A(1): Except as otherwise provided by legislation, the provisions of this code shall be applicable to the determination of questions of fact in all contradictory judicial proceedings and in proceedings to confirm a default. Seminal La. Supreme Court Cases 1. Kem Search, Inc. v. Sheffield, 434 So. 2d 1067 (La. 1983). 2. Sessions & Fishman v. Liquid Air Corp., 616 So. 2d 1254 (La. 1993). 3. Power Marketing Direct, Inc. v. Foster, (La. 9/6/06), 938 So. 2d Arias v. Stolthaven New Orleans, LLC, (La. 5/5/09), 9 So. 3d 815. C. The Essential Principles Confirmation of a default judgment requires proof of the demands deficient to establish a prima facie case. La. C.C.P. art. 1702A; Power Marketing Direct, supra at 670. Frank L. Maraist & Harry T. Lemmon, 1 La. Civil Law Treatise: Civil Procedure, 12.3 at 326(2). A prima facie case is established when the plaintiff proves the essential allegations of the petition, with competent evidence, to the same extent as if the allegations had been specifically denied. Sessions & Fishman, supra at 1258; Power Marketing Direct, supra at 670; Maraist & Lemmon, supra, 12.3 at The plaintiff must present competent evidence that convinces the court that it is probable that he would prevail at trial on the merits. Id. A plaintiff seeking to confirm a default must prove both the existence and the validity of his claim. Arias, supra at

3 A default judgment cannot be different in kind from what is demanded in the petition and the amount of damages must be proven to be properly due. La. C.C. art. 1703; Arias, supra at 820. At the hearing on confirmation of default, the provisions of the Code of Evidence generally apply. La. C.E. art A(1); Maraist, supra at The plaintiff must follow the rules of evidence even though there is no opponent. Arias, supra at 820. Because at a default confirmation there is no objecting party, to prevent reversal on appeal, both the plaintiff and the trial judge should be vigilant to assure that the judgment rests on admissible evidence that establishes the prima facie case. Arias, supra at 820, citing George W. Pugh, et al., Handbook on La. Evidence Law, 677 (2007). Inadmissible evidence, except as specifically provided by law, may not support a default judgment even though it was objective because the defendant was not present. Arias, supra at 820, Frank L. Maraist, 19 Civil Law Treatise: Evidence & Proof, 1.1 at 5 (2 ed. 2007). There is a presumption that a default judgment is supported by sufficient evidence, but this presumption may be rebutted by the record upon which the judgment is rendered. Arias, supra at 820; Ascension Builders, Inc. v. Jumonville, 262 La. 519, 527, 263 So. 2d 875, 878 (1972). D. A Sampling of Appellate Jurisprudence 1. Default judgments reversed on appeal. Goldfinch v. United Cabs, Inc., (La. App. 4 Cir. 5/13/09), 13 So. 3d Personal injury default judgment award reversed for failure to present a prima facie case. An unsworn doctor s report was inadmissible, incompetent evidence and could not serve as a basis for finding surgery caused by a taxi cab incident was medically necessary. 3

4 Duckworth Properties, LLC v. Williams, (La. 4 Cir. 11/24/10), 52 So. 3d 287. The fourth circuit annulled a default judgment rendered in city court because of pendency of the defendant s suit against the plaintiff in district court, finding that enforcement of default judgment would be unconscionable and inequitable. Moore Finance v. Ebarb, 46,392 (La. App. 2 Cir. 5/18/11), 70 So. 3d 856. The creditor failed to present evidence showing the right to demand immediate payment of unpaid balance on promissory note, when neither suit record nor promissory note contained affidavit or other competent support showing that the maker failed to pay the debt. Keller v. Keller, (La. App. 1 Cir. 12/21/11), 87 So. 3d 783, writ denied, (La. 3/30/12), 85 So. 3d 119. Default judgment was vacated as absolute nullity because district judge who caused it to be entered had previously recused herself from the case. La. C.C.P. art (judgment of preliminary default). Williams v. Smith, 45,069, (La. App. 2 Cir. 5/28/10), 37 So. 3d 1133, writ denied, (La. 10/1/10), 45 So. 3d Default judgment in personal injury matter was vacated for lack of competent evidence to support showing of prima facie case of negligence. Mount v. Hand Innovations, LLC, (La. App. 5 Cir. 11/27/12), 105 So. 3d 940. In personal injury case, the only medical evidence offered by plaintiff was his own testimony and certified copies of operative notes of surgical procedures; this was insufficient to make out a prima facie case. C.C.P. art D requires some type of sworn statement of treating physician, either testimony or a sworn narrative report such as an affidavit. First Bank & Trust v. Bayou Land & Marine, (La. App. 5 Cir. 10/30/12), 103 So. 3d Default judgment against personal guarantor of promissory note was vacated where guarantor had filed a motion for extension of time to file answer to petition; bank should have sent guarantor notice of date of entry of 4

5 II. preliminary judgment of default per La. C.C.P. art A. Cameron v. Roberts, 47,789 (La. App. 2 Cir. 2/27/13), 2013 WL Default judgment in suit for negligence and breach of contract against timber consultant was reversed, where much of plaintiff s case consisted of leading questions and inadmissible hearsay evidence. 2. Default judgments affirmed on appeal. Youngblood v. Southern Air, Inc., 46,183 (La. App. 2 Cir. 3/2/11), 58 So. 3d In a suit claiming defective installation of an air conditioning unit in the plaintiff s home, default judgment against the vendor installer affirmed, the court holding that the obligation was a verbal contract of the vendor as skill and installation rather than a delictual obligation, which would have required additional oral testimony per C.C.P. art B(2). Pollock v. Talco Midstream Assets, Ltd., 46,302 (La. App. 2 Cir. 5/18/11), 70 So. 3d 835, writ denied, (La. 9/23/11), 69 So. 3d Default judgment in property damage case was affirmed even though counsel for plaintiff had agreed earlier not to take adverse action without prior written notice. Counsel for plaintiff instructed officer of the defendant company to file an answer at this time but none was ever filed. River Parish Contractors, Inc. v. Savoie, (La. App. 5 Cir. 9/11/12), 101 So. 3d 495. An interesting case where appellate court affirmed the grant of a writ of mandamus to require individual officer of a corporation to take necessary steps to correct error in name and ownership of Tiger Stadium suite from individual s name to corporation s name. This helpful opinion details the extensive testimony presented by plaintiff at the hearing to confirm the default. Reasons for Judgment A. Statutes 1. La. C.C.P. art Findings of the court and reasons for judgment. 2. La. C.C.P. art Form of final judgment, with 5

6 B. Cases requirement of separate judgment from written reasons/ opinion. 1. Graham v. St. Charles General Hosp., 559 So. 2d 979 (La. App. 4 Cir. 1990). 2. Custom-Bilt Cabinet & Supply, Inc. v. Quality Built Cabinets, Inc., 31,441 (La. App. 2 Cir. 12/8/99), 748 So. 2d 594 (La. 1999). 3. Brocato v. Brocato (La. App. 1 Cir.), 369 So. 2d 1083, writ denied, 371 So. 2d 1341 (1979). 4. La. Dept. of Agriculture and Forestry v. Harper, 45,598 (La. App. 2 Cir. 12/19/07), 973 So. 2d M. Tahir Qayyum, M.D. v. Morehouse Parish Hosp. Serv. Dist., 47,324 (La. App. 2 Cir. 8/15/12), 104 So. 3d 505, writ denied, (La. 1/11/13), 106 So. 3d 554. C. Important Principles 1. The court must give in writing its findings of fact and reasons for judgment when requested to do so in writing by a party. The article applies to all appealable contested cases other than those tried by a jury. The request must be made not later than 10 days after mailing of notice of judgment. 2. The remedy when a trial judge fails to comply with mandatory duty under Art is to file for a supervisory writ of review to the appellate court or to file a motion with the appellate court for remand to trial court for preparation of written reasons. It is not proper to urge as an assignment of error on direct appeal. 3. Appeals are taken from a judgment, not from the written reasons for judgment. While the reasons define the principles on which the court is deciding a case, form no part of the official judgment signed. Similarly, the trial judge s written reasons are not binding and not appealable; rather, only the judgment itself has judicial effect and is subject to appeal. 6

7 4. When written reasons for the judgment are assigned, they shall be set out in an opinion separate from the judgment. 2 2 In Qayyum, supra, this court considered and rejected a certain kind of shortcut used by the district court: We note the peculiar judgment forms used by the trial court in this case, which consisted of pre-made forms on which details for a suit could then be listed in blank spaces. Several of these rulings and orders contained very brief written reasons for judgment. La. C.C.P. art provides that: A final judgment shall be identified as such by appropriate language. When written reasons for judgment are signed, they should be set out in an opinion separate from the judgment. The Supreme Court of Louisiana has held that the language contained in La. C.C.P. art. 1918, in connection with La. C.C.P. art. 5051, is precatory and, as such, does not render an otherwise complete and valid judgment invalid except for the inclusion of the reasons. Hinchman v. Int l Bhd. of Elec. Workers, Local Union # 130, 292 So. 2d 717 (La.1974); see also Martin v. JKD Investments, LLC, 42,196 (La. App. 2d Cir. 06/20/07), 961 So.2d 575. However, this should not be used by courts as an excuse to ignore the directive that a judgment must be definite, precise and certain as well as separate from written reasons for judgment. La. C.C.P. art. 1918; see also Security Nat. Partners, Limited P ship v. Baxley, 37,747 (La. App.2d Cir. 10/29/03), 859 So. 2d 890; Simon v. Hulse, 12 La. App. 450, 124 So. 845 (La. App. 1st Cir.1929). Rather than enhancing judicial efficiency, form judgments, such as those employed in the case sub judice, though convenient, often serve to merely increase confusion for litigants and reviewing courts alike. District courts should avoid this appealable issue entirely by fully complying with La. C.C.P. art