Chassis Inc. and William Scott Campbell v. FDJ Trucking LLC, also Longshot Trucking, LLC, and Frederick Nichols

• Court: Louisiana Court of Appeal
• Decided: January 10, 2024
• Docket: 55,404-CA
• Status: Published

Opinion

Judgment rendered January 10, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 55,404-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

CHASSIS INC. AND Plaintiffs-Appellees WILLIAM SCOTT CARROLL

versus

FDJ TRUCKING LLC, ALSO Defendants-Appellants LONGSHOT TRUCKING, LLC AND FREDERICK NICHOLS

Appealed from the West Monroe City Court for the Parish of Ouachita, Louisiana Trial Court No. 56614

Honorable Alan James Norris, Judge

AMY COATH JOHNSON Counsel for Appellants

BRENDA MAGGIE HOWELL Counsel for Appellees

Before STEPHENS, ROBINSON, and ELLENDER, JJ. STEPHENS, J.

This appeal is from a default judgment rendered against defendants,

FDJ Trucking, LLC, also d/b/a Longshot Trucking, LLC, and Frederick

Nichols (“Defendants” or “Longshot Trucking/Nichols”), by Honorable Jim

Norris, Judge, West Monroe City Court, Parish of Ouachita, State of

Louisiana. The issue in this appeal is whether the trial court erred in

granting plaintiffs, Chassis, Inc., and William Scott Carroll (“Plaintiffs” or

“Chassis/Carroll”), a default judgment in this suit on open account. For the

reasons set forth below, we reverse and remand the matter to the trial court

for further proceedings consistent with this opinion.

FACTS/PROCEDURAL HISTORY

Plaintiffs filed a “Petition for Monies Owed and for Further Relief”

against defendants in West Monroe City Court on February 13, 2023, in

which they alleged that defendants had wrongfully stopped payment on a

check for services rendered. The theory of recovery alleged by

Chassis/Carroll was that of an open account. Plaintiffs also requested an

award of attorney fees and court costs and filed an order asking that the

matter be set for a hearing. The trial court did not sign the order setting the

matter for trial, but made a handwritten note on the order that read, “Set for

trial after service and answer filed.”

Defendants were served with the petition and order with the above

notation on February 22, 2023. On March 6, 2023, Chassis/Carroll

presented to the court for consideration a “Final Judgment by Default”; there

was no hearing and no notice to Longshot Trucking/Nichols. Instead, the

trial court rendered judgment on March 7, 2023, in plaintiffs’ favor in the

amount of $7,936.55, together with interest at the statutory rate from the date of judicial demand until paid, together with attorney fees and court costs.

Notice of judgment was mailed to all parties on March 8, 2023. Longshot

Trucking/Nichols filed an “Answer and Affirmative Defenses” on March 8,

2023, and a “Motion for Devolutive Appeal” on April 12, 2023. The trial

judge’s order granting the appeal was also signed on April 12, 2023.

Since there was no trial, there was no testimony. All that is known

about the matter is set forth in Chassis/Carroll’s petition and three exhibits

(none of which were authenticated by affidavit). Nonetheless, as noted

above, plaintiffs secured a judgment in their favor via default on March 6,

2023. On that date, via attorney certification, Chassis/Carroll entered into

evidence the entire record (as it was), urging that they had produced due

proof of their demands and requesting that a default judgment be rendered

against defendants. The documents submitted in support of the request for a

default judgment included a final judgment, a “Certificate of Attorney”

signed by plaintiffs’ counsel, in which she asserted that the account sued

upon was in the nature of an open account, and an “Article 1702 Certificate”

also signed by plaintiffs’ counsel. The trial judge signed the default

judgment on March 7, 2023. It is from this judgment that Longshot

Trucking/Nichols have appealed.

DISCUSSION

Before we reach the assignments of error raised by defendants, we

must first address a jurisdictional issue noticed by this Court and addressed

by plaintiffs in their brief: whether the appeal filed by Longshot

Trucking/Nichols was timely, thus vesting this Court with jurisdiction to

hear this appeal.

2 As noted above, on March 7, 2023, the default judgment was granted

and filed into the record. Notice was sent to all parties via U.S. mail on

March 8, 2023, as evidenced by certificates of judgment filed into the

record. Defendants’ counsel, on April 12, 2023, filed a motion and order for

appeal, which the trial court allowed as a devolutive one. As noted by

Chassis/Carroll, the appeal was filed 36 days, not counting the legal holidays

of Good Friday and Easter, after the notice of judgment was sent by the city

court. This 36-day delay requires consideration of the timeliness of

defendants’ appeal.

Whether Defendants’ Appeal is Timely

Regarding the appeal delays applicable to parish and city courts, La.

C.C.P. art. 5002(A) provides that 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.

In Ranson v. Cooper, 16-0029, p. 4 (La. App. 1 Cir. 9/19/16), 228 So.

3d 1254, 1256, the First Circuit observed:

Focusing on the phrase “from service of notice of the judgment,” the Louisiana Supreme Court and this court have held that the 10-day appeal delay provided for in La. C.C.P. art. 5002 commences to run upon receipt of notice rather than upon the mere mailing of said notice. See Myles v. Turner, 612 So. 2d 32, 35 (La. 1993); Keesler v. Federal Credit Union v. Rivero, 14-0095 (La. App. 1 Cir. 9/19/14), 153 So. 3d 1218, 1220. (footnote omitted).

See also, Modicue v. Prince of Peace Auto Sale, LLC, 54,095, p. 3 (La. App.

2 Cir. 9/22/21), 328 So. 3d 1239, 1244, writ denied, 21-01864 (La. 2/15/22),

332 So. 3d 1188.

3 In La. C.C.P. art. 4904, which provides for default judgments in

parish and city courts, subsection (C) contains the applicable notice

requirement. A certified copy of the signed default judgment shall be sent to

the plaintiff by the clerk of court, and notice of the signing of the default

judgment shall be given as provided in Article 1913. Plaintiffs noted that

defendants were personally served with the petition. La. C.C.P. art.

1913(C) provides that notice of the signing of a default judgment shall be

mailed by the clerk of court to the defendant at the address where personal

service was obtained or to the last known address of the defendant. As set

forth in La. C.C.P. art. 5002(A), the appeal delay began ten days from

Longshot Trucking/Nichols’ receipt of the notice. The record contains no

evidence whatsoever of the date of defendants’ receipt of the notice of

judgment, such as a certified mail receipt or a receipt acknowledgment by

Longshot Trucking/Nichols.

It is a well-settled principle that appeals are favored in the law and

should be maintained unless a legal ground for dismissal is clearly shown.

Jackson v. Family Dollar Stores of Louisiana Inc., 18-0170 (La. 6/27/18),

251 So. 3d 368; Modicue, supra; Ranson, supra; Richardson v. North Oaks

Hospital, 11-1258 (La. App. 1 Cir. 2/13/12), 91 So. 3d 361. An appeal is

not to be dismissed on a mere technicality. Stadtlander v. Ryan’s Family

Steakhouses, Inc., 34,384 (La. App. 2 Cir. 4/4/01), 794 So. 2d 881, writ

denied, 01-1327 (La. 6/22/01), 794 So. 2d 790. Further, unless the ground

urged for dismissal is free from doubt, the appeal should not be dismissed.

Jackson, supra; Modicue, supra; Stadtlander, supra.

4 In light of the policy favoring appeals, and without proof in the record

of the date of defendants’ receipt of the notice of judgment, we find that the

instant appeal is timely.

Whether Plaintiffs Presented Sufficient Proof to Establish A Prima Facie Case for a Default Judgment for a Sum Due on an Open Account

Longshot Trucking/Nichols contends that the trial court’s default

judgment was contrary to the law and evidence and should be reversed, and

this matter should be remanded for a trial on the merits, since the evidence

introduced by Chassis/Carroll against defendants to confirm the default

judgment was insufficient to establish a prima facie case on an open account.

Defendants urge that without properly authenticated documentary evidence

or a sworn affidavit, Chassis/Carroll could not carry their burden of proof to

establish a prima facie case entitling them to a default judgment.

In this case, urge defendants, the evidence presented by

Chassis/Carroll is “wholly incompetent and insufficient,” and the default

judgment granted against Longshot Trucking/Nichols was contrary to the

law and evidence. Plaintiffs’ suit entitled “Petition for Monies Owed and for

Further Relief” was a suit on open account. The evidence necessary to

obtain a default judgment on an open account without a hearing is an

affidavit duly attesting to the authenticity of an itemized statement of the

account. Since Chassis/Carroll failed to present this evidence, they did not

establish a prima facie case either as to the validity of the debt or the amount

allegedly owed.

Longshot Trucking/Nichols takes issue with the exhibits attached to

plaintiffs’ request for default judgment. According to defendants, Exhibit A

identifies Freddy Nichols as the alleged customer and contains two separate

5 estimates dated July 21, 2021, but there is no identified “project” in either;

there is also an invoice from Chassis identifying Longshot Trucking as the

customer and “Truck 22” as the project; the invoice reflects charges of

$3,000 and receipt of payment of this amount is dated July 10, 2021. Exhibit

B has an undated invoice generated by Chassis identifying Longshot

Trucking as the customer; the project type is not legible. According to

defendants, Chassis/Carroll offer no proof that the estimates and statements

even relate to the project giving rise to this litigation. Furthermore, plaintiffs

do not try to reconcile that the accounts seem to belong to two separate

entities, Freddy Nichols and Longshot Trucking, establish a connexity

between the entities, or show how they might be jointly liable for the

underlying debt. The trial court could have, in its discretion under La.

C.C.P. art. 1702(B)(2), required oral testimony to explain how the

documents and entities were related, or Chassis/Carroll could have

established the relationships in an affidavit. Neither was done, urge

defendants.

The trial court took at face value the calculations made by plaintiffs.

According to Longshot Trucking/Nichols, there is no basis in the record to

support how Chassis/Carroll arrived at the $7,936.55 amount. Defendants

contend that plaintiffs submitted only copies of random estimates and

invoices, and these documents do not demonstrate how Chassis/Carroll

reached the alleged amount due. According to defendants, none of the

figures presented in plaintiffs’ exhibits results in the actual amount allegedly

owed. All of this could have been taken care of with an authenticated

itemization of the account by affidavit or oral testimony, notes Longshot

Trucking/Nichols. 6 Longshot Trucking/Nichols next points out that all of plaintiffs’

documentary “proof” consists of inadmissible hearsay or out of court written

statements offered into evidence to prove the truth of the matter asserted.

Even if any of the documents could have been admitted under the business

records exception in La. C.E. art. 803(6), nothing was authenticated or

verified by sworn affidavit.

For the reasons set forth above, defendants urge this Court to reverse

the trial court’s judgment and remand for further proceedings.

Chassis/Carroll urge that Longshot Trucking/Nichols’ appeal is

frivolous. Plaintiffs contend that the evidence attached to their petition was

“clear and convincing” and the trial court did not err in considering and

finding proof of the claim on open account in the written estimates for the

work to be done, the funds previously paid for the work requested, the

receipt showing payment for the work provided, a copy of the negotiable

instrument signed by Nichols, and the police report filed by plaintiffs against

Nichols for his theft after he stopped payment on a check for the work

performed by plaintiffs to grant the default judgment.

In reviewing default judgments, the appellate court is restricted to

determining the sufficiency of the evidence offered in support of the

judgment. Arias v. Stolthaven New Orleans, L.L.C., 08-1111 (La. 5/5/09), 9

So. 3d 815; McCall v. Marshall, 51,708 (La. App. 2 Cir. 11/15/17), 244 So.

3d 1213; Moore Finance Co., Inc. v. Ebarb, 46,392 (La. App. 2 Cir.

5/18/11), 70 So. 3d 856. The determination is a factual one governed by the

manifest error standard of review. Arias, supra; Cameron v. Roberts, 47,789

(La. App. 2 Cir. 2/27/13), 111 So. 3d 438.

7 The law and procedure relative to default judgments in parish and city

courts is set forth in La. C.C. art. 4904. Subsection (A) of La. C.C.P. art.

4904 provides that in suits in city courts, if a defendant fails to answer

timely and the plaintiff establishes a prima facie case by competent and

admissible evidence, a default in favor of the plaintiff may be rendered.

Subsection (B) of La. C.C.P. art. 4904 provides that when the suit is for a

sum due on an open account, as in this case, prima facie proof may be

submitted by affidavit.

To establish a prima facie case, the plaintiff must present competent

evidence that convinces the court that it is probable that he would prevail at

trial on the merits. Arias, supra; Thibodeaux v. Burton, 538 So. 2d 1001

(La. 1989). In Sessions & Fishman v. Liquid Air Corp., 616 So. 2d 1254

(La. 1993), the Louisiana Supreme Court outlined the requirements for

confirming a default in a suit on open account. Specifically, the court

explained that the prima facie proof necessary to support a judgment of

default in a suit on an open account consists of a statement of the account or

invoice and an affidavit attesting to the correctness thereof. Id. at 1261.

Furthermore, the affidavit attesting to the correctness of the evidence should

be by someone personally familiar with the account. See, Louisiana Safety

Ass’n of Timbermen-Self Insurers Fund v. TemLaco, Inc., 39,459 (La. App.

2 Cir. 4/28/05), 903 So. 2d 492, 495; First Consumers Financial, LLC v.

Frank, 07-342 (La. App. 3 Cir. 10/3/07), 966 So. 2d 1199, 1201.

In this case, plaintiffs failed to provide sufficient proof to support a

default judgment under La. C.C.P. art. 4904. The documents submitted to

the trial court, which include written estimates, two invoices, one of which is

unsigned, and documents relating to a returned check, do not take the place 8 of an itemized statement of account and/or invoices sufficient to establish

the amount sought by plaintiffs in their petition on open account. There is

also no affidavit by Carroll or anyone else affiliated with Chassis, with

personal knowledge of the matters stated therein, to prove its open account

with Longshot Trucking/Nichols. As plaintiffs have fallen short of the legal

proof required to prove a sum due on open account, we reverse the default

judgment rendered in their favor and remand this matter to the trial court for

further proceedings.

CONCLUSION

For the reasons set forth above, the judgment of the trial court is

reversed, and this matter is remanded. Costs of this appeal are assessed to

plaintiffs, Chassis Inc., and William Scott Carroll.

REVERSED; REMANDED.