First Tower Loan, LLC v. Taylor

211 So. 3d 462, 16 La.App. 3 Cir. 718, 2017 WL 434828, 2017 La. App. LEXIS 126
CourtLouisiana Court of Appeal
DecidedFebruary 1, 2017
Docket16-718
StatusPublished
Cited by1 cases

This text of 211 So. 3d 462 (First Tower Loan, LLC v. Taylor) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First Tower Loan, LLC v. Taylor, 211 So. 3d 462, 16 La.App. 3 Cir. 718, 2017 WL 434828, 2017 La. App. LEXIS 126 (La. Ct. App. 2017).

Opinion

GREMILLION, Judge.

h The plaintiff-appellant, First Tower Loan, LLC, d/b/a Tower Loan of Leesville (Tower Loan), appeals the judgment of the trial court entering a default judgment in favor of the defendant-appellee, William C. Taylor. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2012, Tower Loan filed a petition to collect sums due by Taylor on a note executed in May 2012, and secured by moveable property. On February 22, 2013, Tower Loan through its manager, Sumer Duplechain, allegedly entered into an oral contract for the repayment of funds due Tower Loan by Taylor, with the caveat that if Taylor made the payments as agreed no further action would be taken against him. Tower Loan then obtained a judgment against Taylor on March 14, 2013, for $8,253.04 with 28.47% interest and attorney fees. Taylor did not appeal the March 14, 2013 judgment. Taylor made payments of $150.00 in March, April, and May 2013. However, Tower Loan returned the May 2013 payment and instituted garnishment proceedings against Taylor. On October 4, 2013, the trial court signed an order for garnishment.

On November 20, 2013, Taylor filed a petition pro se to enforce the February 22, 2013 agreement with instructions to serve Tower Loan through its attorney, Sandy Clause. Taylor filed a motion for preliminary default in January 2016, which was granted on February 1, 2016, reinstating the payment plan of $150.00 per month with a balance due of $8,508.32. The judgment further dismissed the garnishment.

On February 11,'2016, Tower Loan filed a motion to set aside the judgment and for a new trial. Tower Loan claimed that it agreed to accept $161.00 per 12month and that Taylor’s $150.00 payment was insufficient, causing it to be returned to him in May 2013. On February 12, 2016, the trial court denied the motion. Tower Loan then filed a motion to reconsider the order de[464]*464nying its motion to set aside and for new trial and/or, in the alternative, to set the matter for hearing, arguing in part that it was not properly served as Clause is not the registered agent for service of process. The trial court denied the motion noting, “Service was made upon counsel of record.” In March 2016, Tower Loan requested written reasons for judgment pursuant to La.Code Civ.P. Art. 1917.1 Tower Loan now appeals.

ASSIGNMENTS OF ERROR

Tower Loan assigns as error:

1. The trial court erred when it granted judgment in favor of appellee.
2. The trial court erred when it did not set aside the judgment rendered in favor of appellee and grant a new trial.

At the conclusion of the preliminary default hearing the trial court stated:

[Tjhere is no answer filed to your petition by anyone, including the attorneys. You’ve entered your preliminary default and I’m going to find that the evidence supports—particularly, the documentary evidence supports [ ] an oral agreement of payment of this judgment in the fashion you’ve described. I’m going [to] order specific performance of that agreement and order that they accept those payments in accordance with that agreement at the rate of a hundred and fifty dollars per month.

A March 27, 2013 letter addressed to Taylor and sent by Tower Loan’s attorney stated, in part:

Dear Mr. Taylor:
In response to your call the other day.
| SI spoke with Tower Loan manager and she said she explained to you that a Judgment would be rendered against you, however no further action would be taken on the suit as long as you continued to pay as agreed.

Also in the record were copies of the payments of $150.00 in March and April 2013, which were negotiated by Tower Loan, and an affidavit by Taylor’s parents stating that Duplechain and a male associate came to their residence on February 22, 2013. Approximately thirty minutes after Duplechain and the male associate left, Taylor arrived at his parents’ house, at which time they gave him a $575.00 personal check to bring his account current and prevent further action from being taken on the judgment. They further attested that they heard their son’s conversation with Duplechain in which he told her that he would be in after lunch to pay the $575.00 and discuss the payment plan terms. The negotiated $575.00 check dated February 22, 2013, was admitted into evidence.

Service of Process

Tower Loan argues that it was not properly served as Clause was not an agent for service of process.

The proper method for contesting the sufficiency of service of process is by filing an exception. La.Code Civ.P. Art. 925 requires that a declinatory exception which challenges the sufficiency of service of process must be made prior to a general appearance or default judgment. Moity v. Guilliot, 466 So.2d 511 (La. App. 3 Cir.1985); McMickens v. McMickens, 386 So.2d 972 (La.App. 3 Cir.1980). Otherwise, the exception is waived and the defendant’s only recourse is to file a suit to annul the default judgment. See La.Code Civ.P. Art. 2002.

Guidry’s Seafood Distribs., Inc. v. Farmers Seafood Co., Inc. 99-1005, p. 3 (La. [465]*465App. 3 Cir. 12/15/99), 759 So.2d 806, 807, writ denied, 00-837 (La. 5/12/00), 762 So.2d 15.

|/Tower Loan did not file a declinatory exception to service of process prior to or contemporaneously with its general appearance on the record. Accordingly, Tower Loan has waived any objection it has to service of process. This assignment of error is without merit.

Taylor’s Failure to Appeal the March 2013 Judgment

Tower Loan argues that Taylor should have filed a reconventional demand to its original December 2012 petition. Taylor testified at the default hearing that he believed the judgment was no longer valid based on the oral agreement confected with Duplechain, as evidenced by the March 27, 2013 letter sent by Tower Loan’s attorney after the judgment was rendered. He was only aware that Tower Loan was not going to enforce its oral agreement to suspend the judgment as long as payments were made until, at the earliest, May 2013, when appeal delays from the March 2013 judgment had long expired. Taylor’s cause of action against Tower Loan did not arise until this time. Moreover, Taylor’s November 2013 petition pertained to the breach of the agreement he confected in February 2013, rather than the March 2013 judgment. Accordingly, this assignment of error is without merit.

Default Judgment Merits/Validity of Contract to Make Payments

La.Code Civ.P. Art. 1701(A)pro-vides that “[i]f a defendant in the princip[al] or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him.” Under La.Code Civ. P. Art. 1702, a judgment of default must be confirmed by proof of the demand, sufficient to establish a prima facie case, as fully as though the Defendants denied each of the allegations in the petition. Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254 (La.1993). In other words, the plaintiff must present competent evidence that convinces the court that it is more probable than not that [he] would prevail in a trial on the merits.

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Bluebook (online)
211 So. 3d 462, 16 La.App. 3 Cir. 718, 2017 WL 434828, 2017 La. App. LEXIS 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-tower-loan-llc-v-taylor-lactapp-2017.