Gonzales v. BUILD-A-BEAR WORKSHOP, INC.

30 So. 3d 27, 9 La.App. 5 Cir. 368, 2009 La. App. LEXIS 2034, 2009 WL 4639878
CourtLouisiana Court of Appeal
DecidedDecember 8, 2009
Docket09-CA-368
StatusPublished
Cited by5 cases

This text of 30 So. 3d 27 (Gonzales v. BUILD-A-BEAR WORKSHOP, INC.) 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
Gonzales v. BUILD-A-BEAR WORKSHOP, INC., 30 So. 3d 27, 9 La.App. 5 Cir. 368, 2009 La. App. LEXIS 2034, 2009 WL 4639878 (La. Ct. App. 2009).

Opinions

WALTER J. ROTHSCHILD, Judge.

|2In this suit for personal injuries, defendant appeals from a default judgment rendered in plaintiffs favor. The issue presented is whether the evidence introduced by the plaintiff, Frederick Gonzales, against defendant HA Logistics to confirm the default judgment was sufficient to establish a prima facie case under La. C.C.P. art. 1702. After reviewing the record and the applicable law, we find that the plaintiff failed to sustain his burden of proof for confirmation of the default judgment and we therefore must vacate the judgment and remand for further proceedings consistent herewith.

Factual and Procedural History

On March 10, 2005, Frederick Gonzales, an employee of Sundown Express, Inc., filed the instant petition for damages against Build-A-Bear Workshop, Inc. (“Build-A-Bear”) and its insurer for injuries he sustained while delivering a bale of cotton to defendant’s location at Lakeside Shopping Center in Metairie, Louisiana. Build-A-Bear subsequently filed an answer denying the allegations of the petition. Thereafter, the workers’ lacompensation insurer for Sundown Express, Inc. filed a petition to intervene in the proceedings for benefits paid to Gonzales as a result of his injuries.

Discovery proceeded in this matter, and on June 18, 2008, defendant Build-A-Bear filed a third party demand against HA Logistics, Inc. based on a contract between the two entities regarding the movement of supplies for Build-A-Bear’s business. Build-A-Bear asserted it was entitled to a defense and indemnity from HA Logistics for plaintiffs claim for personal injury pursuant to the terms of this contract. A copy of the agreement between the parties was attached to the third party demand.

On June 23, 2008, plaintiff filed a Supplemental and Amending Petition naming as defendant “HA Longistics, Inc.” “HA Longistics, Inc.” was served via certified mail pursuant to the Long Arm Statute on July 12, 2008. No answer was filed on behalf of this defendant, and the trial court entered a preliminary default on August 12, 2008. However, this default was subsequently vacated by the trial court as “HA Longistics, Inc.” was not the proper defendant in these proceedings.

[29]*29The record also contains a Joint Motion for Partial Dismissal which was signed by the trial court on November 6, 2008 indicating that the claims between plaintiff and Build-A-Bear were settled and dismissing those claims, but reserving plaintiffs rights to proceed against HA Logistics, Inc.

On November 18, 2008, plaintiff filed a 2nd Supplemental and Amending Petition correctly naming HA Logistics, Inc. as defendant in the main demand. This defendant was served at its corporate address via certified mail pursuant to the Long Arm Statute on December 1, 2008, and no answer was filed on behalf of this defendant. The trial court entered a preliminary default against HA Logistics, Inc. on January 22, 2008. On |4January 29, 2009, the trial court confirmed the prelimi-nai’y default and entered judgment against defendant, HA Logistics, Inc. in the amount of $211,384.65, together with costs and judicial interest from March 10, 2005.

HA Logistics, Inc. now appeals from this judgment on the basis of several assignments of error: that the trial court erred in finding plaintiff met his burden to establish a prima facie case pursuant to La. C.C.P. art. 1702; that the trial court erred in failing to quantify comparative fault of all parties prior to entering judgment; that the trial court erred in holding that judicial interest ran from the date of the original demand. Because we find merit in defendant’s first assignment of error which requires us to vacate the judgment, it is unnecessary to reach the remaining assignments.

Applicable Law

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. La. C.C.P. art. 1702 A. For a plaintiff to obtain a default judgment, he must establish the elements of a prim,a facie case with competent evidence, as fully as though the defendant denied each of the allegations in the petition. The plaintiff must present competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits. Schaff v. Cardinal Services, Inc., 00-1164 (La.App. 5 Cir. 2/14/01), 778 So.2d 1278, 1280, writ denied, 01-1035 (La.6/1/01) 793 So.2d 196, citing Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989). When a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of |fithe case, require additional evidence in the form of oral testimony before entering judgment. La. C.C.P. art. 1702(B)(2). When the demand is based upon a claim for a personal injury, a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony. La. C.C.P. art. 1702(D).

Standard of review

The determination of whether there is sufficient proof to support a default judgment is a question of fact and should not be disturbed on appeal unless it is manifestly erroneous. Ledet v. Moe, 03-745 (La.App. 5 Cir. 12/9/03), 864 So.2d 643, 644. Where it is uncontested that entry of the default judgment was procedurally proper, appellate review is limited to determining whether there was sufficient evidence introduced at the default confirmation hearing to support the default judgment. Akerman v. Dawes, 94-757 (La.App. 4 Cir. 1/19/95), 658 So.2d 1270, 1271-1272.

Prima Facie Case

In its first assignment of error, HA Logistics argues that plaintiff did not pres[30]*30ent a prima facie case of liability or damages, citing La. C.C.P. art. 1702. While we pretermit the issue of whether the evidence submitted by plaintiff with regard to liability is sufficient to prove a prima facie case, we find the medical evidence to be insufficient to meet plaintiffs burden.

At the confirmation hearing, plaintiff submitted the following: excerpts from depositions of the corporate representatives of Build-A-Bear and Sundown Express, Inc., a copy of an agreement between HA Logistics and Build-A-Bear, plaintiffs wage records, certified copies of plaintiffs medical records and plaintiffs own testimony regarding the accident and his injuries.

11,Plaintiff testified that at the time of the accident herein, he was employed by Sundown Express, Inc. and was making a delivery to Build-A-Bear location in Lakeside Shopping Center. He identified his wage records and stated that he was paid based upon the number of and weight of deliveries he made every day. He stated that the cotton bale he was delivering to Build-A-Bear on the date in question weighed approximately 700 pounds. During this delivery, Build-A-Bear employees furnished him a furniture cart which was smaller than the cart usually used for this delivery and that the weight of the cotton broke the cart and the bale of cotton fell on top of him. Plaintiff was shown a copy of the agreement between HA Logistics, Inc. and Build-A-Bear and he testified he had never seen the agreement and no one had told him of the manner of making deliveries specified in the agreement.

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Gonzales v. BUILD-A-BEAR WORKSHOP, INC.
30 So. 3d 27 (Louisiana Court of Appeal, 2009)

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Bluebook (online)
30 So. 3d 27, 9 La.App. 5 Cir. 368, 2009 La. App. LEXIS 2034, 2009 WL 4639878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzales-v-build-a-bear-workshop-inc-lactapp-2009.