Jackson v. Reed

116 So. 3d 977, 2013 WL 2325178, 2013 La. App. LEXIS 1052
CourtLouisiana Court of Appeal
DecidedMay 29, 2013
DocketNos. 47,293-CA, 48,128-CA
StatusPublished
Cited by1 cases

This text of 116 So. 3d 977 (Jackson v. Reed) 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
Jackson v. Reed, 116 So. 3d 977, 2013 WL 2325178, 2013 La. App. LEXIS 1052 (La. Ct. App. 2013).

Opinion

DREW, J.

|,Charles Ray Kelly died on August 9, 2008, at 607 East College Street, Homer, Louisiana. The property was owned by Arthur and Ivy Reed.

On March 18, 2009, a death certificate was issued, reflecting that:

[979]*979• Kelly’s cause of death was “neck injuries,”

• the cause of these injuries was “unknown,” and

• both injury and death occurred at 6:30 p.m. on August 9, 2008.

On March 18, 2010,1 Kelly’s mother, Bessie Mae Jackson, filed a wrongful death suit2 against the Reeds and their unknown insurer.3 Ms. Jackson sought recovery based upon negligence and strict liability.

On August 4, 2011, a preliminary default was entered.

On September 12, 2011, plaintiff confirmed the preliminary default against the Reeds and their unknown insurer.

At confirmation, she presented only the following evidence:

• the death certificate;
• an uncertified “parcel description” from the Claiborne Parish Assessor, reflecting the Reeds’ ownership of the property; and
• the complete record including the verified pleadings.

| gJudgment as prayed for was granted in favor of plaintiff.

On October 11, 2011, State Farm filed a suspensive appeal. The Reeds filed an appeal the next day.

Ivy and Arthur Reed also filed a petition to annul the default judgment. Numerous filings, motions and cross-motions ensued, culminating in a hearing on all matters on November 14, 2011, at which the trial court ruled that the default judgment was an absolute nullity.

On January 18, 2012, the trial court signed a judgment which:

• granted Ivy Reed’s petition to annul the default judgment and the Reeds’ petition to annul the confirmation of the default, declaring the default judgment to be an absolute nullity;
• denied Jackson’s motions to strike, for contempt, and to amend/modify default judgment, and also denied her peremptory exception of no cause of action; and
• cast Jackson with costs of the proceedings.

State Farm and the Reeds attack on appeal the original default judgment in our appellate record # 47,293-CA.

Ms. Jackson filed an application for supervisory writs seeking review of the judgment of absolute nullity. On July 19, 2012, this court ordered that Ms. Jackson’s writ application be treated as a motion for appeal.4

[980]*980We twice ordered plaintiff to inform this court whether she still sought judicial review of the November 14, 2011, judgment of nullity which had not been perfected as an appeal. On September 26, 2012, plaintiff filed in the district court a motion for devolutive appeal of the judgment of nullity rendered in open court on November 14, 2011, and signed January 18, 2012. IsThe trial court granted the order of appeal on September 28, 2012. This appeal is found in our appellate record # 48,128-CA.

The appeals are consolidated.5

This court has pending three exceptions of prescription:

• On April 27, 2012, State Farm filed under our docket # 47,293-CA;
• On May 18, 2012, the Reeds filed under our docket # 47,293-CA; and
• On June 28, 2012, State Farm filed in the trial court in the same Second Judicial District (Claiborne Parish) record (docket # 38,850), found in our docket # 48,128-CA.

On May 31, 2012, a writ panel of this court referred the exceptions of prescription to the merits of this appeal.

DISCUSSION

There are several ancillary issues briefed6 which are moot, as we make two findings, either of which independently disposes of plaintiffs lawsuit:

1. The evidence at confirmation failed to establish the required prima facie case of defendants’ liability; and
2. Plaintiffs damage claim had prescribed before suit was filed.

Confirmation of Default

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). Aprima 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. The plaintiff must present competent evidence that convinces the court that it is probable that she would prevail at trial. Appellate review of a default judgment is restricted to determining the sufficiency of the evidence offered in support of the judgment. Youngblood v. Southern Air, Inc., 46,183 (La.App.2d Cir.3/2/11), 58 So.3d 1020.

Generally, to obtain a reversal of a default judgment, a defendant must overcome the presumption that the judgment has been rendered on sufficient evidence and is correct. This presumption does not attach, however, where the testimony is transcribed and contained in the record. Youngblood, supra. In this matter, no witnesses testified. The record does contain the transcript of the abbreviated confirmation hearing. The trial court gave plaintiffs counsel the opportunity to have plaintiff testify but the offer was declined.

La. C.C.P. art 1702(B) contains the evidentiary prerequisites to establish a prima facie case sufficient to confirm a default. For a delictual claim, the testimony of the plaintiff with corroborating evidence is admissible, self-authenticating, and sufficient. Ms. Jackson argued that the language in art. 1702(B) is permissive and that the petition and plaintiffs accompanying oath of the truth of its allegations [981]*981plus the service returns, when considered with the evidence presented at the confirmation hearing, are sufficient.

We disagree with Ms. Jackson’s contention. The supreme court explained in Arias v. Stolthaven New Orleans, LLC, 2008-1111 (La.5/5/09), 9 So.3d 815, that a confirmation of a default is similar to a trial and mandates sufficient proof to establish a prima facie case. The plaintiff must prove the existence and validity of her claim and cannot be different from what is sought in the petition and quantum must be properly proven. Arias, supra.

In reviewing a default judgment, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment. The determination is a factual one governed by the manifest error standard of review. Absent any error of law or a manifestly erroneous or clearly wrong factual finding, a court of appeal may not overturn a judgment of a trial court. Cameron v. Roberts, 47,789 (La.App.2d Cir.2/27/13), 111 So.3d 438.

Ms. Jackson’s effort fell far short of presenting a prima fade case establishing that plaintiff was likely to have prevailed at trial. The evidence presented did not demonstrate, inter alia:

• who or what caused Kelly’s death, and how he died;

• whether the death was intentional or accidental;

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Bluebook (online)
116 So. 3d 977, 2013 WL 2325178, 2013 La. App. LEXIS 1052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-reed-lactapp-2013.