Keller Supply, LLC v. Zeigler

106 So. 3d 176, 12 La.App. 5 Cir. 213, 2012 WL 5500521, 2012 La. App. LEXIS 1472
CourtLouisiana Court of Appeal
DecidedNovember 13, 2012
DocketNo. 12-CA-213
StatusPublished

This text of 106 So. 3d 176 (Keller Supply, LLC v. Zeigler) 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
Keller Supply, LLC v. Zeigler, 106 So. 3d 176, 12 La.App. 5 Cir. 213, 2012 WL 5500521, 2012 La. App. LEXIS 1472 (La. Ct. App. 2012).

Opinion

JUDE G. GRAVOIS, Judge.

| ^Appellant, Donnie Zeigler, Jr., has appealed a default judgment rendered against him. For the reasons that follow, we vacate the judgment under review and remand the matter for further proceedings.

FACTS

On September 28, 2011, Keller Supply, LLC (“Keller”) filed a suit on an open account in the 24th Judicial District Court naming “Donnie Zeigler, Jr. d/b/a/ Donnie’s Plumbing and Heating, Inc., a person of the full age of majority, and a resident of the State of Louisiana, Parish of Jefferson” as defendant. The petition alleges that “defendant” maintained an open account with Keller and incurred charges as set forth on the itemized statement of account attached to the petition. The petition further alleges that plaintiff “desires and hereby seeks a money judgment against Donnie Zeigler, Jr. for the full amount set forth herein, plus legal interest from the date of judicial demand, and an award of all reasonable attorney’s fees for bringing this action.” The petition prays that Donnie Zeigler, Jr. be served |swith a citation and copy of the petition, and that judgment be rendered in favor of Keller [178]*178and against Donnie Zeigler, Jr. in the amount of $39,599.06, together with legal interest, attorney’s fees, and costs. Service was requested to be made on “Donnie Zeigler, Jr. d/b/a Donnie’s Plumbing and Heating, Inc.” The first and second pages of the itemized statement of account attached to the petition have “Donnie’s Plumbing” typewritten below the designation for customer. “Donnie Zeigler” is hand-written above the designation for customer.

Keller subsequently filed a “Motion and Order for Entry of Judgment by Preliminary Default,” alleging therein that “Defendant Donnie Zeigler received citation and service of the Petition on Open Account, personal service having been made on October 6, 2011,” and that “[m]ore than fifteen days have elapsed since that date, and said Defendant has not filed answers or other responsive pleadings to the petition.” On October 28, 2011, the trial court granted a judgment of preliminary default against the “above-named Defendant.”

On November 8, 2011, Keller filed a Motion to Confirm Preliminary Default, stating therein that on October 28, 2011, a judgment of preliminary default was rendered against “Donnie Zeigler, Jr. d/b/a Donnie’s Plumbing and Heating, Inc.,” that more than two days, exclusive of holidays, have elapsed since that date, and that “Defendant” has not filed any answer or other responsive pleadings. The motion further states that “defendant Donnie Zeigler” received citation and service of the Petition on Open Account on October 6, 2011. The motion prays for judgment against “the Defendant,” confirming the judgment of preliminary default. An affidavit of correctness of the account and of nonmilitary service was attached to this motion. This affidavit states that the affi-ant was familiar with the account of “Donnie Zeigler, Jr. and Donnie’s Plumbing and Heating, Inc., Defendant in the above-captioned cause.” The affidavit states that the correct amount owed on the |4account by “Donnie Zeigler, Jr. and Donnie’s Plumbing and Heating, Inc.” is $39,599.06. A copy of the same itemized statement of account that was attached to the petition was also attached to this affidavit.

On November 16, 2011, the trial court rendered a judgment “in favor of Plaintiff and against Defendant” in the full amount prayed for, plus interest, costs, and attorney’s fees. Notice of the signing of this judgment was mailed to “Donnie Zeigler, Jr.” on November 16, 2011. It is from this judgment that Donnie Zeigler, Jr. appeals.

ASSIGNMENTS OF ERROR

Appellant has assigned the following errors for our review, to-wit:

1. The default judgment is defective because it was rendered against Donnie Zeigler, Jr., 'personally, when in fact the Petition on Open Account was with Donnie’s Plumbing and Heating, Inc., a duly qualified and registered Louisiana corporation in good standing with the Secretary of State.
2. The default judgment is defective because the record contains no evidence which would support piercing the corporate veil and no evidence showing defendant, Donnie Zeigler, Jr., operated Donnie’s Plumbing and Heating, Inc. as his alter ego.
3. The default judgment is defective because the record contains no evidence of service of citation and petition. There is no return of service in the record.
4. The default judgment is defective because it awards 1.5% interest per month on an open account but the record is void of the legal requirement of demand of payment or any [179]*179agreement establishing 1.5% as an agreed upon rate.
5. The default judgment is defective because it does not identify a particular defendant but only renders judgment against defendant.

ARGUMENTS, LAW, AND ANALYSIS

We begin by addressing appellant’s first two assignments of error jointly. In these assignments of error, appellant asserts that Donnie’s Plumbing and Heating, Inc. is a Louisiana corporation in good standing, and that Donnie Zeigler, Jr. has | sworked for Donnie’s Heating and Plumbing, Inc. for many years. Appellant also points out that the petition names “Donnie Zeigler, Jr., d/b/a Donnie’s Plumbing and Heating, Inc.” as defendant, with an attached invoice being only in the name of “Donnie’s Plumbing.” Appellant also notes that the motion and order for entry of judgment by preliminary default alleges citation and service made on “Donnie Zeig-ler,” and that the affidavit of correctness of account and non-military service refers to the “account of Donnie Zeigler, Jr., and Donnie’s Plumbing and Heating, Inc.”

Appellant argues that the default judgment in question should be vacated because the open account with Keller is that of the corporate entity “Donnie’s Plumbing and Heating, Inc.” and not a personal obligation of Donnie Zeigler, Jr. Appellant contends that there has been a long-standing relationship between Donnie’s Heating and Plumbing, Inc. and Keller in which Donnie’s Heating and Plumbing, Inc. had an open account with Keller. Appellant maintains that he has never received an invoice from Keller in his individual name. Appellant contends that the record is void of any evidence to establish a prima facie case to support a judgment against Donnie Zeigler, Jr. personally.

Louisiana Code of Civil Procedure article 1701 provides for the entry of a preliminary judgment by default when the defendant in the demand fails to answer within the time prescribed by law. Article 1702 sets forth the procedure for confirmation of a default judgment, stating that a “judgment- of default must be confirmed by proof of the demand sufficient to establish a prima facie case.” A prima facie case is established, as required for confirmation of a default judgment, when the plaintiff proves the allegations made in the petition, with competent evidence, to the same degree as if the allegations had been specifically denied by the defendant. Saacks v. Target Corp., 10-819 (La.App. 5 Cir. 1/25/11), 56 So.3d 450, 452, writ denied, 11-0688 (La.5/20/11), 68 So.3d 979. When the demand is based upon a suit on an open account, a default judgment may be confirmed without a hearing. La. C.C.P. art. 1702.1.

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Bluebook (online)
106 So. 3d 176, 12 La.App. 5 Cir. 213, 2012 WL 5500521, 2012 La. App. LEXIS 1472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keller-supply-llc-v-zeigler-lactapp-2012.