Louisiana Farm Bureau Mutual Insurance Company v. Groundlink, Inc.

• Court: Louisiana Court of Appeal
• Decided: February 4, 2004
• Docket: CA-0003-0947
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

03-0947

LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY, ET AL.

VERSUS

GROUNDLINK, INC., ET AL.

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APPEAL FROM THE NATCHITOCHES CITY COURT DOCKET NO. 21,259 HONORABLE FRED S. GAHAGAN, CITY COURT JUDGE

OSWALD A. DECUIR JUDGE

Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Glenn B. Gremillion, Judges.

JUDGMENT VACATED AND REMANDED.

Joe Payne Williams Williams Family Law Firm, L.L.C. Post Office Box 15 Natchitoches, LA 71458-0015 (318) 352-6695 Counsel for Plaintiffs/Appellees: Louisiana Farm Bureau Mutual Insurance Company John R. Evans Kristen Evans

Boyd A. Bryan Perret Doise P. O. Drawer 3408 Lafayette, LA 70502-3408 (337) 262-9000 Counsel for Defendant/Appellant: Kelly Dortlon Robert Kennedy Jr. Cook, Yancey, King & Galloway P.O. Box 22260 Shreveport, LA 71120-2260 (318) 221-6277 Counsel for Defendant: Groundlink, Inc. DECUIR, Judge.

John and Kristen Evans and their homeowner’s insurer, Louisiana Farm Bureau

Mutual Insurance Company, filed suit against Groundlink, Inc. and Kelly Dortlon

d/b/a System Services to recover damages resulting from the backup of sewerage into

the Evans’ home. The trial court granted a default judgment against Dortlon, and he

appealed. Finding the judgment rendered below to be an absolute nullity, we vacate

and remand for further proceedings.

The record reveals that on October 17, 2001, John and Kristen Evans

discovered raw sewerage in several rooms of their home. A plumber was contacted,

and the next day he determined that a cable line had been installed directly through

a sewer pipe running from the Evans’ house. The evidence in the record shows that

John Evans contacted the cable company, Cox Communications, and was referred to

System Services and Groundlink. Subsequent to the completion of the repairs, Evans

requested from Kelly Dortlon, who represented himself as being with System

Services, that his bills be paid. Evans received a letter from Dortlon discussing the

locating and marking of utility lines when underground work is performed and

essentially denying responsibility for the damaged pipe; however, Dortlon offered to

“work this matter out” and suggested that Evans forward copies of his cleaning bills

and carpet estimate to him.

Following receipt of this correspondence, Evans sent copies of the bills he had

received to Dortlon, but Dortlon did not respond. Evans testified that he and his wife

incurred damages including the cost of clean up, plumbing repair, new carpet, three

days of lost wages, inconvenience, and embarrassment. They filed a claim with their

insurer, which paid $4,886.40. Their policy had a $1,000.00 deductible and did not

cover the cost of the plumbing repair, general damages, and lost wages. The insurer

and Evans then filed suit against Dortlon on October 11, 2002. When he failed to answer, the plaintiffs sought a default judgment which was rendered on May 30, 2003,

awarding $4,886.40 to Farm Bureau and $7,183.40 to John and Kristen Evans.

A default judgment is obtained pursuant to the provisions of La.Code Civ.P. art.

1701, which provides in pertinent part:

A. If a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. The judgment may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes.

Article 1702 requires that a default judgment be confirmed “by proof of the

demand sufficient to establish a prima facie case.” Because these provisions are

mandatory, a default judgment requires two steps in order to be valid and enforceable:

a preliminary default entered in the minutes and confirmation by prima facie proof.

In the record before us, there is no written motion for a preliminary default, no

evidence of an oral motion for default, and there is no minute entry showing that a

default has been entered. Rather, there is only the transcript of a confirmation hearing,

and a judgment rendered subsequent to that hearing.

In Clark v. Clark, 03-353 (La.App. 3 Cir. 10/1/03), 856 So.2d 206, we held that

a final default judgment obtained without a valid preliminary default is an absolute

nullity. In that case, a default judgment was confirmed against a defendant who had

answered the petition. In Glessner v. Hyatt, 380 So.2d 222 (La.App. 3 Cir. 1980), a

preliminary default was entered prematurely, rendering the final judgment of default

a nullity. Conversely, in Clark v. Neel, 583 So.2d 90 (La.App. 3 Cir. 1991), this court

affirmed a final judgment of default rendered after the trial court independently

verified that a preliminary default had been properly entered and ordered a correction

of the minutes to reflect same. In this case, there was no default judgment entered

2 prior to the confirmation hearing. Accordingly, we find the judgment of default

rendered herein to be an absolute nullity.

For the foregoing reasons, the judgment of the trial court is vacated and set

aside. This matter is remanded for further proceedings. Costs are assessed to

Louisiana Farm Bureau and John and Kristen Evans.