McNab v. Blanton

927 So. 2d 1281, 2006 La. App. LEXIS 944, 2006 WL 1064053
CourtLouisiana Court of Appeal
DecidedApril 19, 2006
DocketNo. 2005-1200
StatusPublished

This text of 927 So. 2d 1281 (McNab v. Blanton) 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
McNab v. Blanton, 927 So. 2d 1281, 2006 La. App. LEXIS 944, 2006 WL 1064053 (La. Ct. App. 2006).

Opinions

AMY, Judge.

_JjThe plaintiff filed suit against the defendant seeking damages for unwork-manlike performance in constructing a concrete pool deck. The defendant was personally served but failed to make an appearance of record. A preliminary default was entered and subsequently confirmed, wherein a judgment was entered against the defendant. The defendant thereafter filed an exception of vagueness and a motion for a new trial. After a hearing, the motion for new trial was denied. The defendant appeals this ruling. For the following reasons, we affirm-.

Factual and Procedural Background

The record indicates that the plaintiffs, Vinson and Melissa McNab, entered into a contract with the defendant, Jimmy Blan-ton, individually, and d/b/a Custom Concrete Designs, to construct a concrete pool [1282]*1282deck. After the deck was completed, the plaintiffs alleged that there were several defects with the deck and that their pool was damaged from the construction of the deck. According to Mrs. McNab, Mr. Blanton’s failure to remedy the problems prompted her to institute this suit.1 In her petition, Mrs. McNab seeks damages for Mr. Blanton’s “fail[ure] to supervise crew properly to prevent the damages to Plaintiffs property; failfure] to exercise the care of an ordinary prudent business owner; failure] to see what he should have seen, fail[ure] to do what he should have done under the circumstances; and fail[ure] to correct the problems with the job.”

The record indicates that Mr. Blanton was served on October 6, 2004. Mrs. McNab stated that because Mr. Blanton did not timely file an answer, she sent a letter to the Clerk of Court’s office asking it to enter a default judgment against him. According to the record, the default judgment was entered on October 25, 2004, | asixteen days after Mr. Blanton was served with the petition. Before confirming the default judgment, Mrs. McNab testified that she checked with the Clerk of Court’s office to see if Mr. Blanton had filed an answer or a responsive pleading. He had not; therefore, Mrs. McNab confirmed her default judgment on October 28, 2004, and judgment was entered against Mr. Blanton in the amount of $6,502.77.

After receiving notice of judgment, Mr. Blanton filed an exception of vagueness on November 3, 2004. The next day he filed a motion for a new trial. Following a hearing, the motion was denied. It is from this judgment that Mr. Blanton appeals, asserting the following assignments of error:

1. The trial court erred in denying Appellant’s Motion for New Trial by abusing its discretion in not reviewing and considering, in a proper manner, all circumstances which contributed to Appellant’s responsive pleading not being filed prior to the confirmation of the default judgment, and especially in light of general policy considerations weighing in Appellant’s favor to allow him his day in courtf.]
2. The trial court erred in denying Appellant’s Motion for New Trial in failing to properly consider the lack of veracity in Appellees’ testimony to the effect that although she checked her post office box in Jones-ville, Louisiana every day the week of October 25, 2004 through October 29, 2004, she did not actually receive the properly addressed correspondence and a copy of the Appellant’s exception of vagueness until four days after it was mailed from Vida-lia, Louisiana!.]
3. The trial court erred in denying the Appellant’s Motion for New Trial in accepting and failing to scrutinize improper legal arguments made by Appellee’s counsel at the hearing on the Motion for New Trial, and which arguments were advanced without notice to Appellant’s counsel through the proper advance filing of a memorandum in opposition to the Motion for New Trial.

| .-¡Discussion

Motion for New Trial

Mr. Blanton argues, in his brief submitted to this court, that under La.Code Civ.P. art. 1973, a new trial should have [1283]*1283been granted because there are good grounds therefor. He contends that due to policy considerations and the particular circumstances of this case, the default judgment should be set aside, and a new trial should be ordered to allow him his day in court.

Louisiana Code of Civil Procedure Article 1973 states “[a] new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.” In Crumb v. Bank One Corp., 35,-990, pp. 10-11 (La.App. 2 Cir. 5/8/02), 817 So.2d 1187, 1193, the court explained:

In reviewing the denial of a motion for a new trial after proper confirmation of a default judgment, the reviewing court must be particularly cautious in examining the circumstances underlying the judgment. Thibodeaux v. Burton, 538 So.2d 1001, (La.1989); Lamb v. Lamb, 430 So.2d 51 (La.1983); Hickman v. Wm. Wrigley, Jr. Co., Inc., 33,896 (La.App. 2d Cir.10/04/00), 768 So.2d 812. The trial court has much discretion in determining if a new trial is warranted, and its ruling cannot be set aside except in a case of a manifest abuse of that discretion or where the facts convince the reviewing court that a miscarriage of justice would result. Lamb, supra; Hickman, supra. The trial court’s denial of new trial will not be disturbed on appeal even though the defendant may assert in his motion for a new trial that he has a meritorious defense. Carroll v. Coleman, 27,861 (La.App. 2d Cir.1/24/96), 666 So.2d 1264, supra. Additionally, the mere failure to file an answer, without more, is not adequate grounds to grant a new trial. Lamb, supra; Carroll v. Coleman, supra.

In the instant case, Mr. Blanton was personally served on October 6, 2004. At the hearing on the motion for a new trial, Mr. Blanton testified that because of his illness, he was not able to go to the office of his attorney, Mr. Seibert, before October 20, 2004. He stated that Mr. Seibert told him that he “would file something to slow this down.”

| ¿Ms. Kimberle’ Millican, Mr. Seibert’s legal secretary, testified that after Mr. Blanton left the office, Mr. Seibert told her to file exceptions to two lawsuits. She stated that she prepared the exceptions that day, but because they had not been signed by Mr. Seibert, they were not mailed. Ms. Millican testified that when she returned to work on Monday, October 25, 2004, Mr. Seibert asked her why the exceptions had not been mailed. After he signed them, Ms. Millican “immediately prepared, proceeded to make copies and preparefd] the envelopes and [put] them in the envelopes.” She testified that she “prepared the transmittal letters to the clerk and the envelopes, hindsight, [she] inadvertently put the Judge’s post office box instead of the Clerk of Court’s post office box, but it was addressed to the Clerk of Court.” The exception was also sent to Mrs. McNab at her post office box in Jonesville, Louisiana.

According to Ms. Millican, on October 25, 2004, the exceptions were mailed. She testified that generally if something is mailed from Vidalia, Louisiana, it “goes to Alexandria and then comes to Harrison-burg, and it usually takes two days.” When asked whether Mr. Seibert had ever fax filed anything when a filing date was quickly approaching, Ms. Millican responded affirmatively as she remembered him fax filing a document on a previous occasion.

At the hearing, Mrs.

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Related

Lamb v. Lamb
430 So. 2d 51 (Supreme Court of Louisiana, 1983)
Carroll v. Coleman
666 So. 2d 1264 (Louisiana Court of Appeal, 1996)
Thibodeaux v. Burton
538 So. 2d 1001 (Supreme Court of Louisiana, 1989)
De Frances v. Gauthier
55 So. 2d 896 (Supreme Court of Louisiana, 1951)
Hickman v. Wm. Wrigley, Jr. Co., Inc.
768 So. 2d 812 (Louisiana Court of Appeal, 2000)
Succession of Rock v. Allstate Life Ins. Co.
340 So. 2d 1325 (Supreme Court of Louisiana, 1976)
Strange v. Imperial Pools, Inc.
520 So. 2d 1039 (Louisiana Court of Appeal, 1987)
Crump v. Bank One Corp.
817 So. 2d 1187 (Louisiana Court of Appeal, 2002)
Sunset Realty & Planting Co. v. Fortier
119 So. 909 (Louisiana Court of Appeal, 1929)

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Bluebook (online)
927 So. 2d 1281, 2006 La. App. LEXIS 944, 2006 WL 1064053, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcnab-v-blanton-lactapp-2006.