STATE OF LOUISIANA
FIRST CIRCUIT
2025 CA 0314
VERSUS
ONSHORE CONSTRUCTION COMPANY, L.L.C., and ABC INSURANCE COMPANY
Judgment Rendered.
On Appeal from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana Trial Court Docket Number 183282, Div. " A"
Honorable Timothy C. Ellender, Judge Presiding
Mary W. Riviere Counsel for Plaintiff/Appellee, Hunt B. Downer Ronald Johnson David C. Pellegrin, Jr. Joseph L. Waitz, III Ellen Daigle Doskey Gary Williams, Jr. Houma, Louisiana
R. Todd Musgrave Counsel for Defendant/Appellant, Adam J. Boyer Onshore Materials, LLC and New Orleans, Louisiana Defendant, Onshore Construction Company, LLC
David T. Butler Counsel for Defendant/ Intervenor, Baton Rouge, Louisiana Bridgefield Casualty Insurance Company, Inc.
BEFORE: THERIOT, PENZATO, AND BALFOUR, JJ. PENZATO, J.
Defendant, Onshore Materials, L.L.C., appeals a default judgment rendered
on February 6, 2024 against it and in favor of plaintiff, Ronald Johnson, awarding
Johnson a total of $2, 383, 000. 00, plus interest and costs. For the reasons that follow,
we reverse the February 6, 2024 default judgment and remand this matter to the trial
court for further proceedings consistent with this opinion.
We deny Johnson' s motion to dismiss the appeal; deny in part and deny as
moot Onshore Materials' motion to attach appendices; and dismiss Onshore
Materials' peremptory exception of prescription, without prejudice.
FACTS AND PROCEDURAL HISTORY
Ronald Johnson purportedly sustained personal injuries on July 29, 2017,
while in the course and scope of his employment with Sugarland Express, L.L.C.
d/ b/ a Arabie Trucking. That day, Johnson was driving an 18 -wheeler MAC truck
and dump trailer on a temporary access road constructed by Onshore Materials in
connection with a land clearing project for Shell Pipeline Company, LP. After the
trailer on Johnson' s truck was loaded with tree debris by an Onshore Materials
employee, Johnson drove forward on the access road.
As Johnson drove off at idle speed, he noticed out of his rearview mirror that
the trailer attached to his truck was tilting toward the passenger side. Shortly
thereafter, the truck, with the attached trailer, tipped and landed on its passenger
side. Johnson, who was not wearing a seat belt at the time, likewise fell to the
passenger side of the truck and was knocked unconscious. Nearby workers rushed
to Johnson' s aid and removed him from the truck by shattering the back glass.
Shortly after the incident, Johnson began treating for personal injuries allegedly sustained in the incident.
Johnson filed suit in June 2018 against Onshore Construction Company L.L.C., alleging that his vehicle toppled over because it was overloaded and due to
2 the condition of the lane being used by the vehicles."' Johnson amended his
petition in July 2020 to add Onshore Materials and Certain Underwriters at Lloyds London, as insurer for both Onshore companies, as defendants. Johnson asserted
negligence claims against Onshore Materials for its failure and/or its employees'
failure to keep a proper lookout and execute their job duties, carelessly allowing
Johnson' s truck to become overloaded, failing to provide Johnson with a safe means
of ingress/ egress for the vehicle he was operating, and failing to keep a proper
lookout as the truck was being loaded.
Johnson amended his petition twice more, adding Shell Pipeline and Smith
Tank & Steel, Inc. as defendants. The prayer for relief in Johnson' s third and final
supplemental and amended petition prayed for judgment in his favor and against
Onshore Construction, Onshore Materials, Certain Underwriters at Lloyds London,
Shell Pipeline, and Smith Tank "jointly and in solido[.]"
All defendants filed responsive pleadings except Onshore Materials.
On February 1, 2024, Johnson filed a motion for default judgment against Onshore
Materials. A hearing on the motion was held on February 6, 2024, during which
Johnson testified and admitted numerous documents into evidence, including
depositions, medical records, and the affidavit and report of licensed geotechnical
engineer, David Eastwood. Johnson also admitted a letter dated December 6, 2023,
mailed to Onshore Materials' agent for service of process, and delivered via certified
mail on December 14, 2023. The letter stated Johnson' s intent to obtain a default
judgment against Onshore Materials.
At the conclusion of evidence, the trial court orally granted the motion for
default, finding Johnson satisfied all notice requirements of La. C. C. P. art.
1702( A)(4). The trial court further concluded that Johnson made a pima, acie case
1 Johnson also named " ABC Insurance Company" as Onshore Construction' s fictitious insurer.
3 as to Onshore Materials' liability and that the actions and neglect of Onshore
Materials served as a proximate cause of the damages alleged and urged by Johnson.
A written judgment was signed the same day, rendering judgment against Onshore
Materials, in favor of Johnson, in the total amount of $2, 383, 000. 00, representing
both general and special damages.
Onshore Materials timely filed a motion for new trial, urging both mandatory
and discretionary grounds as a basis to reverse or nullify the default judgment.2 Among other things, Onshore Materials asserted that Johnson' s attorneys were
aware that R. Todd Musgrave and Adam Boyer, counsel for Onshore Construction,
also represented Onshore Materials and failed to comply with the mandatory notice
requirements of La. C. C.P. art. 1702( A)(3). The trial court disagreed and, in written
reasons, explained its conclusion that Onshore Materials was unrepresented when
the motion for default was filed; therefore, Article 1702( A)(3) did not apply.
The trial court determined that Johnson was required to and did comply with Article
1702( A)(4). A written judgment denying Onshore Materials' motion for new trial
was signed on June 5, 2024, after which Onshore Materials timely filed a motion for
suspensive appeal.
Johnson filed a motion to dismiss this appeal or, in the alternative, to convert
Onshore Materials' suspensive appeal into a devolutive appeal. Johnson asserts that
the third and final appeal bond posted by Onshore Materials did not cure deficiencies
in the first two bonds; therefore, the appeal should be dismissed or converted.
Onshore Materials timely filed a motion for suspensive appeal and requested
that the trial court set the amount of the bond. The trial court set the bond at
100, 000. 00, and Onshore Materials posted the bond as instructed on July 1, 2024.
2 Onshore Materials also filed an answer on March 14, 2024, after the default judgment was entered.
0 Johnson filed a motion to increase the bond, which the trial court granted, and the
bond amount was increased to the amount of the default judgment. See La. C. C. P.
art. 2124( B)( 1).
Onshore Materials posted a second appeal bond on July 23, 2024 by filing and
attaching a " Rider/Endorsement" to the original bond, increasing the amount of the
bond to the amount of the default judgment. In response, Johnson filed a motion to
dismiss the suspensive appeal or, in the alternative, to convert Onshore Materials'
appeal to a devolutive appeal. As he does here, Johnson argued to the trial court that
the purported supplemental, amending, and correcting appeal bond filed by Onshore
Materials on July 23, 2024 was irregular, defective, and invalid. See La. C. C. P. art.
5123. Following a contradictory hearing, the trial court denied Johnson' s motion to
dismiss or to convert and ordered Onshore Materials to correct and/ or cure any
deficiencies in the form of the suspensive appeal bond by or before October 25,
2024. Onshore Materials timely filed the third appeal bond on October 24, 2024.
In his motion to dismiss or to convert filed with this court, Johnson reurges
the arguments made before the trial court, while acknowledging the third appeal
bond posted by Onshore Materials is " a suspensive appeal bond" and that " it appears
that [ Onshore Materials] got it right."
An appellate court' s authority is limited to determining whether what purports
to be a bond is in fact a bond or whether the defects of the purported bond are so
glaring and so numerous that it constitutes no bond at all. See La. C. C. P. arts.
2124( E), 5121, and 5122; Fidelity National Bank ofBaton Baton Rouge v. Calhoun, 2008-
1685 ( La. App. 1 Cir. 3/ 27/ 09), 11 So. 3d 1119, 1123. An appellate court does not
have jurisdiction to review or consider objections to the form, substance, and
sufficiency of an appeal bond, if it otherwise complies substantially with the legal
requirements; such jurisdiction is retained by the trial court. La. C. C. P. art.
2088( A)( 5); Fidelity National Bank of Baton Rouge, 11 So. 3d at 1123.
E Additionally, in the case of a suspensive appeal, when the appeal bond is not timely
filed and the suspensive appeal is thereby not perfected, the trial court maintains
jurisdiction to convert the suspensive appeal to a devolutive appeal, except in an
eviction case. La. C. C. P. art. 2088( B).
Considering Johnson' s admission that the October 23, 2024 suspensive appeal
bond is, in fact, a bond, we have no jurisdiction to consider the arguments raised in
the motion to dismiss or to convert. See Fidelity National Bank ofBaton Rouge, 11
So. 3d at 1123. Johnson' s motion to dismiss or to convert is denied.
ISSUES ON APPEAL
We begin by considering Onshore Materials' argument that Johnson failed to
comply with La. C. C. P. art. 1702( A)(3), since the failure to comply with the notice
requirements of this provision is sufficient grounds to nullify the default judgment
pursuant to La. C. C. P. art. 2002( A)(2). 3 See Joffrion v. Spears -Heggelund, 2022-
0646 ( La. App. I Cir. 12/ 22/ 22), 358 So. 3d 100, 105- 06.
At the time the motion for default was filed and decided, La. C. C. P. art. 1702
pertinently stated:4
A. ( 1) If a defendant in the principal or incidental demand fails to answer or file other pleadings within the time prescribed by law or by the court, and the plaintiff establishes a prima facie case by competent and admissible evidence that is admitted on the record, a default judgment in favor of the plaintiff may be rendered, provided that notice that the plaintiff intends to obtain a default judgment is sent if required by this Paragraph, unless such notice is waived....
3)If an attorney for a party who fails to answer has contacted the plaintiff or the plaintiff s attorney in writing concerning the action after it has been filed, notice that the plaintiff intends to obtain a default judgment shall be sent by certified mail or actually delivered to the party' s attorney at least seven days before a default judgment may be
3 Onshore Materials raises several assignments of error; however, we address only two in light of our disposition of this matter.
4 Louisiana Code of Civil Procedure article 1702( A)(5) was amended by La. Acts 2025, No. 250, 3, effective Aug 1, 2025, to omit the reference to La. R.S. 13: 3205 and the affidavit requirement. We do not decide whether this amendment applies retroactively, since we find subparagraph (A)(3) is inapplicable under the facts of this case.
rol rendered.
4) In cases involving delictual actions where neither Subparagraph (2) or (3) of this Paragraph applies, notice that the plaintiff intends to obtain a default judgment shall be sent by regular mail to the party who fails to answer at the address where service was obtained at least seven days before a default judgment may be rendered. 5) No default judgment shall be rendered against a defendant when notice is required under Subparagraph ( 2) or ( 3) of this Paragraph unless proof of the required notice is made in the manner provided by La.] R.S. 13: 3205.
Louisiana Revised Statutes 13: 3205 provides that no default judgment may be
rendered against the defendant and no hearing may be held on a contradictory
motion, rule to show cause, or other summary proceeding, until thirty days after the
filing in the record of the affidavit of the individual who has mailed or delivered "the
process" to the defendant.
The evidence admitted into the record in connection with the motion for new
trial establishes that counsel for Johnson exchanged emails with Musgrave and
Boyer on November 16- 17, 2023, regarding Onshore Materials' answer. Musgrave
stated that he was " doing this today" ( November 17, 2023), referring to Onshore
Materials' answer, explaining that it "[ s] lipped through the cracks." However,
Johnson' s counsel, Joseph Waitz, 111, testified via affidavit that he had a telephone
conversation with Boyer and Musgrave on/ about November 21, 2023, during which
Musgrave " unequivocally" told Waitz that he could not file an answer on behalf of
Onshore Materials and was not sure if he would be assigned the defense as counsel
for Onshore Materials.'
On January 5, 2024, Waitz emailed Boyer regarding Onshore Materials'
answer, which still had not been filed. Waitz advised Boyer that he sent a " letter of
default" to Onshore Materials' registered agent for service, which was delivered on
5 Onshore Materials objected to the affidavit as hearsay in its reply memoranda in support of the motion for new trial and during the hearing on the motion. The trial court overruled the objection, and Onshore Materials has not assigned error to this ruling. Therefore, the issue is not before us for review.
7 December 14, 2023. Waitz advised Boyer, " To date no response." Waitz stated that
he wanted to reach out to Boyer as a courtesy and that obtaining a default judgment
was " not the route" he wanted to take but he could not hold out any longer. Waitz
asked, " Please let me know something when you can." According to Waitz' s
affidavit, he never received a response to the December 6, 2023 letter or the January
5, 2024 email and, therefore, filed the motion for default.6
Waitz' s affidavit is uncontroverted and establishes that Musgrave and Boyer
acknowledged on November 21, 2023 that they did not represent Onshore Materials.
According to the record, nothing had changed in this regard by the time the motion
for default was filed on February 1, 2024. Therefore, as of that date, there was no
evidence that Musgrave and Boyer represented Onshore Materials.' There is
likewise no evidence that any other attorney contacted Johnson' s counsel on behalf
of Onshore Materials prior to February 1, 2024. Consequently, Johnson was not
required to comply with La. C. C. P. art. 1702( A)(3). Instead, Article 1702( A)(4)
applied and required Johnson to mail notice of his intent to obtain a default judgment
to Onshore Materials at the address where service was obtained at least seven days
before a default judgment. This was done. Thus, we find no merit in Onshore
Materials' argument and further find no basis to nullify the default judgment
pursuant to La. C. C.P art. 2002( A)(2). See Joffrion, 358 So. 3d at 106. 8
6 Counsel for Onshore Materials asserts that he was engaged in settlement negotiations in December 2023 and January 2024 with Johnson' s counsel and that he attempted in good faith to settle Johnson' s claims on behalf of Onshore Materials and Onshore Construction. However, the evidence related to these settlement negotiations does not reference Onshore Materials, but only Onshore," and does not otherwise clearly show counsel was engaged in settlement negotiations on behalf of Onshore Materials.
7 Onshore Materials correctly notes that Johnson served Musgrave as its counsel on multiple occasions. However, these instances or events took place before the November 21, 2023 conversation between counsel, during which Musgrave advised Waitz he was unsure if he would be assigned as Onshore Materials' defense counsel.
8 In Affrion, 358 So. 3d at 102, plaintiff s counsel stated in plaintiff s motion for default that he was contacted by counsel for defendant and that notice pursuant to La. CCP art. 1702( A)(3) was mailed to defense counsel. This court reversed the default judgment after finding the record on appeal did not contain evidence that notice was sent to defense counsel pursuant to Article 1702( A)(3). Affrion, 358 So. 3d at 106. Therefore, Affrion is easily distinguishable. Proof of mailing of the notice of intent to obtain a default judgment is in the record on appeal. Failure to Comply with La. C: C.P. arts. 1917 and 181.2( 0)
Onshore Materials argues that the default judgment is invalid, because it fails
to declare that Onshore Materials was at fault, that such fault was the legal cause of
Johnson' s alleged damages, and the degree of Onshore Materials' fault expressed as
a percentage.
Louisiana Code of Civil Procedure article 1917( B) provides that, in nonjury
cases to recover damages for injury, death, or loss, whether or not requested to do so
by a party, the court shall make specific findings that shall include those matters to
which reference is made in La. C. C. P. 1812( C). These findings include whether the
plaintiff, a defendant (or a person for whom it is legally responsible), another party,
or a nonparty were at fault, whether such fault was a legal cause of the damages, and
the degree of fault attributable to each, expressed in percentage. See La. C. C. P. art.
1812( C).
We agree with Onshore Materials that the trial court failed to comply with La.
C. C.P. arts. 1917( B) and 1812( C). 9 However, there is no penalty provided in Article
1917 for failure to comply with the statute' s mandate. See King v. Allen Court
Apartments 11, 2015- 0858 ( La. App. 1 Cir. 12/ 23/ 15), 185 So. 3d 835, 838, writ
denied, 2016- 0148 ( La. 3/ 14/ 16), 189 So. 3d 1069. Although it is not the function of
the judicial branch to insert a penalty provision into a statute where the legislature
has not, Louisiana courts have held that the failure to allocate fault is a legal error
requiring the appellate court to determine the facts de novo and to render a decision
on the merits. See King, 185 So. 3d at 838; giver v. Willis Knighton Pierremont
Health Center, 2025- 00391 ( La. 6/ 25/ 25), 412 So. 3d 215, 216 (per curiam); Lacoste
9 Although Johnson did not specifically address this argument in his appellee brief, he asserts the default judgment was supported by sufficient primafacie evidence. Notably, though, he does not cite the evidence, which allegedly supports his claim, nor does he discuss the nature of his claim against Onshore Materials or the condition of the road.
I v. Davenport, 2023- 0279 ( La. App. 1 Cir. 4/ 17/ 25), 2025 WL 1147543, * 4
unpublished), writ denied, 2025- 00645 ( La. 9/ 24/ 25), 417 So. 3d 55.
Louisiana Civil Code article 2323 provides that "[ i] n any action for damages
where a person suffers injury, death, or loss, the degree or percentage of fault of all
persons causing or contributing to the injury, death, or loss shall be determined ...
regardless of the basis of liability." Article 2323 requires the fault of every tortfeasor
responsible for a plaintiff' s injuries to be compared, regardless of the legal theory of
liability asserted. See Driver, 412 So. 3d at 216. A negligent joint tortfeasor cannot
be liable for more than his degree of fault and cannot be solidarity liable with any
other person for damages attributable to the fault of such other person. La. C. C. arts.
2323, 2324; Gresham v. Production Management Inc., 2002- 1228 ( La. App. 4 Cir.
2/ 11/ 04), 868 So. 2d 171, 177, writ denied, 2004- 0650 ( La. 5/ 7/ 04), 872 So. 2d 1082
affirming the trial court' s default judgment allocating 90% fault to the defaulting
defendant). Accordingly, we review the default judgment de novo due to the legal 10 error made by the trial court in failing to allocate fault. See Lacoste, 2025 VVI,
1147543 at * 4; Boudreaux v. Farmer, 604 So. 2d 641, 652 ( La. App 1 Cir. 1992),
writs denied, 605 So. 2d 1373, 1374 ( La. 1992).
The default judgment procedure provides that, 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 containing facts sufficient
to establish a primafacie case, shall be admissible, self -authenticating, and sufficient
proof of such demand. La. C. C. P. art. 1702( B)( 2). A default judgment shall not be
different in kind from that demanded in the petition. La. C. C. P. art. 1703. A plaintiff
seeking to obtain a default judgment must establish the elements of a, prima facie
case with competent evidence, as fully as though each allegation in the petition had
to We further note the February 6, 2024 default judgment is a final judgment, which cannot be amended to change its substance. See La. C. C. P. arts. 1841 and 1951.
10 been denied. Gresham, 868 So. 2d at 175. The plaintiff must present competent
evidence that convinces the court that it is probable that he would prevail at a trial
on the merits. Gresham, 868 So. 2d at 175.
To succeed on a negligence cause of action against Onshore Materials arising
out of its allegedly substandard conduct, Johnson must satisfy every element of the
duty/risk analysis by establishing: ( 1) Onshore Materials had a duty to conform its
conduct to a specific standard; ( 2) Onshore Materials' conduct failed to conform to
the appropriate standard; ( 3) its substandard conduct was a cause -in -fact of
Johnson' s injuries; ( 4) Onshore Materials' substandard conduct was a legal cause of
Johnson' s injuries; and ( 5) proof of actual damages. A negative answer to any of
these prompts a no -liability determination. Johnson has the burden of proving
Onshore Materials' negligence by a preponderance of the evidence. See Lacoste
2025 WL 1147543 at * 5. See also La. C. C. art. 2315.
As to vicarious liability, the law is clear that an employer is liable for a tort
committed by his employee if the employee was acting within the course and scope
of his employment at the time of his commission of the tort. See La. C. C. art. 2320.
Thus, Johnson must also satisfy the elements of the duty/risk analysis to establish
the tortious conduct of Onshore Materials' employees before Onshore Materials may
be held vicariously liable for their negligence.
Onshore Materials' Direct Liability
In his first, second, and third supplemental and amending petitions, Johnson
alleged that Onshore Materials was in charge of construction operations at Shell
Pipeline' s facility and was responsible for the erection, maintenance, upkeep, and
grading of the lanes for safe ingress and egress by vehicles like his and " failed to
properly do so, thereby contributing to the events which resulted in the accident in
question." Notably, none of Johnson' s petitions identify a condition or defect in the
roadway that purportedly caused his truck to tilt, nor does he allege facts to establish
11 how Onshore Materials failed to properly erect, maintain, keep up, or grade the lanes
and how the lanes ( access road) did not provide a safe means of ingress and egress.
In his motion for default and memorandum in support, Johnson alleged that
Onshore Materials had a duty to ensure the road was properly constructed and
capable of withstanding the weight of the machinery and equipment that would
utilize it. He maintained that, Onshore Materials breached this duty by failing to
ensure the road was safe, properly constructed, and capable of withstanding the
extreme weight" of the fully loaded 18 -wheeler and dump trailer. Johnson asserted
that the " failure of the roadway was the proximate cause of [the] accident at issue."
Johnson offered the testimony of Onshore Materials' superintendent for this
project, Nikolaus Lundy, who confirmed the road was not tested to ensure it was
safe to drive on. Lundy explained that roads were only tested sometimes, depending
on the language of the contract governing the work. Lundy testified that the contract
between Shell Pipeline and Onshore Materials did not require testing. When asked
whether Onshore Materials had engineers inspect its roads, Lundy testified, "[ flt
depends He could not recall an instance where an engineer inspected an access
road built as part of a clearing job, unless the road was going to become a public
transportation road. This road was not; it was temporary and was eventually
removed.
Johnson also offered the affidavit and expert reports of David Eastwood,
licensed geotechnical engineer. In two reports, issued in September 2023 and
January 2024, Eastwood concluded the access road was not designed and
12 constructed in a workmanlike manner. 11 However, he did not unequivocally identify
a condition of the access road —unreasonably dangerous, 12 defective, or otherwise —
that, in his opinion, caused this incident or rendered the road unsafe for
ingress/ egress.
For instance, Eastwood noted the road was not tested or inspected but
acknowledged that Louisiana does not have standard specifications governing the
construction of a haul road and cited Georgia standards, which suggest inspections
should be performed. He further stated the area where the access road was
constructed was composed of "very soft organic clay" and opined the " fill placed
was not compacted appropriately" but offered no opinion to explain how this
purported failure caused or contributed to this incident. He specifically noted, " it is
not clear if the bearing capacity failure was the cause of this accident." Eastwood
also noted the access road had a sloped edge, but "[ t]he depth and angle of this slope
are not known." 13 Tellingly, in both reports, Eastwood acknowledged that his
investigation was based on a review of documents and occurred more than six years
after the incident; therefore, the on- site soil conditions identified in the report " could
be different from those at the time of the incident[.]"
11 Every building contract implicitly obligates the contractor to perform the work in a good, workmanlike manner, free from defects in either materials or workmanship, with the work suitable for its intended purpose. See La. C. C. arts. 1994 and 2769; Caronna v. Outdoor Living, LLC, 2023- 1048 ( La. App. 1 Cir. 12/ 30/ 24), 403 So. 3d 1164, 1179. Johnson was not a party to the contract between Shell Pipeline and Onshore Materials, which governed the construction of the access road. Additionally, proof of failure to perform a contract in a workmanlike manner requires some showing of a want of skill, efficiency, knowledge, or lack of ordinary care in the performance of the work or in the selection of suitable equipment or materials. AR Brooks Paint Contracting, LLC v. Eunson, 55, 760 ( La. App. 2 Cir. 8/ 21/ 24), 399 So. 3d 670, 675. Whether the access road was constructed in a " workmanlike manner" does not determine whether Johnson satisfied his burden ofproof under the duty/risk analysis applicable to his negligence action against Onshore Materials. 12 For purposes of a cause of action under La. C. C. art. 2317. 1, Johnson' s petitions alleged that t] he facility remained in the custody and control of Shell Pipeline... during the entire construction process."
13 Johnson was asked whether the road was raised up from the ground around it. He responded, n] ot that much." Cody Beal, the spotter, was asked whether there was a drop off from the access road; he stated there was " a little slope."
13 Depositions offered by Johnson include testimony from several witnesses on
the job site who stated the road was not " too soft" and was " solid" and " in normal
condition" when Johnson traversed it. Additionally, Johnson answered " yes" when
asked whether the road was wide enough to maneuver his vehicle.
After a de novo review of the evidence submitted by Johnson, we find he
failed to establish a prima facie case of negligence against Onshore Materials.
Johnson offered no evidence to establish that Onshore Materials owed and breached
a duty to Johnson or that any condition of the access road caused or contributed to
this incident.
Onshore Materials' Vicarious Liability
Johnson also maintained that one or more employees negligently failed to
execute his job duties" and carelessly allowed the truck to become overloaded.
Two employees were identified in the evidence submitted by Johnson —the spotter
and the excavator operator. Cody Beal, the spotter, testified that he was employed
by Onshore Construction, not Onshore Materials.' However, the excavator
operator, Emile Folse, was employed by Onshore Materials. On the date of the
incident, Folse was responsible for filling the trailers with tree debris. Folse testified
that he knew how much to load —not too much so that trees were above the trailer
but not too little so that the ground of the truck was showing —based on many years
of experience. Referring to Folse, Johnson testified during his deposition, " I' m sure
he know[ s] how much to put on the truck."
In his motion for default and memorandum in support, Johnson reurged the
allegation that the trailer was not weighed after it was loaded. However, he offered
no evidence to show that the weight of the trailer caused it to tip over or that any
14 Johnson testified that, after his trailer was loaded and he began to pull away, Beal walked on the side of his truck, " a little distance"away, and flagged him out toward the gate. Beal did not indicate for Johnson to turn in any direction and, instead, signaled him to go straight. Johnson did not testify or offer other evidence to establish that the directions given to him by the spotter caused his truck and trailer to leave the access road.
14 action or inaction by Folse caused or contributed to the incident. There is no
evidence to establish the weight of the truck or that the weight of the truck exceeded
the load capacity of the access road. Johnson testified that he does not know the
weight of the material loaded in his truck when the incident occurred or the weight
capacity of the trailer.
In June 2020, during his first deposition, Johnson testified that the incident
happened so fast that he did not remember what took place. However, he speculated
at that time that the " road had to be giving for the truck to go over." When he was
deposed again in October 2023, Johnson opined that the trailer was too heavy or the
road " wasn' t equipped for the load[.]" This evidence is insufficient to establish a
prima_facie case of vicarious liability against Onshore Materials for an alleged tort
committed by Folse. See La. C. C. P. art. 1702( A)( 1); La. C. C. art. 2320.
After our de novo review of the evidence admitted by Johnson in support of
the motion for default judgment, we find Johnson is not entitled to a default judgment
of liability against Onshore Materials. Contrary to the trial court' s conclusion, there
is no evidence that any action or inaction by Onshore Materials or its employees
served as a proximate cause of the damages alleged and urged by Johnson.
MOTION TO ATTACH APPENDICES
Onshore Materials filed a motion with this court, requesting to attach
appendices to its original brief, including documents not listed in Uniform Rules of
Courts of Appeal, Rule 2- 12. 4( B)( 1). The motion is denied as moot as to those
documents that Onshore Materials seeks to attach that are already in the record."
The motion is denied in part as to the remaining document, specifically Onshore
Materials' motion to annul judgment as absolute nullity, which was filed with the
15 This includes the February 6, 2024 default judgment; the transcript from the February 6, 2024 hearing on the motion for default; the notice of judgment for the February 6, 2024 default judgment; the trial court' s reasons for ruling on the motion for new trial; and the October 24, 2024 suspensive appeal bond posted by Onshore Materials.
15 trial court after the order of appeal was signed. Events occurring after rendition of
the appealed judgment are not before the court, and the motion to annul judgment is
not relevant to the issues raised in this appeal. See In re Succession of LeBouef,
2013- 0209 ( La. App. I Cir. 9/ 9/ 14), 153 So. 3d 527, 530.
EXCEPTION OF PRESCRIPTION
Onshore Materials urged a peremptory exception of prescription for the first
time with this court. See La. C. C. P. arts. 927 and 2163. The exception was raised
out of an abundance of caution" and for consideration if "and only if the default
judgment is upheld. Because we reverse the February 6, 2024 default judgment, we
do not consider the merits of the exception and, instead, dismiss the exception,
without prejudice.
CONCLUSION
For the foregoing reasons, we reverse the February 6, 2024 default judgment
in favor of Ronald Johnson and against Onshore Materials, L.L.C.
The motion to dismiss filed by Ronald Johnson is denied. The motion to
attach appendices filed by Onshore Materials, L.L.C. is denied in part and denied as
moot. The exception ofprescription filed by Onshore Materials, L.L.C. is dismissed,
The matter is remanded to the trial court for further proceedings consistent
with this opinion. All costs of this appeal are cast against appellee, Ronald Johnson.
MOTION TO DISMISS APPEAL DENIED; MOTION TO ATTACH APPENDICES DENIED IN PART AND DENIED AS MOOT; EXCEPTION OF PRESCRIPTION DISMISSED WITHOUT PREJUDICE; DEFAULT JUDGMENT REVERSED; REMANDED.
16 STATE OF LOUISIANA
FIRST CIRCUIT 01
RONALD JOHNSON
ONSHORE CONSTRUCTION COMPANY, L.L.C., AND ABC INSURANCE COMPANY
Balfour, J., concurring.
I concur in the result reached by the majority; however, I would vacate the
trial court' s February 6, 2024 default judgment because I believe it is an absolute
nullity.
Louisiana Code of Civil Procedure article 1702( A)(3) provides:
If an attorney for a party who fails to answer has contacted the plaintiff or the plaintiffs attorney in writing concerning the action after it has been filed, notice that the plaintiff intends to obtain a default judgment shall be sent by certified mail or actually delivered to the party' s attorney at least seven days before a default judgment may be rendered.
As explained in Official Revision Comments - 2021, Comment (a) to La. C. C. P. art.
1702, "[ t]he term ' in writing' includes electronic means as well as any other type of
writing. If such notice is not given, any default judgment rendered shall be a
nullity[.]" Strict compliance with the procedural requirements of La. C. C. P. art.
1702( A) is required in order to obtain a valid default judgment. See Snyder v.
Insurance Company of the State of Pennsylvania, 2022- 0159 ( La. App. I Cir.
11/ 30/ 22), 357 So. 3d 374, 378.
As noted by the majority, on November 17, 2023, R. Todd Musgrave, an
attorney, sent an email to counsel for Johnson stating he would be filing an answer
on behalf of Onshore Materials, LLC. Therefore, pursuant to the plain language of La. C. C. P. art. 1702( A)(3), Johnson was required to provide proof that he sent notice
of his intent to obtain default judgment to Musgrave by certified mail or actual
delivery at least seven days before default judgment could be rendered.' As Johnson
failed to demonstrate such proof, the February 6, 2024 judgment is an absolute
nullity. See La. C. C.P. art. 2002( A)(2); Southeast Dirt, L.L. C. v. D.R. Horton, Inc.
Gulf Coast, 2024- 0724 ( La. App. 1 Cir. 12/ 27/ 24), 404 So. 3d 90, 99.
1 I find the self-serving and unsupported affidavit from Johnson' s counsel, Joseph Waitz, III, submitted in opposition to Onshore Materials, LLC' s motion for new trial, to be immaterial. Once Johnson' s counsel was provided written correspondence from Musgrave regarding his representation of Onshore Materials, LLC in the underlying suit, he was required to prove compliance with La. C. C. P. art. 1702( A)(3) to obtain default judgment against Onshore Materials, LLC.