The Belltech Group, Inc. v. Capital One (Usa), N.A.

• Court: Louisiana Court of Appeal
• Decided: October 31, 2012
• Docket: CA-0012-0949
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 12-949

THE BELLTECH GROUP, INC., ET AL.

VERSUS

CAPITAL ONE (USA), N.A., ET AL.

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20122242 HONORABLE KRISTIAN DENNIS EARLES, DISTRICT JUDGE

ELIZABETH A. PICKETT

JUDGE

Court composed of Oswald A. Decuir, Elizabeth A. Pickett, and Phyllis M. Keaty, Judges.

REVERSED AND REMANDED.

Christine Lipsey McGlinchey, Stafford, PLLC One American Place, 14th Fl Baton Rouge, LA 70825 (225) 383-9000 COUNSEL FOR DEFENDANT/APPELLANT: Capital One (USA), N.A. Chaz H. Roberts Attorney at Law 112 Oil Center Dr., Suite M Lafayette, LA 70503 (337) 504-3202 COUNSEL FOR PLAINTIFF/APPELLEE: The Belltech Group, Inc., Developers, Construction Managers,Constructors PICKETT, Judge.

The instant appeal by Appellant, Capital One Bank (USA), N.A., arises from a

default judgment issued in favor of Appellee, The Belltech Group, Inc., Developers,

Construction Managers, Constructors.

In the underlying matter, Appellee filed suit against Appellant, a bank

headquartered in the State of Virginia, on April 18, 2012, via the Louisiana Long-Arm

Statute. Nearly one month later, on June 14, 2012, Appellee filed a Motion for

Preliminary Default against Appellant. The trial court entered the preliminary default

on June 15, 2012. Thereafter, on June 20, 2012, Appellee filed a motion to confirm

the preliminary default. Attached to this motion was an affidavit of long-arm service,

which was executed on June 18, 2012. On June 22, 2012, the trial court confirmed the

default judgment against Appellant and awarded Appellee $14,860.57 in damages, as

well as judicial interest and costs.

Appellant timely appealed the June 22, 2012, judgment and submitted a brief in

which Appellant argued that procedural defects rendered the default judgment

absolutely null. Shortly thereafter, Appellant and Appellee (“Movants”) filed a joint

motion requesting that the relief requested by Appellant in its appeal be granted and

that the June 22, 2012, default judgment be reversed. We now address the merits of

this joint motion.

Movants jointly contend that the trial court erred by entering and confirming

the default judgment against Appellant, where Appellee failed to comply with the

provisions of La.R.S. 13:3205. Louisiana Revised Statute 13:3205 prohibits the

rendering of a default judgment until an affidavit is filed showing compliance with the

service requirements set forth in La.R.S. 13:3204. In pertinent part, La.R.S. 13:3205

provides that “[n]o default judgment can be rendered against the defendant . . . until

thirty days after the filing in the record of the affidavit of the individual who . . .

[m]ailed the process to the defendant.” Here, the trial court entered the preliminary default against Appellant on June

15, 2012. Appellee, however, did not file the affidavit evidencing its compliance with

the requirements for long-arm service until June 20, 2012. Further, we note that the

preliminary default was confirmed on June 22, 2012, only two days after the affidavit

of long-arm service was filed into the record. Because Appellee failed to meet the

procedural requirements for preliminary default, we find that the June 22, 2012,

default judgment was granted in error.

Louisiana Code of Civil Procedure article 2002 provides that “[a] final

judgment shall be annulled if it is rendered . . . [a]gainst a defendant . . . against whom

a valid judgment by default has not been taken.” In accordance with La.Code Civ.P.

art. 2002, Louisiana courts have repeatedly held that “[a] preliminary default

judgment obtained without strict compliance with the procedural requirements of

Section 3205 is an absolute nullity.” Collier v. Fugler, 29,457 (La.App. 2d Cir.

5/7/97), 694 So.2d 553, 555, citing Davis v. Tele-Total, Inc., 465 So.2d 948 (La.App.

2d Cir. 1985), Glessner v. Hyatt, 380 So.2d 222 (La.App. 3d Cir.1980), and Bickford

v. Lutz, 339 So.2d 1268 (La.App. 1st Cir.1976). The courts have also held that “[a]

confirmation of default judgment obtained on the basis of an invalid preliminary

default is also a nullity.” Id. at 555, citing Davis v. Tele-Total, Inc., supra, and

Glessner v. Hyatt, supra.

Because the trial court entered the preliminary default judgment against

Appellant despite Appellee’s failure to submit an affidavit confirming its compliance

with the long-arm service requirements, we find that, pursuant to La.Code Civ.P. art.

2002 and the above-cited jurisprudence, the June 22, 2012, default judgment is

absolutely null. Thus, based on the foregoing, we hereby reverse the trial court’s

ruling, confirming Appellee’s default judgment against Appellant, and remand this

matter to the district court for further proceedings.

2 REVERSED AND REMANDED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rules 2-16.2 and 2-16.3, Uniform Rules, Courts of Appeal.