Tri County Tree Service, LLC Versus Kevin Matherne

• Court: Louisiana Court of Appeal
• Decided: January 29, 2025
• Docket: 24-CA-257
• Status: Unknown

Opinion

TRI COUNTY TREE SERVICE, LLC NO. 24-CA-257

VERSUS FIFTH CIRCUIT

KEVIN MATHERNE COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT PARISH OF ST. CHARLES, STATE OF LOUISIANA NO. 92,310, DIVISION "E" HONORABLE LAUREN D. ROGERS, JUDGE PRESIDING

January 29, 2025

MARC E. JOHNSON JUDGE

Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Stephen J. Windhorst

REVERSED AND REMANDED MEJ FHW SJW COUNSEL FOR DEFENDANT/APPELLANT, KEVIN MATHERNE Joseph B. Rochelle

COUNSEL FOR PLAINTIFF/APPELLEE, TRI COUNTY TREE SERVICE, LLC K. Todd Wallace Stacey A. LaGraize Mary A. Engeron JOHNSON, J.

Appellant, Kevin Matherne, seeks review of the 29th Judicial District Court’s

February 27, 2024 and April 1, 2024 default judgments against him for $12,010,

together with legal interest, attorney’s fees and all costs in favor of Appellee, Tri

County Tree Service, LLC. For the following reasons, we vacate the district

court’s amended judgment, reverse the original judgment, and remand the matter

for further proceedings.

FACTS AND PROCEDURAL HISTORY

On June 6, 2023, Tri County Tree Service, LLC (“Tri County”), Appellee

filed a petition demanding payment of $12,010.00 from Mr. Matherne, and

pleading theories of open account, breach of contract, fraud, theft, and unjust

enrichment. The petition alleges that on or about September 10, 2021, appellant,

Kevin Matherne, entered into a contract with Tri County to perform extensive

emergency tree service work in the aftermath of Hurricane Ida. It asserts that Tri

County fully performed the work under the contract and submitted an invoice in

the amount of $12,010 to Mr. Matherne, but he has failed to make any payment.

The petition further provides that, upon information and belief, Mr. Matherne

received $7,610 from his insurer, but he did not remit this money to Tri County.1

Attached to the petition was an invoice dated September 10, 2021, for work

performed at 623 6th Street in Norco, LA, and a demand letter addressed to Mr.

Matherne, dated July 5, 2022. The demand letter stated,

[a]s a condition of the work performed by Tri County, you also agreed to the following:

1 On appeal, Mr. Matherne contends that in September of 2021, after Hurricane Ida, he received a call from a representative of Tri County who requested permission to enter Mr. Matherne’s backyard to cut up and dispose of a fallen tree that was originally on his neighbor’s side of the fence line. Mr. Matherne states that he had not returned from the mandatory evacuation when he received the call from Tri County and believed that it was his neighbor’s responsibility to have the tree removed. Mr. Matherne asserts he gave Tri County permission to access his property. He assumed that his neighbor, the tree’s owner, would pay the removal and disposal fees. According to Mr. Matherne, he did not discuss the cost of Tri County’s services, or who would be responsible for payment.

24-CA-257 1 Customer agrees to pay Tri County LLC upon receipt of settlement proceeds. Above client gives Tri County authorization to speak to insurance company on their behalf in order to facilitate the settlement of the insurance company in states where assignment of benefits are allowed.

Tri County sent Mr. Matherne another letter dated October 13, 2023

advising him that it intended to obtain a default judgment against him. It then filed

its first Motion for Default Judgment and Incorporated Memorandum in Support

and Affidavit of Correctness of Account and Compliance with La. C.C.P. art 1702

in the 29th Judicial District Court on November 2, 2023. Attached as exhibits to

the motion, proposed judgment, and affidavit were the September 2021 invoice and

an October 13, 2023 letter informing Mr. Matherne of Tri County’s intent to obtain

a default judgment against him.

The district court denied the motion on November 6, 2023, and wrote across

the proposed judgment, “Failure to comply with Servicemembers Civil Relief

Act.”

Tri County filed a second motion for default judgment via fax filing on

February 22, 2024. This time, Tri County also included as an exhibit a Non-

Military Affidavit confirming that Mr. Matherne was not a member of the United

States Armed Services. On February 27, 2024, the district court entered a final

default judgment in its favor. The caption listed Mr. Matherne as the defendant, but

the body of the judgment read:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein against defendants, Raul and Amanda Carbajal, in the full and proper sum of TWELVE THOUSAND TEN ($12,010) DOLLARS, with legal interest thereon from the date of judicial demand until finally paid, together with attorney’s fees and all costs associated with these proceedings, subject to a credit of $0.00.

(Emphasis added).

24-CA-257 2 On March 8, 2024, Mr. Matherne answered the petition, entered a general

denial, and asked that Tri County’s claims against him be dismissed with prejudice

at its costs.

On March 21, 2024, Tri County fax-filed a Motion to Amend Default

Judgment, along with a proposed order and proposed default judgment, requesting

that the “typographical error” contained in the earlier default judgment be

corrected to cast judgment against “Kevin Matherne” (instead of “Raul and

Amanda Carbajal”).

Although Mr. Matherne had filed an answer in proper person on March 8,

2024, before Tri County filed its Motion to Amend Default Judgment, the

proposed judgment (unlike the February 27, 2024 judgment) was stamped and

signed on March 27, 2024 “THIS IS TO CERTIFY THAT NO ANSWER OR

REPSONSE HAS BEEN FILED BY THE DEFENDANT(S)”. The district court

entered an order granting Tri County’s Motion to Amend Default Judgment on

March 27, 2024, without first holding a contradictory hearing. On April 1, 2024,

the court granted an amended default judgment in favor of Tri County and against

Mr. Matherne, for $12,010, plus interest, attorney fees, and costs.

This timely appeal of both judgments followed.

ASSIGNMENTS OF ERROR

1. The trial court erred in granting default judgments in Tri County’s favor because competent, admissible evidence demonstrating a prima facie case was not submitted in connection with either [of] the trial court’s judgments.

2. The trial court erred in granting a default judgment in favor of Tri County because Tri County only submitted an affidavit executed by its attorney instead of somebody with personal knowledge of any facts.

3. The trial court erred in awarding Tri County any money, including for attorney’s fees, because Tri County did not prove that money was due, did not prove either a contractual basis for attorney’s fees or an open account, and further, failed to submit the demand certification required by Louisiana Code of Civil Procedure Article 1702.1.

24-CA-257 3 4. The trial court erred in entering an order granting Tri County’s motion to amend its first default judgment and in granting a second default judgment because this judgment changed the name of the party cast in judgment without a hearing or notice to the appellant after he already answered.

On appeal, Mr. Matherne argues that Tri County failed to provide proper

evidence of a contract, the existence of an open account, or his indebtedness. He

notes that Tri County’s pleadings only state that the customer agreed to pay the

invoice upon receipt of settlement proceeds, and Tri County submitted no proof of

receipt of such proceeds. Without the existence of a past due balance, there cannot

be an open account, he avers.

Further, Mr. Matherne alleges the trial court erred by awarding attorney fees

to Tri County, because Tri County has failed to certify the number of days required

by La. R.S. 9:2781(A) or 9:2782(A) had elapsed since demand was made on Mr.

Matherne. Last, he maintains that the trial court erred when it amended the default

judgment and changed the party cast in judgment without first conducting timely

contradictory proceedings.

Tri County counters that it presented documentation sufficient to prove a

prima facie case as required by La. C.C.P. art. 1702. Further, it argues that neither

its failure to attach the invoice to the affidavit of correctness, as opposed to its

petition and motion for default judgment, nor its failure to include a certificate of

demand, are fatal to confirmation of a default judgment. Further, it avers that the

affidavit of correctness establishes both the existence and validity of the demand

for a sum due on the open account. Last, Tri County argues that its motion to

amend the default judgment effectuated a correction of a typographical error, and

not a substantive change.

LAW AND DISCUSSION

Generally, an appellate court’s review of a default judgment is governed by

the manifest error standard of review. ASI Fed. Credit Union v. Leotran Armored

24-CA-257 4 Sec., LLC, 18-341 (La. App. 5 Cir. 11/7/18), 259 So.3d 1141, 1147-48, citing Arias

v. Stolthaven New Orleans, LLC, 08-1111 (La. 5/5/09), 9 So.3d 815, 818.

However, when the court of appeal “finds that a reversible legal error or manifest

error of material fact was made in the trial court, it is required to redetermine the

facts de novo from the entire record and render a judgment on the merits.” Id.

Although a presumption exists that the record supports a default judgment, the

presumption does not exist when the record upon which the judgment is rendered

indicates otherwise. Id.

The April 1, 2024 Amended Default Judgment

Upon review of the record, we find that the district court committed

reversible error when it granted Tri County’s Motion to Amend Default Judgment.

La. C.C.P. art. 1951 limits the amendment of judgments to the correction of errors

in calculation and alteration of phraseology, but does not authorize a trial court to

make substantive amendments to final judgments. Bourgeois v. Kost, 02-2785 (La.

5/20/03), 846 So.2d 692, 696. The substance of a judgment can be altered only by

a timely motion for new trial, nullity action, or appeal. Mercato Elisio, L.L.C. v.

City of New Orleans, 22-228 (La. App. 4 Cir. 12/21/22), 356 So.3d 505, 510.

“[C]hanging the name of a party cast in judgment is a substantive change

prohibited by Code of Civil Procedure article 1951.” Safeguard Storage

Properties, L.L.C., 10-673 (La. App. 4 Cir. 3/31/11), 60 So.3d 110, 117, reh’g

denied, 10-855 (La. App. 4 Cir. 5/9/11). Recently, the fourth circuit pointed out

that “most jurisprudence holds that changing the name of the party cast in

judgment is an alteration of substance.” Washington v. Taylor, 21-80 (La. App. 4

Cir. 1/26/22), 334 So.3d 1060, 1070. “La. C.C.P. art. 1951 does not permit the trial

court to substantively alter a final judgment even if the amendment merely

expresses the trial judge’s actual intention. The trial court’s written judgment is

24-CA-257 5 controlling, even if the trial judge may have intended otherwise.” Mercato Elisio,

L.L.C., supra.

“Courts have also uniformly held substantive amendments to judgments

made without recourse to the proper procedures, i.e., by way of a timely motion for

a new trial or by appeal, to be absolute nullities.” Bourgeois, 846 So.2d at 696.

When the appellate court finds an improper substantive amendment has been made

to a final judgment, the usual remedy is to set aside and annul the amending

judgment and to reinstate the original judgment. Mercato Elisio, L.L.C., 356 So.3d

at 511.

Because the first default judgment, dated February 27, 2024, indicated it was

against “Raul and Amanda Carbajal,” the April 1, 2024 amended default judgment

casting Kevin Matherne in judgment contains an impermissible, substantive

change, in violation of La. C.C.P. art. 1951. Based on the foregoing, we find the

April 1, 2024 amended default judgment is null and void, and we hereby set it

aside.

The February 27, 2024 Original Default Judgment

Generally, when an amended judgment is annulled, the original judgment is

reinstated. However, in this case, Mr. Matherne challenges the validity of the

February 27, 2024 original default judgment as well. He argues that Tri County

did not submit competent, admissible evidence demonstrating a prima facie case

that it is entitled to judgment in its favor. We agree.

To obtain a default judgment, a plaintiff must establish the elements of a prima facie case with competent evidence as fully as though each of the allegations in the petition were denied by the defendant. Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254 (La. 1993). “A plaintiff seeking to confirm a default must prove both the existence and the validity of his claim.” Id. at 1258. “[I]n order to establish both the existence and the validity of a demand for a sum due on an open account, it is necessary for a plaintiff to present evidence of the account itself and an affidavit, or testimony, attesting to its correctness.” Id. The existence of the claim is supported by a statement of the account or invoices while the validity is supported by

24-CA-257 6 the affidavit of correctness. Id.

Discover Bank v. Hennigan, 24-202 (La. App. 3 Cir. 11/20/24), -- So.3d --,

2024 WL 4830866, at *2.

In the present case, the record shows that Tri County did not provide

sufficient prima facie proof of the existence of the open account or its demand in

order to obtain an otherwise valid default judgment against a defendant under La.

C.C.P. art. 1702.

La. C.C.P. art. 1702 provides, in pertinent part:

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. The court may permit documentary evidence to be filed in the record in any electronically stored format authorized by the local rules of the district court or approved by the clerk of the district court for receipt of evidence.

[. . .]

B. (1) When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto that contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering a default judgment.

(3) When the sum due is on an open account or a promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required.

C. In those proceedings in which the sum due is on an open account [. . .], a hearing in open court shall not be required unless the judge, in his discretion, directs that such a hearing be held. The plaintiff shall submit to the court the proof required by law and the original and not less than one copy of the proposed default judgment. The judge shall, within seventy-two hours of receipt of such submission from the clerk of court, sign the proposed default judgment or direct that a hearing be held. The clerk of court shall

24-CA-257 7 certify that no answer or other pleading has been filed by the defendant. The minute clerk shall make an entry showing the dates of receipt of proof, review of the record, and rendition of the default judgment. A certified copy of the signed default judgment shall be sent to the plaintiff by the clerk of court, and notice of the signing of the default judgment shall be given as provided in Article 1913.

An affidavit attesting to the correctness of the evidence should be provided by

someone personally familiar with the account. Chassis Inc. v. FDJ Trucking LLC,

55,404 (La. App. 2 Cir. 1/10/24), 378 So.3d 930, 935. An affidavit of correctness

eliminates the necessity of taking testimony in order to establish the validity of the

account. Capital One Bank (USA) NA v. Young, 15-70 (La. App. 5 Cir. 9/23/15),

176 So.3d 695, 697.

In CAG, LLC v. Watson, 20-0325 (La. App. 4 Cir. 1/6/21), 312 So.3d 1109,

1116-17, the fourth circuit found that the plaintiff failed to produce relevant and

competent evidence that established a prima facie case to support its “petition on

an open account” against the defendants, because the plaintiff was unable to prove

the existence of a contractual relationship with the defendants. Further, the court

found that the petition contained no allegation that the plaintiff entered into a

contractual relationship with the defendants. Id. at 1117.

Here, there is a similar issue. Tri County claims to have entered into a

contractual relationship with Mr. Matherne, but has offered no evidence to support

its claim that a contractual relationship existed between the two parties. Attached

to its motion for default judgment were the following exhibits:

• An Affidavit of Correctness of Account, Non-Military Service and Compliance with La. C.C.P. art. 1702, signed by Tri County’s counsel. • A Non-Military Affidavit where counsel attested that she confirmed that Mr. Matherne was not a member of the U.S. Armed Services. • A letter sent on the letterhead from the law firm representing Tri County addressed to Mr. Matherne. The letter stated it was sent “Via Certified Mail / Return Receipt Requested” and advised Mr. Matherne that Tri County intended to obtain a default judgment against him.

24-CA-257 8 Attached to the petition were two exhibits: a letter sent on the letterhead

from the law firm representing Tri County addressed to Mr. Matherne. The letter,

captioned “FORMAL DEMAND OF DEFAULT AND FOR PAYMENT,” stated

it was sent “Via Certified U.S. Mail / Return Receipt Requested”; and an invoice

on Tri County letterhead, which listed under “Bill To:” Mr. Matherne’s name,

address, and phone number. The invoice was dated September 10, 2021, and that

same date was listed as the date the invoice was due. The invoice was itemized

and there were line items covering labor, materials and equipment. The invoice

totaled $12,010.00.

Mr. Matherne generally denied the allegations contained in the petition, after

the February 27, 2024 default judgment was rendered, and, on appeal, he denies

having entered into a contract with Tri County. In the affidavit of correctness

attached to the motion for default judgment filed on February 21, 2024 and granted

by the 29th Judicial District Court six days later, Tri County’s counsel attests to the

fact that Mr. Matherne was invoiced for $12,010.00 for services, that she verified

that Mr. Matherne was not a member of the United States Military, and he had not

answered the petition as of that date. She did not attest to the existence of a

contract between Tri County and Mr. Matherne. From the record, it is clear that

counsel was involved in attempts over the past few years to get Mr. Matherne to

pay the subject invoice, but the invoice alone is not competent proof that an open

account exists. The invoice itself is not proof of a contractual relationship between

Mr. Matherne and Tri County. Further, the record does not indicate that counsel

had personal knowledge of any agreement made with Mr. Matherne, or the work

Tri County performed on his property. Because Tri County did not submit proof of

a contract between the parties, or an affidavit from a person with personal

knowledge of the contractual relationship that gave rise to the alleged debt, Tri

24-CA-257 9 County could not obtain a final default judgment against Mr. Matherne on an

“open account” without a prior hearing. See CAG, LLC, 312 So.3d at 1116-17.

To sum, the amended judgment is an absolute nullity because changing the

name of the defendant constitutes an impermissible substantive change under La.

C.C.P. art. 1951. Also, Tri County did not offer sufficient evidence to prove its

prima facie case to collect on an open account. Therefore, a hearing was required

before the district court could render a valid final default judgment against Mr.

Matherne.

DECREE

Considering the foregoing, the amended judgment of April 1, 2024 is set

aside as an absolute nullity, and the February 27, 2024 judgment of the district

court that granted a final default judgment in favor of Tri County is vacated. The

matter is remanded for further proceedings.

REVERSED AND REMANDED

24-CA-257 10 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY JANUARY 29, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-CA-257 E-NOTIFIED 29TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE LAUREN D. ROGERS (DISTRICT JUDGE) JOSEPH B. ROCHELLE (APPELLANT) MARY A. ENGERON (APPELLEE)

MAILED K. TODD WALLACE (APPELLEE) STACEY A. LAGRAIZE (APPELLEE) ATTORNEYS AT LAW 5190 CANAL BOULEVARD SUITE 102 NEW ORLEANS, LA 70124