Opinion
23-CA-536
05-22-2024
RG FAMILY, LLC AND SILVER FOX CASINO, LLC v. PEDRO BELTRAN RODRIGUEZ AND BELTRAN CONCRETE, INC.
COUNSEL FOR PLAINTIFF/APPELLEE, RG FAMILY, LLC AND SILVER FOX CASINO, LLC Peter J. Segrist Kyle J. E. Koch. COUNSEL FOR DEFENDANT/APPELLANT, PEDRO RODRIGUEZ AND BELTRAN CONCRETE, LLC David M. McDonald Molly M. Jones.
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 833-613, DIVISION "L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, RG FAMILY, LLC AND SILVER FOX CASINO, LLC Peter J. Segrist Kyle J. E. Koch.
COUNSEL FOR DEFENDANT/APPELLANT, PEDRO RODRIGUEZ AND BELTRAN CONCRETE, LLC David M. McDonald Molly M. Jones.
Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and Scott U.Schlegel.
SCOTT U.SCHLEGEL JUDGE.
At issue in this appeal is whether the trial court properly granted a default judgment in favor of plaintiffs. For the following reasons, we vacate the judgment and remand this matter for further proceedings.
Facts and Procedural History
Defendants/Appellants, Pedro Beltran Rodriguez and Beltran Concrete, Inc. ("Beltran"), were retained to perform concrete demolition, construction and other services at properties owned by plaintiffs/appellees, RG Family, LLC and Silver Fox Casino, LLC. Beltran began work on or about June 7, 2022.
Plaintiffs filed a petition on October 4, 2022, which alleges in pertinent part:
¶ 11 - While performing the Work, Defendants negligently caused extensive damage to, without limitation, the Property's sumps, electrical and other lines, fuel tanks, and other equipment (collectively, the "Damage").
¶ 12 - Defendants negligently broke an excessive amount of concrete above two underground storage tanks.
¶ 13 - Defendants' negligence created an excessive amount of debris and dirt that required removal.
¶ 14 - As a result of Defendants' negligent acts, Plaintiffs' underground storage tanks were forced out of the ground straight through the concrete above, causing further damage to the Property.
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¶ 18 - Defendants are liable for those damages sustained by Plaintiffs as a result of Defendants' breach of their legal and contractual duties to Plaintiffs.
¶ 19 - Plaintiffs have sustained damages and will continue to sustain damages as a result of Defendants' breaches of their legal and contractual obligations.
The petition further elaborated that on July 20, 2022, plaintiffs met with an employee of the Louisiana Department of Environmental Quality ("LDEQ") to discuss the possibility of reusing the storage tanks but were informed that the applicable regulations required all underground storage tanks to be double-walled. This meant that plaintiffs' single-walled tanks would have to be replaced, closed, and disposed of.
When defendants did not respond to the petition after being served, plaintiffs moved for a default judgment. A hearing on the default judgment was held on April 17, 2023. No witness testimony was offered. Instead, plaintiffs' counsel made a brief oral argument and filed the affidavit of Richard Gutierrez, the authorized agent of plaintiffs, along with six attached exhibits. The trial court admitted the affidavit and attached exhibits into evidence before entering judgment in favor of plaintiffs and against defendants, in solido, for the sum of $3,128,570.68. Defendants' motion for new trial was denied. This timely appeal followed.
Discussion
Plaintiffs assert several assignments of error, including:
• the trial court erred by admitting the affidavit of Mr. Guitierrez because it contained inadmissible hearsay;
• the trial court erroneously admitted the field interview form from the LDEQ; and
• the trial court erred when it allowed inadmissible opinion testimony contained in Mr. Guitierrez's affidavit.
Appellate review of a default judgment is restricted to determining whether the record contains sufficient evidence to prove a prima facie case. Mautner v. Ware, 19-611 (La.App. 5 Cir. 5/27/20), 296 So.3d 1209, 1213, citing U.S. Bank Nat'l Ass'n v. Custer, 09-802 (La.App. 5 Cir. 2/9/10), 33 So.3d 303, 305. This determination is a factual one governed by the manifest error standard of review. Mautner, supra, citing Bank of America, N.A. v. Alexander, 19-290 (La.App. 5 Cir. 1/29/20), 289 So.3d 1200, 1203.
La. C.C.P. art. 1702 sets forth the requirements for obtaining a default judgment. Specifically, La. C.C.P. art. 1702(A)(1) requires that the plaintiff "establish[] a prima facie case by competent and admissible evidence that is admitted on the record . . ." To obtain a default judgment, a party must establish the elements of a prima facie case with competent evidence, as though each of the allegations in the petition were denied by the defendant; that is, a party must present competent evidence that convinces the court that it is probable that he would prevail in a trial on the merits. Mautner, supra; Arias v. Stolthaven New Orleans, L.L.C., 08-1111 (La. 5/5/09), 9 So.3d 815, 820.
La. C.C.P. art. 1702(B) sets forth the evidentiary requirements for proving a prima facie case sufficient to confirm a default judgment. These requirements differ depending upon the nature of the obligation, whether conventional or delictual. La. C.C.P. art. 1702(B); ASI Fed. Credit Union v. Leotran Armored Sec., LLC, 18-341 (La.App. 5 Cir. 11/7/18), 259 So.3d 1141, 1148.
La. C.C.P. art. 1702(B) provides in pertinent part:
(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.
(2) 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 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.
Thus, if the obligation is conventional, a petitioner need only submit "affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case." La. C.C.P. art. 1702(B)(1). If the obligation is delictual though, the "testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand." La. C.C.P. art. 1702(B)(2); ASI Fed. Credit Union, 259 So.3d at 1149. As stated by this court in ASI Fed. Credit Union, "when the demand is based upon a conventional obligation, proof by affidavit can be sufficient, and when the demand is in tort, the plaintiff must testify but affidavits can be used for corroborating evidence." Id. (Emphasis in original), citing Arias, 9 So.3d at 820 n. 11. In ASI Fed. Credit Union, this Court vacated the trial court's grant of a default judgment in a case involving a delictual obligation on several grounds, including that the trial court confirmed the default judgment without holding a hearing in open court and without requiring the plaintiff to provide live testimony. This Court held:
We also find that La. C.C.P. art. 1702(B)(2) expressly requires that when the demand is in tort, such as ASI's claim against LeoTran in the instant case, the plaintiff must provide live testimony; affidavits and other exhibits attached thereto can be used for corroborating evidence. Arias, 9 So.3d at 820 n. 11; W.H. Cary, Sr., Estate, L.L.C. v. Duhon, 10-1526 (La.App. 3 Cir. 5/25/11), 64 So.3d 922, 925.ASI Fed. Credit Union, 259 So.3d at 1151.
In ASI Fed. Credit Union, this Court relied upon the Third Circuit Court of Appeal case of W.H. Cary, Sr., Est., L.L.C. v. Duhon, 10-1526 (La.App. 3 Cir. 5/25/11), 64 So.3d 922, 925, which involved the trial court's confirmation of a default judgment in a case involving trespass, a delictual obligation. The Third Circuit found the confirmation of a default judgment was manifestly erroneous because the plaintiffs failed to testify. The Third Circuit reasoned:
Trespass, a tort, is a delictual obligation. Thus, in order to confirm a default judgment for a delictual obligation, the plaintiff should testify and offer corroborating evidence to meet their burden of proving a prima facie case. La.Code Civ.P. art. 1702(B)(2). At the confirmation hearing in the instant case, counsel for Cary, L.L.C. introduced the affidavit of Patrick H. Johnson, manager and authorized representative of Cary, L.L.C. Attached
thereto were various exhibits purporting to establish a prima facie case in favor of Cary, L.L.C. No one was called to testify.W.H. Cary, Sr., Est., L.L.C., 64 So.3d at 925.
Our review of jurisprudence in this circuit confirms that plaintiffs are required to testify at hearings on default judgments in cases involving delictual actions. See BridgePoint Healthcare Louisiana, LLC v. St. Theresa Specialty Hosp., L.L.C., 21-612 (La.App. 5 Cir. 5/11/22), 342 So.3d 120, 124 (Plaintiff testified at hearing on confirmation of default involving cause of action arising from the tort of conversion); Evans v. Jolly, 17-159 (La.App. 5 Cir. 10/25/17), 229 So.3d 650, 653 (Plaintiff testified at confirmation hearing in case involving the tort of defamation, but the default judgment was vacated on other grounds); Puderer v. Honey's Amusement Corp., 14-317 (La.App. 5 Cir. 10/29/14), 164 So.3d 249, 250 (same); Mount v. Hand Innovations, LLC, 12-326 (La.App. 5 Cir. 11/27/12), 105 So.3d 940, 944 (Plaintiff testified in personal injury and products liability case arising from alleged defective orthopedic device implanted in plaintiff's wrist, but the default judgment was vacated on other grounds).
The petition alleges that defendants' negligence caused damage to the plaintiffs, which is a delictual action. Plaintiffs, however, did not follow the requirements of La. C.C.P. art. 1702(B)(2) and provide testimony. Thus, plaintiffs' reliance upon the affidavit of Mr. Gutierrez, a principal of plaintiffs, without him testifying, is insufficient to support the entry of a default judgment, and the trial court erred by admitting the affidavit of Mr. Guitierrez in support of plaintiffs' negligence claims.
The petition further alleges the "breach of [Defendants'] legal and contractual duties to Plaintiffs." And plaintiffs' memorandum in support of motion for default judgment, filed in the trial court, asserts that defendants' liability is also grounded in provisions governing contractor liability under La. C.C.P. Arts. 2759 and 2762. Thus, to the extent that plaintiffs also assert claims arising as a conventional obligation in contract, the requirements for entry of a default judgment are governed by La. C.C.P. art. 1702(B)(1).
Plaintiffs submitted the affidavit of Mr. Gutierrez, which in turn referred to an LDEQ field interview form. The field interview form, admitted as Exhibit 2 to Mr. Gutierrez's affidavit, includes the purported handwritten observations, conversations, and conclusions made by LDEQ inspectors, S. Sinitiere and R. Brignac, pursuant to an inspection on July 20, 2022. Neither of these individuals provided an affidavit or appeared and testified at the trial on the default judgment regarding the field interview form. The field interview form contained statements made by these individuals, as well as others, including: (1) a statement by Tiffany Towers that "the second tank had shifted yesterday," (2) a statement by JF Petroleum that "they had been out last week to bid on putting additional product lines and noted that components on the top of both USTs [underground storage tanks] had been damaged by the concrete contractors;" and (3) a statement by Tiffany Towers that "the north UST shifted first on Sunday, 7/17/22, then the south UST shifted yesterday, 7/19/22." Further, the field interview form contains a prominently-displayed note on the first page:
The information contained on this form reflects only the preliminary observations of the inspector(s). It should not be interpreted as a final determination by the Department of Environmental Quality or any of its officers or personnel as to any matter, including, but not limited to, a determination of compliance or lack thereof by the facility operator with any requirements of statutes regulations or permits.
Defendants assert that the field interview form is inadmissible on various grounds, including that it is not authentic and contains inadmissible hearsay. Plaintiffs respond that the field interview form is admissible because it is selfauthenticating under La. C.C.P. art. 1702(B)(2). We disagree with plaintiffs.
The rules of evidence are still applicable to the determination of questions of fact in proceedings to obtain a default judgment. La. C.E. art. 1101(A). Plaintiffs must follow the rules of evidence even though there is no opponent. Evans, 229 So.3d at 653. "Because at a default confirmation there is no objecting party, to prevent reversal on appeal, both [the] plaintiff and the trial judge should be vigilant to assure that the judgment rests on admissible evidence" that establishes a prima facie case. Id., citing George W. Pugh, Robert Force, Gerald A. Rault, Jr., &Kerry Triche, Handbook on Louisiana Evidence Law, 677 (2007). Thus, inadmissible evidence, except as specifically provided by law, may not support a default judgment even though it was not objected to because the defendant was not present. Id., citing 19 Frank L. Maraist, Civil Law Treatise: Evidence and Proof, § 1.1 at 5 (2d Ed. 2007).
To the extent that plaintiffs relied upon the LDEQ field interview form to prove any claims arising as a conventional obligation in contract, the trial court improperly considered this exhibit. The LDEQ field interview form should not have been admitted into evidence because it is itself inadmissible hearsay and contains inadmissible hearsay within it. Without considering this exhibit, plaintiffs cannot establish the elements of a prima facie case.
Conclusion
As to plaintiffs' negligence claims, we vacate the default judgment based on plaintiffs' failure to provide witness testimony as required by La. C.C.P. art. 1702(B)(2). To the extent plaintiffs assert any claims arising from a conventional obligation in contract, we find that the trial court erroneously admitted the field interview form from the LDEQ. Plaintiffs therefore failed to establish a prima facie case by competent and admissible evidence that was admitted on the record as required by La. C.C.P. art. 1702(A)(1).
Accordingly, we pretermit defendants' remaining assignments of error.
The judgment of the trial court is vacated, and the matter remanded for further proceedings.
VACATED AND REMANDED
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MEJ
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