Opinion
2022 CA 0646.
12-22-2022
Jeffery JOFFRION and Joffrion Consultant Group, LLC v. Lonna SPEARS-HEGGELUND and HighRHealth, LLC.
Juan J. Moreno , Keith J. Fernandez , Baton Rouge, Louisiana, Counsel for Plaintiffs/Appellees, Jeffery Joffrion and Joffrion Consultant Group, LLC. Timothy E. Pujol , Barbara L. Irwin , Ashley D. Tadda , Gonzales, Louisiana, Counsel for Defendants/Appellants, Lonna Spears-Heggelund and HighRHealth, LLC. BEFORE: WELCH, PENZATO, AND LANIER, JJ.
Juan J. Moreno , Keith J. Fernandez , Baton Rouge, Louisiana, Counsel for Plaintiffs/Appellees, Jeffery Joffrion and Joffrion Consultant Group, LLC.
Timothy E. Pujol , Barbara L. Irwin , Ashley D. Tadda , Gonzales, Louisiana, Counsel for Defendants/Appellants, Lonna Spears-Heggelund and HighRHealth, LLC.
BEFORE: WELCH, PENZATO, AND LANIER, JJ.
PENZATO, J.
Lonna Spears-Heggelund and HighRHealth, LLC, defendants, appeal from a January 28, 2022 default judgment entered against them and in favor of Jeffery Joffrion and Joffrion Consultant Group, LLC, plaintiffs. For the following reasons, the portion of the January 28, 2022 default judgment entered against HighRHealth, LLC is vacated and set aside, the appeal filed by Lonna Spears-Heggelund is dismissed as moot, and the case is remanded for further proceedings. Finally, we recall the rule to show cause order issued by this court and maintain the appeal.
FACTS AND PROCEDURAL HISTORY
Jeffery Joffrion and Joffrion Consultant Group, LLC (collectively, "Joffrion") filed suit against Lonna Spears-Heggelund and HighRHealth, LLC on October 7, 2021. The petition alleged that Joffrion loaned a total of $635,000.00 to Spears-Heggelund via wire transfers and that the defendants failed to timely repay the debt in accordance with a promissory note signed by Spears-Heggelund, as well as the parties' oral agreements. Joffrion sought to recover the amount owed on the promissory note and on open account, in addition to attorney fees.
On December 17, 2021, after no answer was filed, Joffrion filed a motion for preliminary default against both defendants. The motion for preliminary default alleged that Spears-Heggelund and HighRHealth were served via personal service through a registered agent for service on October 12, 2021, but failed to file an answer or otherwise make an appearance in the action. An order entering the preliminary default was signed on January 4, 2022.
On January 24, 2022, Joffrion filed a motion for judgment by default, along with Jeffery Joffrion's affidavit of correctness and attachments purporting to set forth the factual and evidentiary basis for the entry of a default judgment on open account or promissory note. See La. C.C.P. art. 1702(B)(3). The motion for judgment by default stated that Mr. Fletcher Robbe, on behalf of defendants, contacted Joffrion's counsel on October 27, 2021, and the defendants were given an extension of time, until November 12, 2021, to file responsive pleadings. However, no responsive pleadings were filed by the defendants as of the date of the motion. The motion for judgment by default further stated that notice of Joffrion's intent to obtain a default judgment "was sent by certified mail to Mr. Fletcher Robbe on January 12, 2022 pursuant to La. C.C.R. art. 1702(A)(3)." No evidence was attached to the motion for judgment by default to support this contention.
A default judgment was entered against the defendants on January 28, 2022, finding the defendants were liable to Joffrion in the amount of $622,500.00, legal interest from the date of default, plus attorney fees to be determined once the attorney submits an itemized expense affidavit.
The defendants filed a petition to annul the default judgment on March 18, 2022. The petition, which was filed in the same trial court proceeding, alleged that Spears-Heggelund was never served with process, and notice of intent to obtain a default judgment was not sent to either defendant in violation of La. C.C.P. art. 1702. Thus, they alleged that the January 28, 2022 default judgment was a nullity pursuant to La. C.C.R art. 2002(A)(2). Before any action was taken on the petition to annul, the defendants filed a motion and order for devolutive appeal on April 4, 2022. This appeal by the defendants followed.
RULE TO SHOW CAUSE ORDER
This court issued a show cause order on August 17, 2022, noting that the January 28, 2022 judgment included an award of legal interest from the "the date of default." Because the date was unspecified, the precise amount awarded could not be determined from the face of the judgment. See D'Luca v. Kirkland, 2020-0713, 2020-0714 (La. App. 1st Cir. 2/19/21), 321 So.3d 411, 413-14 (A valid judgment must be precise, definite, and certain. These determinations should be evident from the language of the judgment without reference to other documents in the record.)
After the parties filed responsive briefs, this court issued an interim order on September 29, 2022, and remanded the matter for the limited purpose of requesting that the trial court issue an amended judgment that corrected the identified deficiency. See La. C.C.P. arts. 1918(A), 1951, and 2088(A)(12). The appeal record was thereafter supplemented with an amended judgment, signed October 20, 2022, correcting the deficiency. Thus, we recall the show cause order and maintain the appeal.
APPEAL BY LONNA SPEARS-HEGGELUND
The appellants' brief states that the parties entered a stipulated consent judgment on May 17, 2022, wherein they agreed that Spears-Heggelund was not properly served with process. After the appeal was lodged, the trial court supplemented the appeal record with the stipulated consent judgment, which reflected that the January 28, 2022 default judgment against Spears-Heggelund was declared absolutely null by order of the trial court, signed May 17, 2022.
The stipulated consent judgment expressly stated that the parties made no stipulation concerning HighRHealth, and HighRHealth reserved its rights to pursue annulment of the default judgment against it and did not waive any portion of the petition to annul. Thus, the appellants maintain that the only issues presently before this court on appeal concern the validity of the default judgment entered against HighRHealth. Consequently, the appeal filed by Lonna Spears-Heggelund is dismissed as moot. See Felder v. Political Firm, L.L.C., 2014-1266 (La. App. 1st Cir. 4/24/15), 170 So.3d 1022, 1027 n.2 ("In the interest of judicial economy, an appellate court may consider the possibility of mootness on its own motion and dismiss the appeal if the matter has in fact become moot.")
APPEAL BY HIGHRHEALTH, LLC
In its first assignment of error, HighRHealth argues that the trial court erred by entering the default judgment when Joffrion failed to present sufficient, competent prima facie proof of an oral agreement, open account, and the amount of outstanding indebtedness. See La. C.C.P. art. 1702(B)(3); La. C.C. art. 1846. In its second assignment of error, HighRHealth asserts that the trial court erred by granting a default judgment against it without proof that prior notice of default was sent, via certified mail, as required by Article 1702(A)(3). Thus, HighRHealth asserts that the January 28, 2022 default judgment should be rendered null.
Pending Petition to Annul Judgment
Before considering the merits of HighRHealth's assignments of error, we must first determine whether the instant appeal is premature, since HighRHealth's petition to annul remains pending before the trial court. Relying on the analysis set forth in Brown v. Stratis Construction, LLC, 2021-0964 (La. App. 1st Cir. 3/7/22), 341 So.3d 640, 643, we conclude HighRHealth's appeal is not premature.
Specifically, this court determined that the appeal in Brown was not premature despite a nullity action pending in the underlying workers' compensation proceedings and maintained the appeal. To reach this conclusion, Brown, 341 So.3d at 643, articulated the following reasoning, which we adopt as our own:
Louisiana Code of Civil Procedure article 2005 provides, in pertinent part, that "[a]n action for nullity does not affect the right to appeal." Moreover, this court has recognized that "an action of nullity of a final judgment is a separate remedy independent of all other actions for judicial relief, and may be availed of notwithstanding the right of appeal and without adverse effect upon one's right of appeal." Schoen v. Burns, 321 So.2d 908, 913 (La. App. 1st Cir. 1975). An action to annul a judgment for a vice of form may be brought by an interested person at any time, before any court,
and through a collateral proceeding. See La. C.C.P. art. 2002(B); Edwards v. First Bank & Trust, 2012-0423 (La. App 1st Cir. 4/8/13), 181 So.3d 726, 729. A party may avail himself of the right to seek annulment of a judgment despite the fact that the party has a right to appeal and without adversely affecting the right to appeal. See La. C.C.P. art. 2005; Edwards, 181 So. 3d at 729. See also Roach v. Pearl, 95-1573 (La. App. 1st Cir. 5/10/96), 673 So.2d 691, 694-95 ("[Louisiana Code of Civil Procedure article] 2005 specifically allows for a nullity action while an appeal is pending.") Further, Roach recognized that the nullity action could be brought in the same suit without distinguishing whether the nullity sought was relative or absolute.
Therefore, HighRHealth's appeal is maintained.
Validity of Default Judgment Entered Against HighRHealth
We find it appropriate to address HighRHealth's second assignment of error first. HighRHealth asserts that Joffrion failed to present competent evidence of compliance with the notice requirements set forth in Article 1702(A)(3), as amended by La. Acts. 2021, No. 174, § 5, eff. Jan. 1, 2022. We agree.
Louisiana Code of Civil Procedure article 1702(A)(3) states:
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 to the party's attorney at least seven days before a default judgment may be rendered.
The legislature expressly stated that the amendments to Article 1702 made by La. Acts. 2021, No. 174, § 5, "shall become effective on January 1, 2022 ... and shall apply to default judgments rendered on or after that date." La. Acts. 2021, No. 174, § 7. Since the default judgment against HighRHealth was rendered on January 28, 2022, Article 1702(A)(3) applies.
We also note that the preliminary default judgment against HighRHealth, which is no longer required by Article 1702, was entered on January 4, 2022, following the effective date of the amendment.
Official Revision Comments—2021, Comment (a), to Article 1702 pertinently states:
Subparagraph (A)(3) of this Article adopts a new rule that, prior to the rendition of a default judgment, notice must be sent to a party's attorney who has contacted the plaintiff or the plaintiff's attorney in writing about the case. The 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 similar to that arising from a lack of the notice required by Subparagraph (A)(2). See, e.g., First Bank & Trust v. Bayou Land and Marine Contractors, Inc., 103 So.3d 1148 (La. App. 5 Cir. 2012).
In First Bank & Trust, 103 So.3d at 1152, the court of appeal found that the trial court committed an error of law by confirming a default judgment where First Bank, the party moving for entry of default, failed to present proof that it satisfied the notice requirements of Article 1702(A)(2). At the time, Article 1702(A)(2) pertinently stated,
When a judgment of default has been entered against a party that is in default after having made an appearance of record in the case, notice of the date of the entry of the judgment of default must be
sent by certified mail by the party obtaining the judgment of default to counsel of record for the party in default, or if there is no counsel of record, to the party in default, at least seven days, exclusive of holidays, before confirmation of the judgment of default.[]
Louisiana Code of Civil Procedure article 1702(A)(2) was also amended by La. Acts. 2021, No. 174, § 5, eff. Jan. 1, 2022. Similar to its prior vision, Article 1702(A)(2) now states:
If a party who fails to answer has made an appearance of record in the case, notice that the plaintiff intends to obtain a default judgment shall be sent by certified mail to counsel of record for the party, or if there is no counsel of record, to the party, at least seven days before a default judgment may be rendered.
The court in First Bank & Trust noted that, pursuant to Article 2002(A)(2), a final judgment shall be annulled if it is rendered against a person against whom a valid default judgment has not been taken. The court concluded that First Bank's failure to send the required notice to the defendant, who made an appearance in the case, and the trial court's failure to confirm compliance with Article 1702(A)(2) before rendering the default judgment against the defendant were sufficient grounds to nullify the default judgment. First Bank & Trust, 103 So.3d at 1152.
Louisiana Code of Civil Procedure article 2002(A)(2) was amended by La. Acts 2021, No. 174, § 1, eff. Jan. 1, 2022. Prior to this amendment, Article 2002(A)(2) stated that a final judgment shall be annulled if it is rendered against a defendant "whom a valid final default judgment has not been taken." (Emphasis added.) As amended, Article 2002(A)(2) similarly states that a final judgment shall be annulled if it is rendered against a defendant "whom a valid default judgment has not been taken."
Here, the motion for judgment by default confirmed that, in October 2021, Joffrion's counsel was contacted by Mr. Robbe, who purportedly represented the defendants. In recognition of the requirements of Article 1702(A)(3), Joffrion stated that notice of the intent to obtain a default judgment was sent to Mr. Robbe via certified mail on January 12, 2022. However, the record contains no evidence that such notice was sent. Parties must introduce evidence to support their claims and defenses. Arguments and pleadings are not evidence. Union Christian Academy v. Shirey, 53,831 (La. App. 2d Cir. 4/14/21), ___ So.3d ___, ___, 2021 WL 1396400, *3. See Bethley v. National Automotive Ins. Co., 2002-1572 (La. App. 4th Cir. 2/12/03), 840 So.2d 608, 610 (default judgment declared invalid where the trial court confirmed the default without evidence that the plaintiff sent notice to the defendant pursuant to Article 1702(A)(2)).
In contrast, see Libertas Tax Fund I, LLC v. Taylor, 2021-0550 (La. App. 4th Cir. 6/16/22), 342 So.3d 1083, 1087, writ denied, 2022-01093 (La. 10/18/22), 348 So.3d 729. There, the plaintiff produced a copy of the certified letter, with postage attached, as well as correspondence from the United States Post Office communicating that the letter was processed and reflecting that notice of the preliminary default was sent by certified mail to the defendant. The court of appeal found no error in the trial court's conclusion that notice was sent in accordance with Article 1702. Libertas Tax Fund I, LLC, 342 So.3d at 1088. Similarly, see Lowe's Home Construction, LLC v. Lips, 2010-762 (La. App. 5th Cir. 1/25/11), 61 So.3d 12, 15, writ denied, 2011-0371 (La. 4/25/11), 62 So.3d 89 (the trial court did not err in confirming the judgment of default where the record contained a certified mail receipt reflecting notice in accordance with Article 1702(A)(2)).
As in First Bank & Trust, 103 So.3d at 1152, we find that Joffrion's failure to present evidence that notice was sent to the defendants via certified mail pursuant to La. C.C.P. art. 1702(A)(3), and trial court's failure to confirm compliance with the mandates of this provision prior to rendering the default judgment against HighRHealth, are sufficient grounds to nullify the default judgment pursuant to La. C.C.P. art. 2002(A)(2). In light of this ruling, we pretermit discussion of HighRHealth's first assignment of error, which is now rendered moot.
CONCLUSION
For the foregoing reasons, we recall the rule to show cause order and maintain the appeal. The portion of the January 28, 2022 default judgment entered against HighRHealth, LLC and in favor of Jeffery Joffrion and Joffrion Consultant Group, LLC is vacated and set aside. The appeal filed by Lonna Spears-Heggelund is dismissed as moot. The case is remanded for further proceedings. All costs of this appeal are assessed against Jeffery Joffrion and Joffrion Consultant Group, LLC.