Signlite, Inc. VS Northshore Service Center, Inc., d/b/a Stop N' Gas Go and Mark Boudreaux

Annotate this Case

Download PDF

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2005 CA 2444 SIGNLITE INC VERSUS NORTHSHORE SERVICE CENTER INC D B A STOP N GAS GO AND MARK BOUDREAUX Judgment f rendered February 9 2007 Appealed from the 0 22nd Judicial District Court in and for the Parish of St Tammany Louisiana Trial Court No 2005 12414 Honorable Patricia T WILLIAM J FAUSTERMANN SLIDELL Hedges Judge ATTORNEY FOR JR PLAINTIFF APPELLEE LA SIGN LITE INC CHRISTOPHERJ CHRISTIAN W AUBERT ATTORNEYS FOR HELMKE DEFENDANT APPELLANT DAVID S PffiMAN NORTHSHORE SERVICE COVINGTON CENTER INC LA D B A STOP N GAS GO AND MARK BOUDREAUX BEFORE PETTIGREW DOWNING AND HUGHES JJ Aw41 PEITIGREW J This is a suit for payment of appealed from the rendition of in a conventional a default The defendants have obligation judgment in favor of the petitioner We reverse vacate and remand part FACTS Inc Signlite petition that it d b a total and was Stop Gas Signliteff 100 Louisiana corporation and petitioner herein alleges engaged by defendant Northshore Service Center Go manufacture and install to N price including sales nO a 29 400 00 tax and Dollars It is further Pursuant to the terms set forth to pay the agreed the in The terms of the also named as was as a placed for collection part of its service or charge of 1 if collected petition that Mark defendant agent thereafter accepted the 1 2 ff the The percent in this matter to by suit Warren Boudreaux executed Signlite accepted Signlite terms of the contract at its Mr and through its corporate offices in Louisiana According awning at the March 8 Stop Gas 2005 1 Despite allegations of the petition the installation of the sign and the to the N Go Signlite remaining balance name a a Dollars Proposal and Sales Agreement personally guaranteed the payment of the invoice the 14 700 00 paid agreement further provided that reasonable attorney fees would be Signlite further alleges Slidell Northshore sum remaining balance upon completion of the installation added in the event the contract authorized Four Hundred one past due amounts not paid within thirty 30 days from the invoice date on Boudreauxff nine Thousand 100 agreement further provided that defendants would pay per month awning for the alleged that of this nO Northshoreff Inc 1 sign and permit fees of Twenty deposit of Fourteen Thousand Seven Hundred and defendants 1 one in its 2501 N Hwy 190 Covington was completed on asserts that Northshore and Boudreaux thereafter failed to pay in violation of the terms and conditions of the agreement caption of the plaintiff s petition and hence all subsequent pleadings set forth the entity as Stop N Gas Go it appears that the correct name of said entity is Stop the fact that the of the defendant Louisiana Gas N Ga 2 ACTION OF THE TRIAL COURT Signlite subsequently filed suit Tammany against Northshore and in the Mr 22nd Judicial Boudreaux District Court for the Parish of St May 23 2005 seeking recovery of on Signlite filed the balance due pursuant to the terms of the contract entry of preliminary default a the court on June 14 2005 June 13 on On 2005 July 5 2005 a 2 preliminary default A motion was seeking entered filed into the record was a invoice procedural compliance and affidavit from Signlite s attorney certifying affidavit from Signlite forth the time spent by said attorney prior On attorney that attached no answer or defaults entered On copy of to Signlite s was confirmed opposition had been filed billing statement setting a default the deputy clerk of in response to the on prima facie case as on the petition filed by June 14 2005 July 28 2005 Northshore and Mr Boudreaux moved for a judgment court judgment confirming the preliminary against Northshore and Mr Boudreaux aside the default an to confirmation of the default The trial court thereafter rendered Signlite a July 14 2005 the date the default certified that default s as copy of the original Signlite together with the original Proposal and Sales Agreement an by notarized affidavit from the controller of to the correctness of the Northshore account Signlite attesting a ground that Signlite failed new trial and to set to establish all elements of a required by the Louisiana Code of Civil Procedure for the entry of judgment These motions were subsequently denied by the trial 2005 and Northshore and Mr Boudreaux moved for a court on a July 29 suspensive appeal ISSUES In connection with their forth the appeal in this matter Northshore and Mr following issues for review and consideration by this 1 What is the standard to be used default 2 Boudreaux set court by the Court of Appeal to set aside a judgment Did Signlite meet its burden of proving a prima facie case in the trial court Was the award of attorney fees set 3 2 Within its Motion for was made May 25 by Preliminary Default counsel for the sheriff upon the registered agent by the trial Signlite court excessive averred that service of the citation and for Northshore and upon Mark Boudreaux 2005 3 petition personally on ANALYSIS In confirmation a hearing on default a judgment competent evidence that convinces the court that it is would La prevail in a trial on the merits App 1 Cir 6 25 04 Carter 885 So 2d 1190 v Amite 1192 correct does not 179 probable than City Ford Inc a must apply where testimony is transcribed and contained There is no not that he 2003 1536 presumption that to establish a present prima facie a p 3 default case and However the rendered upon sufficient evidence and is was legion Indemnity Company 2001 0552 p 176 plaintiff appellant has burden of overcoming that presumption and presumption that the default judgment v more There is judgment has been rendered upon sufficient evidence is correct a 4 La App in the record 818 SO 2d 1 Cir 2 27 02 in the case at hand transcript of the testimony Bates therefore the presumption of the validity of the confirmation of default judgment applies The Louisiana Constitution of 1974 courts of provides that the appellate jurisdiction of the appeal extends to both law and facts appeal may not overturn finding that was a judgment of manifestly a erroneous La Const Art V trial court absent of law or a Stobart v an error See clearly wrong or A court of 9 10 B Department of Transportation and Development 617 So 2d 880 882 1993 fact When the court of was made in the trial court it is entire record and render a A appeal finds that judgment prescribed by law Procedure art 1702 on La a conventional the merits Rosell an error n 2 La of material ESCO 549 So 2d 840 defendant who fails to a art v 1701A Louisiana Code of Civil to confirm a default and C govern when P art 1702A answer a B 3 demand is based and C apply when open account parties whereby obligations 1908 Code Civ P 1702A B l Louisiana Civil Code article 1906 Civ Code art manifest State to redetermine the facts de novo from the obligation while La Code Civ demand is based upon more error or specifies the procedure and evidence necessary Louisiana Code of Civil Procedure art a required judgment by default may be entered against within the time upon reversible a factual are provides created A contract is bilateral modified or 4 A contract is or an agreement by two extinguished or Pursuant to La synallagmatic when the parties obligate themselves reciprocally that the so obligation of each party is correlative to the obligation of the other Louisiana Revised Statutes 9 2781 which governs open accounts professional fees and open accounts owed to the state attorneys fees provides in paragraph 0 as follows O For the purposes of this Section and Code of Civil Procedure Articles 1702 and 4916 open account includes any account for which a part or all of the balance is past due whether or not the account reflects one or more transactions or not at and whether the time of contracting the parties expected future transactions Open account shall include debts incurred for profeSSional services including but not limited to legal and medical services For the purposes of this Section only attorney fees shall be paid on open accounts owed to the state An open account necessarily involves which the debt is based 2004 1223 6 17 05 p 4 La underlying agreement between the parties an Gulf Stream Services Inc different from an open account is open account an whereby obligations concurrence in of Energy Services but contract a are created understanding the line of credit is A contract is modified terms or An running and is open our jurisprudence has made obligations an A contract is agreement by two however or more recurrently granted Shreveport Electric Co 8 App 2 Or 9 29 04 889 So 2d 274 279 writ denied 2005 0340 La So 2d 613 See also Tyler v v Oasis Pool Service Inc a expectations over a time Inc parties is an account in to future modification because of are a significantly thereby establishing extinguished open account prospective business dealings and services La Inc App 1 Cir 3 24 05 907 So 2d 96 100 writ denied 2005 1064 La distinction between open accounts and conventional a Hot 904 So 2d 706 Certainly which v on 38 766 Haynes 99 1921 p 5 La App 3 Or 5 3 00 period of 38 876 p 4 1 05 897 760 So 2d 559 563 In the case at hand the trial court described the judgment based upon plaintiff s petition being was a manifestly erroneous its conclusion and finding of fact judgment in this case on a suit based upon the After 5 plaintiff s petition and rendered part of the trial a thorough an open account This court which interdicted review of the record we conclude that what conventional we a suit a on a prima facie evidence that Metal Works and following it 74 P suit on alleged Signlite art completed Roofing 678 SO 2d 73 In an a conventional comply with La Code Civ case is not open account but rather between contract to manufacture an illuminated v its Landis By the very obligation Northshore 1702A B l and C and pole sign for documents and or Company Inc terms of its own 96 0029 contract 2 p La Signlite completed sign by App 4 Cir must present a to Northshore Signlite introduced the exhibits 1 Affidavit of Correctness of Account 2 Copy of Proposal and Sales Agreement between Signlite Hartson to confirm a default obligations under said contract Orleans Sheet that it manufactured and delivered the Eddie on a and further must prove support of its confirmation of the default judgment Mr Sign lite suit Inc a specific price of 29 400 00 Since this is prima facie for N Go Stop Gas Northshore for the 1996 us obligation based upon Northshore d b must have before dated by Jerry Wiel Controller of Signlite Inc November 24 2004 for Inc and a Stop Gas N Go total contract price of 29 400 00 3 Invoice dated Hartson 4 February 28 2005 from Signlite Inc 50 272 showing a balance due of 17 to Stop Gas N Go Mr Eddie Affidavit of Attorney for Plaintiff dated June 27 2005 certifying the dates of entry of the preliminary default and that the suit is one on a conventional obligation the service 5 Affidavit of William J Fausterman Jr relative to attorney fees 6 Certificate of the has been filed to The and Deputy Clerk of Court certifying no answer plaintiff s petition for confirmation of default or other opposition Proposal and Sales Agreement dated November 24 2004 between Signlite Stop Gas N and contains the Go sets forth the following February 28 2005 Hwy 190 Covington La 29 400 00 500f0DEPOSIT BALANCE@COMPLETION specifically provides the balance due is upon completion dated to be terms TERMS The contract price for the installation of the sign was addressed to 70433 for Stop Gas N Go 17 6 50 272 Mr The Signlite invoice Eddie Hartson 2501 N The invoice does not reflect the completion date of the installation of the sign fact the space on the invoice or that the installation indicating the date of completion The Affidavit of Correctness of Account in completed was nor does it give a balance due to elements of entry of Mr judgment prima facie case as the on in part A in the Pursuant to the terms of the a Stop Gas N Go as new There is no evidence in the Boudreaux timely moved for a new trial to to establish all the required by the Louisiana Code of Civil Procedure for the Louisiana Code of Civil Procedure article 1972 follows trial shall be following 1 liable for the was not ground that Signlite failed preliminary default judgment a provides a is blank Signlite completed installation of the sign July 28 2005 Northshore and set aside the default In verify that the installation of the Signlite until the completion of the installation record to indicate that On not completion date Proposal and Sales Agreement Northshore d b completed support of the motion for confirmation judgment by Jerry Wiel Controller of Sign lite does sign was granted upon contradictory motion of any party cases When the verdict or judgment appears clearly contrary to the law and the evidence These motions On has been La App were by the trial court appeal the denial of an 1 a motion for abuse of the trial court Cir 11 3 00 committed manifest an denied error in July 29 2005 new discretion 769 So 2d 1273 trial should not be reversed unless there McCrey 1277 judgment of the trial contrary trial case In this conventional was on a Further there court Signlite completed the construction of the sign which prima facie J H J Inc v p 7 99 2283 proceeding the trial court interpreting the contract between Signlite and Northshore open account when in fact it interdicted the s on against Northshore and Mr obligation was no was Boudreaux said factual evidence finding presented that necessary for them to prove These findings were For these Trial filed reasons we P art reverse new 1972 1 hereby a clearly to the law and the evidence and entitled Northshore and Mr Boudreaux to a pursuant to La Code Civ as by Northshore and Boudreaux the trial court s denial of the Motion for New In addition 7 we vacate and set aside the default judgment rendered July 18 2005 in favor of Northshore Service Center Inc d b a of 17 272 50 and consistent with this we Signlite Inc and against the defendants Stop Gas Nt Go and Mark Boudreaux remand this matter to the trial court for further appeal shall be assessed against Signlite JUDGMENT DENYING NEW TRIAL REVERSED AND proceedings opinion All costs of this VACATED in the amount SET ASIDE THIS JUDGMENT OF JULY 18 MATTER PROCEEDINGS 8 Inc REMANDED FOR 2005 FURTHER STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2005 CA 2444 SIGNLITE INC VERSUS B D A NORTHSHORE SERVICE CENTER INC STOP N GAS GO AND MARK BOUDREAUX Downing J and concurs I agree with the However I appeal assigns reasons opinion where it addresses the merits of the judgment disagree with the majority insofar trial court s denial of Northshore s as and Boudreaux interlocutory and La 1 App Stores The Louisiana of the denial of a Inc 1 99 2060 p 2 La motion for on Yet the reverses new trial appellant s brief as an App 1 Cir 22 9 did not assert majority opinion the trial court s to appeal was denying a new the denial of discusses the on an to be we are to I appeal the merits on the review the trial a new trial as a ground appeal of the denial of the ruling in this regard 4 p Dillard v consider intended Thus an 769 So 2d 742 appeal of the judgment p 4 818 So 2d at 228 229 appellant us 00 The 01 0467 Morrison citing 228 that the the merits and not the judgment Here the and 226 Carpenter 01 0467 judgment appeal So 2d 818 the trial is new Hannan v on trial new motion for Supreme Court however has instructed when it is clear from merits a appealable judgment Carpenter 3 28 02 Cir Department 744 non motion for s established rule in this circuit is that the denial of it addresses and rules on respectfully suggest new of trial that this was amended to remove 2083 art Acts No 205 effective January 1 2006 La C C P the longstanding provision that interlocutory judgments that may cause in eparable harm are is now appealable only when expressly provided by law An interlocutory By 2005 La appealable Accordingly judgment the denial of a new trial is not generally appealable 1 discussion state together with all references of the law and should be to reversing disregarded 2 on this ground misrepresents the

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.