Bear Industries, Inc. VS Nature Matters, L.L.C., Dilan Landry and Tira M. Leblanc

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 CA 0924 BEAR INDUSTRIES INC VERSUS NATURE MATTERS L L c DILAN LANDRY AND TIRA M LEBLANC DATE OF JUDGMENT October 31 2008 ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT C558 201 DIV E SEC 23 PARISH OF EAST BATON ROUGE STATE OF LOUISIANA THE HONORABLE WILLIAM A MORVANT JUDGE Craig Kaster Zachary Louisiana Counsel for Plaintiff Appellee Dannie P Garrett III Counsel for Defendant Baton Rouge Louisiana BEFORE Disposition AFFIRMED Bear Industries Inc Tira M LeBlanc KUHN GUIDRY AND GAIDRY JJ Appellant Kuhn J In this default consider whether the trial we in favor of judgment appellant Tira defendant established we appeal a prima facie LeBlanc case that erred in confirming Bear Industries Inc plaintiff appellee M court Because and a against find that Bear Industries we supported the confirmation of default judgment affirm PROCEDURAL AND FACTUAL BACKGROUND I On Matters 15 August LL C in the full 2007 Bear Industries filed suit Dilan of sum Landry and LeBlanc claiming they 37 977 72 25 paid along with attorney petition further alleged defendants on account s together to Bear executed as an a Bear Industries I from May exhibit On Industries since credit with 18 fees and for all 24 statement of account attached to the owing petition August 5 of these 2 October 4 be 2007 October 16 2007 a judgment confirming in favor of Bear Industries and solido in the amount of 37 977 72 August 5 2007 until 5 000 in paid 6 the 2007 sums and 3 2007 as The to reflected on a Landry and LeBlanc Bear these default to the petition Matters Industries obtained respectively judgments ordered against Landry and Nature Matters attorney s 18 fees and the have been due and and Nature Matters together with 2 solido proceedings personally obligated for the debt of Nature and in limestone materials July 2007 preliminary default judgments against Landry judgment costs to liable Nature interest from date due until provided 2007 were application and personal guaranty also attached agreeing to On October 19 against defendants in interest thereon from costs of the proceedings In a motion and order Industries stated that to the serve private as Fazio petition Industries LeBlanc on process indicated that the sheriff to server process petition However based s return private a serve despite was an review of the record and certificate LeBlanc failed to file any on order the effort appointing petition on diligent effect service to personally and its request for admission of facts on our due and unable was counsel for Bear server the citation and service return indicates that LeBlanc s court sheriffs appoint On October 3 2007 Bear Industries obtained requested Fazio a to on as Lisa LeBlanc served with Bear October 25 January 3 2007 2008 clerk of responsive pleadings after service of process On November judgment against default 16 2007 LeBlanc judgment signing Leblanc in the 2007 until amount paid LeBlanc has Bear Industries obtained and a of on January judgment 37 977 72 3 000 00 in necessary to establish LeBlanc s 1 2008 the trial court with 18 s fees interest thereon from and costs of the Bear Industries failed The was insufficient to to against August 5 proceedings 1 allege the facts liability under the alleged personal guaranty and 2 Bear Industries evidence adduced at the confirmation ofthe judgment confirmed the in favor of Bear Industries and attorney appealed claiming 9 preliminary default a establish a prima facie case preliminary default against Leblanc judgment further provided This judgment taken together with the judgment entered obligates LeBlanc in solido with the other defendants Nature Matters and October 19 2007 Landry for the full amount of this judgment along 3 with the interest attorney s fees and costs II answer default may be entered judgment by A within the time prescribed by law Code of Civil Procedure necessary to confirm I B a confirmation a article a prevail Center Inc 2 Except in 05 2444 otherwise as a demand is based hearing trial La on a A judgment on a court defendant who fails 1701A art conventional judgment 2 Louisiana law a 3 obligation a plaintiff must probable than not that Sign lite Inc v present Northshore Service 959 So 2d 904 906 907 defendant shall file his answer within fifteen When days La C c P art 1001 of default sufficient to establish a provides in must prima be confirmed facie case pertinent part If no by proof of the demand is filed answer timely this confirmation may be made after two days exclusive of holidays from the entry of judgment of default When a judgment of default has been entered against a the party that is in default after having made an appearance of record in the case notice ofthe 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 B I When a demand is based upon a conventional exhibits annexed thereto which contain facts sufficient shall be admissible self case The court may the form of oral C authenticating before obligation to and sufficient under the circumstances ofthe testimony case establish affidavits and a prima facie proof of such demand require additional evidence in entering judgment In those a conventional proceedings in which the sum due is on obligation a in open court shall not be required unless the judge in his discretion hearing 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 copy of the proposed judgment The judge shall within seventy two hours of receipt of such submission from the clerk of court sign the judgment or direct that a hearing be held The clerk of court shall certify that no answer or other has been one final filed by to more that it is 1st Cir 2 9 07 App Louisiana Code of Civil Procedure article 1702 A CC P La default the merits on provided by service of citation upon him a specifies the procedure and evidence 1702 competent evidence that convinces the he would against Louisiana Code of Civil Procedure article I702A default and C govern when In ANALYSIS the defendant The minute clerk shall make pleading showing the dates of of proof review of the record and rendition of the judgment A certified copy ofthe signed judgment shall be sent to the plaintiff by the clerk of court receipt 4 an entry after the confirmation of default judgment recites that plaintiff has produced due proof in support of its demand and that the law and evidence favor the defendant and there is against there is evidence v presumption a to establish 527 In the instant and evidence confirmation of default When restricted to reviewing case correct 07 1229 because the sufficient Ascension Builders Inc The defendant 1972 878 La on Assamad 1st Cir App favor 7 29 08 judgment confirming the default the presumption of the validity of the judgment applies a confirmation of default Grevemberg asserts Leblanc a Percy v produced due proof in support of its demand and the its on v GPA judgment appellate an on Strategic Forecasting Group court is to prove Inc 06 959 So 2d 914 918 appeal that authenticity of her signature on and is 263 So 2d 875 LL c 1st Cir 2 9 07 App LeBlanc served rendered judgment has been case are regarding parol testimony determining whether the record contains sufficient evidence prima facie La in are of evidence overcoming that presumption case Bear Industries provides that 0766 519 has the burden of 4 So 2d a prima facie and Diamond Foods Square law that the default 262 La Jumonville appellant a no note and plaintiff the Bear Industries failed to establish the However Bear Industries personal guarantee request for admissions of fact which sets forth the following specific requests REQUEST FOR ADMISSIONS OF FACT NO I LeBlanc attached 4 The does executed the credit to presumption not apply proceedings in however there the petition that the default as the trial court judgment was rendered hearing Assamad and no personal guaranty Exhibit P2 where the record contains was no and application a upon sufficient evidence and is correct note of evidence introduced 07 1229 transcript So 2d at of testimony 5 so the or a transcript of the In the present case presumption is applicable REQUEST FOR ADMISSIONS OF FACT NO 2 provided limestone materials to the defendants between 2007 through July 6 2007 valued at 37 977 72 Petitioner May 24 REQUEST FOR ADMISSIONS OF FACT NO 3 The defendants currently owe the 37 977 72 petitioner REQUEST FOR ADMISSIONS OF FACT NO The have been due and sums owing to the 4 petitioner since August 5 2007 A party may serve upon any other of the truth of any relevant matter court art fact is deemed admitted if the party 15 respond within matter matters of party to motion The 1468 permits withdrawal court La prejudice La cc P art 1468 him in Prestage v C CP an will be sub served satisfy the maintaining court his action Clark 97 0524 La LeBlanc failed with the Bear Industries to file any petition no motion 6 Any to the La C cP when the thereby and the party defense on the merits 1st Cir 12 28 98 723 739 So 2d 800 on responsive pleadings prior judgment Further LeBlanc filed 1467 not that withdrawal of the or App 1090 writ denied 99 0234 La 3 26 99 along art admission The record establishes that the requests for admission LeBlanc Generally the amendment of the admission or to 1466 conclusively established unless permit withdrawal of may who obtained the admission fails admission will art whom the request is directed does days after service of the request presentation of the merits of the action So 2d 1086 written request for the admission La C cP deemed admitted under article 1467 is on a October 25 to were served 2007 on and that confirmation of the default withdraw these admissions Thus these facts signed the are deemed admitted and constitute prima facie evidence that LeBlanc personal guaranty Additionally the record contained two items attached to the 2007 invoice from Bear Industries for the total amount due of July 31 that bore notarized certification that it a and P2 account LeBlanc LeBlanc as the Credit was Application a true and Guaranty guarantor to be agreed on May 22 completed fully bound to the conditions of credit set Bear Industries guarantee that notarized affidavit of secretary was treasurer attached to as The credit P l was application the behalf of signed by guarantee 5 by Further the Cass Moore who stated that LeBlanc executed the the petition correct amount contained the executed correctness as sought in the petition and the itemized petition 5 a to personal Moore also stated that the statement of account owed following P 2 attached consideration company I the of credit being conditions of credit in the clause unconditionally continuing guaranty agreement INDUSTRIES any purchase The personal guarantee extended to the above referenced I and the company agree to pay BEAR INC 1 V2 not accounts turned paid per month not to exceed 18 per year interest on within 30 days and 25 attorney s fees on any delinquent over to an also attorney for collection provided in the clause signed by Landry The undersigned agrees and understands that is sic there is any default if sic the undersigned payment by the above named credit applicant shall be responsible or personally liable for said account and expressly guarantor waives the requirement or personal notice of non payment demand dishonor or non performance The undersigned guarantor further agrees to be fully bound to non the Conditions of Credit attorney as above set forth fee provisions 7 the signed by undersigned in my individual capacity do jointly and severally guarantee and personally promise to pay all indebtedness accrued under this to Bear Industries and the balance Landry In of forth in the credit application including all late charges and attorney fee provisions record contained a 37 977 72 on Pursuant to the terms of the 2007 PI correct statement The latter document contains the Personal Guarantee Nature Matters amount petition including all late charges and owed as to Bear Industries at the individual accurate 6 2007 attached to the time he executed the affidavit Cass also identified Pursuant La C C art 1908 to to the obligation of the Since this is and C l B under the required 2 that defendants from suit on a that the or states May Bear 24 Industries 2007 to an or agreement by extinguished synallagmatic when the obligation of each party is La obligation to C CP through July completed its obligations Request for Admissions 6 2007 which was have been owed 5 default judgments against the other defendants to the to of the valued Request for Admissions of Fact No sums 1702A art provided limestone materials August record also July other conventional Industries established that these 2007 so established pursuant was And pursuant 37 977 72 created modified that Bear Industries establish that it This contract Fact No a are A contract is bilateral parties obligate themselves reciprocally correlative A contract is provides parties whereby obligations or more and the affidavit of correctness Louisiana Civil Code article 1906 two 24 2007 unpaid invoices dated between May 4 at Bear petitioner since Since the record demonstrates that Bear Industries also obtained establishes the underlying default Nature Matters and necessary to Landry the enforce LeBlanc s guarantee LeBlanc also an applicant asserts as error that the who would have had petition inaccurately referred primary liability for We conclude that any minor inaccuracies in the the Credit Application Guaranty were itself 8 Nature Matters petition referencing the clarified by to her as debts terms of the terms of the document The Industries and petition due as 2008 confirmation of default January 9 against LeBlanc is in accordance with what and the amount of damages awarded is the III prima facie judgment All costs on our case demanded in the amount proven to be properly CONCLUSION review of the record that assessed we supported the January rendered in its favor are was in favor of Bear La C C P art 1703 the remedy Based judgment Accordingly against appellant Tira AFFIRMED 9 find Bear Industries established 9 we a 2008 confirmation of default affirm the trial M LeBlanc court s judgment

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