Darrel P. St. Pierre, d/b/a P & L Towing, Inc. VS Jambon & Associates and Josh J. Jambon
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT C NUMBER 2010 CA 0320 DARREL P ST PIERRE D A PL TOWING INC B Ed 9 JAMBON ASSOCIATES LLC AND JOSH J JAMBON Judgment Rendered October 29 2010 Appealed from the Seventeenth Judicial District Court In and for the Parish of Lafourche State of Louisiana Docket Number 109781 The Honorable John E LeBlanc Judge Presiding David W Ardoin Thibodaux LA Counsel for Plaintiffs Appellees Darrel P St Pierre and P L Towing Inc Machale A Miller Counsel for Defendant Appellant I Matthew Williamson Jambon Associates LLC Iliaura Hands New Orleans LA BEFORE WHIPPLE McDONALD AND McCLENDON JJ WHIPPLE J This matter is before us on appeal by defendant Jambon LLC hereinafter Jambon Associates from a judgment rendered on confirmation of default in favor of plaintiff PL Towing Inc hereinafter PL For the following reasons we vacate the judgment and remand to the trial court for further proceedings FACTS AND PROCEDURAL HISTORY On July 18 2008 PL filed a Petition on Open Account and for Breach of Contract naming Jambon as a defendant Therein PL contended that Jambon failed to make payments due in connection with Jambon lease of a s barge from PL in 2006 Accordingly PL sought judgment for the unpaid balance on Jambon account in the amount of 87 as well as legal s 25 178 interest attorney fees and costs On August 20 2008 Jambon was personally s served with notice of the suit through its registered agent for service Josh J Jambon Jambon failed to answer the suit On September 30 2008 PL filed a motion for preliminary default which was signed by the trial court on October 3 2008 On December 18 2008 the matter was heard before the trial court After receiving testimony and evidence the trial court confirmed the preliminary default and rendered judgment in favor of PL but in the amount of 81 plus legal interest and costs A written 75 379 judgment in accordance with the trial court ruling was signed by the trial court s on December 19 2008 On December 29 2008 Jambon filed a motion for new trial which was denied by the trial court after a hearing on November 3 2009 A judgment denying the motion for new trial was signed by the trial court on December 8 2009 Jambon then filed the instant suspensive appeal from the December 19 2008 judgment assigning the following as error N 1 The evidence presented by PL at the confirmation hearing on December 18 2008 was insufficient to justify and support the confirmation judgment because that evidence did not present a prima facie case against Jambon 2 The trial court committed a legal error by concluding that charter hire continues after a vessel is returned by the charterer to the owner and an off charter survey performed until repairs are made and 3 The trial court committed error in failing to annul the preliminary and confirmation default judgments and in failing to grant Jambon s motion for a new trial After the appeal was lodged and the matter docketed all parties jointly requested that this court grant the appeal of Jambon Associates L C However the parties also jointly requested that this court vacate the judgment rendered in this matter on December 19 2008 and remand the case to the district court for further proceedings upon representing to the court that all parties agree that insufficient evidence to sustain the judgment was submitted below and that the appeal should therefore be granted DISCUSSION Confirmation of a default judgment is similar to a trial and requires with admissible evidence proof of the demand sufficient to establish a prima facie case LSAC art 1702 In order to confirm a default judgment when the P C A 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 LSA C art 1702 P 3 B In order to confirm a default judgment when a demand is based upon a conventional obligation 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 However the court may under the circumstances of the case require additional evidence in the form of oral testimony before entering judgment 1 B 1702 3 LSA C P art The elements of a prima facie case must be established with competent evidence as fully as though each of the allegations in the petition were denied by the defendant Arias v Stolthaven New Orleans L 20081111 La 5 C 09 9 So 3d 815 820 A plaintiff seeking to confirm a default must prove both the existence and the validity of his claim Moreover a default judgment cannot be different in kind from what is demanded in the petition and the amount of damages must be proven to be properly due LSAC art 1703 P C When reviewing a default judgment an appellate court is restricted to a determination of the sufficiency of the evidence offered in support of a default judgment Grevemberg v G Strategic Forecasting Group Inc 20060766 A P La App V Cir 2 959 So 2d 914 918 When a default judgment recites 07 9 that the plaintiff has produced due proof in support of his demand and that the law and evidence favor the plaintiff and are against the defendant there is a presumption that the default judgment has been rendered upon sufficient evidence to establish a prima facie case and is correct and the appellant has the burden of overcoming that presumption Grevemberg v G Strategic Forecasting A P Group Inc 959 So 2d at 918 However that presumption does not apply where as here the testimony is transcribed and is contained in the record Grevemberg v G Strategic ForecastingGroup Inc 959 So 2d at 918 In such a case the A P reviewing court must determine from the record whether the evidence on which the judgment is based was sufficient and competent Bates v Legion Indemnity Company 2001 0552 La App I Cir 2 818 So 2d 176 179 02 27 Accordingly no presumption of correctness would apply herein if we were to determine the merits of the appeal Instead this court would be required to review the record and determine whether the evidence upon which the judgment M is based was sufficient and competent Bates v Legion Indemnity Company 818 So 2d at 179 DISPOSITION OF THE APPEAL Pursuant to LSA C art 1972 a motion for new trial shall be granted P upon contradictory motion of any party when the verdict or judgment appears clearly contrary to the law and the evidence In addition a discretionary ground for a new trial is set forth in LSAC art 1973 which authorizes the court P C to grant a new trial in any case if there is good ground for it Guidry v Millers Casualty Insurance Company 2001 0001 La App 1 Cir 6 822 So 2d 02 21 675 680 Generally the court discretion in ruling on a motion for new trial is s great and its decision will not be disturbed on appeal absent an abuse of that discretion Moran v G G Construction 2003 2447 La App l Cir 04 29 10 897 So 2d 75 83 writ denied 20042901 La 2 894 So 2d 05 25 1148 The proper vehicle for a substantive change in a judgment is a timely motion for a new trial or a timely appeal Avants v Kennedy 2002 0830 La App I Cir 12 837 So 2d 647 653 654 writ denied 2003 0203 02 20 La 4 840 So 2d 1215 citing LaBove v Theriot 597 So 2d 1007 1010 03 La 1992 Further the Louisiana Supreme Court has also recognized that on The petition filed by P L herein was for a suit on open account and for breach of contract Specifically the petition alleged that Jambon and PL entered into a contract in 2006 through which Jambon leased Barge BWS104 from PL The petition further alleged that on October 4 2006 Barge BWS104 was damaged when it struck a bridge piling in Lafourche Parish while being operated by Jambon PL contended that pursuant to the contract Jambon was required to return the barge in the same condition it was in prior to its lease PL further contended that Jambon had agreed that PL would advance the costs of repair which would be invoiced along with the contracted daily rate Finally PL contended that Jambon had failed to comply with the terms as agreed upon had failed to make payments on account when due and was in default At the confirmation hearing PL essentially relied upon the testimony of Darrel St Pierre the owner and operator of PL and documents identified by him Thus PL sought judgment for the balance due on the account plus attorney fees and costs s 5 its own motion and with the consent of the parties the trial court may amend a judgment substantively LaBove v Theriot 597 So 2d at 1010 In the matter before us the parties have specifically agreed that the default judgment was based on evidence which they now agree is legally insufficient to sustain the judgment rendered below Given the procedural posture of this case and the unusual nature of the joint motion urging us to grant the appeal but to vacate the judgment by consent and remand for further proceedings including presumably a new trial this court invited the trial court to file a per curiam in regard to the parties request In response the trial court expressed no opposition to the motion stating as follows This Per Curiam is being submitted in response to a request from the First Circuit in the above referenced matter After a phone conference with counsel for both parties and in consideration of the Joint Motion to Grant Appeal Vacate Judgment and Remand the matter for further proceedings this Court has no opposition to the joint motion The record is on appeal and therefore I am unable to review the evidence However I am satisfied that if the parties agree that the evidence was insufficient then the appeal should be granted judgment vacated and the matter remanded to this Court to be set for trial upon issue being joined It is well settled that courts will not decide abstract hypothetical or moot controversies or render advisory opinions with respect to controversies Cases submitted for adjudication must be justiciable and ripe for decision A justiciable controversy is one presenting an existing actual and substantial dispute involving the legal relations of parties who have real adverse interests A justiciable controversy is thus distinguishable from one that is moot Further jurisdiction once established may abate if a case becomes moot inasmuch as the controversy must exist at every stage of the proceedings including appellate stages See In re E 20091589 La App lst Cir 5 W 10 7 38 So 3d 1033 1036 1037 0 As an appellate court we are not empowered to render an advisory opinion on the merits or lack thereof of an appeal premised on the legal sufficiency of the evidence upon which the lower court judgment was based where as here s the parties have jointly represented to this court that the evidence submitted below was legally insufficient Thus in accordance with the above cited precepts and considering the joint motion of the parties and the trial court per curiam we s pretermit a decision on the merits of the assignments of error vacate the judgment at issue on appeal and remand for further proceedings as requested by the parties CONCLUSION For the above and foregoing reasons the December 19 2008 judgment of the trial court is vacated Costs of this appeal are assessed equally to the parties pursuant to LSAC art 2164 P C JUDGMENT REMANDED VACATED PROCEEDINGS 7 FOR FURTHER
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