Triple S Marine, L.L.C. VS Daigle Towing Service, L.L.C.

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1506 TRIPLE S MARINE L C VERSUS DAIGLE TOWING SERVICE L C Judgment Rendered JUL 2 9 2010 w On Appeal from the Sixteenth Judicial District Court In and for the Parish of St Mary State of Louisiana Docket No 119518 Honorable Lori A Landry Judge Presiding David M Thorguson Gerard J Bourgeois Counsel for PlaintiffAppellee Triple S Marine L C Morgan City Louisiana Francis J Lobrano Wm Allen Schafer Counsel for DefendantAppellant Daigle Towing Service L C Belle Chasse Louisiana BEFORE DOWNING GAIDRY AND MCCLENDON JJ McCLENDON J In this suit for damages to a marine vessel the defendant appeals from the rendition of a default judgment in favor of the plaintiff For the following reasons the judgment of the trial court is reversed and the case is remanded for further proceedings FACTUAL AND PROCEDURAL HISTORY On December 18 2008 the plaintiff Triple S Marine L filed a C petition for damages against the defendant Daigle Towing Service L C asserting that defendant was liable to the plaintiff for damages resulting from a marine collision Specifically plaintiff alleged that its employee was operating its vessel the M and moving the Moncla Rig 101 in Bayou Shaffer in VCodyPaul St Mary Parish when defendant employee who was operating defendant s s vessel the M Masson Ray caused the derrick of the rig to hit the top of the V mast of the M Cody Paul V causing extensive damage Defendant was personally served on December 23 2008 and on February 4 2009 a preliminary default was entered On February 13 2009 following a hearing the preliminary default was confirmed Judgment was signed on that date in favor of plaintiff and against defendant in the amount of 24 together with legal interest 13 746 and costs Thereafter on February 25 2009 a motion for new trial was filed by the defendant on the grounds that the judgment was contrary to the law and the evidence Following a hearing on April 28 2009 the motion for new trial was denied and defendant appealed On appeal defendant asserts that the trial court erred in confirming the preliminary default without determining whether the record contained sufficient evidence to prove a prima facie case against the defendant DISCUSSION A judgment by default may be entered against a defendant who fails to answer within the time prescribed by law LSA C art 1701A P Louisiana On March 3 2010 we denied plaintiff motion to dismiss defendant suspensive appeal s s However the appeal was converted to a devolutive appeal because defendant failed to furnish its bond within the delay set by the trial court 2 Code of Civil Procedure article 1702 specifies the procedure and evidence necessary to confirm a default and provides in pertinent part A A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case If no answer is filed timely this confirmation may be made after two days exclusive of holidays from the entry of the judgment of default 2 6 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 which contain facts sufficient to establish a prima facie case shall be admissible selfauthenticating 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 judgment A prima facie case is established when the plaintiff proves the essential allegations of its petition with competent evidence to the same extent as if the Crescent City Const Inc v allegations had been specifically denied Camper 03 1727 p 5 La 1 Cir 12 898 So 408 413 In other App 04 30 2d words a plaintiff must present competent evidence that convinces the court that it is more probable than not that he would prevail in a trial on the merits Signlite Inc v Northshore Service Center Inc 05 2444 p 4 La 1 App Cir 2 959 So 904 906 07 9 2d There is a presumption that a default judgment has been rendered upon sufficient evidence to establish a prima facie case and is correct presumption and appellant has the burden However this presumption does not apply where testimony is transcribed and contained in the record 07 of overcoming that Id 05 2444 at p 4 959 So at 906 2d Because there is a transcript of the testimony in the record before us the presumption of the validity of the confirmation of the default judgment does not apply When reviewing a confirmation of default judgment an appellate court is restricted to determining whether the record contains sufficient evidence to prove a prima facie case Arias v Stolthaven New Orleans L 081111 C p 5 La 5 9 So 815 818 09 3d This determination is a factual one governed by the manifest error standard Id 3 Confirmation of the default judgment is similar to a trial at which the defendant is absent At the hearing on the confirmation of default the rules of evidence generally apply Crescent City Const Inc 03 1727 at pp 5 6 898 2d So at 413 citing 1 Frank L Maraist Louisiana Civil Law Treatise Civil Procedure 3 12 at 452 53 2d ed 2008 Because at a default confirmation there is no objecting party to prevent reversal on appeal both plaintiff and the trial judge should be vigilant to assure that the judgment rests on admissible evidence that establishes a prima facie case Arias 08 1111 at p 7 9 So at 3d 820 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 Arias 081111 at p 7 9 So at 820 citing 19 Frank L Maraist Civil Law Treatise 3d Evidence and Proof 1 at 5 2d ed 2007 Generally hearsay evidence is not admissible evidence LSAC art 802 E Hearsay evidence does not sustain the burden of proving the prima facie case necessary for confirmation of default in such proceedings Const Inc 031727 at p 6 898 So at 413 2d Crescent City Louisiana Code of Evidence article 801C defines hearsay as a statement other than one made by the declarant while testifying at the present trial or hearing offered in evidence to prove the truth of the matter asserted Hearsay is regarded as unreliable because it is based on statements made by persons who are not before the court have not been sworn and are not available for cross examination Id In support of its confirmation of the default judgment Shaun Roberie the vice president and CFO for plaintiff testified at the hearing on behalf of the plaintiff Mr Roberie testified that on the date of the accident the M Cody Pau V was moving a drilling rig to the shore along the bank of Bayou Shaffer Another vessel the M Masson Ray was helping the M Cody Pau move the rig V V When the M Masson Raywas instructed to stop pushing it did not causing the V s rig derrick to hit the top of the M Cody Paul damaging the radar lights horn V 51 and AIS system During Mr Roberie testimony s plaintiff introduced the accident report as well as a statement from Danny Vidrine a crew member on the drilling rig and statements from crew members on the M Cody Paul V Mr Roberie further testified that the cost of repairs to the M Cody Paul V totaled 14 Mr Roberie also stated that the vessel was not useable for 13 746 three days while it was being repaired and that those three days resulted in a loss of revenue of between thirty and thirty hundred dollars per day three five or approximately ten thousand dollars Because it is unclear from the record whether he had firsthand knowledge of the accident the testimony of Mr Roberie fails to establish a prima facie case Further we find the corroborating evidence insufficient The crew members statements were not in affidavit form nor were they or the accident report authenticated or verified in any way Thus absent other competent evidence we conclude that the trial court was manifestly erroneous in finding that plaintiff presented sufficient evidence to establish a prima facie case against the defendant We therefore reverse the decision of the trial court and set aside the default judgment CONCLUSION For the foregoing reasons we conclude that the plaintiff Triple S Marine C L failed to establish a prima facie case that supported the April 28 2009 confirmation of default judgment rendered in its favor and against the defendant Daigle Towing Service L Accordingly the judgment is reversed C and the case is remanded to the trial court for further proceedings Costs of this appeal are assessed to Triple S Marine L C REVERSED AND REMANDED

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