ASAP Court Reporting Services, Inc. VS Daniel G. Abel
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 0784 v L ASAP COURT REPORTING SERVICES INC VERSUS DANIEL G ABEL 7udgment Rendered DEC 2 8 7 117 On Appeal from the Twenty Judicial District Court Second In and for the Parish of St Tammany State of Louisiana No 2011 12757 Honorable Peter J Garcia udge Presiding Charles M Hughes Jr Counsel for Plaintiff Appellee Gary L Hanes Mandeville Louisiana ASAP Court Reporting Services Inc Daniel G Abel Appellant Defendant In Proper Person Metairie Louisiana BEFORE WHIPPLE McCLENDON AND HIGGINBOTHAM JJ Vu i i UJ tS C Y t l McCLENDON J Defendant seeks review of a confirmed default judgment entered against him For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY On May 13 2011 ASAP Court Reporting Services Inc ASAP filed a suit on open account naming attorney Daniel G Abel as a defendant ASAP alleged that Abel was indebted to it in the amount of 6 representing the 40 339 amount owed for court reporting services it provided to the defendant In its petition ASAP alleged that it had previously sent written notice of the amount due along with demand for payment via certified mail to defendanYs last known address The notice which was attached to ASAP petition was returned by the s S U Postal Office marked refused at front desk Also attached to the petition was a sworn a from Cindy Smith ASAP office manager attesting to the davit s veracity of the facts plead in the petition Defendant was personally served with the petition on May 25 2011 On June 1 2011 defendant submitted a facsimile filing to the district court seeking an extension until July 1 2011 to file responsive pleadings to s ASAP suit on open account Defendant however never filed the originai pleading into the record or paid the filing fee for this service On August 4 2011 ASAP filed a Motion for Entry of a Preliminary Default On August 8 2011 the district court entered a preliminary default On December 15 2011 ASAP filed a Motion for Confirmation of Default Judgment ASAP attached the following exhibits to its motion An affidavit from Ms Smith attesting to and verifying the factual information supportive of the lawsuit along with an invoice detailing the services rendered and amount due Photocopies of the certified mail envelope for the demand letter and related documentation Photocopies of an email exchange between defendant and ASAP s s counsel office in which defendant informally acknowledged receipt of the notice of the amount due and indicated that a formal response would be filed soon A photocopy of defendant sfacsimile motion for extension of time 2 Certification of the Clerk of Court that personal service had been effected on defendant a preliminary default had been entered and no answer or other opposition was filed on defendant behalf s Record of entry of preliminary default and Photocopies of the certified mail envelope wherein a courtesy copy of the request for preliminary default was mailed to defendant along with related documentation On December 19 2011 the district court signed a written judgment in conformity with ASAP prayer for relief Defendant has filed a devolutive appeal s to seek review of the district court judgment s DISCUSSION If a defendant in the principal or incidental demand fails to answer within the time prescribed by law judgment by default may be entered against him The judgment may be obtained by orai motion in open court or by written motion mailed to the court either of which shall be entered in the minutes of the court but the judgment shall consist merely of an entry in the minutes LSA P C art 1701A A judgment of default must be confirmed by proof of the demand sufficient to establish a p facie case ima 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 LSA art 1702A P C When the sum due is on an open account an affidavit of the correctness thereof shall be prima facie proof P C LSA art 3 17026 In those proceedings in which the sum due is on an open account a hearing in open court shall not be required unless the judge in his discretion directs that such a hearing be held The piaintiff shall submit to the court the proof required by law and the original and not less than one copy of the proposed final judgment The judge shall within seventy hours of receipt of such submission from the two clerk of court sign the judgment or direct that a hearing be held The clerk of court shall certify that no answer or other pleading has been filed by the defendant The minute clerk shall make an entry showing the dates of receipt of proof review of the record and rendition of the judgment A certified copy of 3 the signed judgment shall be sent to the plaintiff by the clerk of court LSA P C art 1702C Under LSA art 1702B P C 3the a of correctness refers to the davit validity of the account i correctness of the sum due This provision does e the away with the necessity of taking testimony in order to establish the validity of the account The existence of the claim however is supported by a statement of the account or invoices Thus in order to establish both the existence and the validity of a demand for a sum due on an open account it is necessary for a plaintiff to present evidence of the account itself and an affidavit or testimony to its correctness attesting Sessions Fishman v Liquid Air Corp 616 2d So 1254 1258 La 1993 Louisiana courts have consistently interpreted the proof required to confirm a default judgment when the sum was due on an open account as requiring a statement of account or invoices and an affidavit certifying the correctness thereof Id We note that ASAP based on the record before us met the requirements for entry of a preliminary default judgment and subsequent confirmation of that judgment On appeal defendant does not specifically allege that any of the requirements for entry of default judgment were not met Rather the defendant alleges that ASAP misled the court by suggesting that there was no communication between the parties and providing material facts in its affidavits that were not true Defendant contends that the courYs confirmation of the default arose from these misrepresentations Defendant is attempting to collaterally attack the court judgment on s appeal with claims of misrepresentation in the confirmation proceedings A collateral attack is defined as an attempt to impeach a decree in a proceeding not instituted for the express purpose of annulling it Salles v Sailes 04 1449 pp 7 La 1 Cir 12 928 So 1 5 A judgment rendered by a 8 App 05 2 2d Court of competent jurisdiction imparts absolute verity and has the force of things adjudged unless and until it is set aside in a direct action of nullity It cannot be collaterally attacked Salles 04 at p 8 928 So at 5 1449 2d 6 4 Accordingly there being no action for nullity pursuant to LSA art 2004 P C we find no error in the default judgment rendered by the trial court See Marie v Doucette 328 So 805 808 La 1 Cir 1976 2d App CONCWSION For the foregoing reasons the December 19 2011 judgment of the trial court is affirmed Costs of this appeal are assessed to defendant Daniel G Abel AFFIRMED 5
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