HUGHES, J.
This is an appeal from a default judgment in a suit on a contract. For the reasons that follow, we reverse.
This action was filed in the Plaquemine City Court by pro se plaintiff Gerald J. Dupont on July 30, 2008. In his handwritten petition, Mr. Dupont alleged that on March 3, 2008 he signed an agreement with Gerald Cannella, Jr., in which Mr. Cannella agreed to excavate and remove dirt from Mr. Dupont's property "at $l°7yard for 30,000 (plus) yards of dirt." Mr. Dupont further alleged that he had received three payments: (1) $9,940 on April 24, 2008; (2) $7,895 on May 28, 2008; and (3) $520 on July 16, 2008. Mr. Dupont stated that these three payments total $18,355, "leaving a balance of $11,645.00 unpaid." Mr. Dupont also alleged that Mr. Cannella "left the pond in terrible condition." He sought to recover the alleged unpaid balance "plus cleanup and proper shaping of the ponds [sic]."
Attached to the petition was a typed document, dated March 3, 2008, and entitled
The document also contained signatures purporting to be those of Gerald J. Dupont and Gerald Cannella, Jr.
A second typed document was attached to the petition, which was styled as a letter, dated July 10, 2008, and bearing the letterhead of "Corrent's Trucking, LLC." The letter was directed to Gerald Dupont and stated, in pertinent part:
The letter was signed by "Latrell Corrent" on behalf of Corrent's Trucking, LLC ("Corrent's Trucking") and Bucky's Trucking, LLC ("Bucky's Trucking").
Both Gerald Cannella, Jr. and Corrent's Trucking were named as defendants. Personal service was made on Mr. Cannella, as stated in a service return filed in the record; however, the date of service was not recorded (though it was noted that the citation had been issued July 30, 2008). Citation was also issued, on the same date, for Corrent's Trucking, and the return filed in the record shows personal service was made on August 5, 2008, through "Latrell Corrent."
Thereafter, on August 22, 2008, a default judgment
On August 25, 2008 Mr. Cannella and Corrent's Trucking jointly filed exceptions of lack of subject matter jurisdiction and want of amicable demand, which were set for hearing on September 3, 2008. Minutes of the trial court reflect that, on September 3, 2008, the matter was rescheduled to September 24, 2008, due to a hurricane. The September 24, 2008 minutes indicate that a status conference was set for October 29, 2008. The appellate record does not reveal what, if any, action was taken on October 29, 2008.
On November 19, 2008 Corrent's Trucking filed a "Motion for New Trial and Petition for Nullity of Default Judgment." The motion asserted that Corrent's Trucking had not been served with the default judgment, and that pursuant to a trial court order, made during a November 5, 2008 status conference, fifteen days had been allowed by the court for the filing of related motions and memoranda. It was further asserted in the motion that insufficient proof of the plaintiff's claim had been submitted to the trial court, and, for this reason, it was claimed that the default judgment had been improperly granted and a new trial was sought. Corrent's Trucking further petitioned the court to declare the default judgment a nullity, asserting the court lacked subject matter jurisdiction (claiming the contract value exceeded the $25,000 jurisdictional limit of the court) and that certain acts of ill practice had occurred (i.e., that the plaintiff was aware that Corrent's Trucking had not been a party to the contract at issue, that the plaintiff's acceptance of final payment constituted a compromise; and that the plaintiff had terminated the contract and that he was paid for all dirt removed).
A hearing on the Corrent's Trucking motion was subsequently held by the trial court on February 24, 2010. Neither Mr. Dupont, nor anyone representing him, attended the hearing. At the close of the hearing, the matter was taken under advisement by the trial judge. Written reasons were issued by the court on March 17, 2010, stating the opinion of the court that testimony was not required prior to rendition of the default judgment in the case, and that, by means of the plaintiff's "detailed petition and attachments], a [prima facie] case was proven." A judgment was thereafter signed, denying Corrent's Trucking's motion for new trial and/or nullity.
Corrent's Trucking has appealed, urging the trial court erred in: (1) rendering a default judgment when the plaintiff failed to allege or establish a prima facie case against the defendant; (2) failing to find that the default judgment was an absolute nullity due to a lack of subject matter jurisdiction, in that the suit was based on a contract in excess of the $25,000 jurisdictional limit of the court; and (3) failing to find ill practices existed sufficient to render the default judgment a relative nullity, as no allegations were made, nor any facts established, to make the defendant a party to the contract that formed the basis for the plaintiff's claims or to establish that an obligation was owed by Corrent's Trucking to the plaintiff.
The defendant/appellant, Corrent's Trucking, filed a motion with this court, requesting that the appellate record be supplemented with certain service returns, not originally included in the record on appeal. By order of this court, on March 14, 2011, the motion was referred to this panel for disposition. Finding merit in this request, we have granted the motion and obtained the supplementation from the trial court.
On December 15, 2010 this court, ex proprio motu, issued an order directing the parties to show cause why this appeal should not be dismissed, on the following grounds: (1) it appeared from the record that the defendant's request for new trial, as to the August 22, 2008 ruling, was not timely filed, rendering the subsequent appeal untimely; and (2) it was unclear from the record which judgment was appealed. On March 14, 2011 the rule to show cause was referred to this panel for disposition. Our review of the record, along with supplements thereto, reveal that the appeal was timely taken. Therefore, we recall the rule to show cause and maintain the appeal.
At the outset, we note that the defendant's motion for devolutive appeal stated that the defendant desired to appeal from the "final judgment" rendered "on March 17, 2010 on a Motion for New Trial and Petition for Nullity." This description of the judgment appealed presents an ambiguity. The trial court issued written reasons on March 17, 2010, denying the defendant's motions for new trial and for nullity of the default judgment previously rendered on August 22, 2008. However, the trial court did not sign a written judgment, so stating, until June 4, 2011.
A judgment denying a motion for new trial is an interlocutory order, which is appealable only when expressly provided by law pursuant to LSC.C.P. art. 2083(C) (as amended by 2005 La. Acts, No. 205, § 1, effective January 1, 2006); an interlocutory order is not a final, appealable judgment.
In this case, the defendant identified the judgment sought to be appealed as the "final" judgment rendered "on March 17, 2010." The March 17, 2010 date could only have applied to the motion for new trial, and the judgment was not otherwise identified in the language of the motion for appeal. Notwithstanding, the defendant's arguments before this court make it clear that the judgment intended for appeal was the August 22, 2008 default judgment against the defendant,
In a city court, when a defendant fails to answer timely, and the plaintiff proves his case, a default judgment in favor of the plaintiff may be rendered, without the necessity of a prior default.
In the instant case, it appears from the plaintiff's petition that the obligation sued upon was contractual, in part,
It was Mr. Cannella, either personally and/or on behalf of Bucky's Trucking, who agreed to "excavate and remove dirt at a $1.00 per yard taken off of the property referenced above and owned by Gerald J. Dupont." Mr. Cannella also agreed to "pump and dry the pond out prior to excavating . . . [and to] enlarge the perimeter of the pond." The plaintiff, Mr. Dupont, further asserted in his petition that $11,645 was owed to him and had not been paid.
The only evidence offered to show Corrent's Trucking was involved in this contractual relationship was a copy of a letter purportedly written by "Latrell Corrent," whose legal relationship to Corrent's Trucking was not revealed, and which stated, "Enclosed is the final payment for dirt that was removed from your property on Hwy. 1148. All work has been completed as we agreed." This letter, alone, does not prove that Corrent's Trucking was an obligor on the Cannella/Dupont contract. Accordingly, we find the trial court erred in granting a default judgment against Corrent's Trucking.
For the reasons assigned herein, we grant the motion to supplement the record, recall the rule to show cause and maintain the appeal, and reverse the judgment of the trial court, granting a default judgment in favor of Gerald J. Dupont and against Corrent's Trucking, LLC. All costs of this appeal are to be borne by Gerald J. Dupont.
