Cavalier v. Nelson

• Court: Court of Appeal of Louisiana
• Writing for the Court: Before CHEHARDY; CHEHARDY
• Citation: Cavalier v. Nelson, 532 So.2d 899 (La. App. 1988)
• Decision Date: 12 October 1988
• Docket Number: No. 88-CA-268,88-CA-268
• Parties: Darryl J. CAVALIER v. David L. NELSON. 532 So.2d 899

Page 899

532 So.2d 899

Darryl J. CAVALIER v. David L. NELSON.

No. 88-CA-268.

532 So.2d 899

Court of Appeal of Louisiana Fifth Circuit.

Oct. 12, 1988.

Rehearing Denied Nov. 17, 1988.

A. Gerald Pelayo, New Orleans, for plaintiff-appellant.

James F. Quaid, Metairie, for defendant-appellee.

Before CHEHARDY, C.J., and KLIEBERT and GRISBAUM, JJ.

CHEHARDY, Chief Judge.

Darryl Cavalier appeals a judgment that annulled a default judgment he obtained against David L. Nelson in a suit for breach of a real estate purchase agreement. In the original suit, filed on August 19, 1986, Cavalier alleged Nelson had breached the purchase agreement by failing to deposit the earnest money required under the contract. Cavalier sought to recover the agent's commission he would have received had the sale been confected.

After Nelson received personal service of Cavalier's suit, his attorney filed for and was granted an extension of time to answer. Although the extension expired on October 27, 1986, no answer was ever filed. Appearing in proper person, Cavalier entered a preliminary default on November 24, 1986. On December 17, 1986, he confirmed the default in open court, obtaining a $5,500 judgment against Nelson.

On February 9, 1987, Nelson filed a pleading entitled "Motion for New Trial and/or Action of Nullity," in which he alleged various procedural and substantive defects in the default proceeding. On April 1, 1987, the district court ruled in Nelson's favor, annulling the default judgment and granting the motion for new trial. Finding that Cavalier's failure to indicate on the motion for preliminary default whether Nelson had been served by personal or domiciliary service was fatal to the validity of the judgment, the court declined to address the other issues raised by Nelson.

Cavalier sought a new trial on the ground that LSA-C.C.P. art. 1702.1, cited by the court, applied only to default judgments in suits on open account. On January 13, 1988, the court rendered judgment, again annulling the default judgment. At Cavalier's request the court issued lengthy written reasons, ruling separately on each of Nelson's allegations regarding defects in the default proceedings.

The court reaffirmed its prior finding that Cavalier's failure to indicate type of service on the motion for preliminary default was a fatal defect. It also held there was insufficient evidence to support the default judgment because no transcript of the confirmation hearing could be obtained. However, it ruled Cavalier had committed no fraud or ill practice and found no merit to Nelson's allegations that some of the pleadings were defective in form.

As an additional defect in the default proceeding, the court pointed out that the record contained no proof that Nelson was not in military service--Cavalier had filed no affidavit of nonmilitary service and, as mentioned above, a transcript of the default hearing could not be obtained. Finally, the court found no merit to Nelson's argument that the default was defective because it was taken more than three days after the motion for preliminary default was granted. The court stated this allegation was a misunderstanding by Nelson of the requirements of LSA-C.C.P. art. 1702(C).

Cavalier has appealed. Stated succinctly, the issue on appeal is whether the defects pointed out by the trial judge are sufficient ground to annul the judgment.

LSA-C.C.P. art. 2002(2) states a final judgment shall be annulled if it is rendered "[a]gainst a defendant * * * against whom a valid judgment by default has not been taken * * *." Accordingly, we must determine whether the errors alleged by Nelson, if proven, are sufficient to make the default judgment invalid and therefore to warrant annulment of it.

The first ground for annulment cited by the court was Cavalier's failure to indicate on the motion for preliminary default whether service was personal or domiciliary. The court relied on LSA-C.C.P. art. 1702.1 in finding this a defect.

LSA-C.C.P. art. 1702 provides that a demand based upon a conventional obligation may be confirmed upon affidavits and exhibits alone if these establish a prima facie case, leaving it to the court's discretion whether to require additional evidence in the form of oral testimony. Article 1702.1 requires that to confirm a default judgment without a hearing in open court, the plaintiff must include a certificate indicating, among other things, the type of service made on the defendant.

Article 1702.1 does not apply in this case, however. Although Cavalier could have used that method, because his demand is based on a conventional obligation, he did not. Instead he confirmed the default judgment in the traditional way, by presenting testimony in open court. LSA-C.C.P. art. 1701 provides that judgment by default (commonly known as a "preliminary default") may be obtained by oral motion in open court or by written motion mailed to the court. This preliminary default consists merely of an entry in the minutes of the court and must be confirmed by ...