George Kellett & Sons, Inc. v. Lucas & Sons Builders, Arthur Lucas, Darrell Lucas and Shane Lucas

GEORGE KELLETT & SONS, * NO. 2023-CA-0186
INC.
* COURT OF APPEAL
VERSUS
* FOURTH CIRCUIT
LUCAS & SONS BUILDERS,
ARTHUR LUCAS, DARRELL * STATE OF LOUISIANA
LUCAS AND SHANE LUCAS
*******

APPEAL FROM
25TH JDC, PARISH OF PLAQUEMINES
NO. 45-573, DIVISION “B”
Honorable Michael D. Clement,
******
JUDGE SANDRA CABRINA JENKINS
******
(Court composed of Chief Judge Terri F. Love, Judge Sandra Cabrina Jenkins,
Judge Rachael D. Johnson)

Jason R. Anders
ANDERS LAW FIRM, LLC
650 Poydras Street
Suite 1400
New Orleans, LA 70130

COUNSEL FOR PLAINTIFF/APPELLANT

R. A. Osborn, Jr.
OSBORN & OSBORN
1120 Engineers Rd.
Belle Chasse, LA 70037

J. William Starr
ATTORNEY AT LAW
3505 Lake Kristin Drive
Gretna, LA 70056

COUNSEL FOR DEFENDANT/APPELLEE

VACATED AND REMANDED
NOVEMBER 28, 2023

SCJ
TFL
RDJ

George Kellett & Sons, Inc. (“Kellett”) appeals the trial court’s December

22, 2022 judgment, annulling the April 3, 2000 default judgment, and awarding a

judgment in favor of Lucas & Sons Builder, Arthur Lucas, Darrell Lucas, and

Shane Lucas (the “Lucas parties”). The judgment further awarded Darrell Lucas

and Shane Lucas $1,987,344.00 and $2,751,475.01, respectively, for past loss of

income, loss of future income, and general damages. For the reasons assigned, we

vacate the trial court’s judgment of December 22, 2022 and remand this matter to

the trial court for a new trial.

FACTS AND PROCEDURAL HISTORY

This matter involves a claim for nullity of a default judgment obtained by

Kellett. On January 26, 2000, Kellett filed a petition against the Lucas parties,

alleging that they owed $16,529.10 for lumber and building supplies that Kellett

furnished to them.

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On February 29, 2000, Kellett filed a motion for preliminary default

judgment. Thereafter, on April 3, 2000, the trial court signed a default judgment in

favor of Kellett in the amount of $16,529.10, including conventional interest

accruing at a rate of one and one-half percent per month on each overdue invoice

until paid, and twenty-five percent in attorney’s fees.

On January 12, 2001, Kellett filed a supplemental and amending petition,

adding Eugene Buras and Larry Buras (the “Buras defendants”) as defendants.

Kellett alleged that it furnished lumber and building supplies in the amounts of

$10,265.37 and $3,294.64 to Lucas & Sons Builder for the construction of

properties owned by the Buras defendants. The Buras defendants provided

evidence of prior payments to Kellett and were dismissed from the suit with

prejudice.

In 2005, Kellett filed judgment debtor motions, seeking to collect

$16,529.10 from the Lucas parties. On July 25, 2011, Darrell Luas and Shane

Lucas filed a petition for nullity of the April 3, 2000 judgment, alleging that the

judgment was collected against Darrell Lucas, and also collected against Arthur

Lucas through restitution as result of a conviction for contractor fraud. Darrell

Lucas and Shane Lucas further alleged fraud and ill practice against Kellett, and

sought damages and a return of the duplicate funds paid to Kellett.

On December 1, 2022, the trial court held a bench trial, whereas Darrell

Lucas and Shane Lucas appeared for trial and were represented by counsel, and

Kellett was absent and not represented. The trial court signed a judgment on

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December 22, 2022, annulling the April 3, 2000 default judgment, and awarding a

judgment in favor of Darrell Lucas and Shane Lucas in the amounts of

$1,987,344.00 and $2,751,475.01, respectively, for past loss of income, loss of

future income, and general damages.

On January 4, 2023, Kellett filed a motion for new trial. The trial court

denied the motion for new trial on January 6, 2023. On January 19, 2023, Kellett

filed a petition for suspensive appeal. Thereafter, on February 16, 2023, Kellett

filed a motion to convert the suspensive appeal to a devolutive appeal. This appeal

follows.
DISCUSSION

Kellett argues that the trial court erred when it proceeded to trial when

Kellett was unrepresented, and the notice of trial was solely provided to a former

counsel that was ineligible to practice law. Kellett further argues that the trial court

erred when it denied its motion for new trial.1

Notice of Trial

Kellett argues that it was deprived of due process because it was not given

adequate notice of the trial date. Kellett contends that notice was only provided to

its former counsel who was ineligible to practice law.

1 Kellett lists seven assignments of error: 1) the trial court committed reversible error when it

proceeded to trial even though Kellett was unrepresented, and the only notice of trial had been
provided to a former attorney who was ineligible to practice law; 2) the trial court erred by
effectively rendering a default judgment without compliance with the statutory requirements for
default proceedings; 3) the trial court erred when it proceeded to trial without a party it had ruled
was indispensable to the case; 4) the trial court erred when it denied the motion for new trial; 5)
the trial court erred by relying on an expert report that was speculative and unreliable; 6)
plaintiffs-in-reconvention failed to establish that the default judgment, or any action of Kellett,
was the cause-in-fact of their alleged damages; and 7) the damage award to the plaintiffs-in-
reconvention, including general damage award was excessive.

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In LCR-M Limited Partnership v. Jim Hotard Properties, L.L.C., 2013-0483

(La. App. 4 Cir. 10/9/13), 126 So.3d 668, this Court reviewed whether adequate

notice of trial was provided to the defendants prior to conducting trial on the merits

and rendering a judgment in favor of the plaintiff. This Court observed that there

was “no indication in the record (other than the city judge’s written reasons) that

the Notice of Trial was mailed to any counsel” and the record contained an

unserved return on the Notice of Trial which was directed to the defendants’

counsel. LCR-M Limited Partnership, 2013-0483, pp. 3-4, 126 So.3d at 672. The

Court further observed that the plaintiff appeared for trial and was represented, but

the defendants were absent and not represented. Id. at p. 4, 126 So.3d at 672. This

Court provided:

We have previously expressed that adequate notice of trial prior to the
trial is one of the most elementary requirements of procedural due
process. See Chef Menteur Land Co., Ltd. v. Sandrock, [20]11-0497,
p. 9 (La.App. 4 Cir. 10/19/11), 78 So.3d 146, 151 (citations omitted).
“The trial of a case is unquestionably one of the meaningful occasions
at which the parties must be given an opportunity to be heard, and
adequate notice thereof is one of the most fundamental requirements
of procedural due process.” Id.

Id. at p. 5, 126 So.3d 672-73. The Court rejected the plaintiff counsel’s argument

that “the defendants’ counsel’s participation in the trial-date selection process

constitutes adequate notice,” as there were multiple dates jointly selected, and it

was understood that at least one of the parties was required to file a motion to set

for trial to obtain an actual trial date. Id. at p. 7, 126 So.3d 673. The Court found

that because the defendants’ due process rights were violated, the trial court should

have granted the defendants’ motion for new trial. Id. at p. 9, 126 So.3d 674.

In the present matter, the trial court issued a scheduling order on March 21,

2022, directing that all counsel of record be served by certified mail. The record

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provides that notice of trial was issued on March 22, 2022, to all counsel of record,

including Kellett’s former counsel, Mr. F Victor Hastings.

Similar to the plaintiff in LCR-M Limited Partnership, the Lucas parties

contend that notice was adequate and proper because Mr. Hastings attended the

pre-trial conference, during which the trial date was selected. We disagree. Like

the defendant in LCR-M Limited Partnership, Kellett was absent and unrepresented

at trial. Further, at trial, the trial court provided:

All right. I need the -- the record to be clear that the defendants in
reconvention did not appear. Their attorney was properly served
and…through research done by this Court, their -- the certified mail
did go to a former address or an address that was listed by the counsel
of record who no longer practices. He is disqualified. He is ineligible
to practice and has been ineligible since June of -- 2019? 2020? I
didn’t write the date down. But, in any event, the service was – was
proper; and, so, this matter is going forward as a default proceeding.

There is no indication in the record that notice of trial was issued directly to

Kellett. “[A]dequate notice of trial prior to the trial is one of the most elementary

requirements of procedural due process.” LCR-M Limited Partnership, 2013-0483,

p. 5, 126 So.3d at 672 (citing Chef Menteur Land Co., Ltd., 2011-0497, p. 9, 78

So.3d at 151). Accordingly, we find that Kellett’s procedural due process rights

were violated as it relates to notice of trial.

Motion for New Trial

Next, we address the trial court’s denial of Kellett’s motion for new trial. A

new trial should be ordered “[w]hen the trial judge is convinced by his examination

of the facts that the judgment would result in a miscarriage of justice.” Pitts v.

Louisiana Med. Mut. Ins. Co., 2016-1232 (La. 3/15/17), 218 So. 3d 58, 65.

Pursuant to La. C.C.P. art. 1972(1), “[a] new trial shall be granted… [w]hen the

verdict or judgment appears clearly contrary to the law and the evidence.” An

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appellate court reviews a trial court’s ruling on a motion for new trial under an

abuse of discretion standard. FIE, LLC v. New Jax Condo Ass’n, Inc., 2016-0843,

p. 22 (La. App. 4 Cir. 2/21/18), 241 So. 3d 372, 391.

As noted by the trial court, Kellett was not present for trial and its counsel

was ineligible to practice law. A “fundamental requirement of due process in any

proceeding which is to be accorded finality is notice reasonably calculated under

all circumstances, to apprise interested parties of the pendency of the action and

afford them an opportunity to present their objections.” Cmty. Assocs., Inc. v.

Taylor, 2019-0242, p. 6 (La. App. 4 Cir. 7/31/19), 364 So. 3d 1, 5 (quoting Cent.

Properties v. Fairway Gardenhomes, LLC, 2016-1855, p. 8 (La. 6/27/17), 225

So.3d 441, 447). In light of finding that Kellett’s due process rights were violated,

we find that the trial court abused its discretion in denying Kellett’s motion for

new trial.

CONCLUSION

For these reasons assigned, we vacate the trial court’s December 22, 2022

judgment and remand this matter to the trial court for a new trial.

VACATED AND REMANDED

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