Springwood Homeowner's Association, Inc. v. Michelle Gutherie-Brown

SPRINGWOOD * NO. 2024-CA-0202
HOMEOWNER'S
ASSOCIATION, INC. *
COURT OF APPEAL
VERSUS *
FOURTH CIRCUIT
MICHELLE GUTHERIE- *
BROWN STATE OF LOUISIANA
*******

APPEAL FROM
25TH JDC, PARISH OF PLAQUEMINES
NO. 68-401, DIVISION “B”
Honorable Michael D. Clement
******
Judge Joy Cossich Lobrano
******
(Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge
Dale N. Atkins)

George R. Ketry, Jr.
KETRY LAW FIRM LLC
19524 Highway 36
Covington, LA 70433

COUNSEL FOR DEFENDANT/APPELLANT

VACATED AND REMANDED

NOVEMBER 19, 2024

JCL
This is an appeal from a default judgment rendered in an action to collect
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unpaid homeowner’s association assessments and late fees. Defendant/appellant,
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Michelle Gutherie-Brown (“Gutherie-Brown”), appeals the October 26, 2023

default judgment of the district court in favor of plaintiff/appellee, Springwood

Homeowner’s Association, Inc. (“Springwood”). For the reasons that follow, we

vacate the default judgment and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On September 5, 2023, Springwood filed a Petition for Delinquent

Assessments alleging that Gutherie-Brown is indebted to Springwood in the

amount of $8,573.50 for homeowner’s association dues and late fees accrued as of

April 2, 2023, together with unpaid assessments accrued thereafter, interest,

reasonable attorney’s fees, and costs. The petition alleges that Gutherie-Brown

owns property located in Plaquemines Parish that is subject to Springwood’s

Covenants, Building Restrictions, By-Laws, and Declarations, which provide for

yearly homeowner’s dues, late fees, reasonable attorney’s fees, and all costs of

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collection, plus interest at the maximum legal rate from the date each assessment is

due and payable until paid. According to the petition, yearly assessments are

currently $350.00, and a late fee of $25.00 is charged if the assessment is not paid

monthly. The petition states that Springwood filed a lien in the records of

Plaquemines Parish and requests that the lien be recognized as valid by the district

court.

On October 23, 2023, Springwood filed in the district court a “LA CCP 1702

Certification” stating that Gutherie-Brown was personally served with the petition

on September 8, 2023, and that since that time more than 15 days passed and

Gutherie-Brown failed to answer the petition or make any appearance. The

Certification also states that on October 11, 2023, counsel for Springwood

provided notice to Gutherie-Brown by regular mail and certified mail that

Springwood intended to obtain a default judgment. According to the Certification,

Springwood argues that it will be able to prove the following:

1. Springwood filed a lien affidavit against Gutherie-Brown in the
amount of $6,823.95 for delinquent dues;

2. as of April 1, 2023, Gutherie-Brown owed $8,573.50 to Springwood
for unpaid dues and late fees;

3. on June 8, 2023, Springwood’s attorney sent Gutherie-Brown
correspondence requesting payment;

4. on August 30, 2023, Springwood filed a second lien affidavit in the
amount of $8,473.50 for unpaid dues and late fees; and

5. on August 30, 2023, a Notice of Filing Suit was filed against
Gutherie-Brown.

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Attached to the Certification, Springwood filed the following exhibits into

the record:

1. notice of service of the petition, showing personal service on
Gutherie-Brown on September 8, 2023;

2. October 11, 2023 correspondence from Springwood’s attorney to
Gutherie-Brown stating that Springwood intends to obtain a default
judgment;

3. lien affidavit of Mike Perreira, as treasurer of Springwood, notarized
on September 28, 2018, in the amount of $6,823.95, as of September
19, 2018, assessed against “Michelle Guthrie Brown” and “Robin
Guthrie Brown”;

4. “Account History” of “Springwood Estates HOA” stating a balance
due of $8,573.50 in dues and late fees from 2014 to April 1, 2023;

5. June 8, 2023 correspondence from Springwood’s attorney to
Gutherie-Brown seeking payment of $8,573.50 within thirty days;

6. lien affidavit of Natasha Roberts, as treasurer of Springwood,
notarized on August 29, 2023, in the amount of $8,473.50, as of April
2, 2023, assessed against “Michelle Gutherie Brown” and “Robin
Gutherie Brown,” accompanied by Plaquemines Parish Recording
Page filed for registry on August 30, 2023; and

7. Notice of Filing Suit accompanied by Plaquemines Parish Recording
Page filed for registry on August 30, 2023.

The minutes of the district court indicate that on October 26, 2023, the

district court considered the matter “on motion” of Springwood’s attorney. No

transcript of the proceeding was taken, and the record does not reflect that

Springwood appeared in open court in support of a request for default judgment.

On October 26, 2023, the district court rendered a default judgment in favor of

Springwood and against Gutherie-Brown in the amount of $8,573.50, together with

legal interest from the date each assessment was due until paid, plus attorney’s fees

of $2,829.26 or 33 1/3% percent of the principal, whichever is greater, and all costs

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of collection, together with legal interest on said attorney’s fees and costs from the

date of judgment until paid.

On December 24, 2023, Gutherie-Brown filed a motion for devolutive

appeal, and the district court signed the order granting the devolutive appeal on

December 28, 2023.

Thereafter, the district court minutes reflect that on March 7, 2024,

Springwood and Gutherie-Brown appeared in court on a motion for examination of

the judgment debtor. The court held a pretrial conference, and Gutherie-Brown

requested that the district court judge recuse himself. On March 12, 2024, the

district court judge rendered an order recusing himself, stating that he resides in

Springwood and is a member of the homeowner’s association.

LAW AND ANALYSIS

On appeal, Gutherie-Brown raises two assignments of error, arguing that the

district court erred in the following respects:

1. “when it did not immediately recuse itself following the
allotment of this case”; and

2. “when it granted a default judgment that did not
[conform] to the law based on a La. C.C.P. Art. 1702
Certification that was in error.”1

Recusal

In first addressing recusal, we cannot discern any remedy available to

Gutherie-Brown. Even though the district court judge did not recuse himself before

entering the default judgment, Louisiana law sets forth no provision invalidating

1 Springwood did not file a brief or otherwise take any action in opposition to this appeal.

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his judicial actions before he entered the order of recusal. Instead, “the power and

authority [...] to act as judge in a particular case for any and all reasons ceases at

the moment of recusal.” Marts v. Khan, 22-20, p. 2 (La. App. 5 Cir. 6/15/22), 344

So.3d 224, 225 (quoting Revere v. Strain, 02-0254, p. 2 (La. App. 1 Cir. 12/31/02),

837 So.2d 137, 138; Acadian Heritage Realty v. City of Lafayette, 425 So.2d 388,

391 (La. App. 3d Cir. 1982)). “Any action taken by a recused judge is an absolute

nullity.” Tatum v. Orleans Par. Sch. Bd., 04-1190, p. 3 (La. App. 4 Cir. 1/26/05),

894 So.2d 1180, 1181 (quoting State v. Price, 274 So.2d 194, 197 (La. 1973)).

Former La. C.C.P. art. 153 (2020) explicitly provided that “[u]ntil a judge

has recused himself, or a motion for his recusation has been filed, he has full power

and authority to act in the cause.” In 2021, the Louisiana legislature renumbered

and amended La. C.C.P. arts. 151 et seq. to revise the procedure for recusal of

judges, and the language of former Article 153 was not maintained. Notably,

however, a similar provision remains in the Code of Criminal Procedure. Under

La. C.Cr.P. art. 673, “[a] judge has full power and authority to act, even though a

ground for recusal exists, until he is recused, or a motion for his recusal is filed.”

Gutherie-Brown cites to no authority, and we find none, that provides any recourse

for the district court judge’s entry of the default judgment before his recusal. We,

thus, find no merit in this assignment.

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Default Judgment

Turning to the merits of the default judgment, however, we find that the

district court erred in finding that Springwood established a prima facie case, and

satisfied the procedural requirements, entitling it to a default judgment. “In

reviewing default judgments, the appellate court is restricted to determining the

sufficiency of the evidence offered in support of the judgment.” Arias v. Stolthaven

New Orleans, L.L.C., 08-1111, p. 5 (La. 5/5/09), 9 So.3d 815, 818. “This

determination is a factual one governed by the manifest error standard of review.”

Id. We, therefore, review the default judgment “to determine whether the trial

court’s ‘finding of fact ... is clearly wrong in light of the record reviewed in its

entirety.’ ” Sarasota, CCM, Inc. v. Supreme Quality Transp., LLC, 23-0658, p. 4

(La. App. 4 Cir. 3/6/24), 385 So.3d 307, 311 (quoting Payphone Connection Plus,

Inc. v. Wagners Chef, LLC, 19-0181, p. 7 (La. App. 4 Cir. 7/31/19), 276 So.3d 589,

594)(other citations omitted).

Procedural Requirements

After service of citation upon a defendant, the defendant must file his answer

within twenty-one days; if the plaintiff files and serves discovery requests with the

petition, the defendant must file his answer within thirty days of service of the

citation and discovery requests. La. C.C.P. art. 1001(A). Nevertheless, “the

defendant may file his answer or other pleading at any time prior to the signing of

a default judgment against him.” La. C.C.P. art. 1002.

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The procedural requirements for a plaintiff to obtain a default judgment are

contained in La. C.C.P. art. 1702.2 If a defendant in the principal or incidental

demand fails to answer or file other pleadings within the time prescribed by law or

by the court, and the plaintiff establishes a prima facie case by competent and

admissible evidence that is admitted on the record, a default judgment in favor of

the plaintiff may be rendered. La. C.C.P. art. 1702(A). “In those proceedings in

which the sum due is on an open account or a promissory note, other negotiable

instrument, or other conventional obligation, … a hearing in open court shall not

be required unless the judge, in his discretion, directs that such a hearing be held.”

La. C.C.P. art. 1702(C). When a plaintiff seeks a default judgment without a

hearing, La. C.C.P. art. 1702.1 imposes additional requirements.3 The article

requires that that the plaintiff:

shall file a written request for default judgment
containing a certification that the suit is on open account,
promissory note, or other negotiable instrument, on a
conventional obligation, or on a check dishonored for
nonsufficient funds, and that the necessary invoices and
affidavit, note and affidavit, or check or certified
reproduction thereof are attached, along with any proof
required by law and a proposed default judgment. . . .

La. C.C.P. art. 1702.1(A). The certification “shall” include: (1) “the type of service

made on the defendant and the date of service”; (2) “a certification by the clerk that

the record was examined by the clerk, including therein the date of the

2 La. C.C.P. art. 1702 was amended by Acts 2023, No. 5, § 1; No. 7, § 1, effective August 1,

2023. A preliminary default is no longer required.
3 The version of La. C.C.P. art. 1702.1 in effect during the relevant period was amended by Acts

2021, No. 174, § 1, and became effective January 1, 2022.

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examination”; and (3) “a statement that no answer or other pleading has been filed

within the time prescribed by law or by the court.” La. C.C.P. art. 1702.1(B).

Gutherie-Brown argues that the district court erred in granting a default

judgment based on a procedurally deficient “LA CCP 1702 Certification.” In this

respect, she identifies one specific issue: that the Certification states that “more

than 15 days have passed, and Michelle Gutherie-Brown has failed to answer the

petition or make any appearance whatsoever”; she argues that the current law

permitted her 30 days after service to file an answer or other responsive pleadings.

Considering that more than 30 days elapsed between service of the petition and

Springwood’s filing of the Certification and exhibits in support of the default

judgment, we cannot say that the Certification’s mere reference to 15 days, as

opposed to 21 or 30 days, is by itself fatal to entry of the default judgment under

these particular facts.4

Nevertheless, our review of the record reveals additional deficiencies, which

preclude Springwood’s entitlement to a default judgment under the particular

record on appeal. These deficiencies implicate both (1) prima facie proof to

support a default judgment and (2) requisite showing to obtain a default judgment

without a hearing under La. C.C.P. art. 1702.1. This Court recently explained that

“the certification under La. C.C.P. art. 1702.1 is separate from the prima facie

proof needed to obtain a default judgment.” Convention Key Cards, LLC v. LMT

Servs., LLC, 23-0709, pp. 8-9 (La. App. 4 Cir. 12/11/23), 382 So.3d 1020, 1027,

4 The record does not reflect that any discovery request was served with the petition to implicate

a thirty-day delay to file the answer.

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opinion vacated and superseded on reh’g (Jan. 22, 2024), writ denied, 24-00227

(La. 4/9/24), 382 So.3d 843.

Article 1702.1 provides the requirements for a plaintiff to obtain a default

judgment, in certain types of cases, without the necessity of appearing for a

hearing. Springwood filed a “LA CCP 1702 Certification” with exhibits, which the

district court seemingly construed as a motion for default judgment and a

certification under La. C.C.P. art. 1702.1, and, consequently, did not require a

hearing. Under Article 1702.1, a plaintiff must file a certification detailing whether

“the suit is on an open account, promissory note, or other negotiable instrument, on

a conventional obligation, or on a check dishonored for nonsufficient funds. . . .”

La. C.C.P. art 1702.1(A). While presumably a claim for delinquent homeowner’s

assessment arises from a contract or conventional obligation, see, e.g., English

Turn Prop. Owner’s Ass’n, Inc. v. Short, 16-0460, p. 8 (La. App. 4 Cir. 11/30/16),

204 So.3d 672, 679, the Certification at issue contains no statement to that effect

and no contract is attached. Moreover, the plaintiff must include the “certification

by the clerk that the record was examined by the clerk, including therein the date

of the examination and a statement that no answer or other pleading has been filed

within the time prescribed by law or by the court.” La. C.C.P. art 1702.1(B). No

certification by the clerk attesting to an examination of the record is included. This

Court holds that La. C.C.P. art. 1702.1 must be strictly construed, and that “the

legislative use of the term ‘shall’ makes clear that a party moving for confirmation

of default judgment must strictly comply with La. C.C.P. Art. 1702.1.” Ernest N.

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Morial New Orleans Exhibition Hall Auth. v. New Limits New Limits, LLC, 16-

0706, p. 8 (La. App. 4 Cir. 4/5/17), 215 So.3d 974, 978.

Prima Facie Case

Moreover, the default judgment is deficient because Springwood failed to

introduce the required prima facie evidence to prevail on its claim: Springwood’s

community documents. Under the Louisiana Homeowners Association Act,

“Community documents” means the articles of
incorporation, bylaws, plat, declarations, covenants,
conditions, restrictions, rules and regulations, or other
written instruments, including any amendment thereto,
by which the association has the authority to exercise any
of its powers to manage, maintain, or otherwise affect the
association property or which otherwise govern the use
of association property.

La. R.S. 9:1141.2(3).

According to Springwood’s petition, Gutherie-Brown’s property is subject to

Springwood’s Covenants, Building Restrictions, By-Laws, and Declarations,

which Springwood alleges provide for the assessments, late fees, and other

associated relief the petition seeks. Springwood seeks enforcement of the

community documents, and its claims arise in contract. See Short, 16-0460, p. 8,

204 So.3d at 679; Childers v. Laurel Lakes Ests. Homeowners’ Ass’n, Inc., 22-

0936, p. 10 (La. App. 1 Cir. 5/24/23), 368 So.3d 1123, 1130.5

5 This Court equated assessments with building restrictions under La. R.S. 9:1141.5(B), which

states that “building restrictions may include the imposition of an affirmative duty, including the
affirmative duty to pay monthly or periodic dues or fees, or assessments for a particular expense
or capital improvement, that are reasonable for the maintenance, improvement, or safety, or any
combination thereof, of the planned community.” Short, 16-0460, p. 8 n. 6, 204 So.3d at 679.
The building restrictions are akin to a contract among the property owners and the developer. Id.
(citing Bordelon v. Homeowners Ass’n of Lake Ramsey, Inc., 04-1115, p. 8 (La. App. 1 Cir.
5/6/05), 916 So.2d 179, 183; Country Club of Louisiana Prop. Owners Ass’n, Inc. v. Dornier,
96-0898, p. 9 (La. App. 1 Cir. 2/14/97), 691 So.2d 142, 147).

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“Our jurisprudence holds that when an obligation is based on a writing,

prima facie proof of the obligation requires introduction of the writing into

evidence.” Sarasota, CCM, Inc., 23-0658, p. 7, 385 So.3d at 313 (quoting Arias,

08-1111, p. 10, 9 So.3d at 822). In setting aside a default judgment entered by a

lower court, the Louisiana Supreme Court held that “a right is nothing without

proof of the juridical act or material fact which it has as its origin.” Arias, 08-1111,

p. 10, 9 So.3d at 822 (quoting Ascension Builders, Inc. v. Jumonville, 262 La. 519,

529, 263 So.2d 875, 878 (1972)). As the Supreme Court explained, “a plaintiff

who knows of a writing which is the principal basis for his claims must produce it

when it is the best evidence of the facts at issue.” Id.

“The elements of a prima facie case are established with competent

evidence, as fully as though each of the allegations in the petition were denied by

the defendant.” Sarasota, CCM, Inc., 23-0658, p. 7, 385 So.3d at 313 (quoting

Arias, 08-1111, p. 7, 9 So.3d at 820). The evidence introduced to support the

default judgment was not sufficient to establish a prima facie case of indebtedness

to Springwood for outstanding assessments, late fees, interest, attorney’s fees, or

costs, in the absence of the admission of the community documents setting forth

any contractual basis that any of these amounts are owed. While Springwood came

forward with affidavits of its lien at two points in the past, along with partially

itemized statements of account, these are not the best evidence of the writing at

issue, particularly where they do not show the basis for the underlying obligation

to pay assessments or accrual of late fees, interest, attorney’s fees, or costs. Rather,

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the community documents are the principal source for the assertion of

Springwood’s claims against Gutherie-Brown. In failing to introduce the

community documents, Springwood did not establish a prima facie case entitling it

to a default judgment. The default judgment must be vacated.

CONCLUSION

Accordingly, for the reasons set forth in this opinion, we vacate the default

judgment entered by the district court, and we remand this matter for further

proceedings.

VACATED AND REMANDED

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