Robert Gaspard v. Gilley Ram

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-152

ROBERT GASPARD, ET AL.

VERSUS

GILLEY RAM, ET AL.

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APPEAL FROM THE
THIRTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF CAMERON, NO. 10-17628
HONORABLE H. WARD FONTENOT, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Ulysses Gene Thibodeaux, John D. Saunders, and Elizabeth A.
Pickett, Judges.

ANNULLED AND SET ASIDE; REMANDED.

Frederick L. Cappel
Kevin J. Koenig
Raggio, Cappel, Chozen & Berniard
1011 Lakeshore Dr., 5th Floor
Lake Charles, LA 70601
Counsel for Defendant/Appellant:
Sookdeo Ramkhalawan, a/k/a Gilley Ram

Robert E. Morgan
Attorney at Law
125 W. School St.
Lake Charles, LA 70605-1611
Counsel for Plaintiffs/Appellees:
Robert Gaspard
John McRay
Romeo Laurel

Pickett, J.

The defendant, Gilley Ram, appeals a judgment of the trial court confirming

a default judgment in favor of the plaintiffs, Robert Gaspard, John McRay, and

Romeo Laurel, and against Sookdeo Ramkhalawan, Ramkhalawan, Inc. (d/b/a Ram,

Inc.), and Gilley Ram, in solido, granting the plaintiffs $805,557.00 for damage

sustained to their property during Hurricane Rita. We annul and set aside the

judgment of the trial court and remand the case for further proceedings.

FACTS

In June 2005, Ramkhalawan, Inc. purchased four vessels, former Russian

trawlers, from Sallie McCall, Inc. for $75,000.00 per vessel, or a total of $300,000.00.

The vessels were purchased “as is, where is.” At the time of the sale, all four vessels

were resting in the mud on the east bank of the Calcasieu River, north of Cameron

and had been so located for approximately six years. During August and September

of 2005, two hurricanes hit the Louisiana coast, Hurricaines Katrina and Rita.

Hurricane Katrina hit the eastern portion of the coast in August; and Hurricane Rita

hit the western portion of the coast in September. During Hurricane Rita one of the

ex-trawlers broke free from its moorings and allegedly damaged and/or destroyed

property belonging to the plaintiffs. The plaintiffs filed suit against Sookdeo

Ramkhalawan, Ramkhalawan, Inc. (d/b/a Ram, Inc.), and Gilley Ram. A default

judgment was taken and a confirmation hearing was held on May 23, 2007. The final

judgment was signed June 22, 2007. This appeal by Gilley Ram , who is also known

as Sookdeo Ramkhalawan, followed.

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LAW AND DISCUSSION

The law concerning default judgments is well settled and was recently

discussed by our colleagues of the fourth circuit in Cunningham v. M & S Marine,

Inc., 05-805, pp. 2-5 (La.App. 4 Cir. 1/11/06), 923 So.2d 770, 772-74:

“A judgment of default must be confirmed by proof of the
demand sufficient to establish a prima facie case.” La. C.C.P. art.
1702(A). Construing the prima facie case requirement of Article 1702,
the Louisiana Supreme Court in Sessions & Fishman v. Liquid Air
Corp., 616 So.2d 1254 (La.1993), stated:

In order for a plaintiff to obtain a default judgment,
“he must establish the elements of a prima facie case with
competent evidence, as fully as though each of the
allegations in the petition were denied by the defendant.”
Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989);
Blue Bonnet Creamery, Inc. v. Simon, 243 La. 683, 146
So.2d 162, 166 (1962). “In other words, the plaintiff must
present competent evidence that convinces the court that it
is probable that he would prevail on a trial on the merits.”
Thibodeaux, 538 So.2d at 1004. A plaintiff seeking to
confirm a default must prove both the existence and the
validity of his claim.

616 So.2d at 1258.

In reviewing a default judgment, an appellate court is restricted
to determining whether the record contains sufficient evidence to prove
a prima facie case. Rhodes v. All Star Ford, Inc., 599 So.2d 812, 813
(La.App. 1 Cir.1992).

Confirming a default judgment is akin to a trial at which only the
plaintiff is present. 1 Frank L. Maraist & Harry T. Lemmon, Louisiana
Civil Law Treatise: Civil Procedure § 12.3 (1999). At such trial, the
unopposed plaintiff must comply with a set of special, somewhat strict
rules in proving his claim. 19 Frank L. Maraist, Louisiana Civil Law
Treatise: Evidence and Proof § 2.9 (1999). The following special rules
are pertinent to the present case.

First, the plaintiff is confined to the facts and the theories pled in
his petition; he may not expand his pleadings by introducing evidence
at the confirmation hearing. Thus, the plaintiff is precluded from
obtaining a default judgment “different in kind from that demanded in

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the petition.” La. C.C.P. art. 1703; see Spear v. Tran, 96-1490 (La.App.
4 Cir. 9/18/96), 682 So.2d 267. However, the Louisiana Supreme Court
has held that “the pleadings which lead up to the demand, or prayer,
upon which a default judgment is based are to be construed no more
restrictively than pleadings suggestive of other judgments.” Royal
Furniture Co. of Baton Rouge, Inc. v. Benton, 260 La. 527, 532, 256
So.2d 614, 616 (1972).

Second, “[b]ecause at a default confirmation there is no objecting
party, . . . both plaintiff and the trial judge should be vigilant to assure
that the judgment rests on admissible evidence” that establishes a prima
facie case. George W. Pugh, Robert Force, Gerald A. Rault, Jr., and
Kerry Triche, Handbook on Louisiana Evidence Law 639 (2003 ed.). As
a corollary, “[e]xcept as authorized by the Code of Civil Procedure
Article 1702, or evidence that fits within one of the exceptions provided
by [the Louisiana Evidence] Code, hearsay evidence is inadmissible to
confirm a default.” Id.; see La. C.E. art. 1101(A)(providing that
“[e]xcept as otherwise provided by legislation, the provisions of this
Code shall be applicable to the determination of fact . . . in proceedings
to confirm a default.”)

Third, depending on the nature of the plaintiff's demand, Article
1702 sets forth several exceptions to the rule against the use of hearsay
evidence at the confirmation hearing. One of those pertinent exceptions
is that “[w]hen a demand is based upon a delictual obligation, the
testimony of the plaintiff with corroborating evidence, which may be by
affidavits and exhibits annexed thereto which contain facts sufficient to
establish a prima facie case, shall be admissible, self-authenticating, and
sufficient proof of such [delictual] demand.” La. C.C.P. art. 1702(B)(2).
Another pertinent exception is that “[w]hen the demand is based upon
a claim for personal injury, a sworn narrative report of the treating
physician or dentist may be offered in lieu of his testimony.” La. C.C.P.
art. 1702(D); see Smith v. Lewis, 597 So.2d 1267 (La.App. 3
Cir.1992)(construing this provision to mean that a treating physician’s
affidavit that incorporates an attached narrative report is a “sworn
narrative report of the treating physician” sufficient to establish a prima
facie case).

Finally, a defendant against whom a default judgment is
confirmed may not assert an affirmative defense on appeal. Having
failed to answer or defend the suit, a defendant cannot defeat the default
judgment against it by asserting a defense on appeal. Galland v.
National Union Fire Ins. Co. of Pittsburg, Pennsylvania, 452 So.2d 397,
398-99 (La.App. 3 Cir.1984); Romero v. Sunseri, 359 So.2d 305, 308
(La.App. 4 Cir.1978).

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The record shows that the four vessels were sold to and owned by Ram, Inc.

at the time Hurricane Rita made landfall. In their petition, the plaintiffs claim that

their damage was caused by one of the vessels owned by the corporation. Louisiana

Civil Code Article 24 provides (emphasis ours): “There are two kinds of persons:

natural persons and juridical persons. A natural person is a human being. A juridical

person is an entity to which the law attributes personality, such as a corporation or

a partnership. The personality of a juridical person is distinct from that of its

members.” Thus, a corporation is a distinct legal entity, separate from the individuals

who comprise it. The law provides that shareholders of a corporation “shall not be

liable personally for any debt or liability of the corporation.” La.R.S. 12:93(B).

Therefore, if the plaintiffs’ damages were caused by a vessel owned by Ram, Inc.

because of the negligence of Ram, Inc. or because of a breach of some duty owed to

the plaintiffs by the corporation, then it is the corporation which is liable.

There is no evidence that the appellant was acting in his individual capacity

when he made the decision not to send men to help secure the vessel with cable. In

fact, the evidence shows that all contact with the appellant was made in his capacity

as an officer of the corporation and that he was acting on behalf of the corporation

when his decision was made. Furthermore, the appellant had no individual ownership

interest in the vessel. While we recognize that there are some limited circumstances

in which an officer or a shareholder of a corporation may be held liable for the acts

of a corporation the plaintiffs in this case failed to “ establish the elements of a prima

facie case with competent evidence, as fully as though each of the allegations in the

petition were denied by the defendant.” Thibodeaux, 538 So.2d at 1004. “In sum, the

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plaintiffs failed to “present competent evidence that convinces the court that it is

probable that [they] would prevail on a trial on the merits.” Id.

Accordingly, for the reasons stated above, the default judgment against Gilley

Ram, a/k/a Sookdeo Ramkhalawan, is annulled and set aside and the case remanded

for further proceedings. All costs of this appeal are assessed against the plaintiffs,

Robert Gaspard, John McRay, and Romeo Laurel.

ANNULLED AND SET ASIDE; REMANDED.

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