Heriberto Flores D/B/A He Flores Construction v. Brown Builders, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-73

HERIBERTO FLORES D/B/A HE FLORES CONSTRUCTION

VERSUS

BROWN BUILDERS, INC., ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20161850
HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

**********

Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van H. Kyzar,
Judges.

AFFIRMED.

Jerald R. Harper
Harper Law Firm
213 Texas St.
Shreveport, LA 71101
(318) 213-8800
COUNSEL FOR DEFENDANTS/APPELLANTS:
Brown Builders, Inc.
Villa Broussard, LLC

Craig Lewis Kaster
Kaster & Cop, LLC
1076 Carney Road
Zachary, LA 70791
(225) 658-5450
COUNSEL FOR PLAINTIFF/APPELLEE:
Heriberto Flores, d/b/a HE Flores Construction

GREMILLION, Judge.

Defendants/appellants, Brown Builders, Inc., and Villa Broussard, LLC,

(hereafter, “Defendants”), appeal the default judgment entered in favor of

Heriberto Flores, d/b/a HE Flores Construction (HE Flores) in the amount of

$35,996.00, plus legal interest and costs of court. For the reasons that follow, we

affirm.

FACTS AND PROCEDURAL HISTORY

On April 8, 2016, HE Flores filed suit against Defendants, alleging that he

provided framing services as a subcontractor of Southern Framing and

Construction, Inc., which, in turn, was the alleged subcontractor of Brown Builders,

Inc. Brown Builders, Inc. was alleged to have been the prime contractor hired by

Villa Broussard, LLC, to build a project on 8.39 acres in the Sugarcrest Retail

Development in Lafayette, Louisiana. HE Flores alleged ,in paragraph one of his

petition, that Defendants were indebted to him for his framing services in the

amount of $35,996.00, plus penalties, legal interest, court costs, and attorney fees,

and prayed for that amount. In paragraph three, however, he alleged that the

amount of labor and materials owed for the work was $35,811.00.1

On May 11, 2016, Mr. Flores requested entry of a preliminary default

against Villa Broussard. A preliminary default was entered that same day. On

May 25, 2016, a preliminary default was sought and entered against Brown

Builders.

Mr. Flores requested a hearing date to confirm the defaults by letter dated

June 1, 2016. The matter was fixed by the trial court for June 13, 2016.

1
The difference between these amounts represents the filing fee for instituting suit, $185.00.

The trial court heard the testimony of Mr. Eduardo Flores, the brother of

Heriberto Flores. Eduardo testified that he oversaw the seven-man crew of

workmen who labored at the project from July 14, 2014 until August 12, 2014.

Those men worked five days a week for ten hours a day, plus four hours a day on

Saturdays and Sundays. Each employee was to be paid an additional $30.00 per

day for food. HE Flores was hired by Southern Framing through “Kent and

Larry,” the owners of the company, to frame buildings at the rate of $0.85 per

square foot. Buildings one and two each totaled 12,350 square feet. Building three

measured 14,350 square feet. Eduardo submitted the time for the employees to Mr.

Tony Panti of Southern Framing, who paid for the first three days of work at $0.85

per square foot. Nothing was paid after July 17, 2014.

Judgment was signed in open court on June 13, 2016. Defendants filed a

motion for new trial arguing, principally, that they had emailed a copy of the

petition to their counsel and counsel’s spam filter intercepted the message. The

trial court denied the motion for new trial on June 24, 2016, which was denied.

This appeal followed. Defendants argue that the trial court erred in granting the

default judgment and in denying its motion for new trial.

ANALYSIS

Default judgments must be confirmed by proof sufficient to establish a

prima facie case. La.Code Civ.P. art. 1702(A). On review, an appellate court is

limited to determining whether the evidence was sufficient to establish a prima

facie case, and the appellant must overcome a presumption that the evidence was

sufficient. Byrd v. Int’l Paper Co., 594 So.2d 961 (La.App. 3 Cir. 1992).

Confirmation of a default judgment is similar to a trial and
requires, with admissible evidence, “proof of the demand sufficient to
establish a prima facie case.” The elements of a prima facie case are

2

established with competent evidence, as fully as though each of the
allegations in the petition were denied by the defendant. In other
words, the plaintiff must present competent evidence that convinces
the court that it is probable that he would prevail at trial on the merits.
A plaintiff seeking to confirm a default must prove both the existence
and the validity of his claim. A default judgment cannot be different
in kind from what is demanded in the petition and the amount of
damages must be proven to be properly due.

Arias v. Stolthaven New Orleans, L.L.C., 08-1111, p. 7 (La. 5/5/09), 9 So.3d 815,

820 (Citations omitted).

Defendants contend that Mr. Heriberto Flores himself is required to appear

and testify in order to establish a prima facie case. We disagree. The proper

person to testify is the one with personal knowledge of the facts that will establish

a prima facie case. Louisiana Code of Civil Procedure Article 1702 imposes no

requirement that the plaintiff himself testify in cases other than delictual

obligations; indeed, it allows proof of a conventional obligation in the form of

affidavits and exhibits. La.Code Civ.P. art. 1702(B)(1). Eduardo Flores

supervised the work performed by HE Flores’s employees. He was present every

day that work was performed.

Defendants next contend that it was never established in the record whether

HE Flores Construction is a natural person, i.e., Mr. Flores himself, or a juridical

person, such as a corporation or a limited liability company. The petition is

captioned “Heriberto Flores, d/b/a HE Flores Construction.” The plaintiff is

alleged to be “a person of the full age of majority domiciled in Travis County,

Texas.” Eduardo testified that Heriberto Flores, his brother, owns and operates the

construction business. The entry of judgment in favor of Heriberto Flores implies

that the trial court was satisfied that the judgment was properly entered in favor of

a natural person. We find no manifest error in this ruling.

3

HE Flores performed the framing on both buildings one and two. The

amount due for that framing would total $20,995.00.2 Building three totals 14,350

square feet. At $0.85 per square foot, the amount owed for framing it would equal

$12,197.50. This means that the amount owed, based upon the evidence presented

at the hearing on the confirmation of default, would only total $33,192.50.

Additionally, Southern Framing was to have paid HE Flores $30.00 per day for

meals for each of its eight employees, totaling $6,720.00. The sums owed for

framing and per diem for meals well exceeds the amount of the judgment in this

matter.

Defendants’ second assignment of error complains of the trial court’s denial

of their motion for new trial. Motions for new trial are governed by La.Code Civ.P.

art. 1971 et seq. The Code of Civil Procedure sets forth peremptory grounds for

granting a new trial, La.Code Civ.P. art. 1972, and discretionary grounds, La.Code

Civ.P. art. 1973. A new trial must be granted when the judgment appears clearly

contrary to the law and evidence, when evidence important to the cause has been

discovered since the trial, or when the jury was bribed or behaved improperly. “A

new trial may be granted in any case if there is good ground therefor, except as

otherwise provided by law.” La.Code Civ.P. art. 1973. Much of Defendant’s

argument centers on statements made by HE Flores’s attorney at the hearing of

their motion for new trial. We first note that an axiom of Louisiana law holds that

arguments of counsel do not constitute evidence. To the extent that HE Flores’s

attorney may have misstated facts in argument, it would be improper to consider

them on motion for new trial; but the record divulges, based upon the facts we

have already noted herein, that the judgment is not contrary to the law or evidence.

2
Buildings one and two are each 12,350 sq.ft. in area. 24,700 sq.ft. * $0.85/sq.ft. = $20,995.00.

4

Defendants also assert that Louisiana case law holds that entry of a default

judgment against a party solely through the fault of its attorney constitutes a “good

ground” for granting new trial under Hardy v. Kidder, 292 So.2d 575 (La. 1973).

We find that the present matter is readily distinguished from Hardy. In Hardy, the

defendant, who was involved in a motor vehicle accident, filed bankruptcy and

listed the plaintiff’s claim in his bankruptcy proceeding schedules. Defendant’s

counsel had appeared in the proceedings to enforce the mandatory bankruptcy stay.

Defendant’s debts were discharged in bankruptcy in August 1970. Plaintiff

confirmed a default judgment against the defendant in February 1971. Included in

the evidence submitted in confirmation was a letter from the bankruptcy trustee

advising that the defendant’s debts had been discharged, including the personal

injury claim.

The supreme court held that:

We are concerned not with any legal requirement of notice, however,
but rather with whether, in the interests of justice, a timely application
for a new trial should be granted where, upon the face of the
proceedings themselves, the defendant is shown to have an absolute
defense to a suit, which has not been pleaded through the neglect of
his attorney or because of the latter’s careless appreciation that the
plaintiffs would not, after discharge, pursue efforts to obtain a
judgment for a debt finally discharged in bankruptcy. See 28
La.L.Rev. 412 (1968).

Under the jurisprudence cited, this constitutes good ground for
the grant of a new trial, upon timely application, in the interests of
justice. To let stand a judgment to which the proceedings themselves
show there to be an absolute defense, which was not pleaded solely
because of the neglect of counsel, is to let stand a judgment which is
substantively erroneous, only because of violation of a technical
pleading rule which results from counsel’s neglect rather than from
the client’s fault.

Id. at 579.

5

In the present matter, we see no absolute defense comparable to discharge in

bankruptcy. Further, the suit in the present matter was served upon Defendants’

general counsel. Those pleadings were served on Villa Broussard on April 18,

2016, and on Brown Builders on May 5, 2016. The preliminary default against

Villa Broussard was obtained on May 11, 2016. Defendants’ attorney was not

even retained until May 16, 2016, almost a month after Villa Broussard was served.

We cannot agree that, under these circumstances, the default was entered solely

through counsel’s neglect, regardless of whether counsel’s spam filter intercepted

the emailed petitions. We find no abuse of the trial court’s discretion in refusing to

grant Defendants a new trial.

For the foregoing reasons, the judgment of the trial court in favor of

Heriberto Flores, d/b/a HE Flores Construction, is affirmed. All costs of this

appeal are taxed to Defendants/appellants, Brown Builders, Inc., and Villa

Broussard, LLC.

AFFIRMED.

6