Matthew A. Hillman v. Corey Seneca

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-167

MATTHEW A. HILLMAN

VERSUS

COREY SENECA ET AL.

************
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2017-265
HONORABLE MICHELLE BREAUX, DISTRICT JUDGE
************
SYLVIA R. COOKS
JUDGE
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Court composed of Sylvia R. Cooks, John D. Saunders and Elizabeth A. Pickett,
Judges.

AFFIRMED AS AMENDED; RENDERED.

Adam G. Young
Young, Cotter & Meade, LLC
315 S. College Road, Suite 163
Lafayette, LA 70503
Tel. 337-261-8800
Fax 337-234-3133
COUNSEL FOR PLAINTIFF/APPELLANT:
Matthew Hillman

COOKS, Judge.
FACTS AND PROCEDURAL HISTORY

Matthew Hillman (Plaintiff) filed suit against Corey Seneca (Defendant) and

an unknown insurance company seeking damages for injuries sustained as the

result of an unprovoked attack upon Plaintiff. Defendant did not file an answer to

the petition. Plaintiff obtained a default judgment and confirmed the judgment

after a hearing on the matter. The evidence presented at the confirmation hearing

in support of Plaintiff’s claims consisted of Plaintiff’s testimony and the “Sworn

Narrative [Statement] of Treating Dentist,” Dr. Adrian M. Simms, DDS.

Plaintiff testified at the hearing giving his account of the attack and explaining

his injuries. He testified he did not provoke the incident. His injuries required

emergency medical treatment at Our Lady of Lourdes Hospital immediately

following the attack. Plaintiff needed fifteen stitches to repair the damage to his

upper lip. He visited his dentist two days after the incident, at which time he says

Dr. Simms diagnosed a fracture to the backside of two of his front teeth. He made

two additional visits regarding his injuries. According to this testimony, Plaintiff

understood that the injury might heal on its own but only time would tell. As of

the date of the hearing Plaintiff’s injuries were not healed. Plaintiff explained he

could not eat solid food for two months and endured “a great amount of pain and

suffering or anguish because of [his] injury” and was still experiencing some level

of pain as of the date of the hearing. He was unable to work his regular job as a

private pilot for two months. Plaintiff testified his bill for the emergency room was

$1,500 and his “out of pocket cost” for the dentist was “about $1,200.”

Dr. Simms’ written statement sets forth the following undisputed facts which

corroborate Plaintiff’s testimony:

1. Dr. Simms is a doctor of dental surgery and is a “Master of the Academy of
General Dentistry.”

2. He treated Plaintiff for injuries described in Plaintiff’s petition beginning on
January 4, 2017.

3. Plaintiff was “hit in the mouth with great force.”

4. Plaintiff sustained fractures to two of his teeth referred to as “#24 and $25
[sic].”

5. Plaintiff’s injuries to his teeth will require treatment at a cost of $2,590.

The trial court awarded a total of $5,394.19 in damages itemized in the

judgment as follows:

Special damages, including lost wages, past medical,
Past and future dental…………………$2,894.19

General Damages………………………...$2,500

Plaintiff does not challenge the award of special damages but challenges the

trial court’s award of general damages asserting the award is abusively low.

LEGAL ANALYSIS

Louisiana Code of Civil Procedure Article 1703 provides: “A final default

judgment shall not be different in kind from that demanded in the petition. The

amount of damages awarded shall be the amount proven to be properly due as a

remedy.”

The appellate jurisdiction of courts of appeal extends to both
law and facts. La. Const. art. V, § 10(B). A court of appeal may not
overturn a judgment of a trial court absent an error of law or a factual
finding that was manifestly erroneous or clearly wrong. Stobart v.
State, Dept. of Transp. and Development, 617 So.2d 880, 882, n. 2,
(La.1993) . . .

In reviewing default judgments, the appellate court is restricted
to determining the sufficiency of the evidence offered in support of
the judgment. Bordelon v. Sayer, 01–0717, p. 3 (La.App. 3 Cir.
3/13/02), 811 So.2d 1232, 1235, writ denied, 02–1009 (La.6/21/02),
819 So.2d 340. This determination is a factual one governed by the
manifest error standard of review. Id.

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

818.

Louisiana Code of Civil Procedure, Article 1702 (emphasis added) provides

in pertinent part:

A preliminary default must be confirmed by proof of the
demand that is sufficient to establish a prima facie case and that is
admitted on the record prior to the entry of a final default judgment.
The court may permit documentary evidence to be filed in the record
in any electronically stored format authorized by the local rules of the
district court or approved by the clerk of the district court for receipt
of evidence . . .

B. (2) When 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 demand. The court may,
under the circumstances of the case, require additional evidence in the
form of oral testimony before entering a final default judgment.

....

D. When the demand is based upon a claim for a personal injury, a
sworn narrative report of the treating physician or dentist may be
offered in lieu of his testimony.
....

In Bryant v. Xtreme Machines, LLC, 16-693 pps. 2-3 (La.App. 3 Cir.

12/14/16), 208 So.3d 911, 913–14 (emphasis added), this court set forth the

standard of review and the law applicable to default judgments:

In reviewing default judgments, appellate courts are restricted
to determining the sufficiency of the evidence offered in support of
judgment. Although there is a presumption that the evidence presented
supports a default judgment, this presumption does not attach when
the record of the confirmation hearing is before the appellate court. In
such a case, the reviewing court is able to determine from the record
whether the evidence upon which the judgment is based was sufficient
and competent.... However, the trial court’s conclusion concerning the
evidence’s sufficiency presents a factual issue which the manifest
error rule governs. The manifest error standard of review obligates

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appellate courts to give great deference to the trial court’s findings of
fact. We will not reverse factual determinations, absent a finding of
manifest error. Bordelon v. Sayer, 01–0717 (La.App. 3 Cir. 3/13/02),
811 So.2d 1232, 1235, (citations omitted), writ denied, 02–1009 (La.
6/21/02), 819 So.2d 340.

This court recently discussed default judgments in Burley v.
New York Life Insurance Co., 15–263, p. 4 (La.App. 3 Cir. 11/25/15),
179 So.3d 922, 928, where we noted:

Louisiana Code of Civil Procedure Article
1701(A) allows a judgment of default to be entered
against a defendant who fails to answer within the time
prescribed by law. Confirmation of a default judgment
under La.Code Civ.P. art. 1702(A) requires “proof of the
demand that is sufficient to establish a prima facie
case…”

In Hall v. Folger Coffee Co., 02-920 pps. 12-13 (La.App. 4 Cir. 10/1/03),

857 So.2d 1234, 1243–44, writ denied, 03-1756 (La. 10/17/03), 855 So.2d 762,

and writ denied, 03-3416 (La. 6/25/04), 876 So.2d 827 (emphasis added) the fourth

circuit further explained that:

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 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, to prevent reversal on appeal, both plaintiff and the
trial judge should be vigilant to assure that the judgment rests on

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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).

In reviewing the propriety of the trial court’s award of general damages we

recognize that we are constrained to accord great deference to the trial court’s

determination of general damages:

In considering whether an award of general damages is
excessive or inadequate, we are guided by the decision in Youn v.
Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert.
denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994),
wherein our supreme court noted that “the discretion vested in the
trier of fact is ‘great,’ and even vast, so that an appellate court should
rarely disturb an award of general damages.” Under Youn, “[t]he
initial inquiry is whether the award for the particular injuries and their
effects under the particular circumstances on the particular injured
person is a clear abuse of the ‘much discretion’ of the trier of
fact.” Id. at 1260. Only after the initial inquiry is answered in the
affirmative should the appellate court increase or reduce the
award. Id. In making the initial inquiry, the reviewing court should not
use “a scale of prior awards in cases with generically similar medical
injuries to determine whether the particular trier of fact abused its

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discretion in the awards to the particular plaintiff under the facts and
circumstances peculiar to the particular case.” Id. at 1260. Such prior
awards should be considered only after the reviewing court concludes
that there has been an abuse of discretion. Id.

Baltazar v. Wolinski, 10-757 pps. 12-13 (La.App. 3 Cir. 12/8/10), 53 So. 3d 591,

599, writ granted, judgment aff’d in part, rev’d in part, 11-51 (La. 3/4/11), 56 So.

3d 947, and writ denied, 11-58 (La. 3/4/11), 58 So. 3d 475.

Upon review of the evidence presented1 through Plaintiff’s testimony,

corroborated by Dr. Simms’ statement, we find the trial court abused its “vast”

discretion in making an award of only $2,500 in general damages. Plaintiff, while

minding his own business, enjoying social time at a friend’s home, was violently

attacked without provocation. As we have previously stated, Plaintiff was struck

with such force in the face he required emergency medical attention including

fifteen stitches to repair his lip. He “sustained fractures to two of his teeth.” As a

result of this violent assault, Plaintiff “could not eat solid food for two months.”

He endured “a great amount of pain and suffering or anguish because of this

injury” and was still experiencing some level of pain as of the date of the hearing.

Further, he was unable to work his regular job for two months. This attack upon

Plaintiff was violent and traumatic causing months of pain and suffering. As of the

date of the hearing the outcome of Plaintiff’s injuries and resulting pain and

suffering were still unresolved and unknown.

1
No documents or exhibits were attached to Dr. Simms’ statement, and no certified
medical records were introduced nor placed in evidence by trial counsel in support of Plaintiff’s
testimony. There are uncertified medical bills and a letter from Dr. Simms contained in this
record which were attached to Plaintiff’s “Supplemental Memorandum In Support of Default
Judgment” filed on May 10, 2017, months after the confirmation hearing. Uncertified medical
bills and a photographic copy of a letter attached to this supplemental memorandum are
inadmissible hearsay.

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We recognized in Baltazar, 53 So.3d at 600, that we are constrained by the

decisions of the Louisiana Supreme Court to increase an abusively low award “to

the lowest amount which is reasonably within the court’s discretion, Ryan v.

Zurich Am. Ins. Co., 07–2312, p. 7 (La.7/1/08), 988 So.2d 214, 219.” Once we

have determined an award is abusively low, “we refer to prior awards in similar

cases to determine the lowest point of an award within that discretion. Coco v.

Winston Indus., Inc., 341 So.2d 332 (La.1976),” Id. In Dubroc v. Dupar, 95-1107

(La.App. 3 Cir. 1/1/96), 670 So.2d 349, 351 we reversed an $8,000 award for soft

tissue injuries and three fractured teeth as inadequate. In that case the plaintiff

continued to suffer from his injuries a year after the accident and faced dental

procedures at an estimated cost of $2,700. We increased Mr. Dubroc’s general

damage award to $25,000.

For the reasons as stated we affirm the trial court’s judgment below except

we amend the general damage award to increase it to $10,000.00, this being the

lowest amount reasonably within the court’s discretion to compensate Plaintiff. All

costs of this appeal are assessed against Defendant, Corey Seneca.

AFFIRMED AS AMENDED; RENDERED.

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