ERNEST N. MORIAL NEW ORLEANS EXHIBITION HALL AUTHORITY AND NEW ORLEANS PUBLIC FACILITY MANAGEMENT, INC.
NEW LIMITS NEW LIMITS, LLC AND FIRST STANDARD ASURETY, LLLP
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-09402,
DIVISION "C" Honorable Sidney H. Cates, Judge
J. Magee Cearley W. Fontenot OATS & MARINO COUNSEL FOR
D. Plaisance ATTORNEY AT LAW COUNSEL FOR DEFENDANT/APPELLANT
composed of Chief Judge James F. McKay, III, Judge Terri F.
Love, Judge Sandra Cabrina Jenkins)
F. Love Judge
an appeal of a default judgment rendered in a claim against a
contractor and surety for breach of contract. Defendant First
Standard Asurety, LLLP ("First Standard") appeals a
default judgment rendered after it failed to answer a lawsuit
filed against it and New Limits Enterprise, LLC ("New
Limits"), for whom First Standard wrote a surety bond
for a construction project. First Standard asserts that the
plaintiff Ernest N. Morial New Orleans Exhibition Hall
Authority ("Authority") failed to comply
procedurally and substantively with the statutory default
provisions. A motion for default judgment must be accompanied
by a certificate pursuant to La. C.C.P. art. 1702.1. The
Authority failed to comply with the certification mandate.
Therefore, we find the trial court committed manifest error
when it granted the Authority's motion for confirmation
of default judgment. Accordingly, the default judgment is
reversed and vacated.
HISTORY AND FACTUAL BACKGROUND
Authority and New Orleans Public Facility Management, Inc.
entered into a $335, 000 contract with New Limits for the
construction of chair storage. The contract, which was
formally executed in January 2014, called for a completion
date of March 31, 2014. In conformity with the contract, New
Limits provided a performance bond and payment bond from
Authority filed a petition for breach of contract in
September 2015 against New Limits. The petition alleged that
New Limits did not meet the initial completion date as well
as the extended completion date of November 30, 2014. Despite
repeated demands, the Authority claimed that New Limits
"failed and/or refused to complete the project for the
agreed upon price" and had "abandoned the jobsite,
effectively terminating the construction contract." As
of the date of abandonment, the Authority averred that it
paid New Limits $259, 958. On January 12, 2015, the Authority
notified First Standard of New Limits' default and sought
enforcement of the surety bonds.
Standard was served with the Authority's lawsuit through
its registered agent on October 21, 2015. First Standard did
not file an answer to the petition.
the Authority filed a motion for default judgment, which the
trial court signed on December 8, 2015. In February 2016, the
Authority moved for confirmation of the default judgment. The
motion included the following attachments: (1) affidavit of
Robert L. Johnson, Executive Vice President of the Authority;
(2) notice of bid award; (3) performance bond; (4) payment
bond; (5) owner-contractor agreement; and (6) letter from
counsel for the Authority to David Harris of First Standard.
The trial court denied the motion as presented.
March 2016, without a hearing, the trial court rendered
judgment of default in the Authority's favor and against
New Limits and First Standard for $259, 958. The trial court
also assessed New Limits with attorney's fees and costs
in the amount of $2, 500. First Standard timely appeals the
March 2016 judgment of default.
courts review confirmation of default judgments under the
manifest error/clearly wrong standard of review.
Nat'l Collegiate Student Loan Trust 2007-2 v.
Kuzma, 15-0504, p. 2 (La.App. 4 Cir. 2/17/16), 187 So.3d
91, 92; See also Arias v. Stolthhaven New Orleans,
LLC, 08-1111, p. 5 (La. 5/5/09), 9 So.3d 815, 818
("[T]he appellate court is restricted to determining the
sufficiency of the evidence offered in support of ...