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Boudreaux v. Papa Bear's Pizza, LLC

Court of Appeals of Louisiana, First Circuit

April 26, 2017

COLTON P. BOUDREAUX
v.
PAPA BEAR'S PIZZA, LLC D/B/A MIKE'S DAIQUIRIS AND GRILL

         On Appeal from the 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana Trial Court No. C635631 Honorable Donald R. Johnson, Judge Presiding

          Keith S. Giardina Baton Rouge, Louisiana Attorney for Defendant/Appellant

          Kyle Evans Baton Rouge, Louisiana Kris A. Perret Attorney for Defendant/Appellant Papa Bear's Pizza, LLC d/b/a Mike's Daiquiris and Grill

          Steve C. Thompson Stephanie E. Robin James F. d'Entremont Baton Rouge, Louisiana Attorneys for Plaintiff/Appellee Colton P. Boudreaux

          BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.

          CRAIN, J.

         The defendants appeal the confirmation of a default judgment in favor of the plaintiff. We vacate the judgment and remand for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         This proceeding arises out of an incident that occurred when the plaintiff, Colton P. Boudreaux, was punched in the face while he was in a bar known as "Mike's Daiquiris & Grill, " which is the trade name of the owner of the business, Papa Bear's Pizza, LLC (Mike's Bar). Boudreaux sustained facial injuries and filed suit against Mike's Bar and Kyle Evans, an employee of the bar who, according to the petition, threw the punch. The defendants were served with the petition, but failed to file responsive pleadings, leading Boudreaux to obtain preliminary default judgments against them.[1]

         At a default confirmation hearing, Boudreaux presented evidence in support of his claim. According to his testimony, Boudreaux was paying for a drink when he felt a tap on his shoulder and was suddenly "sucker punched" in the face. He did not see the person actually deliver the blow, but as Boudreaux was falling to the floor, he saw Evans "high fiving" another alleged employee of Mike's Bar. Boudreaux testified that other employees of the bar walked him outside, pushed him down, kicked him in the ribs, and ripped a band off his wrist that was provided when he entered the bar.

         A friend who accompanied Boudreaux to the bar, Nicholas Chiconis, also testified, but Chiconis did not see the punch. He only saw Boudreaux being taken out of the bar by two people who "appeared" to be employees of Mike's Bar, although Chiconis did not know them and did not notice any logos or other identifying information on their shirts indicating they were employees of the bar.

         Boudreaux was treated in the emergency room shortly after the incident and later underwent surgery to stabilize a nasal fracture, He had follow-up treatment for the facial injuries, as well as headaches. His medical expenses totaled $28, 928.29, and he presented documentation and testimony in support of a claim for lost wages of $5, 778.75.

         After taking the matter under advisement, the trial court signed a judgment confirming the preliminary default and awarding Boudreaux a total of $104, 707.04, consisting of $70, 000.00 in general damages and $34, 707.04 in special damages, plus costs, and judicial interest. The defendants then appeared and filed motions for new trial, which were denied.[2] The defendants now appeal.

         DISCUSSION

         The defendants assign as error the trial court's finding that Boudreaux proved the elements of his claim, arguing, in relevant part, the evidence is not sufficient to prove Evans was the person who punched Boudreaux, or that Evans or anyone else involved in the incident was acting within the course and scope of employment with Mike's Bar.

         Confirmation of a preliminary default judgment is similar to a trial with the defendant being absent. The plaintiff is required to present admissible and competent evidence establishing a. prima facie case, proving both the existence and the validity of the claim as though the defendant denied each allegation of the petition. See La. Code Civ, Pro. art. 1702A; Arias v. Stolthaven New Orleans, L.L.C., 08-1111 (La. 5/5/09), 9 So.3d 815, 820; Gorman v. Miller, 12-0412 (La.App. 1 Cir. 11/13/13), 136 So.3d 834, 840 (en banc), writ denied, 13-2909 (La. 3/21/14), 135 So.3d 620. Simply stated, in order to confirm a default, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail at trial on the merits. Arias, 9 So.3d at 820; Gorman, 136 So.3d at 840. In doing so, the plaintiff must adhere to the rules of evidence despite there being no opponent to urge objections. Arias, 9 So. 3d at 820; Gorman, 136 So.3d at 840. The sufficiency of evidence offered in support of the confirmation of a default judgment is a factual determination governed by the manifest error standard of review. See Arias, 9 So. 3d at 818.

         There is a presumption that a default judgment has been rendered upon sufficient evidence to establish a prima facie case and is correct, and the appellant has the burden of overcoming that presumption. However, this presumption does not apply where testimony is transcribed and contained in the record. Schilling v. Bernhard Brothers Mechanical Contractors LLC, 12-2105 (La.App. 1 Cir. 9/13/13), 186 So.3d 658, 665-66. Because there is a transcript of the testimony in the record before us, the presumption of the validity of the confirmation of the default judgment does not apply.

         A default judgment cannot be different in kind from what is demanded in the petition. See La. Code Civ. Pro. art. 1703. Boudreaux alleged in his petition that Evans, while in the course and scope of his employment with Mike's Bar, committed a battery against him. Other employees, according to the petition, injured Boudreaux when they carried him out of the bar, caused him to land facedown on cement, and kicked him in the stomach. Boudreaux further alleged that Mike's Bar was vicariously liable for the actions of its employees and was independently negligent for failing to provide adequate security or take other measures reasonably necessary to protect Boudreaux from injury.

         For the claim arising out of Evans' conduct, Boudreaux had to make aprima facie case that Evans committed a battery, meaning Evans made a harmful or offensive contact with Boudreaux, resulting from an act intended to cause him to suffer such a contact. See Landry v. Bellanger, 02-1443 (La. 5/20/03), 851 So.2d 943, 949. It is undisputed that a battery was committed upon Boudreaux. The issue presented, however, is who committed the battery. We must determine whether the record contains sufficient evidence to reasonably support the trial court's implied factual finding that Evans committed the battery by punching Boudreaux.

         While Boudreaux testified that Evans punched him, he later acknowledged that he did not actually see Evans throw the punch. Rather, as demonstrated by the following testimony, Boudreaux only saw Evans ...


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