COLTON P. BOUDREAUX
PAPA BEAR'S PIZZA, LLC D/B/A MIKE'S DAIQUIRIS AND GRILL
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
S. Giardina Baton Rouge, Louisiana Attorney for
Evans Baton Rouge, Louisiana Kris A. Perret Attorney for
Defendant/Appellant Papa Bear's Pizza, LLC d/b/a
Mike's Daiquiris and Grill
C. Thompson Stephanie E. Robin James F. d'Entremont Baton
Rouge, Louisiana Attorneys for Plaintiff/Appellee Colton P.
BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
defendants appeal the confirmation of a default judgment in
favor of the plaintiff. We vacate the judgment and remand for
AND PROCEDURAL HISTORY
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.
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
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.
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.
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. The defendants now appeal.
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.
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
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
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.
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 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 ...