Appeal from the 21 st Judicial District Court In and for the
Parish of Livingston State of Louisiana Trial Court No. 151,
789 Honorable M. Douglas Hughes, Judge Presiding
J. Ray Hammond, LA Attorney for Plaintiffs-Appellees, Travis
Ware and Janis Ware.
Valerie Briggs Bargas Baton Rouge, LA Attorney for
Defendant-Appellant, Foremost Insurance Company.
BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
case, the trial court rendered a default judgment in favor of
plaintiffs, Travis and Janis Ware, and against defendant,
Foremost Insurance Company, in the amount of $30, 821.80.
Foremost appeals arguing that the default judgment should be
declared a nullity because no proof of service exists. In the
alternative, Foremost argues that the trial court erred in
confirming the default judgment because the Wares did not
present evidence sufficient to establish their prima
facie case under Louisiana Code of Civil Procedure
AND PROCEDURAL HISTORY
Wares contend that in April 2015, during a spring
thunderstorm, wind and hail caused significant damage to
their home in Denham Springs, Louisiana. After the
thunderstorm, the Wares contacted Foremost, their alleged
homeowner's insurer, to request that the damage to their
home be inspected. Foremost, on more than one occasion,
inspected the Wares' home but denied coverage for their
damages. Subsequently, the Wares retained an adjuster who
inspected their home and determined that the cause of the
damage to their home was wind and/or hail. The Wares
forwarded the report of the independent adjuster to Foremost
and again requested coverage, which Foremost denied.
Thereafter, on April 7, 2016, the Wares filed a petition for
damages against Foremost, seeking payment for damages their
home sustained during the thunderstorm. Additionally, the
Wares contended that Foremost's denial of coverage was a
breach of good faith and fair dealing in contravention of La.
R.S. 22:1973, and they sought statutory penalties as provided
by the statute.
19, 2016, the trial court noted that all legal delays had
elapsed since service of citation and the petition on
Foremost, and ordered a minute entry reflecting a preliminary
default. On May 26, 2016, the matter came before the trial
court, and after a hearing, the trial court signed a final
default judgment in favor of the Wares and against Foremost
in the amount of $30, 821.80 in damages and penalties. It is
from this judgment that Foremost appeals, contending that the
default judgment should be declared a nullity because no
proof of service exists. In the alternative, Foremost argues
that the trial court erred in confirming the default judgment
because the Wares did not present evidence sufficient to
establish their prima facie case under La. Code Civ.
P. art. 1702.
reviewing default judgments, the appellate court is
restricted to determining the sufficiency of the evidence
offered in support of the judgment. Arias v. Stolthaven
New Orleans, L.L.C., 2008-1111 (La. 5/5/09), 9 So.3d
815, 818. This determination is governed by the manifest
error standard of review. Id.
Foremost contends that the default judgment should be
declared a nullity because no proof of service exists in the
record. It is well settled that a default judgment may not be
taken against a person who has not received citation and
service thereof. Clay v. Clay,389 So.2d 31, 35-36
(La. 1979). Our review of the record reveals that the minute
entry of May 19, 2016, indicates that Foremost was served
with the petition. Additionally, in the transcript of the
default confirmation hearing, the Wares' attorney stated
that Foremost was served on April 20, 2016, at its registered
address for service of process through the Secretary of
State, and the trial court's clerk verified that no
answer or opposition had been filed. Initially, the service
return was not in the record, but because Rule 2-1.11 of the
Uniform Rules of the Courts of Appeal provides that
"[s]ubpoenas, notices, and returns may be omitted from
the record, unless they are at issue[, ]" this Court
ordered that the Clerk of Court for the 21st Judicial
District Court supplement the record with any service
returns. On ...