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Davis v. European Motors

Court of Appeals of Louisiana, Second Circuit

August 9, 2017

JAMES DAVIS Plaintiff-Appellee

         Appealed from the Monroe City Court for the Parish of Ouachita, Louisiana Trial Court No. 2012CV03375, Honorable Jefferson B. Joyce, Judge

          THE PARHMS LAW FIRM, LLC Carlton L. Parhms Counsel for Appellant European Service, Inc.

          JAMES DAVIS In Proper Person Appellee

          Before BROWN, GARRETT, and BLEICH (Pro Tempore), JJ.

          BLEICH, J. (Pro Tempore), concurs with written reasons. BROWN, C.J., concurs with the opinion and Judge Bleich's written reasons.

          GARRETT, J.

         The defendant, European Service, Inc., appeals from a city court judgment that ordered it to pay damages to a customer whose car has never been returned after being left for repairs that were supposed to take three weeks. We affirm.


         What should have been a relatively easy matter to resolve in city court with minimal expense or delay to the parties has now spanned almost five years.[1]

         In July 2012, the plaintiff, James Davis, took his 1996 Mercedes Benz C220 to a repair shop located at 2111 Louisville Avenue in Monroe. According to the invoice given to Davis, the shop's name was "European Motors." Davis apparently dealt with Jeff Stegall, the service manager, and Ali Moghimi, the apparent owner.[2] According to Davis, he was told that the repairs would take three weeks. He paid a deposit of $2, 000 for the work to be performed. However, the car has never been returned and the record does not disclose what has become of it.

         On October 19, 2012, Davis, acting in proper person, filed a fill-in-the-blanks form petition in Monroe City Court, alleging that his car had been in for repairs for more than three months at European Motors. He sought the return of his vehicle, and a refund of his $2, 000 deposit and the small claims filing fee. In addition to European Motors, Davis named Stegall as a defendant, and the plaintiff requested that service be made on "European Motors/Jeff Stegall, " at the Louisville Avenue address.

         On October 29, 2012, Stegall, in proper person, filed an answer denying the allegations. He claimed that, as service manager, he was an agent or employee of European Motors and did not deal with the plaintiff in his individual capacity. Although he admitted the repairs were incomplete, he stated it was because the plaintiff failed to pay the amount requested in advance. He further asserted that more parts and labor were expended on the car than had been paid for by the plaintiff. In November 2012, Stegall filed a motion for summary judgment, alleging that he had no liability in the instant matter. The motion was eventually granted in February 2013, but all of the plaintiff's claims against European Motors were reserved.[3]

         On March 15, 2013, a declinatory exception of insufficiency of service of process was filed by Moghimi, acting in proper person.[4] He contended that service was improperly made, first upon Stegall, and then upon himself "d/b/a European Motors." He asserted that it was not valid because (1) he was not the registered agent for service of process for European Motors, Inc., which was domiciled in Rapides Parish; (2) he was not doing business as European Motors; and (3) the place where service was made was a business, not "the domicile, dwelling house or usual place of abode" of him or European Motors. He claimed that the entity doing business at the Louisville Avenue address was a different company, "Ouachita European Auto Service, LLC, " for which he was not the registered agent and which had had its charter revoked. Attached to the pleading was a document from the Louisiana Secretary of State which showed that Ouachita European Auto Service, LLC, had a revoked charter. The address given for this company was the Louisville Avenue address. However, it also showed that Moghimi had been both the registered agent and an officer of this entity, and that he had a West Monroe address.[5]

         On April 4, 2013, Moghimi filed a "motion to traverse certificate of readiness and to set aside fixing for trial, " which stated it was "for the purpose of preventing a miscarriage of justice." He stated that he had received a notice that the matter had been set for trial on May 6, 2013. He then enumerated reasons why he believed the matter was not ready for trial.

          On May 2, 2013, an answer was filed for European Service, Inc., by Moghimi as CEO. He asserted that the plaintiff was quoted a total price of $5, 300 ($3, 500 for used engine, $1, 500 for replacing wiring harness and motor mounts, and $300 for replacing oil seals), and that the plaintiff agreed to pay and made a deposit of $2, 000. He said that the defendant stopped work on the car after installing the replacement engine because it was apparent the plaintiff was not going to pay. He alleged that the plaintiff was told that the parts would be removed and he could come get the vehicle if he did not make full payment. The plaintiff neither paid nor retrieved the car. The defendant further asserted the affirmative defense of failure of consideration. In addition to the answer, Moghimi also propounded extensive discovery requests.

         At a hearing on the exception on May 2, 2013, Moghimi insisted that the matter was moot because the work had been performed on the car and it was ready to be picked up. He declared his intention to file a reconventional demand for payment once Davis picked up his car. Davis said that this was the first time he had been informed that the car was ready. The trial court subsequently continued the May 6, 2013 trial date, noting that Davis had just hired an attorney and each side had requested that the trial be continued. On May 3, 2013, the court issued a written ruling which also granted the defendant's exception and gave the plaintiff 30 days to amend his petition to include the proper party.

         On May 31, 2013, the plaintiff's attorney filed a first supplemental and amending petition. Named as defendant was European Service, Inc., which was domiciled in Monroe and whose agent for service of process was Dr. Nejad. The petition alleged that on July 9, 2012, the plaintiff took his 1996 Mercedes C220 to European Motors for repairs after the head-gasket broke and that it was decided that a working used engine and a new wiring harness would be installed. Stegall told the plaintiff that the used engine would cost $2, 500 and the wiring harness $1, 000. Moghimi told the plaintiff that he would need one-half of the total repair cost; the plaintiff put down a deposit of $2, 000. Although the plaintiff was told that the work would only take two to three weeks, he was subsequently given a myriad of excuses why the work was not completed. According to the petition, he still had not gotten his car back. He requested the return of his deposit; return of his car or its value; reimbursement for alternative transportation; and other damages, including inconvenience and loss of use, as well as attorney fees and court costs. The petition requested service upon Dr. Nejad at his Bramble Drive address in Monroe.

         On June 4, 2013, "Ali Moghimi dba European Motors" filed a motion to dismiss the lawsuit due to the plaintiff's alleged failure to amend his petition and a motion to compel the plaintiff to respond to discovery matters. In a memorandum opposing these motions, plaintiff's counsel recounted conflicting information she received as to whether the amended petition had been served. In particular, the plaintiff noted that he had received notice from the deputy clerk of court that service on Dr. Nejad could not be achieved because "SUBJECT UNKNOWN AT ADDRESS." As a result, pursuant to La. C.C.P. art. 1261(B)(1), counsel for the plaintiff requested personal service on Moghimi as secretary/treasurer, which occurred at the Louisville Avenue address on July 15, 2013.

         On July 30, 2013, another declinatory exception of insufficiency of service of process was filed by Moghimi as "officer of Defendant Pro Se European Service, Inc." He complained that service was made on him, not the registered agent, and that the plaintiff filed his amended petition without leave of court. On January 21, 2014, the plaintiff responded to this exception, stating that service was properly made on Moghimi pursuant to La. C.C.P. art. 1261(B)(1) because service on Dr. Nejad could not be achieved.

         In September 2014, plaintiff's counsel withdrew because she had been hired for a corporate position that precluded her from continuing to handle the case. In August 2015, the plaintiff, again in proper person, filed an amended petition in which he alleged that European Service, Inc., initially quoted him a price of $2, 000 to repair his car, kept the vehicle for more than three months without repairing it, and later requested more money for the repairs. He requested return of the $2, 000 payment, plus $5, 000 attorney fees, filing fees and return of the car. He requested service on the defendant at the Louisville Avenue address. The record shows it was served on Destin Cook, the sales manager, on August 5, 2015.

         On August 10, 2015, another hearing was held. During a lengthy discussion of addresses, it was revealed that Moghimi and Dr. Nejad both lived at the Bramble Drive address. The judge inquired why the bill given to the plaintiff had "European Motors" at the top - not "European Service, " the company Moghimi claimed was the proper defendant - and questioned whether Moghimi was trying to evade service. Moghimi asserted that the design of the bill heading was due to a computer program which provided too few lines at the top of the page. Although the trial court stated that it believed service had been perfected, it directed the plaintiff to have the clerk of court serve the petition and amended petition at the Bramble Drive address. The court ordered the parties to return for a hearing on November 3, 2015, and scheduled trial for November 17, 2015. No one objected to these settings.

         On October 29, 2015, Elham Moghimi, Moghimi's wife ("substituting Ad hoc for her husband"), filed a motion for continuance on the basis that her husband was on a trip to Iran and would not be able to return in time for the November 3, 2015 hearing because he had been "unavoidably detained." No other details were given. She further requested that "the trial presently fixed for March 24, 1995" be refixed. This motion was denied in open court on November 3, 2015. At the conclusion of that hearing, the trial court stated that all of the defendant's motions were denied at that point.

         Trial was held on November 17, 2015.[6] Davis testified as to the details of his dealings with Moghimi and Stegall, including the many excuses they gave him for their failure to complete the car repairs. He stated that he had never gotten his car back and had no knowledge of where it was. He further testified that, until he bought another car in early 2013, his lack of transportation caused him to lose 20 days as a substitute teacher for the Ouachita Parish School Board. The plaintiff's brother, Andrew Jones, testified that he was present at the repair shop during a discussion of the deposit his brother paid, and he verified the plaintiff's testimony about his lack of transportation. Numerous exhibits were introduced to corroborate the testimony. The trial court ruled in favor of the plaintiff and awarded him the following: $3, 175.00 for the Kelley Blue Book value of the unreturned car; $2, 000 for the money given to the defendant for repairs; $634.70 for car rental; $1, 200 for loss of wages; and all court costs. Judgment was signed on November 23, 2015.

         On December 9, 2015, European Services, Inc., (now represented by an attorney) filed a motion for new trial, which raised several issues: the denial of the motion to continue; the amended petitions; the alleged failure to properly serve the registered agent; the damages awarded; and the assessment of all costs to the defendant. A hearing was held on February 3, 2016, at which Moghimi and his attorney were present. Although served, Davis did not attend. Moghimi contended that he was unable to attend the trial because, while he was in Iran to resolve family matters arising from his father's death earlier in the year, his mother also died. Due to her death, he allegedly experienced blood pressure problems; was given an improper dosage of blood pressure medication by a pharmacist; and was seriously injured in a fall caused by the medication. He claimed to have a phone record that corroborated his assertion that he had contacted Davis, who allegedly agreed to the continuance. However, he did not bring the phone record to court. The trial court left the record open to allow Moghimi to produce additional proof of the alleged agreement with Davis to continue the trial. Although the record was left open for several months, no such proof was ever provided.

         Meanwhile, on May 25, 2016, a judgment debtor exam was held, at which Moghimi resumed his self-representation. He stated that the judgment the plaintiff had was against a corporation that was no longer doing business and had no assets.[7] He further stated that he might loan money ...

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