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Flores v. Brown Builders, Inc.

Court of Appeals of Louisiana, Third Circuit

October 18, 2017

HERIBERTO FLORES D/B/A HE FLORES CONSTRUCTION
v.
BROWN BUILDERS, INC., ET AL.

         APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20161850 HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE

          Jerald R. Harper Harper Law Firm COUNSEL FOR DEFENDANTS/APPELLANTS: Brown Builders, Inc. Villa Broussard, LLC.

          Craig Lewis Kaster Kaster & Cop, LLC COUNSEL FOR PLAINTIFF/APPELLEE: Heriberto Flores, d/b/a HE Flores Construction.

          Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van H. Kyzar, Judges.

          SHANNON J. GREMILLION JUDGE.

         Defendants/appellants, Brown Builders, Inc., and Villa Broussard, LLC, (hereafter, "Defendants"), appeal the default judgment entered in favor of Heriberto Flores, d/b/a HE Flores Construction (HE Flores) in the amount of $35, 996.00, plus legal interest and costs of court. For the reasons that follow, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On April 8, 2016, HE Flores filed suit against Defendants, alleging that he provided framing services as a subcontractor of Southern Framing and Construction, Inc., which, in turn, was the alleged subcontractor of Brown Builders, Inc. Brown Builders, Inc. was alleged to have been the prime contractor hired by Villa Broussard, LLC, to build a project on 8.39 acres in the Sugarcrest Retail Development in Lafayette, Louisiana. HE Flores alleged, in paragraph one of his petition, that Defendants were indebted to him for his framing services in the amount of $35, 996.00, plus penalties, legal interest, court costs, and attorney fees, and prayed for that amount. In paragraph three, however, he alleged that the amount of labor and materials owed for the work was $35, 811.00.[1]

         On May 11, 2016, Mr. Flores requested entry of a preliminary default against Villa Broussard. A preliminary default was entered that same day. On May 25, 2016, a preliminary default was sought and entered against Brown Builders.

         Mr. Flores requested a hearing date to confirm the defaults by letter dated June 1, 2016. The matter was fixed by the trial court for June 13, 2016.

         The trial court heard the testimony of Mr. Eduardo Flores, the brother of Heriberto Flores. Eduardo testified that he oversaw the seven-man crew of workmen who labored at the project from July 14, 2014 until August 12, 2014. Those men worked five days a week for ten hours a day, plus four hours a day on Saturdays and Sundays. Each employee was to be paid an additional $30.00 per day for food. HE Flores was hired by Southern Framing through "Kent and Larry, " the owners of the company, to frame buildings at the rate of $0.85 per square foot. Buildings one and two each totaled 12, 350 square feet. Building three measured 14, 350 square feet. Eduardo submitted the time for the employees to Mr. Tony Panti of Southern Framing, who paid for the first three days of work at $0.85 per square foot. Nothing was paid after July 17, 2014.

         Judgment was signed in open court on June 13, 2016. Defendants filed a motion for new trial arguing, principally, that they had emailed a copy of the petition to their counsel and counsel's spam filter intercepted the message. The trial court denied the motion for new trial on June 24, 2016, which was denied. This appeal followed. Defendants argue that the trial court erred in granting the default judgment and in denying its motion for new trial.

         ANALYSIS

         Default judgments must be confirmed by proof sufficient to establish a prima facie case. La.Code Civ.P. art. 1702(A). On review, an appellate court is limited to determining whether the evidence was sufficient to establish a prima facie case, and the appellant must overcome a presumption that the ...


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