Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Evans v. Jolly

Court of Appeals of Louisiana, Fifth Circuit

October 25, 2017

WILLIE EVANS
v.
TARUN JOLLY, M.D.

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 752-341, DIVISION "L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, WILLIE EVANS Anthony S. Taormina

          COUNSEL FOR DEFENDANT/APPELLANT, TARUN JOLLY, M.D.C. William Bradley, Jr.L. David Adams

          Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Robert A. Chaisson

          JUDE G. GRAVOIS, JUDGE.

         Defendant/appellant, Dr. Tarun Jolly, appeals a default judgment rendered against him on October 5, 2016 in favor of plaintiff/appellee, Willie Evans.[1] For the following reasons, we vacate the default judgment and remand the matter for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         On August 6, 2015, Mr. Evans filed a petition for damages against Dr. Jolly for medical malpractice and defamation. The petition alleged that Mr. Evans was injured on or about September 25, 2011 as a result of a trip and fall accident he was involved in while working for ADM Grain Elevator ("ADM"). As a result of said injury, ADM sent Mr. Evans to Dr. Jolly for treatment and pain management. According to the petition, "[o]n February 6, 2013, Dr. Jolly alleged that [Mr.] Evans failed a drug test as being positive for cocaine in his urine." The petition also alleged that Dr. Jolly "committed medical malpractice by failing to realize [Mr.] Evans never took said drug test as evidenced by there being no paperwork ordering a drug test at [Dr. Jolly's clinic] that was signed by [Mr.] Evans."[2] The petition further alleged that "a second urine test was taken on April 8, 2013 which [Mr.] Evans did sign a consent form, " after which Dr. Jolly "sent falsified results of the [u]rine test showing cocaine" to ADM, and as a result thereof, Mr. Evans was terminated from employment by ADM on April 22, 2013. Finally, the petition alleged that Dr. Jolly is liable to Mr. Evans for slander and defamation of character for damaging his reputation and character and for causing him to lose his job.

         On September 14, 2016, Mr. Evans filed a motion for a preliminary default, asserting therein that Dr. Jolly had been served with a copy of the petition for damages on August 20, 2015 and had failed to file an answer thereto within the time required by law. The trial court granted the motion for a preliminary default that same day. A default confirmation hearing was held on October 5, 2016. Following the confirmation hearing, the trial court rendered judgment in favor of Mr. Evans and against Dr. Jolly for "mental anguish, pain and suffering in the amount of $20, 000.00, together with court costs and legal interests [sic] from the date of judicial demand for the reasons given at the trial on the merits."[3]

         On December 16, 2016, Dr. Jolly filed a motion for a new trial and to set aside the default judgment. In his motion, Dr. Jolly claimed that he was never personally served with the citation and thus all proceedings in this action were absolutely null. He further argued that a new trial was warranted because Mr. Evans had failed to present sufficient evidence at the confirmation hearing to establish a prima facie case. A hearing was conducted on the motion on January 23, 2017; at the end of the hearing, the trial court denied the motion. A written judgment to that effect was signed on January 25, 2017. This timely appeal followed.[4]

         On appeal, Dr. Jolly argues that the default judgment was based on insufficient/inadmissible evidence and that he was never served with the petition for damages, thus rendering the default judgment absolutely null.[5]

         ASSIGNMENTS OF ERROR NOS. ONE, TWO, AND THREE

         In his first assignment of error, Dr. Jolly argues that the evidence presented was insufficient to prove the essential elements of Mr. Evans' alleged defamation claim, asserting that the default judgment was based solely on Mr. Evans' uncorroborated, self-serving testimony, which was inadequate to establish a prima facie case for defamation. In his second assignment of error, Dr. Jolly argues that the only evidence offered at the confirmation hearing to prove that he made any false claims about Mr. Evans and that the claims were communicated to a third party was based on inadmissible hearsay and was not corroborated with evidence admitted on the record. Finally, in his third assignment of error, Dr. Jolly argues that Mr. Evans failed to offer any evidence of malice or fault on Dr. Jolly's part.

         Confirmation of a default judgment is similar to a trial and requires "proof of the demand sufficient to establish a prima facie case." Power Mktg. Direct, Inc. v. Foster, 05-2023 (La. 9/6/06), 938 So.2d 662, 670; La. C.C.P. art. 1702(A). For a plaintiff to obtain a default judgment, he must establish the elements of a prima facia case with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant. Thibodeaux v. Burton, 88-1566 (La. 1/30/89), 538 So.2d 1001, 1004 (internal citations omitted). In other words, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits. Id. When a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. Gonza ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.