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.
COUNSEL FOR DEFENDANT/APPELLANT, TARUN JOLLY, M.D.C. William
Bradley, Jr.L. David Adams
composed of Judges Jude G. Gravois, Marc E. Johnson, and
Robert A. Chaisson
G. GRAVOIS, JUDGE.
Dr. Tarun Jolly, appeals a default judgment rendered against
him on October 5, 2016 in favor of plaintiff/appellee, Willie
Evans. For the following reasons, we vacate the
default judgment and remand the matter for further
AND PROCEDURAL HISTORY
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." 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.
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."
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
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.
OF ERROR NOS. ONE, TWO, AND THREE
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.
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 ...