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McCall v. Marshall

Court of Appeals of Louisiana, Second Circuit

November 15, 2017

BYRON McCALL Plaintiff-Appellant
v.
GWENDYLON MARSHALL Defendant-Appellee

         Appealed from the Monroe City Court for the Parish of Ouachita, Louisiana Trial Court No. 2016CV04304 Honorable Aisha S. Clark, Judge

          BYRON McCALL In Proper Person.

          MICHAEL EUGENE KRAMER Counsel for Appellant.

          OFFICES OF WILLIE HUNTER, JR. By: Marcus Lamar Hunter Counsel for Appellee.

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

          BLEICH, J. (Pro Tempore)

         Byron McCall, plaintiff and defendant-in-reconvention, appeals the default judgment entered against him by the Monroe City Court, Ouachita Parish, Louisiana. For the following reasons, we reverse the judgment.

         FACTS

         On December 22, 2016, Byron McCall filed suit in Monroe City Court against Gwendolyn Marshall for breach of contract. [1] The record suggests that Marshall's house had flood damage and she entered into a contract with McCall to perform repairs. McCall alleged in his petition that Marshall failed to pay him for the work completed on her home. He also claimed Marshall moved back into her home while he was still working on it, preventing him from completing the agreed upon repairs. His original petition did not include a specific disputed amount of unpaid fees, but did request court costs and attorney fees be awarded to him.

         Marshall filed an answer and reconventional demand denying McCall's allegations and asserting his workmanship was substandard, thereby requesting full reimbursement of the fees already paid to McCall.[2]The reconventional demand citation was ostensibly served on McCall via domiciliary service on February 1, 2017. Thereafter, McCall failed to timely answer Marshall's reconventional demand.

         On March 1, 2017, Marshall filed a motion for default judgment. Marshall also requested payment of court costs and attorney fees. On March 3, 2017, a judgment was entered in favor of Marshall awarding her $35, 000.00, plus $5, 000.00 in attorney fees and $85.00 in court costs.

         On March 6, 2017, three days after the judgment was rendered, but before he was served with the notice of judgment, McCall filed an answer to Marshall's reconventional demand. McCall then filed this suspensive appeal of the default judgment rendered against him.[3]

         DISCUSSION

         A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. La. C.C.P. art. 1702. In parish and city courts, if the defendant fails to answer timely, or if he fails to appear at the trial, and the plaintiff proves his case, a final default judgment in favor of the plaintiff may be rendered with no preliminary default necessary. La. C.C.P. art. 4904(A). The plaintiff may obtain a final default judgment only by producing relevant and competent evidence which establishes a prima facie case. La. C.C.P. art. 4904(B). When the suit is for a ...


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