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Sork v. Sork

Court of Appeals of Louisiana, First Circuit

February 9, 2018

PRISCILLA SCHOEN SORK
v.
JOHN ARTHUR SORK, MICHAEL LEE SORK, RICHARD JOSEPH SORK AND MICHELLE CONSTANCE SORK

         ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT NUMBER 2016-12375, DIVISION A, PARISH OF ST. TAMMANY STATE OF LOUISIANA HONORABLE RAYMOND S. CHILDRESS, JUDGE

          Wiley J. Beevers Shayna Beevers Morvant Steven M. Mauterer Gretna, Louisiana Counsel for Plaintiff-Appellee Priscilla Schoen Sork

          James Patrick DeSonier Patricia Regan Fox Mandeville, Louisiana Counsel for Defendants-Appellants Richard Joseph Sork and Michelle Constance Sork Ryan.

          BEFORE: WHIPPLE, C.J., PETTIGREW, McDONALD, McCLENDON, AND CHUTZ, JJ.

          CHUTZ, J.

         Defendants-appellants, Richard Joseph Sork and Michelle Constance Sork Ryan, appeal the trial court's default judgment awarding to their step-mother, plaintiff-appellee, Priscilla Schoen Sork, one-half of monthly mortgage payments she made on a loan secured by immovable property that they and their siblings own in indivision with her as well as one-half of her repair and maintenance expenses for the immovable property. For the following reasons, we reverse in part and affirm as amended in part.

         FACTUAL AND PROCEDURAL BACKGROUND

         Priscilla, as the surviving spouse of defendants' father, William Joseph Sork, rejected, renounced, and disclaimed the "usufruct for life or remarriage" in 2009. According to the terms of the judgment of possession, [1] in lieu of the usufruct, the parties agreed that 50% ownership of the home located at 19399 S. Fitzmorris Road in Covington, Louisiana was vested in Priscilla; and the other 50% ownership was vested in William's four adult children, with each sibling receiving 12.5% of the ownership of the home.[2] The judgment of possession stated that Priscilla personally assumed liability of one-half of the remaining mortgage balance and that the four Sork siblings assumed the remaining one-half of the mortgage balance jointly.[3]

         On June 13, 2016, Priscilla filed a petition for reimbursement and for specific performance naming each of the four Sork siblings as defendants. In the petition, Priscilla averred that she had made all the mortgage payments without reimbursement. She also alleged that she had paid all the expenses for repairs and maintenance of the home without any reimbursement.

         On August 26, 2016, acknowledging that the petition had been served on only Richard and Michelle, Priscilla moved for a preliminary default judgment against the two of them. On September 12, 2016, the trial court ordered entry of the preliminary default in the minutes of court.

         Priscilla filed a motion to confirm the preliminary default against Richard and Michelle on September 15, 2016. Therein, she averred that she had paid a total of $70, 566.31 in mortgage payments and $32, 392.45 for maintenance and necessary repairs to the property. After a hearing on October 20, 2016, the trial court confirmed the preliminary default and signed a judgment, which concluded that Richard and Michelle were responsible for one-half of the total reimbursement due for mortgage payments and one-half of all necessary repairs and maintenance for the home. Richard and Michelle were ordered to pay to Priscilla the sum of $35, 283.15, which represented one-half of the total mortgage payments of $70, 566.31. They were also ordered to pay to Priscilla the amount of $16, 196.22, which was one-half of her total maintenance and repair expenditures of $32, 392.45. Richard and Michelle were ordered to pay judicial interest on the amounts owed to Priscilla as well as attorney fees in the amount of $7, 500.00. Richard and Michelle appeal.

         DISCUSSION

         When a default judgment is before a court of appeal, our review is restricted to a determination of the sufficiency of the evidence offered in support of the judgment. That determination is a factual one governed by the manifest error standard of review. The reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's finding but must determine from a review of the record in its entirety whether the trial court's finding was clearly wrong or manifestly erroneous. Whitney Bank v. NOGG, L.L.C, 2015-1399 (La.App. 1st Cir. 6/3/16), 194 So.3d 819, 822-23.

         Confirmation of a preliminary default is similar to a trial and requires, with admissible evidence, proof of the demand sufficient to establish a prima facie case. The elements of a prima facie case are established with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant. Environmental Safety and Health Consulting Services, Inc. v. Reynolds Nationwide, Inc., 2014-0787 (La.App. 1st Cir. 12/23/14), 168 So.3d 593, 594.

         Open Account

         Priscilla claims that the sums due constituted an open account and, therefore, under La. C.C.P. art. 1702B(3), her affidavit of correctness was prima facie proof sufficient to support ...


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