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Zavala v. Dover Construction USA, LLC

Court of Appeals of Louisiana, First Circuit

April 11, 2018

NORBERTO ZAVALA
v.
DOVER CONSTRUCTION USA, LLC, AND NADIR HAOUM

          Appealed from The Office of Workers' Compensation District 6, Parish of St. Tammany State of Louisiana Case No. 14-07364 The Honorable Gwendolyn F. Thompson, Judge Presiding

          Paul A. Deas Metairie, Louisiana Counsel for Defendants/ Appellants Dover Construction USA, LLC and Hadir Naoum

          C. Ray Murry Shannon C. Lindsey Ingrid C. Diaz Amber E. Murry Slidell, Louisiana Counsel for Defendant/Appellee Norberto Zavala

          BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.

          THERIOT, J.

         The defendants-appellants, Dover Construction USA, LLC (Dover) and Hadir Naoum, [1] appeal a default judgment rendered against them by the Office of Workers' Compensation (OWC), District 6, in favor of the plaintiff-appellee, Norberto Zavala. For the following reasons, we affirm the judgment of the OWC in part, vacate in part, and remand for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         On November 5, 2014, Norberto Zavala filed with the OWC a disputed claim for compensation, in which he alleged that on February 14, 2014 he suffered an injury to his lower back, hips, and buttocks while in the scope of his employment with Dover. He alleged that he was on stilts while sanding the roof of a private residence located at 4276 Folse Drive in Metairie, Louisiana, when he lost his balance and fell, resulting in the aforementioned injuries. He reported this accident to the owner of Dover, who Mr. Zavala knew as "Thomas Naoum." Mr. Zavala claimed Dover refused to approve his disability status or to approve medical treatment, therefore, he alleged he was owed penalties and attorney fees. In naming Dover as a defendant in his disputed claim, Mr. Zavala also included "ATTN: Hadir Naoum, " with the address of 4726 Folse Dr., Metairie, Louisiana ("the Metairie address").

         Mr. Zavala's first attempt to serve Dover by certified mail was returned as unclaimed on February 3, 2015. On January 21, 2015, Mr. Zavala filed a motion to appoint a process server to serve Dover through "Hadir Naoum" at 5741 Crowder Blvd. B14, in New Orleans, Louisiana. The OWC granted the motion. The special process server issued an affidavit stating that on March 8, 2015, Dover was served through personal service on "Hadir Naoum" at the Metairie address.

         On April 27, 2015, Mr. Zavala filed a motion for preliminary default, claiming that Dover had not filed an answer to the disputed claim. The OWC granted the motion. On November 9, 2015, Mr. Zavala filed a motion to amend the disputed claim to include "Nadir Haoum, " located at the Metairie address, as an additional defendant. The OWC granted the motion. Dover was served with the amended petition by certified mail with attention to "Hadir Naoum" at the Metairie address. Although a signature appears on the receipt, there is no printed name. "Nadir Haoum" was served with the amended petition by certified mail, also at the Metairie address. The receipt includes a signature but no printed name. Both receipts were received by the OWC on November 30, 2015.

         Confirmation of the default was heard on May 19, 2016 and July 13, 2016. Mr. Zavala was present, but neither a representative of Dover nor Mr. Naoum were present. Mr. Zavala testified before the OWC regarding his accident and injury. He presented several exhibits for evidence, including certified medical records of his treatment, his disputed claim, the motion to appoint a process server, the amendment to his disputed claim, confirmation of service on "Nadir Haoum, " the motion for preliminary default, bills for medical service, and itemized attorney fees. The OWC concluded that Mr. Zavala made a prima facie case against Mr. Naoum, made findings as to benefits, penalties, and attorney's fees, and rendered judgment against Mr. Naoum for the total of the benefits, penalties, attorney fees, and court costs.

         A notice of signing of final judgment was sent by the OWC to Dover, attention to "Hadir Naoum, " and to "Nadir Haoum, " both at the Metairie address. The certificate on the notice indicates it was mailed by certified mail on August 19, 2016. Both Dover and Mr. Naoum made their first appearance in the instant case on August 25, 2016 with a motion and order to enroll as counsel of record. On August 30, 2016, Dover and Mr. Naoum filed a motion to nullify the judgment, and in the alternative, motion for new trial. Among his numerous allegations in the motion, Mr. Naoum claimed that he was never an employer of Mr. Zavala or of the coworkers Mr. Zavala called as witnesses in the confirmation hearing and that Mr. Naoum never personally saw the amended complaint that included him as a defendant until he received the notice of judgment. The OWC denied the motion ex parte on August 31, 2016. Dover and Mr. Naoum now appeal the default judgment and the denial of the motion to nullify and new trial.

         ASSIGNMENTS OF ERROR

         Mr. Naoum has cited ten assignments of error, most of which involve the merits of the case. Appellate courts generally will not consider issues raised for the first time on appeal. Mosing v. Domas, 2002-0012 (La. 10/15/02), 830 So.2d 967, 975. The only issues before us are whether Mr. Zavala made a prima facie case in his prayer for a default judgment, whether Mr. Naoum's motion for new trial ...


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