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Ramos v. Wright Alexander

Court of Appeals of Louisiana, Fifth Circuit

December 19, 2018

RAUL-ALEJANDRO RAMOS
v.
EBONY D. WRIGHT ALEXANDER AND FRANK "NITTI" ALEXANDER

          ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT PARISH OF ST. CHARLES, STATE OF LOUISIANA NO. 82, 793, DIVISION "C" HONORABLE EMILE R. ST. PIERRE, JUDGE PRESIDING

          PLAINTIFF/APPELLANT, RAUL-ALEJANDRO RAMOS In Proper Person

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst

          FREDERICKA HOMBERG WICKER, JUDGE

         Appellant, Raul Alejandro Ramos, seeks review of the April 11, 2018 judgment from the Twenty-Ninth Judicial District Court denying his motion for default judgment and dismissing with prejudice claims raised in his Petition to Stop the Extortion and Fraud. The trial court denied Appellant's motion for default judgment and dismissed his petition citing his failure to address any evidence in support of any of his claims made in his petition. For the following reasons, we vacate the trial court's judgment dismissing Appellant's petition and remand this matter for further proceedings.

         FACTS

         This matter arises out of a child support obligation imposed upon Appellant in support of his minor female child with whom he avers Appellees have prevented him from interacting.

         On March 30, 2017, Appellant filed a Petition to Stop the Extortion and Fraud with the Twenty-Ninth Judicial District Court. Defendants/Appellees, Ms. Ebony Wright Alexander (Ms. Wright)[1] and Mr. Frank "Nitti" Alexander, failed to answer Appellant's petition; thus, Appellant filed a Motion on the Pleadings on July 31, 2017. The trial court issued an order denying Appellant's motion on August 3, 2017. In its denial, the trial court suggested that Appellant seek legal counsel or self-remedy errors contained in his motion. The trial court further encouraged Appellant to review the Louisiana Code of Civil Procedure's provisions concerning service of process.

         On August 21, 2017, Appellant submitted a Request of Service with the St. Charles Parish Clerk of Court upon Appellees. On November 9, 2017, Appellant re-filed his Motion on the Pleadings[2] with the trial court, which set a hearing to show cause for January 22, 2018. On the 19th of January, Ms. Wright submitted a handwritten letter to the trial court requesting a continuance due to work hardship. Appellant objected to the continuance at the January 22nd hearing, and the court proceeded with the hearing on Appellant's motion. In a judgment rendered January 23, 2018, the trial court denied Appellant's motion for judgment on the pleadings, citing Appellees' failure to provide an answer to Appellant's petition as a barrier to Appellant's ability to pursue a motion for judgment on the pleadings. Through its written Reasons for Judgment, the trial court informed Appellant that the only viable recourse available to him was a Preliminary Default and default judgment.

         Appellant filed a Motion for Preliminary Default Judgment which was filed stamped by the Clerk's office on March 6, 2018. However, on February 23, 2018, the trial court entered a preliminary default in favor of Appellant and scheduled a hearing to show cause for April 6, 2018.[3] Three days prior to the scheduled April 6th hearing, Appellee, Ms. Wright, submitted a second, hand-written letter to the court requesting a continuance. The court denied Ms. Wright's request and on April 6, 2018, the trial court allowed Appellant to present evidence in support of his Petition to Stop the Extortion and Fraud.[4] On April 11, 2018, the trial court issued both a judgment and its written Reasons for Judgment as to Appellant's Petition to Stop the Extortion and Fraud. Within its reasons, the trial court outlined seven areas in which it believed Appellant sought relief and addressed each area in turn.[5] After its review of the record, the trial court held that Appellant failed to meet his burden of proof on every claim for relief; therefore, the court denied his Motion for Preliminary Default Judgment and dismissed his petition with prejudice and at his cost.

         DISCUSSION

         Default Judgment

         This case is before us on review of the trial court's denial of Appellant's motion for default judgment and dismissal of Appellant's Petition to Stop the Extortion and Fraud with prejudice upon finding that Appellant failed to establish a prima facie case to support his request for a judgment of default. An appellate court's review of a judgment of default is generally governed by the manifest error standard of review. Arias v. Stolthaven New Orleans, L.L.C., 08-1111 (La. 5/5/09), 9 So.3d 815, 818.

         Articles 1701 and 1702 of the Louisiana Code of Civil Procedure sets forth the procedure for obtaining a judgment of default. A judgment of default may be entered against a properly served defendant who fails to answer or file other pleadings within the time prescribed by law or the court. La. C.C.P. art. 1701. A judgment of default is sometimes referred to as a "preliminary default." ASI Fed. Credit Union v. Leotran Armored Sec., LLC, 18-341 (La.App. 5 Cir. 11/07/18); 2018 La. App. LEXIS 2209, citing Arias, 9 So.3d at 819.

         In order to confirm a preliminary default, proof of the demand "sufficient to establish a prima facie case" must be admitted on the record. La. C.C.P. art. 1702(A). A prima facie case must be established with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant. Apex Realty, LLC v. Vidrine's of Gonzales, LLC, 12-530 (La.App. 5 Cir. 3/13/13), 112 So.3d 301. The proof of the demand required by the Code of Civil Procedure is dependent upon the nature of the obligation (i.e., whether it is conventional or delictual). La. C.C.P. art. 1702(B). When a demand is based on a delictual obligation, as in the present case, plaintiff's testimony may be supplemented with corroborating evidence such as affidavits and exhibits. La. C.C.P. art. 1702(B)(2); Arias, 9 So.3d at 822 n. 11.

         Thus, to seek the confirmation of a judgment of default, "the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail at trial on the merits." Arias, 9 So.3d at 820. The standard of review for a trial court's evidentiary ruling is abuse of discretion, meaning the trial court's ruling will not be disturbed unless it ...


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