APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 710-152, DIVISION
"A" HONORABLE RAYMOND S. STEIB, JR., JUDGE
COUNSEL FOR PLAINTIFF/APPELLEE, 131 BEVERLY KNOLL, LLC Jason
M. Cerise, Omer F. Kuebel, III, Natalie M. White
COUNSEL FOR DEFENDANT/APPELLANT, CLIPPER CONSTRUCTION, LLC
AND JOSEPH S. TUFARO Thomas P. Hubert, David K. Theard
composed of Judges Stephen J. Windhorst, Hans J. Liljeberg,
and John J. Molaison, Jr.
STEPHEN J. WINDHORST, JUDGE
Clipper Construction, LLC ("Clipper Construction")
and Joseph S. Tufaro ("Tufaro"), appeal the trial
court's (1) May 22, 2017 confirmation of default judgment
in favor of appellee, 131 Beverly Knoll, LLC ("131
Beverly Knoll"), and against appellants; and (2) May 21,
2018 judgment denying appellants' motion for new trial.
Appellants also filed a peremptory exception of res
judicata in this Court. For the reasons that follow,
appellants' peremptory exception of res judicata
is overruled and the trial court's May 22, 2017
confirmation of default judgment and May 21, 2018 denial of
appellants' motion for new trial are affirmed.
and Procedural History
January 10, 2012, appellee, 131 Beverly Knoll, filed a
"Petition for Executory Process and Appointment of
Keeper" against Clipper Construction. In its petition,
appellee asserted the following: (1) it was the holder and
owner of two promissory notes ("notes") executed in
2005 and 2008 by Tufaro on behalf of Clipper Construction
("Borrower") in favor of First Community Bank
("FCB" or "Lender"); (2) the notes were
secured by a mortgage executed by Tufaro on behalf of
Borrower; (3) the notes were obtained for the sole purpose of
building a residential home at 129 Beverly Drive
("Beverly Property"); (4) the Beverly Property was used
to secure the notes; (5) Troy Duhon purchased the notes and
collateral documents from FCB; (6) Duhon assigned the notes
and collateral documents to appellee; (7) the notes and
mortgage were in default; (8) the current indebtedness due to
appellee; (9) notice of default was sent to Borrower; and
(10) Borrower failed to remit payment.
January 12, 2012, based on the allegations in the petition
and attachments thereto, the trial court ordered a writ of
seizure and sale of the Beverly Property. On October 3, 2012,
the Beverly Property was sold for $885, 000.00.
August 25, 2015, appellee filed a "Second Amended and
Restated Petition Converting Executory Process Foreclosure to
Deficiency Judgment Action," adding Tufaro,
individually, as an additional defendant. The second
amended petition contended that the price at the foreclosure
sale was insufficient to satisfy the indebtedness owed to
appellee and requested that the proceeding be converted to an
ordinary proceeding to obtain the deficiency amount
owed. Appellants were personally served with the
second amended petition on February 2, 2016.
February 24, 2016, appellee filed a motion for preliminary
default judgment after appellants failed to appear or file an
answer or pleading. On February 14, 2017, the trial court
granted the motion for preliminary default
22, 2017, appellee filed a motion for confirmation of default
judgment. On the same day, the trial court granted
judgment in favor of appellee and against appellants, in
solido, for the principal sum of $274, 443.53, plus
accrued interest thereon through May 18, 2017 in the amount
of $270, 231.92, together with attorney fees in the amount of
$33, 502.50, plus costs and expenses in the amount of $1,
352.90, plus interest continuing to accrue thereafter on said
sums at the rate of 21% per annum, until paid, plus all
attorney's fees, costs, and expenses incurred with the
collection and/or enforcement of the judgment.
30, 2017, appellants filed a motion to annul default judgment
or alternatively, motion for new trial, alleging (1) the ill
practices of appellee's counsel for failing to notify
appellants' counsel of its intention to file a motion for
preliminary default judgment and to confirm the default
judgment, when appellee knew appellants were represented by
counsel; and (2) that Tufaro believed that the claims in the
second amended petition for deficiency judgment were
extinguished by a settlement agreement entered into by the
parties in November 2012 ("2012 Settlement
Agreement"), one month after the Beverly Property was
sold. Appellants filed a consent motion to continue and
reset the hearing, which the trial court denied on July 31,
2017, stating "the Motion to Annull [sic]
Default Judgment is Denied Improper Form."
March 22, 2018, appellants filed an unopposed motion to reset
their motion for new trial, arguing that the trial court did
not rule on their previously filed motion for new trial.
Appellants' motion for new trial was set for hearing.
9, 2018, after argument of counsel and submission of exhibits
into evidence, the trial court denied appellants' motion
for new trial. The trial court found that (1) appellants
were properly served with the petition; (2) appellants failed
to appear or file an answer or other pleading; (3) in
February 2016, appellee's counsel sent, and appellants
received notice of, appellee's intention to file a motion
for preliminary default; (4) appellants had over a year to
file an answer or other pleading in response to the motion
for preliminary default but failed to do so; (5) the motion
for preliminary default was granted almost one year after it
was filed; (6) the evidence supporting the motion for
confirmation of default judgment presented a prima facie
case; and (7) the confirmation of default judgment was
properly served on appellants. A written judgment denying the
appellants' motion for new trial was signed on May 21,
2018. This appeal followed.
appeal, appellants contend that the trial court erred in
granting appellee's motion for confirmation of default
judgment and denying appellants' motion for new trial.
Additionally, appellants filed a peremptory exception of
res judicata, for the first time, with this Court.
Appellants' peremptory exception may be raised for the
first time in the appellate court pursuant to La. C.C.P. art.
2163, and will be considered herein.
of Res judicata
contend that on November 6, 2012, one month after the Beverly
Property was sold in this proceeding, the parties entered
into the 2012 Settlement Agreement, which extinguished any
debt owed and remaining by Clipper Construction and/or Tufaro
to Duhon concerning the Beverly Property. Appellants assert
that the 2012 Settlement Agreement involves the same parties
and the same ...