PAYPHONE CONNECTION PLUS, INC.
WAGNERS CHEF, LLC
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-02580,
DIVISION "E-16" Honorable Kern A. Reese, Judge.
Christopher J. Davidson John A. E. Davidson DAVIDSON &
DAVIDSON, APLC, COUNSEL FOR PLAINTIFF/APPELLEE.
A. Castex, Jr. CASTEX ESNARD, L.L.C., COUNSEL FOR
composed of Judge Daniel L. Dysart, Judge Rosemary Ledet,
Judge Tiffany G. Chase.
L. DYSART JUDGE.
appeal is taken from a trial court judgment confirming a
default judgment in favor of plaintiff-appellee, Payphone
Connection Plus, Inc. ("Payphone"), and against the
defendants, Jadallah Saed and Shadia Hamideh. After reviewing
the record and applicable law, we find that Payphone failed
to sustain its burden of proof for confirmation of the
default judgment. Accordingly, we vacate the trial court
judgment and remand this matter for further proceedings.
AND PROCEDURAL HISTORY
March 20, 2015, Payphone filed a Petition against Wagners
Chef, LLC ("Wagners") for an alleged breach of
contract. According to the Petition, Payphone
entered into a fifteen-year contract, a "Placement
Agreement," with Wagners on November 18, 2013, which
gave Payphone the exclusive right to install and operate an
automated teller machine ("ATM") on the property
located at 4301 Louisa Street in New Orleans. Payphone then
installed an ATM at the site, although the installation date
is not specified.
Petition alleges that Wagners breached the contract in June
or July, 2014, by installing another ATM at the Louisa Street
location. Wagners is alleged to have further breached the
contract in October, 2014 by unplugging Payphone's ATM
machine. Payphone sought the removal of the unauthorized ATM
machine by letter to Wagners dated October 8, 2014; however,
Wagners neither removed the ATM machine nor reconnected
Payphone's ATM machine. As a result, Payphone allegedly
of the Petition was made on Wagners, though its registered
agent, Jadallah Saed, on April 8, 2015.
19, 2015, Payphone filed a Motion for Preliminary Default
which was granted the same day. Payphone then moved to set a
trial to confirm the preliminary default on July 21, 2015; in
response, the trial court set a trial for August 26, 2015.
Before the trial occurred, however, Wagners appeared in the
case and filed an Answer on August 4, 2015.
then moved, on October 31, 2016, for leave of court to file a
Reconventional Demand (against Payphone) and a Third Party
Demand (against Nidal Jaber, who is alleged to be the owner
of 33.33% of Wagners' units; and Suzanne Wimsatt, who is
alleged to be Payphone's president and owner). While the
trial court set a hearing on Wagners' motion for leave to
file the reconventional demand and third party demand for
January 20, 2017, the record does not reflect a ruling on
months later, on August 28, 2017, Payphone filed a First
Supplemental and Amended Petition. This amended petition added
Jadallah Saed and Shadia Hamideh as defendants and amended
the original petition by alleging that (1) an affidavit of
dissolution was filed with the Louisiana Secretary of State,
dissolving Wagners and because of this, Wagners is "no
longer a juridical person or entity . . . [and] all the
assets and liabilities of the company flow to its members
individually"; and (2) Mr. Saed and Ms. Hamideh are
married, and the assets of Payphone are community property.
record reflects attempts to serve the amended petition on Mr.
Saed and Ms. Shadia over the course of five days in
September; those efforts were unsuccessful. Thereafter, in
response to a Motion to Appoint Private Process Server,
Crescent City Legal Process was appointed "process
server of the First Supplemental and Amended Petition"
on September 26, 2017. On October 10, 2017, a person
identified only as Tanya Craft filed an affidavit into the
record stating that she personally served the First
Supplemental and Amended Petition on Mr. Saed and Ms. Hamideh
on October 1, 2017.
then moved for another preliminary default on October 30,
2017, which was granted on October 31, 2017. After a June 8,
2018 hearing to confirm the preliminary default, the trial
court entered a "Final Judgment" on the same date
against Mr. Saed and Ms. Hamideh in the amount of "Three
Hundred Thousand One Hundred Four Hundred Eighty-Two and
50/100 dollars," along with attorney's fees of $8,
222.55, legal interest from the date of judicial demand and
all costs of the proceedings.
August 10, 2018, Mr. Saed and Ms. Hamideh filed a motion to
annul the June 8, 2018 judgment on several
bases. The motion was set for a hearing which was
continued twice and the current record does not reflect a
ruling on the Motion. Mr. Saed and Ms. Hamideh filed the
instant appeal of the June 8, 2018 judgment on August 13,
their appeal, Mr. Saed and Ms. Hamideh have raised three
assignments of error. Because we find merit to their second
assignment of error which requires the reversal of the trial
court's judgment, we address that issue, alone, and
pretermit a discussion of the remaining issues.
at June 8, 2018 hearing
hearing to confirm the default judgment, the only testimony
was that adduced from Ms. Wimsatt, Payphone's
owner/operator. Ms. Wimsatt identified the two Placement
Agreements and indicated that, to her knowledge, they
"are both signed . . . by persons authorized to sign
these agreements." Ms. Wimsatt then testified that the
agreements gave Payphone the right to exclusive use of ATMs
at the location identified in the Agreements. According to
Ms. Wimsatt, the Agreements allowed for damages for
anticipated revenue in case of a breach and in this case, she
prepared a calculation of anticipated revenue, offered into
evidence, which amounted to $296, 039.05. She was not
questioned about and gave no explanation as to how she
arrived at this figure.
Wimsatt then testified that the Payphone's ATM machine,
which had been bolted to the floor of the store, was no
longer on the premises and that she did not know what had
become of it. She was never notified that Payphone was in
breach of the Agreements. She indicated that the cost to
replace the ATM machine, and its accessories, was $5, 543.
Wimsatt was then questioned about Wagners' status as
evidenced by the following colloquy:
Q Now, after the suit was filed, and we do have a copy of it,
did Wagners Chef go into ...