author: JOAN BERNARD ARMSTRONG, Chief Judge. TOBIAS, J.,

text:
    Lantson E. ELDRED v. Sally FLEMING Sally Fleming v. Lantson Eldred.
    Nos. 2010-CA-0794, 2010-CA-0795.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 20, 2011.
    Rehearing Denied March 2, 2011.

      Irl R. Silverstein, The Silverstein Law Firm, APLC, Gretna, LA, for Lantson E. Eldred.
    Harry Rosenberg, Phelps Dunbar L.L.P., New Orleans, LA, for Sally Fleming.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, and Judge MAX N. TOBIAS, JR.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

|,The plaintiff, Lantson E. Eldred, a citizen of California, appeals a summary judgment granted by the trial court dismissing his claims against the defendant, Sally Fleming, a citizen of Louisiana. For the reasons that follow, we affirm the judgment of the trial court.

On April 26, 2002, Mr. Eldred brought suit against Ms. Fleming in Civil District Court for the Parish of Orleans (CDC), No. 02-6743, to make executory in Louisiana a 2001 judgment he had obtained in the Superior Court for the State of California, County of Riverside, in Proceeding No. INC 019498. On August 28, 2003, Ms. Fleming brought a counter-suit against Mr. Eldred in the CDC proceeding, to declare the foreign judgment null on the basis of lack of in personam jurisdiction and to nullify Mr. Eldred’s petition on the basis of fraud or ill practices, and for damages. Mr. Eldred filed a dilatory exception of improper cumulation of actions, which the trial court granted, allowing Ms. Fleming to sever her claims for relative nullity and damages by amending her original petition, and granting her leave to bring the claims in a new proceeding. Ms. Fleming subsequently complied with the trial court’s ruling, filing a petition, bearing CDC [2No. 07-8460, for relative nullity, damages, and attorney’s fees, encompassing the severed claims, and an amended petition and/or reconventional demand and third party petition to declare the foreign judgment null on the basis of lack of in personam jurisdiction. The latter amended petition contained only the claims of absolute nullity of the California Judgment and domesticated Louisiana judgment. Mr. Eldred filed an exception of lack of subject matter jurisdiction to the recon-ventional demand, and exceptions of lack of jurisdiction and prescription to the severed claims. By Order dated December 21, 2007, No. 07-8460 was transferred to the CDC division where 02-6743 was then pending. The trial court denied Mr. El-dred’s exception of lack of subject matter jurisdiction by judgment rendered on January 4, 2008 and signed on January 8, 2008, and consolidated the two actions by Order dated March 6, 2008. On February 28, 2008, Mr. Eldred applied to this Court for supervisory review of the trial court’s denial of his exceptions of lack of subject matter jurisdiction and prescription. On March 24, 2008, this Court denied the writ, holding:

We find no error in the trial court’s judgment denying Relator’s [Mr. El-dred’s] exceptions of lack of subject matter jurisdiction and lack of jurisdiction and prescription. Accordingly, Relator’s application for supervisory writ is denied.

In January 2010, Ms. Fleming moved for summary judgment, representing that there are no genuine issues of material fact as to the dispositive issue that the California court lacked in personam jurisdiction over her, making the California judgment an absolute nullity. The trial court granted the motion for summary judgment, nullifying absolutely the California default judgment and the subsequent I.^domesticated judgment Mr. Eldred obtained in Orleans Parish. The trial court further annulled and vacated the California judgment domesticated in Orleans Parish nunc pro tunc from the date of the default judgment, and ordered the Recorder of Mortgages for Orleans Parish to cancel and erase immediately the judgment entered by the trial court on April 26, 2002, and recorded on July 12, 2002 in Book No. 3688, Folio 361, bearing Mortgage Instrument No. 660964. The trial court granted Mr. Eldred’s motion for a suspensive appeal, upon his posting a $25,000.00 bond. The said bond was received by the Clerk of the trial court by receipt # 39885 dated April 13, 2010, and verified by the deputy clerk of court on April 15, 2010.

Appellate courts review summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Insurance Company v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions such as this. The procedure is favored and shall be construed to accomplish these ends. La.Code Civ. Proc. art. 966 A(2). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966 B. The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an | .absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La.Code Civ. Proc. art. 966 C(2).

An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La.Code Civ. Proc. art. 967; Townley v. City of Iowa, 97-493, p. 5 (La.App. 3 Cir. 10/29/97), 702 So.2d 323, 326.

The following facts were established by Ms. Fleming’s sworn affidavit, submitted in support of her motion for summary judgment:

1. Ms. Fleming is and was at all relevant times a major, resident and domiciliary of the State of Louisiana.

2. Ms. Fleming is the former owner of 821-823 Governor Nicholls Street in New Orleans (the Property).

3. Daniel Resnic, a resident of the State of California, acted independently and was at no time given authority to act as Ms. Fleming’s agent or in any other way on her behalf.

4. Mr. Resnic was not authorized to enter into agreements on her behalf.

5. Under the terms of her agreement with Mr. Resnic, Ms. Fleming had the right to approve the terms of any lease entered into on the Property.

6. Ms. Fleming did not pledge to oversee or control Mr. Resnic’s work.

7. There was no understanding on Ms. Fleming’s part that Mr. Resnic would advertise the rental of the Property exclusively in California.

]fi8. Ms. Fleming has never resided in or been employed in California.

9. Ms. Fleming has never engaged in any action designed to avail herself of the legal protections of California.

10. Ms. Fleming received no payment from Mr. Resnic or Mr. Eldred, except for Mr. Eldred’s check payable to her in the amount of $75.00, representing payment of a fraction of the utility bills incurred in connection with his occupation of the Property.

11. Ms. Fleming and Mr. Resnic were named defendants in an action brought by Mr. Eldred on October 6, 2000, in the Superior Court of the State of California, Riverside County, Indio Branch.

12. In that complaint, Mr. Eldred erroneously alleged that Mr. Resnic acted as Ms. Fleming’s agent.

13. On August 22, 2001, Ms. Fleming filed a motion to quash service for lack of in personam jurisdiction in the California court.

14. In the motion to quash, Ms. Fleming denied Mr. Eldred’s allegation that Mr. Resnic was her agent, and asserted that there was no basis for holding her subject to the jurisdiction of the California court.

15. Ms. Fleming telephoned the California court and was informed that her motion to quash was set for hearing on November 7, 2001.

16. The hearing did not take place on November 7, 2001, but on October 11, 2001 a hearing was held in the California court and on November 7, 2001, a default judgment was entered into the court’s record.

17. Ms. Fleming received no notice of the October 11, 2001 hearing date.

|fi18. Ms. Fleming received no service or notice of the default judgment, because notice was sent to an address in Louisiana that Mr. Eldred knew to be out-dated.

19. Mr. Eldred initiated the present suit on April 26, 2002, by filing his petition to domesticate the California default judgment.

20. The domesticated Judgment was signed that same day, April 26, 2002.

21. Mr. Eldred’s petition misstated her address as 621 Governor Nicholls, although she has never resided at that address.

22. Ms. Fleming never received service of the petition or the subsequent domesticated judgment, and discovered the existence of the domesticated judgment while perusing the public record.

23. On August 20, 2007, she filed her amended petition and/or reconventional demand alleging that the California default judgment and the domesticated judgment are absolutely null for lack of in personam jurisdiction.

Ms. Fleming attached to her affidavit the following documents: (1) copy of Mr. Eldred’s California petition against Mr. Resnic, Ms. Fleming and twenty “Does”; (2) copy of Ms. Fleming’s motion to quash service for lack of in personam jurisdiction, filed by special and limited appearance in the California court; (3) copy of Ms. Fleming’s memorandum in support of her motion to quash service; (4) copy of Mr. Eldred’s request for entry of default dated November 28, 2000; (5) copy of the California default judgment; (6) copy of Mr. Eldred’s petition to make the foreign judgment executory in Louisiana; (7) copy of the domesticated judgment rendered on April 26, 2002; (8) certificate of service showing that the default judgment was mailed to Ms. Fleming at “821 Governor Nichols [sic] Street, New Orleans, LA 70116,” on August 9, 2001, by regular United States mail; (9) 17copy of California default judgment rendered in favor of Mr. Eldred and against Mr. Resnic and Ms. Fleming in the amount of $24,900.00, with proof of service of the judgment by regular United States mail on November 1, 2001; (10) CDC clerk’s certificate indicating that the petition in No.2002-6743 was mailed by Certified United States mail to Ms. Fleming at 621 Governor Nicholls Street in New Orleans, together with the envelope indicating that it was “not deliverable as addressed, unable for forward.”

Mr. Eldred filed his affidavit in opposition to Ms. Fleming’s motion for summary judgment. Mr. Eldred averred that:

1.He and a companion viewed South-ernComforts.com, a website operated by Mr. Resnic, and became interested in a property listing at 823 Governor Nicholls Street in New Orleans.

2. Mr. Resnic sent an e-mail to his companion on March 31, 2000, indicating the availability of the Property, having confirmed with the owner, Sally Fleming.

3. Upon arriving at the Property, Mr. Eldred and his companion found it was still under construction and/or renovation, and were both greeted and advised by Ms. Fleming to spend one or two nights in a small upstairs apartment to give her the opportunity to complete the work on the unit that was rented.

4. At no time did Ms. Fleming indicate that she had not authorized the offering of the unit for rental by Mr. Resnic on his website, nor did she ever deny having authorized the rental of this particular unit to Mr. Eldred.

Mr. Eldred submitted the following statement of material facts that he claims are in dispute:

IrI. That Mr. Resnic operated as the agent of Ms. Fleming and was not an independent actor based upon her oral agreement with Mr. Resnic allowing him to list the Property for rent on his website;

2. Whether or not the California Court set a hearing date for the Motion to Quash filed by Ms. Fleming;

3. That Ms. Fleming authorized Mr. Resnic to confirm the approval of the lease agreement with Mr. Eldred.

It is clear and undisputed that although Ms. Fleming filed a motion to quash service for lack of in personam jurisdiction in the California proceeding, the hearing on that motion, purportedly set for November 7, 2001 was never held. Although the California court rendered a default judg-merit on October 11, 2001, Ms. Fleming heard no more from either Mr. Eldred or the California court. Six months after rendition of the default judgment, Mr. El-dred sought to enforce the California judgment in this State, but used an incorrect address to obtain service on Ms. Fleming. We note that his affidavit does not dispute Ms. Fleming’s assertion that he intentionally directed service to an address he knew was incorrect. Ms. Fleming therefore had no knowledge of the default judgment or its domestication hearing, and learned of the California judgment and the Louisiana domesticated judgment by happenstance.

We find two valid bases for the trial court’s summary judgment. First, this Court’s prior ruling in No.2008-C-0233 on this Court’s docket is the law of the case and precludes our reconsideration of those issues on subsequent appeal. Reed v. St. Charles General Hosp., pp. 9-10, 08-430, 08-431, 08-570, 08-572, 08-573 (La.App. 4 Cir. 5/6/09), 11 So.3d 1138, 1145-46, writ denied, 09-1252 (La.9/18/09), 17 So.3d 979. The law of the case doctrine applies to decisions on writ ^applications as well as to judgments rendered on sus-pensive or devolutive appeals. Second, the trial court’s finding, as a matter of law, that the California court lacked in person-am jurisdiction over Ms. Fleming is clearly correct. The party seeking to invoke in personam jurisdiction, Mr. Eldred in this case, bears the burden of establishing the existence of such jurisdiction. In Mr. El-dred’s petition, filed in the California proceeding, he alleged that Ms. Fleming was a Louisiana resident and that Mr. Resnie was a California resident. He asserted a breach of contract claim based on an alleged oral agreement he entered into in April of 2000 with Mr. Resnie, who, he alleged, acted as Ms. Fleming’s agent, to rent the Property for one month.

Ms. Fleming admits that she was served personally with the petition in the California suit, but notes that she was not served with the California default judgment or the petition to domesticate that judgment in Louisiana. Furthermore, prior to entry of the default judgment, Ms. Fleming filed a motion in the California court to quash service, noting the jurisdictional defect. In her supporting memorandum, Ms. Fleming advised the California court that Mr. Eldred apparently learned of the Property through a promotion Mr. Resnie transmitted on the internet, and noted that California lacked an interest in the rental dispute among the parties.

In California, as in Louisiana, the exercise of in personam jurisdiction must be consistent with the due process safeguards provided in the state and federal constitutions. Shisler v. Sanfer Sports Cars, Inc., 146 Cal.App.4th 1254, 1258, 53 Cal.Rptr.3d 335, 337 (Cal.App. 6 Dist.2006), citing Pavlovich v. Superior Court, 29 Cal.App.4th 262, 268, 127 Cal.Rptr.2d 329, 58 P.3d 2 (2002). Constitutional due process permits a court to exercise in per-sonam jurisdiction over a foreign defendant in Ms. Fleming’s position when: (1) the defendant 110purposely has availed herself of the benefits and protections of the forum state by establishing minimum contacts with that state; and (2) the exercise of jurisdiction over the defendant will not offend traditional notions of fair play and substantial justice. International Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Sufficient minimum contacts will give rise to either specific or general jurisdiction. Revell v. Lidov, 317 F.3d 467, 470 (5th Cir.2002). The determination of whether specific or general jurisdiction exists is based on the nature and quality of the foreign defendant’s contacts with the forum state. Shisler v. Sanfer Sports Cars, Inc., supra, 146 Cal.App.4th at 1258-59, 53 Cal.Rptr.3d at 337.

General jurisdiction is based on a foreign defendant’s “continuous and systematic” contacts with the forum state. Revell v. Lidov, supra. In this case, it is apparent that Ms. Fleming’s contact with California was neither continuous nor systematic. It is undisputed that she never lived in, worked in, or owned or operated a business in California. Therefore, general in personam jurisdiction over Ms. Fleming would not meet the constitutional due process standard.

Specific jurisdiction may exist when all of the following factors are present: (1) Ms. Fleming, as a foreign defendant, has performed some act or consummated some transaction within California or otherwise purposefully availed herself of the privileges of conducting activities in California, and (2) the claim arises out of or results from her forum-related activities, and (3) the exercise of jurisdiction is reasonable. See Bancroft & Masters, Inc. v. Augusta Nat. Inc., 223 F.3d 1082, 1086 (9th Cir.2000); see also Pavlovich v. Superior Court, supra. The sole contacts alleged to support a finding of specific jurisdiction in the instant case are Mr. Resnic’s action in placing the Property on his passive website and his actions Inin contracting, perhaps with Mr. Eldred’s companion, as Ms. Fleming’s alleged agent, for the rental of the Property.

In addressing the unique circumstances presented by a foreign defendant’s transaction of business over the Internet, the courts of Louisiana and California have applied the sliding scale standard enunciated in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1123-24 (W.D.Pa.1997). See Swoboda v. Hero Decks, 09-1303 (La.App. 4 Cir. 3/31/10), 36 So.3d 994, unit denied 10-0993 (La.6/25/10), 38 So.3d 346 and Shisler v. Sanfer Sports Cars, Inc., supra. The Zippo standard was summarized in Mink v. AAAA Development LLC, 190 F.3d 333, 336 (5th Cir.1999):

At one end of the spectrum, there are situations where a defendant clearly does business over the Internet by entering into contracts with residents of other states which “involve the knowing and repeated transmission of computer files over the Internet.” ... In this situation, personal jurisdiction is proper.... At the other end of the spectrum, there are situations where a defendant merely establishes a passive website that does nothing more than advertise on the Internet. With passive websites, personal jurisdiction is not appropriate. In the middle of the spectrum, there are situations where a defendant has a website that allows a user to exchange information with a host computer.... In this middle ground, “the exercise of jurisdiction is determined by the level of interactivity and commercial nature of the exchange of information that occurs on the Website.” [Citations omitted.]

In the instant case, Mr. Resnic operated a passive website that merely advertised on the Internet. Given the passive nature of the website, we cannot conclude that Mr. Eldred’s viewing of that website from his computer in California supports the exercise of specific in personam jurisdiction over Ms. Fleming.

Alternatively, Mr. Eldred argues that Mr. Resnic acted in California as Ms. Fleming’s agent, making her amenable to specific in personam jurisdiction in that 112state. In order to establish such a basis for jurisdiction, Mr. Eldred is required to advance some evidence to support the contention of agency that he claims in the pleadings. Absent such evidence, the action is subject to dismissal. 1 Robert C. Casad and William M. Richman, Jurisdiction in Civil Actions § 4 — 3[l][a] (3d ed.1998). A close reading of Mr. Eldred’s affidavit discloses no evidence upon which to base a finding that Mr. Resnic was Ms. Fleming’s agent. He offers only a conelu-sory statement that Ms. Fleming did not deny an agency relationship. However, he did not offer any proof of the scope of Mr. Resnic’s alleged authority. The e-mail message Mr. Eldred submitted was sent by Mr. Resnic to Mr. Eldred’s companion. Neither Mr. Eldred nor Ms. Fleming was a party to the message. Ms. Fleming points out in her affidavit that not only did she not authorize Mr. Resnic to act as her agent and to contract on her behalf, he acted as a passive advertiser only, and was not given authority to transact affairs on her behalf. Based on the evidence of record, there is no doubt that Ms. Fleming’s alleged activity does not rise to the level of purposeful availment of California law. To compel Ms. Fleming to submit to the jurisdiction of California, under the facts of record, would violate her constitutional due process rights.

Because Mr. Eldred’s evidence does not support the conclusion that there exists a genuine issue of material fact as to the jurisdictional issue, we are compelled to conclude that summary judgment in favor of Ms. Fleming is appropriate and legally supported. For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

TOBIAS, J., Dissents and Assigns Reasons.

TOBIAS, J.,

Dissents and Assigns Reasons.

hi respectfully dissent. For the reasons that follow, I would reverse the granting of summary judgment for in my view the record on appeal discloses genuine issues of material facts that are presently unknown and affect the outcome. (In the following, I have underlined some of those facts that I find create those genuine issues of material fact and have cited relevant law, primarily in footnotes.)

In early 2000, Ms. Fleming owned property located in the French Quarter of New Orleans bearing the municipal address of 821-823 Governor Nicholls Street (hereinafter “the property”), consisting of an upstairs and downstairs unit. In order to finance the renovation of one of the units, Ms. Fleming made inquiries into leasing the property for limited stays to third parties. She contacted a number of people who might be able to help her.

1 ?One of these people was Daniel Resnic, an apparent resident of California. Ms. Fleming showed him the property and orally agreed to allow Mr. Resnic, among others, to advertise the property on a passive website that he maintained. Ms. Fleming claims to have had a non-exclusive relationship with Mr. Resnic while she attempted to solicit renters from other sources.

In March 2000, Shannon Lee Abraham, a companion of Mr. Eldred, contacted Mr. Resnic and offered to lease Ms. Fleming’s unit for the month of May 2000, with a fifty percent deposit and the balance to be paid on arrival. Mr. Resnic contacted Ms. Fleming who approved the rental agreement between herself and Ms. Abraham. Ms. Abraham paid, the full amount for the lease to Mr. Resnic who told Ms. Fleming that he had deposited the funds in her account. However, Ms. Fleming never received any of the money from Mr. Resnic or for that matter from Mr. Eldred.

Although Mr. Resnic kept the money from Ms. Abraham, Ms. Fleming allowed Mr. Eldred and Ms. Abraham stay on the property After approximately nine days, Mr. Eldred became dissatisfied with the accommodations. On the evening of 9 May 2000, Mr. Eldred elected to leave the property for another place to rent; he and Ms. Fleming parted on amicable terms. With the understanding that they were both victims of Mr. Resnic, Mr. Eldred gave Ms. Fleming a check for |3$75.00 to defray the costs of utilities used during his stay; this was the only money ever received by Ms. Fleming relating to the whole transaction.

On 6 October 2000, Mr. Eldred filed a lawsuit for damages in California against Mr. Resnic and Ms. Fleming (the “California case”). Mr. Eldred alleged that Mr. Resnic acted as Ms. Fleming’s agent, thereby rendering Ms. Fleming subject to jurisdiction in a California court. No evidence in the record before us establishes that this suit was ever served upon Ms. Fleming or Mr. Resnic.

Ms. Fleming opposed personal jurisdiction by filing a motion to quash service for lack of personal jurisdiction and a memorandum of law in support thereof on or about 22 August 2001, which was allegedly set for hearing on 7 November 2001. The motion to quash and attached memorandum contains a certificate of service evidencing that they were both served by mail on both Mr. Resnic and Mr. Eldred’s California counsel of record, Joe McMillin, and by email on Mr. McMillin. The record before of us reflects that a copy of a “proposed ” default judgment was mailed to Mr. Resnic and Ms. Fleming on 1 November 2001; however, the “proof of service” reflects that Ms. Fleming’s copy was mailed to “821 Governor Nichols Street,” not 2 Canal Street, Suite 2430, New Orleans, which was the address given by her in the motion to quash and memorandum filed in the California case. However, the hearing did not take place as Mr. Eldred | ¿obtained a default judgment (the “California judgment’’) in the California case on that November day. Mr. Eldred, an attorney, claimed damages of $25,000.00 for his inability to work while he was vacationing in New Orleans and was awarded $24,900.00 by the judgment.

On 26 April 2002, Mr. Eldred filed a petition in the Civil District Court for the Parish of Orleans to make the California judgment executory in Louisiana. The trial court entered judgment in Mr. Eldred’s favor the same day (the “domesticated judgment”). The record before us contains a certificate of a deputy clerk of the Civil District Court that a notice of the filing of a petition to enforce a foreign judgment was mailed by certified mail to Ms. Fleming at “621 Governor Nicholls Street New Orleans, La. 70116;” where anyone got an address of 621 Governor Nicholls Street is unknown, and no evidence exists before us whether Ms. Flem ing ever maintained a mailing address at that location.

In late August 2002, Ms. Fleming first became aware of the California judgment and domesticated judgment. She filed a petition to declare the foreign judgment null for lack of personal jurisdiction, to nullify the domesticated judgment on the basis of fraud or ill practices, and for damages (“original petition”). The original petition alleged that both the California judgment and domesticated judgment were absolutely null for two reasons: (1) lack of personal jurisdiction pursuant to La. C.C.P. art. 2002 and in violation of the Due Process Clause of the United States Constitution; and, (2) both judgments were secured through fraud or ill-practices, pursuant to La. C.C.P. art. 2004 A.

|fiMr. Eldred responded with a dilatory exception of improper cumulation of actions to Ms. Fleming’s original petition, arguing that it should be dismissed for improperly cumulating Ms. Fleming’s claim of nullity on the basis of fraud or ill-practices (requiring an ordinary proceeding) with the petition to make judgment executory (a summary proceeding). The trial court granted Mr. Eldred’s dilatory exception on 20 July 2007, but instead of dismissing Ms. Fleming’s original petition, Ms. Fleming was allowed to sever her claims for relative nullity and damages by amending her original petition. She was also granted leave of court to bring these claims in a new proceeding within thirty (30) days.

Ms. Fleming timely complied with the court’s order by submitting two pleadings: (1) a petition for relative nullity, damages, and attorney’s fees, encompassing the severed claims for relative nullity and damages; and, (2) an amended petition and/or reconventional demand and third party demand to declare the foreign judgment null for lack of personal jurisdiction, containing only claims for absolute nullity.

After Ms. Fleming filed her new pleadings, Mr. Eldred filed an exception of lack of subject matter jurisdiction as well as exceptions of lack of jurisdiction and prescription. The two separate cases were eventually consolidated.

The trial court heard Mr. Eldred’s exceptions on 4 January 2008. The court denied Mr. Eldred’s exceptions in open court and issued written judgments on 8 January 2008. In written reasons, the trial court found that “Fleming’s amended | ^petition clearly alleges lack of personal jurisdiction, which is an absolute nullity under Louisiana law.”

Mr. Eldred filed an application for supervisory review with this court, seeking judicial review of the ruling. This court denied the writ application, finding no error by the trial court’s judgment.

On 11 January 2010, Ms. Fleming filed a motion for summary judgment in which she alleged that no issue of material fact existed that she was ever subject to personal jurisdiction in California. Ms. Fleming submitted an affidavit in which she explained that Mr. Resnic was never given authority to act as her mandatary, nor did she have any connection to the state of California that would subject her to personal jurisdiction in that state. She explained that Mr. Resnic acted as a passive advertiser only; he was never given authority to transact affairs on her behalf.

Mr. Eldred opposed the motion urging that, even if Mr. Resnic was not given actual authority to act as Ms. Fleming’s mandatary, he possessed “apparent authority,” although no evidence was submitted to support the allegation. The matter came for hearing on 26 February 2010. Following oral argument, the trial court granted Ms. Fleming’s motion; a written judgment was entered on 3 March 2010, granting summary judgment to Ms. Fleming. This timely appeal followed.

Because I am reviewing a motion for summary judgment, I apply the de novo standard of review.

|7Mr. Eldred assigned one error for our review. He alleged that the trial court erred in granting Ms. Fleming’s motion for summary judgment because she failed to establish a prima facie case and because genuine issues of material fact exist.

I first note, as did the trial court, that Ms. Fleming presented a case to establish absolute nullity on the basis of lack of personal jurisdiction. Further, a judgment that is absolutely null may be attacked in collateral proceedings in any court when based upon defects which appear on the face of the record.

This court, whether requested to do so or not, must take judicial notice of the laws of the United States, of every state, territory, and other jurisdiction of the United States. Therefore, we must apply California law to determine whether the California judgment is absolutely null.

After reviewing the record before us, I find no evidence that either Ms. Fleming or Mr. Resnic were ever served with the original complaint filed by Mr. Eldred in California. West’s Ann.Cal.C.C.P. § 585(a) provides in pertinent part:

Judgment may be had, if the defendant fails to answer the complaint, as follows:
(a) In an action arising upon contract or judgment for the recovery of money or damages only, if the defendant has, or if more than one defendant, if any of the defendants have, been served, other than by publication, and no answer, demurrer, notice of motion to strike of the character specified in subdivision (f), notice of motion to transfer pursuant to Section 396b, notice of motion to dismiss pursuant to Article 2 (commencing with Section 583.210) of Chapter 1.5 of Title 8, notice of motion to quash service of summons or to stay or dismiss the action pursuant to Section |s418.10, or notice of the filing of a petition for writ of mandate as provided in Section 418.10 has been filed with the clerk of the court within the time specified in the summons, or within further time as may be allowed, the clerk, upon written application of the plaintiff, and proof of the service of summons, shall enter the default of the defendant or defendants, so served, and immediately thereafter enter judgment for the principal amount demanded in the complaint, in the statement required by Section 425.11, or in the statement provided for in Section 425.115, or a lesser amount if credit has been acknowledged, together with interest allowed by law or in accordance with the terms of the contract, and the costs against the defendant, or defendants, or against one or more of the defendants. [Emphasis supplied.]
I also note that West’s Ann.Cal.C.C.P.

§ 418.10 provides in pertinent part:

(a) A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes:
(1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.
(e) A defendant or cross-defendant may make a motion under this section and simultaneously answer, demur, or move to strike the complaint or cross-complaint.
(1) Notwithstanding Section 1014, no act by a party who makes a motion under this section, including filing an answer, demurrer, or motion to strike constitutes an appearance, unless the court denies the motion made under this section. If the court denies the motion made under this section, the defendant or cross-defendant is not deemed to have generally appeared until entry of the order denying the motion. [Emphasis supplied.]

|flThe record reflects that the original California complaint was filed on 6 October 2000; I note that the complaint neither requested service against the defendants nor does the record contain any returns reflecting service of process. On 28 November 2000, Mr. Eldred requested that a default judgment be entered against Mr. Resnic. On or about 22 August 2001, Ms. Fleming filed the motion to quash; the record reflects that the motion was indeed filed and that a check in the amount of $50.00 was received. The motion was served on Mr. Eldred and his attorney by mail and further upon the attorney alone by facsimile transmission on 22 August 2001. According to the record, the motion to quash was never ruled upon by the California court. This precludes the entry of a default judgment against Ms. Fleming. Nonetheless, the motion for default judgment was heard by the trial court on 11 October 2001; the California judgment against both Ms. Fleming and Mr. Resnic was entered on 7 November 2001.

I generally find no support in the record on appeal before us for the entirety of the following statements set forth in the majority opinion:

• “Ms. Fleming received no notice of the October 11, 2001 hearing date.”
• “Ms. Fleming received no service or notice of the default judgment, because notice was sent to an address in Louisiana that Mr. Eldred knew to be outdated.”
|in* “We note that Mr. Eldred did not offer any positive evidence that Ms. Fleming did authorize Mr. Resnic to offer the unit for rental, or authorize the rental of this particular unit to Mr. Eldred.”
• “First, this Court’s prior ruling in No.2008-C-0233 on this Court’s docket is the law of the case and precludes our reconsideration of those issues on subsequent appeal .... [citation omitted.] The law of the case doctrine applies to decisions on writ applications as well as to judgments rendered on suspensive or devolutive appeals.”
• “Second, the trial court’s finding, as matter of law, that the California court lacked in personam jurisdiction. over Ms. Fleming is clearly correct. The party seeking to invoke in personam jurisdiction, Mr. Eldred in this case, bears the burden of establishing the existence of such jurisdiction.”
• “Alternatively, Mr. Eldred argues that Mr. Resnic acted in California as Ms. Fleming’s agent, making her amenable to specific in personam jurisdiction in that state. In order to establish such a basis for jurisdiction, Mr. Eldred is required to advance some evidence to support |nthe contention of agency that he claims in the pleadings. Absent such evidence, the action is subject to dismissal.”

While the record on appeal would at first glance tend to reflect that the California judgment is null based upon the defects which appear on the face of the record, I find that the California record is incomplete, thereby creating genuine issues of material fact. Because Ms. Fleming filed the motion for summary judgment, it is her burden to show that no genuine issiie of material fact exists. Thus, I find that we are required to reverse the trial court, set aside the judgment, and remand the matter to the court below for further proceedings.

By my position, I do not mean to imply that I do not think that Ms. Fleming will ultimately prevail when the matter is tried. My position is that given the law respecting full faith and credit and our law on summary judgment, Ms. Fleming cannot prevail on her present motion for summary judgment. It would appear, although factual questions presently exist, that something irregular happened in a California court back in 2000-01.

      .Mr. Eldred’s name appears in the record at times as Lanston Eldred. We have used the spelling found in his petition in CDC No. 02-6743.

        .The trial court issued its Reasons for Judgment on February 13, 2008, and these were entered on the court minutes on February 14, 2008.

        . Eldred v. Fleming, 08-0233 (La.App. 4 Cir. 3/24/08), unpub.

      . We note that Mr. Eldred did not offer any positive evidence that Ms. Fleming did authorize Mr. Resnic to offer the unit for rental, or authorize the rental of this particular unit to Mr. Eldred.

      . See and review carefully, La. C.C. arts. 2991, 2993, 2995, 2996, 3001, 3010, 3020, 3021, and 3022.

      . It is unclear from the record on appeal how Ms. Abraham's actions gave Mr. Eldred a cause of action. It is unclear whether Ms. Abraham was Mr. Eldred’s agent.

      . La. C.C. 1843. See also Footnote 1, supra.

      . Ms. Fleming avers in her sworn affidavit, attached to the motion for summary judgment that she called the clerk of court in California and was told that the hearing on her motion to quash was set for hearing on 7 November 2001. Nothing in the record either confirms or disputes this statement and we specifically note that Mr. Eldred's opposition to the motion for summary judgment contains no affidavit refuting this assertion.

      . I note the misspelling of “Nichols.”

      . It appears that neither party can presently locate Mr. Resnic. Ergo, we do not know what his version of the facts is. For that matter, we do not know whether he testified at the hearing forming the basis for the California default judgment,

      . See footnote 5 above.

      . Franz v. Franz, 315 So.2d 79, 80-81 (La.App. 4th Cir. 1975).

      . Id.

      . La. C.E. art. 202(A).

      . West’s Ann.Cal.C.C.P. § 1014 defines "an appearance” as an answers, demur, notice of motion to strike, notice of motion to transfer, motion for reclassification, written notice of appearance, or when an attorney gives notice of appearance for the defendant.

      . I note that the California Rules of Professional Conduct, Rule 5-200(B) prohibits an attorney from seeking to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law. Both Mr. Eldred, an attorney, and his counsel, knew or should have known that Ms. Fleming had filed a motion to quash that should have been ruled upon before the default judgment was taken. However, without the entire California record, I cannot say whether they violated this rule.

      .The denial of a writ application is only a decision not to exercise the court’s extraordinary powers of supervisory jurisdiction. Davis v. Jazz Casino Co, L.L.C, 03-0276, 03-122, p. 1 (La.6/6/03), 849 So.2d 497, 498; Tolis v. Board of Supervisors of Louisiana State University, 95-1529 (La.10/16/95), 660 So.2d 1206, 1207; Sattar v. Aetna Life Ins. Co., 95-1108, pp. 3-4 (La.App. 4 Cir. 3/20/96), 671 So.2d 550, 552; Cotton v. Gaylord Container, 96-1958, 96-2029, 96-2049, p. 5 (La.App. 1 Cir. 3/27/97), 691 So.2d 760, 763-64. In Bulot v. Intracoastal Tubular Services, Inc., 02-1035 (La.6/14/02), 817 So.2d 1149, the Supreme Court held that once a court of appeal declines to exercise its supervisory jurisdiction by denying the writ, the court was without jurisdiction to affirm, reverse, or modify the judgment of the trial court. Thus, any language in the court of appeal's earlier writ denial purporting to find no error in the trial court’s certification ruling is without effect. Davis, p. 1, 849 So.2d at 498. Although an appellate court could be precluded from addressing an issue previously addressed by that appellate court under the law of the case doctrine, the doctrine is not an absolute bar to reconsideration being discretionary with the appellate court. Id.; Tolis, supra; Bulot, supra.

      . In the absence of the entire record of the California proceedings, especially the absence of the hearing transcripts, I find no authority justifying this statement.

      . Among other things, in the absence of the transcript of what occurred in court when Mr. Eldred obtained his California judgment, I find no evidence from anyone supporting or refuting the statement. Under the United States Constitution, we are required to give full faith and credit to a judgment of a sister state unless the foreign forum lacked jurisdiction over the litigants or over the subject matter involved in the controversy. U.S. Const, art. IV, § 1; Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149 (1943). A presumption exists that a judgment of a sister state is valid and rendered on appropriate evidence. Winston v. Millaud, 05-0338, p. 9 (La.App. 4 Cir. 4/12/06), 930 So.2d 144, 151, citing Navarrette v. Laughlin, 209 La. 417, 24 So.2d 672 (1946)1; Holiday Hospitality Franchising Inc. v. Grant, p. 5 (La.App. 2 Cir. 5/8/02), 817 So.2d 449, 452. We have no hard evidence to show to the contrary.


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    August W. HOFFMAN, III v. NEW ORLEANS SAINTS.
    No. 10-CA-391.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 25, 2011.
    Rehearing Denied March 7, 2011.

      Frank A. Bruno, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    M. Jeremy Berthon, Attorney at Law, Baton Rouge, LA, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

|Jn this workers’ compensation case, claimant, August Hoffman, appeals the judgment of the workers’ compensation court setting his average weekly wage at $440.00 for the calculation of supplemental earnings benefits from May 25, 2006 through April 30, 2009. For the following reasons, we amend the workers’ compensation court’s judgment and affirm the judgment, as amended.

STATEMENT OF THE CASE

August Hoffman, claimant, was a professional football player for the New Orleans Saints. He was first signed as a player with the Saints in 2004. He was released after the preseason, removed from the active roster and put on the practice squad for five weeks at a rate of pay of $4,350.00 per week. In 2005, Hoffman remained on the practice squad for the entire year at $4,700.00 per week. He again signed a contract with the Saints in 2006. He played in the NFL Europe from February to May 2006 and returned to the Saints in May 2006. In May 2006, he attended team practice, referred to as OTA, or organized team activity, which was voluntary. Pursuant to the Collective Bargaining Agreement, Hoffman earned $110.00 per day for practice or workout days.

|oOn May 25, 2006, Hoffman injured his ankle during practice. He sought medical treatment and eventually learned his ankle was broken and two surgeries were required. He was placed on injured reserve July 25, 2006. He returned to New Orleans in October 2006 and was placed on injured reserve for the entire 2006 season. Hoffman was paid his annual contract salary for the 2006 season and was finally released from the Saints on March 27, 2007.

On November 21, 2006, Hoffman filed a Disputed Claim for Compensation seeking workers’ compensation benefits. He claimed an average annual wage of $275,000.00 plus $70.00 per day per diem for away games. Trial was held June 10, 2009. At trial, the parties stipulated that Hoffman was injured during the course and scope of his employment with the Saints on May 25, 2006 and was temporarily and totally disabled from May 25, 2006 to March 27, 2007. The parties also agreed that there were no outstanding medical bills and Hoffman had received all reasonable and necessary medical treatment related to his injuries through the date of trial.

The workers’ compensation court issued a judgment on August 10, 2009 finding Hoffman entitled to temporary total disability benefits from May 25, 2006 until March 27, 2007, and in accordance with the Collective Bargaining Agreement, the Saints are entitled to 25 weeks credit. The court also found Hoffman’s average weekly wage to be $440.00 for the calculation of benefits. At the time of trial Hoffman’s average monthly wage was $1,906.67. Therefore, the court found he was entitled to supplemental earnings benefits from May 25, 2006 to April 30, 2009. The court also ordered the Saints to pay all costs and judicial interest.

14Hoffman filed a motion for new trial on August 17, 2009, along with a Motion for Request for Written Reasons for Judgment. The court issued written reasons for judgment on December 1, 2009 and denied the motion for new trial on December 4, 2009. In its reasons for judgment, the workers’ compensation court found that Hoffman was injured prior to the start of the season and actual commencement of the contract, thus, he was only entitled to $440.00 per week as his average weekly wage, based on $110.00 per day for workout pay for four workouts per week. The court found his average monthly wage to be $1,906.67 and found Hoffman would receive supplemental earnings benefits for the months where his earnings did not reach 90% of his average monthly wage.

The workers’ compensation court also found that Hoffman was not entitled to fees and penalties because the parties contributed to the delay in this matter due to multiple continuance requests and the employer has not paid benefits due to a dispute in the calculation of his average weekly wage. Therefore, there was no frivolous legal dispute. The court found it was appropriate to not assess fees and penalties when the employer was simply defending its case in accordance with this Court’s previous holdings.

Hoffman now appeals the workers’ compensation court’s judgment arguing three assignments of error: 1) the court erred in failing to correctly calculate Hoffman’s average weekly wage to reflect true earning capacity of an NFL football player and instead created a formula not contained in a compensation statute based on one workout check earned a week before the injury, 2) the court erred in limiting supplemental earnings benefits by applying the incorrect average weekly wage, and 3) the court erred in failing to award attorney fees and penalties for the Saints’ failure to pay compensation even based on its own average weekly wage calculation.

\ .DISCUSSION

The appellate court reviews the workers’ compensation judge’s findings of fact under the manifest error or clearly wrong standard. Newsome v. New Orleans Saints, 08-311 (La.App. 5 Cir. 10/14/08), 996 So.2d 637, 639 (citation omitted). A court of appeal may not overturn a judgment of the workers’ compensation judge absent an error of law or a factual finding, which is manifestly erroneous or clearly wrong. Hughes v. New Orleans Saints & LWCC, 05-712 (La.App. 5 Cir. 2/27/06), 924 So.2d 1086.

In this appeal, Hoffman argues the workers’ compensation court incorrectly calculated his average weekly wage because it used his rate of pay he was earning during workouts at the time of his injury, $404.00 per week, instead of the total salary listed in his contract for the 2006 season, $175,000.00.

As noted by Hoffman, this Court has addressed cases with very similar facts in the past. Most recently, in Farquhar v. New Orleans Saints, 2008-CA-800 (La.App. 5 Cir. 5/26/08), this Court determined an injured players’ average weekly wage based on the amount the player actually earned prior to his injury. Farquhar was injured prior to the beginning of the regular football season. Farquhar was paid his entire salary for the season, in accordance with his contract, however, this Court found the contract salary was immaterial to a determination of his average weekly wage for workers’ compensation purposes.

Hoffman argues on appeal that Farqu-har, as well as other previous cases decided by this Court, are erroneous decisions. Hoffman contends this Court has incorrectly found that a player must be on an active roster in order to be paid for the season and to have workers’ compensation benefits based on the contract salary. We disagree with Hoffman and find the workers’ compensation court correctly found, as we have previously, that the players’ average weekly wage hmust be based on the amount actually earned at the time of the injury. The fact that the player is subsequently paid the full contract salary while on injured reserve is not pertinent to the calculation of workers’ compensation benefits.

Since Hoffman’s actual earnings were $440.00 per week at the time of the injury, we find the workers’ compensation court correctly found this amount to be his average weekly wage for the calculation of workers’ compensation benefits.

We also find the court correctly found Hoffman is entitled to supplemental earnings benefits for the amount of time he failed to earn 90% of his average monthly wage based on the $440.00 average weekly wage. LSA-R.S. 23:1221(3)(a) provides for supplemental earnings benefits, as follows:

For injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his “wages” by fifty-two and then dividing the quotient by twelve.

At trial, Hoffman testified that following his release from the Saints in March 2007, he began working with his father’s mortgage company in May 2007. His salary was commission based only and there were monthly fluctuations in his pay. In May 2008, Hoffman began working with a firm representing football players. Again, his salary was commission based only. From February 2009 until March 2009, Hoffman was unemployed. In April 2009, he began working as the managing director of Huntington Learning Center earning $3,083.00 per month.

For calculation of supplemental earnings benefits, Hoffman’s average monthly wages at the time of injury were $1,906.67, representing his average 17weekly wage of $440.00, times 52 weeks, then divided by 12 months. The workers’ compensation court found that Hoffman is entitled to supplemental earnings benefits from May 25, 2006 until April 30, 2009 because during this time he was earning less than 90% of his average monthly wage at the time of the injury. We agree with the workers’ compensation court’s findings that Hoffman began earning more than 90% of his average monthly wage after April 2009. Therefore, we find the court correctly found Hoffman is entitled to supplemental earnings benefits from May 25, 2006 until April 30, 2009.

Finally, Hoffman argues he is entitled to penalties and attorneys’ fees because of the Saints failure to pay him benefits. Hoffman argues the Saints were required to pay him benefits, even if paid at a rate set by the Saints. The workers’ compensation court found Hoffman is not entitled to penalties and attorneys’ fees. The court found the parties contributed to the delay in reaching a final resolution of this matter due to requests for multiple continuances. Further, the court found that the Saints did not pay benefits due to a dispute in the calculation of the average weekly wage and that the Saints were simply defending themselves in accordance with this Court’s prior rulings.

LSA-R.S. 23:1201(F) provides, in part:

Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim....

The Saints failed to pay any benefits to Hoffman following his injury, although he was clearly entitled to workers’ compensation benefits. Regardless of lathe dispute concerning the calculation of the average weekly wage, the Saints could have paid benefits to Hoffman using its own wage calculations pending the final resolution of this matter before the court. Therefore, we disagree with the workers’ compensation court and we find the Saints were arbitrary and capricious in failing to pay benefits to Hoffman and find he is entitled to $2,000.00 for penalties and attorneys’ fees. Thus, we amend the workers’ compensation court’s judgment to reflect an award of $2,000.00 to Hoffman for the payment of penalties and attorneys’ fees by the Saints for its failure the pay benefits.

Accordingly, we amend the judgment of the workers’ compensation court to award Hoffman $2,000.00 in attorneys’ fees and penalties and we affirm the judgment, as amended.

AMENDED; AFFIRMED, AS AMENDED

      . The original judgment was amended by Consent Judgment of the parties to correct a typographical order concerning this date.


author: JUDE G. GRAVOIS, Judge.

text:
    Kim SAACKS v. TARGET CORPORATION d/b/a Target Store T-1449 and Richards Clearview, L.L.C. d/b/a Clearview Shopping Center.
    No. 10-CA-819.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 25, 2011.
    Rehearing Denied March 7, 2011.

      Robert G. Harvey, Sr. Attorney at Law, Orleans, LA, for Plaintiff/Appellee.
    Christina H. Gaudin, Thomas E. Richards, Attorneys at Law, Covington, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

|2The defendant has appealed a default judgment that has been rendered in favor of the plaintiff. For the reasons that follow, we vacate the judgment and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On March 27, 2009, plaintiff, Kim Saacks, filed a Petition for Damages naming Target Corporation d/b/a Target Store T-1449 (“Target”), and appellant herein, Richards Clearview, LLC d/b/a Clearview Shopping Center (“Richards”), as defendants. In her petition, plaintiff alleged that she was injured when she slipped and fell while shopping in the Target store, which was a tenant in the Clearview Shopping Center that is owned by Richards. Plaintiff alleged that she entered Target from the covered parking garage on the second floor of the store during a heavy rain storm. She then walked through the second floor of the store and got on the escalator located in the center of the store. After she got to the first floor, she turned left and walked about twenty feet when “suddenly and without |3warning [she] slipped in an accumulation of water, falling to the floor, striking multiple parts of her body, including her head.”

On April 28, 2009, Target filed an answer to plaintiffs petition. Despite personal service on Richards on April 8, 2009, Richards failed to file any response to plaintiffs petition. On September 14, 2009, plaintiffs Motion for Preliminary Default was granted. Following a hearing on September 22, 2009, judgment was rendered confirming the default and awarding plaintiff general damages in the amount of $510,000.00 and medical expenses of $20,889.50, together with legal interest from the date of judicial demand and for all costs of the proceeding.

On December 30, 2009, plaintiff filed for a judgment debtor examination of Richards. In response thereto, Richards filed a Motion for New Trial and Petition for Temporary Restraining Order. After the trial court denied the temporary restraining order, Richards filed a second motion re-urging its grounds for new trial. Following the denial of its Motion for New Trial, Richards timely filed a Motion to Appeal the default judgment entered against it on September 22, 2009.

On appeal, Richards first argues that plaintiff failed to establish a prima facie case of liability and damages against it at the confirmation hearing. Richards argues that plaintiff failed to present a prima facie case that it is liable to plaintiff under the legal theory of negligence of the property owner as alleged in her petition. In particular, Richards contends that plaintiff failed to present any evidence at the confirmation hearing that Richards owned or operated the premises where the accident occurred. Richards also argues that plaintiff failed to prove every element of her case against it as outlined by LSA-R.S. 9:2800.6, a statute dealing with liability of merchants for accidents occurring on their premises. Richards also questions whether the medical evidence introduced at the confirmation hearing conformed to the procedural requirements of LSA-C.C.P art. |41702(D) and established jurisprudence of this court. Richards also argues that the trial court erred in allowing plaintiff to supplement the record with affidavits of treating physicians and dentists after Richards filed a motion for new trial. Finally, Richards argues that the trial court erred in not assessing and quantifying the comparative fault of the parties, including the plaintiff.

ANALYSIS

Louisiana Code of Civil Procedure article 1701 provides for the entry of a judgment by default when the defendant in the demand fails to answer within the time prescribed by law. Article 1702 sets forth the procedure for confirmation of a default judgment, stating that a “judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.” A prima facie case is established, as required for confirmation of a default judgment, when the plaintiff proves the allegations made in the petition, with competent evidence, to the same degree as if the allegations had been specifically denied by the defendant. Power Marketing Direct, Inc. v. Foster, 2005-2023 (La.9/6/06), 938 So.2d 662.

At the confirmation hearing, plaintiff testified as to the events surrounding her fall and the injuries sustained. She testified that the fall took place at the Target store in Clearview Shopping Center. Documents submitted into evidence at the confirmation hearing include a report of the incident, photographs of plaintiffs injuries, medical records, and letters from plaintiffs attorney to “Richards Clearview, LLC”. These letters state that the record reflects that Richards was served, had not answered the petition, and that plaintiff would seek a default judgment if Richards did not answer. The petition alleges that Clearview Shopping Center is owned by Richards. The record is void, however, of any evidence whatsoever to support this allegation.

|BIn White v. Esplanade Properties Corp., 95-571 (La.App. 5 Cir. 11/28/95), 665 So.2d 579, a case in which this Court was faced with a similar situation, the plaintiff sued for damages sustained in a fall at a shopping mall. Although the plaintiff alleged in her petition that the defendant owned and/or operated the mall, no proof of this allegation was presented at the confirmation hearing, and no evidence was offered to show that the defendant was in any way responsible for the injuries sustained by the plaintiff. We vacated the default judgment in that case. Similarly, in Greenwood v. Pellissier, 96-4 (La.App. 5 Cir. 4/30/96), 672 So.2d 1166, we vacated a default judgment finding that the plaintiff did not make a prima facie case that the defendants, who were alleged to be owners of the premises where plaintiff was injured while installing an electric meter, were the parties responsible for plaintiffs injuries in the absence of any proof that the defendants owned and/or controlled the premises on which plaintiff was injured. Likewise, in Ables v. Anderson, 01-299, (La.App. 5 Cir. 10/17/01) 800 So.2d 1006, we found that the evidence submitted in support of the default judgment against the alleged owner of a fast food restaurant did not establish a prima facie case that the defendant owned or operated the restaurant at the time of the alleged incident. The default judgment was vacated. See also, Griffin v. Pecanland Mall Ass’n, Ltd. 535 So.2d 770 (La.App. 2 Cir.1988) and Cunningham v. M&S Marine, Inc., 05-0805 (La.App. 4 Cir. 1/11/06) 928 So.2d 770.

At the confirmation hearing in the instant case, nothing at all was offered by plaintiff to show that Richards, the defendant cast in judgment, was in any way responsible for plaintiffs injuries. Plaintiff offered no proof to show that Richards had any ownership interest or management responsibility associated with the Tai’get store where plaintiff fell. Thus, plaintiff did not present proof sufficient to establish a prima facie case that Richards is liable for her injuries. We therefore Ififind that the default judgment in this case was improperly rendered. As such, a discussion of Richards’ remaining arguments in this appeal will be pretermitted.

CONCLUSION

For the foregoing reasons, the September 22, 2009 judgment rendered in favor of plaintiff is hereby vacated and this matter is remanded to the trial court for further proceedings.

JUDGMENT VACATED; MATTER REMANDED.


author: THIBODEAUX, Chief Judge.

text:
    Rosa CALVERT v. TRAVELERS PROPERTY CASUALTY INSURANCE CO., et al.
    No. 10-1026.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.

      Robert Lyle Salim, Patty Ann Trant-ham, Natchitoches, LA, for Plaintiff/Appellant, Rosa Calvert.
    Richard Russell Ray, Jeff Thompson, APLC, Bossier City, LA for Defendants/Appellees, City of Natchitoches and Travelers Property Casualty Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   THIBODEAUX, Chief Judge.

| TWhile attending an event at the Natch-itoches Events Center (“Events Center” or “Center”), Rosa Calvert tripped as she exited the building. Ms. Calvert alleges that the mat located outside of the exit door caused her to trip and injure herself, and she filed suit against Travelers Property Casualty Insurance Company (“Travelers”) and its insured, the City of Natchi-toches (“the City”). Travelers moved for summary judgment, and the trial court granted Travelers’ motion, finding that Ms. Calvert could not meet the requirement of notice under La.R.S. 9:2800. Ms. Calvert appeals and argues that La.R.S. 9:2800 is inapplicable. For the foregoing reasons, we affirm the judgment of the trial court.

I.

ISSUES

We must decide whether:

(1) Louisiana Revised Statutes 9:2800 applies to the facts of this case; and
(2) if La.R.S. 9:2800 applies, whether the City had actual or constructive notice of the purported defect and failed to remedy the problem.

II.

FACTS AND PROCEDURAL HISTORY

Ms. Calvert and her friend, Iva Custis, attended a political campaign event at the Events Center. While leaving the facility, Ms. Calvert tripped and fell. Ms. Calvert testified that she does not know why she fell, and she did not see anything that could have caused her fall. Ms. Custis witnessed the fall and testified that she believes that the floor mat located outside the door may have rolled up under |2the door, causing Ms. Calvert to fall. Despite her speculation about the floor mat, Ms. Custis admitted that she did not notify anyone at the facility about the condition of the mat.

The staff at the Events Center testified that they did not notice problems with any of the floor mats either before or after Ms. Calvert fell. Moreover, the Events Curator at the Center, Mary Morrow, testified that no one, including employees or staff of the Center, notified her of any problems with the floor mats. Another attendee at the event, Rose Long, never observed any problems with the mats either before or after Ms. Calvert fell, nor did she notice any substance on the floor of the Center that could have caused Ms. Calvert’s fall.

Following the accident, Ms. Calvert filed suit. Ms. Calvert alleged that the mat that caused her fall created an “unreasonable risk of harm” to her and other invitees to the Events Center, and her injury was caused by the “negligence of the City of Natchitoches.”

III.

LAW AND DISCUSSION

Standard of Review

“When an appellate court reviews a district court judgment on a motion for summary judgment, it applies the de novo standard of review, ‘using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.’ ” Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844 (quoting Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638). “The judgment sought shall be rendered forthwith if the pleadings, depositions, ^answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. Code CivJP. art. 966(B).

Applicability of La.R.S. 9:2800

Ms. Calvert argues that La.R.S. 9:2800 does not apply and that this case is a negligence action governed by La.Civ. Code art. 2315. We disagree. It is clear that La.Civ.Code art. 2317 and La.R.S. 9:2800 control. Louisiana Revised Statutes 9:2800 is a legislative enactment that controls the liability of state and political subdivisions such as the City for liability “caused by the condition of things within its care and custody....” Here, the “thing” at issue is the rubber floor mat located at the Events Center. Because it is undisputed that the Events Center is owned by a public entity, the City, Ms. Calvert’s action must be evaluated under La.R.S. 9:2800, and the trial court did not err in doing so.

Notice

To prevail on her claim, Ms. Calvert must not only meet her burden of proof under La.Civ.Code art. 2317, but she must also prove that the City had actual or constructive notice of the alleged vice or defect with the mat. La.R.S. 9:2800(C). Here, Ms. Calvert alleges neither. Instead, she argues that La.R.S. 9:2800 is inapplicable to her claim. As we previously stated, La.R.S. 9:2800 applies, and we find that Ms. Calvert failed to come forward with facts that could show the City had notice of the alleged defective floor mat.

|4Under La.R.S. 9:2800(D), “[c]on-structive notice shall mean the existence of facts which infer actual knowledge.” “A municipal authority is deemed to have constructive notice if the defect existed for such a period of time that by exercise of ordinary care ... the municipal authority must have known of its existence, and ... had reasonable opportunity to guard the public from injury by remedy of the defect.” Ambrose v. City of New Iberia, 08-1197, p. 2 (La.App. 3 Cir. 4/1/09), 11 So.3d 34, 37.

Here, nothing indicates that the City had any actual or constructive notice of a potential problem with the floor mat. According to the staff at the Events Center, none of the mats was in need of repair on the day of Ms. Calvert’s fall. Moreover, Ms. Morrow, the Events Curator at the Center, testified that she never observed any problems with the floor' mats either before or after Ms. Calvert fell. No one notified Ms. Morrow, or any other Events Center staff member, of a problem with the floor mats. Indeed, even Ms. Custis, a witness for Ms. Calvert, testified that though she thinks Ms. Calvert tripped on the floor mat, she did not notify the Events Center about the condition of the rug.

Because Ms. Calvert did not meet her burden of production that the City had notice of the defective floor mat, we find that the trial court did not err in dismissing her claim.

The Floor Mat as “Debris”

Ms. Calvert argues that a floor mat is not the type of vice or defect contemplated by La.R.S. 9:2800 and is, instead, “debris” similar to other items that create actions for negligence. Ms. Calvert relies on two cases from the second circuit in support of her argument, Adams v. Louisiana State Univ. Health Sciences Ctr. Shreveport, 44,-627 (La.App. 2 Cir. 8/19/09), 19 So.3d 512, writ denied, 09-2056 (La.1/20/09), 25 So.3d 798 and Holden v. Louisiana State University Med. Ctr., 29,268 (La.App. 2 Cir. 2/28/97), 690 So.2d 958. We fail to see the similarities between these cases and Ms. Calvert’s case.

In Adams, the plaintiff tripped on cigarette butts discarded outside of a hospital. Similarly, in Holden, the plaintiff slipped on spilled fruit juice. Both of these items are clearly “debris,” and the second circuit declined to extend La.R.S. 9:2800 to those claims. In both cases, however, the public entities had actual or constructive knowledge of the defect. Here, not only was the floor mat at issue installed by the Events Center, the City had no knowledge of any potential defect with the mat. Thus, we refuse to extend the reasoning of Adams and Holden to this case.

IV.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. Costs of this appeal are assessed against the plaintiff, Rosa Calvert.

AFFIRMED.

      . It is undisputed that the Natchitoches Events Center is owned and operated by the City of Natchitoches and is a "public facility” pursuant to La.R.S. 9:2800.

      . "A plaintiff seeking to recover under La.Civ. Code art. 2317 must prove that (1) the thing which caused his damage was in the custody of the defendant; (2) the thing had a condition that created an unreasonable risk of harm; and (3) the defective dung caused plaintiff's injuries.” Morell v. City of Breaux Bridge, 94-1378, p. 3 (La.App. 3 Cir. 5/31/95), 660 So.2d 882, 883.


text:
    Mike SALEM, et al. v. CITY OF ALEXANDRIA.
    No. 10-1039.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.

      Richard Alan Rozanski, Wheelis & Ro-zanski, APLC, Alexandria, LA, for Defendant/Appellee, City of Alexandria.
    Thomas D. Davenport Jr., The Davenport Firm, APLC, Alexandria, LA, for Plaintiffs/Appellants, Mike Salem and Unlimited Service Center, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   THIBODEAUX, Chief Judge.

Lin this zoning enforcement case, Appellants, Mike Salem and Unlimited Service Center, Inc. (Unlimited), assert that the trial court erred by granting the City of Alexandria’s exception of no cause of action. The trial court dismissed Appellants’ petition for declaratory judgment because it found that Appellants failed to state a cause of action. The trial court further found that the City’s right to enforce its zoning ordinances had not prescribed. Finally, the trial court lifted a stay of criminal proceedings against Salem. For the following reasons, we affirm.

I.

ISSUE

We shall consider whether in this zoning violation case Appellants failed to state a cause of action where Appellants alleged their business was “grandfathered” in so as to comply with the current zoning code, enacted in 1992, where Appellants allegedly operated the business in the manner violating the City’s zoning code since 2002.

II.

FACTS AND PROCEDURAL HISTORY

This matter began with the zoning enforcement proceedings the City of Alexandria instituted against Salem in Alexandria City Court. Allegedly, Salem, the owner of Unlimited, operated a business that serviced and repaired automobiles since 2002. In 2003, the City of Alexandria issued a certificate of zoning compliance to Unlimited. The certificate indicated Unlimited’s compliance with B-3 zoning classification, a service station.

In 2004, some concerned citizens complained to the City that Unlimited was not operating just a service station, but was using the property as a junkyard and [2body shop. After an inspection of the property, the City noted several zoning violations, including the use of a portable sign, the lack of a buffering structure, and the use of property as a junkyard, mechanic shop, auto storage, and body shop. After sending several letters documenting the violations and receiving no compliance in response, the City instituted criminal proceedings against Salem.

Salem filed a petition for declaratory judgment and a motion to stay the criminal proceedings until the court’s final disposition in the civil suit. In his petition, Salem alleged that he continuously owned and operated a business that serviced and repaired automobiles at the same location since October of 2002. Thus, Salem stated, the City of Alexandria “may not enforce a zoning or code ordinance” because Salem’s use “is simply a continued use of the property in the manner it has previously been used.” Without stating any dates, Salem asserted that another business, Walker Tire, “operated an establishment servicing automobiles.” Salem also alleged that the City’s enforcement of its zoning code had prescribed under La.R.S. 9:5625 without stating which section of the statute applied. Finally, Salem challenged the constitutionality of the City’s zoning code.

The City filed a motion for summary judgment which the trial court denied. The City then filed a peremptory exception of no cause of action which the trial court sustained. The trial court then declared that the City’s right to enforce its zoning ordinances had not prescribed. Finally, the trial court lifted the stay of criminal proceedings against Salem. Salem and Unlimited appealed.

Js.ni.

STANDARD OF REVIEW

Appellate courts review a grant of the peremptory exception of no cause of action de novo. Hebert v. Shelton, 08-1275 (La.App. 3 Cir. 6/3/09), 11 So.3d 1197.

IV.

LAW AND DISCUSSION

In his brief to this court, Salem alleges that the business of the type Salem has been operating existed at the subject location for over fifty years. Thus, he argues, his business operations should be “grandfathered” in even if he is in violation of the zoning ordinance.

On the other hand, the City argues that to be “grandfathered” in, Salem must have alleged that the property was used in a manner that violated the zoning restrictions prior to the enactment of the restrictive ordinance. Moreover, the City maintains that Salem must have alleged that the use was lawful prior to the enactment of the ordinance. Because the ordinance was enacted in 1992, and Salem alleged no date other than October of 2002 in his petition, the City argues that, on the face of his pleading, Salem has no cause of action for which a relief can be granted.

The exception of no cause of action is designed to test the sufficiency of the plaintiffs petition. Hebert, 11 So.3d 1197 (quoting Kinchen v. Livingston Parish Council, 07-478, p. 2 (La.10/16/07), 967 So.2d 1137, 1138). The issue is whether the law affords a remedy to the plaintiff based on the facts the pleading contains. Id. No evidence may be introduced to decide this issue, but the well-pleaded facts in the petition must be accepted as true. Id. The court should not dismiss an action for failure to state a claim “unless it appears beyond doubt that the [¿plaintiff can prove no set of facts in support of any claim which would entitle him to relief.” Id. at 1202.

Zoning regulations are designed to group certain classes of buildings in particular locations to promote improvements and to reduce the adverse effects of one type of use on another. City of New Orleans v. Elms, 566 So.2d 626 (La.1990). Nonconforming use of property is “[a] use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance although it does not comply with the use restrictions applicable to the area in which it is situated.” Redfearn v. Creppel, 455 So.2d 1356, 1358 (La.1984) (emphasis added). Many municipalities provide for the continuation of nonconforming use to avoid constitutional issues and injustice toward the owner of the property. Id. Nevertheless, because the nonconforming use is inconsistent with the objectives of the zoning regulations, it must be viewed narrowly, and doubts must be resolved against the continuation of nonconformity. Id.

In his petition, Salem did not allege that the property was used in the presently-nonconforming manner before the zoning restrictions went into effect. In fact, the only date Salem alleged was October of 2002, some ten years after the zoning ordinance in question was enacted. There is a reference to Walker Tire business in the petition. Nevertheless, Salem stated no dates of that business’s operations whatsoever and did not allege that those operations were continuous or lawful.

Because we find that Salem failed to state a cause of action in the petition, we need not address the question of prescription. Furthermore, because Salem failed to brief the constitutional issue, we treat it as abandoned pursuant to Uniform Rules — Court of Appeal, Rule 2-12.4. Also, because Salem himself ^requested the stay of the criminal proceedings until the final resolution of the civil case, we find no error in the trial court’s lifting of the stay after the resolution.

Finally, in its brief to this court, the City requested penalties against Appellants for frivolous appeal. Indeed, we agree with the City that Appellants’ position is, at best, legally tenuous. Moreover, this position is accompanied by equally tenuous arguments. Nevertheless, while we are tempted, because the City failed to answer the appeal, we assess no penalties. See Hilbun v. Hilbun, 498 So.2d 1127 (La.App. 3 Cir.1986).

V.

CONCLUSION

The trial court’s grant of the City of Alexandria’s exception of no cause of action is affirmed. Costs of this appeal are assessed against Mike Salem and Unlimited Service Center, Inc.

AFFIRMED.