296 So.3d 1209
La. Ct. App.2020Background
- Drs. James and Amy Mautner bought a home and maintained a termite treatment/inspection contract with All Pest Exterminators, Inc.; they later discovered extensive termite damage.
- Plaintiffs sued All Pest (and others) for breach of contract and warranty after recurring infestations and structural damage; plaintiffs alleged All Pest failed to inspect and adequately treat the property.
- All Pest did not answer; a preliminary default was entered and a confirmation hearing followed.
- At the confirmation hearing plaintiffs introduced the act of sale and an expert report estimating $105,772.36 in repair costs; Dr. Mautner testified about the contract and recurring infestations, but plaintiffs did not introduce the written termite contract.
- The trial court entered a final default judgment awarding $105,772.36 property damages and $50,000 general damages (total $155,772.36); All Pest moved for new trial and filed an exception invoking mandatory arbitration, both denied; All Pest appealed.
- The Fifth Circuit vacated and set aside the final default judgment, holding plaintiffs failed to introduce the written contract and therefore did not establish a prima facie case for breach of contract; the court remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to confirm a default judgment for breach of contract | Mautner: testimony that a termite contract existed and that All Pest failed to eradicate termites suffices to prove contractual obligations and breach | All Pest: plaintiffs failed to introduce the written contract, show scope of services, prove breach, or causation of damages | Court: Vacated default judgment — when claim arises from a written obligation the contract is the prima facie proof; absence of the contract made plaintiffs' proof insufficient |
| General damages award (excessiveness) | Plaintiffs: testimony about stress, sleep loss, family impact supports general damages | All Pest: general damages are legally insupportable and excessive | Court: Did not reach merits after finding overall proof insufficient; remaining arguments pretermitted |
| Arbitration clause / exception of no cause of action | Plaintiffs: default judgment should stand despite arbitration clause not asserted earlier | All Pest: contract contains mandatory arbitration, so court lacks jurisdiction | Trial court denied the exception; appellate court vacated default judgment on evidentiary grounds and remanded, pretermitting further review of arbitration issue |
Key Cases Cited
- U.S. Bank Nat'l Ass'n v. Custer, 33 So.3d 303 (La. App. 5 Cir. 2010) (standard for appellate review of default-judgment sufficiency)
- Bank of America, N.A. v. Alexander, 289 So.3d 1200 (La. App. 5 Cir. 2020) (manifest error standard in sufficiency review)
- Champagne v. Manuel, 864 So.2d 797 (La. App. 5 Cir. 2003) (writing is prima facie proof of written obligation)
- Champagne v. Wilson, 864 So.2d 800 (La. App. 5 Cir. 2003) (same rule; exception when defendant fails to produce or admit writing)
- Ascension Builders, Inc. v. Jumonville, 263 So.2d 875 (La. 1972) (plaintiff must produce a writing that is the principal basis of the claim)
- Mossy Motors, Inc. v. Cameras America, 851 So.2d 336 (La. App. 4 Cir. 2003) (default judgment error where written contract not produced)
- Camel v. Harmon, 896 So.2d 1253 (La. App. 3 Cir. 2005) (error confirming default where central written instruments were not introduced)
- Payphone Connection Plus, Inc. v. Wagners Chef, LLC, 276 So.3d 589 (La. App. 4 Cir. 2019) (plaintiff confined to theories pled in petition when proving damages for default judgment)