215 So. 3d 974
La. Ct. App.2017Background
- Authority contracted with New Limits for a $335,000 chair-storage construction project; New Limits provided performance and payment bonds from First Standard.
- New Limits allegedly failed to complete the project and abandoned the job; Authority paid $259,958 and notified First Standard of default on January 12, 2015.
- First Standard was served with the suit on October 21, 2015 and did not answer; Authority moved for and obtained a judgment of default and later moved to confirm the default judgment.
- The Authority’s confirmation motion included multiple exhibits (affidavit, bonds, contract, letter) but did not include the certification required by La. C.C.P. art. 1702.1.
- The trial court confirmed a default judgment for $259,958 against New Limits and First Standard; First Standard appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the art. 1702.1 certification is mandatory | Omission is not fatal if the record contains all required proof for confirmation | Certification requirement is mandatory; failure to include it is fatal | Certification is mandatory; omission is fatal and confirmation was manifest error |
| Whether the record’s substantive proof can cure procedural defect | The record contains all elements of proof required for a prima facie case, so omission is harmless | Procedural compliance (certificate) is separate and required regardless of substantive proof | Substantive proof does not cure failure to comply with art. 1702.1; strict compliance required |
| Whether appellate precedent from other circuits controls | Authority cites Second Circuit cases holding omission not fatal when proof is in record | First Standard cites Fourth Circuit precedents requiring strict compliance | Court follows Fourth Circuit precedent and statutory text rather than other-circuit decisions |
| Whether further adjudication of other defenses (bond term) was needed | N/A (not reached) | First Standard argued bond coverage had expired before notice | Court pretermits other assignments after finding procedural fatal error |
Key Cases Cited
- Power Marketing Direct, Inc. v. Foster, 938 So.2d 662 (La. 2006) (confirmation of default requires proof sufficient to establish a prima facie case)
- Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254 (La. 1993) (plaintiff must present competent evidence as though allegations were denied)
- Thibodeaux v. Burton, 538 So.2d 1001 (La. 1989) (same standard for proof on confirmation of default)
- Arias v. Stolthaven New Orleans, LLC, 9 So.3d 815 (La. 2009) (confirmation of default judged under prima facie proof requirement)
- Habitat, Inc. v. Commons Condominiums, LLC, 97 So.3d 1126 (La. App. 4 Cir. 2012) (article 1702.1 certificate requirement is mandatory; court allowed supplementation before confirmation)
- Nat’l Collegiate Student Loan Trust 2007-2 v. Kuzma, 187 So.3d 91 (La. App. 4 Cir. 2016) (failure to include art. 1702.1 certificate fatal to confirmation)
- Ruston State Bank & Trust Co. v. Streeter, 545 So.2d 1255 (La. App. 2 Cir. 1989) (Second Circuit held omission not fatal where record contains required proof)
- Moore Finance Co., Inc. v. Ebarb, 70 So.3d 856 (La. App. 2 Cir. 2011) (Second Circuit reaffirmed that strict certificate compliance not required if record shows required proof)
Disposition: The appellate court reversed and vacated the trial court’s March 2016 default judgment because the Authority failed to submit the art. 1702.1 certification, a mandatory procedural requirement.