70 So. 3d 835
La. Ct. App.2011Background
- Talco Midstream Assets Ltd. constructed a pipeline across Pollock’s property, a 92-year-old landowner, triggering a lawsuit for restoration and damages.
- Pollock claimed Talco lacked a proper right-of-way and damaged a land bridge and asphalt apron, causing flooding and access issues for Pollock and her family.
- A 10-day notice agreement existed: counsel promised not to seek default without 10 days’ written notice; this was allegedly active during settlement negotiations.
- An October 19, 2007 letter directed Talco to file an answer, which plaintiffs contend terminated the 10-day notice arrangement and signaled continuation of litigation.
- Default was entered December 3, 2007; the default judgment was confirmed September 22, 2008, with final written judgment on September 30, 2008.
- Talco moved for a new trial October 15, 2008; the trial court denied, and on appeal the panel remanded for a contradictory hearing, ultimately denying the new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the October 19, 2007 letter extinguish the 10-day notice obligation? | Pollock: letter terminated the agreement and indicated ongoing litigation. | Talco: letter was an informal settlement request, not termination. | Letter expressly terminated the notice obligation; Talco failed to file when required. |
| Was the default judgment an ill practice under Article 2004? | Pollock/Pltf: defendants actively participated and delays harmed defense; ill practice possible. | Talco: no mispractice; defendant not deprived of opportunity to defend. | Not ill practice; no abuse of discretion in confirming the default. |
| Are the damages appropriate, particularly general damages for inconvenience? | Pollock: substantial damages warranted due to property damage and inconvenience. | Talco: damages excessive; some awards are punitive or speculative. | General damages for Loe reduced; overall damages affirmed as amended. |
Key Cases Cited
- Meshell v. Russell, 589 So.2d 86 (La.App. 2 Cir. 1991) (miscommunication can support a new trial when prejudicial)
- Cashback, Inc. v. Herring, 669 So.2d 693 (La.App. 2 Cir. 1996) (several factors show miscarriage of justice when defending would be possible)
- Hickman v. Wm. Wrigley, Jr. Co., 768 So.2d 812 (La.App. 2 Cir. 2000) (misunderstanding alone does not prove miscarriage of justice; require notice and action)
- Power Marketing Direct Inc. v. Foster, 938 So.2d 662 (La. 2006) (Art. 2004 ill practice includes improper practices that deprive defense)
- Russell v. Illinois Central Gulf R., 686 So.2d 817 (La. 1997) (ill practice when plaintiff fails to notify an active defendant)
- Kem Search Inc. v. Sheffield, 434 So.2d 1067 (La. 1983) (notice requirement before default judgment; setup for ill practice analysis)
- Lamb v. Lamb, 430 So.2d 51 (La. 1983) (default judgment considerations and discretionary review)
- Hunt v. Safeway Ins. Co., 804 So.2d 724 (La.App. 2 Cir. 2001) (appellate review of general damages limits)