302 So.3d 1
La. Ct. App.2020Background
- Precept purchased a tax sale certificate for 4845 Tulip Street and filed a petition to quiet title on Nov. 20, 2018; Walker was served Dec. 11, 2018.
- Walker’s counsel emailed Jan. 2, 2019 requesting an extension to Feb. 15, 2019; Precept’s prior counsel agreed by email; no answer was filed.
- Precept moved for preliminary default Oct. 2–3, 2019; the court entered preliminary default and confirmed the default judgment on Oct. 22, 2019.
- Walker moved for a new trial Oct. 31, 2019, arguing counsel miscommunication, lack of notice of the preliminary default, and reliance on the prior extension; she sought relief in the court’s discretion “in the interest of justice.”
- The trial court granted the new trial; Precept sought supervisory relief. The Court of Appeal reversed, holding the trial court abused its discretion because Precept followed default procedures, Walker’s counsel made no appearance of record, and Precept was not required to give notice before confirming default.
Issues
| Issue | Plaintiff's Argument (Precept) | Defendant's Argument (Walker) | Held |
|---|---|---|---|
| Whether a new trial was warranted based on counsel miscommunication and an earlier agreed extension | No — Walker failed to show peremptory or discretionary good grounds; she did not file an answer and Precept followed the rules for default | Yes — prior counsel’s informal extension and ongoing communications justified exercising discretion to grant a new trial in the interest of justice | Court: No; abused discretion to grant new trial; Walker showed no good grounds |
| Whether plaintiff was required to notify defendant’s counsel of intent to confirm a default where counsel had been involved in prior communications and discovery responses | No — absent an appearance of record, plaintiff need not give notice before confirming default | Yes — argued prior communications and discovery responses made notice appropriate and fairness required it | Court: No notice required where no appearance of record; discovery or informal communications do not constitute an appearance |
Key Cases Cited
- Housing Authority for City of Ferriday v. Parker, 629 So.2d 475 (La. App. 3d Cir. 1993) (clerk error producing confusion about hearing date justified discretionary new trial for a pro se litigant)
- Cashback, Inc. v. Herring, 669 So.2d 693 (La. App. 2d Cir. 1996) (facts showing active steps to defend supported discretionary relief from default)
- Pollock v. Talco Midstream Assets, Ltd., 70 So.3d 835 (La. App. 2d Cir. 2011) (clear communication to file an answer can preclude discretionary relief from default)
- Gresham v. Production Mgmt., Inc., 868 So.2d 171 (La. App. 4th Cir. 2004) (appearance of record required before plaintiff must give notice of intent to confirm default; discovery responses do not suffice)
- Crump v. Bank One Corp., 817 So.2d 1187 (La. App. 2d Cir. 2002) (filing discovery responses is not equivalent to filing a pleading or formally appearing of record)
- Mossy Motors, Inc. v. Cameras America, 851 So.2d 336 (La. App. 4th Cir. 2003) (explaining objective standard for when prior notice is required and limiting reliance on mere knowledge of representation)
- Giordano v. Riverbend Rentals Co., 674 So.2d 444 (La. App. 4th Cir. 1996) (tax deed / certified tax sale certificate is prima facie evidence of a valid tax sale)