Schilling v. Bernhard Bros. Mechanical Contractors, LLC
186 So. 3d 658
La. Ct. App.2013Background
- Joann Schilling sued over inhalation injuries allegedly caused by a missing plumbing connection/floor‑drain defect at the Poydras Building; she named Bernhard Mechanical Contractors, Inc. as a defendant.
- Plaintiff filed amended petitions alleging Bernhard knowingly concealed the defect, invoking the fraud exception to the peremptive period in La. R.S. 9:2772.
- Service attempts were made on various Bernhard entities/individuals; personal service was ultimately made on a secretary of Kenneth Bernhard. Bernhard did not answer and a default was entered; the trial court confirmed the default and awarded $510,354.63.
- Bernhard moved for a new trial asserting peremption, evidentiary insufficiency at confirmation, and (later) defective service; the trial court denied the motion.
- On appeal the court considered whether Bernhard waived service objections by seeking relief, whether plaintiff overcame peremption by proving fraud at the default‑confirmation hearing, and whether the confirmation rested on competent evidence.
- The appellate court vacated the default judgment, granted a new trial, and remanded because plaintiff failed to establish a prima facie case of fraud at confirmation and the court did not conduct the separate fraud trial required by statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of service/citation | Bernhard was served through its registered agent/agents or employees so service was proper. | Service was improper: attempts targeted a different entity and service on a secretary occurred before serving registered agent; art. 1261 requires personal service on registered agent first. | Defendant waived objection by filing motions invoking court jurisdiction before raising insufficiency; service objection therefore not timely and assignment fails. |
| Peremption under La. R.S. 9:2772 | Fraud exception applies; Bernhard concealed the missing pipe, so peremption does not bar suit. | Acceptance of the building in 2002 started peremptive period; suit filed in 2009 was too late absent proven fraud. | Plaintiff failed to establish prima facie fraud at default confirmation; peremption defense remains viable and case remanded for further proceedings including proper fraud determination. |
| Sufficiency of evidence at default confirmation (liability) | Documentary admissions and inspection evidence show missing piping and Bernhard’s responsibility; that supports liability and fraud. | Evidence was not properly authenticated/admissible and did not prove fraudulent concealment or liability. | The evidence at confirmation was insufficient to prove fraud or a prima facie case; confirmation cannot stand. |
| Damages proof at confirmation | The amount awarded was supported by evidence presented at confirmation. | Damages evidence was incompetent/inadmissible at confirmation. | Court declined to decide damages issues because primary defect was failure to prove fraud/establish prima facie case; remand required. |
Key Cases Cited
- Guillory v. Lee, 16 So.3d 1104 (La. 2009) (standard of review for new trial is abuse of discretion)
- Crescent City Constr., Inc. v. Camper, 898 So.2d 408 (La. App. 2004) (prima facie burden at default confirmation)
- Signlite, Inc. v. Northshore Serv. Ctr., Inc., 959 So.2d 904 (La. App. 2007) (presumption of validity of default confirmation and effect of transcript)
- Arias v. Stolthaven New Orleans, L.L.C., 9 So.3d 815 (La. 2009) (rules of evidence apply at default confirmation; need for admissible proof)
- Rodriguez v. Prudhomme Mobile Homes, Inc., 737 So.2d 75 (La. App. 1999) (raising insufficiency of service after invoking jurisdiction can constitute waiver)
- Whitehead v. American Coachworks, Inc., 837 So.2d 678 (La. App. 2002) (fraud is question of fact; intent required)
- El Paso Exploration Co. v. Olinde, 527 So.2d 511 (La. App. 1988) (fraud is not presumed)