
    LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY, et al. v. GROUNDLINK, INC., et al.
    No. 2003-0947.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.
    Opinion Granting Rehearing May 12, 2004.
    Joe Payne Williams, Williams Family Law Firm, L.L.C., Natchitoches, LA, for Plaintiffs/Appellees: Louisiana Farm Bureau Mutual Insurance Company, John R. Evans, Kristen Evans.
    Boyd A. Bryan, Perret Doise, Lafayette, LA, for Defendant/Appellant: Kelly Dort-lon.
    Robert Kennedy Jr., Cook, Yancey, King & Galloway, Shreveport, LA, for Defendant: Groundlink; Inc.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and GLENN B. • GREMILLION, Judges.
   J^DECUIR, Judge.

John and Kristen Evans and their homeowner’s insurer, Louisiana Farm Bureau Mutual Insurance Company, filed suit against Groundlink, Inc. and Kelly Dortlon d/b/a System Services to recover damages resulting from the backup of sewerage into the Evans’ home. The trial court granted a default judgment against Dortlon, and he appealed. Finding the judgment rendered below to be an absolute nullity, we vacate and remand for further proceedings.

The record reveals that on October 17, 2001, John and Kristen Evans discovered raw sewerage in several rooms of their home. A plumber was contacted, and the next day he determined that a cable line had been installed directly through a sewer pipe running from the Evans’ house. The evidence in the record shows that John Evans contacted the, cable company, Cox Communications, and was referred to System Services and Groundlink. Subsequent to the completion of the repairs, Evans requested from Kelly Dortlon, who represented himself as being with System Services, that his bills be paid. Evans received a letter from Dortlon discussing the locating and marking of utility lines when underground work is performed and essentially denying responsibility for the damaged pipe; however, Dortlon offered to “work this matter out” and suggested that Evans forward copies of his cleaning bills and carpet estimate to him.

Following receipt of this correspondence, Evans sent copies of the bills he had received to Dortlon, but Dortlon did not respond. Evans testified that he and his wife incurred damages including the cost of clean up, plumbing repair, new carpet, three days of lost wages, inconvenience, and embarrassment. They filed a claim with their insurer, which paid $4,886.40. Their policy had a $1,000.00 deductible and did not cover the cost of the plumbing repair, general damages, and lost wages. The insurer and Evans then filed suit against'Dortlon on October 11, 2002. ' When he failed to |2answer, the plaintiffs sought a default judgment which was rendered on May 30, 2003, awarding $4,886.40 to Farm Bureau and $7,183.40 to John and Kristen Evans.

A default judgment is obtained pursuant to the provisions of La.Code Civ.P. art. 1701, which provides in pertinent part:

A. If a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. The judgment may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes.

Article 1702 requires that a default judgment be confirmed “by proof of the demand sufficient to establish a prima facie case.” Because these provisions are mandatory, a default judgment requires two steps in order to. be valid and enforceable: a preliminary default entered in the minutes and confirmation by prima facie proof.

. In the record before us, there is no written motion for a preliminary default, no evidence of an oral motion for default, and there is no minute entry showing that a default has been entered. Rather, there is only the transcript of a confirmation hearing, and a judgment rendered subsequent to that hearing.

In Clark v. Clark, 03-353 (La.App. 3 Cir. 10/1/03), 856 So.2d 206, we held that a final default judgment obtained without a valid preliminary default is an absolute nullity. In that case, a default judgment was confirmed against a defendant who had answered the petition. In Glessner v. Hyatt, 380 So.2d 222 (La.App. 3 Cir.1980), a preliminary default was entered prematurely, rendering the final judgment of default a nullity. Conversely, in Clark v. Neel, 583 So.2d 90 (La.App. 3 Cir.1991), this court affirmed a final judgment of default rendered after the trial court independently verified that a preliminary default had been properly entered and ordered a correction of the minutes to reflect same. In this case, there was no default judgment entered |,.¡prior to the confirmation hearing. Accordingly, we find the judgment of default rendered herein to be an absolute nullity.

For the foregoing reasons, the judgment of the trial court is vacated and set aside. This matter is remanded for further proceedings. Costs are assessed to Louisiana Farm Bureau and John and Kristen Evans.

JUDGMENT VACATED AND REMANDED.

ON REHEARING

JjGREMILLION, Judge.

The plaintiffs/appellees, Louisiana Farm Bureau Mutual Insurance Company and John and Kristen Evans, have applied for rehearing to address our application of La.Code Civ.P. art.. 1701 to this matter. We grant rehearing to address this issue. After review, we reverse our prior opinion, reverse the judgment of the city court, and remand for further proceedings.

In our prior opinion, Louisiana Farm Bureau Mutual Insurance Co. v. Groundlink, Inc., 03-947 (La.App. 3 Cir. 2/4/04), 871 So.2d 359, 2004 WL 205813, we vacated the judgment of the city court granting a default judgment in favor of Farm Bureau and the Evans against Kelly Dortlon d/b/a System Services, as a result of the backup of sewage into the Evans’ home. The judgment awarded damages of $4,886.40 to Farm Bureau and $7,183.40 to the Evans. Dortlon appealed and we vacated the judgment because Farm Bureau and the Evans failed to obtain a preliminary default prior to confirming their default judgment, as required by Article 1701.

On rehearing, Farm Bureau and the Evans argue that we erred in applying Article 1701 since this case-was filed in the Natchitoches City Court, rather than in district court. Louisiana Code Civil Procedure Article 4904 provides:

A. In suits in a parish court or a city court,- if the defendant fails to answer timely, or if he fails to appear at the trial, and the plaintiff proves his case, a final judgment in favor of plaintiff may be rendered. No prior default is necessary.
ls>B. The plaintiff may obtain a final judgment only by producing relevant and competent evidence which establishes a prima facie case. When the suit is for a sum due on an open account, promissory note, negotiable instrument, or other conventional obligation, prima facie proof may be submitted by affidavit. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required.
C. When the sum due is on an open account, promissory note, negotiable instrument, or other conventional obligation, a hearing in open court shall not be required unless the judge in his discretion directs that such a hearing be held. The plaintiff shall submit to the court the proof required by law and the original and not less than one copy of the proposed final judgment. The judge shall, within seventy-two hours of receipt of such submission from the clerk of court, sign the judgment or direct that a hearing be held. The clerk of court shall certify that no answer or other pleading has been filed by the defendant. The minute clerk shall make an entry showing the. dates of receipt of proof, review of the reeord, and rendition of the judgment. A certified copy of the signed judgment shall be sent to the plaintiff by the clerk of court.

(Emphasis added).

After reviewing Article 4904, we find that we erred in applying Article 1701 to this matter. Thus, we vacate our prior opinion and will now review this matter pursuant to Article 4904.

DEFAULT JUDGMENT

In his first assignment of error, Dortlon argues that the city court erred in finding that Farm Bureau and the Evans established a prima facie case of liability on his part.

In reviewing default judgments, appellate courts are restricted to determining the sufficiency of the evidence offered in support of judgment. Washington v. Grand Casinos of LA., Inc.-Coushatta, 97-1297 (La.App. 3 Cir. 6/3/98); 715 So.2d 515. Although there is a presumption that the evidence presented supports a default judgment, this presumption does not attach when the record of the confirmation hearing is before the appellate court. Id. In such a case, the reviewing court is able to determine from the record whether the evidence upon which the judgment is based was sufficient and competent. Travis v. Commercial Union Ins., 569 So.2d 115 (La.App. 1 Cir.1990). Thus, because we have the record of the hearing to confirm the default, the presumption does not attach. However, the trial court’s conclusion concerning the evidence’s sufficiency presents a factual issue which the manifest error rule governs. The manifest error standard of review obligates appellate courts to give great deference to the trial court’s findings of fact. Rosell v. ESCO, 549 So.2d 840 (La.1989). We will not reverse factual determinations, absent a finding of manifest error. Id.

Bordelon v. Sayer, 01-0717, p. 3 (La.App. 3 Cir. 3/13/02), 811 So.2d 1232, 1235, writ denied, 02-1009 (La.6/21/02), 819 So.2d 340. “[I]n order to establish a prima facie case to obtain a- default judgment, a plaintiff must establish his case with competent evidence as fully as though each of the allegations in the petition were denied by the defendant.” Moreau v. Griffith, 96-683, p. 3 (La.App. 3 Cir. 12/11/96), 685 So.2d 563, 565 (citing Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254 (La. 1993)). Prima facie evidence is that evidence which convinces the trial court that it is more probable than not that the plaintiff will prevail on a trial of the merits. Id.

After reviewing the record, we find that Farm Bureau and the Evans have failed to establish a prima facie case that Dortlon was liable for the backup of sewage into their home. At the hearing on the default judgment, they presented testimony from John in support of their claim of liability. His testimony fails to establish more probably than not that Dortlon was negligent in boring through their sewer line. Part of his testimony follows:

Q So eventually you filed a claim with your homeowner’s insurance; is that correct?
A After I had contacted System Services and they referred me to Goundlink, Inc. which was also they said they were doing the boring for System Services/Cox whoever they represent, because I originally called Cox, and they sent me to System Services, and I got the run around but yeah, eventually I, after no response from them, I went ahead and contacted my agent and said What do I need to do here, they are not | ¿paying me, and he said Well, let’s file a claim on it and see. Of course, it raises my insurance rates if you file a claim, so I was trying not to do that, but he eventually said let’s just filed a claim and then see if they ever pay us.
THE COURT:. Let me ask you another question, you said something about Mr. Dortlon coming out there. Were you there when he came?
MR. EVANS: Yes, I was. I did talk to him on the phone as well. I had called Cox and they had given me a contact number for him.
THE COURT: Is his business the one that actually was there and doing the boring to install this line?
MR. EVANS: According to what I was told, System Services was a representative for Cox Cable which was installing the lines and they told me that System Services had Groundlink, Inc. was supposedly doing their boring was another company under them that was doing the boring, and they was saying that after having contacted him he had given me another contact name for this Goundlink, Inc., and I had contacted him, and he had told me....
THE COURT: Mr. Dortlon acknowledged to you that he and his business which is basically him, I guess, is the one that actually did the work that created this?
MR. EVANS: Yes, sir.

Farm Bureau and the Evans also introduced into evidence a November 8, 2001 letter from Dortlon, project manager for System Services, to John. In the letter, Dortlon denies liability for this incident, but indicates an interest in working this matter out.

Based on this evidence, we find that the city court erred in finding that Farm Bureau and the Evans established a prima facie case that Dortlon d/b/a System Services was negligent in damaging their sewage line. John’s testimony is very vague; however, he twice testified that the boring on this job was performed by Groundlink. Ijt is also unclear whether the communication lines belonged to System Services or Cox Cable. Accordingly, the judgment of the city court finding Dortlon liable is reversed and the matter is remanded for further proceedings. Based on this finding, Dortlon’s second assignment of error is rendered moot.

CONCLUSION

For the foregoing reasons, the judgment of the city court is reversed and this matter is remanded for further proceedings. The costs of this appeal are assessed against the plaintiffs-appellees, Louisiana Farm Bureau Mutual Insurance Company and John and Kristen Evans.

REHEARING GRANTED; REVERSED AND REMANDED. 
      
      . Article 1701(A) provides in pertinent part:
      If a defendant in the principal demand fails to answer within the time prescribed by law, judgment by default may be entered against him. The judgment may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes.
     