Midland Funding LLC v. Lashana Den Q Pollard

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 1661
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MIDLAND FUNDING LLC
f
VERSUS
C LASHANA DEN Q POLLARD
Judgment rendered: U6 0 6 2020
On Appeal from the
City Court of Hammond, Seventh Ward
In and for the Parish of Tangipahoa
State of Louisiana
No. 2019CV01624
The Honorable Grace B. Gasaway, Judge Presiding
Gregory M. Eaton Attorneys for Plaintiff/Appellee
Michael L. Lancaster Midland Funding LLC
Adam R. Deniger
Baton Rouge, Louisiana
Lashana Den Q Pollard In Proper Person/ Appellant
Hammond, Louisiana
BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ.
HOLDRIDGE, J.
In this suit to recover sums due on an open account, Lashana Den Q Pollard
Lashana) appeals the final default judgment entered against her by Hammond City
Court in Tangipahoa Parish. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On September 23, 2019, Midland Funding LLC ( Midland Funding) filed a
petition in Hammond City Court against Lashana seeking to recover money owed
in. the amount of $9, 890. 80, together with 5% interest from date of judgment, and
all costs of these proceedings. The petition alleged that Lashana had an
outstanding balance due on her Zales account, which had the number
1662 ( the account), and the balance remained after amicable
demand on July 30, 2019. Midland Funding also filed a request for admission of
fact as to the outstanding balance, attorney fees, and account at issue.
In further support of its petition, Midland Funding filed a " Supplemental
Affidavit of Correctness of Account," which contained the affidavit of Tom
Lydeen, a legal specialist employed by Midland Funding to oversee Lashana' s
account. Attached to the affidavit were copies of the records Lydeen reviewed
when analyzing the account, which included proof of assignment of the account,
notice to Lashana of the sale of the account from Comenity Capital Bank to
Midland Funding, and multiple monthly statements addressed to Lashana at her
address of record that showed payments made on the account. The affidavit
further included business records from Comenity Capital Bank that revealed that
Lashana was the holder of the account, as it included her full name, social security
number, and account identification that was attached to the account.
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On September 26, 2019, Lashana was served through domiciliary service.'
Once served, Lashana did not file an answer, exception, any other responsive
pleading, or otherwise make an appearance in the case. Consequently, Midland
Funding filed a motion for confirmation of default without the necessity of a
hearing. On October 15, 2019, a final default judgment was entered against
Lashana and in favor of Midland Funding. On October 21, 2019, notice of the
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judgment was served on Lashana through domiciliary service. From this
judgment, Lashana appeals.
DISCUSSION
Lashana' s appellate brief contains no specifications or assignments of error.
See Uniform Rules, Courts of Appeal, Rules 1- 3 and 2- 12. 4( A)(5) & ( 6). The
crux of Lashana' s position appears to be that a third party is responsible for the
account at issue due to a community property judgment. In further violation of the
court rules, her brief contains neither argument nor citations to legal authorities.
See Uniform Rules, Courts of Appeal, Rule 2- 12. 4( A)(9) and ( 13)( 4). This court
may consider as abandoned any issue for review that has not been briefed. Price v.
GEICO General Insurance Company, 2013- 2216 ( La. App. 1 Cir. 9/ 19/ 14), 155
So. 3d 1, 3- 4; Uniform Rules, Courts of Appeal, Rule 2- 12. 4( B)( 4). Nevertheless,
due to Lashana' s pro se status, this court will consider the merits of her appeal
despite the improper form of her brief. See Lewis v. Jindal, 2015- 1329 ( La. App. 1
Cir. 4/ 15/ 16), 2016 WL 1545629, at * 1 ( unpublished), writ denied, 2016- 0840 ( La.
6/ 17/ 16), 192 So. 3d 772; Putman v. Quality Distribution, Inc., 2011- 0306 ( La.
App. 1 Cir. 9/ 30/ 11), 77 So. 3d 318, 320.
Service was made upon George Pollard, Lashana' s husband.
2 In accordance with La. C. C.P. art. 1913( B), "[ n] otice of the signing of a final default judgment
against a defendant on whom citation was not served personally ... shall be served on the
defendant by the sheriff, by either personal or domiciliary service[.]" In this case, domiciliary
service was made upon John Pollard.
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Initially, we note that Lashana raised no specific issue or error regarding the
October 15, 2019 final default judgment rendered against her. In reviewing final
default judgments, the appellate court is restricted to determining the sufficiency of
the evidence offered in support of the judgment. Bordelon v. Say, 2001- 0717
La. App. 3 Cir. 3/ 13/ 02), 811 So. 2d 1232, 1235, writ denied, 2002- 1009 ( La.
6/ 21/ 02), 819 So. 2d 340. When a final default judgment recites that the plaintiff
has produced due proof in support of his demand and that the law and evidence
favor the plaintiff and are against the defendant, there is a presumption that the
default judgment has been rendered upon sufficient evidence to establish a prima
facie case and is correct, and the appellant has the burden of overcoming that
presumption. McCall v. Marshall, 51, 708 ( La. App. 2 Cir. 11/ 15/ 17), 244 So. 3d
1213, 1215. The appeal record of a final default judgment without a hearing
contains the entirety of the evidence before the trial judge, and the appellate court
is able to determine whether the evidence submitted was competent and sufficient.
Id. This determination is a factual one governed by the manifest error standard of
review. Id.; see also Arias v. Stolthaven New Orleans, L.L.C., 2008- 1111 ( La.
5/ 5/ 09), 9 So. 3d 815, 818.
The law and procedure relative to final default judgments in city courts is set
forth in Louisiana Code of Civil Procedure article 4901, et seq. In parish and city
courts, if the defendant fails to answer timely, or if he fails to appear at the trial,
and the plaintiff proves his case, a final default judgment in favor of the plaintiff
may be rendered with no preliminary default necessary. La. C. C. P. art. 4904( A).
The plaintiff may obtain a final default judgment only by producing relevant and
competent evidence which establishes a prima facie case. La. C. C. P. art. 4904( B).
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
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by affidavit. Id. Finally, a defendant against whom a default judgment is
confirmed may not assert an affirmative defense on appeal. Having failed to
answer or defend the suit, a defendant cannot defeat the default judgment against it
by asserting a defense. Cunningham v. M & S Marine, Inc., 2005- 0805 ( La. App.
4 Cir. 1/ 11/ 06), 923 So. 2d 770, 774.
In this case, Lashana argues that a third party is responsible for the account
for the first time on appeal.' Midland Funding counters that this argument was not
presented in the trial court and therefore cannot be raised on appeal for the first
time. Midland Funding further argues that Lashana' s argument constitutes an
affirmative defense, which was waived when she failed to file an answer or
responsive pleading.
In reviewing a final default judgment, a court of appeal is limited to a
determination of whether the record contains sufficient evidence to establish a
prima facie case. Louisiana Workers' Compensation Corp. v. Pro Source Roofing,
Inc., 2004- 1118 ( La. App. 1 Cir. 3/ 24/ 05), 907 So. 2d 113, 116. Upon reviewing
the record, it is clear that Lashana failed to answer Midland Funding' s petition or
respond after being served with notice. In her appeal, Lashana makes no argument
as to how the trial court erred in rendering the final default judgment against her.
Instead, on appeal she raises the defense that a third party is responsible for the
sums due on the account for the first time on appeal. Given Lashana' s failure to
answer or defend the suit, the law is clear that she cannot defeat the final default
judgment rendered against her by asserting such a defense on appeal. See Hall v.
Folger Coffee Co., 2002- 0920, 2002- 0921 ( La. App. 4 Cir. 10/ 1/ 03), 857 So. 2d
1234, 1245, writ denied, 2003- 1756 ( La. 10/ 17/ 03), 855 So. 2d 762, and writ
3 The record reveals that Tuvoris Q. Hill, Lashana' s former husband, was ordered to make
monthly payments on the account in a prior judgment. We note that although this final judgment
has no effect on Midland Funding, Lashana is not precluded from asserting a claim for
reimbursement against Mr. Hill.
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denied, 2003- 3416 ( La. 6/ 25/ 04), 876 So.2d 827. The long- standing rule of law is
that appellate courts will not consider issues raised for the first time on appeal,
which are not pleaded in the court below, and which the trial court has not
addressed.
Cantu. Day, 99- 0649 ( La. App. 1 Cir. 12/ 28/ 99), 756 So.2d 384, 386.
Accordingly, after reviewing the record in its entirety, we find that the
evidence offered by Midland Funding was sufficient to establish a prima facie case
prior to the entry of the final default judgment. The affidavit submitted by
Midland Funding proves the existence and validity of its claim that Lashana
defaulted on the account. We further find that Lashana failed to make an
appearance in the record or provide any evidence to rebut the presumption that the
judgment was rendered upon sufficient evidence and is legally correct. Therefore,
we find that the trial court correctly granted Midland Funding' s motion for
confirmation of default judgment.
CONCLUSION
For the reasons set forth, we affirm the October 15, 2019 judgment in favor
of Midland Funding LLC and against Lashana Den Q Pollard. Costs of this appeal
are assessed to Lashana Den Q Pollard.
AFFIRMED.
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