Opinion
2012 CA 2050 C/W 2012 CA 2051
2013-09-13
LEWISBURG ESTATES HOMEOWNERS ASSOCIATION, INC. v. LINDA E. WIMBERLY
Diana L. Tonagel Mandeville, Louisiana Counsel for Plaintiff-Appellant Linda Wimberly John T. "Jack" Culotta Andrew G. Legrand Benjamin Frank Davis Metairie, Louisiana Counsel for Defendant-Appellee Lewisburg Estates Homeowners Association, Inc.
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT
NUMBER 2007-16282 C/W 2009-10541, DIV. G, PARISH OF ST. TAMMANY
STATE OF LOUISIANA
HONORABLE WILLIAM CRAIN, Judge
Diana L. Tonagel
Mandeville, Louisiana
Counsel for Plaintiff-Appellant
Linda Wimberly
John T. "Jack" Culotta
Andrew G. Legrand
Benjamin Frank Davis
Metairie, Louisiana
Counsel for Defendant-Appellee
Lewisburg Estates Homeowners
Association, Inc.
BEFORE: KUHN, HTGGINBOTHAM, AND THERIOT, JJ.
Disposition: REVERSED AND RENDERED.
KIJHN, J.
Plaintiff-appellant, Linda E. Wimberly, filed a nullity action requesting the annulment of a default judgment rendered in favor of defendant-appellee, Lewisburg Estates Homeowners Association, Inc. (LEHA). The trial court denied relief. We reverse and render.
FACTUAL AND PROCEDURAL BACKGROUND
On November 19, 2007, LEHA filed a petition against Wimberly seeking to enforce compliance with subdivision restrictions, abate an averred nuisance, and collect past due invoices and damages. In a return posted on December 12, 2007, the sheriff deputy indicated that as of December 6, 2007, he had been unable to serve Wimberly expressly noting, "REFUSES TO COME TO THE DOOR AND SHE IS HOME." LEHA subsequently filed a motion to appoint a special process server, and on January 11, 2008, the trial court appointed Michael Dale Breaux and Associates (Breaux) to serve the petition on Wimberly. On June 12, 2008, a preliminary default was entered, and on November 10, 2008, the trial court signed a judgment confirming the default judgment, ordering Wimberly to pay $220.50 to LEHA, rectify an ongoing nuisance, and maintain the property in satisfactory condition.
On January 29, 2009, Wimberly filed this nullity action averring that LEHA had not served her with process and, therefore, the default judgment was null and void. After a two-day hearing, the trial court denied relief. This appeal followed.
DISCUSSION
A final judgment shall be-annulled if it is rendered against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction. La. C.C.P. art. 2002A(2). The plaintiff in a nullity action has the burden of proving his case by a preponderance of the evidence. There is a preponderance when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Roper v. Dailey, 393 So.2d 85, 88 (La. 1980) (on rehearing).
Citation and service thereof are essential in all civil actions except summary and executory proceedings, certain divorce actions, and proceedings under the Children's Code. Without citation and service, all proceedings are absolutely null. La. C.C.P. art. 1201 A. Service of process is required to be made by either the sheriff, see La. C.C.P. art. 1291, or when the sheriff is unable, by a court-appointed person over the age of majority, who is not a party and resides within the state whom the court deems qualified to perform the duties required, to make service of process in the same manner as is required of the sheriff. Service of process made by a court-appointed processor shall be proved like any other fact in the case. See La. C.C.P. art. 1293. When service is made by the sheriff, he is required to endorse on a copy of the citation or other process the date, place, and method of service and sufficient other data to show service in compliance with law. He shall sign and return the copy promptly after the service to the clerk of court who issued it. The return, when received by the clerk, shall form part of the record, and shall be considered prima facie correct. La. C.C.P. art. 1292.
Our review of the record reveals that it contains no service return filed into the record by Breaux. Instead, in conjunction with the confirmation of the preliminary default, an affidavit executed by Breaux states that he served Wimberly with the petition "by tendering same to her at residence" on February 28, 2008 at 7:15 p.m. Although Breaux's affidavit suggested that he served her the petition, he did not attach a copy of the citation to the affidavit and did not specifically attest that he served Wimberly with citation.
The citation must be signed by the clerk of the court issuing it with an expression of his official capacity and under the seal of his office; must be accompanied by a certified copy of the petition; and must contain the date of issuance, the title of the cause, the name of the person to whom it is addressed, the title and location of the court issuing it, and a statement that the person cited must either comply with the demand contained in the petition or make an appearance, either by filing a pleading or otherwise, in the court issuing the citation within the delay provided in La. C.C.P. art. 1001 under penalty of default. La. C.C.P. art. 1202.
At the trial on the merits of the nullity action, Wimberly established that she was never served with citation. Specifically, Breaux testified that he delivered the legal documents to Wimberly's residence inside a manila envelope. He did not know if the package he left at Wimberly's house included a citation. He stated that he glanced at the contents of the envelope but was unable during his court testimony to confirm whether the documents included a citation. Wimberly testified that she did not receive any citation. Thus, without regard to whether Wimberly was served a petition, as testified to by Breaux, or not, as she stated, without service of citation, the proceeding is an absolute nullity. See Succession of Barron, 345 So.2d 995, 997 (La. App. 2d Cir. 1977). And even if we were to assume that Wimberly had been served the petition, it was not in the form required for citation; most specifically, it did not contain the signature of the clerk of the court issuing it with an expression of his official capacity and under the seal of his office or a statement that the person cited must either comply with the demand contained in the petition or make an appearance, either by filing a pleading or otherwise, in the court issuing the citation within the delay provided in La. C.C.P. art. 1001 under penalty of default. See La. C.C.P. art. 1202; Succession of Barron, 345 So.2d at 997.
Mindful that the record lacks a return in conformity with the requirements of La. C.C.P. art. 1292, based on the testimonial evidence, Wimberly established that she was never served with citation. Without any evidence to support a finding that she was served with citation, the default judgment was an absolute nullity. See La. C.C.P. art. 1201 A. Thus, the trial court erred in concluding that she was not entitled to relief.
Much of the testimony adduced at trial centered on whether Wimberly had been properly served. While she stated she had been away from her residence from shortly after 6:15 until approximately 10:45 p.m. on February 28, 2008, which is when Breaux's affidavit attested that he had served her, LEHA impeached her witness who attempted to corroborate her testimony. LEHA also produced photographs suggesting that between 6:54 and 7:03 p.m. on February 28, 2008, Wimberly was reading something behind the glass French doors of the upstairs entrance to her residence. But evidence tending to show that at that same time, Wimberly was at an LEHA meeting at a community center in Mandeville on Florida Street was introduced by LEHA. And Breaux's trial testimony, wrought with inconsistencies, called into question whether the manner in which he attempted to serve her was in accordance with either La. C.C.P. art. 1232 (personal service) or art. 1234 (domiciliary service). Because we have concluded that Wimberly established she was never served with citation, it is unnecessary for us to address whether Wimberly was served the petition and we pretermit a discussion of the issues raised in connection with the propriety of that service.
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DECREE
For these reasons, we reverse the trial court's judgment and we render judgment recognizing the November 10, 2008 default judgment against Linda E. Wimberly as an absolute nullity. Appeal costs are assessed against defendant-appellee, Lewisburg Estates Homeowners Association.
REVERSED AND RENDERED.