Opinion
NUMBER 2016 CA 1664
06-14-2017
STATE OF LOUISIANA v. RODERICK WAYNE PRESTON, SR.
Jeremy J. Suire Glenn J. Armentor Lafayette, LA Counsel for Plaintiff/Appellee, Kai Reed, on behalf of Roderick Preston, Jr., Kaiden Preston, and Rodranique Preston M. Bofill Duhe, District Attorney Anthony J. Saleme, Jr. Franklin, LA Counsel for Plaintiff/Appellee, State of Louisiana Pride J. Doran Quincy L. Cawthorne Opelousas, LA Counsel for Defendant/Appellant, Roddrae Druilhet
NOT DESIGNATED FOR PUBLICATION Appealed from the Sixteenth Judicial District Court In and for the Parish of St. Mary State of Louisiana
Docket Number 2008-NS-211
Honorable Paul J. deMahy, Judge Presiding
Jeremy J. Suire
Glenn J. Armentor
Lafayette, LA Counsel for Plaintiff/Appellee,
Kai Reed, on behalf of Roderick Preston,
Jr., Kaiden Preston, and Rodranique
Preston M. Bofill Duhe, District Attorney
Anthony J. Saleme, Jr.
Franklin, LA Counsel for Plaintiff/Appellee,
State of Louisiana Pride J. Doran
Quincy L. Cawthorne
Opelousas, LA Counsel for Defendant/Appellant,
Roddrae Druilhet BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ. WHIPPLE, C.J.
This matter is before us on appeal by Roddrae Druilhet from a judgment of the district court denying his petition for nullity. For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 30, 2008, an initial hearing was held to establish child support, in accordance with LSA-R.S. 46:236.1.1, et seq., for the minor children, Roderick Preston, Jr. and Kaiden Preston. An order of support was rendered on May 6, 2008, by the Sixteenth Judicial District Court, as recommended by the hearing officer, ordering the father of the minor children, Roderick Preston, Sr., to pay child support in the amount of $240.00 per month through the State of Louisiana Department of Social Services, Support Enforcement Services ("the State"), on behalf of their mother, Kai Reed Preston. The judgment further provided for an immediate income assignment order in accordance with LSA-R.S. 46:236.3 and ordered that Mr. Preston procure and maintain health insurance for the minor children if available through his employment. Although Mr. Preston was incarcerated at the time, both he and Mrs. Preston were present at the hearing.
According to the certificate of marriage contained in the record herein, Roderick Preston, Sr. and Kai Reed were married on December 31, 2005.
The judgment further indicated that public benefits were being provided for the children.
In June 2009, Kai Reed gave birth to a little girl for whom Mr. Preston was listed as the father on the birth certificate. The district attorney subsequently filed a pleading requesting a contradictory hearing on December 1, 2009 to "add [a] child" to the support order. Although the document contained a section providing for notice, it was left blank and struck through. Instead, the district attorney filed a "Notice of Appearance Date" accompanied by a fax coversheet, wherein the district attorney requested that the Patterson Police Department have Mr. Preston sign the notice and "fax" a signed copy back to the district attorney's office. Mr. Preston signed the notice, acknowledging the hearing date and waiving "any further notice." The notice was returned to the district attorney's office and filed with the clerk of court on December 1, 2009.
Following a hearing on December 1, 2009, a judgment was signed by the district court on December 7, 2009, in accordance with the hearing officer's recommendations, ordering: that the minor child, Rodranique Preston, be added to the existing support order; that payments be made through the State; that an immediate income assignment order issue; and that Mr. Preston obtain health insurance for the minor child if made available through his employer. The judgment also indicated that Mr. Preston, who was incarcerated at the time, "failed/refused to appear after having been duly noticed or cited/served with process." Also, there is no indication in the record that Mr. Preston requested to be transported from the Patterson jail to the hearing. Mr. Preston was personally served with a copy of the hearing officer's recommendations/judgment on December 15, 2009.
Mr. Preston is listed as the father of Rodranique Preston on her birth certificate.
In contrast, in the initial "Motion to Establish Child Support and Medical Support," the district attorney specifically requested that Mr. Preston "be duly served and cited to appear" at the hearing on April 30, 2008.
On June 24, 2015, Roddrae Druilhet, an adult son of Mr. Preston, filed a petition for nullity of judgment, contending that the December 7, 2009 judgment signed by the district court was an absolute nullity because: the State was aware that Mr. Preston was incarcerated at the time of the hearing, yet had made no attempt to either effect formal service or formally request that Mr. Preston be transported to court for the December 1, 2009 hearing. Druilhet further claimed that Mr. Preston could not possibly be the biological father of Rodranique Preston, when he was continuously incarcerated for more than three hundred days prior to the minor child's birth, yet the State had failed to attempt to locate Rodranique's biological father in the non-support proceedings. Druilhet further contended that no valid default judgment had been taken against Mr. Preston, where the State had failed to arrange for transportation of Mr. Preston.
In a supporting memorandum, Druilhet contended that Mr. Preston died on October 27, 2012, while in the course and scope of his employment with B&F Trucking, and that Mr. Preston's minor children filed a workers' compensation claim, which is currently pending in the Ninth District of the Office of Workers' Compensation. Druilhet further contended that the primary issue in the workers' compensation case is not compensability, but to whom compensation is owed, which is affected by the number of Mr. Preston's minor children who could establish dependence upon the decedent at the time of his death. According to Druilhet, "[a]t one time or the other," Mr. Preston also had pending non-support hearings for the children of Leatha Druilhet and Dametra Boatmon in the Sixteenth Judicial District Court. However, Druilhet challenged the validity of the amending 2009 non-support judgment adding Rodranique Preston to the original 2008 non-support order.
Druilhet avers that he is one of Mr. Preston's alleged seven children, namely: Roderick Preston, Jr., Kaiden Preston, and Rodranique Preston (with mother Kai Reed); Tai'Lor Preston (with mother Dametra Boatmon); Roddrae Druilhet and Julius Preston (with mother Leatha Druilhet); and Damond Preston (who has been adopted by Mr. Preston's parents, Dennis and Sherry Preston).
Following a hearing on November 5, 2015, the hearing officer denied Druilhet's petition for nullity. The hearing officer also issued "Reasons for Recommendation," concluding that Druilhet lacked standing to file a petition for nullity in these proceedings, that Mr. Preston signed a "Notice of Appearance Date" for the hearing in question, that the State had no duty to transport Mr. Preston to the hearing, and that Mr. Preston acquiesced in the judgment adding the minor child to his existing support obligation and took no action to nullify same.
Druilhet appealed the hearing officer's findings to the district court. By judgment dated January 15, 2016, the district court accepted the hearing officer's recommendation and denied the petition for nullity for the reasons set forth by the hearing officer.
Druilhet lodged the instant appeal with this court, contending that the district court erred in:
(1) Allowing the minor child, Rodranique Preston, to be added to the support order arbitrarily without filing a motion to amend and without properly serving Mr. Preston, thereby rendering the judgment an absolute nullity pursuant to LSA-C.C.P. art. 2002(A)(2);
(2) Finding that Druilhet does not have standing to attack the judgment as an absolute nullity;
(3) Implicitly finding that Mr. Preston purportedly signed a Notice of Appearance Date for an actual hearing, and in implicitly finding that Mr. Preston's alleged signature constituted proof of proper and sufficient service;
(4) Finding the State had no obligation to transport Mr. Preston to court for the December 1, 2009 hearing, and
(5) Finding Mr. Preston acquiesced in the enforcement of the judgment.
DISCUSSION
Standing
(Assignment of Error Number Two)
At the outset, we address Druilhet's contention that the district court erred in finding that he lacked standing to file a petition for nullity herein. Druilhet contends in his petition for nullity and for the reasons set forth in his supporting memorandum, that the December 7, 2009 judgment of the district court is an absolute nullity.
Any person with an interest may attack an absolutely null judgment in collateral proceedings at any time and before any court, by rale or by any other method, without resort to an action of nullity, for absolutely null judgments are not subject to the venue and the delay requirements of the action of nullity. See Hebert v. Hebert, 96-2155 (La. App. 1st Cir. 9/19/97), 700 So.2d 958, 959; Knight v. Sears, Roebuck & Company, 566 So. 2d 135, 137 (La. App. 1st Cir.), writ denied, 571 So. 2d 628 (La. 1990); and In re Succession of Vickers, 2004-0887 (La. App. 4th Cir. 12/22/04), 891 So. 2d 98, 105, writ denied, 2005-0378 (La. 4/8/05), 899 So. 2d 10.
A collateral attack is defined as an attempt to impeach the decree in a proceeding not instituted for the express purpose of annulling it. Knight v. Sears, Roebuck & Company, 566 So. 2d at 137.
The district court determined that Druilhet lacked standing to file the petition for nullity herein because he was not the administrator of Mr. Preston's estate, he "was never a party to these proceedings," and "no enforcement of that Judgment is sought against him." Applying the jurisprudence set forth above, however, these findings are not determinative of whether Druilhet has standing.
Druilhet clearly has an interest in the instant matter, where his challenge to the dependency of Rodranique Preston upon Mr. Preston in the workers' compensation proceeding may be directly affected by the instant matter to his detriment, considering that the December 7, 2009 judgment under attack purportedly ordered Mr. Preston to pay child support for the support of Rodranique Preston. Thus, on review, we conclude that the district court erred in finding that Druilhet lacked standing to file a petition for nullity attacking the December 7, 2009 judgment in these proceedings.
See generally LSA-R.S. 23:1231, LSA-R.S. 23:1251, and LSA-R.S. 23:1252.
Acquiescence
(Assignment of Error Number Five)
We next address Druilhet's fifth assignment of error, wherein he contends that the district court erred in finding that LSA-C.C.P. art. 2003 "would preempt any claim for nullity" where Mr. Preston acquiesced in the enforcement of the judgment.
In her reasons for recommendation, the hearing officer specifically found that Mr. Preston "took no action to nullify the judgment at that time and as such, can be found to have acquiesced in same." Moreover, in its brief on appeal, the State argues that because "[t]he petition for nullity was filed some years after [Mr.] Preston had knowledge of the judgment adding Rodranique Preston to his support obligation. He cannot now seek to annul a judgment that [he] acquiesced in over the years."
Louisiana Code of Civil Procedure article 2003 provides that a defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of the grounds enumerated in Article 2002.
We note that while a defendant who acquiesces in an absolutely null judgment is precluded from asserting its nullity, the action for nullity herein is asserted by Druilhet, not Mr. Preston, who was the defendant in the underlying proceedings. See LSA-C.C.P. art. 2003. Article 2003 denies the action of nullity to a defendant who was present in the parish at the time of the judgment's execution. See Strain v. Premier Video, Inc., 99-0181 (La. App. 1st Cir. 3/31/00), 764 So. 2d 983, 987-988. However, Druilhet was not a party to the underlying proceedings. Thus, while this court, in a "highly unusual situation," has considered whether an unsuccessful plaintiff acquiesced in an adverse judgment such that it was precluded from bringing an action in nullity by LSA-C.C.P. art. 2003, we decline to extend the prohibitions set forth therein to non-parties to the judgment such as Druilhet herein. Cf. Home Distribution, Inc. v. Dollar Amusement, Inc., 98-1692 (La. App. 1st Cir. 9/24/09), 754 So. 2d 1057, 1059-1060. As set forth above, any person with an interest may attack an absolutely null judgment in collateral proceedings at any time and before any court. Knight v. Sears, Roebuck & Company, 566 So. 2d at 137.
See also Sanderford v. Mason, 2012-1881 (La. App. 1st Cir. 11/1/13), 135 So. 3d 745, 751 ("The focus of Article 2003 is the knowing submission by the judgment debtor to the judgment's enforcement, through a completed execution, in a parish where he is present, This tacit recognition of the judgment's validity estops the party from later contesting it." (Emphasis added.)).
Service
(Assignments of Error Numbers One and Three)
In these assignments, Druilhet contends that the district court erred in allowing Rodranique Preston to be added to a pre-existing child support order without filing a motion to amend or properly serving Mr. Preston, thereby rendering the judgment an absolute nullity pursuant to LSA-C.C.P. art. 2002(A)(2).
Louisiana Code of Civil Procedure article 2002 lists specific vices of form that render a judgment absolutely null. A judgment rendered against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken is an absolute nullity. LSA-C.C.P. art. 2002(A)(2). On a petition to annul, the burden of proof is on the party challenging the validity of service to show by a preponderance of the evidence that service was not properly made. Merial Limited v. Lagraize, 2007-182 (La. App. 5th Cir. 10/30/07), 971 So. 2d 403, 406, writ denied, 2007-2277 (La. 1/25/08), 973 So. 2d 760 (citing Hall v. Folger Coffee Company, 2003-1734 (La. 4/14/04), 874 So. 2d 90, 97; State ex rel. Department of Social Services v. Langlois, 2003-0849 (La. 3/3/04), 874 So. 2d 216, 217.).
Druilhet challenges the method by which Mr. Preston was served with notice of the hearing date, contending that it was not "proper service" where there is no indication as to when Mr. Preston received and/or signed the notice, and where service was not confected in the manner provided in LSA-C.C.P. art. 1235.1.
With respect to service on incarcerated persons, LSA-C.C.P. art. 1235.1 provides:
A. Service is made on a person who is incarcerated in a jail or detention facility through personal service on the warden or his designee for that shift. The warden or his designee shall in turn make personal service on the person incarcerated.
B. When requested by the petitioner or mover, proof of service may be made by filing in the record the affidavit of the person serving the citation and pleadings on the person who is incarcerated.
C. Personal service on the person incarcerated as required by Paragraph A of this Article shall be made promptly, but in no event shall it be made later than ten days after service upon the warden or his designee. If, for reasons beyond the control of the warden, such personal service cannot be accomplished by the tenth day, then on the next day or as soon as it is apparent that such personal service cannot be accomplished, the warden or his designee shall note the inability to serve on the citation or pleadings and return the citation or pleadings to the issuing court.
D. Service as provided in Paragraph A of this Article shall be deemed to be accomplished on the date of personal service shown by the affidavit specified in Paragraph B of this Article, or if no such affidavit is timely received, nor a return by the warden or his designee in Paragraph C of this Article indicating a lack of personal service, then service is deemed to be accomplished ten days after service upon the warden or his designee under Paragraph A of this Article.
On review, we note that to the extent that Druilhet contends that service was not pursuant to LSA-C.C.P. art. 1235.1, the record contains a "Notice of Appearance Date," which was signed by Mr. Preston, notifying him "that this case is fixed for Arraignment, Rule to Establish, Generic Test, Amended Judgment, Contempt Hearing, Revocation Hearing, Contradictory Hearing or URESA Hearing on: Dec. 1, 2009 at 8:30 o'clock am; and [he is] to return on this date without any further notice." (Emphasis added) On appeal, Druilhet has failed to set forth any evidentiary basis in the record to establish that the signed "Notice of Appearance Date" and waiver of any further notice of the December 1, 2009 hearing by Mr. Preston was invalid. Instead, we find that Mr. Preston had sufficient notice of the December 1, 2009 hearing, that he specifically chose to waive any further notice of the December 1, 2009 hearing, and that service pursuant to LSA-C.C.P. art. 1235.1. was therefore not necessary. Cf. Raine v. Raine, 2015-1161 (La. App. 4th Cir. 8/3/16), 197 So. 3d 854, 859-860.
"Contradictory Hearing" appears to be partially underscored on the form.
Druilhet also contends on appeal that the pleading filed by the district attorney to add a minor child to the existing support order failed to include sufficient allegations of fact necessary to warrant a granting of a default judgment against Mr. Preston in accordance with LSA-C.C.P. art. 1702 and farther lacked the necessary elements required to be set forth in a petition pursuant to LSA-C.C.P. art. 891. Thus, Druilhet argues that there was never a proper motion before the court to allow it to add the minor child, Rodranique, to the existing support order.
Louisiana Code of Civil Procedure article 1702(A) provides that "[a] judgment of default must be confirmed by proof of the demand that is sufficient to establish a prima facie case and that is admitted on the record prior to confirmation."
Louisiana Code of Civil Procedure article 891(A) provides that a petition:
[S]hall set forth the name, surname, and domicile of the parties; shall contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation; shall designate an address, not a post office box, for receipt of service of all items involving the litigation; and shall conclude with a prayer for judgment for the relief sought.
To the extent that Druilhet likens the judgment obtained in Mr. Preston's absence to a "default judgment," we note that the matter herein was set for a contradictory hearing, in an ongoing child support proceeding, to add a child to an existing support order payable through the State on behalf of Kai Preston. Mr. Preston received notice of this hearing and did not appear. The proceedings to obtain a default judgment relied upon by Druilhet are not applicable herein because default proceedings were not initiated by the district attorney's office. See LSA-C.C.P. arts. 1701-1704.
Moreover, we note that any objection to the nonconformity of the pleading setting the matter for hearing with the requirements of LSA-C.C.P. art. 891 or objections of vagueness are objections raised through a dilatory exception, See LSA-C.C.P. art. 926(A). These objections are waived unless pleaded prior to answer or judgment by default. LSA-C.C P. art. 926(B); see also LSA-C.C.P. art. 928. Here, Mr. Preston did not object to the form of the petition prior to the hearing and judgment herein. Accordingly, these objections were waived. See Southeastern Louisiana University v. Cook, 2012-0021 (La. App. 1st Cir. 9/21/12), 104 So. 3d 124, 128; Hall v. Smith, 393 So. 2d 382, 384 (La. App. 1st Cir. 1980), writ denied, 398 So. 2d 530 (La. 1981).
These assignments of error lack merit.
Transport
(Assignment of Error Number Four)
In this assignment of error, Druilhet contends that the district court erred in finding the State had no obligation to transport Mr. Preston to court for the December 1, 2009 "criminal non-support hearing" in accordance with LSA-R.S. 15:706(D).
Louisiana Revised Statute 15:706(D) provides in part, as follows:
The following provisions shall govern the transportation of each prisoner who is incarcerated in a parish prison or other correctional facility located within the state and whose presence is required in a criminal or civil court proceeding in a district court for a parish outside of the judicial district in which the prisoner is incarcerated:
(1) The district attorney who is to try the prisoner, or the party requesting the prisoner's presence in a civil proceeding, as the case may be, shall apply to the court in which the court proceeding is to be held for an order directing the transportation of the prisoner. The district attorney or the party requesting the prisoner's presence, as the case may be, has the burden of establishing just cause for the prisoner's presence.
(2) Upon finding that the prisoner's presence is required, the court shall order the sheriff of the parish in which the criminal or civil court proceeding is to be held to take custody of the prisoner in the parish in which the prisoner is incarcerated and to transport the prisoner to the parish in which the criminal or civil court proceeding is to be held and return the prisoner to that parish if so required.
(3) The governing authority of the parish in which the criminal court proceeding is to be held shall reimburse the sheriff of that parish for the expenses incurred by that sheriff in transporting the prisoner to the criminal court proceeding and for returning the prisoner to the parish in which he was incarcerated. In the case of a civil court proceeding, the party requesting the presence of the prisoner shall deposit into the registry of the court an amount set by the court to be sufficient to cover the costs of transporting the prisoner to the civil court proceeding and returning the prisoner to the parish in which he was incarcerated. Upon application of the transporting agency, the court shall pay the transporting agency the costs of transporting the prisoner.
To the extent that Druilhet's argument herein is premised upon the characterization of these proceedings as "criminal," and the hearing as a "criminal non-support hearing," Druilhet's argument fails. Louisiana Revised Statute 46:236.1.2(D)(1) authorizes the department to take direct civil action "to obtain an order, judgment, or agreement of support against the responsible person in any case in which the department is providing services under this Subpart." The department is further authorized to take direct action to modify an order or judgment of support in any case in which the department is providing services. See LSA-R.S. 46:236.1.2(D)(1). These civil proceedings only assume the quality of a criminal or quasi-criminal proceeding after a criminal sentence has been imposed in an ancillary contempt proceeding. See State v. Taylor, 554 So. 2d 232, 233 (La. App. 2nd Cir. 1989), writ denied, 556 So. 2d 599 (La. 1990). Here, the purpose of the contradictory hearing was to add a minor child to an existing child support order. The issue of contempt was not before the court.
It is not unusual for individuals who are incarcerated to be parties to civil litigation, either as plaintiff or defendant, and a writ of habeas corpus ad testificandum is the means for such individuals to be present in court. Leeper v. Leeper, 44,777 (La. App. 2nd Cir. 9/23/09), 21 So. 3d 1006, 1010. Indeed, prisoners who are parties to litigation routinely utilize this mechanism to obtain their presence in court. Cockerham v. Parish of Ascension, 2012-1100, 2013 WL 2406384, p. 5 (La. App. 1st Cir. 5/31/13) (unpublished opinion) (citing Ardoin v. Bourgeois, 2004-1663 (La. App. 3rd Cir. 11/2/05), 916 So. 2d 329, 332-333).
In her reasons for recommendation, the hearing officer found that Mr. Preston signed acknowledging receipt of notice of the appearance date and that while he "certainly had a right to request that a transport order be signed for his appearance," the State "had no obligation to prepare same and arrange for transportation."
On review, we find no error in this finding. It was incumbent upon Mr. Preston to seek the proper relief to ensure his own appearance and to arrange for his transportation to the hearing if he desired to attend. See Thomas v. Gift World, Inc., 2009-1056, 2009 WL 4981292, p. 5 (La. App. 1st Cir. 12/23/09) (unpublished opinion); Brooks v. Allride Auto, LLC, 2009-252 (La. App. 3rd Cir. 6/3/09), 11 So. 3d 1222, 1224. There is no indication in the record that Mr. Preston was estopped or prevented in any way from applying for the necessary writ. See Falcon v. Falcon, 2007-491 (La. App. 5th Cir. 12/27/07), 975 So. 2d 40, 43, writ denied, 2008-0295 (La. 3/28/08), 978 So. 2d 311. There is also no indication that Mr. Preston ever made any attempt to do so. See Thomas v. Gift World, Inc., 2009-1056 at p. 5.
Moreover, although Druilhet contends that LSA-C.Cr.P. arts. 831 through 836 impose a duty on the State "to attempt to secure the defendant's presence for ... criminal non-support proceedings, in which a defendant may be subject to criminal sanctions," we note that these articles set forth when the presence of a defendant in a criminal proceeding is necessary, i.e., for the prosecution of a felony, prosecution of a misdemeanor, and sentencing. Accordingly these articles are inapplicable herein.
We find no merit to this assignment of error.
CONCLUSION
For these reasons, the January 15, 2016 judgment of the district court, affirming the hearing officer's recommendation and denying Druilhet's petition for nullity, is hereby affirmed. Costs of this appeal are assessed against the appellant, Roddrae Druilhet.
AFFIRMED. McClendon, J., dissenting.
Because I conclude that Mr. Preston was not properly served or cited, I respectfully dissent from the majority.
Louisiana Code of Civil Procedure article 1201 provides, in pertinent part:
A. Citation and service thereof are essential in all civil actions except summary and executory proceedings, divorce actions under Civil Code Article 102, and proceedings under the Children's Code. Without them all proceedings are absolutely null.Proper citation is the cornerstone of all actions and actual knowledge cannot supplant the need for strict compliance with the requisites of proper citation. Rivers v. Groth Corp., 95-2509 (La.App. 1 Cir. 9/27/96), 680 So.2d 762, 763.
B. The defendant may expressly waive citation and service thereof by any written waiver made part of the record.
Louisiana Code of Civil Procedure article 1235.1 provides the manner in which incarcerated persons are to be served with process. The majority recognizes that Mr. Preston was not properly served in accordance with LSA-C.C.P. art. 1235.1. Nonetheless, the majority concludes that because Mr. Preston signed a "Notice of Appearance Date," service was not necessary. However, the "Notice of Appearance Date" signed by Mr. Preston does not indicate a waiver of service and citation. Rather, it merely provides notice of the December 1, 2009 court date and waives any further notice of said court date.
Finding a distinction between service and citation and a notice of appearance, I must respectfully dissent.