Clay v. Clay

• Decision Date: 29 November 1979
• Docket Number: No. 64818,64818
• Citation: 389 So.2d 31
• Parties: John O. CLAY et al. v. Robert D. CLAY.
• Court: Louisiana Supreme Court

Page 31

389 So.2d 31

John O. CLAY et al. v. Robert D. CLAY.

No. 64818.

Supreme Court of Louisiana.

Nov. 29, 1979.

Dissenting Opinion Oct. 8, 1980.

Burt W. Sperry, Thomas E. Richard, Shotwell, Brown & Sperry, Monroe, for plaintiffs-applicants.

Edwin K. Theus, Jr., Theus, Grisham, Davis & Leigh, Monroe, for defendant-respondent.

CALOGERO, Justice. ^*

Plaintiffs instituted a petition for a writ of quo warranto against a non-resident in a summary proceeding and attempted service under Louisiana's long arm statute (R.S. 13:3201, et seq.). The trial court's judgment for plaintiff on the merits was set aside by the Court of Appeal after that court concluded that defendant's exception to the jurisdiction of the trial court should have been sustained. The Court of Appeal ruled that Louisiana's long arm statute cannot be used to obtain personal jurisdiction over a non-resident in a summary proceeding at least where a defendant is not afforded the minimum delays he would be entitled to in ordinary proceedings.

We granted writs upon plaintiff relator's application to review that determination, prompted in part by the argument that defendant received notification of the suit and probably had a reasonable opportunity to appear and defend, and in addition the trial was recessed for two days to allow the defendant to gather and present evidence.

For reasons closely akin to those set out by the Court of Appeal we affirm their sustaining the exception to the jurisdiction over the person of the defendant, but we reverse their dismissal of the case and remand to the district court to allow plaintiffs an opportunity to attempt service of process anew. For a recitation of the facts and proceedings in the lower court see the appendix attached to this opinion.

As this case involves an attempt to bring a quo warranto action as a summary proceeding under the long arm statute, we begin with a discussion of summary and ordinary proceedings and the distinctions between the two. Summary proceedings are those which are conducted with rapidity within the delays allowed by the court, and without citation and the observance of all formalities required in ordinary proceedings. C.Civ.P. art. 2591. "More than one hundred and twenty-five code or statutory provisions permit the use of summary procedure in special cases." Comments (a) C.Civ.P. art. 2592. Generally summary proceedings are allowed in instances where the issue to be resolved is narrow and/or the need for rapid adjudication is great.

Summary proceedings are commenced by the filing of a contradictory motion or by a rule to show cause except as otherwise provided by law. C.Civ.P. art. 2593. "Citation and service thereof are not necessary in a summary proceeding. A copy of the contradictory motion, rule to show cause, or other pleading filed by the plaintiff in the proceeding, and of any order of court assigning the date and hour of the trial thereof, shall be served upon the defendant." C.Civ.P. art. 2594.

The writ of quo warranto, although required to be instituted by petition, is an extraordinary remedy which may be but does not necessarily have to be tried summarily. Plaintiff may choose to bring the quo warranto action as an ordinary proceeding. C.Civ.P. art. 3781 and Comment (b) thereunder. The writ when ordered may be signed by the clerk under the seal of the court, or it may be issued and signed by the judge without further formality. C.Civ.P. art. 3781. With respect to a writ of quo warranto instituted as a summary proceeding, the Code of Civil Procedure requires the court to set a hearing not less than two nor more than ten days after service of the writ, although upon a proper showing the court may assign the matter for hearing less than two days after service of the writ. C.Civ.P. art. 3782.

The respondent in a quo warranto proceeding is required to show by what authority he claims or holds public office, or office in a corporation. C.Civ.P. art. 3901. The writ of quo warranto instituted as a summary proceeding does not prompt the service of citation. Defendant is thus not told that he must comply with the demand contained in the petition or make an appearance by filing a pleading or otherwise, but rather is merely directed to show cause why the relief sought by his opponent should not be granted. The Code of Civil Procedure, Article 3783, does however require that a written answer to the petition be filed ¹ not later than the time fixed for the hearing. ² It is tried by preference over ordinary proceedings without a jury (C.Civ.P. art. 2595) and may result in a judgment forbidding the defendant from holding or claiming an office, declaring who is entitled to the office, or directing an election when necessary. C.Civ.P. art. 3902.

In contrast to summary proceedings, ordinary proceedings require citation and service thereof (C.Civ.P. art. 1201) and allow more time for the hearing of exceptions and other pleadings. The citation, signed by the clerk of court and accompanied by a certified copy of the petition, must contain, among other things "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 Article 1001 (fifteen days) under penalty of default." C.Civ.P. art. 1202. A preliminary default may be confirmed after two days from entry of the judgment of default. C.Civ.P. art. 1702. A default judgment may not be taken against a person who has not received citation and service thereof. see Succession of Barron, 345 So.2d 995 (La.App. 2nd Cir. 1977), citing C.Civ.P. art. 1201.

Jurisdiction over a person who has not submitted or waived objection, be it in connection with ordinary or summary proceedings, is based upon service of process. C.Civ.P. art. 6. The service of process contemplated by C.Civ.P. art. 6 "includes either personal or domiciliary service on the defendant." Comments (f) C.Civ.P. art. 6. Personal service, "made when a proper officer tenders the citation or other process to the person to be served" (C.Civ.P. art. 1232) "may be made anywhere the officer making the service may lawfully go to reach the person to be served." (C.Civ.P. art. 1233. "Domiciliary service is made when a proper officer leaves the citation or other process at the dwelling house or usual place of abode of the person to be served with a person of suitable age and discretion residing therein as a member of his domiciliary establishment." C.Civ.P. art. 1234. This personal or domiciliary service may be made upon a representative of another by appointment of court, ³ by operation of law, ⁴ or by mandate. C.Civ.P. art. 1235. ⁵

Comment (g) to C.Civ.P. art. 6 notes that "this article is broad enough to include the extension of the limits of jurisdiction over the person recently made by McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957)." To comport with constitutional requirements, personal jurisdiction over a non-resident depends upon minimum contacts the defendant has with the state which indicate that he has purposely availed himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protection of its laws. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Boykin v. Lindenkranar, 252 So.2d 467 (La.App. 4th Cir. 1971).

Jurisdiction over the status of individuals, including in some instance a non-resident may also be exercised by Louisiana courts. C.Civ.P. art. 10(6), (7). And personal jurisdiction may be exercised over a non-resident as to a cause of action arising from the non-resident's ownership interest in property within the state, ⁶ transacting business in the state and certain other conduct. R.S. 13:3201. ⁷

Louisiana's statutory (and only) means of effecting service of process on the non-resident such as Robert Clay in this suit is by compliance with the so called long arm statute, R.S. 13:3201-3207, a statute adopted by this state to permit the courts of Louisiana to tap the full potential of in personam jurisdiction over non-residents consistent with the due process clause of the fourteenth amendment. Comment (a) R.S. 13:3201, Adcock v. Surety Research and Investment Corporation et al., 344 So.2d 969 (La.1977). Just as personal jurisdiction over residents cannot be maintained without valid personal or domiciliary service as required by law, personal jurisdiction over non- residents is fully dependent upon strict compliance with the long arm statute's procedural requirements. As we stated as recently as 1975 in Ray v. South Central Bell Telephone Company, 315 So.2d 759 (La.1975), "The word shall in R.S. 13:3204 setting forth the methods of service, means that the provisions of this section are mandatory." See also Bickford v. Lutz, 339 So.2d 1268 (La.App. 3d Cir. 1976). Only when plaintiff's counsel sends to the defendant by registered or certified mail a certified copy of the citation and of the petition in a suit under the long arm statute does such service have the same legal force and validity as personal service made on the defendant within the state. R.S. 13:3204. ⁸

The only difference in the effect between ordinary citation (requiring fifteen days in which to answer) and the long arm citation, is that the long arm statute does not allow a default judgment until thirty days after filing in the record of an affidavit indicating that the process was mailed or delivered to the defendant as required by the statute. ⁹ As is indicated in the comment (b) to R.S. 13:3205 "The longer delay for answering allowed in this section, and the requirement of proof of notice to the defendant through mail or by delivery, lend strong support to the constitutionality of R.S. 13:3201 through 13:3207."

Therefore personal jurisdiction...