Hall v. Folger Coffee Co., 2003-C-1734.

• Court: Supreme Court of Louisiana
• Citation: 874 So.2d 90
• Docket Number: No. 2003-C-1734.,2003-C-1734.
• Parties: Roy W. HALL and Helen Hall v. The FOLGER COFFEE COMPANY and XYZ Insurance Company. The Folger Coffee Company v. Roy W. Hall and Helen Hall.
• Decision Date: 14 April 2004

874 So.2d 90

Roy W. HALL and Helen Hall
v.
The FOLGER COFFEE COMPANY and XYZ Insurance Company.
The Folger Coffee Company
v.
Roy W. Hall and Helen Hall

No. 2003-C-1734.

Supreme Court of Louisiana.

April 14, 2004.

Rehearing Denied June 25, 2004.

874 So.2d 93

Jennifer M. Caulfield, Dominic J. Gianna, Marianne Garvey, Middleberg, Riddle & Gianna, New Orleans, for Applicant

Marsha B. Higbee, Ford J. Dieth, New Orleans for Respondent.

Thomas A. Usry, John F. Weeks, II, New Orleans, for amicus curiae Louisiana Sheriff Association.

Peter C. Rizzo, for amicus curiae Paul R. Valteau, Jr.

CALOGERO, Chief Justice.

At issue in this writ application is whether the court of appeal properly reversed the district court's factual finding that the evidence presented by Folger Coffee Co., the plaintiff in this nullity action, that its agent for service of process, CT Corporation, was not properly served with process of the petition, was sufficient to rebut the presumption of validity afforded a completed sheriff's return of service under La.Code of Civ. Proc. art. 1292. Finding that the court of appeal improperly substituted its own judgment for the judgment of the district court, we reverse the judgment of the court of appeal. Accordingly, we reinstate the judgment of the district court, which had annulled the default judgment rendered in favor of defendants, Roy W. and Helen Hall, against plaintiff, Folger Coffee Company.

FACTS AND PROCEDURAL HISTORY

On October 10, 1995, the Halls filed a personal injury action in Civil District Court for Orleans Parish against Folger, seeking recovery of damages allegedly resulting

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from a November 15, 1994, accident that occurred when Mr. Hall fell from a platform at Folger's warehouse in New Orleans while delivering coffee cans in the course of his employment with another company.¹ The Halls' petition included a request that Folger be served "through the Agent for Service of Process, CT Corporation Systems, 8550 United Plaza Blvd., Baton Rouge, LA. 70809." Although CT claims that the petition was never served, the East Baton Rouge Parish Sheriff's Office completed a return on service indicating that service was made on CT Corporation by "handing said copy to Mary Belton, Assistant Secretary, in person," on November 1, 1995; the service return is signed by East Baton Rouge Parish Deputy Harvey Thompson, a 17-year process server in the Civil Process Department. The return was mailed to the clerk of the Civil District Court in Orleans Parish, as required by La.Code of Civ. Proc. art. 1292,² and thereafter became a part of the record

After Folger failed to timely file an answer or other responsive pleadings, the district court entered a preliminary default judgment against Folger on January 24, 1996, as allowed by La.Code of Civ. Proc. art. 1701(A).³ The default was confirmed on July 15, 1996, when the district court entered judgment on behalf of the Halls. Mr. Hall was awarded $910,572.70 in damages, while Ms. Hall was awarded $45,000 for loss of consortium. The default judgment was mailed to Folger, through its agent for service of process, CT Corporation, by the clerk of Civil District Court, as allowed by La.Code of Civ. Proc. art. 1913(C).⁴ CT Corporation notified Folger of the default judgment, then sent the default judgment to Folger's parent corporation, Proctor and Gamble, by Federal Express.

Following its receipt of the default judgment on August 1, 1996, Folger filed a motion for suspensive appeal and posted the required appeal bond.⁵ Thereafter,

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Folger filed a Nullity Action under the provisions of La.Code of Civ. Proc. art. 2002(A)(2), which provides as follows

A. A final judgment shall be annulled if it is rendered:

* * * * *

(2) 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.

The basis for Folger's Nullity Action was its claim that service of process was never served on CT Corporation. Folger filed a motion for summary judgment making that assertion. That motion was granted by the district court. However, the summary judgment was reversed by the court of appeal, which found a genuine issue of material fact regarding the pivotal issue related to whether service of process had been properly effected on Folger through CT Corporation.⁶

Following the remand of the case to the district court, the Halls, joined later by T.T.C., filed peremptory exceptions of no cause of action and no right of action, arguing that Folger had made a general appearance on August 21, 1996, when it filed its Motion for Suspensive Appeal of the default judgment in the district court, seeking review of "all aspects" of the judgment. Under the provisions of La.Code of Civ. Proc. art. 2002(A)(2), quoted above, a party that has made a general appearance is not entitled to a judgment of nullity. The district court overruled those exceptions. The court of appeal denied writs filed by the Halls and T.T.C on that issue.⁷ This court thereupon denied the request for stay and for supervisory writs filed by the Halls and T.T.C.⁸

Following a bench trial, the district court entered judgment in the Nullity Action in favor of Folger, nullifying the default judgment and giving as its written reasons the legal argument portion of Folger's post-trial memorandum,⁹ which argued

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that the proven facts, coupled with applicable law, supported Folger's position at the trial of the case. The Halls and T.T.C. appealed the judgment that annulled the Halls' default judgment. The court of appeal reversed, concluding as follows:

Given that both the East Baton Rouge Sheriff's Office and CT routinely handle a large volume of services, that neither entity had a fool-proof record keeping system, and that neither entity knew for certain if service was actually made, we find the decisive factor to be the presumption of validity given the sheriff's return. As noted, the unrebutted presumption preponderates in favor of finding that service was made on CT, Folger's professional agent for service of process. We thus hold that the trial court was manifestly erroneous in finding that Folger rebutted the presumption and in annulling the default judgment.

Hall v. Folger Coffee Co., XXXX-XXXX, p. 19 (La.App. 4 Cir. 4/9/03), 843 So.2d 623, 634-35. We granted Folger's writ application to consider whether the court of appeal correctly overturned the district court's decision, which had nullified the default judgment. Hall v. Folger Coffee Co., XXXX-XXXX (La.10/17/03), 855 So.2d 744.

PROCEDURE FOR DETERMINING VALIDITY OF SERVICE OF PROCESS

Under the provisions of La.Code of Civ. Proc. art. 1292, a sheriff's return of service of process "shall be considered prima facie correct." The impact of that statement is explained by reference to the provisions of La.Code of Evidence, Chapter 3, "Effect in Civil Cases of Presumptions and Prima Facie Evidence." According to that chapter, "[l]egislation providing that a document or other evidence is prima facie evidence ... establishes a presumption under this Chapter."¹⁰ "Presumption" is defined as "an inference created by legislation that the trier of fact must draw if it finds the existence of the predicate fact unless the trier of fact is persuaded by evidence of the nonexistence of the fact to be inferred."¹¹ The only presumptions regulated by Chapter 3 of the La.Code of Evidence "are rebuttable presumptions [that] therefore may be controverted or overcome by appropriate evidence."¹² "If the trier of fact finds the existence of the predicate fact, and if there is evidence controverting the fact to be inferred, it shall find the existence of the inferred fact unless it is persuaded by the controverting evidence of the nonexistence of the inferred fact."¹³

The rule that may be extracted from reference to all of the above provisions is stated in Official Comment (b) to La.Code of Evid. 308, which states that "[w]hen the predicate fact is established it shifts the burden of persuasion of the non-existence of the inferred fact to the opponent." The phrase "burden of persuasion" is defined as "the burden of a party to establish a requisite degree of belief in the mind of the trier of fact as to the existence or nonexistence of a fact."¹⁴ The "degree of belief required "may be by a preponderance of the evidence, by clear and convincing evidence, or as otherwise required

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by law."¹⁵ According to this court's most recent pronouncement on the subject, the burden of persuasion that applies to a party seeking to overcome the rebuttable presumption afforded a completed sheriff's return of service by La.Code of Civ. Proc. art. 1292 is preponderance of the evidence. Roper v. Dailey, 393 So.2d 85 (La.1981). Accordingly, the party attacking service must prove that, more probably than not, proper service was not made. Id., 393 So.2d at 88.

Consideration of all of the above principles reveals the following method for determining a Nullity Action based on insufficient service of process:

1. The trier of fact must determine the existence of the "predicate fact"—i.e., whether the record contains a completed sheriff's return of service.¹⁶

2. If the predicate fact exists, the trier of fact must draw the inference created by the legislature—i.e., that the sheriff's return of service is valid.¹⁷

3. The party attacking the validity of the sheriff's return of service must be allowed to present "appropriate evidence" to controvert or overcome the presumption created by the first two steps.¹⁸

4. The trier of fact must determine whether it is persuaded by the controverting evidence of the nonexistence of the inferred fact.¹⁹

5. If the trier of fact is not persuaded by the controverting evidence of the nonexistence of the inferred fact, it must find the existence of the inferred fact.²⁰

6. If, based on a preponderance...