TECHNISONIC RESEARCH v. TECHNICAL INDUST.

• Decision Date: 01 October 2003
• Docket Number: No. CW 2003-38.,CW 2003-38.
• Parties: TECHNISONIC RESEARCH, INC. v. TECHNICAL INDUSTRIES, INC.
• Court: Court of Appeal of Louisiana — District of US

856 So.2d 149

TECHNISONIC RESEARCH, INC. v. TECHNICAL INDUSTRIES, INC.

No. CW 2003-38.

Court of Appeal of Louisiana, Third Circuit.

October 1, 2003.

Christopher J. Couch, Wayne M. Babovich, The Law Offices of Babovich, Spedale and Chauvin, P.L.C., Metairie, LA, for Plaintiff/Applicant, Technisonic Research, Inc.

Jean Ouellet, Perrin, Landry, deLaunay, Dartez & Ouellet, Lafayette, LA, for Defendant/Respondent, Technical Industries, Inc.

Court composed of Chief Judge NED E. DOUCET, JR., BILLIE COLOMBARO WOODARD, and JIMMIE C. PETERS, Judges.

PETERS, J.

The plaintiff in this litigation, Technisonic Research, Inc. (Technisonic Research), seeks supervisory writs from a trial court judgment granting a motion filed by the defendant, Technical Industries, Inc. (Technical Industries), declaring a money judgment rendered in favor of Technisonic Research and against Technical Industries null and void. For the following reasons, we deny the application for supervisory writs.

DISCUSSION OF THE RECORD

On September 20, 1999, Technisonic Research filed a suit on open account naming Technical Industries as the sole defendant. In the petition, Technisonic Research asserted that Technical Industries owed it $12,355.00 for services performed and merchandise provided to the defendant corporation on two separate dates, February 8, 1999 and February 17, 1999. Additionally, Technisonic Research sought recovery of twenty-five percent of the amount due as attorney fees. In its petition, Technisonic Research requested that Technical Industries be served through its registered agent for service of process, Edmund J. Baudoin, Sr. The sheriff's return reflects that a deputy sheriff effected personal service on Edmund Baudoin, Sr. on September 27, 1999. Technical Industries failed to timely answer the petition and, on October 22, 1999, Technisonic Research entered a preliminary default. On November 2, 1999, Technisonic Research confirmed the preliminary default and obtained judgment against Technical Industries in the amount sued upon.

After the judgment became final, Technisonic Research attempted to obtain a judgment debtor examination of the appropriate Technical Industries representative. Technical Industries responded to this attempt by filing a motion to have the November 2, 1999 judgment declared null and void. In its motion, Technical Industries asserted that Technisonic Research's original petition was served on Edmund J. Baudoin, Jr., and not Edmund J. Baudoin, Sr. Technical Industries further asserted that neither Mr. Baudoin, Sr., nor Mr. Baudoin, Jr., were involved in its management, that it received no service of the petition and citation, and that it had no knowledge of the suit's existence prior to judgment being rendered against it.

At a September 23, 2002 hearing on its motion, Technical Industries presented the testimony of Mr. Baudoin, Jr., and Mr. Baudoin, Sr., in an effort to establish the lack of service of citation. Mr. Baudoin, Jr., testified that he, and not his father, had been served by the deputy sheriff with Technisonic Research's suit. Additionally, he testified that, although he had worked for Technical Industries as office manager until January of 1999, he was not, and never had been, agent for service of process for the corporation. Mr. Baudoin, Sr., who was seventy-seven years old at the time of the hearing, testified that, he was the founder and former president of Technical Industries, and he had sold his interest in the corporation approximately three years before the September 2002 hearing. It was unclear from his testimony whether he remained as the corporation's agent for service of process. He testified that he has been the agent for service of process and had been served in the past with legal proceedings filed against the corporation. Mr. Baudoin, Sr., had little memory of past events, including facts contained in an affidavit executed by him and submitted by Technical Industries in support of its motion. When asked if he could tell the trial court he was absolutely certain that he did not receive service of the September 20, 1999 suit, he responded, "I don't remember, no."

OPINION

The trial court concluded that Technical Industries had established by a preponderance of the evidence that, "there was not proper service upon Technical Industries, Inc." In reaching its conclusion, the trial court granted Technical Industries' motion to declare Technisonic Research's judgment null and void. Technisonic Research asserts in its writ application that the trial court applied the incorrect legal standard in evaluating Technical Industries' evidence. Technisonic Research argues that the trial court should have applied the clear and convincing evidence standard, a burden which Technisonic Research argues Technical Industries did not meet.

The trial court applied the preponderance of the evidence standard based on the supreme court's decision in Roper v. Dailey, 393 So.2d 85 (La.1980). Thus, our analysis of the issue before us necessarily requires an analysis of the Roper decision.

The litigation giving rise to the Roper decision began in 1977 when Pamela J. Dailey filed a tort suit naming Dennis Roper as the sole defendant. The sheriff's return reflected that a deputy sheriff personally served Mr. Roper at his place of business with the petition and citation. When Mr. Roper did not timely file responsive pleadings, Ms. Dailey entered a preliminary default against him. She ultimately confirmed the preliminary default, thereby obtaining a money judgment against Mr. Roper.

Upon receipt of the notice of judgment, Mr. Roper filed a petition to nullify the judgment based on, among other grounds, improper service of process. In his petition, Mr. Roper asserted that service was made upon a secretary or receptionist in his place of employment and that he never received notice of Ms. Dailey's suit.

At the trial of the nullity action, the deputy sheriff who completed the sheriff's return testified that the sheriff's office had a policy wherein a deputy would sometimes telephone the person to be served and obtain permission to leave the papers to be served with a secretary or receptionist. However, he did not recall any of the particulars of service on Mr. Roper.

The trial court, applying a clear and convincing evidence standard, concluded that Mr. Roper did not carry his burden on the service of process issue, and the court of appeal agreed. Roper, 393 So.2d 85. In its initial opinion written by Justice Dennis, the supreme court affirmed the decisions of the lower courts. Id. Justice Dennis summarized Mr. Roper's burden as follows:

As recognized by the court of appeal below, the trial court correctly summarized the law applicable to the burden of proving lack of service of process as follows:

"A return of citation is prima facie evidence of service. La.C.C.P. Art. 324, 1292; La.R.S. 13:3471(5); Hood Motor Company, Inc. v. Lawrence, 334 So.2d 460 (La.App. 1st Cir.1976) writ denied, 338 So.2d 288 (La.1976),Martinez v. Silverman, 288 So.2d 88 (La.App. 4th Cir.1974); Smith v. Crescent Chevrolet Co., 1 So.2d 421 (La. App. 1st Cir.1941). The return of the officer on the citation is given great weight and the burden rests on the party attacking it to establish otherwise by clear and convincing evidence. Canterberry v. Slade Brothers, 232 La. 1081, 96 So.2d 4 (1957); League Central Credit Union v. Gagliano, 336 So.2d 931 (La.App. 4th Cir.1976); Spinks v. Caddo-Bossier Services, Inc., 270 So.2d 604 (La.App. 2d Cir. 1972). A return of citation cannot be impeached by the uncorroborated testimony of a single witness, Canterberry v. Slade Brothers, supra, League Central Credit Union v. Gagliano, supra, Guedry Finance Company v. Breland, 192 So.2d 884 (La.App. 4th Cir.1966), and it cannot be impeached by the uncorroborated testimony of the party upon whom service is stated to have been made by the officer. Canterberry v. Slade Brothers, supra; Hood Motor Company, Inc. v. Lawrence, supra; Guedry Finance Company v. Breland, supra; Smith v. Crescent Chevrolet Co., supra; Martinez v. Silverman, supra; Sims v. First National Bank of Ruston, 177 La. 386, 148 So. 505 (1933); Logwood v. Logwood, 185 La. 1, 168 So. 310 (1936)."

Furthermore, the rule has arisen in the jurisprudence that testimony of the serving officer is inadmissible if it would vary, contradict, and break down his official return of a citation, although the officer may testify to incidental and collateral facts in support of his return and in order to show the validity of his acts. Adler v. Board of Levee Commissioners, 168 La. 877, 123 So. 605 (1929); Baham v. Stewart Bros. & Co., 109 La. 999, 34 So. 54 (1903); Smith v. Crescent Chevrolet Co., 1 So.2d 421 (La.App. 1st Cir.1941).

Id. at 86.

Justice Calogero (now Chief Justice Calogero) and Justice Lemmon both dissented from the majority opinion. Justice Calogero opined, "[Mr. Roper] made a sufficient showing that he was not personally served with the petition." Id. at 87.

Justice Lemmon concluded, "The officer's admission itself defeated the presumption of validity of the officer's return. And [Mr. Roper's] testimony that he was never served established that fact by a preponderance of the evidence." Id. (emphasis added).

On rehearing, the supreme court reversed itself with Justice Lemmon writing for the majority and with Justice Dennis dissenting. Justice Lemmon stated the following concerning Mr. Roper's burden of proof:

Upon reconsideration we conclude that Dennis Roper proved, by a preponderance of the evidence, that he was not served with citation, and we accordingly hold that he is entitled to a judgment declaring the nullity of the default judgment in the original action.

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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

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