314 So.3d 45
La. Ct. App.2020Background
- Centurion obtained a default judgment against Wanda Littlefield on Feb. 1, 2006 for an unpaid account after a sheriff's return showed domiciliary service on Jan. 5, 2006 at Littlefield's Manning Drive address on "Thomas Harrell (Boyfriend)."
- Notice of that default judgment was served Feb. 15, 2006; Centurion later obtained a revival order signed Jan. 12, 2016 and notice of the revived judgment was mailed Jan. 14, 2016.
- Palisades Acquisition XVI, LLC later acquired the judgment. Littlefield filed a petition to annul on June 6, 2018 alleging: defective domiciliary service (Harrell not domiciled there), fraud/ill practices (relying on premature requests for admissions), and a defective affidavit supporting the 2016 revival.
- Palisades answered, generally denied allegations, admitted ownership, and filed peremptory exceptions including prescription.
- After a June 18, 2019 hearing the trial court granted the prescription exception, found other exceptions moot, and dismissed Littlefield’s petition with prejudice (judgment signed July 24, 2019). Littlefield appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of Jan. 5, 2006 domiciliary service | Centurion/Palisades: sheriff's return is prima facie valid; service on Harrell sufficed | Littlefield: Harrell was not domiciled at her home, so service was defective and judgment is absolutely null | Court: sheriff's return unrebutted; Littlefield presented no evidence to overcome presumption; service and default judgment valid |
| Prescription of annulment based on vice of form (absolute nullity) | Littlefield: action to annul for lack of proper service is imprescriptible (Article 2002) because default judgment is absolutely null | Palisades: prescription applies because plaintiff failed to act timely after notice and exception was pleaded | Court: Littlefield had notice and failed to rebut service presumption; assignments rejecting lack of service/prescription denied |
| Prescription of annulment for vice of substance (ill practices re: revival affidavit) | Littlefield: did not discover defective revival affidavit until Nov. 2017 and filed annulment within one year thereafter | Palisades: pleaded prescription as to both original and revived judgments; revived judgment notice was mailed in Jan. 2016 | Court: Littlefield received notice of revival in Jan. 2016 giving her enough information to investigate; annulment filed in 2018 was prescribed; exception sustained |
Key Cases Cited
- Clavier v. Our Lady of the Lake Hosp., Inc., 112 So.3d 881 (La. App. 1 Cir.) (manifest-error standard for fact findings on exceptions when evidence introduced)
- Hogg v. Chevron USA, Inc., 45 So.3d 991 (La.) (burden of proving prescription ordinarily on exception-pleader)
- Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383 (La.) (burden shifts when prescription is evident on face of pleadings)
- Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.) (standard of review: whether factfinder’s conclusion was reasonable)
- Roper v. Dailey, 393 So.2d 85 (La.) (sheriff's return is presumed correct but rebuttable)
- Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.) (annulment for fraud or ill practices and equitable inquiry)
- Expert Riser Solutions, LLC v. Techcrane International, LLC, 270 So.3d 655 (La. App. 1 Cir.) (application of manifest-error review to peremptory-exception hearings)
- Butler v. Sandberg, 289 So.3d 638 (La. App. 1 Cir.) (party attacking service must prove lack of service by preponderance)
- Guillot v. LECC- Baton Rouge Inc., 952 So.2d 42 (La. App. 1 Cir.) (exceptions and burden regarding prescription)