226 So. 3d 494
La. Ct. App.2017Background
- On May 2, 2015, Veronica Gordon, an independent contractor driving an A-1 St. Bernard Taxie & Delivery, LLC (A-1) cab, was in a work-related motor vehicle accident and later sought medical care.
- Gordon filed a disputed claim (Form 1008) on August 17, 2015 alleging unpaid wage and medical benefits; her original filing listed an incorrect agent/address for A-1.
- Multiple service attempts at various addresses were unsuccessful; a private process server (Toepfer) made limited attempts and then the OWC appointed the Louisiana Secretary of State as agent for service, which forwarded the Second Amended Claim by certified mail.
- The OWC proceeded to an August 2, 2016 hearing without counsel or a representative for A-1 present; the judge found for Gordon and entered judgment on August 4, 2016.
- A-1 appealed, arguing improper service (no diligent effort per La. C.C.P. arts. 1266/1267) and procedural defects (no preliminary default motion, failure to allow comment on proposed judgment).
- The appellate court reversed and remanded, concluding service via the Secretary of State was improper because adequate due diligence to serve the registered agent had not been shown, and the final judgment was therefore an absolute nullity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was service on A-1 perfected via Secretary of State substitution? | Service was perfected when Secretary of State forwarded the citation to A-1’s last known address; only forwarding is required. | Substitution was improper because plaintiff did not show due diligence in attempting personal service on the registered agent before resorting to the Secretary of State. | Held for defendant: substitution improper—plaintiff failed to show adequate due diligence under arts. 1266/1267. |
| Did actual notice (receipt of trial notice by agent) cure defective service? | Agent (Rizzuto) received trial notice and had actual knowledge but failed to appear, so judgment should stand. | Actual notice does not excuse failure to comply with statutory service requirements. | Held for defendant: actual notice does not replace required, lawful service. |
| Was the OWC permitted to try the case and render judgment absent a preliminary default? | OWC may proceed to hearing under La. R.S. 23:1317(A) and decide merits even if no default entered. | A preliminary default is required before confirming a default judgment; no preliminary default or valid service existed. | Held for defendant: judgment was a nullity where defendant was not properly served and no preliminary default had been taken; proceeding without defendant was improper. |
| Should the OWC’s final judgment be annulled? | Judgment was proper on the merits and should stand. | Judgment is an absolute nullity because defendant was not properly served as required by law. | Held for defendant: judgment annulled (reversed and remanded) because service was inadequate and procedural safeguards were not observed. |
Key Cases Cited
- Orozco v. Aries Bldg. Sys., 202 So.3d 1018 (La. App. 4th Cir. 2016) (explaining review standards and when legal error triggers de novo review)
- Louisiana Truck Parts, Inc. v. W & W Clarklift, Inc., 444 So.2d 733 (La. App. 5th Cir. 1984) (discussing Secretary of State forwarding citation)
- Victory Temple Assembly of God v. Louisiana Dist. Council of Assemblies of God, Inc., 376 So.2d 169 (La. App. 4th Cir. 1979) (insufficient attempts at service held not diligent)
- Thomas v. Quality Inn Westbank, 802 So.2d 930 (La. App. 5th Cir. 2001) (few unsuccessful attempts over long period do not show diligence)
- King v. Employers Cas. Co., 515 So.2d 542 (La. App. 1st Cir. 1987) (preliminary default required before confirming a default judgment)