116 So. 3d 720
La. Ct. App.2013Background
- Dr. Haik retained Mr. Asher for forensic accounting during divorce proceedings and executed a fee agreement in 2004.
- By 2009, Mr. Asher claimed Dr. Haik owed $12,470 for services and mailed a certified demand letter to 8 Ravenne Lane, Natchez, MS 39120.
- Mr. Asher filed an open-account petition; Dr. Haik failed to answer; the trial court entered default judgment against her for $12,470 plus costs and fees.
- Dr. Haik moved to annul the judgment alleging improper service and traveling at the time of service.
- The trial court dismissed the petition to annul with prejudice; the appellate court affirmed, finding no improper service or fraud.
- Record shows the petition was mailed to Dr. Haik at the address used in the demand letter; a separate misspelling (Ravenne vs Ravenne) was not fatal under the circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service complied with law for annulment | Haik argues improper service due to misspelled address | Asher contends proper service via certified mail was completed | No reversible error; service substantial compliance |
| Whether there was fraud/ill practice supporting annulment | Fraud/ill practice alleged due to billing discrepancies | No proof of fraud; records show proper billing and affidavit of debt | No fraud or ill practice proven |
| Whether fee evidence supports $350/hour claim | Haik signed only the 2004 contract at $265/hour | Rates increased over time; affidavit supports gross debt | Trial court did not err; affidavit supports amount due |
Key Cases Cited
- Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983) (discretion in annulling judgments for fraud/ill practice)
- Steele v. Ruiz, 202 So.2d 376 (La.App. 4th Cir.1967) (valid defenses could be pleaded in original suit to avoid annulment)
- Clay v. Clay, 389 So.2d 31 (La.1979) (strict compliance vs minor address misspelling under service rules)
- Dean v. Waters, 667 So.2d 1137 (La.App. 4th Cir.1995) (refusal to accept certified mail can be service if properly documented)
- Decca Leasing Corp. v. Torres, 465 So.2d 910 (La.App. 2nd Cir.1985) (avoidance of certified mail delivery can be service if counsel affidavit filed)