144 So. 3d 1059
La. Ct. App.2014Background
- Widow and surviving children sue OLOL and Doctors Roberts, Blue, and Wexler for medical malpractice.
- Plaintiffs fax-filed petition on Feb 21, 2008 and did not request service on OLOL within 90 days; OLOL moved for declinatory exception for insufficiency of service.
- OLOL dismissed plaintiffs' claims against OLOL without prejudice on Aug 16, 2008.
- Plaintiffs later requested service on Blue and Wexler on Feb 22, 2011; sheriff’s return shows service on Mar 1, 2011 at the doctors’ former business address.
- Preliminary defaults were entered against Blue and Wexler on Jun 15, 2011; default judgments on liability entered Aug 23, 2011 and damages Feb 17, 2012.
- In Mar 2012 the doctors moved for new trial, raised insufficiency of service, and argued no personal service; trial court sustained the declinatory exception and dismissed without prejudice; plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of the declinatory exception | Pope argues the declinatory exception was timely before default confirmation. | Blue and Wexler contend the declinatory should have been raised before confirmation of the default. | Declinatory exception was timely before confirmation and supports dismissal. |
| Whether there was personal service on Blue and Wexler | Plaintiffs claim service was proper as per sheriff’s return. | Doctors proved no personal service; service at former business address during retirement is ineffective. | No personal service; sheriff’s return incorrect; service did not occur. |
| Whether denial of new trial based on new evidence was proper | New evidence (legal malpractice suit against attorney) showed doctors had notice. | New evidence does not establish proper service and cannot justify new trial. | No abuse of discretion; denial of new trial affirmed. |
| Effect of absolute nullity and ability to vacate judgment under Article 2164 | Judgments based on lack of service should be null; vacatur appropriate. | Appellate court should not grant annulment since procedural defect exists. | Absolute nullity recognized; appellate court vacates related judgments and affirms dismissal. |
| Appropriate remedy for improper service after default | Suit to annul should be allowed to address service issues. | Cannot address service via untimely declinatory; must annul default via proper procedure. | Process followed; annulment not viable; relief granted by vacating judgments and affirming dismissal. |
Key Cases Cited
- Hall v. Folger Coffee Co., 874 So.2d 90 (La. 2004) (presumption of service return correctness; burden to prove invalidity)
- Roper v. Daly, 393 So.2d 85 (La. 1980) (service by officer at proper place and manner; burden of rebuttal)
- Mack v. Wiley, 991 So.2d 479 (La. App. 1 Cir. 2008) (absolute nullity and appellate correction rights under Art. 2164)
- Cycle Sport, LLC v. Jones, 2007 WL 2685160 (La. App. 1 Cir. 2007) (vacatur of judgment for absolute nullity not barred by procedural defects)
- Dicta Realty Assocs. v. Conrad, 230 So.2d 595 (La. App. 1 Cir. 1970) (appellate power to grant just, legal, proper judgment on record)