Clay v. ClayClay v. Clay
Plaintiffs instituted a petition for a writ of quo warranto against a non-resident in a summary proceeding and attempted service under Louisiana‘s long arm statute (
We granted writs upon plaintiff relator‘s application to review that determination, prompted in part by the argument that defendant received notification of the suit and probably had a reasonable opportunity to appear and defend, and in addition the trial was recessed for two days to allow the defendant to gather and present evidence.
For reasons closely akin to those set out by the Court of Appeal we affirm their sustaining the exception to the jurisdiction over the person of the defendant, but we reverse their dismissal of the case and remand to the district court to allow plaintiffs an opportunity to attempt service of process anew. For a recitation of the facts and proceedings in the lower court see the appendix attached to this opinion.
As this case involves an attempt to bring a quo warranto action as a summary proceeding under the long arm statute, we begin with a discussion of summary and ordinary proceedings and the distinctions between the two. Summary proceedings are those which are conducted with rapidity
Summary proceedings are commenced by the filing of a contradictory motion or by a rule to show cause except as otherwise provided by law.
The writ of quo warranto, although required to be instituted by petition, is an extraordinary remedy which may be but does not necessarily have to be tried summarily. Plaintiff may choose to bring the quo warranto action as an ordinary proceeding.
The respondent in a quo warranto proceeding is required to show by what authority he claims or holds public office, or office in a corporation.
In contrast to summary proceedings, ordinary proceedings require citation and service thereof (
Jurisdiction over a person who has not submitted or waived objection, be it in connection with ordinary or summary proceedings, is based upon service of process.
Comment (g) to
Jurisdiction over the status of individuals, including in some instance a non-resident may also be exercised by Louisiana courts.
The only difference in the effect between ordinary citation (requiring fifteen days in which to answer) and the long arm citation, is that the long arm statute does not allow a default judgment until thirty days after filing in the record of an affidavit indicating that the process was mailed or delivered to the defendant as required by the statute.9 As is indicated in the comment (b) to
Therefore personal jurisdiction over a non-resident obtained by use of the long arm statute may not attach if the service of process falls short of
When therefore we turn to the dispositive question in this case we conclude that personal jurisdiction did not attach over the defendant herein because the service of process upon which plaintiff relies did not comport with
Plaintiffs contend, however, that even if the service of process was not sufficient to attach personal jurisdiction defendant waived his exception of insufficiency of service of process and lack of personal jurisdiction by submitting to the jurisdiction of the court.
After defendant‘s exception to the court‘s jurisdiction was overruled he notified the trial court through counsel (defendant never appeared before the trial court in person) of his intention to apply to the Court of Appeal for supervisory writs and asked the trial court to stay the proceedings pending a decision of the Court of Appeal on that application. The trial judge gave defendant nine days in which to seek writs but denied the request for a stay and announced that he would proceed with the hearing. At that point defendant availed himself of
Defendant‘s request for a stay was merely incidental to the application for supervisory writs by which he was protesting the court‘s ruling on his exception to the jurisdiction. This was surely no waiver of objection or submission to the jurisdiction.
We also conclude that the answer filed under these circumstances did not subject defendant to the jurisdiction of the court.
Defendant‘s answer came after his exception to the jurisdiction had been overruled and his request for a stay of the trial pending application for writs had been denied. He surely cannot be required to forego answering and defending the quo warranto proceeding on the merits in order to avail himself on later appellate review of a meritorious exception to the jurisdiction which had been erroneously overruled by the trial judge.
Equally significant, Article 7 of the Code of Civil Procedure10 provides that even an answer filed at the same time as an exception
Plaintiffs’ arguments concerning fairness, due process, reasonable opportunity to defend, or the given delay in which to produce witness are all irrelevant. In all instances where defendant appears personally or through counsel and files an exception to the jurisdiction of the court, defendant has been notified and seemingly has had an opportunity to present his defense. Yet our law sanctions this procedure as a means of protesting the court‘s jurisdiction without submitting thereto.
Plaintiffs’ third assignment of error is meritorious. Their suit should not have been dismissed. The quo warranto action can be brought as an ordinary action under the long arm statute if the proper service and citation are obtained. Therefore, plaintiffs should be allowed to amend their petition and cure defects in the service of process. Comment (b)
Decree
For the foregoing reasons the judgment of the Court of Appeal insofar as it sustains defendant‘s exceptions to the jurisdiction of the trial court is affirmed; it is reversed insofar as it dismissed plaintiffs’ lawsuit. The case is remanded to the trial court for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
MARCUS, J., concurs.
BLANCHE, J., concurs in the result.
DENNIS, J., dissents and assigns reasons.
Appendix
John O. Clay and Robert D. Clay are brothers who are contesting the rights to office in the Clay Oil & Gas Corporation. Their father owned all the shares of Clay‘s Park, Inc., an Ohio corporation which
In 1971 Clay‘s Park, Inc., was merged into Clay Oil and Gas Corporation, a Louisiana Corporation engaged in the oil and gas business. The two families maintained identical interests in the corporation after the merger. The Board of Directors of Clay Oil and Gas before this controversy began consisted of John and Robert Clay and their wives. It is not disputed that the board was deadlocked prior to a disputed shareholders’ meeting.
On April 24, 1978, John Clay, acting as a shareholder, issued notice of an annual shareholders’ meeting in Monroe, Louisiana at the registered office of the corporation. The notice stated that the purpose of the meeting was to hold an election of directors and to transact any business which might properly come before the board. Robert Clay and his son and John Clay, his wife, and daughter were present at the May 5th meeting. In addition to the shareholders, two attorneys representing John Clay and a court reporter were present.
Robert Clay objected to the presence of the attorneys and requested that he be given an opportunity to retain counsel. When this request was refused, Robert Clay and his son Richard left the meeting. The parties disagree whether the meeting had been called to order before Robert and Richard Clay left the meeting. John Clay, his wife and daughter continued the meeting despite Robert Clay‘s departure. These remaining shareholders elected Robert Clay, John Clay, and two other members of John Clay‘s family to the board of directors, giving the John Clay family three of the four votes on the board of directors.
A meeting of the newly elected board was scheduled for the next day, May 6, 1978. On May 6, 1978 the new directors (except Robert Clay who was absent) elected John Clay Chairman of the Board and Chief Executive Officer and President. The offices of Vice-President and Secretary-Treasurer were filled by members of the John Clay family. The board then passed a resolution naming the three officers of the corporation as the only corporate officials authorized to withdraw corporate funds from any financial institution.
Robert Clay refused to acknowledge the validity of the May 5, 1978 shareholders’ meeting and the May 6, 1978 board of directors’ meeting. Robert Clay filed suit in Ohio alleging that he was Chairman of the Board and Chief Executive Officer of Clay Oil and Gas, and was authorized to maintain possession and control of the corporate funds and records. Robert Clay also instituted a suit in Ohio to dissolve the corporation.
On July 21, 1978, Robert Clay issued a call for an annual shareholders’ meeting to be held in Monroe, Louisiana at the registered office of the corporation on August 1, 1978. In response to this action John Clay and other members of his family filed a writ of quo warranto on July 31, 1978, directing Robert Clay to answer the petition and state by what authority he claimed the offices of Chairman of the Board and Chief Executive Officer, President, and Secretary-Treasurer. The suit sought an order forbidding the defendant Robert Clay from possessing the books and papers of the corporation and from acting as an officer of the corporation.
On August 3, 1978, Robert Clay received in the mail a certified copy of the petition for writ of quo warranto with attached order fixing the matter for hearing the amended petition and the writ, at his home in Canal Fulton, Ohio. The next day, August 4, 1978, defendant Robert Clay filed declinatory and dilatory exceptions in the trial court in Monroe, Louisiana. He amended these exceptions on August 7, 1978. The trial judge set August 9, 1978 for the hearing on the exceptions of insufficiency of service of process and lack of personal jurisdiction.
The trial court overruled defendant‘s exceptions at the hearing on August 9, 1978.
On August 16, 1978, the court signed a judgment granting plaintiffs all relief prayed for. On March 26, 1979 the Second Circuit Court of Appeal reversed the judgment of the trial court, on the grounds that the Louisiana long arm statute (
DENNIS, Justice, dissenting.
I respectfully dissent. I am not convinced that the long arm statute can never be used in a summary proceeding, and I am certainly unwilling to announce such a rule under the facts of this case, as it is clear that the defendant received notice of the action pending against him and had sufficient opportunity to retain counsel who could prepare his defense and appear in court for him. Our long arm statute was passed with the obvious intent of giving our citizens the maximum access to nonresident defendants allowed under the constitutional restrictions of due process.
Moreover, I agree with the trial judge that it was of no statutory significance that there was no citation included in the service of process, since the writ of quo warranto which was attached to the petition contained substantially the same notices and requirements that a citation would have contained and therefore served the same purpose as a citation.
I would not be so niggardly in interpreting the provisions of the long arm statute as to find no room for the use of this method of obtaining jurisdiction in summary proceedings. In certain instances, the law provides for the use of summary proceedings because no relief lies by ordinary means or where the delay involved in obtaining relief may cause injustice. Cf.