Andre v. Construction Material Shop

633 So. 2d 1313, 93 La.App. 1 Cir. 1212, 1994 La. App. LEXIS 808, 1994 WL 86238
CourtLouisiana Court of Appeal
DecidedMarch 11, 1994
DocketCW 93 1212
StatusPublished
Cited by9 cases

This text of 633 So. 2d 1313 (Andre v. Construction Material Shop) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andre v. Construction Material Shop, 633 So. 2d 1313, 93 La.App. 1 Cir. 1212, 1994 La. App. LEXIS 808, 1994 WL 86238 (La. Ct. App. 1994).

Opinion

633 So.2d 1313 (1994)

Shelby ANDRE
v.
CONSTRUCTION MATERIAL SHOP[1].

No. CW 93 1212.

Court of Appeal of Louisiana, First Circuit.

March 11, 1994.

*1314 Harry L. Shoemaker, III, Charles Daspit, Shoemaker, Lazarre, Daspit & Blackwell, Baton Rouge, for Shelby Andre, appellant.

W. Michael Stemmans, Baton Rouge, for Construction Materials, Inc., appellee.

Before CARTER, GONZALES and WHIPPLE, JJ.

GONZALES, Judge.

Plaintiff, Shelby Andre, brings this supervisory writ application seeking reversal of a *1315 hearing officer's judgment nullifying a default judgment previously rendered against defendant, Construction Materials, Inc., and granting defendant a new trial.

FACTS

On March 19, 1991, plaintiff filed a claim for worker's compensation benefits with the Louisiana Office of Worker's Compensation. Although service of the citation by certified mail was sent by the Office of Worker's Compensation to the address listed for defendant on plaintiff's claim form, the address listed was incorrect. Later, service by certified mail was made to defendant's correct business address. In an affidavit, defendant's comptroller, Dennis Maciasz, admits receipt of the citation and attached claim form on or about July 30, 1991.

In his affidavit, Maciasz states that, upon receipt of the citation and claim form, he called plaintiff's attorney, procured an informal extension of time in which to respond, and was assured that no adverse action would be taken against defendant without prior notice. Maciasz also states that plaintiff's attorney agreed to send additional documentation concerning plaintiff's claim, but never followed through with the agreement.

Defendant filed no response to the citation. Upon plaintiff's request, a preliminary default was entered against defendant on June 10, 1992. Without prior notice to defendant, a hearing on confirmation of the default was held by the hearing officer on September 21, 1992. On November 20, 1992, the hearing officer rendered a default judgment holding defendant liable to plaintiff for $50,675.60 in medical expenses and $61,295.46 in temporary total disability payments.

On December 29, 1992, defendant filed an "Ex Parte Motion and Order for a New Trial, or Alternatively, for Contradictory Hearing for a New Trial" contending that a new trial was warranted due to: (1) improper service, (2) defective citation, (3) failure of plaintiff's attorney to notify defendant of revocation of the informal extension to respond, (4) lack of verification and signature on plaintiff's pleadings, (5) improper expansion of the pleadings by plaintiff at the default hearing, (6) prescription, (7) the judgment being improperly based on hearsay and incompetent evidence, and (8) other reasons shown in the record.

On January 5, 1993, defendant filed "Declinatory Exceptions of Insufficient Citation and Service of Process and Peremptory Exception of Prescription." On January 7, 1993, a hearing was held on defendant's exceptions and motion for new trial. Judgment was rendered on January 21, 1993 in favor of defendant "but only as to the issue of (nullifying the preliminary judgment) and granting a new trial."

The hearing officer based his decision on a case from the Louisiana Fourth Circuit Court of Appeal, Lee v. Winn-Dixie of Louisiana, Inc., 593 So.2d 961 (La.App. 4th Cir. 1992), which held that, in a worker's compensation proceeding in which a corporation is a party, service must be made upon the corporation's registered agents for service of process, if agents have been designated. In support of this holding, the court cited La. C.C.P. art. 1261 (to be discussed later). In the absence of service on a registered agent, the Lee court found that the entrance of a preliminary judgment against the defendant was absolutely null under La.C.C.P. art. 1201.[2]Lee at 965. The Lee court also found that the corporate defendant did not waive its right to service upon its registered agent by filing an answer and an exception of vagueness after the entry of the preliminary judgment. Lee at 965.

In his written reasons for judgment, the hearing officer notes that Lee is "a direct case on point." He further states, "I do not agree with this decision but I am powerless to rule otherwise. Therefore, judgment is rendered in favor of nullifying the preliminary default and granting a new trial."

*1316 On July 1, 1993, plaintiff filed the writ application addressed herein. He assigns error to the hearing officer's granting defendant's motion for new trial and vacating the default judgment of November 20, 1992. In support of his application, plaintiff cites a case decided by the Louisiana Third Circuit Court of Appeal, Losabia v. Cypress Hospital, 619 So.2d 151 (La.App. 3d Cir.), writ denied, 625 So.2d 1047 (La.1993), in which the court was faced with the same issue present in the Lee case—that is, whether service by certified mail on a corporate employer, but not on the employer's registered agent for service of process, was fatal to a default judgment rendered against the employer. The Losabia court declined to follow the holding and application of the Lee case, finding that service of process upon an employee of the defendant at the defendant's place of business was proper pursuant to provisions of the Louisiana Worker's Compensation Law; and the court found the service proper, despite the fact that the defendant had a registered agent for service of process who had not been served. Losabia at 154-155.

We granted plaintiff's writ application to address whether service by certified mail upon defendant at its place of business in this case was proper and sufficient to support the validity of the November 20, 1992 default judgment rendered by the hearing officer in favor of plaintiff, despite the lack of service upon defendant's registered agent for service of process. Although we find that service in this case was proper, we affirm the granting of a new trial on other grounds.

APPLICABLE STATUTES

In ordinary civil actions, service of citation or other process on a domestic or foreign corporation is made by personal service on any one of its agents for service of process. La.C.C.P. art. 1261(A). If the corporation has failed to designate an agent for service of process, or if there is no registered agent by reason of death, resignation, or removal, service of the citation or other process may be made at any place where the business of the corporation is regularly conducted either: (1) by personal service on any officer, director, or resident agent named in the articles of incorporation or in the last report previously filed with the secretary of state, or (2) by personal service on any employee of suitable age and discretion. La. C.C.P. art. 1261(B).

However, under the law in effect at the time plaintiff filed his worker's compensation claim, the procedure governing the service of claims in worker's compensation proceedings, was specifically set forth in former La.R.S. 23:1310.3(A)(2) (1991), which read:

Upon receipt of the petition, the director shall assign the matter to a hearing officer and shall send copies of the petition by certified mail to the named defendants. Within fifteen days of receipt of the petition or within a delay for answering granted by the hearing officer not to exceed an additional ten days, a defendant shall answer the petition. (Emphasis added.)[3]

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Cite This Page — Counsel Stack

Bluebook (online)
633 So. 2d 1313, 93 La.App. 1 Cir. 1212, 1994 La. App. LEXIS 808, 1994 WL 86238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andre-v-construction-material-shop-lactapp-1994.