STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
23-744
BAYLIE FAITH ARNAUD
VERSUS
DEVIN GEORGE, IN HIS CAPACITY AS STATE REGISTRAR AND BUREAU DIRECTOR, OFFICE OF VITAL STATISTICS
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NUMBER C-20233956, DIVISION L HONORABLE MARILYN C. CASTLE, DISTRICT JUDGE
SHARON DARVILLE WILSON JUDGE
Court composed of Candyce G. Perret, Sharon Darville Wilson, and Ledricka J. Thierry, Judges.
VACATED AND REMANDED. Baylie Faith Arnaud 204 Cascade Palm Court Youngsville, Louisiana 70592 (337) 692-9114 PLAINTIFF/APPELLEE IN PROPER PERSON
Neal R. Elliott, Jr. Bureau of Legal Services Louisiana Department of Health Bienville Building Post Office Box 3836 Baton Rouge, Louisiana 70802-3836 (225) 342-1128 COUNSEL FOR DEFENDANT/APPELLANT: Nadine Smith, State Registrar and Bureau Director, Office of Vital Records
Nadine Smith State Registrar and Bureau Director Office of Vital Records 1450 Poydras Street, Suite 400 New Orleans, Louisiana 70112 WILSON, Judge.
In this appeal, Nadine Smith,1 State Registrar and Bureau Director for the
Office of Vital Statistics (the State Registrar), requests that this court reverse the
judgment requiring her to issue a new certificate of live birth to change the gender
marker for Baylie Faith Arnaud (Arnaud) from female to male. Finding that the
procedural requirements of La.Code Civ.P. art 1704 were not followed, we find that
the judgment is an absolute nullity, vacate the judgment, and remand the matter to
the district court for further proceedings.
I.
ISSUES
The State Registrar asserts that the judgment at issue herein is essentially a
default judgment rendered against a state agency without ensuring that the
procedural requirements of La.Code Civ.P. art 1704 were followed and that the
judgment is null pursuant to La.Code Civ.P. art. 2002(A)(2) since the State Registrar
was not served with the petition. In the alternative, the State Registrar argues that,
if the petition was served correctly, then the district court erred in rendering a final
judgment without holding “a hearing where the proof/evidence could be offered and
introduced into the record” for consideration pursuant to La.R.S. 40:62(C).
II.
STANDARD OF REVIEW
We review this record de novo since a reversible legal error was made in the
district court regarding the issuance of a default judgment against the State Registrar
1 During the pendency of this matter, Nadine Smith succeeded Devin George as the State Registrar and Bureau Director for the Office of Vital Records. where the procedures mandated by La.Code Civ.P. art. 1704 were not followed.
Fontenot v. Citgo Petroleum Corp., 17-924 (La.App. 3 Cir. 5/23/18), 247 So.3d 837.
III.
FACTS AND PROCEDURAL HISTORY
On or about July 24, 2023,2 Arnauld filed a petition for gender marker change
in the Fifteenth Judicial District Court. Attached to the petition are the following
documents:3 (1) affidavit of verification with the notarized signature of Arnaud,
dated July 24, 2023; (2) letter signed by Dr. Ethan Larson indicating that Arnaud
underwent a sex change operation on March 2, 2022; and (3) Dr. Mary J. Murphy’s
April 13, 2021 statement indicating that Arnaud had appropriate clinical treatment
for gender transition. The petition has a paragraph stating that “it is mandatory that
the Louisiana State Registrar be served with a copy of this Petition and be cited to
answer it.” The petition also contains a “PLEASE SERVE” instruction indicating
that the State Registrar should be served at the Office of Vital Records, 1450 Poydras
Street, Suite 400, New Orleans, Louisiana. The record, however, is devoid of any
indication that citation and service of the petition were ever made on the State
Registrar. The only other documents contained in the record are: (1) a notice of
Arnaud’s change of address;4 (2) the judgment signed on October 11, 2023; (3) a
blank certificate of service accompanying the judgment; (4) a notice of signing of
2 The copy of the petition in the record bears a stamp that says “STAMPED COPY GIVEN” but does not bear a date or time stamp from the clerk’s office. 3 The State Registrar points out that Arnaud’s original birth certificate is not attached to the petition as required by La.R.S. 40:62(B). 4 This court notes that this is Arnaud’s last known address and that this court’s file contains a mailing addressed to Arnaud at this address that was returned to sender.
2 judgment addressed to Arnaud only; (5) the signed motion and order for this appeal;
and (6) the notice of appeal.
IV.
LAW AND DISCUSSION
“Citation and service thereof are essential in all civil actions except summary
and executory proceedings . . . Without them all proceedings are absolutely null.”
La.Code Civ.P. art. 1201(A). Louisiana Revised Statutes 40:62 sets forth the
procedure that a person must follow for the “[i]ssuance of new birth certificate after
anatomical change of sex by surgery.” A suit authorized by La.R.S. 40:62 “shall be
filed contradictorily against the state registrar[.]”
Louisiana Code of Civil Procedure Article 2002(A)(2) provides that “[a] final
judgment shall be annulled if it is rendered . . . [a]gainst a defendant who has not
been served with process as required by law and who has not waived objection to
jurisdiction, or against whom a valid default judgment has not been taken.” In the
brief to this court, the State Registrar requests that this court recognize the judgment
as an absolute nullity and remand the matter to the district court for further
proceedings. “Generally, a question regarding sufficiency of service of process
cannot be raised for the first time on appeal, but rather should be raised in a suit to
annul the judgment.” Hall v. Dep’t of Pub. Safety & Corr., 22-374, p. 5 (La.App. 5
Cir. 7/23/23), 374 So.3d 139, 144. “The justification for requiring a separate suit is
so that a hearing can be held to ascertain facts regarding whether defendants were
properly served.” Tour Holdings, LLC v. Larre, 18-503, p. 4 (La.App. 1 Cir.
12/6/18), 267 So.3d 735, 737. However, this court has recognized that a judgment
rendered against a defendant who has not been served as required by law is an
3 absolute nullity, which may be attacked “at any time and before any court.” LeGlue
Buick, Inc. v. Smith, 390 So.2d 262, 264 (La.App. 3 Cir. 1980).
In this case, there is no evidence in the record that citation and service were
made on the State Registrar, and no hearing was held before the district court signed
the judgment ordering the State Registrar to change Arnaud’s gender marker from
female to male and to issue a new certificate of live birth. Furthermore, Arnaud did
not file a brief with this court. Even assuming that there was valid citation and
service of the petition for gender marker change on the State Registrar, the signing
of the judgment in this case was tantamount to the signing of a default judgment
since no answer was filed by the State Registrar and since no hearing was held.
Louisiana Code of Civil Procedure Article 1704(A) provides that notice of the intent
to obtain a default judgment against the state or a political subdivision, along with a
certified copy of the petition, must be served on the Attorney General of Louisiana
and that an affidavit with a return receipt of service must be executed and filed in
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
23-744
BAYLIE FAITH ARNAUD
VERSUS
DEVIN GEORGE, IN HIS CAPACITY AS STATE REGISTRAR AND BUREAU DIRECTOR, OFFICE OF VITAL STATISTICS
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NUMBER C-20233956, DIVISION L HONORABLE MARILYN C. CASTLE, DISTRICT JUDGE
SHARON DARVILLE WILSON JUDGE
Court composed of Candyce G. Perret, Sharon Darville Wilson, and Ledricka J. Thierry, Judges.
VACATED AND REMANDED. Baylie Faith Arnaud 204 Cascade Palm Court Youngsville, Louisiana 70592 (337) 692-9114 PLAINTIFF/APPELLEE IN PROPER PERSON
Neal R. Elliott, Jr. Bureau of Legal Services Louisiana Department of Health Bienville Building Post Office Box 3836 Baton Rouge, Louisiana 70802-3836 (225) 342-1128 COUNSEL FOR DEFENDANT/APPELLANT: Nadine Smith, State Registrar and Bureau Director, Office of Vital Records
Nadine Smith State Registrar and Bureau Director Office of Vital Records 1450 Poydras Street, Suite 400 New Orleans, Louisiana 70112 WILSON, Judge.
In this appeal, Nadine Smith,1 State Registrar and Bureau Director for the
Office of Vital Statistics (the State Registrar), requests that this court reverse the
judgment requiring her to issue a new certificate of live birth to change the gender
marker for Baylie Faith Arnaud (Arnaud) from female to male. Finding that the
procedural requirements of La.Code Civ.P. art 1704 were not followed, we find that
the judgment is an absolute nullity, vacate the judgment, and remand the matter to
the district court for further proceedings.
I.
ISSUES
The State Registrar asserts that the judgment at issue herein is essentially a
default judgment rendered against a state agency without ensuring that the
procedural requirements of La.Code Civ.P. art 1704 were followed and that the
judgment is null pursuant to La.Code Civ.P. art. 2002(A)(2) since the State Registrar
was not served with the petition. In the alternative, the State Registrar argues that,
if the petition was served correctly, then the district court erred in rendering a final
judgment without holding “a hearing where the proof/evidence could be offered and
introduced into the record” for consideration pursuant to La.R.S. 40:62(C).
II.
STANDARD OF REVIEW
We review this record de novo since a reversible legal error was made in the
district court regarding the issuance of a default judgment against the State Registrar
1 During the pendency of this matter, Nadine Smith succeeded Devin George as the State Registrar and Bureau Director for the Office of Vital Records. where the procedures mandated by La.Code Civ.P. art. 1704 were not followed.
Fontenot v. Citgo Petroleum Corp., 17-924 (La.App. 3 Cir. 5/23/18), 247 So.3d 837.
III.
FACTS AND PROCEDURAL HISTORY
On or about July 24, 2023,2 Arnauld filed a petition for gender marker change
in the Fifteenth Judicial District Court. Attached to the petition are the following
documents:3 (1) affidavit of verification with the notarized signature of Arnaud,
dated July 24, 2023; (2) letter signed by Dr. Ethan Larson indicating that Arnaud
underwent a sex change operation on March 2, 2022; and (3) Dr. Mary J. Murphy’s
April 13, 2021 statement indicating that Arnaud had appropriate clinical treatment
for gender transition. The petition has a paragraph stating that “it is mandatory that
the Louisiana State Registrar be served with a copy of this Petition and be cited to
answer it.” The petition also contains a “PLEASE SERVE” instruction indicating
that the State Registrar should be served at the Office of Vital Records, 1450 Poydras
Street, Suite 400, New Orleans, Louisiana. The record, however, is devoid of any
indication that citation and service of the petition were ever made on the State
Registrar. The only other documents contained in the record are: (1) a notice of
Arnaud’s change of address;4 (2) the judgment signed on October 11, 2023; (3) a
blank certificate of service accompanying the judgment; (4) a notice of signing of
2 The copy of the petition in the record bears a stamp that says “STAMPED COPY GIVEN” but does not bear a date or time stamp from the clerk’s office. 3 The State Registrar points out that Arnaud’s original birth certificate is not attached to the petition as required by La.R.S. 40:62(B). 4 This court notes that this is Arnaud’s last known address and that this court’s file contains a mailing addressed to Arnaud at this address that was returned to sender.
2 judgment addressed to Arnaud only; (5) the signed motion and order for this appeal;
and (6) the notice of appeal.
IV.
LAW AND DISCUSSION
“Citation and service thereof are essential in all civil actions except summary
and executory proceedings . . . Without them all proceedings are absolutely null.”
La.Code Civ.P. art. 1201(A). Louisiana Revised Statutes 40:62 sets forth the
procedure that a person must follow for the “[i]ssuance of new birth certificate after
anatomical change of sex by surgery.” A suit authorized by La.R.S. 40:62 “shall be
filed contradictorily against the state registrar[.]”
Louisiana Code of Civil Procedure Article 2002(A)(2) provides that “[a] final
judgment shall be annulled if it is rendered . . . [a]gainst a defendant who has not
been served with process as required by law and who has not waived objection to
jurisdiction, or against whom a valid default judgment has not been taken.” In the
brief to this court, the State Registrar requests that this court recognize the judgment
as an absolute nullity and remand the matter to the district court for further
proceedings. “Generally, a question regarding sufficiency of service of process
cannot be raised for the first time on appeal, but rather should be raised in a suit to
annul the judgment.” Hall v. Dep’t of Pub. Safety & Corr., 22-374, p. 5 (La.App. 5
Cir. 7/23/23), 374 So.3d 139, 144. “The justification for requiring a separate suit is
so that a hearing can be held to ascertain facts regarding whether defendants were
properly served.” Tour Holdings, LLC v. Larre, 18-503, p. 4 (La.App. 1 Cir.
12/6/18), 267 So.3d 735, 737. However, this court has recognized that a judgment
rendered against a defendant who has not been served as required by law is an
3 absolute nullity, which may be attacked “at any time and before any court.” LeGlue
Buick, Inc. v. Smith, 390 So.2d 262, 264 (La.App. 3 Cir. 1980).
In this case, there is no evidence in the record that citation and service were
made on the State Registrar, and no hearing was held before the district court signed
the judgment ordering the State Registrar to change Arnaud’s gender marker from
female to male and to issue a new certificate of live birth. Furthermore, Arnaud did
not file a brief with this court. Even assuming that there was valid citation and
service of the petition for gender marker change on the State Registrar, the signing
of the judgment in this case was tantamount to the signing of a default judgment
since no answer was filed by the State Registrar and since no hearing was held.
Louisiana Code of Civil Procedure Article 1704(A) provides that notice of the intent
to obtain a default judgment against the state or a political subdivision, along with a
certified copy of the petition, must be served on the Attorney General of Louisiana
and that an affidavit with a return receipt of service must be executed and filed in
the record. Then, “[i]f no answer or other pleading is filed during the twenty-one
days immediately following the date on which the attorney general . . . received
notice of the intent to obtain a default judgment . . . , a default judgment . . . may be
rendered upon proof as required by Article 1702.” La.Code Civ.P. art. 1704(B).
We are cognizant of the fact that Arnaud is a pro se plaintiff and “should
generally be given more latitude than plaintiffs represented by counsel because they
lack formal training in the law and rules of procedure. Nevertheless, a pro se litigant
assumes responsibility for [his] lack of knowledge of the law[.]” In re Med. Review
Panel Claim of Scott, 16-145, pp. 14–15 (La.App. 4 Cir. 12/14/16), 206 So.3d 1049,
1058 (citations omitted), writ denied, 17-63 (La. 2/17/17), 216 So.3d 53.
Furthermore, “[t]he language of the statute is clear and unequivocal and admits of
4 no exceptions. It is clear that [Article 1704] was added to the Code of Civil
Procedure to afford the state additional protection against the rendition of default
judgments against it[.]” Bonnette v. Caldwell Par. Police Jury, 415 So.2d 247, 248–
49 (La.App. 2 Cir. 1982).
The record in this case clearly reflects that the requirements of Article 1704
were not followed, and we find that the judgment is absolutely null for this reason.
See Humphries v. La. Dep’t Pub. Works, Div. of Transp. & Dev., 498 So.2d 297
(La.App. 3 Cir. 1986).
Because we find that the judgment is an absolute nullity, we need not consider
the State Registrar’s argument that La.R.S. 40:62(C) requires the district court to
conduct an evidentiary hearing.
V.
CONCLUSION
For all of the aforementioned reasons, we find that the district court’s October
11, 2023 judgment ordering the State Registrar to issue a new certificate of live birth
for Baylie Faith Arnaud is an absolute nullity. The judgment is vacated and the
matter is remanded to the district court for further proceedings consistent with this
opinion.
VACATED AND REMANDED.