Bobby Wilkerson Versus Terry Hunter and Abc Insurance Company

• Court: Louisiana Court of Appeal
• Decided: July 17, 2024
• Docket: 24-CA-17
• Status: Unknown

Opinion

BOBBY WILKERSON NO. 24-CA-17

VERSUS FIFTH CIRCUIT

TERRY HUNTER AND ABC INSURANCE COURT OF APPEAL COMPANY STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 796-266, DIVISION "B" HONORABLE R. CHRISTOPHER COX, III, JUDGE PRESIDING

July 17, 2024

SCOTT U. SCHLEGEL JUDGE

Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Scott U. Schlegel

VACATED AND REMANDED SUS FHW JGG COUNSEL FOR PLAINTIFF/APPELLEE, BOBBY WILKERSON John W. Redmann Edward L. Moreno Travis J. Causey, Jr. Benjamin B. Perkins Lisa Z. Gilmore Jordan R. Westerfield Christopher J. Fransen Matthew J. Pertuit

COUNSEL FOR DEFENDANT/APPELLANT, PAMELA HUNTER AND THE ESTATE OF TERRY HUNTER Alistair A. Adkinson SCHLEGEL, J.

This matter involves a premises liability lawsuit initially brought by

plaintiff/appellee, Bobby Wilkerson, against decedent, Terry Hunter, on June 14,

2019. Upon learning of the decedent’s death during the pendency of these

proceedings, Mr. Wilkerson filed a supplemental and amending petition to

substitute defendants, The Estate of Terry Hunter (the “Estate’) and the decedent’s

spouse, Pamela Hunter. Mr. Wilkerson utilized the Louisiana Long-Arm Statute,

La. R.S. 13:3201, et. seq., to serve the original and substituted defendants in

California. After receiving no response to the petition, Mr. Wilkerson obtained a

default judgment against the Estate and Ms. Hunter on June 5, 2023.

On appeal, defendants argue that the default judgment is absolutely null

because: 1) Mr. Wilkerson failed to comply with the requirements to serve a party

and to obtain a default judgment under the long-arm statute; and 2) the Estate is not

a proper party defendant. Defendants also argue that the default judgment must be

reversed because Mr. Wilkerson did not present any evidence to establish liability

against Ms. Hunter as an owner of the subject property. In his appellee brief, Mr.

Wilkerson agrees that the default judgment should be reversed after reviewing “the

procedural posture of this case and the case law pertaining to a deceased

defendant.” For reasons discussed more fully below, we agree that the default

judgment is absolutely null due to Mr. Wilkerson’s failure to comply with the

prerequisites required to obtain a default judgment under La. R.S. 13:3205 of the

long-arm statute. Thus, we vacate the default judgment and remand for further

proceedings.

FACTS AND PROCEDURAL BACKGROUND

Mr. Wilkerson alleges that a branch from a “dangerous/diseased” tree fell on

his head and left shoulder when he was on his property located at 903 Estalote

Avenue in Harvey, Louisiana on October 16, 2018, causing serious injuries. He

24-CA-17 1 alleges that the tree was located on the adjacent property owned by the decedent at

909 Estalote Avenue. Mr. Wilkerson filed a petition for damages on June 14,

2019, and sent service of process to the decedent by certified mail at an address in

Spring Valley, California via the Louisiana Long-Arm Statute, La. R.S. 13:3201,

et. seq. When the decedent failed to file a response, Mr. Wilkerson moved for a

preliminary default, which the trial court granted on October 15, 2019. Before

Mr. Wilkerson confirmed the default judgment, the decedent passed away on May

27, 2022.

Mr. Wilkerson then filed an Ex Parte Motion and Order for Leave to

Substitute Parties-Defendants and to File First Supplemental and Amending

Petition for Damages. In his motion, Mr. Wilkerson asked to substitute “The

Estate of Terry Hunter and Pamela Hunter” as defendants for the decedent because

he had discovered that both the decedent and his surviving spouse, Pamela Hunter,

owned the subject property. On October 11, 2022, the trial court granted Mr.

Wilkerson leave to substitute defendants due to the decedent’s death and to file the

First Supplemental and Amending Petition for Damages.1 Mr. Wilkerson then sent

service to defendants by certified mail at the same address in Spring Valley,

California via the long-arm statute.

Defendants did not respond to the petition, so on April 3, 2023, Mr.

Wilkerson moved for a default judgment. At the default hearing on May 25, 2023,

Mr. Wilkerson provided brief testimony regarding his injuries and conversations

with the decedent about the need to trim the tree limbs or cut the tree down due to

its poor condition. Mr. Wilkerson also introduced his medical records and

itemized court costs into evidence. Following the hearing, the trial court granted

1 We observe that despite his request to substitute Ms. Hunter as a defendant for the decedent in his motion for leave, the supplemental and amending petition only adds Ms. Hunter in her individual capacity as an owner of the subject property, and not in a representative capacity as a legal successor of the decedent. Further, there is no evidence in the record to determine whether Ms. Hunter is the appropriate legal successor to join in this matter as set forth in La. C.C.P. arts. 801-804, which govern substitutions following the death of a party.

24-CA-17 2 the motion for default judgment. On June 5, 2023, the trial court signed a

judgment entering a default judgment in favor of Mr. Wilkerson and against

defendants, The Estate of Terry Hunter and Pamela Hunter, awarding Mr.

Wilkerson $13,882.51 for past medical expenses, $12,000.00 for general damages,

and $1,164.85 for costs.

On August 6, 2023, Ms. Hunter filed a notice of appeal, and the following

day on August 7, 2023, “purported Defendant, The Estate of Terry Hunter” filed its

notice of appeal. The trial court granted the orders of appeal on August 17, 2023.

LAW AND ANALYSIS

On appeal, defendants argue that this Court should reverse the default

judgment on several different grounds, including: 1) the default judgment is an

absolute nullity because the trial court did not have personal jurisdiction over

them; 2) the trial court erred in granting the default judgment because Mr.

Wilkerson failed to provide sufficient proof that defendants owned or had custody,

care or control of the property at issue; 3) the trial court erred in granting the

default judgment because Mr. Wilkerson failed to provide sufficient proof that Ms.

Hunter had knowledge of any defects in the property; and 4) the decedent’s estate

is not a proper party defendant or succession representative. Defendants further

ask this Court to dismiss Mr. Wilkerson’s case with prejudice.

In response, Mr. Wilkerson filed an appellate brief acknowledging and

agreeing that the default judgment should be reversed and the matter remanded

after reviewing “the procedural posture of this case and the case law pertaining to a

deceased defendant.” Mr. Wilkerson indicates that he is willing to pursue a joint

dismissal of the appeal, but that defendants are inclined to proceed with the appeal

process. Mr. Wilkerson does not address the merits of defendants’ appellate

arguments, other than to argue that no authority warrants the dismissal of his case.

24-CA-17 3 Mr. Wilkerson further recognizes that before a court can enter a judgment for or

against a deceased party, substitution of a legal successor is required.

In their first assignment of error, defendants contend that the default

judgment is an absolute nullity because personal jurisdiction does not exist over

them under the long-arm statute. Defendants specifically argue that the record

does not contain any evidence to establish that Mr. Wilkerson sent service of

process to the decedent’s or substituted defendants’ correct residential address.

Defendants further argue that the return for service of process sent to the decedent

indicates that an individual with the initials “A.B.”, rather than the decedent,

signed the return.

La. C.C.P. art. 2002(A)(2) provides that a final judgment shall be annulled if

it is rendered against “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.”

Section 3201 of the Louisiana Long-Arm Statute, entitled “Personal

jurisdiction over nonresidents” provides in pertinent part:

A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:

* * *

(3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.

(5) Having an interest in, using or possessing a real right on immovable property in this state.

Service of process is critical to the exercise of personal jurisdiction over a

defendant. Duhon v. Brouillette, 16-82 (La. App. 3 Cir. 6/1/16), 195 So.3d 658,

661. Personal jurisdiction over non-residents is fully dependent upon strict

compliance with the long-arm statute’s procedural requirements. Clay v. Clay, 389

24-CA-17 4 So.2d 31, 37 (La. 1979) (holding that a default judgment may not be taken against

a person who has not received citation and service); Folse v. St. Rose Farms, Inc.,

14-436 (La. App. 5 Cir. 11/25/14), 165 So.3d 104, 108.

Service of process under La. R.S. 13:3204 requires as follows:

A. In a suit under R.S. 13:3201, a certified copy of the citation . . . and of the petition . . . shall be sent by counsel for the plaintiff, or by the plaintiff if not represented by counsel, to the defendant by registered or certified mail, or actually delivered to the defendant by commercial courier, when the person to be served is located outside of this state or by an individual designated by the court in which the suit is filed, or by one authorized by the law of the place where the service is made to serve the process of any of its courts of general, limited, or small claims jurisdiction.

The contents of the affidavit of service of process that a plaintiff must submit

before a court can enter a default judgment against a nonresident defendant is

explained in La. R.S. 13:3205:

No default judgment may be rendered against the defendant and no hearing may be held on a contradictory motion, rule to show cause, or other summary proceeding, except for actions pursuant to R.S. 46:2131 et seq., until thirty days after the filing in the record of the affidavit of the individual who has done any of the following:

(1) Mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant, with sufficient postage affixed, and the date it was deposited in the United States mail, to which shall be attached the return receipt of the defendant.

(2) Utilized the services of a commercial courier to make delivery of the process to the defendant, showing the name of the commercial courier, the date, and address at which the process was delivered to the defendant, to which shall be attached the commercial courier's confirmation of delivery.

(3) Actually delivered the process to the defendant, showing the date, place, and manner of delivery. (Emphasis added.)

The requirements of Section 3205 must be strictly construed. Edwards v.

Mathieu, 14-673 (La. App. 4 Cir. 3/11/15), 163 So.3d 110, 114, writ denied, 15-

736 (La. 6/1/15), 171 So.3d 934. A preliminary default judgment obtained without

strict compliance with the procedural requirements of La. R.S. 13:3205 is an

24-CA-17 5 absolute nullity. Id.; Corte v. Cash Technologies., Inc., 02-846 (La. App. 1 Cir.

4/2/03), 843 So.2d 1162, 1166.

In Edwards, supra, the plaintiff sued the defendant to establish paternity and

child support, serving defendant via the long-arm statute. The plaintiff obtained a

default judgment against the defendant, but on appeal, the defendant argued that

the default judgment was absolutely null because he was not properly served. The

affidavit of service filed by the plaintiff pursuant to La. R.S. 13:3205 indicated that

“L. Graziano” signed the service return. The appellate court determined the

default judgment was absolutely null because neither the affidavit nor the service

return identified “L. Graziano” as the defendant’s agent or someone otherwise

authorized to receive mail for the defendant. Id. at 115; see also Hebert v. Elegant

Reflections, LLC, 23-278 (La. App. 3 Cir. 12/20/23), 377 So.3d 453, 458-59.

As explained above, plaintiff initially mailed the citation and original

petition to the decedent by certified mail. The affidavit of service filed in the

record on July 19, 2019, attached a return indicating that an individual identified as

“A.B.” signed for the mailing. Just as in Edwards, neither the affidavit nor the

signed return includes any information to identify “A.B.” or to explain this

individual’s authority to accept mail for the decedent. Section 3205(1) states that

in order to obtain a default judgment, the affidavit must attach “the return receipt

of the defendant.” Because the affidavit fails to establish compliance with La. R.S.

13:3205, the default judgment rendered against defendants is an absolute nullity.2

We also observe a deficiency in the affidavit of service submitted on January

4, 2023, after plaintiff’s counsel sent service of process to the substituted/added

defendants by means of the long-arm statute. The subsequent affidavit indicates

that “a certified copy of the Citation and First Supplemental Amending Petition for

2 We do not reach the issue of whether Mr. Wilkerson forwarded process to the decedent’s or defendants’ correct residential address because we do not have sufficient information in the record to resolve this issue.

24-CA-17 6 Damages” was sent by certified mail. The affidavit does not indicate whether the

certified mailing included a copy of the original petition.

When a supplemental or amended petition is filed naming any additional

defendant, La. C.C.P. art. 1201(C) requires the plaintiff to serve the additional

defendant “with the original petition and the supplemental or amended petition.”

Service of the original petition is a critical component of service of process, and

without service of the original petition, the court has no personal jurisdiction over

the newly added defendant. Duhon, 195 So.3d at 661-62 (declaring default

judgment a nullity because added defendant was not served with original petition);

Dickinson v. National Soc. of Health, 589 So.2d 632 (La. App. 5th Cir. 1991);

Camper and Camper, Ltd. v. Paul, 13-2116, p. 1 (La. App. 1 Cir. 7/9/14), 2014

WL 3362168. Accordingly, we further find that the judgment against the Estate

and Pamela Hunter is an absolute nullity because the affidavit of service does not

state whether plaintiff’s counsel included the original petition with the certified

mailing.3

CONCLUSION

Based on the foregoing, we find that the default judgment entered against

defendants, The Estate of Terry Hunter and Pamela Hunter, is an absolute nullity

and vacate the judgment. The matter is remanded for further proceedings.

VACATED AND REMANDED

3 In assignment of error four, defendants also argue that the trial court erred by entering a default judgment against “The Estate of Terry Hunter” because it is not a party capable of being sued and cast in judgment for money damages. Before a trial court can enter a judgment for or against a deceased party, substitution of a legal successor is essential. See First Bank and Trust v. Proctor’s Cove II, LLC, 19-299 (La. App. 5 Cir. 12/30/19), 287 So.3d 888, 898; Frank L. Maraist, 1 La. Civ. Law Treatise, Civil Procedure, § 4:13 (2d Ed.). La. C.C.P. art. 801(2) defines a legal successor for purposes of substitution following the death of a defendant as “the succession representative of the deceased appointed by a court of this state, if the succession is under administration therein; or the heirs and legatees of the deceased, if the deceased’s succession is not under administration therein.” The Estate is not a proper legal successor and thus, the default judgment entered against it is also a nullity on these grounds. See First Bank, supra. Based on our findings that the default judgment is an absolute nullity, we pretermit discussion of defendants’ additional assignments of error.

24-CA-17 7 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

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24-CA-17 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) R. CHRISTOPHER COX, III (DISTRICT JUDGE) BENJAMIN B. PERKINS (APPELLEE) EDWARD L. MORENO (APPELLEE) ALISTAIR A. ADKINSON (APPELLANT)

MAILED CHRISTOPHER J. FRANSEN (APPELLEE) JOHN W. REDMANN (APPELLEE) ATTORNEYS AT LAW JORDAN R. WESTERFIELD (APPELLEE) 1101 WESTBANK EXPRESSWAY LISA Z. GILMORE (APPELLEE) GRETNA, LA 70003 MATTHEW J. PERTUIT (APPELLEE) TRAVIS J. CAUSEY, JR. (APPELLEE) ATTORNEYS AT LAW 1101 WESTBANK EXPRESSWAY GRETNA, LA 70053