Judgment rendered June 30, 2021. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,003-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
KCREW INVESTMENTS, LLC Plaintiff-Appellee
versus
JOHNATHAN DANGELO CLARK Defendant-Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 624,785
Honorable Craig O. Marcotte, Judge
CHARLES NEUPERT & ASSOCIATES, LLC Counsel for Appellant By: Thomas D. Mayfield
WILLIAM E. BYRAM, LTD., APLC Counsel for Appellee By: William E. Byram
Before STONE, COX, and THOMPSON, JJ. THOMPSON, J.
This appeal arises as a challenge to the presumption that domiciliary
service was effective service and supported the trial court’s rendering of a
default judgment. The appellant asserts that the default judgment rendered
against him is absolutely null due to improper domiciliary service at an
address that he no longer used as his dwelling or usual place of abode. For
the following reasons, we reverse the judgment of the district court.
FACTS & PROCEDURAL HISTORY
On July 6, 2007, Defendant-Appellant, Jonathan Deangelo Clark
(“Clark”), a single man at the time, purchased the land and improvements
with a municipal address of 9373 Jessica Drive, Shreveport, Louisiana
(“subject property”). Clark subsequently married, but the record is devoid of
any evidence indicating he ever conveyed an ownership interest in the
subject property to his wife. He later decided to sell the subject property and
listed it for sale with a realtor. On January 18, 2020, he received an offer to
purchase the subject property for $60,000 from Plaintiff-Appellee, KCREW
Investments, Inc. (“KCREW”). Clark extended a counteroffer of $65,000
that was accepted by KCREW on January 21, 2020.
The offer and counteroffer were submitted via a Louisiana Residential
Agreement to Buy or Sell, which included penalties for breach, including the
right to seek specific performance. The original closing date was to take
place on February 18, 2020; however, that date was extended by Clark four
times, at least partially due to his separation from his wife and his apparent
misunderstanding about her required involvement in the sale of his separate property. At some point before the petition was filed, Clark asserts that he
separated from his wife and relocated to Irving, Texas.
The last scheduled closing date for the subject property was set to take
place on April 6, 2020, at the office of Kenneth C. Thomas. According to
KCREW, Clark did not appear at the scheduled closing because allegedly
his estranged wife was not willing to convey any property that could
potentially come into play during the impending divorce proceedings and
partition of the community assets. On April 22, 2020, KCREW, through its
attorney, sent a demand letter via certified mail to Clark addressed to 9113
Blom Boulevard, Shreveport, Louisiana to perform in accordance with the
agreement. The record contains no insight as to how or why KCREW
selected that address to send notice to Clark. That certified mail, return
receipt requested, does not bear Clark’s signature, and there is no evidence
contained in the record that Clark was residing at that address when the letter
was mailed or that he ever received it.
After KCREW received no communication from Clark, it instituted
this specific performance suit on July 13, 2020. Service of the citation and
pleadings was asserted to have been accomplished by domiciliary service at
the Blom Boulevard address, as reflected in the transcript of the hearing to
confirm the default judgment. There is no sheriff’s return included in the
record. On August 3, 2020, counsel for KCREW faxed and mailed a letter
to the Caddo Parish Clerk of Court, requesting a preliminary default be
entered on the next available date. On August 5, 2020, a preliminary default
was entered. On September 10, 2020, a trial for confirmation of the default
judgment was held.
2 At the hearing for confirmation of default, KCREW called three
witnesses: Clark’s realtor, KCREW’s realtor, and Ms. Gena Strozier (an
employee of the closing attorney). According to Clark, at the hearing, the
court raised concerns about the return receipt. The district court recognized
service of the petition by the sheriff on July 17, 2020.1 The service was not
contested at the trial because the district court only heard testimony and
received evidence from KCREW and neither Clark nor counsel on his behalf
was present. The district court ultimately found in favor of KCREW and
ordered specific performance be granted and awarded attorney fees in the
amount of $2,000. This appeal followed.
DISCUSSION
Assignment of Error: The trial court erred in finding appellant was served with process as required by law.
Clark, in his sole assignment of error, alleges that the district court
erred in finding that he was properly served as required by law, and, as such,
the default judgment rendered by the district court is absolutely null. We
agree.
For litigants and the general population to have confidence in the
judicial process, it is of paramount importance that parties have knowledge
of any proceeding which includes them as a party and that they have the
opportunity to participate. This fundamental principle is embodied in the
requirements for service of process as detailed in the Louisiana Code of
Civil Procedure. In those instances where a judgment has been rendered
against a defendant who has not been served with process as required by
1 The record indicates that the signature on the return label of the Demand Letter was received by “DG C056” and signed by “Covid-19.”
3 law, that judgment shall be annulled. La. Code Civ. Proc. art. 2002. Here,
rather than attack the judgment as a nullity at the district court, Clark raises
the issue of nullity on appeal.
Louisiana Code of Civil Procedure article 1201 provides that, without
the essential elements of citation and service of process, all proceedings are
absolutely null. See also La. Code Civ. Proc. art. 2002. Service on
individuals and juridical entities are detailed in the applicable provisions of
the Louisiana Code of Civil Procedure.
In instances similar to that facing Clark, for individuals, service of
citation or other process may be either personal or domiciliary, and, except
as otherwise provided by law, each has the same effect. La. Code Civ. Proc.
art. 1231. Clark could be served personally. In the absence of personal
service, domiciliary service is made only when a proper officer leaves the
citation at the dwelling house or usual place of abode of the person to be
served with a person of suitable age and discretion residing in the
domiciliary establishment. La. Code Civ. Proc. art. 1234. Each of these
elements is necessary for domiciliary service to be effective. In instances
where domiciliary service has been made at locations other than the dwelling
house or usual place of abode, judgments and other proceedings have
consistently been held to be absolute nullities.
At issue in the present matter is whether the record contains
satisfactory proof to support the assertion by KCREW that there was
effective domiciliary service of process on Clark.
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Judgment rendered June 30, 2021. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,003-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
KCREW INVESTMENTS, LLC Plaintiff-Appellee
versus
JOHNATHAN DANGELO CLARK Defendant-Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 624,785
Honorable Craig O. Marcotte, Judge
CHARLES NEUPERT & ASSOCIATES, LLC Counsel for Appellant By: Thomas D. Mayfield
WILLIAM E. BYRAM, LTD., APLC Counsel for Appellee By: William E. Byram
Before STONE, COX, and THOMPSON, JJ. THOMPSON, J.
This appeal arises as a challenge to the presumption that domiciliary
service was effective service and supported the trial court’s rendering of a
default judgment. The appellant asserts that the default judgment rendered
against him is absolutely null due to improper domiciliary service at an
address that he no longer used as his dwelling or usual place of abode. For
the following reasons, we reverse the judgment of the district court.
FACTS & PROCEDURAL HISTORY
On July 6, 2007, Defendant-Appellant, Jonathan Deangelo Clark
(“Clark”), a single man at the time, purchased the land and improvements
with a municipal address of 9373 Jessica Drive, Shreveport, Louisiana
(“subject property”). Clark subsequently married, but the record is devoid of
any evidence indicating he ever conveyed an ownership interest in the
subject property to his wife. He later decided to sell the subject property and
listed it for sale with a realtor. On January 18, 2020, he received an offer to
purchase the subject property for $60,000 from Plaintiff-Appellee, KCREW
Investments, Inc. (“KCREW”). Clark extended a counteroffer of $65,000
that was accepted by KCREW on January 21, 2020.
The offer and counteroffer were submitted via a Louisiana Residential
Agreement to Buy or Sell, which included penalties for breach, including the
right to seek specific performance. The original closing date was to take
place on February 18, 2020; however, that date was extended by Clark four
times, at least partially due to his separation from his wife and his apparent
misunderstanding about her required involvement in the sale of his separate property. At some point before the petition was filed, Clark asserts that he
separated from his wife and relocated to Irving, Texas.
The last scheduled closing date for the subject property was set to take
place on April 6, 2020, at the office of Kenneth C. Thomas. According to
KCREW, Clark did not appear at the scheduled closing because allegedly
his estranged wife was not willing to convey any property that could
potentially come into play during the impending divorce proceedings and
partition of the community assets. On April 22, 2020, KCREW, through its
attorney, sent a demand letter via certified mail to Clark addressed to 9113
Blom Boulevard, Shreveport, Louisiana to perform in accordance with the
agreement. The record contains no insight as to how or why KCREW
selected that address to send notice to Clark. That certified mail, return
receipt requested, does not bear Clark’s signature, and there is no evidence
contained in the record that Clark was residing at that address when the letter
was mailed or that he ever received it.
After KCREW received no communication from Clark, it instituted
this specific performance suit on July 13, 2020. Service of the citation and
pleadings was asserted to have been accomplished by domiciliary service at
the Blom Boulevard address, as reflected in the transcript of the hearing to
confirm the default judgment. There is no sheriff’s return included in the
record. On August 3, 2020, counsel for KCREW faxed and mailed a letter
to the Caddo Parish Clerk of Court, requesting a preliminary default be
entered on the next available date. On August 5, 2020, a preliminary default
was entered. On September 10, 2020, a trial for confirmation of the default
judgment was held.
2 At the hearing for confirmation of default, KCREW called three
witnesses: Clark’s realtor, KCREW’s realtor, and Ms. Gena Strozier (an
employee of the closing attorney). According to Clark, at the hearing, the
court raised concerns about the return receipt. The district court recognized
service of the petition by the sheriff on July 17, 2020.1 The service was not
contested at the trial because the district court only heard testimony and
received evidence from KCREW and neither Clark nor counsel on his behalf
was present. The district court ultimately found in favor of KCREW and
ordered specific performance be granted and awarded attorney fees in the
amount of $2,000. This appeal followed.
DISCUSSION
Assignment of Error: The trial court erred in finding appellant was served with process as required by law.
Clark, in his sole assignment of error, alleges that the district court
erred in finding that he was properly served as required by law, and, as such,
the default judgment rendered by the district court is absolutely null. We
agree.
For litigants and the general population to have confidence in the
judicial process, it is of paramount importance that parties have knowledge
of any proceeding which includes them as a party and that they have the
opportunity to participate. This fundamental principle is embodied in the
requirements for service of process as detailed in the Louisiana Code of
Civil Procedure. In those instances where a judgment has been rendered
against a defendant who has not been served with process as required by
1 The record indicates that the signature on the return label of the Demand Letter was received by “DG C056” and signed by “Covid-19.”
3 law, that judgment shall be annulled. La. Code Civ. Proc. art. 2002. Here,
rather than attack the judgment as a nullity at the district court, Clark raises
the issue of nullity on appeal.
Louisiana Code of Civil Procedure article 1201 provides that, without
the essential elements of citation and service of process, all proceedings are
absolutely null. See also La. Code Civ. Proc. art. 2002. Service on
individuals and juridical entities are detailed in the applicable provisions of
the Louisiana Code of Civil Procedure.
In instances similar to that facing Clark, for individuals, service of
citation or other process may be either personal or domiciliary, and, except
as otherwise provided by law, each has the same effect. La. Code Civ. Proc.
art. 1231. Clark could be served personally. In the absence of personal
service, domiciliary service is made only when a proper officer leaves the
citation at the dwelling house or usual place of abode of the person to be
served with a person of suitable age and discretion residing in the
domiciliary establishment. La. Code Civ. Proc. art. 1234. Each of these
elements is necessary for domiciliary service to be effective. In instances
where domiciliary service has been made at locations other than the dwelling
house or usual place of abode, judgments and other proceedings have
consistently been held to be absolute nullities.
At issue in the present matter is whether the record contains
satisfactory proof to support the assertion by KCREW that there was
effective domiciliary service of process on Clark. KCREW argues that since
there is no sheriff’s return contained in the record, then there is no proper
basis to sustain Clark’s contention that service was improper. We disagree.
4 The record contains no evidence from Clark that he ever designated
the Blom Boulevard address as his mailing address, dwelling house, or usual
place of abode. There is no address for Clark included in the Louisiana
Residential Agreement to Buy or Sell, or any exhibit, and the listing
agreement between Clark and his realtor was not introduced as evidence. In
such an instance, there is no reliability or certainty contained in the record
that the vital procedural notice was ever provided to Clark.
The only evidence or testimony contained in the record suggesting
Clark ever resided at the Blom Boulevard address was from his realtor,
Eunice Strickland (“Strickland”). She testified that the address she had on
file for Clark was the Blom Boulevard address. Neither that “file” or any
other document supporting the dates of any use by Clark of the Blom
Boulevard address is contained in the record before us. Strickland’s
testimony on the subject was in response to the question from counsel for
KCREW inquiring if she knew Clark’s address “during this period of time.”
The time period from obtaining a listing agreement (unknown date),
receiving the offer from KCREW (January 18, 2020), the date of the
anticipated final closing (April 6, 2020), the date of domiciliary service (July
17, 2020), and the date of Strickland’s testimony (September 10, 2020) at
the hearing to confirm the default judgment spans several months. Exactly
when “this period of time” to which Strickland was testifying as to the Blom
Boulevard being the address she believed was Clark’s address is unknown
and certainly not specifically supportive of such use by Clark on the date of
domiciliary service in July, 2020.
5 The parties do not dispute the fact that Clark’s estranged wife was
served at the Blom Boulevard address on July 17, 2020. However, the
sheriff’s return was not filed into evidence. Clark’s estranged wife was not
called to testify to support the assertion the domiciliary service was effective
and whether Clark actually resided with her at the time.
It is well settled that service upon one not living at the domicile of the
defendant is not valid and no judgment can be rendered thereon. Wilson v.
King, 227 La. 546, 79 So. 2d 877 (1955). Valid domiciliary service depends
on the actual and true facts at the time of service and not on information
furnished by the defendant at some time prior to service. Spinks v. Caddo-
Bossier Services, Inc., 270 So. 2d 604, 607 (La. App. 2 Cir. 1972). There
are many reasons a person might list an address for mailing or other
purposes other than their actual dwelling house or place of abode. Sadly,
this court must recognize the prevalence of divorces and broken homes, and
there can be no presumption the Clark household was somehow immune. In
any event, valid domiciliary service depends on the actual and true facts at
the time of service and not on information furnished by the defendant at
some time prior to service. Id.
We therefore find that the district court erred in granting the default
judgment against Clark and hereby reverse that decision.
CONCLUSION
Considering the foregoing, the judgment of the district court is
reversed. Costs of this appeal are assessed to appellee, KCREW
Investments, Inc.
JUDGMENT REVERSED.