McFarland v. Dippel

756 So. 2d 618, 2000 WL 348902
CourtLouisiana Court of Appeal
DecidedMarch 31, 2000
Docket99 CA 0584
StatusPublished
Cited by27 cases

This text of 756 So. 2d 618 (McFarland v. Dippel) 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
McFarland v. Dippel, 756 So. 2d 618, 2000 WL 348902 (La. Ct. App. 2000).

Opinion

756 So.2d 618 (2000)

John T. McFARLAND, Jr.
v.
Danny W. DIPPEL.

No. 99 CA 0584.

Court of Appeal of Louisiana, First Circuit.

March 31, 2000.
Rehearing Denied May 18, 2000.

*619 Maria N. Rabieh, New Orleans, for Appellant Plaintiff John T. McFarland, Jr.

Gregory J. Miller, Baton Rouge, for Appellee Defendant Danny W. Dippel.

Before: FOIL, WHIPPLE and GUIDRY, JJ.

*620 FOIL, Judge.

This appeal challenges a trial court's dismissal of an action to nullify a judgment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

John T. McFarland, Jr., a resident of South Carolina, filed this lawsuit against Danny W. Dippel, a Louisiana resident, seeking to nullify a default judgment obtained by Dippel against McFarland. In 1994, McFarland sold a house and lot in a subdivision in St. Francisville, Louisiana to Dippel for $39,000.00. On October 9, 1995, Dippel's attorney wrote McFarland a letter asserting a warranty claim for defects in the home. Later that month, on October 31, 1995, Susan Nial, an attorney and McFarland's wife, wrote Dippel a letter on behalf of her husband denying the claim.

On October 18, 1995, Dippel filed a redhibition action against McFarland in the 20th Judicial District Court for the Parish of West Feliciana. He alleged there was significant water and termite damage to the home and requested recission of the sale or, in the alternative, the cost to cure the defects, nonpecuniary damages and attorney's fees. It is undisputed that a copy of the citation and of the petition was sent by Dippel's attorney to McFarland at his correct residential address in Charleston by certified mail. McFarland did not claim the certified mailing, which was returned to Dippel's attorney. The envelope that contained the citation and petition bears the notation "UN" on it, underneath which the dates 10/28, 1¼ and 11/12 are listed.

On February 28, 1996, Dippel filed a motion for a preliminary default, citing McFarland's failure to answer the lawsuit. In connection with the motion, an affidavit of service was filed, to which the envelope indicating the certified mailing was unclaimed was attached. The preliminary default was granted.

A hearing was held to confirm the default on April 9, 1996, during which Dippel's attorney introduced the long-arm citation, the signed affidavit of service and the envelope. Upon confirming that no answer or responsive pleading had been filed, the court took evidence on the redhibition claim, which included a video of the home and testimony regarding the extent of the damage and the cost to repair it. Thereafter, the trial court entered a default judgment, awarding Mr. Dippel the sum of $16,800.00, which represented the cost to repair the damages, nonpecuniary damages and legal fees.

On November 13, 1996, McFarland filed this petition seeking to nullify the judgment, contending that he was not served with the citation and petition pursuant to La. R.S. 13:3204, which sets forth the mandatory service of process requirements in a suit brought pursuant to the long-arm statute, La. R.S. 13:3201. He averred that because service was not made on him by certified mail, an attorney should have been appointed to represent him in the proceeding. McFarland alleged because of the defective service, the trial court did not have personal jurisdiction.

McFarland filed a motion for summary judgment, which was denied by the trial court. Trial was scheduled for June 29, 1998. On May 15, 1998, McFarland filed a motion for leave to file a supplemental and amending petition, attempting to add an additional claim. In the petition, he alleged that the default judgment was an absolute nullity because there was insufficient proof of service as mandated by La. R.S. 13:3205. The trial court denied the motion to supplement the petition, noting that the matter was set for trial. Thereafter, trial on the issue of the sufficiency of service of process pursuant to La. R.S. 13:3204 proceeded.

During the trial, McFarland, his wife, Susan, and Mr. Robert Butler, Dippel's attorney, testified. McFarland also presented the deposition testimony of a New Orleans postal worker. McFarland and his wife both denied having any knowledge of Dippel's suit. They denied ever receiving *621 a copy of the petition and citation, denied receiving the certified letter and denied ever having been notified of the existence of the certified letter by the post office.

The testimony revealed that McFarland has a mailbox located outside of his residence. McFarland stated that he is a selfemployed landlord, and is familiar with how certified mail is handled. He attested that he understood the letters "UN" on the certified mailing envelope to mean "unclaimed," and he referred to the dates indicated on the envelope as the dates the yellow slips apprising him he had a certified letter would have been placed into his mailbox. He testified that there were no problems with his mail delivery during the months of October and November of 1995. He further testified that during the month of October, he was out of town for the 26th and 27th, and for the month of November, he attended a conference that was held from the 8th to the 12th in Florida, revealing he was away from home about 10 days for this conference, and for one week during the Thanksgiving holidays. He stated that while he is away from home, an elderly neighbor picks up his mail, whom he characterized as being very responsible.

Lionel Lang, a New Orleans postal worker, testified regarding the post office's policies regarding mail that is refused and unclaimed. If a letter is refused by someone to whom it is addressed to, it is returned immediately by the post office. However, if it is unclaimed, the post office holds it for 15 days, giving the person an opportunity to pick it up. A person is generally given two notices of the existence of a certified letter, and the notice is left in the person's mailbox. He believed that the notations on the envelope in question indicated that two notices of the certified mail were issued to McFarland by the Charleston post office, rather than three, as the markings seem to indicate.

At the conclusion of the trial, the trial court dismissed the nullity action, finding that service was sufficient under La. R.S. 13:3204. In written reasons for judgment, the court stressed that there was no evidence presented to indicate the post office failed to attempt delivery of the certified letter or that it had falsified information about attempting delivery.

This appeal, taken by McFarland, followed.

DISCUSSION

La.Code Civ. P. art.2002 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 entered a general appearance, or against whom a valid judgment by default has not been taken. Appellant contends the default judgment is an absolute nullity because he was not properly served with the petition and citation pursuant to La. R.S. 13:3204. He also argues the judgment is invalid because there was no return receipt attached to the affidavit of service as required by La. R.S. 13:3205.

La. R.S. 13:3204 sets forth the mandatory manner in which service of process must be made in a suit brought under the long-arm statute. That provision provides, in pertinent part, as follows:

§ 3204. Service of process
A. A certified copy of the citation and of the petition in a suit under R.S.

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Cite This Page — Counsel Stack

Bluebook (online)
756 So. 2d 618, 2000 WL 348902, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcfarland-v-dippel-lactapp-2000.