Richard v. Century Surety Co.

887 So. 2d 643, 4 La.App. 3 Cir. 0736, 2004 La. App. LEXIS 2713
CourtLouisiana Court of Appeal
DecidedNovember 10, 2004
DocketNo. 04-0736
StatusPublished

This text of 887 So. 2d 643 (Richard v. Century Surety Co.) 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
Richard v. Century Surety Co., 887 So. 2d 643, 4 La.App. 3 Cir. 0736, 2004 La. App. LEXIS 2713 (La. Ct. App. 2004).

Opinion

JjPETERS, J.

Century Surety Company appeals an $88,126.00 default judgment rendered against it and in favor of Annette Richard. For the following reasons, we reverse the judgment and remand this matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

On December 30, 2002, Annette Richard, d/b/a Cloude Nine, filed suit against Century Surety Company (Century), seeking to recover for property damages she allegedly sustained when Hurricane Lili struck South Louisiana on October 3, 2002. In her petition, Ms. Richard asserted that Century had issued her a policy of insurance covering the building housing her business on Highway 90 West in New Iberia, Louisiana, and that the storm had damaged the building.

[644]*644Century did not answer the petition, and, on August 8, 2003, Ms. Richard requested and obtained a preliminary default from the trial court. At a hearing held on February 26, 2004, Ms. Richard presented evidence to confirm the preliminary default, and, upon completion of the evidence, the trial court orally rendered judgment in favor of Ms. Richard and against Century in the total amount of $88,126.00. This judgment was reduced to writing and signed by the trial court on March 11, 2004. After being served with the written judgment, Century perfected this appeal. In its appeal, Century’s sole assignment of error asserts a number of issues as follows:

The trial court erred in rendering a default judgment against Century Surety Company, where the record does not contain evidence of service of the petition on defendant; where no evidence of ownership of the building or the plaintiffs capacity to bring suit for damages to the building was offered, and where no evidence was offered into the record that the building was insured for property damage.

OPINION

Sufficiency of Service Issue

|2Louisiana Code of Civil Procedure Article 1201(A) provides that “[cjitation and service thereof are essential in all civil actions except summary and executory proceedings, divorce actions under Civil Code Article 102, and proceedings under the Children’s Code. Without them all proceedings are absolutely null.” (Emphasis added.) Additionally, “[ajbsolute nullities may be attacked collaterally, at any time, by rule, or any other method.” Rivet v. Regions Bank, 02-1813, p. 6 (La.2/25/03), 838 So.2d 1290, 1293.

The record contains evidence that, on January 29, 2003, the East Baton Rouge Parish Sheriffs Office served the citation and a copy of the petition on the Louisiana Secretary of State as Century’s agent for service of process. Relying on La.R.S. 22:985, Ms. Richard argues that this constitutes sufficient service. That statute provides in part:

Every foreign or alien insurer shall appoint the secretary of state to be its true and lawful attorney in this state upon whom, or some other person in his office during his absence he may designate, all lawful process in any action or proceeding against such insurer may be served, which shall constitute service on such insurer.

(Emphasis added.)

As explained in Corte v. Cash Technologies, Inc., 02-0846, p. 7 (La.App. 1 Cir. 4/2/03), 843 So.2d 1162, 1166:

Generally, the question of sufficiency of service on a non-resident defendant may not be raised for the first time on appeal but rather should be raised in a suit to annul the judgment. The justification for requiring a separate suit is so that a hearing can be held to ascertain facts regarding whether defendants were properly served.

(Citations omitted.)

The rationale of Corte is applicable to this case, as there is insufficient evidence to resolve this issue. The problem arises because Ms. Richard’s petition | describes Century as “a domestic insurance company,” and not a foreign or alien insurer. (Emphasis added.) “Service of citation or other process on a domestic ... corporation is made by personal service on any one of its agents for service of process.” La.Code Civ.P. art. 1261(A) (emphasis added).

If the corporation has failed to designate an agent for service of process, if there is no registered agent by reason of [645]*645death, resignation, or removal, or if the person attempting to make service certifies that he is unable, after due diligence, to serve the designated agent, service of the citation or other process may be made by any of the following methods:
(1) By personal service on any officer, or director, or on any person named as such in the last report filed with the secretary of state.
(2) By personal service on any employee of suitable age and discretion at any place where the business of the corporation is regularly conducted.
(3) By service of process under the provisions of R.S. 13:3204, if the corporation is subject to the provisions of R.S. 13:3201.

La.Code CivJP. art. 1261(B).

Only after diligent effort to serve a domestic corporation pursuant to La.Code Civ.P. art. 1261 has failed can a plaintiff avail himself of service on the secretary of state. La.Code Civ.P. art. 1262.

In this matter, the record contains no evidence of compliance with La.Code Civ.P. art. 1261 prior to effecting service on the secretary of state. Additionally, one of the pages of the purported insurance policy introduced in support of the default judgment contains the following printed notation:

Service of Suit (if form CCP 20 10 is attached) may be made upon:
Southern General Agency, Inc.
3838 Independence Drive, Alexandria, LA 71303

The record contains no evidence of any effort to serve Century through this entity.

Given the status of the record before us, we can conclude only that it does not contain sufficient information to resolve the service issue and that the trial court did |4not have the opportunity to address this issue, as it was not challenged until this appeal. Accordingly, we are precluded from addressing this issue, as we are unable to receive evidence on the issue.

Sufficiency of Evidence Issue

“A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.” La.Code Civ.P. art. 1702.

A prima facie case sufficient to confirm a default judgment is established only when the party proves with competent evidence the essential allegations of his petition as fully as if each of the allegations were specifically denied.

Beevers, PLC v. Burmaster, 00-1951, p. 6 (La.App.5 Cir. 4/11/01), 787 So.2d 381, 384.

We find that the evidence presented in support of the default judgment was not sufficient to establish a prima facie case for recovery. Neither the pleadings, the exhibits, nor the testimony established the relationship of the damaged building to Ms. Richard. In her pleadings, Ms. Richard merely asserted that she operated a business known as Cloude Nine on Highway 90 West in New Iberia, Louisiana.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Rivet v. Regions Bank
838 So. 2d 1290 (Supreme Court of Louisiana, 2003)
Corte v. Cash Technologies, Inc.
843 So. 2d 1162 (Louisiana Court of Appeal, 2003)
Beevers v. Burmaster
787 So. 2d 381 (Louisiana Court of Appeal, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
887 So. 2d 643, 4 La.App. 3 Cir. 0736, 2004 La. App. LEXIS 2713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richard-v-century-surety-co-lactapp-2004.