Scalfano v. Morris

606 So. 2d 61, 1992 La. App. LEXIS 2857, 1992 WL 275416
CourtLouisiana Court of Appeal
DecidedOctober 6, 1992
DocketNo. 91-390
StatusPublished

This text of 606 So. 2d 61 (Scalfano v. Morris) 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
Scalfano v. Morris, 606 So. 2d 61, 1992 La. App. LEXIS 2857, 1992 WL 275416 (La. Ct. App. 1992).

Opinions

COREIL, Judge, Pro Tem.

Leah Rose Scalfano appeals from the dismissal of her suit for damages against Moneque A. Morris. The trial judge dismissed her lawsuit based on insufficiency of citation and service. In his ruling, the trial judge was of the opinion that service of process under La.R.S. 13:3201 requires proof of acceptance in the form of a signed return receipt.

FACTS

Leah Scalfano filed a petition for damages naming as a- defendant, Moneque A. Morris. The petition alleges that Ms. Morris, a resident of Connecticut, lost control of her vehicle and struck Ms. Scalfano’s vehicle in Alexandria, Louisiana. Plaintiff, under authority of La.R.S. 13:3201 et seq., Louisiana’s Long Arm Statute, sent a copy of the petition and the citation to Ms. Morris by certified mail on August 7, 1985. The affidavit of service indicated that Ms. Morris received the citation and petition on August 10, 1985. The affidavit also makes reference to the postal receipt attached to it. However, no postal receipt indicating delivery was attached in the record. Furthermore, the citation summoned Ms. Morris to file her answer or other pleadings within fifteen (15) days from date of service.

Thereafter, the defendant filed exceptions of improper service, citation, and lack of jurisdiction based on the absence of a postal receipt in the record showing delivery and receipt and the stated incorrect delay period on the citation, which defendant argues should be thirty (30) days. The trial judge sustained the exception of insufficiency of citation and allowed the plaintiff time to remove the objection in accordance with La.C.C.P. art. 932.1 The judgment, rendered on October 8, 1990, also ordered that failure to comply would result in the dismissal of plaintiffs suit against the defendant.

Plaintiff then mailed a copy of the petition and citation pursuant to the Long Arm Statute a second time. In his affidavit, plaintiffs attorney stated that the certified copy of the petition and citation were mailed on November 8, 1990, but that the envelope and contents were returned marked “Return to Sender, Unknown, No name on any mail box,” a copy of which is filed in the record. The address supplied on the second mailing was the last known address and the same one used in the service of August 10, 1985. There is no evidence that the defendant no longer resides at that address or that the address was incorrect. Subsequently, on December 18, 1990, the trial judge dismissed the defendant as per the earlier judgment.

Plaintiff filed this devolutive appeal, contending that the trial court erred in maintaining that dismissal when the plaintiff in fact complied with the requirements of § 3201 of the Long Arm Statute concerning service of process. We agree.

DISCUSSION

The Long Arm Statute was adopted in this State “... to permit the courts of Louisiana to tap the full potential of in personam jurisdiction over non-residents [63]*63consistent with the due process clause of the fourteenth amendment.” Clay v. Clay, 389 So.2d 31 (La.1979) at page 37, and citations therein. The exercise of personal jurisdiction is fully dependent upon strict compliance with the procedural requirements of the Long Arm Statute. Thus, personal jurisdiction over a non-resident may not attach if service of process does not meet the statute’s requirements. Clay v. Clay, supra; Decca Leasing Corporation v. Torres, 465 So.2d 910 (La.App. 2 Cir.1985), writ denied, 468 So.2d 1211 (La.1985).

§ 3204 of the Long Arm Statute directs that service of process on a non-resident shall be made as follows:

“§ 3204. Service of process
A. A certified copy of the citation and of the petition in a suit under R.S. 13:3201 shall be sent by counsel for the plaintiff to the defendant by registered or certified mail, or actually delivered to the defendant 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 jurisdiction.
B. If a Louisiana domiciliary who has been made a defendant in an action filed in this state, makes a general appearance, then moves out of the state and is no longer represented by counsel, all further pleadings may be served upon the defendant by registered or certified mail, or actually delivered to the defendant 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.
C. Service of process so made has the same legal force and validity as personal service on the defendant in this state. Added by Acts 1964, No. 47, § 3. Amended by Acts 1989, No. 120, § 1.”

Under the clear wording of the above quoted statute, all that is necessary to constitute service upon a non-resident is that plaintiffs counsel send a certified copy of the citation and petition to defendant by registered or certified mail (or actual delivery). There is no requirement for a signed return receipt except under § 3205 of the statute in the case of default judgments2.

As stated in Thomas Organ Co. v. Universal Music Co., 261 So.2d 323 (La.App. 1 Cir.1972), at page 327:

“There is no provision against domiciliary service and no requirement for a signed return receipt. It has been held in both the International Shoe Company [v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)] and McGee [v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957)] cases cited supra, that the sending by mail of a certified copy of citation and petition satisfies the requirements of “due process.” To allow a defendant to defeat service of process by refusing to accept a registered letter or to allow a member of his family to receive it for him ineffectually would make a mockery of R.S. 13:3204 and render it completely ineffective.”

The evidence in this case reveals that plaintiff has twice made service upon defendant, Moneque Morris, in satisfaction of the requirements of § 3204 of the Long Arm Statute.

Defendant obtained the October, 1990 judgment granting her exception of insufficiency of citation and service based on the argument that the delay period on the citation was inaccurate and that no return receipt was attached to plaintiffs first affidavit of service.

[64]*64La.C.C.P. art. 1202 sets forth the content of the citation as follows:

“Art. 1202. Form of citation
The citation must be signed by the clerk of the court issuing it with an expression of his official capacity and under the seal of his office; must be accompanied by a certified copy of the petition, exclusive of exhibits, even if made a part thereof; and must contain the following:
(1) The date of issuance;
(2) The title of the cause;
(3) The name of the person to whom it is addressed;
(4) The title and location of the court issuing it; and

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Related

International Shoe Co. v. Washington
326 U.S. 310 (Supreme Court, 1945)
McGee v. International Life Insurance
355 U.S. 220 (Supreme Court, 1957)
Clay v. Clay
389 So. 2d 31 (Supreme Court of Louisiana, 1980)
Decca Leasing Corp. v. Torres
465 So. 2d 910 (Louisiana Court of Appeal, 1985)
Thomas Organ Co. v. Universal Music Co.
261 So. 2d 323 (Louisiana Court of Appeal, 1972)
Howard Ave. Realty Corp. v. McIntosh
352 So. 2d 348 (Louisiana Court of Appeal, 1978)

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Bluebook (online)
606 So. 2d 61, 1992 La. App. LEXIS 2857, 1992 WL 275416, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scalfano-v-morris-lactapp-1992.