STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2024 CA 0500
STEPHEN W. BINNING AND KRISTEN BINNING
VERSUS
JERRY BOUDINOT CONSTRUCTION, LLC, ALL STATE PLASTERING, INC., PENN AMERICA INSURANCE COMPANY AND XYZ INSURANCE COMPANY
Judgment Rendered:
On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No. 593235
Honorable Kelly Balfour, Judge Presiding
Roy H. Maughan, Jr. Attorneys for Plaintiff in Namisha D. Patel Reconvention -Appellant,
Joshua D. Roy Robert Digirolamo Connor S. Thomas Baton Rouge, LA
Richard D. Bankston Attorneys for Defendant in
Abbey S. Knight Reconvention -Appellee, Baton Rouge, LA Stephen W. Binning
Brian J. Prendergast Attorney for Defendant in Baton Rouge, LA Reconvention -Appellee,
Kristen Binning
David C. Bolton Attorney for Defendant in Baton Rouge, LA Reconvention -Appellee, Deborah A. Berthelot
BEFORE: THERIOT, CITUTZ, AND HESTER, JJ. HESTER, J.
This is an appeal from a trial court judgment dismissing with prejudice all
claims asserted by plaintiff in reconvention on motions for involuntary dismissal
during a bench trial. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On August 4, 2010, Stephen and Kristen Binning ( sometimes collectively
referred to as the " Binnings") through their attorney, Deborah Berthelot
Berthelot"), filed suit against Jerry Boudinot Construction (" Boudinot"), All State
Plastering, Inc. (" All State"), and multiple insurers after discovering several soft,
rotten sections in the exterior walls of their home apparently caused by moisture
trapped under the stucco that had not been sealed properly, which affected 75% of
the structure of the Binnings' home.' The cost for the repair of the complete failure
of the stucco system of the home was estimated to be $ 65, 000. 00.
According to the Binnings, the contract with Boudinot was for the
construction of their custom dream home with each feature being carefully selected
to enhance their family life with their children. The damages to the home were
extensive and required emergency repairs to stop water intrusion, resulting in the
walls being torn down and exposing rot and mold behind the exterior finish.
According to a certified moisture specialist and certified building envelope
inspector, " the original stucco installation was faulty and lead [ sic] to significant
physical damage of the stucco, underlying wood substrate, flashings, vapor retarder
and structural framing members," and " the home started leaking immediately after
completion of the stucco cladding system."
Boudinot was dismissed from the suit. See Binning v. Boudinot, 2011- 1091 ( La. App. 1st Cir. 12/ 21/ 11), 2011 WL 6779597 ( unreported) ( affirming the trial court' s judgment sustaining
Boudinot' s exception raising the objection of peremption and dismissing the Binning' s claims against Boudinot with prejudice). Thereafter, the insurers were dismissed.
2 During this time, the entire family was affected. Kristen was prescribed anti- The Binnings anxiety medication, and the Binnings started marriage counseling.
eventually separated, never reconciled, and obtained a judgment of divorce on
August 5, 2015.
After filing an answer on May 25, 2011, on behalf of All State, All State' s counsel filed a motion to withdraw as counsel of record " due to the continued failure
of the client to respond to Mover after repeated unsuccessful attempts in which to
contact the client ...." All State' s counsel was permitted to withdraw by order dated
June 11, 2013.
On January 15, 2014, the Binnings amended their petition to add Robert
Digirolamo, the sole shareholder of All State, as a defendant in his individual
capacity. The Binnings alleged that Digirolamo was the " owner, sole shareholder,
employee and only person who applied stucco to the Binning home," and that
Digirolamo' s work was substandard, failing to comply with either required industry 2 standards or the applicable building standards. Ultimately, on September 3, 2014,
the Binnings filed a motion for appointment of a curator, maintaining that
Digirolamo and All State ( for whom Digirolamo is the registered agent for service
of process) were absentees from East Baton Rouge Parish and evading service. The
trial court appointed a curator, who filed an answer on behalf of Digirolamo and All
State, and was relieved as curator after completing her duties.
On April 28, 2016, the Binnings moved for summary judgment against
Digirolamo and All State, requesting service on the former curator. Realizing the
error, the Binnings again moved to have a curator appointed to represent the absent
defendants, Digirolamo and All State. The trial court appointed a curator, who filed
a "[ r] esponse" to the Binnings' motion for summary judgment. The response
2 According to documentation from the Louisiana State Licensing Board for Contractors, neither Digirolamo nor All State were ever licensed contractors.
N indicated that the curator' s attempts to contact defendants were unsuccessful and,
consequently, that Digirolamo and All State did not oppose the motion for summary judgment. The trial court granted the motion for summary judgment, rendering a
money judgment in favor of the Binnings and against Digirolamo and All State on February 27, 2017.
On June 11, 2017, Berthelot sent letters to the East Baton Rouge Parish Clerk
of Court (the " Clerk") requesting issuance of writs offierifacias in order to execute
on the February 27, 2017 judgment in favor of the Binnings. Thereafter, the Clerk
issued writs of fieri facias to the sheriffs of East Baton Rouge Parish and
Plaquemines Parish on July 19, 2017 and July 21, 2017, respectively, commanding
the seizure and sale of Digirolamo and All State' s immovable property.' The sheriff
of East Baton Rouge Parish seized two parcels of immovable property on July 21,
2017, and set the date for the sheriff' s sale. While the Clerk transmitted the writs of
fieri facias and supporting documentation to the sheriff of Plaquemines Parish on
July 21, 2017, requesting that the writ be executed and served, the record does not contain a notice of seizure, which would show that the sheriff seized the parcel of
immovable property in Plaquemines Parish.'
On November 61 2017, counsel for Digirolamo, Roy H. Maughan, Jr.
Maughan"), transmitted correspondence to Berthelot, informing her that a review
of the record indicated that " a procedural error was committed, which makes the
February 27, 2017] judgment invalid," specifically questioning service of the
According to DiGirolamo, one of the properties in East Baton Rouge Parish was a commercial building, while the other was a residence he owned with his former wife, who occupied the property as her primary domicile. The property in Plaquemines Parish was DiGirolamo' s primary residence. a A notice of seizure filed and recorded in Plaquemines Parish on January 1, 2018, is referenced as being an exhibit to the nullity judgment dated January 3, 2019, yet no exhibit is attached to the judgment. Additionally, on January 16, 2018 and February 20, 2018, The Plaquemines Gazette contained public notices for the sheriff' s sale of DiGirolamo' s parcel of immovable property, indicating that the sheriff was proceeding to sell the property "[ b] y virtue and in obedience to a WRIT OF FIERI FACIAS directed to [ the sheriff] by the ... Twenty -Fifth Judicial District Court in and for the Parish of Plaquemines, dated OCTOBER 21, 2017 ..."
M Binnings' amended petition on Digirolamo through the sheriff. Thereafter,
Digirolamo filed a " Motion and Incorporated Memorandum for Recognition of
Homestead Exemption" relative to the property in Plaquemines Parish.' The trial
court granted the motion in a judgment signed on January 31, 2018, decreeing that
the Plaquemines Parish property constituted the homestead of Digirolamo and was
exempt from seizure in the amount of $35, 000. 00, exclusive of costs of sale" and
further ordering that the amount of $ 35, 000.00 be retained and set aside for
Digirolamo if the property was auctioned. According to Digirolamo, the sheriff' s
sale was reset for February 21, 2018, but was eventually stopped.
On August 9, 2018, Digirolarno and All State through their counsel, Maughan,
filed a " Declinatory Exception of Insufficiency of Service of Process and Motion for
Summary Judgment Annulling the Judgment Rendered February 27, 2017," seeking
to annul the February 27, 2017 judgment granting the Binnings' motion for summary
judgment.' The Binnings opposed the exception and motion. After a hearing on
December 3, 2018, the trial court granted the motion.' The trial court signed a
judgment on January 3, 2019, annulling the February 27, 2017 judgment pursuant to
La. Code Civ. P. art. 2002 and cancelling the inscriptions of the February 27, 2017
judgment and the notices of seizure in East Baton Rouge Parish and Plaquemines
Parish.
5 Berthelot filed an opposition to the motion, arguing that Digirolamo rented out the property in Plaquemines Parish and also claimed a homestead exemption on the residential property in East Baton Rouge Parish. Berthelot noted that she never received the motion and only received notice ofthe hearing from the trial court. She attempted to contact Maughan on December 1, 2017, and left a message with his office, informing him that her office had moved and of the failure to receive the motion. Berthelot also requested that the motion be transmitted to her. As of the date the opposition was transmitted to the court on December 29, 2017, Berthelot had not received a copy of the motion and Maughan had not returned her call. 6 All State' s second counsel of record withdrew on May 12, 2016, " due to a conflict." 7 In his brief filed with this court, Digirolamo references a suit to annul filed by Maughan on April 10, 2018, and a copy of such suit was introduced as an exhibit at trial; however, the suit to annul is not otherwise contained in the record. No order was attached to the suit, requesting that the matter be set for hearing. Notwithstanding, the minutes of court and the trial court' s judgment annulling the February 27, 2017 judgment only reference Digirolamo and All State' s motion for summary judgment.
5 On February 20, 2019, Digirolamo filed a reconventional demand against the
Binnings and a third -party demand against Berthelot, alleging damages resulting from the wrongful seizure of Digirolamo' s property " due to the acts of Defendants
I Digirolamo alleged the seizures in Reconvention and their attorney, Berthelot."
were " intentional, malicious and/ or in bad faith, and at the least negligent."
Stephen and Kristen Binning each answered the reconventional demand,
denying the allegations contained therein. Berthelot filed a peremptory exception
asserting the objection of no cause of action, maintaining that she owed no duty to Digirolamo, that the third -party demand failed to state a cause of action for
intentional tort, and that at all relevant times she was operating as a limited liability
company ( Deborah Berthelot, LL{:). The trial court sustained the exceptions but
allowed Digirolamo the opportunity to amend the third -party demand. On October
23, 2020, Digirolamo filed an amended third -party demand, providing additional
allegations relative to the intentional tort claims against Berthelot, to wit:
Berthelot was required to have the legal knowledge, skill, thoroughness, and
preparation reasonably necessary;
Berthelot knew or should have known that the trial court' s jurisdiction over
Digirolamo required service of process on him or an attorney appointed to defend
him;
Berthelot knew or should have known that any judgment rendered against
Digirolamo was absolutely null;
Berthelot knew or should have known that she did not request service of
process on him or an attorney appointed to defend him;
Berthelot was made aware of the lack of service on Digirolamo, which was
a verifiable fact evident from the record of the proceeding;
s We note that Digirolamo' s reconventional and third -party demands were filed nineteen months after the writs offieri facial were issued.
M Berthelot demonstrated a blatant disregard for Digirolamo' s rights of
procedural due process in instituting proceedings to collect on an absolutely null
judgment;
Berthelot' s conduct and actions in attempting enforcement of an absolutely
null judgment were intentional because they were deliberate and calculated;
Berthelot' s failure to cease collection activities after being apprised of the
service of process issue showed calculated misconduct in violation of the law; and
Berthelot had a professional and legal duty not to intentionally injure or
violate Digirolamo' s legal rights and rights of procedural due process.
As a result of the alleged intentional acts of Berthelot, Digirolamo alleged he
suffered embarrassment, humiliation, mental anguish, worry, mental trauma,
depression, and inconvenience and sought compensation for such damages as well
as attorney' s fees and costs.
Ultimately, Digirolamo' s reconventional and third -party demands against the
Binnings and Berthelot, respectively, proceeded to a bench trial on December 13,
2023. The trial court received documentary evidence and heard testimony given by
Digirolamo and Berthelot. At the conclusion of Digirolamo' s case, Stephen and
Kristen Binning and Berthelot rnoved for involuntary dismissal, arguing that
Digirolamo did not carry his burden of proof on his claims against the defendants
and, further, that he failed to prove compensable damages. Ultimately, the trial court
granted all three motions for involuntary dismissal, ordering that costs be split
amongst all the parties. The judgment memorializing the trial court' s ruling was
signed on January 2, 2024.
Digirolamo appealed, assigning as error the trial court' s grant of Stephen and
Kristen Binning' s and Berthelot' s motions for involuntary dismissal; determination
7 that Digirolamo failed to prove his case -in -chief; failure to award damages to
Digirolamo; and dismissal of Digirolamo' s claims with prejudice.'
LAW AND DISCUSSION
Louisiana Code of Civil Procedure article 1672( B) provides that in an action
tried by the court without a jury, any party, without waiving his right to offer evidence in the event the motion is :not granted, may move for involuntary dismissal
at the close of plaintiff' s case on the ground that upon the facts and law, plaintiff has
shown no right to relief. In determining whether involuntary dismissal should be
granted, the appropriate standard is whether the plaintiff has presented sufficient
evidence in his case -in -chief to establish a claim by a preponderance of the evidence,
which means taking the evidence as a whole, the fact or cause sought to be proved is more probable than not. Key Office Equip., Inc. v. Zachary Cmty. Sch. Bd.,
2015- 1412 ( La. App. 1st Cir. 4/ 15/ 16), 195 So. 3d 54, 59, writ denied, 2016- 0841
La. 6/ 17/ 16), 192 So. 3d 772.
The trial court' s grant of an involuntary dismissal is subject to the manifest
error standard of review. Broussard v. Voorhies, 2006- 2306 ( La. App. 1st Cir.
9/ 19/ 07), 970 So. 2d 1038, 1041, writ denied, 2007- 2052 ( La. 12/ 14/ 07), 970 So. 2d
535. In order to reverse a grant of involuntary dismissal, an appellate court must
find, after reviewing the record, that there is no factual basis for the trial court' s
finding or that the finding is clearly wrong. Id. at 1042. See also Stobart v. State The issue to be through Dep' t of Transp. & Dev., 617 So. 2d 880, 882 ( La. 1993).
resolved is not whether the trial court was right or wrong, but whether its conclusion
9 Digirolamo also assigned as error the trial court' s consideration and determination that the claims against Berthelot were prescribed, noting that the trial court " ostensibly raised the exception of prescription on its own motion, and found ... Digirolamo' s claims ... untimely." Initially, we note that the trial court could not and did not supply the objection of prescription on its own. La. Code Civ. P. art. 927( B). Moreover, the judgment appealed did not contain any determination that Digirolamo' s claims were prescribed. Appellate courts review judgments and not reasons for judgment. Tucker v. Chatfield, 2023- 0343 ( La. App. Ist Cir. 11/ 9/ 23), 379 So. 3d 678, 683. In fact, judgments are often upheld on appeal for reasons different than those assigned by a trial court. Id. at 684. Accordingly, we pretermit discussion of this assignment of error. was a reasonable one. Pontchartrain Nat. Gas Sys. v. Texas Brine Co., LLC,
2018- 0631 ( La. App. 1st Cir. 7/ 3/ 19), 281 So. 3d 1, 5, writ denied, 2019- 01423 ( La.
11/ 12/ 19), 282 So. 3d 224 ( relying on Stobart, 617 So.2d at 882). Even though an
appellate court may feel its own evaluations and inferences are more reasonable than
the trial court' s, reasonable evaluations of credibility and reasonable inferences of
fact should not be disturbed upon review where conflict exists in the testimony.
Stobart, 617 So. 2d at 882.
Because an involuntary dismissal of an action pursuant to La. Code Civ. P.
art. 1672( B) is based on the facts and law, a review of the substantive law applicable
to Digirolamo' s case is necessary. Pontchartrain Nat. Gas Sys., 281 So. 3d at 5.
Here, Digirolamo asserted a claim for damages for wrongful seizure and intentional
tort.
Wrongful Seizure
The cause of action for damages for wrongful seizure is a tort claim based on
La. Civ. Code art. 2315. Tchefuncte Harbour Townhome Ass' n, Inc. v.
Costanza, 2015- 0524 ( La. App. 1st Cir. 11/ 6/ 15), 2015 WL 6842117 * 4
unpublished) ( relying on Grocery Supply Co. v. Winterton Food Stores, 31, 114
La. App. 2d Cir. 12/ 9/ 98), 722 So. 2d 94, 97). In order for a plaintiff to prevail under
La. Civ. Code art. 2315 for wrongful seizure, he must first prove that the seizure was
illegal or wrongful. Taylor v. Hancock Bank of Louisiana, 95- 0666 ( La. App. 1
Cir. 11/ 9/ 95), 665 So. 2d 5, 7. In order to recover damages therefor, the damages
must have been caused by the fault of another; there must be a duty owed by the
WE defendant to the plaintiff; a breach of this duty; and causation. 10 Id. A negative
answer to any of the inquiries of the duty -risk analysis results in a determination of 923 no liability. Lemann v. Essen Lane Daiquiris, Inc., 2005- 1095 ( La. 3/ 10/ 06),
So. 2d 627, 633. " Fault" as used in La. Civ. Code art. 2315 encompasses more than
negligence. It is the breach of a duty owed by one party to another under particular
facts and circumstances of a given case. Taylor, 665 So. 2d at 7. Recoverable
damages for the tort of wrongful seizure can include damages in compensation for
embarrassment, humiliation, mental anguish, and worry. Id.
A writ offierifacias is a method of execution of a money judgment in which
the property of the judgment debtor is seized and sold. See La. Code Civ. P. art.
2291. The rules and procedures governing writs offierifacias are set forth in articles
2291 et seq. of the Louisiana Civil Code of Procedure, Book IV entitled " Execution of Judgments." An essential requirement to the issuance of a writ offierifacias is a
money judgment. King v. Illinois Nat. Ins. Co., 2008- 1491 ( La. 4/ 3/ 09), 9 So. 3d
780, 786. Pursuant to La. Code Civ. P. art. 2291, a judgment for the payment of
money may be executed by a writ offieri facias directing the seizure and sale of
property of the judgment debtor. The act of seizing through the execution of a
judgment constitutes an involuntary relinquishment of a judgment debtor' s interests.
King, 9 So. 3d at 787. Accordingly, strict construction and application of the
provisions relating to writs offierifacias, as with other provisions pertaining to the
execution ofjudgments, are warranted. Id.
to See also Mathieu v. Imperial Toy Corp., 94- 0952 ( La. 11/ 30/ 94), 646 So. 2d 318, 322 to state a claim under La. Civ. Code art. 2315, " a plaintiff must prove five separate elements: ( 1) the defendant had a duty to conform his or her conduct to a specific standard of care ( the duty element); ( 2) the defendant failed to conform his or her conduct to the appropriate standard ( the breach of duty element); ( 3) the defendant' s substandard conduct was a cause -in -fact of the plaintiff' s injuries (the cause -in -fact element); ( 4) the defendant' s substandard conduct was a legal cause of the plaintiff's injuries ( the scope of liability or scope of protection element); and, ( 5) actual damages ( the damages element).").
10 Digirolamo' s sole basis for asserting the seizure was wrongful is the fact that
the February 27, 2017 money judgment was declared absolutely null on January 3, 2019. An absolutely null judgment is never valid and any proceedings conducted
under the authority of a null judgment are absolutely void. Succession of Crute v.
8/ 30/ 17), 226 So. 3d 1161, 1177- 78. Crute, 2016- 0836 ( La. App. 1st Cir.
Accordingly, it is clear that the writs offieri facias and the subsequent seizures of
Digirolamo' s property pursuant to the absolutely null judgment are void in this case. However, this court has stated that a judgment rendered absolutely null " is as though
it were never rendered." Frisard v. Autin, 98- 2637 ( La. App. 1 st Cir. 12/ 28/ 99),
747 So.2d 813, 820, writ denied, 2000- 0126 ( La. 3/ 17/ 00), 756 So. 2d 1145. Mindful
of the strict construction of the provisions relating to writs of fieri facias, we
conclude that the seizure of Digirolamo' s property under a writ offierifacias issued
as a result of the February 27, 2017 null judgment was wrongful.
However, a finding that the seizure was wrongful does not automatically
entitle Digirolamo to recover damages. Rather, he was required to prove his case
for damages under La. Civ. Code art. 2315. Digirolamo was required to prove that
his damages were caused by the fault of another, which encompasses more than
negligence. Digirolamo further had to prove by a preponderance of the evidence
that Stephen and Kristen Binning or Berthelot breached a duty owed to him under
the particular facts and circumstances of this case. See Taylor, 665 So. 2d at 7. In
granting Stephen and Kristen Binning and Berthelot' s motions for involuntary
dismissal, the trial court implicitly found that plaintiff failed to present sufficient
evidence in his case -in -chief to establish his claim for damages for wrongful seizure
by a preponderance of the evidence. After a thorough review of the record and
evidence presented, we are unable to conclude that the trial court was manifestly
erroneous. See Broussard, 970 So.2d at 1041.
11 Because the wrongful seizure in this case stems from the fact that the money
judgment was rendered absolutely null, we find that, under the very particular facts
and circumstances of this case, the Binnings themselves cannot be found to be the
legal cause of the wrongful seizure,. Todd v. State Through Dep' t of Soc. Servs.,
Office of Cmty. Servs., 96- 3090 ( La. 9/ 9/ 97), 699 So. 2d 35, 39 (" Every negligence
case must be decided on its own facts and circumstances."). Rather, it was the
mistake and actions of their attorney, Berthelot, that caused the February 27, 2017
judgment to be declared absolutely null, i.e., her failure to properly request service
of all relevant petitions on Digirolamo. Accordingly, we find the trial court' s
conclusion was reasonable under the specific facts and circumstances of this case
and that the trial court did not err in granting Stephen and Kristen Binnings' motions
for involuntary dismissal." See Pontchartrain Nat. Gas Sys., 281 So. 3d at 5.
Intentional Tort
In Penalber v. Blount, 550 So.2d 577, 581 ( La. 1989), the supreme court held
that a non -client generally cannot hold his adversary' s attorney personally liable for
11 Moreover, we do not find any error in the trial court' s ruling to the extent it concluded that Digirolamo failed to establish his damages by a preponderance of the evidence. Digirolamo is not legally entitled to attorney' s fees. Under Louisiana law, attorney' s fees are not permitted except where authorized by statute or by contract. Sigur v. Mun. Employees' Ret. Sys. of Louisiana, 2021- 0790 ( La. App. 1st Cir. 3/ 4/ 22), 341 So. 3d 632, 639, writ denied, 2022- 00747 ( La. 9/ 7/ 22), 345 So. 3d 426. While statutory provisions permit the allowance of attorney' s fees for the dissolution of improper seizures under writs of attachment or sequestration and the dissolution of a wrongful issuance of a restraining order or preliminary injunction, there is no statutory provision to recover attorney' s fees for the dissolution of a wrongful seizure under a writ offieri facias. See La. Code Civ. R. arts. 3506 and 3608; also see Nassau Realty Co., Inc. v. Brown, 332 So. 2d 206, 210 ( La. 1976). However, we note that La. Code Civ. P. art. 2298( A)(4), which was not utilized by Digirolamo in this case, permits injunctive relief prohibiting the sheriff from proceeding with the sale of property seized under a writ offieri facias when the judgment sought to be executed is absolutely null. When injunctive relief pursuant to La. Code Civ. P. art. 2298( A) is granted, subsection B allows the court to award damages if it finds the seizure to be wrongful and further provides that attorney' s fees may be included as an element of the damages. Regarding Digirolamo' s general damages, he testified on direct examination that he felt fear, embarrassment, and humiliation as a result of the attempt to seize his properties and the notice of seizure being published in an ad in the newspaper. Digirolamo also testified that in 2017, around the time of these proceedings, he saw his doctor and was prescribed medications, one of which included his medication for " ADHD" ( Attention Deficit Hyperactive Disorder). However, Digirolamo' s testimony was called into question on cross examination, and the trial court could have reasonably concluded that Digirolamo was not entitled to damages under the facts of this case.
12 either malpractice or negligent breach of a professional obligation. Id. The intent
of this rule is not to reduce an attorney' s responsibility for his or her work, but rather
to prevent a chilling effect on the adversarial practice of law and to prevent a division
of the loyalty owed to a client. Accordingly, Digirolamo was required to establish
by a preponderance of the evidence that Berthelot' s actions were intentionally
tortious. See Id. at 582. The supreme court has held that in order to state a cause of
action, facts must be alleged showing that the attorney acted with specific malice or
an intent to cause direct harm. See Montalvo v. Sondes, 93- 2813 ( La. 5/ 23/ 94), 637
So. 2d 127, 130.
Notwithstanding Digirolamo' s allegations against Berthelot in his third -party
demand, the testimony of Berthelot did not support the allegations that her actions
were deliberate and calculated or that she knew the February 27, 2017 judgment was
null or otherwise disregarded pertinent facts in requesting the writs offieri facias. ,
When questioned about the letter Maughan sent to Berthelot refencing a " procedural
error" making the judgment invalid and questioning whether the sheriff in
Plaquemines Parish was directed to make personal service on Digirolamo, Berthelot
testified that she was confused as to what error Maughan referenced. 12 When asked
if she understood the error now, she responded that she understood that the curators
submitted an answer that was incorrectly numbered, not matching the paragraphs of
the second amended petition naming Digirolamo, which was the error. When
questioned about the citation, which only referenced service of the original petition
no reference was made to either of the amended petitions), Berthelot testified that
she brought all three petitions to the Clerk' s office and requested that they serve all
12 Berthelot further testified that she did not trust Maughan, and that she " would look at the matter every two or three weeks to see if [Maughan] had filed something because [ he] would not send [ her] copies, [ he] would not serve [ her] and it was very difficult to know what [ Maughan]
was doing."
13 three. 13 She further testified that she could not " explain why they don' t have every document that was on it.... I think they didn' t have enough space to type the name
of each document that was being served in that little line."
Before granting Berthelot' s motion for involuntary dismissal, the trial court
observed:
Now the threshold for competency that lawyers are held to under our rules of professional conduct clearly was not met here. I have law students in their first year that have a better grasp of civil procedure than what was displayed in this particular matter. It is clear that Berthelot] doesn' t know how to serve the suit, doesn' t know the process of [ how] to operate with curators and if you believe her testimony here today, still doesn' t understand what went wrong in the original case in chief.
The trial court, however, did not fired that any evidence was presented to show that
Berthelot' s actions were malicious or that there was an abuse of process. Based on
the testimony and evidence, we do not find that the trial court was unreasonable or
manifestly erroneous in granting Berthelot' s motion for involuntary dismissal.
Accordingly, we do not find merit in any of Digirolamo' s assignments of error.
CONCLUSION
For the above and foregoing reasons, we affirm the January 2, 2024 judgment,
granting the motions for involuntary dismissal of Stephen Binning, Kristen Binning,
and Deborah Berthelot, dismissing Robert Digirolamo' s claims against Stephen
Binning, Kristen Binning, and Deborah Berthelot with prejudice, and ordering that costs be split equally amongst Robert Digirolamo, Stephen Binning, Kristen
Binning, and Deborah Berthelot. Costs of this appeal are assessed to Robert
Digirolamo.
AFFIRMED.
13 We note that the service information in the second amended petition simply states, PRIVATE PROCESS SERVER: PLEASE SERVE: Robert Digirolamo, personally." 14