Taylor Kaough D/B/A Kaough & Associates v. Hazel Henry D/B/A Henry Tax Service

• Court: Louisiana Court of Appeal
• Decided: December 10, 2003
• Docket: CA-0003-0917
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 03-0917

TAYLOR KAOUGH D/B/A KAOUGH & ASSOCIATES

VERSUS

HAZEL HENRY D/B/A HENRY TAX SERVICE

**********

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2002-1201 HONORABLE ROBERT LANE WYATT, DISTRICT JUDGE

BILLY HOWARD EZELL JUDGE

Court composed of John D. Saunders, Marc T. Amy, and Billy Howard Ezell, Judges.

AFFIRMED.

Robert William Collings Collings & Collings 3434 Common Street Lake Charles, LA 70607 (337) 477-4725 Counsel for: Plaintiff/Appellee Taylor Kaough

Genia Coleman-Lee Attorney at Law P. O. Box 17121 Lake Charles, LA 70616 (337) 491-9900 Counsel for: Defendant/Appellant Hazel Henry EZELL, JUDGE.

The issues in this case are whether there was personal service of process and

sufficient evidence to support a default judgment. Hazel Henry d/b/a as Henry Tax

Service says there was not in both instances and appeals the default judgment entered

in favor of Taylor Kaough d/b/a Kaough & Associates.

FACTS

Kaough filed a petition for damages on March 13, 2002, against Henry and Lisa

Madden alleging that they were indebted to it for $150,000. Kaough’s petition alleged

that it hired the Defendants to prepare its tax returns, compute taxes, and deliver the

tax returns so the appropriate amount of taxes could be paid. Kaough claimed that it

discovered that the Defendants breached their contract and failed to perform these

duties resulting in additional taxes, penalties, and interest. It alleged that these errors

and omissions by the Defendants resulted in Kaough’s inability to accurately

determine the costs of several construction contracts, which projects were being billed

on a cost-plus basis, resulting in a loss of income to Kaough.

No answer was filed by either Henry or Madden. A preliminary default was

entered on April 15, 2002. A default judgment was entered on May 21, 2002. On

August 27, and December 19, 2002, Kaough filed petitions to examine the judgment

debtor. On January 9, 2003, Henry filed a petition to annul the default judgment,

alleging that she was never served with the original petition. In response, Kaough

filed a motion for summary judgment. A hearing was held on April 17, 2003,

resulting in judgment rendered in favor of Kaough on April 24, 2003. Henry appeals

this judgment.

SERVICE OF PROCESS

Henry argues that the default judgment should be annulled pursuant to La.Code

Civ.P. art. 2002(A)(2) because she was not personally served with process. On the other hand there is a return of a citation in the record indicating that personal service

was made on Hazel Henry on March 13, 2002.

Louisiana Code of Civil Procedure Article 2002(A)(2) provides:

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 waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.

There is a presumption that a sheriff’s return is prima facie correct. La.Code

Civ.P. art. 1292. The plaintiff, in an action to nullify a default judgment, has the

burden of proving his case by a preponderance of the evidence. Roper v. Dailey, 393

So.2d 85 (La.1980)(on rehearing), 400 So.2d 898(Dennis, J., dissenting); Technisonic

Research, Inc. v. Technical Indus., Inc., 03-38 (La.App. 3 Cir. 10/1/03), ___ So.2d

_____; Hall v. Folger Coffee Co., 02-920, 02-921 (La.App. 4 Cir. 4/9/03), 843 So.2d

623.

The deposition of Arthur Guillory, the deputy who signed the service return, is

in the record. Guillory testified that he worked for the Calcasieu Parish Sheriff’s

Office for two years serving civil papers, though by the time of the deposition he had

voluntarily left his employment with the sheriff’s office. Guillory specifically

remembered serving papers on Henry because he made a wrong turn and did not

realize that Iris Street, where Henry’s business was located, was a one-way street. He

stated that he delivered the lawsuit “in her hand.” He was very certain of this.

In support of her position, Henry introduced her affidavit, her co-defendant’s

affidavit, and that of three other workers who worked with her into the record. All of

these affidavits stated that Henry “WAS OUT OF THE OFFICE DUE TO ILLNESS

DURING THE WEEK OF MARCH 11TH THRU THE 15TH, 2002.” Subsequently,

another affidavit by Madden was submitted that stated that she “ACCEPTED THE

2 PAPERS ON MARCH 13, 2002 AND [SHE] DID NOT GIVE THE PAPERS TO

MRS. HENRY. MRS. HENRY FOUND OUT ABOUT THE LAW SUIT [sic] AT

THE TIME OF THE SALE OF PROPERTY IN NOVEMBER 2002.”

We note that none of the affidavits, except for the subsequent affidavit by Co-

defendant Madden, state anything about whether or not Henry was served with papers.

We also observe that there is a letter from Henry’s doctor, Dr. Craig Broussard, which

states that “the patient was on therapy at home with antibiotics for two weeks and a

subsequent third week of antibiotics was ordered on March 5, 2002, which would

have been completed on March 12, 2002. However, the lawsuit was served the day

after her home therapy was complete.

We also observe that there is a sheriff’s return in the record indicating that the

same deputy made personal service of notice of the default judgment on Henry on

May 29, 2002. Guillory also remembered serving these papers, while Henry claims

she never received personal notice of the judgment either.

We agree with the trial court that there was insufficient proof to rebut the

presumption of prima facie validity accorded the sheriff’s return.

INSUFFICIENT EVIDENCE

Henry has argued on appeal that there was insufficient evidence to support the

default judgment. However, Henry never appealed the default judgment which was

rendered on May 21, 2002. She has appealed the judgment which denied her motion

for nullity and granted summary judgment in favor of Kaough. “A failure of proof

must be raised in a motion for new trial or by appeal, not by an action for nullity.”

Nat’l Income Reality Trust v. Paddie, 98-2063, p.3 (La. 7/2/99), 737 So.2d 1270,

1271. Henry failed to appeal the default judgment and, therefore, this issue is not

properly before this court on an appeal from a judgment denying a motion for nullity.

For these reasons, the judgment of the trial court is affirmed. Costs of this

3 appeal are assessed to Hazel Henry d/b/a Henry Tax Service.