Junior Moore Brown v. Stratis Construction, LLC and Carl Andrew Perkins ( 2022 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2021 CA 0964
JUNIOR MOORE BROWN
VERSUS
STRATIS CONSTRUCTION, LLC AND CARL ANDREW PERKINS
Judgment Rendered: MAR 0 7 2022
On Appeal from the
CIA Office of Workers' Compensation Administration, District 6
In and for the Parish of St. Tammany
State of Louisiana
C No. 18- 06608
The Honorable R. Myles Donahue, Judge Presiding
Michael W. Whitehead Attorney for Plaintiff/Appellee
Covington, Louisiana Junior Moore Brown
Ben E. Clayton Attorneys for Defendants/ Appellants
Joshua P. Clayton Stratis Construction, LLC and
Slidell, Louisiana Carl Andrew Perkins
BEFORE: WHIPPLE, C. J., PENZATO, AND RESTER, JJ.
PENZATO, J.
Stratis Construction, LLC and Carl Perkins appeal from a default judgment
rendered against them in a workers' compensation proceeding. For the following
reasons, we vacate and set aside the preliminary default and confirmation of default
judgments and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
On September 28, 2018, Junior Moore Brown filed a disputed claim for
compensation with the Office of Workers' Compensation ( OWC) against Stratis
Construction, LLC ( Stratis),' alleging that he suffered a disabling work-related
injury necessitating medical treatment. Brown requested citation and service be
made by certified mail at 70325 Hwy. 1077, Ste. 300, Covington, LA 70433 ( 70325
Hwy. 1077 address). On June 18, 2019, Brown amended his disputed claim for
compensation against Stratis and added Carl Perkins as a defendant. Brown
requested citation and service of the amended disputed claim be made on both
defendants at the 70325 Hwy. 1077 address.
Subsequently, Brown sought a preliminary default against both defendants,
which the OWC granted on October 23, 2019. In the motion for preliminary default,
Brown asserted that service of the original claim was perfected on Stratis and that
service of the amended claim was perfected on both defendants. The OWC
confirmed the default judgment on April 28, 2021, awarding Brown certain
indemnity benefits and " all reasonable and necessary medical benefits for treatment
necessitated by this accident." On May 24, 2021, defendants filed a petition to annul
the default judgment, alleging that neither defendant had ever been served with
Brown' s claim. On the same date, defendants filed a motion for suspensive appeal.
1 Brown misspelled Stratis as " Stratus" in the original claim, which he corrected in an amended
claim.
2
After the instant appeal was lodged, this court issued a Rule to Show Cause
Order on the following issues: ( 1) whether the judgment described the relief with
sufficient particularity with regard to the medical expenses; and ( 2) whether the
appeal was premature given the outstanding petition seeking to annul the default
judgment. ( Rule to Show Cause Order). Following the issuance of the Rule to Show
Cause Order, Brown filed a motion to supplement the appellate record, requesting
that this court order the OWC to supplement the record with the service information
pursuant to the Uniform Rules— Courts of Appeal, Rule 2- 1. 11. 2 This court denied
the motion to supplement the appellate record, determining that pursuant to La.
C. C. P. arts. 2132 and 2088( A)( 4), the request was more properly directed to the trial
court. Subsequently, the OWC signed a consent judgment supplementing the
appellate record with the " purported citations and returns for service" of the original
and amended claims on Stratis and Perkins.
We first address whether this appeal is premature given the outstanding
petition for nullity. Louisiana Code of Civil Procedure article 2005 provides, in
pertinent part, that "[ a] n action for nullity does not affect the right to appeal."
Moreover, this court has recognized that " an action of nullity of a final judgment is
a separate remedy independent of all other actions for judicial relief, and may be
availed of notwithstanding the right of appeal and without adverse effect upon one' s
right of appeal." Schoen v. Burns, 321 So. 2d 908, 913 ( La. App. 1 st Cir. 1975). An
action to annul a judgment for a vice of form may be brought by an interested person
at any time, before any court, and through a collateral proceeding. See La. C. C. P.
art. 2002( B); Edwards v. First Bank & Trust, 2012- 0423 ( La. App. 1st Cir. 4/ 8/ 13),
181 So. 3d 726, 729. A party may avail himself of the right to seek annulment of a
2 Uniform Rules— Courts of Appeal, Rule 2- 1. 11 provides:
Subpoenas, notices, and returns may be omitted from the record, unless they are at
issue.Such items may be supplied upon timely application to this court by any
party, upon showing their materiality.
3
judgment despite the fact that the party has a right to appeal and without adversely
affecting the right to appeal. See La. C. C. P. art. 2005; Edwards, 181 So. 3d at 729.
See also Roach v. Pearl, 95- 1573 ( La. App. 1st Cir. 5/ 10/ 96), 673 So. 2d 691, 694-
95 ("[ Louisiana Code of Civil Procedure article] 2005 specifically allows for a
nullity action while an appeal is pending.") Further, Roach recognized that the
nullity action could be brought in the same suit without distinguishing whether the
nullity sought was relative or absolute. Given the foregoing, the appeal is not
premature despite a nullity action being filed in the underlying OWC proceedings.
Therefore, we maintain this appeal.
ASSIGNMENTS OF ERROR
Defendants assert two assignments of error: ( 1) that the OWC erred by
rendering a default judgment against them because they never were served with
citation or the claim prior to the entry of the default judgment; and ( 2) that the OWC
erred because Brown did not make a prima facie showing that his alleged accident
arose out of the course and scope of his employment with defendants.
APPLICABLE LAW
Sufficiency of Service
In reviewing default judgments, the appellate court is restricted to determining
the sufficiency of the evidence offered in support of the judgment. This
determination is a factual one governed by the manifest error standard of review.
Arias v. Stolthaven New Orleans, L.L. C., 2008- 1111 ( La. 5/ 5/ 09), 9 So. 3d 815, 818.
Louisiana Code of Civil Procedure Article 1201( A) provides that "[ c] itation
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 allproceedings are absolutely null." ( Emphasis
added.); Pope v. Roberts, 2013- 1407 ( La. App. 1st Cir. 4/ 16/ 14), 144 So. 3d 1059,
1063.
Cl
The record before us reflects that the citations for both the original and
amended claims were addressed to the 70325 Hwy. 1077 address. The records of
the Louisiana Secretary of State evidence that the mailing address, registered office
address, and domiciliary address of Stratis is 728 N. Theard Street, Covington,
Louisiana, 70433 ( 728 N. Theard Street address), and that Perkins is the registered
agent for service of process for Stratis. 3
The motion and order for preliminary default did not identify the individuals
who were served with either the original or amended claim and did not specify the
alleged form of service. The supplemented evidence reflects one certified mail
receipt directed to Stratis at the 70325 Hwy. 1077 address and signed by " Candice
Simm." A second certified mail receipt directed to Perkins at the 70325 Hwy. 1077
address is signed by " A. Roderfeld." Two other certified mail receipts directed to
Stratis and Perkins at the 70325 Hwy. 1077 address are both signed by " A.
Roderfeld." At the hearing on the confirmation of preliminary default, the OWC
requested whether Brown knew the identity of "A. Roderfeld" or " Candice Simm," 4
but Brown admitted he did not know either person. There is no evidence in the
record that " Candice Simm" or " A. Roderfeld" was authorized to receive service on
behalf of either Stratis or Perkins.
Defendants assert that even with the certified mail receipts, service was not
proper upon the defendants pursuant to La. R.S. 23: 1310. 3( B), which permits service
3 The records of the Louisiana Secretary of State can be found at www.sos. la.gov. We take judicial
notice herein of the Secretary of State' s official governmental website. See Welch v. Planning &
Zoning Commission of East Baton Rouge Parish, 2016- 0253 ( La. App. 1st Cir. 4/ 26/ 17), 220 So.
3d 60, 68 n.9 ( taking judicial notice of Secretary of State' s official governmental website); State
v. Carpenter, 2000- 436 ( La. App. 3rd Cir. 10/ 18/ 00), 772 So. 2d 200, 206, writ denied, 2000- 3152
La. 1/ 25/ 02), 806 So. 2d 665; see also Phi Iota Alpha Fraternity, Inc. v. Schedler, 2014- 1620 ( La.
App. 1 st Cir. 9/ 21/ 15), 182 So. 3d 998, 1003 ( taking judicial notice of the information maintained
on the United States Patent and Trademark Office' s website).
4
The record reflects the spelling of " Candice Simm" as " Candace Simm." However, the
supplemented evidence reveals that the certified mail receipt was signed as " Candice Simm."
Therefore, we will use the spelling on the certified mail receipt.
R
of a workers' compensation claim by certified mail or any other manner provided by
law. Louisiana Revised Statute 23: 1316 provides:'
If a defendant in the principal or incidental demand fails to answer or
file other pleadings within the time prescribed by law or the time
extended by the workers' compensation judge, and upon proof of
proper service having been made, preliminary default may be entered
against him. The preliminary default shall be obtained by written
motion. [ Emphasis added.]
With regard to a limited liability company, service is required to have been
made by certified mail at the registered address. See Jefferson Parish Hospital
Service District No. 2 v. K & W Diners, LLC, 2010- 767 ( La. App. 5th Cir. 4/ 12/ 11),
65 So. 3d 6621 667. There is no evidence in the record that Stratis was served at its
registered address, the 728 N. Theard Street address. We further note that there is
no evidence in the record that either " Candice Simm" or " A. Roderfeld" was
authorized to accept service on behalf of Stratis. See Brigandi v. Egana, 2001- 176
La. App. 5th Cir. 5/ 30/ 01), 788 So. 2d 680, 681- 82 ( finding default judgment
absolutely null because the return of service failed to indicate the capacity of the
person receiving service).
Brown asserts that at the time of service of the original claim in 2018 and the
amended claim in 2019, Stratis' s registered address was the 70325 Hwy. 1077
address. However, there is nothing in the record to support this assertion. The
Louisiana Secretary of State lists the 728 N. Theard Street address and the date of
registration as March 3, 2015. There is nothing showing any other address ever
registered to Stratis. Brown relies on Andre v. Construction Material Shop, 93- 1212
La. App. 1st Cir. 3/ 11/ 94), 633 So. 2d 1313, 1317, for the proposition that service
may be made on an employer/ defendant at its business address, even if not on the
registered agent for service of process. However, K& W Diners distinguished Andre
and recognized that even if service of process is made properly pursuant to La. R.S.
5 Louisiana Revised Statute 23: 1316 was recently repealed by Acts 2021, No. 174, § 6, effective
January 1, 2022.
Ce
23: 1310. 3( B) by certified mail, it must also be on the proper person. K& W Diners,
65 So. 3d at 667. The court in K& W Diners annulled the default judgment because
service was not made at the registered address of an employer. K& W Diners, 65 So.
3d at 669. Brown asserts that the 70325 Hwy. 1077 address is the business address
and was the registered address of Stratis at the time of service; argument of counsel
and briefs, no matter how artful, are not evidence. Seale & Ross, P.L. C. v. Holder,
2019- 1487 ( La. App. Ist Cir. 8/ 3/ 20), 310 So. 3d 195, 204. Therefore, the service
of process upon Stratis is insufficient.
Brown also maintains that citation and service upon Perkins was appropriate,
alleging that Perkins is a licensed practicing attorney in the State of Louisiana with
the Louisiana State Bar Association listing his principal place of business as the
70325 Hwy. 1077 address. As we stated above, even if service of process is made
properly pursuant to La. R.S. 23: 1310. 3( B) by certified mail, it must also be on the
proper person. K& W Diners, 65 So. 3d at 667.
There is no evidence in the record that Perkins was served personally. Brown
offers no authority for the proposition that service of an individual at an address
listed with the Louisiana State Bar Association is sufficient under the circumstances
herein. Furthermore, there is no evidence in the record that Perkins is an attorney or
establishing the location of his business address.6 Therefore, the purported service
upon Perkins is insufficient.
Absolute Nullity of Default Judgment
A final judgment may be annulled for either vices of form or substance. La.
C. C. P. art. 2001. Judgments suffering from vices of form are called " absolute
nullities," while those which contain vices of substance are called " relative
6 Even if we were to assume that the Louisiana State Bar Association website is a government
website and accept that the 70325 Hwy. 1077 address is the business address of Perkins, there is
no evidence in the record that Perkins was served personally or that either " Candice Simm" or " A.
Roderfeld" had authority to accept service for Perkins.
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nullities." Rivet v. Regions Bank, 2002- 1813 ( La. 2/ 25/ 03), 838 So. 2d 1290, 1293.
A default judgment confirmed against one whom a valid preliminary default has not
been taken is an absolute nullity. La. C. C. P. art. 2002. Absolute nullities may be
attacked collaterally, at any time, by rule, or any other method. C. C. P. art. 2002;
Rivet, 838 So. 2d at 1293.
It is well settled that a default judgment may not be taken against a person
who has not received citation and service thereof. Ware v. Foremost Insurance Co.,
2016- 1481 ( La. App. 1st Cir. 6/ 2/ 17), 223 So. 3d 1, 3 ( citing Clay v. Clay, 389 So.
2d 31, 35- 36 ( La. 1979)). A judgment rendered against a defendant who has not
been served with process as required by law is an absolute nullity. See La. C. C. P.
arts. 1201( A) and 2002( A)(2); Edwards, 181 So. 3d at 729. In the absence of
evidence of proper citation and service of process informing the defendant of the
claim against him, in strict compliance of the law, all subsequent proceedings are
absolutely null. Rivers v. Groth Corporation, 95- 2509 ( La. App. 1st Cir. 9/ 27/ 96),
680 So. 2d 7629 763.
The evidence reflects that service was not made on Perkins personally and
that the purported service to Stratis was sent by certified mail to an address not listed
as the registered address for Stratis with the Louisiana Secretary of State. We
acknowledge that service on an attorney, as a representative of a client, is proper
when the attorney' s secretary is served in the attorney' s office. La. C. C. P. art.
1235( B); Edwards, 181 So. 3d at 729. However, there is no indication in the record
as to the capacities of "Candice Simm" and " A. Roderfeld" or that either individual
was authorized to accept service for either Stratis or Perkins. As we have determined
that the certified mail receipts signed by " Candice Simm" and " A. Roderfeld" were
insufficient service of process upon the defendants, we find that the default judgment
entered in this case is an absolute nullity and we reverse it. This case is remanded
for further proceedings.
As we have found that the judgment is an absolute nullity, we pretermit any
discussion referred to in the Rule to Show Cause as to the language therein not
setting forth the medical expenses with any certainty. Furthermore, we also
pretermit any discussion as to defendants' second assignment of error that Brown
failed to make aprima facie showing that his alleged accident arose out of the course
and scope of his employment with Perkins.
CONCLUSION
For the reasons set forth above, we vacate the October 23, 2019 preliminary
default and April 28, 2021 confirmation of default judgments of the Office of
Workers' Compensation rendered against Stratis Construction, LLC and Carl
Perkins, and in favor of Junior Moore Brown. This matter is remanded to the Office
of Workers' Compensation for further proceedings consistent with this opinion. All
costs of this appeal are assessed against plaintiff/appellee, Junior Moore Brown.
APPEAL MAINTAINED; OCTOBER 23, 2019 JUDGMENT OF
PRELIMINARY DEFAULT AND APRIL 28, 2021 JUDGMENT
CONFIRMING DEFAULT VACATED; CASE REMANDED.
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