Opinion
NUMBER 2018 CA 1372 C/w NUMBER 2018 CA 1373
04-17-2019
ADVANTAGE SIGNS & CONTRACTORS, LLC v. NW SIGN INDUSTRIES, INC. NW SIGN INDUSTRIES, INC. v. ADVANTAGE SIGNS & CONTRACTORS, LLC
Craig L. Kaister Teresa D. Cop Zachary, LA Counsel for Appellee Advantage Signs & Contractors, LLC J. Arthur Smith, III Robert Moseley Schmidt Baton Rouge, LA Counsel for Appellant NW Sign Industries, Inc.
On appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Docket Number 659,815 c/w 666,653 Honorable Todd Hernandez, Judge Presiding Craig L. Kaister
Teresa D. Cop
Zachary, LA Counsel for Appellee
Advantage Signs & Contractors,
LLC J. Arthur Smith, III
Robert Moseley Schmidt
Baton Rouge, LA Counsel for Appellant
NW Sign Industries, Inc. BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ. GUIDRY, J.
This is an appeal by a foreign corporation, which at one time transacted business in Louisiana, seeking review of a judgment denying the corporation's request to enjoin seizure of its property pursuant to a default judgment secured by an alleged creditor. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On July 24, 2017, Advantage Signs & Contractors, LLC filed a petition against NW Sign Industries, Inc., seeking compensation for furnishing "labor and materials associated with signage on numerous projects" from December 2014 to June 2015. In the petition, Advantage Signs identified NW Sign as "a foreign corporation doing business in Louisiana." Advantage Signs further requested that NW Sign be served pursuant to the Louisiana Long Arm Statute. NW Sign did not file an answer to the petition, so on September 11, 2017, Advantage Signs filed a motion for entry of preliminary default, which was entered by the trial court on September 14, 2017. Thereafter, on September 21, 2017, the trial court signed a default judgment against NW Sign in the amount $123,919.87, plus interest, penalties, attorney fees, and court costs, upon finding that Advantage Signs had produced "due proof in support" of its demands.
After securing the default judgment against NW Sign, Advantage Signs then requested that writs of fieri facias and garnishment interrogatories be issued to JP Morgan Chase Bank, NA and CBRE GWS LLC, as entities being indebted to or controlling property belonging to NW Sign. JP Morgan Chase Bank, NA answered the garnishment interrogatories to generally deny being indebted to or controlling any property belonging to NW Sign. CBRE GWS LLC, however, did not respond to the interrogatories propounded to it, and as a result, on February 3, 2018, Advantage Signs filed a "Rule for Judgment" requesting that CBRE GWS LLC be ordered to appear and show cause why judgment should not be rendered against it in the amount of $175,714.73, plus legal interest, court costs, and additional attorney fees for the prosecution of the garnishment proceedings.
Soon after Advantage Signs filed the rule against CBRE GWS LLC, NW Sign filed a "Petition to Annul Judgment and Injunctive Relief with the trial court, asserting that the September 21, 2017 default judgment "was not legally obtained and should be annulled." Based on this allegation, NW Sign requested the issuance of a temporary restraining order and a preliminary injunction to prevent the sheriff of East Baton Rouge Parish from seizing property belonging to it. The trial court issued a temporary restraining order and set the preliminary injunction for a hearing on March 19, 2018. On the date scheduled for the hearing on the preliminary injunction, the parties agreed to submit a motion to have NW Sign's action for nullity and injunctive relief transferred and consolidated with the proceedings for Advantage Signs' action for compensation.
Following transfer and consolidation of the matters, the trial court held a joint hearing on Advantage Signs' rule against CBRE GWS LLC and NW Sign's request for preliminary injunction. After taking the matters under advisement, the trial court signed a judgment on June 21, 2018 denying NW Sign's request for injunctive relief and for revocation of the writs of fieri facia issued by the East Baton Rouge Parish Sheriff. NW Sign appeals that judgment.
In a separate judgment signed on July 23, 2018, the trial court granted the rule filed by Advantage Signs and rendered judgment in favor of Advantage Signs against CBRE GWS LLC "in the principal sum of $123,919.87 together with legal interest from July 24, 2017 until paid, $20,000.00 in attorney's fees, 15% penalties and all costs."
ISSUES PRESENTED FOR REVIEW
1. Whether a default judgment can be rendered upon a petition that does not state the domicile of the defendant[.]
2. Whether a default judgment can be rendered upon a petition that does not provide sufficient information on the face of the petition to determine whether the district court has jurisdiction over the case[.]
3. Whether a default judgment can be rendered upon a petition that was served under Louisiana's Long-Arm Statute (La. R.S. 13:3201
et seq.) when the affidavit of service does not state the place of service or the address of the defendant as required by La. R.S. 13:3205[.]
4. Whether a default judgment can be rendered upon a petition that was served under Louisiana's Long-Arm Statute when the "proof-of-delivery" attached to the affidavit of service does not meet the requirements of La. R.S. 13:3205[.]
5. Whether La. C.C.P. art. 1261 requires a plaintiff to attempt service on a corporation's registered agent prior to resorting to alternate means of service.
DISCUSSION
In the first issue presented for our review, NW Sign contends that the default judgment is invalid because Advantage Signs' petition did not comply with the requirements of La. C.C.P. art. 891. Without addressing the merits of NW Sign's contention, we observe that a petition's failure to conform to the requirements of La. C.C.P. art. 891 is an objection raised pursuant to the dilatory exception, which must be pleaded "in any event, prior to the signing of a final default judgment." See La. C.C.P. arts. 926(A)(4) and 928(A). Hence, as a final default judgment has been signed in this matter, any objections NW Sign may have regarding the failure of Advantage Signs' petition to conform to La. C.C.P. art. 891 are deemed waived and cannot be considered on appeal. See Aguillard v. Chatman, 17-408, p. 1 n.1 (La. App. 3d Cir. 1/31/18), 239 So. 3d 300, 301 n.1.
Likewise, in the second issue presented for review, NW Sign contends that Advantage Signs failed to allege sufficient facts in its petition so as to determine whether the trial court's exercise of personal jurisdiction was proper. A court's improper exercise of in personam jurisdiction is an objection raised pursuant to the declinatory exception, which also must be pleaded "in any event, prior to the signing of a final default judgment." See La. C.C.P. arts. 925(A)(5) and 928(A). Therefore, as a final default judgment has been signed in this matter, any objections NW Sign may have to the trial court exercising jurisdiction over it are also deemed waived and cannot be considered on appeal.
Before considering whether Advantage Signs complied with Louisiana's Long Arm Statute, La. R.S. 13:3201-3207, in serving NW Signs in the underlying matter, we will consider the fifth issue presented for our review, wherein NW Sign contends that La. C.C.P. art. 1261 required Advantage Signs to attempt service of process on the corporation's registered agent for service of process prior to resorting to alternative means of service, including service pursuant to Louisiana's Long Arm Statute. Article 1261 states, in pertinent part:
A. Service of citation or other process on a domestic or foreign corporation is made by personal service on any one of its agents for service of process.The above-recited provisions have been interpreted to mean that proper service on a corporation must be made by personal service on the designated agent for service of process when the designated agent is in Louisiana. Otherwise, service may be properly achieved by service on any officer or director of the corporation named in the last report filed with the secretary state or on any person (if the person is of suitable age, discretion, and is employed by the corporation) at the place where the corporation regularly conducts business or via Louisiana's Long Arm Statute. See Punctual Abstract Co. Inc. v. U.S. Land Title, 09-91, p. 7 (La. App. 5th Cir. 11/10/09), 28 So. 3d 459, 463-64.
B. If the corporation has failed to designate an agent for service of process, if there is no registered agent by reason of death, 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.
At the April 9, 2018 hearing, Ronald Brodie testified that he is the owner and CEO of NW Sign and that he has been the registered agent of NW Sign since 2015. He stated that his address, as well as the principal place of business for NW Sign, is in Moorestown, New Jersey. Mr. Brodie acknowledged that NW Sign did not have a place of business in Louisiana in 2016, 2017, or at the time of the hearing. Thus, the evidence in the record establishes that NW Sign did not have an agent for service of process in Louisiana at the time Advantage Signs filed its petition on July 24, 2017, and as such, Advantage Signs' action of utilizing Louisiana's Long Arm Statute to achieve service was not improper.
Although the trial transcript shows the spelling of Mr. Brodie's name as "Brody," other documents contained in the record indicate the correct spelling to be "Brodie."
The record indicates that the court reporter's spelling of the town as "Morristown, New Jersey" is incorrect.
Now turning to the remaining issues presented for review, we must determine whether Advantage Signs properly complied with the requirements for effecting service via Louisiana's Long Arm Statute, which requirements are found in La. R.S. 13:3204. In particular, La. R.S. 13:3204(A) and (D) state:
A. ... [A] certified copy of the citation ... and of the petition ... shall be sent by counsel for the plaintiff, or by the plaintiff if not represented by counsel, to the defendant by registered or certified mail, or actually delivered to the defendant by commercial courier, when the person to be served is located outside of this state or 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, limited, or small claims jurisdiction.Interpreting La. R.S. 13:3204(A), this court declared:
D. For purposes of this Section, a "commercial courier" is any foreign or domestic business entity having as its primary purpose the delivery of letters and parcels of any type, and which:
(1) Acquires a signed receipt from the addressee, or the addressee's agent, of the letter or parcel upon completion of delivery.
(2) Has no direct or indirect interest in the outcome of the matter to which the letter or parcel concerns.
The requirements of this section, namely that a certified copy of the citation and petition be sent by counsel for plaintiff to defendant by registered or certified mail or actually delivered to defendant, are mandatory. This section has been carefully drafted to insure that Louisiana's "long arm" provisions meet the constitutional mandate of due process which requires a method of service reasonably calculated to give the defendant actual notice. When the plaintiff's counsel sends a certified copy of the citation and petition to the defendant by registered or certified mail, such service has the same legal force and validity as personal service made on the defendant within the state. There is no requirement under Section 3204 for a signed return receipt.Spomer v. Aggressor International, Inc., 00-1646, pp. 14-15 (La. App. 1st Cir. 9/28/01), 807 So. 2d 267, 278, writ denied, 01-2886 (La. 1/25/02), 807 So. 2d 250 (citations omitted).
At the hearing in this matter, Advantage Signs introduced into evidence a copy of the petition that it had filed against NW Sign, along with an affidavit of service, copies of the request for service receipt, and proof of delivery by FedEx. The request for service receipt is addressed to NW Sign at the address Mr. Brodie identified as being the principal place of business for NW Sign in Moorestown, New Jersey. The receipt also displays a tracking number 810407077227. An August 7, 2017 proof of delivery statement from FedEx states that "[t]he following is the proof-of-delivery for tracking number 810407077227." The document goes on to recite that the package was delivered to "S.Brodie" at the "Receptionist/Front Desk" on August 4, 2017. Mr. Brodie testified that the "S.Brodie" referenced on the FedEx receipt was likely his daughter, Samantha Brodie, whom he said had worked for NW Sign as an intern at some point in time.
At the April 9, 2018 hearing on the preliminary injunction, Advantage Signs introduced a second proof of delivery statement from FedEx dated March 15, 2018, which recites a complete delivery address, as well as shows an image of the signature of the person who signed for delivery. NW Sign objected to the evidence because it was not presented to the court at the time the default judgment was confirmed; however, the trial court overruled the objection and admitted the evidence. --------
Advantage Signs also introduced the affidavit of an associate in the law firm that represents Advantage Signs in this matter. In her affidavit, the associate stated that she was contacted by Ron Torretti "on or about November 21, 2017," who indicated that "he was employed by NW Sign and that NW Sign had received the petition, but did not respond to it." Mr. Brodie testified that Mr. Torretti acted as an advisor to the board, that he worked approximately 20 hours per month for the company, and that Mr. Torretti was paid for the work he performed. Thus, based on the foregoing, Advantage Signs sufficiently established that a certified copy of the citation and petition was sent by its counsel to NW Sign by registered or certified mail and that there was receipt of the same by NW Sign. Accordingly, we find no merit in NW Sign's allegation that Advantage Signs' service of the underlying citation and petition did not comply with the Louisiana Long Arm Statute.
CONCLUSION
Based on the foregoing discussion, we find no merit in any of the issues raised by NW Sign. Accordingly, we affirm the June 21, 2018 judgment denying NW Sign's request for the issuance of a preliminary injunction. All costs of this appeal are therefore cast to NW Sign Industries, Inc.
AFFIRMED.