Opinion
2022 CA 0406
11-04-2022
ANGELA JANAE KING v. PATRICK JAYLIN KING AND HOYT ALEXANDER KING, II
Albert A. Thibodeaux New Orleans, Louisiana Counsel for Defendants/Appellants Patrick Jaylin King and Hoyt Alexander King, II Wendra J. Moran Baton Rouge, Louisiana Counsel for Plaintiff/Appellee Angela Janae King
NOT DESIGNATED FOR PUBLICATION
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No. C710069 The Honorable Richard "Chip" Moore, Judge Presiding
Albert A. Thibodeaux
New Orleans, Louisiana
Counsel for Defendants/Appellants
Patrick Jaylin King and
Hoyt Alexander King, II
Wendra J. Moran
Baton Rouge, Louisiana
Counsel for Plaintiff/Appellee
Angela Janae King
BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
THERIOT, J.
In this case involving a petition for judicial partition, the defendants appeal a default judgment in favor of the plaintiff. For the reasons set forth herein, we vacate the trial court judgment and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
On July 27, 2021, Angela Janae King filed a petition for judicial partition of immovable property she co-owns with her siblings, Hoyt Alexander King, II and Patrick Jaylin King. Because Hoyt and Patrick reside out of state, service of the petition was made by the Louisiana Long Arm Statute, La. R.S. 13:3201, et seq. The affidavits of service required by La. 13:3205 were filed in the record of this matter on October 1, 2021 (Hoyt) and November 2, 2021 (Patrick).
Louisiana Revised Statutes 13:3205 provides:
No default judgment may be rendered against the defendant and no hearing may be held on a contradictory motion, rule to show cause, or other summary proceeding, except for actions pursuant to R.S. 46:2131 et seq., until thirty days after the filing in the record of the affidavit of the individual who has done any of the following:
(1) Mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant, with sufficient postage affixed, and the date it was deposited in the United States mail, to which shall be attached the return receipt of the defendant.
(2) Utilized the services of a commercial courier to make delivery of the process to the defendant, showing the name of the commercial courier, the date, and address at which the process was delivered to the defendant, to which shall be attached the commercial courier's confirmation of delivery.
(3) Actually delivered the process to the defendant, showing the date, place, and manner of delivery.
On December 20, 2021, the trial court signed a default judgment in favor of Angela and against Hoyt and Patrick. The judgment notes that more than thirty days have passed following the filing of the affidavit of service in the record and that no answer or responsive pleading has been filed by Hoyt or Patrick. The judgment ordered the listing, sale, and equal division of the proceeds of the listed properties. The judgment further ordered that the costs of the proceedings and reasonable attorney fees in the amount of $3,722.75 be paid out of the proceeds of the sale of the property prior to distribution of the proceeds to the parties.
Hoyt and Patrick appealed the December 20, 2021 default judgment, assigning the following trial court errors:
I. The trial court committed legal error in rendering a final default judgment against the Appellants/Defendant[s] without complying with [La. R.S.] 13:3204 and 13:3205. No default judgment may be rendered against a defendant until thirty days after the filing in the record of the affidavit of the individual who mailed process to the Defendants or utilized a commercial courier to effect actual delivery.
II. The trial court committed legal error in rendering a final default judgment without compliance with the mandatory provisions of Articles 1701-1703 of the Louisiana Code of Civil Procedure.
III. The trial court committed legal error in rendering a final default judgment against absentees without including language in the final default judgment mandated by [Louisiana Code of Civil Procedure] Articles 4626 and 4626.1.
DISCUSSION
At the time the judgment in this case was issued, default judgments were governed by La. C.C.P. arts. 1701-1704. Under the applicable provisions, if a defendant fails to answer or file other pleadings within the time prescribed by law or by the court, a preliminary default may be entered against him. The preliminary default may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the preliminary default shall consist merely of an entry in the minutes. La. C.C.P. art. 1701(A). A judgment of preliminary default must be confirmed by proof of the demand that is sufficient to establish a prima facie case and that is admitted on the record prior to confirming the entry of a final default judgment. If no answer or other pleading is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of preliminary default. La. C.C.P. art. 1702(A).
Acts 2021, No. 174, §5 and §6 repealed La. C.C.P. art. 1701 and amended and reenacted arts. 1702, 1702.1, 1703, and 1704 relative to default judgments. These changes apply to default judgments rendered on or after January 1, 2022. Acts, 2021, No. 174, § 7. Thus, the default judgment at issue in this case, rendered December 20, 2021, is governed by the law in effect prior to this amendment.
Strict compliance is required with the procedural requirements of La. C.C.P. art. 1702 in order to obtain a valid confirmation of a preliminary default. Allen v. First Castle Fed. Credit Union, 2019-0952, p. 12 (La.App. 1 Cir. 9/2/20), 312 So.3d 634, 641, writ denied, 2020-01285 (La. 1/12/21), 308 So.3d 712. A final default judgment obtained without a valid preliminary default is an absolute nullity. See La. C.C.P. art. 2002(A)(2); Brown v. Stratis Construction, LLC, 2021-0964, p. 8 (La.App. 1 Cir. 3/7/22), 341 So.3d 640, 645.
Our review of the record reveals, and counsel for plaintiff concedes, that no preliminary default was taken against the defendants in this matter. Additionally, the record contains no evidence of compliance with the procedural requirements of La. C.C.P. art. 1702. As such, the default judgment before us on appeal is an absolute nullity and must be vacated.
As we have found that the judgment is an absolute nullity, we pretermit any discussion of the remaining assignments of error.
DECREE
For the reasons set forth above, we vacate the December 20, 2021 default judgment. This matter is remanded to the trial court for further proceedings. All costs of this appeal are assessed to plaintiff-appellee, Angela Janae King.
VACATED AND REMANDED.