Opinion
NUMBER 2022 CA 0141.
09-16-2022
DADS BR1, L.L.C. v. Pamela CONNER.
E. Scott Hackenberg , Baton Rouge, LA, Counsel for Garnishee/Appellant The Harmony Center, Inc. Richard D. Bankston , Baton Rouge, LA, Counsel for Plaintiff/Appellee Richard D. Bankston, Attorney at Law, Inc. BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.
E. Scott Hackenberg , Baton Rouge, LA, Counsel for Garnishee/Appellant The Harmony Center, Inc.
Richard D. Bankston , Baton Rouge, LA, Counsel for Plaintiff/Appellee Richard D. Bankston, Attorney at Law, Inc.
BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.
GUIDRY, J.
In this garnishment proceeding, the garnishee, The Harmony Center, Inc. (Harmony Center), appeals from a trial court judgment denying its motion titled "Motion to Reopen, Motion for New Trial and/or Petition to Annul Garnishment Judgment." For the reasons that follow, we reverse.
FACTS AND PROCEDURAL HISTORY
On July 20, 2010, Dad's BR1, L.L.C. (Dad's), obtained a judgment against debtor, Pamela Conner, in the sum of $2,090.33, together with interest at the legal rate from date of judicial demand until paid, in a proceeding to recover damages to a rental vehicle that Conner had contracted to rent from Dad's. Thereafter, on November 4, 2019, Dad's successor in interest, Richard D. Bankston, Attorney at Law, Inc. (Bankston), filed a petition for garnishment with interrogatories, naming Harmony Center as garnishee based on Conner's alleged employment by Harmony Center. Service was requested on the registered agent for Harmony Center, John Henchy, by personal service only at 1225 North Boulevard, Baton Rouge, Louisiana 70802. The trial court subsequently ordered Harmony Center to answer under oath and in writing the interrogatories within fifteen days from service of process as provided by law.
When Harmony Center failed to file answers to the interrogatories, Bankston filed a Motion for Judgment Pro Confesso on July 23, 2020, asserting that Harmony Center had been made garnishee and had been served with the garnishment and interrogatories on December 6, 2019, but failed to file its answers to interrogatories. The trial court signed an order setting the matter for hearing on February 3, 2021. Personal service of the foregoing motion and order was also requested on John Henchy at 1225 North Boulevard, Baton Rouge, Louisiana 70802, as the registered agent for Harmony Center.
On the date of the scheduled hearing, no one appeared on behalf of Harmony Center, and the trial court signed a judgment pro confesso on that date in favor of Bankston and against Harmony Center in the full sum of the amount owed, plus interest and attorney's fees. Notice of judgment was mailed to Harmony Center on the same date.
Thereafter, on May 14, 2021, Harmony Center filed a "Motion to Reopen, Motion for New Trial and/or Petition to Annul Garnishment Judgment." Harmony Center alleged that it was not properly served with garnishment interrogatories or notice of a contradictory hearing, and therefore, the trial court should re-open the garnishment proceeding pursuant to La. R.S. 13:3923 or should grant a motion for new trial and/or annul the judgment pro confesso. Following a hearing, the trial court signed a judgment on November 10, 2021, denying Harmony Center's "Motion to Reopen, Motion for new Trial and/or Petition to Annul Garnishment Judgment." Harmony Center now appeals from this judgment.
DISCUSSION
Under the law of this state, a garnishment proceeding is nothing more than a streamlined legal process for obtaining the seizure of property of a judgment debtor in the hands of a third party. Tower Credit, Inc. v. Carpenter, 01-2875, p. 3 (La. 9/4/02), 825 So.2d 1125, 1127. Garnishment proceedings are governed by the Code of Civil Procedure, Article 2411 et seq. Garnishment of the debtor's wages is a procedure specifically governed by La. R.S. 13:3921 et seq., along with the general provisions found in the Code of Civil Procedure. Houma Mortgage & Loan, Inc. v. Marshall, 94-0728, p. 5 (La. App. 1st Cir. 11/9/95), 664 So.2d 1199, 1203. Louisiana Code of Civil Procedure article 2411(A) provides:
The judgment creditor, by petition and after the issuance of a writ of fieri facias, may cause a third person to be cited as a garnishee to declare under oath what property he has in his possession or under his control belonging to the judgment debtor and in what amount he is indebted to him, even though the debt may not be due. He may require the third person to answer categorically and under oath the interrogatories annexed to the petition within the delay provided by Article 2412.
Louisiana Code of Civil Procedure Article 2412 provides, in pertinent part:
A. (1) The sheriff shall serve upon the garnishee the citation and a copy of the petition and of the interrogatories, together with a notice that a seizure is thereby effected against any property of or indebtedness to the judgment debtor.
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C. Service shall be made in the manner provided for service of citation, except that if the garnishee is an individual, service must be personal....
D. The garnishee shall file his sworn answers to the interrogatories within fifteen days from the date of service made pursuant to this Article.
The law of garnishments was amended by 2022 La. Acts. No. 265 effective August 1, 2022. Specifically, La. C.C.P. art 2412 was amended to provide that a garnishee must now file his sworn answers within thirty days from the date of service made pursuant to the Article.
These articles clearly require that sworn answers to the garnishment interrogatories be filed within the appropriate delays. Houma Mortgage & Loan, Inc., 94-0728 at p. 6, 664 So. 2d at 1204.
Louisiana Code of Civil Procedure article 2413 addresses the effects of the garnishee's failure to answer and provides, in pertinent part:
A. If the garnishee fails to answer within the delay provided by Article 2412, the judgment creditor may proceed by contradictory motion against the garnishee for the amount of the unpaid judgment, with interest and costs.... The failure of the garnishee to answer prior to the filing of such a contradictory motion is prima facie proof that he has property of or is indebted to the judgment debtor to
the extent of the judgment, interest, and costs.
B. Judgment shall be rendered against the garnishee on trial of the motion unless he proves that he had no property of and was not indebted to the judgment debtor....
Under the clear wording of the statute, the effect of the garnishee's failure to answer under oath prior to the filing of the contradictory motion to show cause is prima facie proof that the garnishee has property of or is indebted to the judgment debtor to the extent of the judgment, interest, and costs. In other words, the failure of the garnishee to file his answer within the delay provided by law results in the plaintiff being entitled to seek a judgment pro confesso against the garnishee. If the garnishee thereafter fails to present evidence at the contradictory hearing to rebut the judgment creditor's prima facie case (i.e., proof that he had no property of and was not indebted to the judgment debtor), judgment shall be rendered against the garnishee. See Houma Mortgage & Loan, Inc., 94-0728 at pp. 7-8, 664 So. 2d at 1204-1205.
Louisiana Revised Statute 13:3923 provides that the trial court retains jurisdiction in a wage garnishment proceeding to reopen the case. Pursuant to this statutory provision, any party may reopen a garnishment proceeding to amend or modify the judgment. This is true even though the garnishee failed to timely answer the garnishment interrogatories and a default judgment was rendered against him. Houma Mortgage & Loan, Inc., 94-0728 at pp. 9-10, 664 So. 2d at 1206.
In the instant case, Harmony Center alleges that the trial court erred in denying its motion to reopen, as well as its motion for new trial and/or petition to annul garnishment judgment, because service on Harmony Center of the garnishment citation and motion for the judgment pro confesso was insufficient. As a corporation, service of process on Harmony Center was required to be made according to La. C.C.P. art. 1261, which provides:
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.
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:
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(2) By personal service on any employee of suitable age and discretion at any place where the business of the corporation is regularly conducted....
In the instant case, John Henchy was listed with the Louisiana Secretary of State as the agent for service of process for Harmony Center and was the person upon whom service had been requested by Bankston. However, the service returns for the garnishment citation and the motion for judgment pro confesso indicate that individuals other than John Henchy were served with process. The service return for the garnishment citation states that service was made on the defendant, Harmony Center, on December 6, 2019, by personal service on Dot Day at 1225 North Boulevard. The service return was filed into the suit record on December 13, 2019. The service return for the motion for judgment pro confesso states that service was made on the defendant, Harmony Center, on November 4, 2020, by personal service on Barbara Lewis also at 1225 North Boulevard. The service return was filed into the suit record on November 6, 2020.
While service of process may be made on someone other than the agent for service of process in select circumstances, there was no evidence in the record prior to the rendition of the judgment pro confesso establishing that one of those circumstances applied. Accordingly, because service of process directed to a corporate defendant and made on one other than the person authorized to accept service is illegal and without effect, such service is tantamount to no service. State v. Kee Food, Inc., 17-0127, p. 8 (La. App. 1st Cir. 9/21/17), 232 So.3d 29, 34, writ denied, 17-1780 (La. 12/5/17), 231 So.3d 632. 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 and 2002; Brown v. Stratis Construction, LLC, 21-0964, p. 8 (La. App. 1st Cir. 3/7/22), 341 So.3d 640, 646. Therefore, we find that the trial court erred in denying Harmony Center's petition to annul judgment.
The record on appeal contains two affidavits of service of process from an officer in the Baton Rouge City Court Constable's office stating that he served the individuals listed on the service returns, who are employees of Harmony Center, at the 1225 North Boulevard address, which address is the location where Harmony Center regularly conducts business. The officer further certified that he was unable, after due diligence, to serve John Henchy, the designated agent of Harmony Center. However, we note that the affidavits were not executed by the officer until May 14, 2021, which is well after the service of process of these pleadings and after the judgment pro confesso was signed by the trial court, and as such, cannot be relied on to establish sufficient service in support of the judgment pro confesso. See Rabito v. McClain Investments, LLC , 18-0824, p. 6 (La. App. 4 Cir. 1/23/19), 318 So.3d 1056, 1060-1062, writ denied , 19-0314 (La. 4/15/19), 267 So.3d 581.
CONCLUSION
For the foregoing reasons, we reverse the trial court's November 10, 2021 judgment and order that the February 3, 2021, judgment pro confesso be annulled. All costs of this appeal are assessed to Richard D. Bankston, Attorney at Law, Inc.
NOVEMBER 10, 2021 JUDGMENT REVERSED; FEBRUARY 2, 2021 JUDGMENT VACATED.
Wolfe, J., concurs