Opinion
2012 CA 0308
02-25-2013
JOYCE DIXON, individually, and on behalf of minor child AUDREY USSIN, individually and as natural tutrix of her minor child, ASHANTI USSIN, FLORETHA USSIN, and LAKISHA ALFORD v. MARIE CHAMPAGNE and CONTINENTAL INSURANCE COMPANY
Ms. Tonya Smith Lafayette, Louisiana Counsel for Defendant/Appellant Safeway Insurance Company of Louisiana Mr. John B. Sanders Metairie, Louisiana Counsel for Defendant/Appellee Continental Insurance Company Mr. Jeffery Cashe Hammond, Louisiana Counsel for Plaintiffs/Appellees Joyce Dixon, et al.
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 21st Judicial District Court
In and for the Parish of Tangipahoa
State of Louisiana
Docket No. 2004-001466, Division "F"
The Honorable Elizabeth P. Wolfe, Judge Presiding
Ms. Tonya Smith
Lafayette, Louisiana
Counsel for Defendant/Appellant
Safeway Insurance Company of
Louisiana
Mr. John B. Sanders
Metairie, Louisiana
Counsel for Defendant/Appellee
Continental Insurance Company
Mr. Jeffery Cashe
Hammond, Louisiana
Counsel for Plaintiffs/Appellees
Joyce Dixon, et al.
BEFORE: PARRO, HUGHES, AND WELCH, JJ. HUGHES , J.
The judgment before us on appeal granted the plaintiffs' petition to nullify a judgment dismissing their claims against defendant/appellant, Safeway Insurance Company of Louisiana (Safeway). For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
The plaintiffs in this case are Ms. Joyce Dixon, Audrey Ussin, Ashanti Ussin, Floretha Ussin, and Lakisha Alford. Ms. Dixon filed both individually and on behalf of her minor child, Audrey Ussin. Audrey Ussin filed individually and "as the natural tutrix of her minor child Ashanti Ussen." The action originally began with a pro se petition for damages filed by the plaintiffs on April 28, 2004, wherein they alleged that they had been injured as a result of an automobile accident. They named Maria Champagne and her insurer, Continental Insurance Company (hereinafter collectively referred to as Continental), and Ms. Dixon's insurer, Safeway, as defendants in the lawsuit. Continental answered the petition on May 26, 2004; Safeway answered on June 21, 2004.
Pro se is defined as "for himself, in his own behalf; in person." Black's Law Dictionary, 1364 (4th ed. 1951). A plaintiff who files a lawsuit pro se is not represented by an attorney.
Continental then attempted to conduct discovery by mailing interrogatories and requests for production of documents to the plaintiffs at the address listed on their petition. It also set and noticed the depositions of Joyce Dixon, Lakisha Alford, and Floretha Ussin for July 27, 2004. The plaintiffs did not appear for their depositions. Continental's attorney, by way of a proces verbal, explained that Continental's discovery and notices of depositions had not been delivered to the plaintiffs because the house located at the address provided was vacant. Copies of the notices of depositions were attached, along with copies of certified mail envelopes stamped "Attempted Not Known" and the word "vacant" hand-written on them. A second set of certified mail envelopes had been stamped "Not Deliverable as Addressed, Unable to Forward" and were also attached as exhibits to the proces verbal. Finally, Continental's attorney attached copies of the sheriff's returns stating that the plaintiffs had not been served because the "house is empty."
On June 24, 2004 Continental filed a motion to compel discovery. Continental and Safeway each filed an exception raising the objection of lack of procedural capacity. A rule to show cause hearing on Continental's motion to compel and Continental and Safeway's exceptions was set for September 7, 2004. The plaintiffs had still not been located and did not appear at the hearing. At the hearing, it was determined that the plaintiffs had not received the discovery request sent by Continental due to the incorrect address listed on the original pro se petition, and a curator, attorney Charles Christmas, was appointed for the plaintiffs. A judgment to that effect was signed on September 24, 2004. The judgment further ordered that if the plaintiffs still could not be found and did not respond to Continental's outstanding discovery request, "their suit will be dismissed without the necessity of defendants having to refile the motion to compel and/or the dilatory exception."
The defendants objected to Joyce Dixon's authority to appear on behalf of Audrey and to Audrey's authority to appear on behalf of Ashanti. The defendants alleged that the petition failed to allege facts sufficient to establish that Joyce was the natural tutrix of Audrey or that Audrey was the natural tutrix of Ashanti. This issue is not before us on appeal.
On March 16, 2005 Continental filed a motion to dismiss, alleging that the plaintiffs had still not responded to its outstanding discovery requests. On that basis, it moved for the dismissal of plaintiffs' claims against it, as provided by the September 24 judgment. In its motion, Continental advised the court that Mr. Christmas had not yet filed a curator's report and that he had been notified of the filing of its motion to dismiss in order to give him time to respond. An order dismissing the plaintiffs' claims against Continental was signed ex parte that same day. It included a request that service of the judgment be made on Mr. Christmas.
Ex parte is defined as "On one side only; by or for one party; done for, in behalf of, or on the application of, one party only." Black's Law Dictionary, 661 (4th ed. 1951).
Plaintiffs subsequently filed a petition to annul Continental's dismissal. That petition was granted and Continental was reinstated as a party in this suit. That judgment was not appealed.
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In April 2005 Safeway filed a motion for dismissal, alleging that according to the September 24 judgment, "if certain things did not occur plaintiffs' suit would be dismissed and that, as pointed out in the motion filed on behalf of [Continental], said activity has not occurred." Presumably, Safeway was referencing the plaintiffs' failure to respond to Continental's outstanding discovery. Although Safeway had not attempted any discovery of its own, it contended that the dismissal granted to Continental should be granted in favor of all parties, including itself. Safeway failed to request service of the motion on either the plaintiffs or the curator. However, its attorney affixed to the pleadings a "Certificate" wherein he stated that he had sent a copy to counsel for all parties by regular mail. The court signed the order of dismissal ex parte. As with the motion, the order was not served on the plaintiffs and no notice of the judgment was sent to the plaintiffs.
At the plaintiffs' request, Mr. Jeffrey C. Cashe replaced Mr. Christmas as their attorney on May 17, 2010. Mr. Cashe then, on December 13, 2010, filed a petition to annul Safeway's judgment of dismissal for vices of form and substance. A hearing was conducted and the plaintiffs' petition to annul was granted; Safeway's judgment of dismissal was declared null. Judgment was signed on September 12, 2011. Safeway has appealed and assigns error to the trial court's findings that notice by regular U.S. mail was not sufficient and that the nullity action had not prescribed.
LAW AND ANALYSIS
Louisiana Code of Civil Procedure article 2002 provides that a final judgment shall be annulled if it is rendered against a defendant who has not been served with process as required by law. This article has been interpreted to also provide for a nullity action by a defendant-in-rule, as the plaintiffs were in this case. See Zenon v. Liberty Mutual Fire and Casualty Ins. Co., 03-0971 (La. App. 1 Cir. 4/2/04), 871 So.2d 642, writ denied, 04-1549 (La. 10/1/04), 883 So.2d 988; see also Tannery. Travelers Ins. Co., 389 So.2d 721 (La. App. 4 Cir. 1980). An action under Article 2002 does not prescribe and thus, may be brought at any time. See LSA-C.C.P. art. 2002(B).
Louisiana Code of Civil Procedure article 963 provides that if an order applied for by written motion is one to which the mover is clearly entitled without supporting proof, the court may grant the order ex parte and without a contradictory hearing. However, if the mover is not clearly entitled to the relief sought or if the relief sought requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party. LSA-C.C.P. art. 963; Avants v. Kennedy, 02-0830 (La. App. 1 Cir. 12/20/02), 837 So.2d 647, 654, writ denied, 03-0203 (La. 4/4/03), 840 So.2d 1215.
Article 1312 of the Louisiana Code of Civil Procedure provides that, except in certain enumerated exceptions, "every pleading subsequent to the original petition shall be served on the adverse party as provided by Article 1313 or 1314, whichever is applicable." As set forth in LSA-C.C.P. art. 1313, if a pleading requires no appearance or answer, it may be served by the sheriff, or by mail to the counsel of record, or if there is no counsel of record, to the adverse party at his last known address. However, as provided by LSA-C.C.P. art. 1314, a pleading which is required to be served, but which may not be served under Article 1313 because it requires an appearance or answer, shall be served by the sheriff. See Avants, 837 So.2d at 654; Johnson v. Johnson, 94-0018 (La. App. 1 Cir. 11/10/94), 645 So.2d 1260, 1261-62.
The motion that gave rise to the judgment on appeal requested a dismissal of the plaintiffs' claims against Safeway. In the motion, Safeway alleged that it was entitled to a dismissal as a result of a motion to compel filed by Continental. Safeway admitted at the hearing that it did not request service of the motion to dismiss on the plaintiffs or their curator. It presented its request for dismissal to the court without the plaintiffs' knowledge, and the only persons aware of its request were the judge and Safeway's attorney. Safeway was not "clearly entitled" to the dismissal it sought. Moreover, that relief required supporting proof As such, the motion had to be served on the plaintiffs and tried contradictorily. See LSA-C.C.P. art. 963; Avants, 837 So.2d at 654.
No valid judgment can be rendered without a legal citation. Zenon, 871 So.2d at 645. Pursuant to LSA-C.C.P. art. 2002, a judgment rendered against a defendant (or a defendant-in-rule) who has not been served with process as required by law is an absolute nullity. Avants, 837 So.2d at 654, 655. Safeway's failure to comply with the law and serve the plaintiffs with its contradictory motion to dismiss rendered the judgment absolutely null.
CONCLUSION
For the foregoing reasons, the judgment declaring null the April 4, 2005 judgment, is affirmed. All costs of this appeal are assessed to the defendant/appellant, Safeway Insurance Company of Louisiana.
AFFIRMED.