Opinion
No. 95-CA-1310.
January 19, 1996.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, NO. 94-4715, STATE OF LOUISIANA, HONORABLE RICHARD J GANUCHEAU, J.
Michael E. Botnick, Bradford R. Roberts, II, Roberts, Katz Baudier, New Orleans, for Plaintiff/Appellee.
John F. Whitney, Breazeale, Sachse Wilson, New Orleans, for Defendant-Appellant.
Before SCHOTT, C.J., and ARMSTRONG and PLOTKIN, JJ.
Plaintiff, Mitchel R. Dukov, filed a suit to annul a default judgment taken against him by 701 Corporation. The trial court granted a summary judgment in favor of Dukov and 701 has appealed. The issue is whether service of process in the underlying suit which led to the default judgment was in compliance with applicable provisions of the Louisiana Long Arm Statute, LSA-R.S. 13:3201 et seq. We affirm.
701 Corporation was a collection agent for the law firm of Breazeale, Sachse and Wilson. (Breazeale) In the underlying petition, 701 alleged that Breazeale had performed legal services for one Ronald Goux and Nutritional Rehabilitation Limited Partnership. The record contains a copy of an escrow agreement which identifies Nutritional as a Delaware partnership and Mitchel R. Dukov Corporation, an Ohio Corporation, as Nutritional's managing general partner. Dukov signed the agreement as president of the Dukov Corporation and gave the corporation's address as 1991 Crocker Road, Cleveland, Ohio, Attention: Mitchel R. Dukov.
The underlying petition alleged that Dukov was personally liable on the basis of a May 23, 1991, letter written by an Ohio attorney to Breazeale and a May 24, 1991, letter from Breazeale to the Ohio attorney in response. The first letter simply states that Dukov, Goux, and a third individual are raising capital for Nutritional and that upon raising a certain amount Nutritional's debt to Breazeale would be paid in installments. In the response, Breazeale asks for a note to be signed by Nutritional and to be personally guaranteed by Dukov, Goux, and Nolan. The underlying petition then alleges the three individuals "did not object to the conditions set out in the May 24, 1991, letter" and it prays for judgment against Dukov and Goux personally along with Nutritional.
Service of process was effected upon Dukov by certified mail addressed to him at the 1991 Crocker Road address given for the Dukov Corporation in the escrow agreement. The return receipt was signed on December 24, 1991, by one J. Huszai. 701 Corporation took a preliminary default against Dukov on May 19, 1992, and confirmed the default against him for $31,470.75 on July 15, 1992.
On March 25, 1994, Dukov filed his petition to annul 701's judgment. He alleged that the person who signed the receipt for the papers filed by 701 never notified him and he had no notice of the judgment taken against him by default until an ancillary action commenced in Ohio in December 1993.
In support of his motion for summary judgment on his petition to annul, Dukov filed his affidavit stating the following: He resided at 2 Baldwin Lane in Rocky River, Ohio, since August 1989. He has never resided at 1991 Crocker Road in Cleveland. This is the address of the Mitchel R. Dukov Corporation of which he is an employee and an officer. On December 24, 1991, the corporation employed a receptionist name J. Huszai who resigned her employment on December 28, 1991. She was not authorized to accept mail or sign receipts for the corporation or Dukov personally. On December 24, 1991, Dukov was absent from 1991 Crocker Road and he never received any of the documents supposedly received by J. Huszai. He became aware of the proceedings and the default judgment against him only when 701 took action in Ohio to make the judgment executory there.
In response to this affidavit, 701 simply relied upon the escrow agreement and the letter of May 23 and stated that Dukov had never denied the accuracy of the 1991 Crocker Road address given in the agreement.
In its appeal from the summary judgment, 701 Corporation contends that service of process in the underlying suit was in accordance with the Long Arm Statute because it was delivered to the address given by Dukov in the escrow agreement.
The Long Arm Statute provides that a certified copy of the petition and citation shall be sent to the defendant by registered or certified mail. § 3204. The statute further provides that no default judgment can be taken against the defendant without an affidavit of the individual who mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant "to which [affidavit] shall be attached the return receipt of the defendant." § 3205.
In the affidavit of 701's attorney, John F. Whitney, verifying Long Arm Service, he stated that he sent a copy of the petition and citation to Mitchel R. Dukov at 1991 Crocker Road in Cleveland and he attached the return receipt signed by J. Huszai at that address.
The first question is whether the envelope containing the petition and citation was properly addressed 701 Corporation was suing Dukov personally. The Crocker Road address was that of the corporation of which he was the president. His involvement in this affair with Breazeale and 701 Corporation had been in his representative capacity, not in his personal capacity. Breazeale had sought to get Dukov personally involved when it asked him to guarantee the note of the corporation but he declined to do so.
In any event, even if the envelope was properly addressed pursuant to § 3204 by mailing it to Dukov's place of business a problem remains with the requirement of § 3205 that a return receipt of the defendant must be filed in the record before a default is taken. In this case the receipt was signed by one J. Huszai, not by Dukov. Since the address to which it was sent was Dukov's place of business and not his residence we cannot regard the receipt of this third party as a receipt of the defendant Dukov. Thus, we conclude that 701 Corporation took its default without complying with § 3205.
This conclusion is entirely consistent with The Administrators of Tulane Educational Fund v. Ortego, 475 So.2d 764 (La. 1985). In that case where Tulane was suing Ortego to collect a delinquent student loan and mailed the copy of the petition and citation to the school library in California where he worked the court held that service of process was not valid under the Long Arm Statute. The court held that a notice mailed pursuant to R.S. 13:3204 " must be received by defendant or by a person authorized to receive mail on his behalf." The court noted that the librarian who received Ortego's notice was not designated by him to receive his mail, but merely sorted it out for the school and that the defendant apparently did not receive the letter and was not even in California when the letter was received.
In the present case Dukov stated in his affidavit that he never authorized J. Huszai to receive his mail, he was not at the Crocker Road address when the notice was received and he never received the letter or knew anything about it until long after 701 Corporation took the judgment against him.
In the Tulane case the court cites for comparison Howard Avenue Realty Corporation v. McIntosh, 352 So.2d 348 (La.App. 4th Cir. 1978). In that case the receipt for the papers mailed pursuant to the Long Arm Statute was signed by an employee at McIntosh's ranch who had been designated to pick up mail at the distant post office. He was employed full-time as a member of McIntosh's household staff and business. Shortly after service was made McIntosh's attorney sent a request to the plaintiff for an extension of time to file responsive pleadings. Under these circumstances the court held that the service of process was valid under the Long Arm Statute.
The McIntosh case is clearly distinguishable from the present case. There service was made at a ranch where McIntosh resided upon a member of his household staff, McIntosh had authorized this individual to receive his mail, and McIntosh did indeed receive the notice. None of these factors exists in the present case.
Accordingly, the judgment appealed from is affirmed.
AFFIRMED.
PLOTKIN, J., dissents with written reasons.
Because I believe that both the majority and the trial court misapplied Louisiana's Long-Arm Statute, I respectfully dissent.
Mitchel R. Dukov, plaintiff in the instant suit, asserts that a default judgment taken against him by the defendant 701 Corporation is null because the requirements for service of process and entrance of a default judgment against nonresident defendants under Louisiana's Long-Arm Statute, LSA-R.S. 13:3201 et seq., have not been met.
Dukov makes two basic arguments, both of which are accepted by the majority. First, he claims that the requirements for service of process under LSA-R.S. 13:3204 were not fulfilled because the service was delivered to his business address, rather than to his home, to a receptionist at the office. Second, he claims that the requirements for entrance of a default judgment under LSA-R.S. 13:3205 were not fulfilled because a "return receipt of the defendant" was not attached to the affidavit accompanying the motion for default judgment. In my new, neither argument has merit.
Service of process
LSA-R.S. 13:3204 (A)j relative to service of process under the Long-Arm Statute, provides as follows:
A certified copy of the citation and of the petition in a suit under R.S. 13:3201 shall be sent by counsel for the plaintiff to the defendant by registered or certified mail, or actually delivered to the defendant 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 jurisdiction.
The instant case involves a service of process in which the express requirements of the above statute unquestionably were all met — a certified copy of the citation and petition were sent to the defendant by registered or certified mail, to the address that the defendant himself gave as his address on the escrow agreement which he previously signed to prevent prosecution on the issue raised by the suit. The statute does not requite that the service be sent to the defendant at his home address, as the majority implies.
Nevertheless, the defendant claims by affidavit that the service of process was improper because he did not personally receive service; rather, service was received by a receptionist in his office. In support of this position, he cites the Louisiana Supreme Court's decision in Administrators of Tulane Educational Fund v. Ortego, 475 So.2d 764 (La. 1985), which states that notice "must be received by defendant or by a person authorized to receive mail on his behalf." Id. at 764. The defendant claims that the receptionist who received service of process was not authorized to receive his mail, just as the librarian who received the service in Ortego was not authorized to receive the defendant's mail. He claims, and the majority holds, that the default judgment issued against him should be nullified because the service was received by an unauthorized person, just as in the Ortego case.
I disagree. I believe that the instant case is distinguishable from the Ortego case, where the service of process was received at the defendant's place of employment by a fellow employee who sorted the mail. Further, the suit in Ortego sought payment if a personal debt which was complete unrelated to the defendant's business. In the instant case, the service was received by the defendant's receptionist, at his place of business, which was the address he gave to the plaintiffs when the escrow agreement was signed. In my view, a receptionist who works for a defendant should be considered as a matter of law as an authorized person to receive service of process for the defendant. The defendant's statement that he never authorized Huszai to receive his mail should not be allowed to overcome this fact. Moreover, although the plaintiff in the instant case seeks to hold the defendant personally liable, the debt which is the subject of the suit is not unrelated to the defendant's business, as in Ortego.
Unlike the majority, I believe that the instant case is more analogous to Howard Avenue Realty Corp. v. McIntosh 352 So.2d 348 (La.App. 4th Cir. 1977), writ denied, 354 So.2d 1376 (La. 1978), than to Ortego. In McIntosh, the service was received by McIntosh's full-time employee who had been designated to pick up mail. The receptionist who worked for Dukov in the instant case is more similar to the full-time employee working for McIntosh than the co-employee who worked with Ortego. That fact is the distinguishing feature between the two cases.
Return receipt
Dukov's second argument is that, even if the service of process was correct, the default judgment was nevertheless improperly taken because the defendants failed to meet the requirements of LSA-R.S. 13:3205, which states as follows:
No default judgment can be rendered against the defendant until thirty days after the filing in the record of the affidavit of the individual who either:
(a) 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 mails, to which shall be attached the return receipt of the defendant; or
(b) actually delivered the process to the defendant, showing the date, place, and manner of delivery.
(Emphasis added.)
Dukov claims, and the majority holds, that the default judgment was improperly entered because "the receipt was signed by one J. Huszai, not by Dukov."
Again, reference to the McIntosh case shows the error in this holding. In McIntosh, the court correctly held that LSA-R.S. 13:3205's requirement that a return receipt of the defendant be attached to the affidavit does not "require personal service on the defendant." McIntosh, 352 So.2d at 351 (emphasis in original). I believe that the McIntosh case can only be interpreted to mean that a return receipt signed by any person authorized to receive the defendant's mail is sufficient to meet the requirements of LSA-R.S. 13:3205.
Of course, the language "person authorized to receive mail on [the defendant's] behalf" is not found in the McIntosh case, but in the Ortego case. However, it seems an appropriate description of the employee working for the defendant in the both the McIntosh case and the instant case. Considering the two cases together, the following rules emerge which apply to the instant: (1) The requirements for service of process under Louisiana's Long-Arm Statute are met if the notice is received by the defendant or a person authorized to receive mail on behalf of the defendant. (2) The requirement that the "return receipt of the defendant" be attached to the affidavit as a prerequisite to the proper entrance of a default judgment against a non-resident defendant is fulfilled if the return receipt is signed by the defendant or a person authorized to receive mail on the defendant's behalf.
The Ortego decision, relied upon by the majority, is simply a two-paragraph per curiam decision which includes almost no analysis. The only legal principle the Ortego case can logically be considered to stand for is that receipt of service by a co-employee who works with a defendant at his place of business on a personal debt having nothing to do with that business is insufficient to meet the requirements of LSA-R.S. 13:3205. The case is summarized in the statement "[I]f mailed, the notice must be received by defendant or by a person authorized to receive mail on his behalf" Ortego, 475 So.2d at 764. The Ortego case does not even address the requirements of LSA-R.S. 13:3205, which the majority uses as its primary reason for reversing the judgment in the instant case. Ortego, though decided subsequent to McIntosh by a higher court, certainly cannot be considered to have overruled McIntosh. McIntosh is binding precedent since it was decided by this court. Thus, the two cases should be read together, which leads one to the rules stated above.
Accordingly, I would find that the trial court improperly granted the petition for nullity and would reinstate the default judgment.