Stephen W. Binning and Kristen Binning v. Jerry Boudinot Construction, L.L.C., All State Plastering, Inc., Penn America Insurance Company and XYZ Insurance Company

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2024 CA 0500

STEPHEN W. BINNING AND KRISTEN BINNING

VERSUS

JERRY BOUDINOT CONSTRUCTION, LLC, ALL STATE
PLASTERING, INC., PENN AMERICA INSURANCE COMPANY
AND XYZ INSURANCE COMPANY

Judgment Rendered:

On Appeal from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 593235

Honorable Kelly Balfour, Judge Presiding

Roy H. Maughan, Jr. Attorneys for Plaintiff in
Namisha D. Patel Reconvention -Appellant,

Joshua D. Roy Robert Digirolamo
Connor S. Thomas
Baton Rouge, LA

Richard D. Bankston Attorneys for Defendant in

Abbey S. Knight Reconvention -Appellee,
Baton Rouge, LA Stephen W. Binning

Brian J. Prendergast Attorney for Defendant in
Baton Rouge, LA Reconvention -Appellee,

Kristen Binning

David C. Bolton Attorney for Defendant in
Baton Rouge, LA Reconvention -Appellee,
Deborah A. Berthelot

BEFORE: THERIOT, CITUTZ, AND HESTER, JJ.

HESTER, J.

This is an appeal from a trial court judgment dismissing with prejudice all

claims asserted by plaintiff in reconvention on motions for involuntary dismissal

during a bench trial. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 4, 2010, Stephen and Kristen Binning ( sometimes collectively

referred to as the " Binnings") through their attorney, Deborah Berthelot

Berthelot"), filed suit against Jerry Boudinot Construction (" Boudinot"), All State

Plastering, Inc. (" All State"), and multiple insurers after discovering several soft,

rotten sections in the exterior walls of their home apparently caused by moisture

trapped under the stucco that had not been sealed properly, which affected 75% of

the structure of the Binnings' home.' The cost for the repair of the complete failure

of the stucco system of the home was estimated to be $ 65, 000. 00.

According to the Binnings, the contract with Boudinot was for the

construction of their custom dream home with each feature being carefully selected

to enhance their family life with their children. The damages to the home were

extensive and required emergency repairs to stop water intrusion, resulting in the

walls being torn down and exposing rot and mold behind the exterior finish.

According to a certified moisture specialist and certified building envelope

inspector, " the original stucco installation was faulty and lead [ sic] to significant

physical damage of the stucco, underlying wood substrate, flashings, vapor retarder

and structural framing members," and " the home started leaking immediately after

completion of the stucco cladding system."

Boudinot was dismissed from the suit. See Binning v. Boudinot, 2011- 1091 ( La. App.
1st Cir. 12/ 21/ 11), 2011 WL 6779597 ( unreported) ( affirming the trial court' s judgment sustaining

Boudinot' s exception raising the objection of peremption and dismissing the Binning' s claims
against Boudinot with prejudice). Thereafter, the insurers were dismissed.

2

During this time, the entire family was affected. Kristen was prescribed anti-
The Binnings
anxiety medication, and the Binnings started marriage counseling.

eventually separated, never reconciled, and obtained a judgment of divorce on

August 5, 2015.

After filing an answer on May 25, 2011, on behalf of All State, All State' s
counsel filed a motion to withdraw as counsel of record " due to the continued failure

of the client to respond to Mover after repeated unsuccessful attempts in which to

contact the client ...." All State' s counsel was permitted to withdraw by order dated

June 11, 2013.

On January 15, 2014, the Binnings amended their petition to add Robert

Digirolamo, the sole shareholder of All State, as a defendant in his individual

capacity. The Binnings alleged that Digirolamo was the " owner, sole shareholder,

employee and only person who applied stucco to the Binning home," and that

Digirolamo' s work was substandard, failing to comply with either required industry
2
standards or the applicable building standards. Ultimately, on September 3, 2014,

the Binnings filed a motion for appointment of a curator, maintaining that

Digirolamo and All State ( for whom Digirolamo is the registered agent for service

of process) were absentees from East Baton Rouge Parish and evading service. The

trial court appointed a curator, who filed an answer on behalf of Digirolamo and All

State, and was relieved as curator after completing her duties.

On April 28, 2016, the Binnings moved for summary judgment against

Digirolamo and All State, requesting service on the former curator. Realizing the

error, the Binnings again moved to have a curator appointed to represent the absent

defendants, Digirolamo and All State. The trial court appointed a curator, who filed

a "[ r] esponse" to the Binnings' motion for summary judgment. The response

2
According to documentation from the Louisiana State Licensing Board for Contractors,
neither Digirolamo nor All State were ever licensed contractors.

N

indicated that the curator' s attempts to contact defendants were unsuccessful and,

consequently, that Digirolamo and All State did not oppose the motion for summary
judgment. The trial court granted the motion for summary judgment, rendering a

money judgment in favor of the Binnings and against Digirolamo and All State on
February 27, 2017.

On June 11, 2017, Berthelot sent letters to the East Baton Rouge Parish Clerk

of Court (the " Clerk") requesting issuance of writs offierifacias in order to execute

on the February 27, 2017 judgment in favor of the Binnings. Thereafter, the Clerk

issued writs of fieri facias to the sheriffs of East Baton Rouge Parish and

Plaquemines Parish on July 19, 2017 and July 21, 2017, respectively, commanding

the seizure and sale of Digirolamo and All State' s immovable property.' The sheriff

of East Baton Rouge Parish seized two parcels of immovable property on July 21,

2017, and set the date for the sheriff' s sale. While the Clerk transmitted the writs of

fieri facias and supporting documentation to the sheriff of Plaquemines Parish on

July 21, 2017, requesting that the writ be executed and served, the record does not
contain a notice of seizure, which would show that the sheriff seized the parcel of

immovable property in Plaquemines Parish.'

On November 61 2017, counsel for Digirolamo, Roy H. Maughan, Jr.

Maughan"), transmitted correspondence to Berthelot, informing her that a review

of the record indicated that " a procedural error was committed, which makes the

February 27, 2017] judgment invalid," specifically questioning service of the

According to DiGirolamo, one of the properties in East Baton Rouge Parish was a
commercial building, while the other was a residence he owned with his former wife, who
occupied the property as her primary domicile. The property in Plaquemines Parish was
DiGirolamo' s primary residence.
a A notice of seizure filed and recorded in Plaquemines Parish on January 1, 2018, is
referenced as being an exhibit to the nullity judgment dated January 3, 2019, yet no exhibit is
attached to the judgment. Additionally, on January 16, 2018 and February 20, 2018, The
Plaquemines Gazette contained public notices for the sheriff' s sale of DiGirolamo' s parcel of
immovable property, indicating that the sheriff was proceeding to sell the property "[ b] y virtue
and in obedience to a WRIT OF FIERI FACIAS directed to [ the sheriff] by the ... Twenty -Fifth
Judicial District Court in and for the Parish of Plaquemines, dated OCTOBER 21, 2017 ..."

M

Binnings' amended petition on Digirolamo through the sheriff. Thereafter,

Digirolamo filed a " Motion and Incorporated Memorandum for Recognition of

Homestead Exemption" relative to the property in Plaquemines Parish.' The trial

court granted the motion in a judgment signed on January 31, 2018, decreeing that

the Plaquemines Parish property constituted the homestead of Digirolamo and was

exempt from seizure in the amount of $35, 000. 00, exclusive of costs of sale" and

further ordering that the amount of $ 35, 000.00 be retained and set aside for

Digirolamo if the property was auctioned. According to Digirolamo, the sheriff' s

sale was reset for February 21, 2018, but was eventually stopped.

On August 9, 2018, Digirolarno and All State through their counsel, Maughan,

filed a " Declinatory Exception of Insufficiency of Service of Process and Motion for

Summary Judgment Annulling the Judgment Rendered February 27, 2017," seeking

to annul the February 27, 2017 judgment granting the Binnings' motion for summary

judgment.' The Binnings opposed the exception and motion. After a hearing on

December 3, 2018, the trial court granted the motion.' The trial court signed a

judgment on January 3, 2019, annulling the February 27, 2017 judgment pursuant to

La. Code Civ. P. art. 2002 and cancelling the inscriptions of the February 27, 2017

judgment and the notices of seizure in East Baton Rouge Parish and Plaquemines

Parish.

5 Berthelot filed an opposition to the motion, arguing that Digirolamo rented out the
property in Plaquemines Parish and also claimed a homestead exemption on the residential
property in East Baton Rouge Parish. Berthelot noted that she never received the motion and only
received notice ofthe hearing from the trial court. She attempted to contact Maughan on December
1, 2017, and left a message with his office, informing him that her office had moved and of the
failure to receive the motion. Berthelot also requested that the motion be transmitted to her. As
of the date the opposition was transmitted to the court on December 29, 2017, Berthelot had not
received a copy of the motion and Maughan had not returned her call.
6 All State' s second counsel of record withdrew on May 12, 2016, " due to a conflict."
7 In his brief filed with this court, Digirolamo references a suit to annul filed by Maughan
on April 10, 2018, and a copy of such suit was introduced as an exhibit at trial; however, the suit
to annul is not otherwise contained in the record. No order was attached to the suit, requesting that
the matter be set for hearing. Notwithstanding, the minutes of court and the trial court' s judgment
annulling the February 27, 2017 judgment only reference Digirolamo and All State' s motion for
summary judgment.

5

On February 20, 2019, Digirolamo filed a reconventional demand against the

Binnings and a third -party demand against Berthelot, alleging damages resulting
from the wrongful seizure of Digirolamo' s property " due to the acts of Defendants

I
Digirolamo alleged the seizures
in Reconvention and their attorney, Berthelot."

were " intentional, malicious and/ or in bad faith, and at the least negligent."

Stephen and Kristen Binning each answered the reconventional demand,

denying the allegations contained therein. Berthelot filed a peremptory exception

asserting the objection of no cause of action, maintaining that she owed no duty to
Digirolamo, that the third -party demand failed to state a cause of action for

intentional tort, and that at all relevant times she was operating as a limited liability

company ( Deborah Berthelot, LL{:). The trial court sustained the exceptions but

allowed Digirolamo the opportunity to amend the third -party demand. On October

23, 2020, Digirolamo filed an amended third -party demand, providing additional

allegations relative to the intentional tort claims against Berthelot, to wit:

Berthelot was required to have the legal knowledge, skill, thoroughness, and

preparation reasonably necessary;

Berthelot knew or should have known that the trial court' s jurisdiction over

Digirolamo required service of process on him or an attorney appointed to defend

him;

Berthelot knew or should have known that any judgment rendered against

Digirolamo was absolutely null;

Berthelot knew or should have known that she did not request service of

process on him or an attorney appointed to defend him;

Berthelot was made aware of the lack of service on Digirolamo, which was

a verifiable fact evident from the record of the proceeding;

s We note that Digirolamo' s reconventional and third -party demands were filed nineteen
months after the writs offieri facial were issued.

M

Berthelot demonstrated a blatant disregard for Digirolamo' s rights of

procedural due process in instituting proceedings to collect on an absolutely null

judgment;

Berthelot' s conduct and actions in attempting enforcement of an absolutely

null judgment were intentional because they were deliberate and calculated;

Berthelot' s failure to cease collection activities after being apprised of the

service of process issue showed calculated misconduct in violation of the law; and

Berthelot had a professional and legal duty not to intentionally injure or

violate Digirolamo' s legal rights and rights of procedural due process.

As a result of the alleged intentional acts of Berthelot, Digirolamo alleged he

suffered embarrassment, humiliation, mental anguish, worry, mental trauma,

depression, and inconvenience and sought compensation for such damages as well

as attorney' s fees and costs.

Ultimately, Digirolamo' s reconventional and third -party demands against the

Binnings and Berthelot, respectively, proceeded to a bench trial on December 13,

2023. The trial court received documentary evidence and heard testimony given by

Digirolamo and Berthelot. At the conclusion of Digirolamo' s case, Stephen and

Kristen Binning and Berthelot rnoved for involuntary dismissal, arguing that

Digirolamo did not carry his burden of proof on his claims against the defendants

and, further, that he failed to prove compensable damages. Ultimately, the trial court

granted all three motions for involuntary dismissal, ordering that costs be split

amongst all the parties. The judgment memorializing the trial court' s ruling was

signed on January 2, 2024.

Digirolamo appealed, assigning as error the trial court' s grant of Stephen and

Kristen Binning' s and Berthelot' s motions for involuntary dismissal; determination

7

that Digirolamo failed to prove his case -in -chief; failure to award damages to

Digirolamo; and dismissal of Digirolamo' s claims with prejudice.'

LAW AND DISCUSSION

Louisiana Code of Civil Procedure article 1672( B) provides that in an action

tried by the court without a jury, any party, without waiving his right to offer
evidence in the event the motion is :not granted, may move for involuntary dismissal

at the close of plaintiff' s case on the ground that upon the facts and law, plaintiff has

shown no right to relief. In determining whether involuntary dismissal should be

granted, the appropriate standard is whether the plaintiff has presented sufficient

evidence in his case -in -chief to establish a claim by a preponderance of the evidence,

which means taking the evidence as a whole, the fact or cause sought to be proved
is more probable than not. Key Office Equip., Inc. v. Zachary Cmty. Sch. Bd.,

2015- 1412 ( La. App. 1st Cir. 4/ 15/ 16), 195 So. 3d 54, 59, writ denied, 2016- 0841

La. 6/ 17/ 16), 192 So. 3d 772.

The trial court' s grant of an involuntary dismissal is subject to the manifest

error standard of review. Broussard v. Voorhies, 2006- 2306 ( La. App. 1st Cir.

9/ 19/ 07), 970 So. 2d 1038, 1041, writ denied, 2007- 2052 ( La. 12/ 14/ 07), 970 So. 2d

535. In order to reverse a grant of involuntary dismissal, an appellate court must

find, after reviewing the record, that there is no factual basis for the trial court' s

finding or that the finding is clearly wrong. Id. at 1042. See also Stobart v. State
The issue to be
through Dep' t of Transp. & Dev., 617 So. 2d 880, 882 ( La. 1993).

resolved is not whether the trial court was right or wrong, but whether its conclusion

9 Digirolamo also assigned as error the trial court' s consideration and determination that
the claims against Berthelot were prescribed, noting that the trial court " ostensibly raised the
exception of prescription on its own motion, and found ... Digirolamo' s claims ... untimely."
Initially, we note that the trial court could not and did not supply the objection of prescription on
its own. La. Code Civ. P. art. 927( B). Moreover, the judgment appealed did not contain any
determination that Digirolamo' s claims were prescribed. Appellate courts review judgments and
not reasons for judgment. Tucker v. Chatfield, 2023- 0343 ( La. App. Ist Cir. 11/ 9/ 23), 379 So. 3d
678, 683. In fact, judgments are often upheld on appeal for reasons different than those assigned
by a trial court. Id. at 684. Accordingly, we pretermit discussion of this assignment of error.

was a reasonable one. Pontchartrain Nat. Gas Sys. v. Texas Brine Co., LLC,

2018- 0631 ( La. App. 1st Cir. 7/ 3/ 19), 281 So. 3d 1, 5, writ denied, 2019- 01423 ( La.

11/ 12/ 19), 282 So. 3d 224 ( relying on Stobart, 617 So.2d at 882). Even though an

appellate court may feel its own evaluations and inferences are more reasonable than

the trial court' s, reasonable evaluations of credibility and reasonable inferences of

fact should not be disturbed upon review where conflict exists in the testimony.

Stobart, 617 So. 2d at 882.

Because an involuntary dismissal of an action pursuant to La. Code Civ. P.

art. 1672( B) is based on the facts and law, a review of the substantive law applicable

to Digirolamo' s case is necessary. Pontchartrain Nat. Gas Sys., 281 So. 3d at 5.

Here, Digirolamo asserted a claim for damages for wrongful seizure and intentional

tort.

Wrongful Seizure

The cause of action for damages for wrongful seizure is a tort claim based on

La. Civ. Code art. 2315. Tchefuncte Harbour Townhome Ass' n, Inc. v.

Costanza, 2015- 0524 ( La. App. 1st Cir. 11/ 6/ 15), 2015 WL 6842117 * 4

unpublished) (
relying on Grocery Supply Co. v. Winterton Food Stores, 31, 114

La. App. 2d Cir. 12/ 9/ 98), 722 So. 2d 94, 97). In order for a plaintiff to prevail under

La. Civ. Code art. 2315 for wrongful seizure, he must first prove that the seizure was

illegal or wrongful. Taylor v. Hancock Bank of Louisiana, 95- 0666 ( La. App. 1

Cir. 11/ 9/ 95), 665 So. 2d 5, 7. In order to recover damages therefor, the damages

must have been caused by the fault of another; there must be a duty owed by the

WE

defendant to the plaintiff; a breach of this duty; and causation. 10 Id. A negative

answer to any of the inquiries of the duty -risk analysis results in a determination of
923
no liability. Lemann v. Essen Lane Daiquiris, Inc., 2005- 1095 ( La. 3/ 10/ 06),

So. 2d 627, 633. " Fault" as used in La. Civ. Code art. 2315 encompasses more than

negligence. It is the breach of a duty owed by one party to another under particular

facts and circumstances of a given case. Taylor, 665 So. 2d at 7. Recoverable

damages for the tort of wrongful seizure can include damages in compensation for

embarrassment, humiliation, mental anguish, and worry. Id.

A writ offierifacias is a method of execution of a money judgment in which

the property of the judgment debtor is seized and sold. See La. Code Civ. P. art.

2291. The rules and procedures governing writs offierifacias are set forth in articles

2291 et seq. of the Louisiana Civil Code of Procedure, Book IV entitled " Execution
of Judgments." An essential requirement to the issuance of a writ offierifacias is a

money judgment. King v. Illinois Nat. Ins. Co., 2008- 1491 ( La. 4/ 3/ 09), 9 So. 3d

780, 786. Pursuant to La. Code Civ. P. art. 2291, a judgment for the payment of

money may be executed by a writ offieri facias directing the seizure and sale of

property of the judgment debtor. The act of seizing through the execution of a

judgment constitutes an involuntary relinquishment of a judgment debtor' s interests.

King, 9 So. 3d at 787. Accordingly, strict construction and application of the

provisions relating to writs offierifacias, as with other provisions pertaining to the

execution ofjudgments, are warranted. Id.

to See also Mathieu v. Imperial Toy Corp., 94- 0952 ( La. 11/ 30/ 94), 646 So. 2d 318, 322
to state a claim under La. Civ. Code art. 2315, " a plaintiff must prove five separate elements: ( 1)
the defendant had a duty to conform his or her conduct to a specific standard of care ( the duty
element); ( 2) the defendant failed to conform his or her conduct to the appropriate standard ( the
breach of duty element); ( 3) the defendant' s substandard conduct was a cause -in -fact of the
plaintiff' s injuries (the cause -in -fact element); ( 4) the defendant' s substandard conduct was a legal
cause of the plaintiff's injuries ( the scope of liability or scope of protection element); and, ( 5)
actual damages ( the damages element).").

10

Digirolamo' s sole basis for asserting the seizure was wrongful is the fact that

the February 27, 2017 money judgment was declared absolutely null on January 3,
2019. An absolutely null judgment is never valid and any proceedings conducted

under the authority of a null judgment are absolutely void. Succession of Crute v.

8/ 30/ 17), 226 So. 3d 1161, 1177- 78.
Crute, 2016- 0836 ( La. App. 1st Cir.

Accordingly, it is clear that the writs offieri facias and the subsequent seizures of

Digirolamo' s property pursuant to the absolutely null judgment are void in this case.
However, this court has stated that a judgment rendered absolutely null " is as though

it were never rendered." Frisard v. Autin, 98- 2637 ( La. App. 1 st Cir. 12/ 28/ 99),

747 So.2d 813, 820, writ denied, 2000- 0126 ( La. 3/ 17/ 00), 756 So. 2d 1145. Mindful

of the strict construction of the provisions relating to writs of fieri facias, we

conclude that the seizure of Digirolamo' s property under a writ offierifacias issued

as a result of the February 27, 2017 null judgment was wrongful.

However, a finding that the seizure was wrongful does not automatically

entitle Digirolamo to recover damages. Rather, he was required to prove his case

for damages under La. Civ. Code art. 2315. Digirolamo was required to prove that

his damages were caused by the fault of another, which encompasses more than

negligence. Digirolamo further had to prove by a preponderance of the evidence

that Stephen and Kristen Binning or Berthelot breached a duty owed to him under

the particular facts and circumstances of this case. See Taylor, 665 So. 2d at 7. In

granting Stephen and Kristen Binning and Berthelot' s motions for involuntary

dismissal, the trial court implicitly found that plaintiff failed to present sufficient

evidence in his case -in -chief to establish his claim for damages for wrongful seizure

by a preponderance of the evidence. After a thorough review of the record and

evidence presented, we are unable to conclude that the trial court was manifestly

erroneous. See Broussard, 970 So.2d at 1041.

11

Because the wrongful seizure in this case stems from the fact that the money

judgment was rendered absolutely null, we find that, under the very particular facts

and circumstances of this case, the Binnings themselves cannot be found to be the

legal cause of the wrongful seizure,. Todd v. State Through Dep' t of Soc. Servs.,

Office of Cmty. Servs., 96- 3090 ( La. 9/ 9/ 97), 699 So. 2d 35, 39 (" Every negligence

case must be decided on its own facts and circumstances."). Rather, it was the

mistake and actions of their attorney, Berthelot, that caused the February 27, 2017

judgment to be declared absolutely null, i.e., her failure to properly request service

of all relevant petitions on Digirolamo. Accordingly, we find the trial court' s

conclusion was reasonable under the specific facts and circumstances of this case

and that the trial court did not err in granting Stephen and Kristen Binnings' motions

for involuntary dismissal." See Pontchartrain Nat. Gas Sys., 281 So. 3d at 5.

Intentional Tort

In Penalber v. Blount, 550 So.2d 577, 581 ( La. 1989), the supreme court held

that a non -client generally cannot hold his adversary' s attorney personally liable for

11 Moreover, we do not find any error in the trial court' s ruling to the extent it concluded
that Digirolamo failed to establish his damages by a preponderance of the evidence.
Digirolamo is not legally entitled to attorney' s fees. Under Louisiana law, attorney' s fees
are not permitted except where authorized by statute or by contract. Sigur v. Mun. Employees'
Ret. Sys. of Louisiana, 2021- 0790 ( La. App. 1st Cir. 3/ 4/ 22), 341 So. 3d 632, 639, writ denied,
2022- 00747 ( La. 9/ 7/ 22), 345 So. 3d 426. While statutory provisions permit the allowance of
attorney' s fees for the dissolution of improper seizures under writs of attachment or sequestration
and the dissolution of a wrongful issuance of a restraining order or preliminary injunction, there is
no statutory provision to recover attorney' s fees for the dissolution of a wrongful seizure under a
writ offieri facias. See La. Code Civ. R. arts. 3506 and 3608; also see Nassau Realty Co., Inc.
v. Brown, 332 So. 2d 206, 210 ( La. 1976). However, we note that La. Code Civ. P. art. 2298( A)(4),
which was not utilized by Digirolamo in this case, permits injunctive relief prohibiting the sheriff
from proceeding with the sale of property seized under a writ offieri facias when the judgment
sought to be executed is absolutely null. When injunctive relief pursuant to La. Code Civ. P. art.
2298( A) is granted, subsection B allows the court to award damages if it finds the seizure to be
wrongful and further provides that attorney' s fees may be included as an element of the damages.
Regarding Digirolamo' s general damages, he testified on direct examination that he felt
fear, embarrassment, and humiliation as a result of the attempt to seize his properties and the notice
of seizure being published in an ad in the newspaper. Digirolamo also testified that in 2017, around
the time of these proceedings, he saw his doctor and was prescribed medications, one of which
included his medication for " ADHD" ( Attention Deficit Hyperactive Disorder). However,
Digirolamo' s testimony was called into question on cross examination, and the trial court could
have reasonably concluded that Digirolamo was not entitled to damages under the facts of this
case.

12

either malpractice or negligent breach of a professional obligation. Id. The intent

of this rule is not to reduce an attorney' s responsibility for his or her work, but rather

to prevent a chilling effect on the adversarial practice of law and to prevent a division

of the loyalty owed to a client. Accordingly, Digirolamo was required to establish

by a preponderance of the evidence that Berthelot' s actions were intentionally

tortious. See Id. at 582. The supreme court has held that in order to state a cause of

action, facts must be alleged showing that the attorney acted with specific malice or

an intent to cause direct harm. See Montalvo v. Sondes, 93- 2813 ( La. 5/ 23/ 94), 637

So. 2d 127, 130.

Notwithstanding Digirolamo' s allegations against Berthelot in his third -party

demand, the testimony of Berthelot did not support the allegations that her actions

were deliberate and calculated or that she knew the February 27, 2017 judgment was

null or otherwise disregarded pertinent facts in requesting the writs offieri facias.
,

When questioned about the letter Maughan sent to Berthelot refencing a " procedural

error"
making the judgment invalid and questioning whether the sheriff in

Plaquemines Parish was directed to make personal service on Digirolamo, Berthelot

testified that she was confused as to what error Maughan referenced. 12 When asked

if she understood the error now, she responded that she understood that the curators

submitted an answer that was incorrectly numbered, not matching the paragraphs of

the second amended petition naming Digirolamo, which was the error. When

questioned about the citation, which only referenced service of the original petition

no reference was made to either of the amended petitions), Berthelot testified that

she brought all three petitions to the Clerk' s office and requested that they serve all

12 Berthelot further testified that she did not trust Maughan, and that she " would look at the
matter every two or three weeks to see if [Maughan] had filed something because [ he] would not
send [ her] copies, [ he] would not serve [ her] and it was very difficult to know what [ Maughan]

was doing."

13

three. 13 She further testified that she could not " explain why they don' t have every
document that was on it.... I think they didn' t have enough space to type the name

of each document that was being served in that little line."

Before granting Berthelot' s motion for involuntary dismissal, the trial court

observed:

Now the threshold for competency that lawyers are held to under our
rules of professional conduct clearly was not met here. I have law
students in their first year that have a better grasp of civil procedure
than what was displayed in this particular matter. It is clear that
Berthelot] doesn' t know how to serve the suit, doesn' t know the
process of [ how] to operate with curators and if you believe her
testimony here today, still doesn' t understand what went wrong in the
original case in chief.

The trial court, however, did not fired that any evidence was presented to show that

Berthelot' s actions were malicious or that there was an abuse of process. Based on

the testimony and evidence, we do not find that the trial court was unreasonable or

manifestly erroneous in granting Berthelot' s motion for involuntary dismissal.

Accordingly, we do not find merit in any of Digirolamo' s assignments of
error.

CONCLUSION

For the above and foregoing reasons, we affirm the January 2, 2024 judgment,

granting the motions for involuntary dismissal of Stephen Binning, Kristen Binning,

and Deborah Berthelot, dismissing Robert Digirolamo' s claims against Stephen

Binning, Kristen Binning, and Deborah Berthelot with prejudice, and ordering that
costs be split equally amongst Robert Digirolamo, Stephen Binning, Kristen

Binning, and Deborah Berthelot. Costs of this appeal are assessed to Robert

Digirolamo.

AFFIRMED.

13 We note that the service information in the second amended petition simply states,
PRIVATE PROCESS SERVER: PLEASE SERVE: Robert Digirolamo, personally."
14