KCREW Investments, LLC v. Johnathan Dangelo Clark

Judgment rendered June 30, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,003-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

KCREW INVESTMENTS, LLC Plaintiff-Appellee

versus

JOHNATHAN DANGELO CLARK Defendant-Appellant

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Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 624,785

Honorable Craig O. Marcotte, Judge

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CHARLES NEUPERT & ASSOCIATES, LLC Counsel for Appellant
By: Thomas D. Mayfield

WILLIAM E. BYRAM, LTD., APLC Counsel for Appellee
By: William E. Byram

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Before STONE, COX, and THOMPSON, JJ.

THOMPSON, J.

This appeal arises as a challenge to the presumption that domiciliary

service was effective service and supported the trial court’s rendering of a

default judgment. The appellant asserts that the default judgment rendered

against him is absolutely null due to improper domiciliary service at an

address that he no longer used as his dwelling or usual place of abode. For

the following reasons, we reverse the judgment of the district court.

FACTS & PROCEDURAL HISTORY

On July 6, 2007, Defendant-Appellant, Jonathan Deangelo Clark

(“Clark”), a single man at the time, purchased the land and improvements

with a municipal address of 9373 Jessica Drive, Shreveport, Louisiana

(“subject property”). Clark subsequently married, but the record is devoid of

any evidence indicating he ever conveyed an ownership interest in the

subject property to his wife. He later decided to sell the subject property and

listed it for sale with a realtor. On January 18, 2020, he received an offer to

purchase the subject property for $60,000 from Plaintiff-Appellee, KCREW

Investments, Inc. (“KCREW”). Clark extended a counteroffer of $65,000

that was accepted by KCREW on January 21, 2020.

The offer and counteroffer were submitted via a Louisiana Residential

Agreement to Buy or Sell, which included penalties for breach, including the

right to seek specific performance. The original closing date was to take

place on February 18, 2020; however, that date was extended by Clark four

times, at least partially due to his separation from his wife and his apparent

misunderstanding about her required involvement in the sale of his separate

property. At some point before the petition was filed, Clark asserts that he

separated from his wife and relocated to Irving, Texas.

The last scheduled closing date for the subject property was set to take

place on April 6, 2020, at the office of Kenneth C. Thomas. According to

KCREW, Clark did not appear at the scheduled closing because allegedly

his estranged wife was not willing to convey any property that could

potentially come into play during the impending divorce proceedings and

partition of the community assets. On April 22, 2020, KCREW, through its

attorney, sent a demand letter via certified mail to Clark addressed to 9113

Blom Boulevard, Shreveport, Louisiana to perform in accordance with the

agreement. The record contains no insight as to how or why KCREW

selected that address to send notice to Clark. That certified mail, return

receipt requested, does not bear Clark’s signature, and there is no evidence

contained in the record that Clark was residing at that address when the letter

was mailed or that he ever received it.

After KCREW received no communication from Clark, it instituted

this specific performance suit on July 13, 2020. Service of the citation and

pleadings was asserted to have been accomplished by domiciliary service at

the Blom Boulevard address, as reflected in the transcript of the hearing to

confirm the default judgment. There is no sheriff’s return included in the

record. On August 3, 2020, counsel for KCREW faxed and mailed a letter

to the Caddo Parish Clerk of Court, requesting a preliminary default be

entered on the next available date. On August 5, 2020, a preliminary default

was entered. On September 10, 2020, a trial for confirmation of the default

judgment was held.

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At the hearing for confirmation of default, KCREW called three

witnesses: Clark’s realtor, KCREW’s realtor, and Ms. Gena Strozier (an

employee of the closing attorney). According to Clark, at the hearing, the

court raised concerns about the return receipt. The district court recognized

service of the petition by the sheriff on July 17, 2020.1 The service was not

contested at the trial because the district court only heard testimony and

received evidence from KCREW and neither Clark nor counsel on his behalf

was present. The district court ultimately found in favor of KCREW and

ordered specific performance be granted and awarded attorney fees in the

amount of $2,000. This appeal followed.

DISCUSSION

Assignment of Error: The trial court erred in finding appellant was
served with process as required by law.

Clark, in his sole assignment of error, alleges that the district court

erred in finding that he was properly served as required by law, and, as such,

the default judgment rendered by the district court is absolutely null. We

agree.

For litigants and the general population to have confidence in the

judicial process, it is of paramount importance that parties have knowledge

of any proceeding which includes them as a party and that they have the

opportunity to participate. This fundamental principle is embodied in the

requirements for service of process as detailed in the Louisiana Code of

Civil Procedure. In those instances where a judgment has been rendered

against a defendant who has not been served with process as required by

1
The record indicates that the signature on the return label of the Demand Letter was
received by “DG C056” and signed by “Covid-19.”

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law, that judgment shall be annulled. La. Code Civ. Proc. art. 2002. Here,

rather than attack the judgment as a nullity at the district court, Clark raises

the issue of nullity on appeal.

Louisiana Code of Civil Procedure article 1201 provides that, without

the essential elements of citation and service of process, all proceedings are

absolutely null. See also La. Code Civ. Proc. art. 2002. Service on

individuals and juridical entities are detailed in the applicable provisions of

the Louisiana Code of Civil Procedure.

In instances similar to that facing Clark, for individuals, service of

citation or other process may be either personal or domiciliary, and, except

as otherwise provided by law, each has the same effect. La. Code Civ. Proc.

art. 1231. Clark could be served personally. In the absence of personal

service, domiciliary service is made only when a proper officer leaves the

citation at the dwelling house or usual place of abode of the person to be

served with a person of suitable age and discretion residing in the

domiciliary establishment. La. Code Civ. Proc. art. 1234. Each of these

elements is necessary for domiciliary service to be effective. In instances

where domiciliary service has been made at locations other than the dwelling

house or usual place of abode, judgments and other proceedings have

consistently been held to be absolute nullities.

At issue in the present matter is whether the record contains

satisfactory proof to support the assertion by KCREW that there was

effective domiciliary service of process on Clark. KCREW argues that since

there is no sheriff’s return contained in the record, then there is no proper

basis to sustain Clark’s contention that service was improper. We disagree.

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The record contains no evidence from Clark that he ever designated

the Blom Boulevard address as his mailing address, dwelling house, or usual

place of abode. There is no address for Clark included in the Louisiana

Residential Agreement to Buy or Sell, or any exhibit, and the listing

agreement between Clark and his realtor was not introduced as evidence. In

such an instance, there is no reliability or certainty contained in the record

that the vital procedural notice was ever provided to Clark.

The only evidence or testimony contained in the record suggesting

Clark ever resided at the Blom Boulevard address was from his realtor,

Eunice Strickland (“Strickland”). She testified that the address she had on

file for Clark was the Blom Boulevard address. Neither that “file” or any

other document supporting the dates of any use by Clark of the Blom

Boulevard address is contained in the record before us. Strickland’s

testimony on the subject was in response to the question from counsel for

KCREW inquiring if she knew Clark’s address “during this period of time.”

The time period from obtaining a listing agreement (unknown date),

receiving the offer from KCREW (January 18, 2020), the date of the

anticipated final closing (April 6, 2020), the date of domiciliary service (July

17, 2020), and the date of Strickland’s testimony (September 10, 2020) at

the hearing to confirm the default judgment spans several months. Exactly

when “this period of time” to which Strickland was testifying as to the Blom

Boulevard being the address she believed was Clark’s address is unknown

and certainly not specifically supportive of such use by Clark on the date of

domiciliary service in July, 2020.

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The parties do not dispute the fact that Clark’s estranged wife was

served at the Blom Boulevard address on July 17, 2020. However, the

sheriff’s return was not filed into evidence. Clark’s estranged wife was not

called to testify to support the assertion the domiciliary service was effective

and whether Clark actually resided with her at the time.

It is well settled that service upon one not living at the domicile of the

defendant is not valid and no judgment can be rendered thereon. Wilson v.

King, 227 La. 546, 79 So. 2d 877 (1955). Valid domiciliary service depends

on the actual and true facts at the time of service and not on information

furnished by the defendant at some time prior to service. Spinks v. Caddo-

Bossier Services, Inc., 270 So. 2d 604, 607 (La. App. 2 Cir. 1972). There

are many reasons a person might list an address for mailing or other

purposes other than their actual dwelling house or place of abode. Sadly,

this court must recognize the prevalence of divorces and broken homes, and

there can be no presumption the Clark household was somehow immune. In

any event, valid domiciliary service depends on the actual and true facts at

the time of service and not on information furnished by the defendant at

some time prior to service. Id.

We therefore find that the district court erred in granting the default

judgment against Clark and hereby reverse that decision.

CONCLUSION

Considering the foregoing, the judgment of the district court is

reversed. Costs of this appeal are assessed to appellee, KCREW

Investments, Inc.

JUDGMENT REVERSED.

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