Dana Duhon v. Kathryn Brouillette

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-82

DANA DUHON

VERSUS

KATHRYN BROUILLETTE

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 250,946-B
HONORABLE THOMAS M. YEAGER, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and James T. Genovese,
Judges.

REVERSED AND RENDERED.

J. Graves Theus, Jr.
Theus Law Offices
P. O. Box 8432
Alexandria, LA 71301
(318) 769-9395
COUNSEL FOR DEFENDANT/APPELLANT:
Kathryn Brouillette

Andrew P. Texada
Penny H. Tullos
Stafford, Stewart & Potter
P.O. Box 1711
Alexandria, LA 71309
(318) 487-4910
COUNSEL FOR PLAINTIFF/APPELLEE:
Dana Duhon

SAUNDERS, J.

Defendant, Kathryn Brouillette (hereinafter “Mrs. Brouillette”), appeals

from the trial court’s denial of her petition for annulment of a default judgment

against her. For the reasons that follow, we find that the trial court erred in

denying Mrs. Brouillette’s petition to annul, reverse the judgment of the trial court,

and render judgment declaring the default judgment against Mrs. Brouillette

absolutely null.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Dana Duhon (hereinafter “Ms. Duhon”), was one of the

beneficiaries of the Menard Anthony Brouillette Living Trust (hereinafter “the

trust”). The trust terminated on September 22, 2013, when the settlor died. Ms.

Duhon made several unsuccessful requests for an accounting to John David

Brouillette (hereinafter “Mr. Brouillette”), in his capacity as the trustee of the trust,

and to Mrs. Brouillette, whom Mr. Brouillette referred to as his agent in the

administration of the trust. When Ms. Duhon failed to receive an accounting, she

filed a petition to compel an accounting against Mr. Brouillette on September 4,

2014. On September 29, 2014, the trial court ordered that Mr. Brouillette provide

an accounting within fifteen days.

When Mr. Brouillette still failed to render an accounting, Ms. Duhon filed a

first supplemental and amending petition on October 23, 2014. Thereafter, Ms.

Duhon filed a motion to compel accounting on November 19, 2014. The trial court

granted the motion and ordered Mr. Brouillette to provide an accounting by

December 15, 2014. Although Mr. Brouillette produced an accounting on

December 14, 2014, Ms. Duhon filed a second amending and supplemental

petition on December 30, 2014, alleging the accounting provided was inadequate

and requesting Mr. Brouillette be removed as trustee. On February 19, 2015, the

trial court removed Mr. Brouillette as trustee, appointed Ms. Duhon in his place,

and ordered Mr. Brouillette to provide Ms. Duhon with all assets of the trust and

any financial documents relating to those assets.

On March 5, 2015, Ms. Duhon filed a third supplemental and amending

petition, wherein Mrs. Brouillette was finally added as a defendant, which was

served on Mrs. Brouillette in accordance with the Long Arm Statute, La.R.S.

13:3204, on March 12, 2015. Mr. Brouillette’s estate was substituted in his place,

as he died on February 17, 2015. Mrs. Brouillette left the service unclaimed.

None of the prior petitions had been served on Mrs. Brouillette, and they were not

included in the Long Arm service.

On May 28, 2015, upon her motion, a preliminary default was entered in Ms.

Duhon’s favor against Mrs. Brouillette. On June 5, 2015, a default judgment was

entered against Mrs. Brouillette in favor of Ms. Duhon, as the trustee, for

$279,806.37. Finally, on June 17, 2015, Mrs. Brouillette filed a motion for new

trial and petition for annulment of the default judgment. Following a hearing, the

trial court issued its written reasons for denying the motion for new trial on

October 5, 2015. It stated:

There is no doubt that the defendant was not served with a copy
of the Original or the First and Second Supplemental and Amending
Petitions when she was served with the Third Supplemental and
Amending Petition. The defendant contends that because of such, she
was not properly served with process as required by law and therefore,
the Court did not have personal jurisdiction.

....

A review of the Original, First[,] and Second Supplement[al]
and Amending Petitions show that [Mr. Brouillette] was the sole
defendant and, although some historical facts were added as the case
progressed, the only request in those pleadings was for the defendant
to provide an accounting of [the trust].

....

2

The Court finds that the allegations contained in the Third
Supplemental and Amending Petition were sufficient to place [Mrs.
Brouillette] on notice as to grounds on which the cause of action was
based and what the petitioner expected to prove against her. The prior
pleadings were mainly procedural attempting [to have Mr. Brouillette]
to provide an accounting and then to remove him as trustee. After his
death, the Third Supplemental and Amending Petition was directed as
a money judgment from his estate and his wife, who was actively
involved in managing the Trust and theft from the Trust.

....

Despite having knowledge of the ongoing litigation regarding the
Trust and being involved in the administration of the Trust, [Mrs.
Brouillette] never inquired about the certified mail, never contacted
undersigned counsel, never retained counsel of her own, never filed
any responsive pleadings to plaintiff’s Third Supplemental and
Amending Petition, and never appeared at any of the aforementioned
hearings. The defendant cannot argue a deprivation of legal rights
when she was properly served with the proceedings against her and
given ample opportunity to respond, but simpl[y] chose to ignore it.

It is from this extensive litigation that the instant appeal arises.

ASSIGNMENTS OF ERROR

Mrs. Brouillette asserts the trial court erred in:

1. failing to annul the default judgment rendered in favor of Ms. Duhon on

the grounds that Mrs. Brouillette was neither served with the Original nor

the First and Second Supplemental and Amending Petitions; and

2. finding Ms. Duhon established a prima facie case to support the default

judgment against Mrs. Brouillette.

STANDARD OF REVIEW

“A determination of whether a court has subject matter jurisdiction over a

case and personal jurisdiction over a party is subject to a de novo review.”

Hartman v. Lambert, 08-1055, p. 3 (La.App. 3 Cir. 2/4/09), 7 So.3d 758, 760.

“‘When a judgment is absolutely null based on a jurisdictional ground, it has no

legal existence, and its nullity may be shown in collateral proceedings at any time

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and before any court.’” Id. at 762 (quoting Taylor v. Hixson Autoplex of

Alexandria, Inc., 00-1096, pp. 6-7 (La.App. 3 Cir. 3/28/01), 781 So.2d 1282, 1286.)

DISCUSSION

Service of process is critical to the exercise of personal jurisdiction over a

defendant. Ardoin v. Daily, 10-13 (La.App. 3 Cir. 5/5/10), 38 So.3d 494.

Louisiana Code of Civil Procedure Article 6 provides, in pertinent part:

A. Jurisdiction over the person is the legal power and authority
of a court to render a personal judgment against a party to an action or
proceeding. The exercise of this jurisdiction requires:

(1) The service of process on the defendant, or on his agent for
the service of process, or the express waiver of citation and service
under Article 1201.

“A final judgment shall be annulled if it is rendered. . . [a]gainst a defendant who

has not been served with process as required by law and who has not waived

objection to jurisdiction, or against whom a valid judgment by default has not been

taken.” La.Code Civ.P. art. 2002(A)(2) (emphasis added). An action to annul a

judgment for failure to serve a defendant with process “may be brought at any

time.” La.Code Civ.P. art. 2002(B).

Service of the original petition is a critical component of service of process,

and it makes no difference whether supplemental and amending pleadings “set out

all the essential elements of [the plaintiff’s] cause of action.” Ardoin, 38 So.3d at

497. Without service of the original petition, the court has no personal jurisdiction

over the defendant. River City Fed. Sav. Bank (Cadle Co.) v. Video Assocs., Inc.,

01-2453 (La.App. 1 Cir. 11/8/02), 835 So.2d 781, writ denied, 02-2966 (La.

4/25/03), 842 So.2d 396. Even new defendants must be served with the original

petition. See Dickinson v. Nat’l Soc’y of Health, 589 So.2d 632 (La.App. 5 Cir.

1991); Williams v. New York Fire & Marine Ins. Co., 427 So.2d 938 (La.App. 4

Cir. 1983); Camper & Camper, Ltd v. Paul, 13-2116 (La.App. 1 Cir.
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7/9/14)(unpublished opinion). It makes no difference whether a newly added

defendant has “actual notice of the suit or enough information to warrant inquiry

on his part[.]” Camper, 13-2116. “[S]trict compliance with the law” is required.

Scullin v. Prudential Ins. Co. of Am., 421 So.2d 470, 472 (La.App. 4. Cir. 1982).

In the instant matter, there is no dispute that Mrs. Brouillette was not served

with the original petition. Nor was she served with the first or second amending

petitions. There is no suggestion that she waived service and citation. Although

the third amending and supplemental petition may have placed Mrs. Brouillette on

actual notice of the suit or, at least, alerted her to make inquiry, in order to strictly

comply with the law, we find the trial court erred in failing to declare the default

judgment against Mrs. Brouillette an absolute nullity. Because she had not been

served with the original petition, service was not perfected properly, and the trial

court had no personal jurisdiction over Mrs. Brouillette, La.Code Civ.P. art. 6, and

the default judgment must be declared a nullity. La.Code Civ.P. art. 2002.

Having found that the trial court erred in failing to declare the default

judgment rendered in favor of Ms. Duhon and against Mrs. Brouilette an absolute

nullity, Mrs. Brouillette’s second assignment of error is pretermitted.

DISPOSITION

Considering the foregoing, we reverse the judgment of the trial court, render

judgment granting Mrs. Brouillette’s petition to annul, and vacate the default

judgment in favor of Ms. Duhon. Costs of this appeal are assessed to the Plaintiff,

Dana Duhon.

REVERSED AND RENDERED.

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