In Re: Interdiction of James Norris Schooler

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-247

INTERDICTION OF JAMES NORRIS SCHOOLER

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2022-5640
HONORABLE CLAYTON A. DAVIS, DISTRICT JUDGE

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CHARLES G. FITZGERALD
JUDGE

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Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Charles G.
Fitzgerald, Judges.

AFFIRMED IN PART;
REVERSED IN PART AND REMANDED.

Kenneth Michael Wright
203 W. Clarence Street
Lake Charles, LA 70601
Phone: (337) 439-6930
Fax: (337) 439-6730
Pro Se Plaintiff/Appellant

James E. Sudduth, III
Sudduth & Associates, LLC
1109 Pithon Street
Lake Charles, LA 70601
Phone: (337) 480-0101
Fax: (337) 419-0507
Counsel for Defendants/Appellees:
James and Patricia Schooler

FITZGERALD, Judge.

This appeal stems from the trial court judgment sustaining Defendants’

declinatory exception of insufficiency of service of process and dismissing

Plaintiff’s interdiction suit without prejudice.

FACTS AND PROCEDURAL HISTORY

On November 18, 2022, Kenneth Michael Wright filed a petition for

interdiction against James Schooler. The petition cumulated other actions, including

an action for injunctive relief against James and his wife, Patricia Schooler. In

response, on November 30, 2022, James and Patricia filed numerous exceptions,

including the declinatory exception of insufficient service of process.

The trial of the exceptions was held on December 21, 2022. After taking the

matter under advisement, the trial court issued a signed written judgment dated

January 11, 2023. In that judgment, the trial court sustained the exception and

dismissed the petition for interdiction without prejudice. Kenneth appealed.

On appeal, Kenneth asserts two assignments of error:

I. The District Court erred in holding that service on Patricia
Schooler, who had the authority “to accept service of process on
behalf of principal” (James Norris Schooler pursuant to a power
of attorney) . . . was insufficient warranting a granting of the
Declinatory Exception.

II. The District Court erred in dismissing the Petition for
Interdiction without prejudice.

James and Patricia, on the other hand, have requested sanctions against

Kenneth under La.Code Civ.P. art. 4543(B).

LAW AND ANALYSIS

First Assignment of Error

It is important to note that we review trial court judgments for errors. Yet

here, Kenneth’s first assignment misstates the judgment of the trial court. Indeed,

the January 11, 2023 judgment first finds that “Louisiana Code of Civil Procedure

article 4543 mandates personal service upon defendant, Jim Schooler; the testimony

of Patricia negated the presumption of personal service shown on the service return;

and therefore the Schoolers’ declinatory exception of improper service is granted.”

The judgment then states, “It is, therefore, hereby ordered, adjudged, and decreed

that Kenneth Michael Wright’s Petition for the Interdiction of James Norris Schooler

is dismissed, without prejudice.”

Thus, the issue before us is whether the trial court erred in sustaining the

declinatory exception. Since evidence was adduced at the trial of the exception, we

review this issue under the manifest error standard.

The burden of proof at the trial of the declinatory exception was on James and

Patricia. They had to prove insufficient service by a preponderance of the evidence.

Also, the sheriff’s service return is presumed correct and establishes a prima facie

case of valid service. La.Code Civ.P. art. 1292(A).

The service return here reflects personal service on James. Thus, to overcome

the presumption of valid service, James and Patricia were required to present

evidence. And they did just that: Patricia testified that personal service was not made

on James. Instead of personally serving James, the process server handed the citation

and petition intended for James to Patricia.

At this point, the presumption was overcome, and the burden of persuasion

shifted to the plaintiff to introduce evidence that proper service was made on James.

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Yet Kenneth failed to introduce any evidence: he did not call any witnesses; he did

not introduce any writings, recordings, or photographs; no stipulations were made

by the parties and accepted by the court; and the trial court was not asked to take

judicial notice of any adjudicative fact or legal matter. 1

For these reasons, the trial court did not manifestly err in finding that the

presumption of valid service had been overcome and sustaining the declinatory

exception of insufficient service.

Second Assignment of Error

Kenneth’s second and final assignment of error asserts that the trial court erred

in dismissing his petition for interdiction. Because this assignment questions the

trial court’s application of La.Code Civ.P. art. 932, the appropriate standard of review

is de novo.

Louisiana Code of Civil Procedure Article 932 states:

A. When the grounds of the objections pleaded in the declinatory
exception may be removed by amendment of the petition or other action
of plaintiff, the judgment sustaining the exception shall order the
plaintiff to remove them within the delay allowed by the court; if the
court finds, on sustaining the objection that service of citation on the
defendant was not requested timely, it may either dismiss the action as
to that defendant without prejudice or, on the additional finding that
service could not have been timely requested, order that service be
effected within a specified time.

B. If the grounds of the objection cannot be so removed, or if the
plaintiff fails to comply with an order requiring such removal, the
action, claim, demand, issue, or theory subject to the exception shall be
dismissed; except that if an action has been brought in a court of
improper jurisdiction or venue, the court may transfer the action to a
proper court in the interest of justice.

1
Significantly, the power of attorney alluded to by Kenneth in his first assignment or error
was not introduced into evidence. But even if it had been, there is no record evidence to suggest
that James was personally served through Patricia as his agent or legal representative. Thus, the
legal question of whether personal service of a petition for interdiction can be made through a
defendant’s agent or legal representative is not before this court.

3

In our case, the trial court dismissed Kenneth’s petition without prejudice.

Kenneth argues that instead of dismissal, he should have been given more time to

effectuate personal service on James. In support, Kenneth points to Interdiction of

Hunter, 18- (La.App. 4 Cir. 12/19/18), 318 So.3d. 784, 788, writ denied,19-208 (La.

4/8/19), 267 So.3d. 608. There, the fourth circuit explained as follows:

In an interdiction proceeding, personal service of the citation and
petition is required. La. C.C.P. Art. 4543. In the instant case, the
Plaintiff’s domiciliary service of the citation and petition upon the
Defendant’s son, Damion Hunter, was insufficient service upon the
Defendant. Therefore, the trial court correctly sustained the declinatory
exception. However, this finding does not dictate dismissal. West v.
Melancon, 02-1335, p.3 (La. App. 4 Cir. 3/19/03), 843 So.2d 485, 487.
“Dismissal is a ‘drastic remedy’ reserved for extreme circumstances in
which all procedural safeguards have been followed.” Id., 02-1335, pp.
3-4, 843 So.2d at 487.

A procedural safeguard provided by the Code for this context is
set forth in La. C.C.P. art. 932, which provides: “[w]hen the grounds of
the objections pleaded in the declinatory exception may be removed by
amendment of the petition or other action of plaintiff, the judgment
sustaining the exception shall order the plaintiff to remove them within
the delay allowed by the court.” La. C.C.P. art. 932 (emphasis supplied).
“When the ground[] for the exception is insufficiency of service of
process, ‘the plaintiff usually can cure the defect by having a new
citation issued and served.’” West, 02-1335, p.4, 843 So.2d at 487-88
(quoting 1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil
Law Treatise: Civil Procedure § 8.2 (1999)).

Since the improper service of the petition can be cured by the
Plaintiff requesting and obtaining personal service of process on the
Defendant, the trial court erred in failing to allow her an opportunity to
do so, as required by La. C.C.P. art. 932. Accordingly, we reverse and
remand the matter to allow the plaintiff an opportunity to cure the defect
in the service of process.

Like Interdiction of Hunter, Kenneth could have cured the service defect by

having a new citation issued and personally served on James. The trial court

therefore erred in failing to allow Kenneth the opportunity to do so as required by

La.Code Civ.P. art. 932.

4

Request for Sanctions

In their opposition brief, James and Patricia argue that “[b]ecause Kenneth

failed to comply with nearly all service and notice requirement[s], including his

mandate to mail copies of the petition by certified mail,” he should have been

sanctioned under La.Code Civ.P. art. 4543(B). We disagree.

First, while the request for sanctions was before the court on December 21,

2022, no evidence was adduced by James or Patricia to prove that Kenneth failed to

comply with La.Code Civ.P. art. 4543(B), which states:

B. Within three days of filing the petition, the petitioner shall
mail a copy of the petition by certified mail, return receipt requested, to
the last known address of each other person named in the petition.
Failure to mail a copy of the petition to any such person shall not affect
the validity of the proceeding, but may subject the petitioner or his
attorney to sanctions.

And second, the judgment on appeal is silent as to sanctions. “[I]t is well

established that a when a judgment is silent as to an issue, the issue is considered

rejected.” Murphy v. Brookshire Grocery Co., 02-808, p. 2 (La.App. 3 Cir. 12/11/02),

832 So.2d 1157, 1160. In short, because James and Patricia did not answer

Kenneth’s appeal, we have no jurisdiction to determine whether sanctions should

have been imposed. La.Code Civ.P. art. 2133(A). 2

DECREE

We affirm the part of the trial court’s judgment that sustained the declinatory

exception of insufficiency of service of process.

2
In relevant part, La.Code Civ.P. art. 2133(A) provides: “An appellee shall not be obliged
to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part
or unless he demands damages against the appellant. In such cases, he must file an answer to the
appeal, stating the relief demanded[.]”

5

We reverse the part of the judgment that dismissed Kenneth Michael Wright’s

petition for interdiction, and we remand this case to the trial court to specify an

appropriate delay for Kenneth Michael Wright to cure the service defect.

And we assess the costs of this appeal to Kenneth Michael Wright.

AFFIRMED IN PART;
REVERSED IN PART AND REMANDED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2–16.3.

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