Matthew Hebert & Michelle Hebert v. Elegant Reflections, LLC D/B/A Elegant Reflections, LLC of Texas

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-278

MATTHEW HEBERT & MICHELLE HEBERT

VERSUS

ELEGANT REFLECTIONS, LLC D/B/A
ELEGANT REFLECTIONS, LLC OF TEXAS

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2022-2276
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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SHARON DARVILLE WILSON
JUDGE

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Court composed of Sharon Darville Wilson, Gary J. Ortego, and Wilbur L. Stiles,
Judges.

VACATED AND REMANDED.

Ortego, J. - Concurs, without assigning reasons.

Clarence F. Favret, III
James C. Cronvich
Jordan T. Leblanc
FAVRET CARRIERE CRONVICH
650 Poydras Street, Suite 2300
New Orleans, LA 70130
(504) 383-8978
COUNSEL FOR DEFENDANT/APPELLANT:
Elegant Reflections, LLC

James E. Sudduth, III
John L. Fourcade, III
SUDDUTH AND ASSOCIATES, LLC
1109 Pithon Street
Lake Charles, LA 70601
(337) 480-0101
COUNSEL FOR PLAINTIFFS/APPELLEES:
Matthew Hebert
Michelle Hebert

WILSON, Judge.

Defendant, Elegant Reflections LLC, d/b/a Elegant Reflections, LLC

of Texas (Elegant), appeals the default judgment of the trial court in favor of

plaintiffs, Matthew and Michelle Hebert, finding Elegant liable for defective

construction and breach of contract and awarding the Heberts damages for emotional

distress, repair costs, attorney’s fees, and a refund of all money paid to Elegant. For

the reasons expressed below, we vacate the judgment of the trial court and remand

for further proceedings.

I.

ISSUES

In this appeal we must decide:

(1) whether the trial court committed legal error by
rendering judgment against Elegant because
Elegant was not properly served with the citation
and petition;

(2) whether the trial court abused its discretion by
awarding $50,000 and $100,000 in general
damages to Matthew and Michelle Hebert,
respectively, based on the evidence in the record;

(3) whether the trial court committed legal error by
awarding the Heberts attorney’s fees in the
absence of a statute or contractual provision
authorizing them; and

(4) whether the trial court committed legal error by
refunding the Heberts the entire amount they
paid to Elegant, who completed a significant
amount of the work under the contract.

II.

FACTS AND PROCEDURAL HISTORY

Mr. and Mrs. Hebert hired Elegant to repair property damage to their

home caused by Hurricanes Laura and Delta in the fall of 2020. On January 19,

2021, the parties signed a written contract for the completion of the repairs with a

listed contract price of $128,201.53. In an estimate prepared for the project, the cost

of repairs was listed as $186,376.48. The Heberts made an initial payment of

$29,584.98, and Elegant began work on their home that same month. Over the

course of construction, the Heberts remitted a total of $130,132.47. Elegant

requested the final draw of $33,000. Worried about running out of money, the

Heberts refused to pay until Elegant submitted a supplement to their insurer and the

insurer approved it. Elegant refused to prepare and submit the supplement.

On June 2, 2022, the Heberts filed a Petition for Damages against

Elegant and XYZ Insurance Company, seeking damages the Heberts sustained due

to Elegant’s alleged breach of contract. Their petition asserts that Elegant worked

on the home from January 2021 through August 2021. Elegant provided monthly

invoices which listed each charge and the balance due each month. The Heberts

noticed charges for labor which Elegant never provided. The Heberts notified

Elegant regarding errors on the invoices and expressed concern for incomplete or

poorly completed repairs, but Elegant refused to remedy the issues until additional

payment was made.

The Heberts also seek to void the contract because they contend that

Elegant, despite assertions to the contrary, was not a licensed contractor in the state

of Louisiana at the time the contract was signed. As such, they allege that the

contract was fraudulent and is an absolute nullity.

The Heberts’ counsel mailed a certified copy of the citation and petition

to “Elegant Reflections LLC, 5850 San Felipe St., Suite 500, Houston, Tx, 77057.”

The documents were delivered July 11, 2022, according to the United States Postal

Service (USPS) tracking sheet attached to the affidavit of service.

On September 16, 2022, a hearing was held on the Heberts’ Motion for

Confirmation of Default. The Heberts were present at the hearing along with

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counsel. After hearing the testimony of both Mr. and Mrs. Hebert and considering

the evidence introduced, the trial court granted the Heberts’ motion and awarded the

following:

1. $130,132.47 plus legal interest from the date of judicial demand for

restoration of the initial payment of work inadequately and/or

improperly attempted, as well as work not completed to promised

specifications;

2. $16,650.00 plus legal interest from the date of judicial demand for

increased costs for repairs due to Elegant’s inabilities to successfully

complete their contractual obligations throughout the premises;

3. $7,500.00 plus legal interest from the date of judicial demand for

attorney’s fees incurred in the prosecution of this action;

4. $50,000.00 with legal interest from the date of judicial demand for

general damages including, but not limited to emotional distress,

anxiety, inconvenience, loss of use, and loss of enjoyment of the

residence to Matthew Hebert;

5. $100,000.00 with legal interest from the date of judicial demand for

general damages including, but not limited to emotional distress,

anxiety, inconvenience, loss of use, and loss of enjoyment of the

residence to Michelle Hebert;

6. Pre-judgment interest at the highest rate permitted by law, plus legal

interest from the date of judicial demand; and

7. All costs of these proceedings, including expert fees and all court

costs, shall be cast against Elegant.

A copy of the judgment was mailed to Elegant at their Houston address

on November 4, 2022. On December 15, 2022, Elegant filed a Motion for

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Suspensive Appeal which was granted on January 9, 2023. On March 3, 2023, the

Heberts filed a Motion to Dismiss for Failure to Pay Estimated Appeal Costs and a

rule to show cause was set for April 10, 2023. The Heberts filed a Motion for

Judgment Debtor Rule Examination on April 11, 2023. The motion was granted and

Elegant was ordered to appear in open court on June 12, 2023, to be examined for a

judgment debtor. On April 19, 2023, the Motion to Dismiss for Failure to Pay

Estimated Appeal Costs was dismissed without prejudice as moot and Elegant’s

suspensive appeal was converted to a devolutive appeal via stipulated judgment.

III.

LAW AND DISCUSSION

Defective Service

In its’ first assignment of error, Elegant contends that the trial court

committed legal error by rendering judgment against it because Elegant was not

properly served with the citation and petition. The record includes the affidavit of

Amanda O’Blanc, an employee of the Heberts’ counsel, which states that “on June

29, 2022, she mailed these certified copies to Elegant Reflections, LLC, pursuant to

[La. R.S.] 13:3201, etc.[,]” and “on August 8, 2022, she verified the delivery of the

documents via United States Postal Service Tracking, which confirmed that the

documents were delivered on July 11, 2022.” Louisiana Revised Statutes 13:3201,

known as the “Long-Arm Statute,” establishes the conditions under which a court of

this state may exercise personal jurisdiction over a nonresident. Louisiana Revised

Statutes 13:3204 provides that service under the Long-Arm Statute is effected when

a “certified copy of the petition” is sent by plaintiff’s counsel “to the defendant by

registered or certified mail, or actually delivered to the defendant by commercial

carrier, when the person to be served is located outside of the state[.]”

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Under La. Code Civ.P. art. 5251(11), “a foreign corporation which is

not licensed to do business in this state,” is considered a nonresident. Elegant argues

that because it is registered to do business in Louisiana, it is not a nonresident and,

therefore, could not be served through Long-Arm service. Instead, Elegant asserts

that the Heberts were required to follow La.Code Civ.P. art. 1266(A) which

provides: “Service of citation or other process on a domestic or foreign limited

liability company is made by personal service on any one of its agents for service of

process.” As the manner of service attested to in Ms. O’Blanc’s affidavit was not

personal service, Elegant contends that service was insufficient and the proceedings

against it are absolutely null.

Insufficiency of service is an objection to be raised by a declinatory

exception. La.Code Civ.P. art. 925(A)(2). According to the Louisiana Code of Civil

Procedure,

The declinatory exception and the dilatory
exception shall be pleaded prior to or in the answer and,
prior to or along with the filing of any pleading seeking
relief other than entry or removal of the name of an
attorney as counsel of record, extension of time within
which to plead, security for costs, or dissolution of an
attachment issued on the ground of the nonresidence of
the defendant, and in any event, prior to the signing of
a default judgment.

La.Code Civ.P. art 928(A)(emphasis added).

Under the clear and unequivocal terms of La.Code Civ. P. art 928,

Elegant was required to have plead any declinatory exceptions prior to the signing

of default. In the present case, the trial court entered a judgment of default in favor

of the Heberts on September 16, 2022. Elegant did not raise the issue of

insufficiency of service of process until December 15, 2022, when it filed this

appeal. Elegant failed to timely raise the declinatory exception of insufficiency of

service.

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In the alternative, Elegant argues that even if Long-Arm service was

applicable in this case, the record did not contain a return receipt as required by

La.R.S. 13:3205, rendering the judgment null. Louisiana Revised Statutes 13:3205

sets forth the proof of service of process required before a default judgment can be

entered against a nonresident defendant. It provides, in pertinent part:

No default judgment may be rendered against the
defendant and no hearing may be held on a contradictory
motion, rule to show cause, or other summary proceeding,
except for actions pursuant to R.S. 46:2131 et seq., until
thirty days after the filing in the record of the affidavit of
the individual who has done any of the following:
(1) 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 mail, to which shall
be attached the return receipt of the defendant.

Id.

Louisiana Code of Civil Procedure article 2002 provides that “[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 default judgment has not been taken.” The

requirements of La.R.S. 13:3205 are to be strictly construed, and a judgment

obtained without strict compliance with the statute is an absolute nullity. Edwards

v. Mathieu, 14-673 (La.App. 4 Cir. 3/11/15), 163 So.3d 110, writ denied, 15-736

(La. 6/1/15), 171 So.3d 934; Belltech Grp., Inc. v. Capital One (USA), N.A., 12-949

(La.App. 3 Cir. 10/31/12).

The fifth circuit, addressing this issue in a similar case, noted:

The usual procedure to annul a judgment is to bring
a direct action in the trial court. La. C.C.P. art. 2006.
Fouchi v. Fouchi, 442 So.2d 506, 508 (La.App. 5
Cir.1983), writ denied, 445 So.2d 1235 (La.1984).
However, the jurisprudence recognizes that where the
(default) judgment at issue is an absolute nullity, as
discussed, infra, it may be attacked in direct or collateral

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proceedings at any time and before any court. Id.;
Lexington Ins. Co. v. Tasch, Inc., 12-339, p. 10 (La.App.
5 Cir. 11/27/12), 105 So.3d 950, 956.

A default can be reversed as a nullity on direct
appeal where the ground for the nullity is apparent on the
face of the record. G.R. Constr.[ & Renovation, LLC v.
White, 14-62 (La.App. 5 Cir. 5/21/14), 142 So.3d 207];
State, Dep’t of Soc. Services, ex. rel. T.M.A. v. Pickins,
42,721 (La.App. 2 Cir. 12/5/07), 972 So.2d 1225.
Jurisprudence also recognizes that peremptory grounds for
nullity of a judgment listed in La. C.C.P. art. 2002, i.e.,
“lack of service of process as required by law” may be
asserted through appeal. See Pollock v. Talco Midstream
Assets, Ltd., 44,629 (La.App. 2 Cir. 9/23/09), 22 So.3d
1033, writ denied, 11–1295 (La.9/23/11), 69 So.3d 1166
(permitting annulment through motion for new trial or on
appeal in same action).
Folse v. St. Rose Farms, Inc., 14-436 pp. 5–6 (La.App. 5 Cir. 11/25/14), 165 So.3d

104, 107–08.

“If a default judgment is an absolute nullity for defects patent on the

face of the proceedings leading up to it, it may be attacked at any time, at any place,

by rule or by any other method where the validity of such a judgment is asserted.”

Taylor v. Hixson Autoplex of Alexandria, Inc., 00-1096, p. 7 (La.App. 3 Cir.

3/28/01), 781 So.2d 1282, 1286, writ not considered, 01-1539 (La. 9/14/01); 796

So.2d 670 (emphasis added). On appeal, Elegant has questioned the validity of the

default judgment and asserted that it is an absolute nullity.

Louisiana Revised Statutes 13:3205 requires that the “return receipt of

the defendant” be attached to the affidavit of service. In the present case, attached

to the affidavit of Ms. O’Blanc was a print out of the USPS tracking sheet showing

that the documents were delivered “to an individual at the address[.]” This tracking

sheet was not a signed return receipt of the defendant. Not only does it not contain

the signature of Elegant or its agent, but it contains no name at all. There is nothing

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in the affidavit that identifies who the mail was left with and if that person was

authorized to accept mail on behalf of Elegant.

We find that because the evidence does not show that service on

Elegant was in strict compliance with La.R.S. 13:3205, the default judgment

rendered against Elegant is an absolute nullity. As the absolute nullity is patent on

the face of the proceedings, the issue of the judgment’s validity is properly before

this court on appeal. Therefore, we vacate the default judgment on appeal as an

absolute nullity. All other issues raised by Elegant are hereby rendered moot.

IV.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is vacated, and

this matter is hereby remanded to the trial court for further proceedings. All costs

of this appeal are assigned to the plaintiffs/appellees, Matthew and Michelle Hebert.

VACATED AND REMANDED.

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