Technisonic Research, Inc. v. Technical Industries, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CW 03-38

TECHNISONIC RESEARCH, INC.

VERSUS

TECHNICAL INDUSTRIES, INC.

**********

ON SUPERVISORY WRIT FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT,
PARISH OF VERMILION, NO. 99-73281
HONORABLE MARILYN C. CASTLE, DISTRICT JUDGE

**********

JIMMIE C. PETERS
JUDGE

**********

Court composed of Chief Judge Ned E. Doucet, Jr., Billie Colombaro Woodard, and
Jimmie C. Peters, Judges.

WRIT DENIED.

Woodard, J., concurs.

Christopher J. Couch
Wayne M. Babovich
The Law Offices of Babovich,
Spedale and Chauvin, P.L.C.
111 Veterans Memorial Blvd.
Suite 340
Metairie, LA 70005
(504) 838 -7747
COUNSEL FOR: PLAINTIFF/APPLICANT:
Technisonic Research, Inc.

Jean Ouellet
Perrin, Landry, deLaunay, Dartez
& Ouellet

P.O. Box 53597
Lafayette, LA 70505
(337) 237 - 8500
COUNSEL FOR: DEFENDANT/RESPONDENT:
Technical Industries, Inc.

PETERS, J.

The plaintiff in this litigation, Technisonic Research, Inc. (Technisonic

Research), seeks supervisory writs from a trial court judgment granting a motion filed

by the defendant, Technical Industries, Inc. (Technical Industries), declaring a money

judgment rendered in favor of Technisonic Research and against Technical Industries

null and void. For the following reasons, we deny the application for supervisory

writs.

DISCUSSION OF THE RECORD

On September 20, 1999, Technisonic Research filed a suit on open account

naming Technical Industries as the sole defendant. In the petition, Technisonic

Research asserted that Technical Industries owed it $12,355.00 for services

performed and merchandise provided to the defendant corporation on two separate

dates, February 8, 1999 and February 17, 1999. Additionally, Technisonic Research

sought recovery of twenty-five percent of the amount due as attorney fees. In its

petition, Technisonic Research requested that Technical Industries be served through

its registered agent for service of process, Edmund J. Baudoin, Sr. The sheriff’s

return reflects that a deputy sheriff effected personal service on Edmund Baudoin, Sr.

on September 27, 1999. Technical Industries failed to timely answer the petition and,

on October 22, 1999, Technisonic Research entered a preliminary default. On

November 2, 1999, Technisonic Research confirmed the preliminary default and

obtained judgment against Technical Industries in the amount sued upon.

After the judgment became final, Technisonic Research attempted to obtain a

judgment debtor examination of the appropriate Technical Industries representative.

Technical Industries responded to this attempt by filing a motion to have the

November 2, 1999 judgment declared null and void. In its motion, Technical

Industries asserted that Technisonic Research’s original petition was served on

Edmund J. Baudoin, Jr., and not Edmund J. Baudoin, Sr. Technical Industries further

asserted that neither Mr. Baudoin, Sr., nor Mr. Baudoin, Jr., were involved in its

management, that it received no service of the petition and citation, and that it had

no knowledge of the suit’s existence prior to judgment being rendered against it.

At a September 23, 2002 hearing on its motion, Technical Industries presented

the testimony of Mr. Baudoin, Jr., and Mr. Baudoin, Sr., in an effort to establish the

lack of service of citation. Mr. Baudoin, Jr., testified that he, and not his father, had

been served by the deputy sheriff with Technisonic Research’s suit. Additionally, he

testified that, although he had worked for Technical Industries as office manager until

January of 1999, he was not, and never had been, agent for service of process for the

corporation. Mr. Baudoin, Sr., who was seventy-seven years old at the time of the

hearing, testified that, he was the founder and former president of Technical

Industries, and he had sold his interest in the corporation approximately three years

before the September 2002 hearing. It was unclear from his testimony whether he

remained as the corporation’s agent for service of process. He testified that he has

been the agent for service of process and had been served in the past with legal

proceedings filed against the corporation. Mr. Baudoin, Sr., had little memory of past

events, including facts contained in an affidavit executed by him and submitted by

Technical Industries in support of its motion. When asked if he could tell the trial

court he was absolutely certain that he did not receive service of the September 20,

1999 suit, he responded, “I don’t remember, no.”

OPINION

The trial court concluded that Technical Industries had established by a

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preponderance of the evidence that, “there was not proper service upon Technical

Industries, Inc.” In reaching its conclusion, the trial court granted Technical

Industries’ motion to declare Technisonic Research’s judgment null and void.

Technisonic Research asserts in its writ application that the trial court applied the

incorrect legal standard in evaluating Technical Industries’ evidence. Technisonic

Research argues that the trial court should have applied the clear and convincing

evidence standard, a burden which Technisonic Research argues Technical Industries

did not meet.

The trial court applied the preponderance of the evidence standard based on the

supreme court’s decision in Roper v. Dailey, 393 So.2d 85 (La.1980). Thus, our

analysis of the issue before us necessarily requires an analysis of the Roper decision.

The litigation giving rise to the Roper decision began in 1977 when Pamela J.

Dailey filed a tort suit naming Dennis Roper as the sole defendant. The sheriff’s

return reflected that a deputy sheriff personally served Mr. Roper at his place of

business with the petition and citation. When Mr. Roper did not timely file

responsive pleadings, Ms. Dailey entered a preliminary default against him. She

ultimately confirmed the preliminary default, thereby obtaining a money judgment

against Mr. Roper.

Upon receipt of the notice of judgment, Mr. Roper filed a petition to nullify the

judgment based on, among other grounds, improper service of process. In his

petition, Mr. Roper asserted that service was made upon a secretary or receptionist

in his place of employment and that he never received notice of Ms. Dailey’s suit.

At the trial of the nullity action, the deputy sheriff who completed the sheriff’s

return testified that the sheriff’s office had a policy wherein a deputy would

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sometimes telephone the person to be served and obtain permission to leave the

papers to be served with a secretary or receptionist. However, he did not recall any

of the particulars of service on Mr. Roper.

The trial court, applying a clear and convincing evidence standard, concluded

that Mr. Roper did not carry his burden on the service of process issue, and the court

of appeal agreed. Roper, 393 So.2d 85. In its initial opinion written by Justice

Dennis, the supreme court affirmed the decisions of the lower courts. Id. Justice

Dennis summarized Mr. Roper’s burden as follows:

As recognized by the court of appeal below, the trial court
correctly summarized the law applicable to the burden of proving lack
of service of process as follows:

“A return of citation is prima facie evidence of service.
La.C.C.P. Arts. 324, 1292; La.R.S. 13:3471(5); Hood Motor
Company, Inc. vs. Lawrence, 334 So.2d 460 (La.App. 1st Cir.
1976) writ denied, 338 So.2d 288, Martinez vs. Silverman, 288
So.2d 88 (La.App. 4th Cir. 1974); Smith vs. Crescent Chevrolet
Co., 1 So.2d 421 (La.App. 1st Cir. 1941). The return of the
officer on the citation is given great weight and the burden rests
on the party attacking it to establish otherwise by clear and
convincing evidence. Canterberry vs. Slade Brothers, 232 La.
1081, 96 So.2d 4 (1957); League Central Credit Union vs.
Gagliano, 336 So.2d 931 (La.App. 4th Cir. 1976); Spinks vs.
Caddo-Bossier Services, Inc., 270 So.2d 604 (La.App. 2d Cir.
1972). A return of citation cannot be impeached by the
uncorroborated testimony of a single witness, Canterberry vs.
Slade Brothers, supra, League Central Credit Union vs.
Gagliano, supra, Guedry Finance Company vs. Breland, 192
So.2d 884 (La.App. 4th Cir. 1966), and it cannot be impeached
by the uncorroborated testimony of the party upon whom service
is stated to have been made by the officer. Canterberry vs. Slade
Brothers, supra; Hood Motor Company, Inc. vs. Lawrence, supra;
Guedry Finance Company vs. Breland, supra; Smith vs. Crescent
Chevrolet Co., supra; Martinez vs. Silverman, supra; Sims vs.
First National Bank of Ruston, 177 La. 386, 148 So. 505 (1933);
Logwood vs. Logwood, 185 La. 1, 168 So. 310 (1936).”

Furthermore, the rule has arisen in the jurisprudence that
testimony of the serving officer is inadmissible if it would vary,
contradict, and break down his official return of a citation, although the

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officer may testify to incidental and collateral facts in support of his
return and in order to show the validity of his acts. Adler v. Board of
Levee Commissioners, 168 La. 877, 123 So. 605 (1929); Baham v.
Stewart Bros. & Co., 109 La. 999, 34 So. 54 (1903); Smith v. Crescent
Chevrolet Co., 1 So.2d 421 (1st Cir. 1941).

Id. at 86.

Justice Calogero (now Chief Justice Calogero) and Justice Lemmon both

dissented from the majority opinion. Justice Calogero opined, “[Mr. Roper] made a

sufficient showing that he was not personally served with the petition.” Id. at 87.

Justice Lemmon concluded, “The officer’s admission itself defeated the

presumption of validity of the officer’s return. And [Mr. Roper’s] testimony that he

was never served established that fact by a preponderance of the evidence.” Id.

(emphasis added).

On rehearing, the supreme court reversed itself with Justice Lemmon writing

for the majority and with Justice Dennis dissenting. Justice Lemmon stated the

following concerning Mr. Roper’s burden of proof:

Upon reconsideration we conclude that Dennis Roper proved, by
a preponderance of the evidence, that he was not served with citation,
and we accordingly hold that he is entitled to a judgment declaring the
nullity of the default judgment in the original action.

....

The plaintiff in a nullity action has the burden of proving his case
by a preponderance of the evidence. There is a preponderance when the
evidence, taken as a whole, shows that the fact sought to be proved is
more probable than not. Jordan v. Travelers Ins. Co., 257 La. 995, 245
So.2d 151 (La.1971).

While the recitation on the return of citation is presumed to be
correct, the presumption is rebuttable. Roper’s testimony, standing
alone, may not be sufficient to tip the scales in his favor. However, the
serving officer’s testimony indicates that if he followed his frequent
method of making “personal” service at a party’s place of business, he
very well may not have served Roper personally. Furthermore, as soon
as Roper was notified of the default judgment, he employed counsel and

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took immediate action, and there are no other circumstances which raise
inferences contrary to Roper’s testimony.

Taking the evidence in the nullity action as a whole, we conclude
that, more probably than not, the serving officer did not serve the
citation on Roper personally.

Id. at 87-88. (emphasis added) (footnote omitted).

In his dissent, Justice Dennis stated the following:

The majority opinion overrules the long-standing precedent that
a party attacking the return of the officer on citation must establish facts
to the contrary by clear and convincing evidence. In my opinion the rule
was a wise one based on the practical consideration that busy deputies
cannot possibly recall the details of each personal service months or
even years after the event. The interest of society and the judicial
system in the finality and security of default judgments should not be
taken lightly. Because of these considerations, a party attacking a
judgment on the grounds he was not served with citation should not be
allowed to capitalize on a deputy’s lack of perfect recall, which few
humans possess, to nullify a court’s judgment on a bare preponderance
of evidence.

Roper v. Dailey, 400 So.2d 898 (La.1981).

Notwithstanding the seemingly clear language of the Roper decision, the

jurisprudence following that decision is not as clear. Thus, we decided to call up this

writ and consider it for the purpose of resolving the conflicting jurisprudence.

In this circuit, four decisions have cited Roper in addressing issues concerning

the sufficiency of service and citation. While specifically relying on Roper as

authority, three of these decisions continued to identify the burden of proof as that of

clear and convincing evidence. See Citibank (South Dakota) N.A. v. Keaty, 599 So.2d

500 (La.App. 3 Cir. 1992); Veillon v. Veillon, 517 So.2d 936 (La.App. 3 Cir.), writ

denied, 519 So.2d 105 (La.1987); Terry, Inc. v. Bell, 484 So.2d 315 (La.App. 3 Cir.

1986). The fourth decision from this circuit, Wilson v. MFA Security Service Co., 410

So.2d 1177 (La.App. 3 Cir. 1982), stated that “[t]he law applicable to the burden of

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proving lack of service of process was stated in Roper v. Dailey, 393 So.2d 85

(La.1980),” but followed that statement with the “clear and convincing” language in

Justice Dennis’ original decision. Id. at 1179. However, the Wilson court then cited

Roper as authority for the position that the burden of proof in a nullity action is that

of preponderance of evidence.

The confusion created by the Roper decision is not limited to this circuit. The

first circuit, in Kem-Search, Inc. v. Sheffield, 416 So.2d 220 (La.App. 1 Cir.), writ

granted, 422 So.2d 151 (La. 1982), reversed on other grounds, 434 So.2d 1067 (La.

1983), cited pre-Roper jurisprudence, as well as, Roper to conclude that the burden

of proof is preponderance of the evidence. The fourth circuit, in Jenkins v. Capasso,

02-0625 (La.App. 4 Cir. 2/5/03), 836 So.2d 1286, writ denied, 03-0904 (La. 5/16/03),

843 So.2d 1136, while mentioning Roper, cited post-Roper jurisprudence from this

circuit to conclude that the burden is clear and convincing evidence. The fifth circuit,

in Alaynick v. David Reiss, 482 So.2d 58 (La.App. 5 Cir.), writ denied, 487 So.2d 438

(La.1986), and Louisiana Truck Parts, Inc. v. W & W Clarklift, Inc., 444 So.2d 733

(La.App. 5 Cir. 1984), cited Roper for the preponderance burden. However, in

Alaynick, the fifth circuit noted that clear and convincing evidence was still the

standard for evaluating the validity of the content of the sheriff’s return.

Recently, the fourth circuit specifically analyzed the Roper decision and its

effect in establishing the applicable burden of proof in Hall v. Folger Coffee Co., 02-

0920 (La.App. 4 Cir. 4/9/03), 843 So.2d 623. In Hall, the fifth circuit stated:

Roper is the latest pronouncement on this issue by the Louisiana
Supreme Court, and it stands for the proposition that the party attacking
service “need only to establish the falsity by a preponderance of the
evidence.” Mariast & Lemmon, supra. at § 8.5; 2 Steven R. Plotkin,
Louisiana Civil Procedure 503 (2002) (stating that “a party may attack
the return and prove the falsity or incorrectness of service by a

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preponderance of the evidence.”) However, Roper also stands for the
proposition that the uncorroborated testimony of the party attacking
service, standing alone, is probably insufficient to tip the scales in that
party’s favor. Mariast & Lemmon, supra. As a general rule, “the
uncorroborated testimony of the person served is insufficient to rebut the
prima facie presumption unless the person served proves that service
was impossible.” Plotkin, supra. Similarly, another court has noted that
its “research has disclosed that in every case upholding the defendant’s
assertion that he was not served, the defendant’s testimony was
corroborated or the return was otherwise impeached.” Polivka v. Worth
Dairy, Inc., 26 Ill.App. 3d 961, 328 N.E.2d 350, 356 ([Ill.App.] 1 Dist.
1974).

Id. at 632.

We agree with the fourth circuit’s analysis in Hall, and adopt it as our own.

Thus, in the matter before us, we find no error in the trial court’s use of the

preponderance of evidence burden of proof.

However, our analysis does not end with that conclusion. The sheriff’s return

is still considered to be prima facie correct. See La.Code Civ.P. art. 1292.

Additionally, the return of the officer on the citation is given great weight and the

burden of proof is still on the party attacking its validity, even though the burden is

less than that required before the Roper decision. Justice Lemmon’s language in

Roper makes it unclear whether the uncorroborated testimony of the party upon which

service was allegedly made is still insufficient to overcome the preponderance of the

evidence. Justice Lemmon stated, “[The party’s] testimony, standing alone, may not

be sufficient to tip the scales in his favor.” Roper, 393 So.2d at 88 (emphasis added).

Thus, the evaluation of the sufficiency of this self-serving evidence shifted from

“cannot” to “may not.”

In the matter before us, Mr. Baudoin, Sr., ambiguously testified that he could

not remember being served. Thus, the trial court based its decision on the positive

testimony of Mr. Baudoin, Jr., that he was the person served by the sheriff. A factual

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determination by the trial court is subject to a manifest error review. Rosell v. ESCO,

549 So.2d 840 (La.1989). We find no manifest error in the trial court’s factual

finding in this regard. Applying the principles set forth in the Roper decision to the

instant case, and considering the deference to be given to the trial court’s factual

findings, we find no error in the trial court’s judgment declaring the November 2,

1999 judgment a nullity.

DISPOSITION

For the foregoing reasons, we deny the supervisory writ filed by Technisonic

Research, Inc. We tax all costs of these proceedings to Technisonic Research, Inc.

WRIT DENIED.

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