Summit Construction, Inc. v. Robinson Contracting & Equipment Rental, Inc.
Summit Construction, Inc. v. Robinson Contracting & Equipment Rental, Inc., 909 So. 2d 684 (La. Ct. App. 2d Cir. 2005).
Cited by
- State, Department of Social Services, Office of Family Support ex rel. T.M.A. v. Pickins 972 So. 2d 1225 La. Ct. App. 2d Cir. 2007
- State, Dss Ex. Rel. Tma v. Pickins 972 So. 2d 1225 La. Ct. App. 2d Cir. 2007
Authorities cited
Identified automatically; this list may not be exhaustive.
- Cardone v. G & R Service Center, Inc. 360 So. 2d 244
- Davis v. Tele-Total, Inc. 465 So. 2d 948
- Houssiere Properties v. Precision Casing International, Inc. 535 So. 2d 1265
- Glessner v. Hyatt 380 So. 2d 222
- Alphonso v. Cement Product Services, Inc. 499 So. 2d 305
- Vanzant v. New England Insurance Co. 502 So. 2d 112
Opinion text
líMOORE, J, concurring. I respectfully concur. In my view, the proof of service of citation is not as conspicuously absent as the majority suggests. The certified copy of “the within Process,” served by an East Baton Rouge Parish deputy on November 1, 2004, included both the petition and the notice of seizure. The fact that the notice of seizure was stamped, but not the citation, may well have been an oversight. Nevertheless, the preliminary default was plainly premature. Service was effected on November 1; Robinson had 15 days to answer. La. C.C.P. art. 1001. Failure to answer within this time exposed him to default. La. C.C.P. art. 1701 A. The first day (November 1) is not included in the delay. La. C.C.P. art. 5059. Robinson therefore had through November 16 to file an answer. The preliminary default entered on that day is premature by one day, and the resulting default judgment is absolutely null. Cardone v. G & R Service Center Inc., 360 So.2d 244 (La.App. 1 Cir.1978). The courts also routinely nullify judgments based on preliminary defaults that predate the 30 days allowed to answer long-arm service. Davis v. Tele-Total Inc., 465 So.2d 948 (La.App. 2 Cir.1985); Houssiere Properties v. Precision Casing Int’l Inc., 535 So.2d 1265 (La.App. 3 Cir.1988); Glessner v. Hyatt, 380 So.2d 222 (La.App. 3 Cir.1980). See also Alphonso v. Cement Product Services Inc., 499 So.2d 305 (La.App. 1 Cir.1986), writ denied 502 So.2d 112 (La.1987). Because the record is clear that Summit’s preliminary default was premature, and the law is settled that the judgment arising from such a default is absolutely null, I would reverse and remand on that basis.