Bobby Wilkerson Versus Terry Hunter and Abc Insurance Company ( 2024 )

BOBBY WILKERSON NO. 24-CA-17
VERSUS FIFTH CIRCUIT
TERRY HUNTER AND ABC INSURANCE COURT OF APPEAL
COMPANY
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 796-266, DIVISION "B"
HONORABLE R. CHRISTOPHER COX, III, JUDGE PRESIDING
July 17, 2024
SCOTT U. SCHLEGEL
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Scott U. Schlegel
VACATED AND REMANDED
SUS
FHW
JGG
COUNSEL FOR PLAINTIFF/APPELLEE,
BOBBY WILKERSON
John W. Redmann
Edward L. Moreno
Travis J. Causey, Jr.
Benjamin B. Perkins
Lisa Z. Gilmore
Jordan R. Westerfield
Christopher J. Fransen
Matthew J. Pertuit
COUNSEL FOR DEFENDANT/APPELLANT,
PAMELA HUNTER AND THE ESTATE OF TERRY HUNTER
Alistair A. Adkinson
SCHLEGEL, J.
This matter involves a premises liability lawsuit initially brought by
plaintiff/appellee, Bobby Wilkerson, against decedent, Terry Hunter, on June 14,
2019. Upon learning of the decedent’s death during the pendency of these
proceedings, Mr. Wilkerson filed a supplemental and amending petition to
substitute defendants, The Estate of Terry Hunter (the “Estate’) and the decedent’s
spouse, Pamela Hunter. Mr. Wilkerson utilized the Louisiana Long-Arm Statute,
La. R.S. 13:3201, et. seq., to serve the original and substituted defendants in
California. After receiving no response to the petition, Mr. Wilkerson obtained a
default judgment against the Estate and Ms. Hunter on June 5, 2023.
On appeal, defendants argue that the default judgment is absolutely null
because: 1) Mr. Wilkerson failed to comply with the requirements to serve a party
and to obtain a default judgment under the long-arm statute; and 2) the Estate is not
a proper party defendant. Defendants also argue that the default judgment must be
reversed because Mr. Wilkerson did not present any evidence to establish liability
against Ms. Hunter as an owner of the subject property. In his appellee brief, Mr.
Wilkerson agrees that the default judgment should be reversed after reviewing “the
procedural posture of this case and the case law pertaining to a deceased
defendant.” For reasons discussed more fully below, we agree that the default
judgment is absolutely null due to Mr. Wilkerson’s failure to comply with the
prerequisites required to obtain a default judgment under La. R.S. 13:3205 of the
long-arm statute. Thus, we vacate the default judgment and remand for further
proceedings.
FACTS AND PROCEDURAL BACKGROUND
Mr. Wilkerson alleges that a branch from a “dangerous/diseased” tree fell on
his head and left shoulder when he was on his property located at 903 Estalote
Avenue in Harvey, Louisiana on October 16, 2018, causing serious injuries. He
24-CA-17 1
alleges that the tree was located on the adjacent property owned by the decedent at
909 Estalote Avenue. Mr. Wilkerson filed a petition for damages on June 14,
2019, and sent service of process to the decedent by certified mail at an address in
Spring Valley, California via the Louisiana Long-Arm Statute, La. R.S. 13:3201,
et. seq. When the decedent failed to file a response, Mr. Wilkerson moved for a
preliminary default, which the trial court granted on October 15, 2019. Before
Mr. Wilkerson confirmed the default judgment, the decedent passed away on May
27, 2022.
Mr. Wilkerson then filed an Ex Parte Motion and Order for Leave to
Substitute Parties-Defendants and to File First Supplemental and Amending
Petition for Damages. In his motion, Mr. Wilkerson asked to substitute “The
Estate of Terry Hunter and Pamela Hunter” as defendants for the decedent because
he had discovered that both the decedent and his surviving spouse, Pamela Hunter,
owned the subject property. On October 11, 2022, the trial court granted Mr.
Wilkerson leave to substitute defendants due to the decedent’s death and to file the
First Supplemental and Amending Petition for Damages.1 Mr. Wilkerson then sent
service to defendants by certified mail at the same address in Spring Valley,
California via the long-arm statute.
Defendants did not respond to the petition, so on April 3, 2023, Mr.
Wilkerson moved for a default judgment. At the default hearing on May 25, 2023,
Mr. Wilkerson provided brief testimony regarding his injuries and conversations
with the decedent about the need to trim the tree limbs or cut the tree down due to
its poor condition. Mr. Wilkerson also introduced his medical records and
itemized court costs into evidence. Following the hearing, the trial court granted
1
We observe that despite his request to substitute Ms. Hunter as a defendant for the decedent in his motion for
leave, the supplemental and amending petition only adds Ms. Hunter in her individual capacity as an owner of the
subject property, and not in a representative capacity as a legal successor of the decedent. Further, there is no
evidence in the record to determine whether Ms. Hunter is the appropriate legal successor to join in this matter as set
forth in La. C.C.P. arts. 801-804, which govern substitutions following the death of a party.
24-CA-17 2
the motion for default judgment. On June 5, 2023, the trial court signed a
judgment entering a default judgment in favor of Mr. Wilkerson and against
defendants, The Estate of Terry Hunter and Pamela Hunter, awarding Mr.
Wilkerson $13,882.51 for past medical expenses, $12,000.00 for general damages,
and $1,164.85 for costs.
On August 6, 2023, Ms. Hunter filed a notice of appeal, and the following
day on August 7, 2023, “purported Defendant, The Estate of Terry Hunter” filed its
notice of appeal. The trial court granted the orders of appeal on August 17, 2023.
LAW AND ANALYSIS
On appeal, defendants argue that this Court should reverse the default
judgment on several different grounds, including: 1) the default judgment is an
absolute nullity because the trial court did not have personal jurisdiction over
them; 2) the trial court erred in granting the default judgment because Mr.
Wilkerson failed to provide sufficient proof that defendants owned or had custody,
care or control of the property at issue; 3) the trial court erred in granting the
default judgment because Mr. Wilkerson failed to provide sufficient proof that Ms.
Hunter had knowledge of any defects in the property; and 4) the decedent’s estate
is not a proper party defendant or succession representative. Defendants further
ask this Court to dismiss Mr. Wilkerson’s case with prejudice.
In response, Mr. Wilkerson filed an appellate brief acknowledging and
agreeing that the default judgment should be reversed and the matter remanded
after reviewing “the procedural posture of this case and the case law pertaining to a
deceased defendant.” Mr. Wilkerson indicates that he is willing to pursue a joint
dismissal of the appeal, but that defendants are inclined to proceed with the appeal
process. Mr. Wilkerson does not address the merits of defendants’ appellate
arguments, other than to argue that no authority warrants the dismissal of his case.
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Mr. Wilkerson further recognizes that before a court can enter a judgment for or
against a deceased party, substitution of a legal successor is required.
In their first assignment of error, defendants contend that the default
judgment is an absolute nullity because personal jurisdiction does not exist over
them under the long-arm statute. Defendants specifically argue that the record
does not contain any evidence to establish that Mr. Wilkerson sent service of
process to the decedent’s or substituted defendants’ correct residential address.
Defendants further argue that the return for service of process sent to the decedent
indicates that an individual with the initials “A.B.”, rather than the decedent,
signed the return.
La. C.C.P. art. 2002(A)(2) provides that a final judgment shall be annulled if
it is rendered against “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.”
Section 3201 of the Louisiana Long-Arm Statute, entitled “Personal
jurisdiction over nonresidents” provides in pertinent part:
A. A court may exercise personal jurisdiction over a nonresident, who
acts directly or by an agent, as to a cause of action arising from any
one of the following activities performed by the nonresident:
* * *
(3) Causing injury or damage by an offense or quasi offense
committed through an act or omission in this state.
* * *
(5) Having an interest in, using or possessing a real right on
immovable property in this state.
Service of process is critical to the exercise of personal jurisdiction over a
defendant. Duhon v. Brouillette, 16-82 (La. App. 3 Cir. 6/1/16), 195 So.3d 658,
661. Personal jurisdiction over non-residents is fully dependent upon strict
compliance with the long-arm statute’s procedural requirements. Clay v. Clay, 389
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So.2d 31, 37 (La. 1979) (holding that a default judgment may not be taken against
a person who has not received citation and service); Folse v. St. Rose Farms, Inc.,
14-436 (La. App. 5 Cir. 11/25/14), 165 So.3d 104, 108.
Service of process under La. R.S. 13:3204 requires as follows:
A. In a suit under R.S. 13:3201, a certified copy of the citation . . . and
of the petition . . . shall be sent by counsel for the plaintiff, or by the
plaintiff if not represented by counsel, to the defendant by registered
or certified mail, or actually delivered to the defendant by commercial
courier, when the person to be served is located outside of this state or
by an individual designated by the court in which the suit is filed, or
by one authorized by the law of the place where the service is made to
serve the process of any of its courts of general, limited, or small
claims jurisdiction.
The contents of the affidavit of service of process that a plaintiff must submit
before a court can enter a default judgment against a nonresident defendant is
explained in La. R.S. 13:3205:
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.
(2) Utilized the services of a commercial courier to make delivery of
the process to the defendant, showing the name of the commercial
courier, the date, and address at which the process was delivered to
the defendant, to which shall be attached the commercial courier's
confirmation of delivery.
(3) Actually delivered the process to the defendant, showing the date,
place, and manner of delivery. (Emphasis added.)
The requirements of Section 3205 must be strictly construed. Edwards v.
Mathieu, 14-673 (La. App. 4 Cir. 3/11/15), 163 So.3d 110, 114, writ denied, 15-
736 (La. 6/1/15), 171 So.3d 934. A preliminary default judgment obtained without
strict compliance with the procedural requirements of La. R.S. 13:3205 is an
24-CA-17 5
absolute nullity. Id.; Corte v. Cash Technologies., Inc., 02-846 (La. App. 1 Cir.
4/2/03), 843 So.2d 1162, 1166.
In Edwards, supra, the plaintiff sued the defendant to establish paternity and
child support, serving defendant via the long-arm statute. The plaintiff obtained a
default judgment against the defendant, but on appeal, the defendant argued that
the default judgment was absolutely null because he was not properly served. The
affidavit of service filed by the plaintiff pursuant to La. R.S. 13:3205 indicated that
“L. Graziano” signed the service return. The appellate court determined the
default judgment was absolutely null because neither the affidavit nor the service
return identified “L. Graziano” as the defendant’s agent or someone otherwise
authorized to receive mail for the defendant. Id. at 115; see also Hebert v. Elegant
Reflections, LLC, 23-278 (La. App. 3 Cir. 12/20/23), 377 So.3d 453, 458-59.
As explained above, plaintiff initially mailed the citation and original
petition to the decedent by certified mail. The affidavit of service filed in the
record on July 19, 2019, attached a return indicating that an individual identified as
“A.B.” signed for the mailing. Just as in Edwards, neither the affidavit nor the
signed return includes any information to identify “A.B.” or to explain this
individual’s authority to accept mail for the decedent. Section 3205(1) states that
in order to obtain a default judgment, the affidavit must attach “the return receipt
of the defendant.” Because the affidavit fails to establish compliance with La. R.S.
13:3205, the default judgment rendered against defendants is an absolute nullity.2
We also observe a deficiency in the affidavit of service submitted on January
4, 2023, after plaintiff’s counsel sent service of process to the substituted/added
defendants by means of the long-arm statute. The subsequent affidavit indicates
that “a certified copy of the Citation and First Supplemental Amending Petition for
2
We do not reach the issue of whether Mr. Wilkerson forwarded process to the decedent’s or defendants’ correct
residential address because we do not have sufficient information in the record to resolve this issue.
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Damages” was sent by certified mail. The affidavit does not indicate whether the
certified mailing included a copy of the original petition.
When a supplemental or amended petition is filed naming any additional
defendant, La. C.C.P. art. 1201(C) requires the plaintiff to serve the additional
defendant “with the original petition and the supplemental or amended petition.”
Service of the original petition is a critical component of service of process, and
without service of the original petition, the court has no personal jurisdiction over
the newly added defendant. Duhon, 195 So.3d at 661-62 (declaring default
judgment a nullity because added defendant was not served with original petition);
Dickinson v. National Soc. of Health, 589 So.2d 632 (La. App. 5th Cir. 1991);
Camper and Camper, Ltd. v. Paul, 13-2116, p. 1 (La. App. 1 Cir. 7/9/14), 2014
WL 3362168. Accordingly, we further find that the judgment against the Estate
and Pamela Hunter is an absolute nullity because the affidavit of service does not
state whether plaintiff’s counsel included the original petition with the certified
mailing.3
CONCLUSION
Based on the foregoing, we find that the default judgment entered against
defendants, The Estate of Terry Hunter and Pamela Hunter, is an absolute nullity
and vacate the judgment. The matter is remanded for further proceedings.
VACATED AND REMANDED
3
In assignment of error four, defendants also argue that the trial court erred by entering a default judgment against
“The Estate of Terry Hunter” because it is not a party capable of being sued and cast in judgment for money
damages. Before a trial court can enter a judgment for or against a deceased party, substitution of a legal successor
is essential. See First Bank and Trust v. Proctor’s Cove II, LLC, 19-299 (La. App. 5 Cir. 12/30/19), 287 So.3d 888,
898; Frank L. Maraist, 1 La. Civ. Law Treatise, Civil Procedure, § 4:13 (2d Ed.). La. C.C.P. art. 801(2) defines a
legal successor for purposes of substitution following the death of a defendant as “the succession representative of
the deceased appointed by a court of this state, if the succession is under administration therein; or the heirs and
legatees of the deceased, if the deceased’s succession is not under administration therein.” The Estate is not a proper
legal successor and thus, the default judgment entered against it is also a nullity on these grounds. See First Bank,
supra. Based on our findings that the default judgment is an absolute nullity, we pretermit discussion of defendants’
additional assignments of error.
24-CA-17 7
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JULY 17, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
24-CA-17
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
R. CHRISTOPHER COX, III (DISTRICT JUDGE)
BENJAMIN B. PERKINS (APPELLEE) EDWARD L. MORENO (APPELLEE) ALISTAIR A. ADKINSON (APPELLANT)
MAILED
CHRISTOPHER J. FRANSEN (APPELLEE) JOHN W. REDMANN (APPELLEE)
ATTORNEYS AT LAW JORDAN R. WESTERFIELD (APPELLEE)
1101 WESTBANK EXPRESSWAY LISA Z. GILMORE (APPELLEE)
GRETNA, LA 70003 MATTHEW J. PERTUIT (APPELLEE)
TRAVIS J. CAUSEY, JR. (APPELLEE)
ATTORNEYS AT LAW
1101 WESTBANK EXPRESSWAY
GRETNA, LA 70053