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Folse v. St. Rose Farms, Inc.

Court of Appeals of Louisiana, Fifth Circuit

November 25, 2014

EARL A. FOLSE
v.
ST. ROSE FARMS, INC

ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ST. JAMES, STATE OF LOUISIANA. NO. 35,991, DIVISION " E" . HONORABLE ALVIN TURNER, JR., JUDGE PRESIDING.

DANIEL A. CAVELL, ATTORNEY AT LAW, Thibodaux, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.

JULES A. CARVILLE, III, ATTORNEY AT LAW, Laplace, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.

Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Robert M. Murphy.

OPINION

ROBERT M. MURPHY, J.

Page 105

[14-436 La.App. 5 Cir. 2] In this action to enforce a right of first refusal, plaintiff/appellee, St. Rose Farms, Inc., obtained a judgment by default against defendant/appellant, Earl A. Folse. Finding facial defects with the default judgment, we vacate the judgment and remand the matter to the trial court for further proceedings.

Page 106

FACTS AND PROCEDURAL HISTORY

On December 22, 2000, Earl A. Folse executed an Act of Sale of Property, selling 86 acres of land in St. James Parish to St. Rose Farms, Inc. (" SRF" ). The Sale was recorded on January 4, 2001. The Act of Sale contained a provision in Paragraph Two, under the subheading " Declarations and Reservations:"

Vendor reserves unto himself the batture portion of the Tracts I and V, lying between La. Hwy. 44 and the Mississippi River, which batture is not included in the property conveyed, and which batture remains owned by Vendor. In the event Vendor hereafter receives a written offer to purchase said batture, Vendee shall be notified of the same and shall have thirty days to elect to match said offer and purchase said batture.

[14-436 La.App. 5 Cir. 3] On October 5, 2005, Earl Folse transferred the batture property to his son, Eldred J. Folse, with consideration stated as $1,000.00. Earl Folse did not notify SRF of the sale of the batture, nor did he provide SRF with the opportunity to purchase the property at the stated price. The latter Act of Sale was recorded on October 12, 2005. Since that date, plaintiff alleges that Eldred Folse has possessed the property and paid the applicable taxes.

On August 9, 2013, SRF filed a Petition to Enforce Right of First Refusal contending that the 2000 Act of Sale required Earl Folse to notify SRF of his intention to sell the batture property and provide SRF the opportunity to purchase the property. SRF contended that Earl Folse's failure to do so constituted grounds to rescind the October 2005 sale from Earl Folse to Eldred Folse and to permit SRF to purchase the batture property for $1,000.00.

On August 13, 2013, SRF attempted service on Earl Folse through Louisiana's long-arm statute, La. R.S. 13:3201, et seq. The affidavit of service, executed by Wanda P. Acosta, was filed on September 9, 2013. She testified that she " prepared and mailed a letter, which included a certified copy of the Petition to Enforce Right of First Refusal." Her affidavit further indicated that she mailed the " letter and attachments to the defendant, Mr. Earl J. Folse, 5637 Clay Ridge Rose [sic], North Las Vegas, NV 89031 by certified mail, return receipt requested, properly addressed with sufficient postage prepaid (as reflected by the receipt of the United States Post Office)." She further stated that the letter and certified copies of the documents were returned with the notation " refused." In fact, the envelope in the record in addition to " refused," bears notations of " attempted," " not known," " unable to forward," and " return to sender." A preliminary default was entered on December 5, 2013 on motion of SRF which alleged that Earl Folse was properly served pursuant to the long-arm provisions.

[14-436 La.App. 5 Cir. 4] On April 7, 2014, the trial court took up confirmation of the default: it heard the testimony of Mark Hymel and Louis Hymel, President and Secretary of SRF, respectively, as to the 2000 and 2005 Acts of Sale, both entered into evidence. That same date, the trial court confirmed the default in favor of SRF and against Earl Folse, ordering that the subsequent sale between Earl Folse and Eldred Folse be rescinded and declared null and void, that the property be transferred from Earl Folse to SRF for the sum of $1,000.00, ...


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