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Morice v. Alan Yedor Roofing and Construction

Court of Appeals of Louisiana, Fifth Circuit

February 8, 2017

DR. NATCHEZ MORICE
v.
ALAN YEDOR ROOFING AND CONSTRUCTION, ET AL

         ON APPEAL FROM THE SECOND PARISH COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 86-198, DIVISION "A" HONORABLE ROY M. CASCIO AND HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, DR. NATCHEZ MORICE Melvin G. Ripp, Jr.

          COUNSEL FOR DEFENDANT/APPELLANT, ALAN YEDOR ROOFING AND CONSTRUCTION Albert J. Nicaud Jeffrey M. Siemssen.

          Panel composed of Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg.

         JUDGMENT VACATED AND MATTER REMANDED FOR FURTHER PROCEEDINGS

         HJL

         FHW

         JGG

          HANS J. LILJEBERG JUDGE

         Defendant-Appellant, Alan Yedor Roofing and Construction, appeals a default judgment rendered against it on May 15, 2003. For the reasons set forth more fully below, we vacate the default judgment and remand this matter to the trial court for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         This matter has a long and convoluted procedural history. On July 25, 2002, plaintiff-appellee, Dr. Natchez Morice, filed a petition for damages against defendants, Alan Yedor Roofing and Construction and Alan Yedor, in the Second Parish Court for the Parish of Jefferson, State of Louisiana. The petition alleges these defendants owed Dr. Morice damages caused by faulty repairs to the roof of an office building owned by Dr. Morice. Dr. Morice requested service of the petition on both defendants at 1507 Demothenes Street in Metairie, Louisiana. The service returns filed in the record indicate the deputy sheriff was unable to affect service because defendants were "not at this address."

         On August 16, 2002, Dr. Morice filed a motion to appoint a private process server and obtained an order from the trial court authorizing Keith Lobrano to serve defendants. On August 23, 2002, the Second Parish Court Clerk of Court ("Clerk") issued citations addressed to "Alan Yedor" and "Alan Yedor Roofing & Const." The service return for the citation addressed to "Alan Yedor" indicates Mr. Lobrano personally served "Alan Yedor / roofing & constr" on September 6, 2002, and the return information for the citation addressed to "Alan Yedor Roofing & Construction" indicates personal service on "Alan Yedor" on the same day. Neither return contained information regarding the location where the personal service occurred. In its appellate brief, defendant denies service was perfected.

         On May 15, 2003, Dr. Morice obtained a default judgment against "Alan Yedor Roofing and Construction" for $18, 604.06, as well as legal interest, attorney's fees in the amount of 33⅓% of the amount owed, and court costs. Other than an Affidavit of Non-Military Service, the record does not contain any evidence in support of the claims alleged in his petition. On May 15, 2003, the Clerk issued a "Notice of Judgment" addressed to "Alan Yedor Roofing & Const." at 1507 Demothenes Street for service by a deputy sheriff. On May 28, 2003, the deputy sheriff filed a return indicating defendant was not at the address listed on the notice.

         Almost ten years later, on May 13, 2013, Dr. Morice filed an ex parte motion to revive the May 15, 2003 judgment, which the trial court granted. On May 17, 2013, the Clerk mailed a notice of signing of judgment to "Alan Yedor Roofing and Construction" at 1507 Demothenes Street. The record contains an envelope indicating the post office returned this mailing to the Clerk undelivered and unable to forward.

         On April 23, 2015, Dr. Morice took his first step to execute the May 15, 2003 judgment by filing a judgment debtor rule against Alan Yedor.[1] The trial court ordered Mr. Yedor to appear for the rule on August 21, 2015, and Dr. Morice requested service on Mr. Yedor at 1721 Barataria Blvd., in Crown Point, La. The service return filed by the deputy sheriff indicates "no such address." On June 29, 2015, the deputy sheriff personally served Alan Yedor with notice of the August 21, 2015 hearing at 7721 Barataria Blvd. in Crown Point/Marrero, La. Mr. Yedor appeared for the rule on August 21, 2015, and the trial court continued the matter to October 22, 2015. The minute entry for the October 22, 2015 hearing indicates the judgment debtor rule was "satisfied by letter."[2]

         On September 15, 2015, Dr. Morice filed a pleading entitled "Writ of Fieri Facias and Order of Sale."[3] On that same day, the trial court entered an order to the Clerk to issue a writ of seizure and sale directing the sheriff to sell property owned by "Alan Yedor, II" to satisfy the judgment. On September 16, 2015, the Clerk issued a writ of fieri facias to the sheriff.

         On November 10, 2015, Dr. Morice filed a motion seeking additional documents from "Alan Yedor, II" in satisfaction of the judgment debtor rule. The matter was originally set for hearing on December 10, 2015. However, when the deputy sheriff was unable to perfect service after numerous attempts, the hearing was rescheduled to February 18, 2016, and Dr. Morice obtained an order from the trial court appointing Mr. Lobrano as a private process server. Mr. Lobrano provided an affidavit stating he personally served "Alan Yedor, II" on January 10, 2016.

         At the February 18, 2016 hearing, Mr. Yedor testified that he was Alan Yedor, II. He further confirmed that at the time Dr. Morice obtained the judgment against him, he was doing business as Alan Yedor Roofing and Construction. He also confirmed that he did not incorporate this business and did not register it as a trade name with the Louisiana Secretary of State.[4] Mr. Yedor also told the trial court he was not served with "papers" regarding this lawsuit prior to the time Dr. Morice obtained the judgment against him and first learned ...


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