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Gordon v. A-1 St. Bernard Taxi & Delivery

Court of Appeals of Louisiana, Fourth Circuit

August 9, 2017


         APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION NO. 15-05122, DISTRICT "EIGHT" Honorable Robert Varnado, Workers' Compensation Judge.


          Sherri L. Hutton Leslie E. Hodge Lindsey F. Louapre BROWN SIMS, COUNSEL FOR DEFENDANT/APPELLANT.

          Court composed of Judge Rosemary Ledet, Judge Regina Bartholomew Woods, Judge Paula A. Brown.


         This is a workers' compensation case. The defendant, A-1 St. Bernard Taxie & Delivery, LLC ("A-1"), appeals the August 4, 2016 judgment of the Louisiana Office of Workers' Compensation (the "OWC") rendered in favor of the claimant, Veronica Gordon. For the reasons that follow, we reverse and remand for further proceedings.


         On May 2, 2015, Ms. Gordon was involved in a motor vehicle accident while working as an independent contractor for A-1. At the time of the accident, Ms. Gordon was driving a cab owned by A-1. Three days later, she sought treatment at the emergency room for pain in her left arm, shoulder, neck, and back.

         On August 17, 2015, Ms. Gordon filed a disputed claim for compensation- a Form 1008-against A-1 (the "Original Claim"). In the Original Claim, she alleged that A-1 failed to pay wage benefits and to authorize medical treatment. In addition to wage and medical benefits, she sought penalties and attorney's fees. Also in the Original Claim, Ms. Gordon listed A-1's contact information for service as follows: "Attention Vincent Rizzuto, 3301 Delille Street in Chalmette, Louisiana." On August 31, 2016, the OWC notified Ms. Gordon's attorney that service on A-1 was unable to be perfected at that location. The OWC also requested that Ms. Gordon provide it with either the correct address or the name of the registered agent for service of process for service to be reissued.

         On September 8, 2015, Ms. Gordon filed an amended disputed claim for compensation (the "First Amended Claim"). In the First Amended Claim, she listed A-1's and Mr. Rizzuto's address as "227 W. Genie Street, Chalmette, Louisiana." On October 16, 2015, the OWC notified Ms. Gordon's attorney that service could not be perfected at that location. The OWC further explained in the notification that Ms. Gordon's claim could not proceed until service was perfected and it informed her that she could file a motion to appoint a private process server.

         On December 21, 2015, the OWC, sua sponte, ordered that Ms. Gordon show cause why her claim should not be dismissed for failure to prosecute. The record is devoid of a ruling on the dismissal for failure to prosecute. One week later, however, Ms. Gordon filed a motion to appoint Jeff Toepfer as special process server, which the OWC granted.

         On February 3, 2016, Ms. Gordon filed a second disputed claim for compensation (the "Second Amended Claim"), in which she changed A-1's and Mr. Rizzuto's address to "3201 Delille Street, Chalmette, Louisiana." On that same date, she filed a "Motion to Appoint Louisiana Secretary of State as Agent for Service of Process." In her motion, Ms. Gordon stated that Mr. Toepfer made several unsuccessful attempts to serve A-1's agent for service of process; a copy of Mr. Toepfer's affidavit was attached to Ms. Gordon's motion. Thereafter, the OWC granted Ms. Gordon's motion and appointed the Secretary of State as A-1's agent for service of process. On February 10, 2016, the Secretary of State transmitted, by certified mail, the Second Amended Claim to A-1's last known mailing address.

         On April 25, 2016, the OWC again ordered Ms. Gordon to show cause why her claim should not be dismissed for failure to prosecute. A minute entry reflects that on May 12, 2016, the OWC denied the motion. Four days later, the OWC scheduled a telephone status conference, which was held on June 22, 2016.[1] On that same date, the OWC judge issued a scheduling order and set an August 2, 2016 trial date.[2]

         On the scheduled trial date, a trial against A-1 proceeded without either counsel or any representative of A-1 being present.[3] Ms. Gordon was the only witness to testify at trial. At the close of Ms. Gordon's case, the OWC ruled in her favor.[4] On August 3, 2016, A-1's attorney filed a motion to enroll. On August 4, 2016, the OWC granted A-1's attorney's motion to enroll and rendered a judgment in Ms. Gordon's favor.[5] Thereafter, the OWC denied A-1's motion for new trial. This appeal followed.


         In workers' compensation cases, the standard of review to be applied by an appellate court to the OWC's findings of fact is the manifest error-clearly wrong standard. Orozco v. Aries Bldg. Sys., Inc., 16-0187, p. 5 (La.App. 4 Cir. 9/28/16), 202 So.3d 1018, 1022, writ denied, 16-1949 (La. 12/16/16), 212 So.3d 1173 (citing Dean v. Southmark Constr., 03-1051, p. 7 (La. 7/6/04), 879 So.2d 112, 117). "'When legal error interdicts the fact-finding process in a workers' compensation proceeding, the de novo, rather than the manifest error, standard of review applies.'" Orozco, 16-0187 at p. 5, 202 So.3d at 1023 (quoting MacFarlane v. Schneider Nat'l Bulk Carriers, Inc., 07-1386, p. 3 (La.App. 4 Cir. 4/30/08), 984 So.2d 185, 188).


         Although A-1 raises six assignments of error on appeal, [6] we find this appeal presents two issues: (i) whether A-1 was properly served; and (ii) whether the OWC erred in rendering judgment in Ms. Gordon's favor.

         A-1 contends that it was never properly served with Ms. Gordon's citation or any of her disputed claims for compensation. A-1 argues that there was only one attempt to serve its registered agent at its agent's proper address before Ms. Gordon sought service through the Secretary of State. A-1 further argues that service was never perfected by the Secretary of State because the certified mail containing the citation was never delivered; rather, the tracking information showed it was still in transit to its destination at the time of trial. According to A-1, the OWC erred in rendering judgment against A-1 when it was never served as required by law. A-1 thus contends that the OWC's judgment must be annulled.

         Ms. Gordon counters that service on A-1 was perfected when the Secretary of State forwarded the citation to A-1's last known address. According to Ms. Gordon, the law "simply requires the Secretary of State to forward the citation of service, nothing more." Louisiana Truck Parts, Inc. v. W & W Clarklift, Inc., 444 So.2d 733, 734 (La.App. 5th Cir. 1984); see also Bastian v. Wallace Colored Sch. Club, 11-708, p. 7 (La.App. 5 Cir. 5/8/12), 99 So.3d 680, 683. Furthermore, she contends that Mr. Rizzuto, A-1's registered agent, received notice of the trial date, yet he failed to retain counsel or appear at trial. Given A-1 was served as required by law and had notice of the trial, Ms. Gordon submits that the OWC's judgment was correct.

         A judgment rendered against a defendant who has not been served with process as required by law is an absolute nullity, and the judgment shall be annulled. La. C.C.P. art. 2002(A)(2);[7] Brown v. Unknown Driver, 05-0421, p. 11 (La.App. 4 Cir. 1/18/06), 925 So.2d 583, 590 (citing Advanta Bank Corp. v. First Mount Zion Baptist Church, 03-732, p. 4 (La.App. 5 Cir. 12/30/03), 865 So.2d 165, 167); see also Tunnard v. Simply S. Homes, L.L.C., 07-0945, p. 3 (La.App. 1 Cir. 3/26/08), 985 So.2d 166, 168. In ordinary civil actions, the requirements for service of process upon a limited liability company are set forth in La. C.C.P. art. 1266, which provides as follows:

A. Service of citation or other process on a domestic or foreign limited liability company is made by personal service on any one of its agents for service of process.
B. If the limited liability company has failed to designate an agent for service of process, if there is no registered agent by reason of death, resignation, or removal, or if the person attempting to make service certifies that he is unable, after due diligence, to serve the designated agent, service of the citation or other process may be made by any of the following methods:
(1)Personal service on any manager if the management of the limited liability company is vested in one or more managers or if management is not so vested in managers, then on any member.
(2) Personal service on any employee of suitable age and discretion at any place where the business of the limited liability company is regularly conducted.
(3)Service of process under the provisions of R.S. 13:3204, if the limited liability company is subject to the provisions of R.S. 13:3201.[8]

         In workers' compensation cases, service may also be made on a named defendant by certified mail. See La. R.S. 23:1310.3(B);[9] see also Jefferson Par. Hosp. Serv. Dist. No. 2 v. K & W Diners, LLC, 10-767, p. 7 (La.App. 5 Cir. 4/12/11), 65 So.3d 662, 666-67.

         "Proper citation is the cornerstone of all actions. The law is, moreover, patently clear that actual knowledge cannot supplant the need for strict compliance with the requisites of proper citation." Elkins v. Louisiana Dep't of Agric. & Forestry, 36, 829, p. 2 (La.App. 2 Cir. 3/5/03), 839 So.2d 992, 993 (citing Rivers v. Groth Corp. 95-2509, p. 2 (La.App. 1 Cir.9/27/96), 680 So.2d 762, 763). Nonetheless, when service on an agent for service of process cannot be effectuated with due diligence, a process server may be appointed. La C.C.P. art. 1266(B). After the process server certifies his inability to make service in accordance with Article 1266, a plaintiff may alternatively serve the Secretary of State. La. C.C.P. art. 1267;[10]see also Kallauner v. One Source Const., LLC, 08-0883, p. 3 (La.App. 4 Cir. 10/8/08), 995 So.2d 59, 61 (noting that "[a]ccording to La. C.C.P. art. 1266, service pursuant to La. C.C.P. art. 1266 B may only be used where service pursuant to La. C.C.P. art. 1266 A cannot be effectuated with due diligence."). This court in Kallauner further noted that "the process server must certify that he was 'unable, after due diligence, to serve the designated agent' before an alternative means of service becomes acceptable.'" 08-0883 at p. 3, 995 So.2d at 61 (quoting La. C.C.P. art. 1266) (emphasis in original); see also Willis v. TMB P'ship, 45, 813, p. 5 (La.App. 2 Cir. 12/15/10), 56 So.3d 324, 327 ...

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