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Southern Pipe & Supply Company, Inc. v. Lopez

Court of Appeals of Louisiana, First Circuit

June 21, 2018

SOUTHERN PIPE & SUPPLY COMPANY, INC.
v.
HECTOR LOPEZ AND LOPEZ MECHANICAL, INC.

          Appealed from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Suit Number 2015-14791 Honorable Raymond S. Childress, Presiding

          Francis R. White, III Covington, LA Counsel for Plaintiff/Appellee Southern Pipe & Supply Co., Inc.

          Jacob E. Roussel Steven B. Loeb Baton Rouge, LA Counsel for Defendants/Appellants Hector Lopez and Lopez Mechanical, Inc.

          BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.

          DRY, JUDGE

         Defendants, Hector Lopez and Lopez Mechanical, Inc., appeal from a judgment of the trial court denying their motion to set aside and/or annul the default judgment rendered against them. For the reasons that follow, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On November 30, 2015, Southern Pipe and Supply Company, Inc. ("Southern Pipe") filed a petition, naming Hector Lopez and Lopez Mechanical, Inc. (collectively "Lopez") as defendants, alleging that Southern Pipe had sold Lopez plumbing supplies and related materials, equipment, and movables for which payment had not been made and made demand for payment and attorney's fees. Counsel requested service of the petition, by personal service only, on Hector Lopez, individually and as agent for service of process for Lopez Mechanical, Inc.

         Thereafter, on October 12, 2016, Southern Pipe, through its attorney Francis R. White, III, filed a motion to enter preliminary default, asserting that personal service had been made on Hector Lopez and Lopez Mechanical, Inc. on December 10, 2015, and that neither party had filed an answer or responsive pleading. According to the court minutes, the trial court ordered the entry of a preliminary default on October 14, 2016. On October 18, 2016, Southern Pipe filed a Rule 9.19 Certificate, seeking to confirm the default judgment in this matter. Also on this date, Francis White filed a motion to substitute counsel of record, seeking to substitute himself for Fritz B. Ziegler, who had filed the petition on behalf of Southern Pipe. The trial court subsequently signed a judgment on November 29, 2016, finding Southern Pipe had made full proof of its claims and rendering judgment in favor Southern Pipe and against Lopez in the amount of $8, 285.06, plus attorney's fees of $2, 000. The trial court also signed an order on the same date, ordering that Francis White be substituted as counsel of record for Southern Pipe.

         On April 3, 2017, Lopez filed a motion to set aside and/or annul the default judgment asserting the judgment is absolutely null because: (1) at the time the preliminary default was filed and entered in the instant matter, Francis White was not the attorney of record for Southern Pipe, and therefore, the preliminary default signed by him is invalid and could not form the basis for the subsequent confirmation of default judgment and (2) Hector Lopez was never served with the petition, either in his individual capacity or on behalf of Lopez Mechanical, Inc.

         The trial court held a hearing on Lopez's motion on May 11, 2017. At the hearing, Southern Pipe entered into evidence the sheriffs returns dated December 10, 2015, indicating personal service on Hector Lopez, individually and as agent for service of process for Lopez Mechanical, Inc. Southern Pipe also presented the testimony of Stephen Griffin, who was employed by the Jefferson Parish Sheriffs Office and served process on Hector Lopez on December 10, 2015. Hector Lopez also testified at the hearing. After reviewing the evidence and listening to the testimony of the witnesses, the trial court found that Lopez had failed to overcome the presumptive correctness of the sheriffs returns. The trial court thereafter signed an order denying Lopez's motion to set aside and/or annul the default judgment.

         Lopez now appeals from the trial court's judgment.

         DISCUSSION

         Absent an express waiver, citation and service thereof are essential in all civil actions. La. C.C.P. art. 1201. A judgment rendered against a defendant who has not been served with process as required by law is an absolute nullity. See La. C.C.P. arts. 1201 and 2002(A)(2). Tunnard v. Simply ...


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