SOUTHERN PIPE & SUPPLY COMPANY, INC.
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.
E. Roussel Steven B. Loeb Baton Rouge, LA Counsel for
Defendants/Appellants Hector Lopez and Lopez Mechanical, Inc.
BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
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.
AND PROCEDURAL HISTORY
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.
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.
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.
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.
now appeals from the trial court's judgment.
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