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Rabito v. McLain Investments, LLC

Court of Appeals of Louisiana, Fourth Circuit

January 23, 2019

JUDITH RABITO
v.
MCLAIN INVESTMENTS, LLC, SYLVIA MCCLAIN, DOUGLAS COOK ENTERPRISES, ABC SUBCONTRACTOR, JOHN DOE AND XYZ INSURANCE COMPANY

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-08775, DIVISION "L-6" Honorable Kern A. Reese, Judge

          Ravi K. Sangisetty Parker N. Hutchinson SANGISETTY LAW FIRM, L.L.C. COUNSEL FOR PLAINTIFF/APPELLEE

          Stephen O. Scandurro Krista M. Eleew SCANDURRO & LAYRISSON, L.L.C. Andrew D. Weinstock Linda A. Hewlett DUPLASS, ZWAIN, BOURGEOIS, PFISTER, WEINSTOCK & BOGART COUNSEL FOR DEFENDANT/APPELLANT

          (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase)

          TIFFANY G. CHASE JUDGE.

         Defendant-appellant, Douglas Cook Enterprises, LLC (hereinafter "DCE"), appeals a default judgment in favor of plaintiff-appellee, Judith Rabito (hereinafter "Ms. Rabito"), awarding Ms. Rabito $571, 730.00 for injuries she alleged in her tort action. For the following reasons, we reverse the June 28, 2018 default judgment and remand the matter for further proceedings.

         FACTUAL AND PROCEDURAL HISTORY

         Ms. Rabito filed this instant tort action alleging she fell into an open elevator shaft sustaining injuries resulting from the negligence of DCE, McClain Investments, LLC (hereinafter "McClain, LLC"), Sylvia McClain (hereinafter "Ms. McClain"), unknown subcontractors, and defendants' various insurers.[1]Service of the petition was requested on the named defendants including DCE through its registered agent, Douglas Cook (hereinafter "Mr. Cook").

         On September 18, 2015, service was attempted by the Jefferson Parish Sheriff's Office (hereinafter "JPSO") at the registered address provided for Mr. Cook, as listed in the Secretary of State's database. The deputy attempting service was advised that Mr. Cook did not reside at the address and indicated such on the back of the citation cover sheet. In January 2016, Ms. Rabito requested the Clerk of Court reissue service at the regular business location of DCE. After five attempts at that location, the JPSO was still unable to effectuate service on Mr. Cook. These attempts by the deputy were noted on the back of the January 26, 2016 citation.

         Ms. Rabito filed a motion to appoint a private process server, John Huck (hereinafter "Mr. Huck"), which the trial court granted. On April 7, 2016, Mr. Huck allegedly made additional unsuccessful attempts at service on Mr. Cook, both at DCE's place of business and the registered address. The next day, Mr. Huck returned to DCE's place of business and tendered the petition and citation to Mike Labat (hereinafter "Mr. Labat") who accepted and signed the service papers.

         Ms. Rabito filed a motion for a preliminary default which was entered on November 13, 2017. A motion to confirm the default was subsequently filed on June 25, 2018. Attached to the motion to confirm were two exhibits. Exhibit A was a Certification of Counsel which asserted "Mr. Huck perfected service of the Petition on April 8, 2016." It included a copy of the trial court's order appointing Mr. Huck as private process server and copies of the citations and sheriff's returns. Exhibit B was the Affidavit of Judith Rabito which attested to various assertions regarding the underlying tort at issue.

         At the hearing to confirm the default, Ms. Rabito introduced additional evidence into the record although none of it pertained to the issue of service. Ruling from the bench, the trial court stated:

Service was made on Douglas Cook Enterprises, LLC on April 8, 2016, at the Offices of Douglas Cook Enterprises, LLC, 125 Zinnia Street, Metairie, Louisiana, placed in the hands of Mike Labat, manager/employee of Douglas Cook Enterprises, LLC.

         The judgment was reduced to writing and signed by the trial court on June 28, 2018, entering judgment in favor of Ms. Rabito ...


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