Court: Louisiana Court of Appeal; November 9, 1986; Louisiana; State Appellate Court
Defendant/appellant Steve Pumilia, operating as Progressive Lighting, appeals a trial court judgment that dismissed his Petition for Nullity of a default judgment rendered against him on April 29, 1985, in favor of plaintiff/appellee Christopher R. Fanguy, d/b/a Dixie Lighting Supply Company. The judgment ordered Pumilia to pay $3,583.81 plus interest, attorney's fees, and court costs. Pumilia had entered into an agreement with Dixie Lighting, executing a promissory note on November 16, 1984, in which he personally guaranteed payment for merchandise received. Despite agreeing to pay invoices within 10 to 30 days, Pumilia failed to respond to payment requests after 33 days. Subsequently, Fanguy filed suit for the outstanding amount, leading to a default judgment after proper service on April 1, 1985.
Pumilia's Petition for Nullity, filed on November 4, 1985, claimed invalidity due to lack of proper service and disputing his ownership of Progressive Lighting and liability for its debts. A hearing on February 14, 1986, resulted in the dismissal of his petition, with the judge affirming the validity of service and stating that ownership and liability issues should have been raised in the original action. Pumilia's appeal focuses on the claim of improper service, asserting he was not at the cited address and was working elsewhere at the time. The trial judge prohibited testimony regarding ownership, citing that proper service negated further evidence on the case's merits. The legal basis for nullity is outlined in Louisiana Civil Code Procedure Articles 2002-2006, specifically stating that a final judgment can be annulled if rendered against a defendant not served as required by law.
La.C.C.P. Art. 2004 allows for the annulment of final judgments obtained through fraud or ill practices. The appellant claimed he was not properly served, but during cross-examination, he acknowledged the possibility of being at his residence on the relevant dates. Testimony from a moving company representative confirmed the appellant was at his home on those dates, and invoices signed by the appellant supported this. A Judicial Process Server testified that he served the appellant at his residence on April 1, 1985, and this service is considered prima facie evidence under Louisiana jurisprudence. The burden of proof rests on the appellant to demonstrate a lack of service by clear and convincing evidence, which he failed to provide. The trial court found no error in its conclusion that the appellant was properly served. Furthermore, the appellant's claims regarding the ownership of Progressive Lighting and the alleged unconscionability of the judgment were deemed inappropriate for consideration in a petition for nullity, as these should have been raised as affirmative defenses in the original suit. The court reiterated that a nullity action cannot substitute for an appeal and affirmed the trial court's judgment, with the appellant responsible for the appeal costs.
