Michael Zerlin and Craig Webre VS Daniel T. Morris
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT V NUMBER 2009 CA 1768 MICHAEL ZERLIN AND CRAIG WEBRE n VERSUS DANIEL T MORRIS Judgment Rendered JUN 1 1 2010 Appealed from the Seventeenth Judicial District Court In and for the Parish ofLafourche Louisiana Trial Court Number 109 983 Honorable Jerome J Barbera III Judge Donald F Harang Jr Attorney for Plaintiffs Appellees Larose LA Michael Zerlin and Craig Webre Daniel T Morris In Proper Person Shreveport LA Defendant Appellant BEFORE WHIPPLE McDONALD McCLENDON HUGHES AND WELCH JJ i q iv 0 vh C CcvtJ 7 Mal jt UK KF S n f WELCH J Daniel T Morris appeals a judgment by default entered against him and in favor of Michael Zerlin in the amount of 50 and in favor of Craig 00 000 Webre in the amount of 100 Additionally Mr Zerlin and Sheriff 00 000 Webre have filed a motion to dismiss the appeal and for contempt In accordance with Uniform RulesCourts of Appeal Rule 216 we deny B 1 the motion to dismiss the appeal and for contempt vacate the judgment of the trial court and remand for further proceedings FACTUAL AND PROCEDURAL HISTORY This matter arises out of a defamation action filed on August 18 2008 by Mr Zerlin and Sheriff Webre against Mr Morris The petition alleged that Mr Morris had defamed Mr Zerlin and Sheriff Webre in a suit brought in a federal district court and in the forums of the Daily Comet and Houma Courier and that Mr Zerlin and Sheriff Webre were injured by the defamatory statements thereby entitling them to damages On September 29 2008 the plaintiffs filed a motion to appoint private process server which the trial court granted on the same date However the record before us does not contain a return on the service of process either by the sheriff or by the private person appointed by the court to make service On January 1 2009 Mr Morris sent a letter to the clerk of court along with a pleading captioned AFFIDAVIT CONCERNING FALSE AND DECEPTIVE STATEMENTS BY OFFICERS OF THE CADDO PARISH SOFFICE wherein he complained about and objected to the manner SHERIFF in which the service of the citation and petition were made on him Along with the petition for damages Mr Zerlin and Sheriff Webre filed interrogatories and request for production of documents to be served on Mr Morris At the confirmation of default counsel for the plaintiffs offered into evidence requests for admissions that were purportedly filed and served with the petition However the record before us does not reflect that requests for admissions were ever filed into the record of these proceedings or that such requests for admissions were ever served on Mr Morris 2 On February 20 2009 Mr Zerlin and Sheriff Webre filed a motion for preliminary default asserting that service of the citation and petition was made on the defendant on December 30 2008 and that Mr Morris had failed to appear or file an answer and therefore requested that a preliminary judgment by default be entered in the matter On February 23 2009 the trial court entered a preliminary judgment by default on the record and in the minutes of these proceedings The judgment was confirmed on July 10 2009 through the testimony of both Mr Zerlin and Sheriff Webre and documentary evidence Specifically the judgment rendered by the trial court was against Mr Morris and in favor of Mr Zerlin in the amount of 50 and in favor of Sheriff 00 000 Webre in the amount of 100 From this judgment Mr Morris has 00 000 appealed MOTION TO DISMISS AND FOR CONTEMPT The plaintiffs have filed a motion to dismiss Mr Morris appeal and for s contempt because his appellate brief does not comply with Uniform Rules Courts of Appeal Rule 212 because Mr Morris brief lacks statements of 4 s 2 Uniform RulesCourts of Appeal Rule 2 12 states 4 The brief of the appellant or relator shall set forth the jurisdiction of the court a concise statement of the case the ruling or action of the trial court thereon a specification or assignment of alleged errors relied upon the issues presented for review an argument confined strictly to the issues of the case free from unnecessary repetition giving accurate citations of the pages of the record and the authorities cited and a short conclusion stating the precise relief sought A copy of the judgment order or ruling complained of and a copy of either the trial court written reasons for judgment transcribed oral reasons for s judgment or minute entry of the reasons if given shall be appended to the brief of the complaining litigant on appeal If reasons for judgment were not given the brief shall so declare Citation of Louisiana cases shall be in conformity with Section VIII of the Louisiana Supreme Court General Administrative Rules Citations of other cases shall be to volume and page of the official reports and when possible to the unofficial reports It is recommended that where United States Supreme Court cases are cited all three reports be cited e Miranda v Arizona 384 g S U 436 86 S 1602 16 L 694 1966 Ct 2d Ed When a decision from another state is cited a copy thereof should be attached to the brief 3 the jurisdiction of the court a concise statement of the case the trial court s ruling specification of errors issues for review argument confined to the cases issues with accurate record citations and authorities and a short conclusion stating the relief sought and because Mr Morris brief purportedly contains s language that is insulting abusive discourteous irrelevant and critical of the trial judge The plaintiffs seek the dismissal of Mr Morris appeal assessment s of costs to Mr Morris and a finding of contempt of court by Mr Morris While Uniform Rules Courts of Appeal Rule 212 sets forth a penalty 4 of contempt it does not provide for the dismissal of the appeal as a penalty for violating the rule Likewise Uniform RulesCourts of Appeal Rule 2 12 13 which addresses non compliant briefs does not set forth the dismissal of the appeal as a penalty instead it provides that b not in compliance with the riefs Rules may be stricken in whole or in part by the court and the delinquent party may be ordered to file a new or amended brief Thus the sanction to be imposed for a non conforming brief is left to the discretion of the court See Williams v Fischer 439 So 1111 1112 La App 0 Cir 1983 2d While the brief filed by Mr Morris does not comply with the Uniform RulesCourts of Appeal Rule 2 12 under the circumstances ofthis case we 4 feel that striking the brief and dismissal of the appeal would be an or The argument on a specification or assignment of error in a brief shall include a suitable reference by volume and page to the place in the record which contains the basis for the alleged error The court may disregard the argument on that error in the event suitable reference to the record is not made All specifications or assignments of error must be briefed The court may consider as abandoned any specification or assignment of error which has not been briefed The language used in the brief shall be courteous free from vile obscene obnoxious or offensive expressions and free from insulting abusive discourteous or irrelevant matter or criticism of any person class of persons or association of persons or any court or judge or other officer thereof or of any institution Any violation of this Rule shall subject the author or authors of the brief to punishment for contempt of court and to having such brief returned El unreasonably harsh remedy to impose on Mr Morris and in deprivation of his right to appeal Accordingly we deny the plaintiffs motion to dismiss and we also decline to strike Mr Morris sbrief See Williams 439 So at 1112 2d As to the plaintiffs contentions that Mr Morris brief contains language s that is insulting abusive discourteous irrelevant and critical of the trial judge we disagree In Mr Morris brief he asserts that the trial court judge should s have recused himself because he was hostile towards Mr Morris sought to retaliate against Mr Morris and had a substantial personal interest in the outcome of the case The remainder of Mr Morris brief contains the factual s allegations supporting his contention that the trial court judge should have recused himself Although a motion to recuse should have first been asserted in the trial court prior to being raised on appeal these allegations of fact if proven to be true may warrant the recusal of the trial judge Therefore we deny the plaintiffs motion seeking to have Mr Morris held in contempt of court for the contents of his brief JUDGMENT BY DEFAULT Pursuant to La C art 1001 a defendant shall file his answer within P fifteen days after service of citation upon him except as otherwise provided by law If the defendant fails to answer within the time prescribed by law judgment by default may be entered against him La C art 1701 P A Mitchell v Bass 2001 2217 p 3 La App 0 Cir 11 835 So 778 02 8 2d 780 It is well settled that a default judgment may not be taken against a person who has not received citation and service thereof Mitchell 2001 2217 at p 3 835 So at 780 2d The record before us contains no evidence that Mr Morris was ever served with a copy of the petition prior to the filing of the motion for preliminary default however Mr Morris did file a pleading into the record E Although this pleading was captioned as an affidavit our courts look beyond the caption style and form of pleadings to determine from the substance of the pleading the nature of the proceeding Thus a pleading is construed for what it really is not for what it is erroneously called Rochon v Young 20081349 p 3 La App l Cir 2 6 So 890 892 writ denied 2009 0745 La 09 13 3d 10 29 1 25 So 892 3d Reviewing the allegations contained in Mr Morris pleading it is clear s that he was objecting to the manner in which service of the citation and petition were made on him An objection to insufficiency of citation or service of process under La C art 925 is properly leveled at the form of the citation P and also focuses on the person to whom citation is delivered or on the manner in which delivery is made Filson v Windsor Court Hotel 20042893 p 3 La 6 907 So 723 726 05 29 2d oting Maraist Frank L and Lemmon Harry T Louisiana Civil Law Treatise Vol 1 5 6 p 108 As such Mr s Morris pleadingobjecting to the manner in which the service of the citation and petition were made on him should have been treated as a declinatory exception raising the objections of insufficiency of citation and insufficiency or of service of process The declinatory exception must be pleaded prior to or along with the answer See La C art 928 In this case although Mr Morris did not file P an answer his exception was filed prior to the motion for preliminary default and the confirmation of default Therefore the exception should have been tried and decided prior to the entry of a preliminary default and the confirmation of the default See La C art 929 However the trial court failed to do so P Since a default judgment may not be taken against a person who has not received proper citation and service of the suit and because Mr Morris filed an objection to the sufficiency of service of the suitthe merits of which is still rel pending we must vacate the judgment of the district court and remand for further proceedings CONCLUSION For all of the above and foregoing reasons Mr Zerlin and Sheriff s Weber motion to dismiss appeal and for contempt is denied the July 10 2009 judgment by default is vacated and this case is remanded for further proceedings consistent with the views expressed in this opinion All costs of this appeal are assessed to the plaintiffsappellees Michael Zerlin and Craig Webre MOTION TO DISMISS APPEAL AND DENIED DEFAULT JUDGMENT VACATED REMANDED FOR FURTHER PROCEEDINGS 3 FOR CONTEMPT AND MATTER Although Rule 9 of the Rules for Louisiana District Courts requires that all 8 exceptions contain an order setting the exception for hearing and although Mr Morris s pleading did not contain the requisite order the rule provides that the penalty for failing to comply is that the court may either strike the exception or set the matter for hearing on its own motion In this case the trial court did neither Therefore the exception is still pending 4 Although the only assignment of error raised by Mr Morris was the failure of the trial court judge to recuse himself that issue was never properly raised in a motion before the trial court See La C art 154 However because we are vacating the judgment of the trial P court based on a procedural flaw in obtaining the default judgment as detailed herein and have remanded this matter for further proceedings should Mr Morris continue to maintain that the trial court judge should be recused he should file the appropriate pleading with the trial court 7 STATE OF LOUISIANA MICHAEL ZERLIN AND CRAIG WEBER COURT OF APPEAL VERSUS FIRST CIRCUIT NUMBER 2009 CA 1768 DANIEL T MORRIS WHIPPLE J concurring in part and dissenting in part i 19W v I agree with the majority analysis and denial of the plaintiffs motion to s J U strike the brief and to dismiss the appeal as well as the rejection of the plaintiffs motion for contempt However 1 respectfully dissent from the disposition ordered in the remainder of the opinion which in my view is not clearly warranted on the record before us nor raised by any party to the appeal At the outset I recognize that as a reviewing court we are obligated to recognize our lack ofjurisdiction if it exists Avants v Kennedy 20020830 La App 1 Cir 12 837 So 2d 647 653 writ denied 2003 0203 La 4 02 20 03 840 So 2d 1215 Thus if there were a clear indication in the record that the judgment on appeal is an absolute nullity I would likewise agree that this court lacks jurisdiction to review the judgment and thus I would also concur in the result reached by the majority herein vacating an absolutely null judgment See Starnes v Asplundh Tree Expert Company 941647 La App I Cir 10 95 6 670 So 2d 1242 1248 1249 However I am unable to do so in the instant case because the record as it stands does not provide a sufficient basis to resolve these issues in either party favor s Pursuant to LSA C art 1701 a judgment of default or preliminary default may P A be entered if the defendant in the principal or incidental demand fails to answer within the time prescribed by law This judgment of default may be confirmed two days exclusive of holidays after entering of the judgment of default by proof which establishes a prima facie case if no answer is tiled LSA C art 1702 Thus a final default judgment obtained without a P A valid preliminary default is an absolute nullity Livingston Parish Police Jury v Patterson 589 So 2d 9 10 La App 1 Cir 1991 Glessner v Hyatt 1980 1 So 2d 222 223 La App 3 Cir Although the sole issue raised by the defendant on appeal is the purportedly improper failure of the trial judge to recuse likewise an issue which apparently was never raised or considered in the proceedings below the majority relies on the cursory record furnished by the appellant to conclude 1 that there is a fatal lack of evidence of proper service and therefore no service and 2 that a rambling letter and affidavit from the defendant to the local clerk of court in which he complains that although he was in fact served the service was obtained by trickery because he was served at the Caddo Parish Sheriffs Office while there on another matter was tantamount to a pleading or exception raising the objections of insufficiency of citation andor insufficiency of service of process Based on my review of the record the majority errs in so concluding While the majority is correct that in the instant case a letter and attached affidavit sent by the defendant to the clerk of court was filed into the record prior to the filing of the motion for preliminary default by Mr Zerlin and Sheriff Webre I am unable to find that this correspondence should be sua sponte recognized as a declinatory exception raising the objections of insufficiency of citation and or insufficiency of service of process Moreover even if this letter could clearly be so construed it is equally clear that the record does not establish that the trial court failed to consider strike or otherwise rule on or refer to the merits its ruling on the issues raised in the defendant sletter In my view the prudent course would be to remand the matter with instructions to supplement the record as appropriate to document 1 the type manner and service made herein which the defendant acknowledges did occur but nonetheless wants set aside as unfair trickery and 2 whether given the clerk of s court certification appearing of record herein that no answer or other pleadings were filed by the defendant the exception was disposed of prior to entry of the 2 preliminary and confirmatory judgments by default Thus while I agree with the majority that the matter should be remanded in my view at a minimum the trial court should be allowed to respond to these issues raised sua sponte by this court prior to our taking any further action on the appeal For these reasons I respectfully concur in part and dissent in part 3
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