Asahel Debond Foster VS David Paul Foster, Sr. (2010CU0353 Consolidated With 2010CU0354)
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 CU 0353 ASAHEL DEBOND FOSTER VERSUS DAVID PAUL V SR QTM M consolidated with NO 2010 CU 0354 DAVID P FOSTER VERSUS ASAHEL FOSTER Judgment Rendered June 11 2010 On Appeal from the 21st Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Trial Court No 2009 0001780 c 2009 0001962 w The Honorable Brenda Bedsole Ricks Judge Presiding Mark D Plaisance Attorneys for Appellant Baker LA Asahel Foster and Harry W Ezim Jr Baton Rouge LA Vanessa R Williams Attorney for Appellee Hammond LA David Paul Foster Sr BEFORE CARTER C GUIDRY AND PETTIGREW JJ J 0 c CARTER C J This is an appeal of a judgment denying a motion to vacate a judgment for nullity FACTS AND PROCEDURAL HISTORY This appeal arises from two consolidated suits between David and Asahel Foster children David and Asahel were married in 1995 and have three On May 19 2009 Asahel filed a petition for protection from abuse The court issued a temporary restraining order and set a hearing for May 28 2009 which was continued to June 18 2009 over David s objection On June 2 2009 David filed a petition for divorce which was docketed as a new suit David did not request service on Asahel but included the instruction Please hold service waiver to follow The same instruction was included on the court order issuing a preliminary s injunction and temporary restraining order and setting incidental matters for hearing on July 6 2009 On June 29 2009 in the same suit record as s David divorce petition Erica D Williams filed a motion to withdraw as counsel of record for Asahel Therein Ms Williams indicated she signed an acceptance of service on behalf of Asahel on June 12 2009 that Asahel terminated her representation on June 26 2009 and that she had advised Asahel of the rule to show cause set for July 6 2009 A copy of a letter from Asahel to Ms Williams terminating Ms Williams legal representation was attached On June 30 2009 in the same suit record as her petition for protection from abuse Asahel filed her own petition for divorce through her new counsel Service was requested on David at his place of employment 2 On July 6 2009 a hearing was held on matters incidental to David s divorce petition as well as Ms Williams motion to withdraw as counsel of record for Asahel The minutes of court reflect that David his counsel and Ms Williams were present in court but Asahel was not Ms Williams informed the court of her motion to withdraw which was signed then further informed the court that Asahel knew of the court date A hearing was held and judgment was rendered which among other things awarded the parties joint custody of the children awarded David use of two vehicles and awarded Asahel use of the family home Thereafter on July 15 2009 Ms Williams filed into the record her own affidavit that was notarized on June 12 2009 in which she attested that she had been retained by Asahel to represent her in the matters contained in the petition and that she accepted service and waived issuance and service of citation and formal service of process A judgment in conformity with that rendered in open court was signed by the court on July 27 2009 Notice was mailed to Asahel at her residence Days later in the record of her petition from abuse and petition for divorce Asahel through her new counsel filed a motion to immediately vacate the judgment rendered on July 6 2009 in the suit record of David s petition Asahel alleged that staff ofthe Tangipahoa Parish Clerk of Court s office advised that a waiver of service was never executed and that Asahel was never served with the petition or order Asahel contended that the judgment should be annulled vacated and set aside since neither personal nor domiciliary service of process was effected on her Asahel also made allegations regarding the actions of Ms Williams her former attorney and s David attorney including that they failed to advise the court that her new 3 counsel filed a petition for divorce that the two attorneys had a conflict of interest and that Ms Williams misadvised the court that Asahel had knowledge of the hearing and allowed a judgment to be rendered against her David opposed the motion arguing that Asahel was properly served through waiver signed by her former counsel Thereafter the two suits were consolidated After a hearing the trial court denied the motion to vacate In written reasons the trial court stated that the issue presented was whether an attorney could execute a written waiver of service on behalf of her client The trial court opined that it is advisable for a party to execute such waiver herself with her attorney serving as notary However the trial court could find no prohibition against the attorney executing such waiver on behalf of her client Considering the written waiver executed on Asahel behalf the s trial court denied the motion to vacate the judgment This appeal followed DISCUSSION Proper citation is the foundation of all actions Naquin v Titan Indemnity Co 001585 La 2 779 So 704 710 01 21 2d A final judgment shall be annulled if it is rendered against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction or against whom a valid judgment by default has not been taken LSAC art 2002A P C 2 At the outset we recognize that the parties herein as well as the trial court have referred to the document executed by Asahel sformer attorney as a waiver of service In fact by way of the document Asahel former s attorney Ms Williams accepted service and waived citation Importantly 4 Asahel does not deny that Ms Williams was her attorney and legal representative Louisiana Code of Civil Procedure article 1201B provides that t he defendant may expressly waive citation and service thereof by any written waiver made part of the record Ms Williams executed an acceptance of service and waiver of citation which was made part of the record We agree with the trial court that it may have been preferable for Asahel to execute the waiver herself However the relationship of attorney and client is one of principal and agent and the acts of the attorney are binding upon the client Smart Document Solutions LLC v Miller 07670 La App 3 Cir 07 31 10 970 So 49 51 52 writ denied 08 0210 La 3 978 2d 08 28 2d So 308 citing Judd Detweiler v Gittings 43 App 304 310 311 C D 1915 MacFayden v Lee 601 So 24 26 La App 1 Cir writ denied 2d 606 So 544 La 1992 see also e Dixie Electric Membership Corp 2d g v Fontenot 428 So 1035 10361037 La App 1 Cir writ denied 433 2d 2d So 162 La 1983 And the acceptance of service and waiver of citation by an attorney on behalf of the client has been recognized in Louisiana jurisprudence See e Futrell v Cook 00 2531 La App 4 Cir g 01 19 12 805 So 325 327 Lusk v Lusk 536 So 468 469470 La 2d 2d App 1 Cir 1988 Dixie Elec Membership Corp 428 So at 1036 2d Vining v Vining 389 So 886 888 La App 4 Cir 1980 2d We stress that in this case the defendant attorney accepted service s and waived citation The plaintiff did not attempt service on Asahel s attorney as in Richardson v O 30 La App 2 Cir 5 716 Neal 599 98 13 2d So 26 28 and West v Melancon 02 1335 La App 4 Cir 3 03 19 843 So 485 487 2d Thus articles 1312 and 1314 of the Code of Civil 0 Procedure and their bar against service of the original petition on the sattorney are not invoked herein defendant After careful review we find that the acceptance of service and waiver of citation executed by Asahel attorney Ms Williams was s effective and binding on Asahel Accordingly the motion to vacate the judgment for nullity due to want of service was properly denied CONCLUSION For the foregoing reasons the judgment of the trial court denying the motion to vacate is affirmed Costs of this appeal are assessed to Asahel Foster AFFIRMED I We note that many of the assertions made by Asahel relate to allegations of fraud on the part of her attorney and David attorney or s court at this time we make no judgment thereon Cd As those issues are not before the ASAHEL DEBOND FOSTER NUMBER 2010 CU 0353 VERSUS COURT OF APPEAL DAVID PAUL FOSTER SR FIRST CIRCUIT CONSOLIDATED WITH STATE OF LOUISIANA DAVID P FOSTER NUMBER 2010 CU 0354 VERSUS ASAHEL FOSTER BEFORE CARTER C GUIDRY AND PETTIGREW JJ J ETTIGREW J DISSENTS AND ASSIGNS REASONS I respectfully dissent from the majority for the following reasons A final judgment shall be annulled if it is rendered against a defendant who has not V been served with process as required by law and who has not waived objection to jurisdiction or against whom a valid judgment by default has not been taken La Code Civ P art 2002A 2 For a court to have proper jurisdiction over a person or party in an action or proceeding there must be service of process on that person or party or on his agent for the service of process La Code Civ P art 6 Louisiana Code of Civil Procedure article 5251 2defines agent for the service of process as the agent designated by a person or by law to receive service of process in actions and proceedings brought against him in the courts in this state After reviewing the record of this proceeding I do not find anything that designates Erica Williams as the agent for service of process of Asahel Foster Hiring an attorney to represent you legally does not necessarily make that attorney your agent for service of process for the initial pleadings Pursuant to La Code Civ P art 1201B t he defendant may expressly waive citation and service thereof by any written waiver made part of the record That article does not say the attorney can waive citation It says the defendant may waive citation Certainly if the defendant has given the power of attorney and designated someone their agent for service of process then that designated agent can waive service of citation There is nothing in this record that indicates Ms Williams was designated the agent for service of process for Asahel Foster Further La Civ Code arts 1312 and 1314 imply that the original pleading must be served on the defendant and or its agent for service of process For the above reasons I would reverse the judgment of the trial court 2 NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CU 0353 ASAHEL DEBOND FOSTER VERSUS DAVID PAUL FOSTER SR consolidated with NUMBER 2010 CU 0354 DAVID P FOSTER VERSUS ASAHEL FOSTER UIDRY J concurs and assigns reasons GUIDRY J concurring For the following reasons and based on the particular facts of this case discussed below I concur in the result reached The divorce action from which the contested judgment stems was initiated by David Foster under docket number 2009 0001962 The record in that proceeding contains a Motion to Withdraw filed by Erica Williams on June 29 2009 in which she averred to the following 1 On June 12 2009 I signed an acceptance of service on behalf of Asahel Foster in the above captioned matter and this was filed into the record 5 A Rule to Show Cause is set for Monday July 6 2009 at 9 00 m a and I have advised Asahel Foster of this date 6 1 have advised Asahel Foster that an Answer to defendant s Petition for 103 Divorce was due to be filed on or about June 1 27 2009 Emphasis added In addition to the above averments the motion to withdraw also included a certificate of service whereby Erica Williams certified that a copy of the above and foregoing Motion and Order to Withdraw has been served via U Mail S to Ashael sic Foster at her last known mailing address P Box 1076 Albany O Louisiana 70711 on this 29 day of June 28 sic 2009 Also referred to in the motion to withdraw and attached to the motion as Exhibit B is an itemized billing statement dated June 29 2009 outlining the dates and types of legal services Erica Williams furnished to Asahel Foster Of particular note the billing statement indicates that on June 2 2009 an engagement letter was executed service was accepted and a petition was reviewed On June 12 2009 the billing statement shows that Eric Williams held a meeting with Asahel Foster and counsel for David Foster The record also contains a copy of a document titled Acceptance of Service and Waiver of Service and All Delays that was filed under docket number 2009 0001962 on July 15 2009 Erica Williams recites in the document that she received a copy of the petition for divorce filed on June 2 2009 acknowledges receipt thereof accepts service and further waives the necessity of issuance and service of citation and formal service of process She further stated that she had been retained by Asahel Foster to represent her in the matters contained in the petition for divorce A clause at the end of the document states that the document was sworn to and subscribed before counsel for David Foster on June 12 2009 The foregoing evidence clearly demonstrates that Erica Williams was hired to represent Asahel Foster in the divorce proceedings instituted under docket number 20090001962 by David Foster The evidence further demonstrates that 2 Asahel Foster should have had knowledge prior to July 6 2009 of the fact that Erica Williams had accepted service and waived citation of the divorce petition in docket number 2009 0001962 and that a hearing on the petition was scheduled for July 6 2009 based on the copy of the motion to withdraw mailed to Asahel Foster on June 29 2009 Although Louisiana civil procedure clearly provides that service of pleadings on a party attorney is acceptable see La C arts 1235 and 1314 it s P has been held that an attorney can only accept service on behalf of a client after the attorney has enrolled as counsel of record See Wadsworth v Alexius 234 La 187 195 99 So 2d 77 80 1958 Moody v Stevenson 43 p La App 2d Cir 144 08 26 3 980 So 2d 196 199 Jinright v Glass 06 888 p 7 La App 5th Cir 07 27 2 954 So 2d 174 178 writ denied 07 0570 La 5 956 So 2d 618 07 4 Moreover while the Code of Civil Procedure states that a defendant or a party can waive service see La C P arts 1201 B C and 3957 it has been A held that an attorney can waive service on behalf of a client if the attorney is authorized by the client to do so See Futrell v Cook 00 2531 pp 1 3 La App 4th Cir 12 805 So 2d 325 326 327 Lusk v Lusk 536 So 2d 468 469 01 19 La App 1st Cir 1988 The evidence presented at the hearing on the motion to vacate the July 27 2010 judgment clearly demonstrates that Asahel Foster had knowledge that David Foster had filed a separate petition for divorce that Erica Williams had accepted service of that petition and waived citation and that a hearing was scheduled for July 6 2009 relative to certain incidental demands David Foster had asserted in the divorce petition There was no evidence presented to show that Asahel Foster had expressly authorized Erica Williams to accept service and waive citation or to show that Erica Williams had enrolled as counsel of record in docket number 2009 0001962 However Asahel Foster failure to timely object to the actions of s 3 her attorney at or before the July 6 2009 hearing implies that she consented to her s attorney actions in accepting service and waiving citation See Vininpv Vining 389 So 2d 886 888 La App 4th Cir 1980 Therefore based on the particular facts of this case and the evidence presented I respectfully concur in the opinion affirming the trial court judgment denying Asahel Foster motion to vacate the s s July 27 2009 judgment 0
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