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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 34 FROM CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 14th day of April, 2004, are as follows: BY CALOGERO, C.J.: 2003-C -1734 ROY W. HALL AND HELEN HALL v. THE FOLGER COFFEE COMPANY AND XYZ INSURANCE COMPANY C/W THE FOLGER COFFEE COMPANY v. ROY W. HALL AND HELEN HALL (Parish of Orleans) The decision of the court of appeal is reversed, and the district court judgment annulling the default judgment in favor of the Halls and against Folger is reinstated. COURT OF APPEAL REVERSED; DISTRICT COURT JUDGMENT ANNULLING DEFAULT JUDGMENT REINSTATED. KIMBALL, J., dissents and assigns reasons. TRAYLOR, J., dissents for reasons assigned by Kimball, J. KNOLL, J., dissents and assigns reasons.

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SUPREME COURT OF LOUISIANA No. 2003-C-1734 ROY W. HALL AND HELEN HALL VERSUS THE FOLGER COFFEE COMPANY AND XYZ INSURANCE COMPANY consolidated with THE FOLGER COFFEE COMPANY v. ROY W. HALL AND HELEN HALL ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FOURTH CIRCUIT, PARISH OF ORLEANS CALOGERO, Chief Justice At issue in this writ application is whether the court of appeal properly reversed the district court's factual finding that the evidence presented by Folger Coffee Co., the plaintiff in this nullity action, that its agent for service of process, CT Corporation, was not properly served with process of the petition, was sufficient to rebut the presumption of validity afforded a completed sheriff's return of service under La. Code of Civ. Proc. art. 1292. Finding that the court of appeal improperly substituted its own judgment for the judgment of the district court, we reverse the judgment of the court of appeal. Accordingly, we reinstate the judgment of the district court, which had annulled the default judgment rendered in favor of defendants, Roy W. and Helen Hall, against plaintiff, Folger Coffee Company.

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FACTS AND PROCEDURAL HISTORY On October 10, 1995, the Halls filed a personal injury action in Civil District Court for Orleans Parish against Folger, seeking recovery of damages allegedly resulting from a November 15, 1994, accident that occurred when Mr. Hall fell from a platform at Folger's warehouse in New Orleans while delivering coffee cans in the course of his employment with another company.1 The Halls' petition included a request that Folger be served "through the Agent for Service of Process, CT Corporation Systems, 8550 United Plaza Blvd., Baton Rouge, LA. 70809." Although CT claims that the petition was never served, the East Baton Rouge Parish Sheriff's Office completed a return on service indicating that service was made on CT Corporation by "handing said copy to Mary Belton, Assistant Secretary, in person," on November 1, 1995; the service return is signed by East Baton Rouge Parish Deputy Harvey Thompson, a 17-year process server in the Civil Process Department. The return was mailed to the clerk of the Civil District Court in Orleans Parish, as required by La. Code of Civ. Proc. art. 1292,2 and thereafter became a part of the record.

Mr. Hall's employer is identified in the Halls' petition as LVL Trucking Company. However, another company, T.T.C. Illinois, Inc., filed a Petition of Intervention in this suit, seeking to assert its rights under the Louisiana Workers' Compensation Law. The court of appeal referred to T.T.C. as Mr. Hall's employer. Further, T.T.C.'s right to intervene in the nullity action was upheld by the court of appeal in Hall v. Folger Coffee Co., 2000-0668, 0669 (La. App. 4 Cir. 2/7/01), 781 So. 2d 620.
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La. Code of Civ. Proc. art. 1292 provides, in pertinent part, as follows:

The sheriff shall endorse on a copy of the citation or other process the date, place, and method of service and sufficient other data to show service in compliance with law. He shall sign and return the copy promptly after the service to the clerk of court who issued it. 2

After Folger failed to timely file an answer or other responsive pleadings, the district court entered a preliminary default judgment against Folger on January 24, 1996, as allowed by La. Code of Civ. Proc. art. 1701(A).3 The default was confirmed on July 15, 1996, when the district court entered judgment on behalf of the Halls. Mr. Hall was awarded $910,572.70 in damages, while Ms. Hall was awarded $45,000 for loss of consortium. The default judgment was mailed to Folger, through its agent for service of process, CT Corporation, by the clerk of Civil District Court, as allowed by La. Code of Civ. Proc. art. 1913(C).4 CT Corporation notified Folger of the default judgment, then sent the default judgment to Folger's parent corporation, Proctor and Gamble, by Federal Express. Following its receipt of the default judgment on August 1, 1996, Folger filed a motion for suspensive appeal and posted the required appeal bond.5 Thereafter, Folger filed a Nullity Action under the provisions of La. Code of Civ. Proc. art. 2002(A)(2), which provides as follows: A. A final judgment shall be annulled if it is rendered: *****
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La. Code of Civ. Proc. art. 1701 provides, in pertinent part, as follows:

If a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him.
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La. Code of Civ. Proc. art. 1913 provides, in pertinent part, as follows:

C. Notice of the signing of a default judgment against a defendant on whom citation was served personally, or who filed no exceptions or answer, shall be mailed by the clerk of court to the defendant at the address where personal service was obtained or to the last known address of the defendant. The appeal of the default judgment was originally stayed by the court of appeal pending final resolution of the nullity action. Hall v. Folger Coffee Co., 96-2146 (La. App. 4 Cir. 1/16/97) [unpublished]. The court of appeal later dismissed the appeal as abandoned, but preserved all the issues presented by the appeal of the default judgment for the appeal of the nullity judgment. When the court of appeal entered the judgment being reviewed herein reversing the district court decision nullifying the default judgment, it gave Folger the opportunity to brief the issues it raised in the appeal of the default judgment. Hall v. Folger Coffee Co., 2002-0920, p. 20 (La. App. 4 Cir. 4/9/03), 843 So.2d 623, 635. Thereafter, the court of appeal affirmed the default judgment. Hall v. Folger Coffee Co., 2002-0920 (La. App. 4 Cir. 10/01/03), 857 So. 2d 1234. That judgment is not before this court in this appeal. 3
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(2) 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. The basis for Folger's Nullity Action was its claim that service of process was never served on CT Corporation. Folger filed a motion for summary judgment making that assertion. That motion was granted by the district court. However, the summary judgment was reversed by the court of appeal, which found a genuine issue of material fact regarding the pivotal issue related to whether service of process had been properly effected on Folger through CT Corporation.6 Following the remand of the case to the district court, the Halls, joined later by T.T.C., filed peremptory exceptions of no cause of action and no right of action, arguing that Folger had made a general appearance on August 21, 1996, when it filed its Motion for Suspensive Appeal of the default judgment in the district court, seeking review of "all aspects" of the judgment. Under the provisions of La. Code of Civ. Proc. art. 2002(A)(2), quoted above, a party that has made a general appearance is not entitled to a judgment of nullity. The district court overruled those exceptions. The court of appeal denied writs filed by the Halls and T.T.C on that issue.7 This court thereupon denied the request for stay and for supervisory writs filed by the Halls and T.T.C..8 Following a bench trial, the district court entered judgment in the Nullity Action in favor of Folger, nullifying the default judgment and giving as its written reasons the legal argument portion of Folger's post-trial memorandum,9 which argued that the

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Hall v. Folger Coffee Co., 97-2472 (La. App. 4 Cir. 6/24/98), 715 So. 2d 1224.

Hall v. Folger Coffee Co., 2001-1899 (La. App. 4 Cir. 10/10/01) [unpublished] and Hall v. Folger Coffee Co., 2001-1901 (La. App. 4th Cir. 10/12/01) [unpublished].
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Hall v. Folger Coffee Co., 2001-2784 (La. 10/17/01), 799 So. 2d 1140.

During oral argument before this court, the Halls mentioned the fact that the district court's reasons for judgment were actually written by Folger, but it did not raise this issue in its brief in this court or in the court of appeal. We note that at least two Louisiana courts of appeal have expressed 4

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proven facts, coupled with applicable law, supported Folger's position at the trial of the case. The Halls and T.T.C. appealed the judgment that annulled the Halls' default judgment. The court of appeal reversed, concluding as follows: Given that both the East Baton Rouge Sheriff's Office and CT routinely handle a large volume of services, that neither entity had a fool-proof record keeping system, and that neither entity knew for certain if service was actually made, we find the decisive factor to be the presumption of validity given the sheriff's return. As noted, the unrebutted presumption preponderates in favor of finding that service was made on CT, Folger's professional agent for service of process. We thus hold that the trial court was manifestly erroneous in finding that Folger rebutted the presumption and in annulling the default judgment. Hall v. Folger Coffee Co., 2002-0920, p. 19 (La. App. 4 Cir. 4/9/03), 843 So. 2d 623, 634-35. We granted Folger's writ application to consider whether the court of appeal correctly overturned the district court's decision, which had nullified the default judgment. Hall v. Folger Coffee Co., 2003-1734 (La. 10/17/03), 855 So. 2d 744.

PROCEDURE FOR DETERMINING VALIDITY OF SERVICE OF PROCESS Under the provisions of La. Code of Civ. Proc. art. 1292, a sheriff's return of service of process "shall be considered prima facie correct." The impact of that statement is explained by reference to the provisions of La. Code of Evidence, Chapter 3, "Effect in Civil Cases of Presumptions and Prima Facie Evidence." According to that chapter, "[l]egislation providing that a document or other evidence is prima facie

their belief that courts of appeal should not place any "real value" on reasons for judgment written by one of the parties. See Bell v. Ayio, 97-0534 (La. App. 1 Cr. 11/13/98), 731 So. 2d 893; State, Dept. of Trans. v. August Christina & Brothers, Inc., 97-244 (La. App. 5th Cir. 2/11/98), 731 So. 2d 893, writ denied, 1998-3115 (La. 2/5/99), 738 So.2d 7. Since the issue has not been raised by the parties to this case, we do not expressly address it herein. However, we note the well-established rule that a district court's failure to issue (any) reasons for judgment is not grounds for reversal of the judgment. See Custom-Bilt Cabinet & Supply, Inc. v. Quality Built Cabinets, Inc., 32, 441 (La. App. 2 Cir. 12/8/99), 748 So. 2d 594. We also note that the portion of Folger's brief reproduced by the district court and adopted by the district court as its reasons contains only correct statements of law and conclusions of fact. Accordingly, we find that the manifest error standard applies to both the district court's fact-supported judgment itself and to the factual determinations implicit in the district court's adoption of that portion of Folger's post-trial memorandum. 5

evidence . . .establishes a presumption under this Chapter."10 "Presumption" is defined as "an inference created by legislation that the trier of fact must draw if it finds the existence of the predicate fact unless the trier of fact is persuaded by evidence of the nonexistence of the fact to be inferred."11 The only presumptions regulated by Chapter 3 of the La. Code of Evidence "are rebuttable presumptions [that] therefore may be controverted or overcome by appropriate evidence."12 "If the trier of fact finds the existence of the predicate fact, and if there is evidence controverting the fact to be inferred, it shall find the existence of the inferred fact unless it is persuaded by the controverting evidence of the nonexistence of the inferred fact."13 The rule that may be extracted from reference to all of the above provisions is stated in Official Comment (b) to La. Code of Evid. 308, which states that "[w]hen the predicate fact is established it shifts the burden of persuasion of the non-existence of the inferred fact to the opponent." The phrase "burden of persuasion" is defined as "the burden of a party to establish a requisite degree of belief in the mind of the trier of fact as to the existence or nonexistence of a fact."14 The "degree of belief" required "may be by a preponderance of the evidence, by clear and convincing evidence, or as otherwise required by law."15 According to this court's most recent pronouncement on the subject, the burden of persuasion that applies to a party seeking to overcome the rebuttable presumption afforded a completed sheriff's return of service by La. Code of Civ. Proc. art. 1292 is preponderance of the evidence. Roper v. Dailey, 393
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La. Code of Evid. art. 308. La. Code of Evid. art. 302(3). La. Code of Evid. art. 304. La. Code of Evid. art. 306. La. Code of Evid. art. 302(1). Supra. 6

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So. 2d 85 (La. 1981). Accordingly, the party attacking service must prove that, more probably than not, proper service was not made. Id., 393 So. 2d at 88. Consideration of all of the above principles reveals the following method for determining a Nullity Action based on insufficient service of process: 1. The trier of fact must determine the existence of the "predicate fact"

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