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ELODIE FLEMING, CALVIN A. FLEMING III, JOHN PAUL FLEMING, GEORGIA ROSE  NO. 06-CA-877 C/W 06-CA-878  
PROPERTIES LLC, DOUGLAS R. FLEMING, JR., SUE REED FLEMING, DOUGLAS FLEMING III, SUZANNE FLEMING HARVEY, AND JAMIE LOU FLEMING VERSUS  FIFTH CIRCUIT COURT OF APPEA L  
THE TOWN OF JEAN LAFITTE, TIM KERNER, INDIVIDUALLY AND IN HIS CAPACITY AS MAYOR OF THE TOWN OF  STATE OF LOUISICDURT O ANA F APPLU.  
JEAN LAFITTE AND PAUL HUBBARD  FIFTH  CIRCUR  
D/B/A HUBBARD CONSTRUCTION COMPANY INCORPORATED  

C/W
HUBBARD ENTERPRISES, INCORPORATED VERSUS ELODIE FLEMING, CALVIN A. FLEMING III, JOHN PAUL FLEMING, DOUGLAS FLEMING, JR., SUE REED FLEMING, SUZANNE FLEMING HARVEY, JAMIE LOU FLEMING, DOUGLAS FLEMING III, AND GEORGIA ROSE PROPERTIES, L.L.C.
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 601-130 C/W 613-319, DIVISION "A"
HONORABLE JOAN S. BENGE, JUDGE PRESIDING

MARCH 27, 2007
FREDERICKA HOMBERG WICKER JUDGE
Panel composed ofJudges Susan M. Chehardy, Fredericka Homberg Wicker, and Greg G. Guidry
DENNIS J. PHAYER Attorney at Law 5213 Airline Drive Metairie, Louisiana 70001 COUNSEL FOR HUBBARD ENTERPRISES, INC.
ROBERT L. REDFEARN ROBERT L. REDFEARN, JR.
Attorneys at Law
30th Floor, Energy Centre
1100 Poydras Street
New Orleans, Louisiana 70163
COUNSELS FOR JOHN FLEMING, DOUGLAS FLEMING, JR.,
SUE REED FLEMING, SUZANNE FLEMING HARVEY,
JAMIE LOU FLEMING, DOUGLAS FLEMING, III AND
GEORGIA ROSE PROPERTIES, L.L.C.
JUAN C. LABADIE ZOE OLIVIA FLEMING
Attorneys at Law
235 Derbigny Street, Suite 100
Gretna, Louisiana 70053
COUNSELS FOR CALVIN ALBERT FLEMING AND
ELODIE DIODENE FLEMING
AFFIRMED
This is an appeal by defendant, Hubbard Enterprises, Inc. (Hubbard), from a trial court decision to deny Hubbard's petition to annul a default judgment confirmed against it in an action for damages brought by several property owners in Lafitte, Louisiana. The underlying lawsuit was filed on November 16, 2003 by plaintiffswho allegethat Hubbard, acting onbehalfoftheTownofJeanLafitte, trespassed on their property to cut down trees without permission of plaintiffs, causing a devaluationofplaintiffs' property. Paul Hubbard, doing business as Hubbard Enterprises, Inc., the Town ofJean Lafitte, and Tim Kerner, individually and as mayor of Jean Lafitte were all named as defendants in solido.
Hubbard did not answer the petition and a motion for preliminary default was moved for and granted against Hubbard on April 5, 2004. The preliminary default was confirmed on May 4, 2004 by a judgment awarding a total of $103,749.00 in damages, plus attorneys' fees and costs. Notice ofthe signing of that judgment was sent to Hubbard through its agent, Dixie Ramirez at 1 Ormond Boulevard, Suite C, LaPlace, Louisiana, 70068. That judgment was not appealed.
On October 28, 2004, Hubbard filed a separate action to annul the default judgment taken against it on the basis that the company was not legally cited to appear. Subsequently, the two actions were consolidated.
In its petition, Hubbard maintains that its agent, Dixie Ramirez, was never served with the original citation and petition. It further asserts that Ms. Ramirez has not resided in, or operated a business at the Ormond address since her retirement in 1997, and it would be impossible for her to have been served personally with this lawsuit as indicated by the return of service.
Subsequently, Hubbard filed a motion for summaryjudgment on its petition to annul the default judgment. After a hearing, that motion was denied and the matter went to a trial on the merits before the bench. After considering the return of service and the testimony presented at trial, the trial court denied Hubbard's petition to annul the default judgment for improper service. It is that judgment that is before us on appeal.
Under the provisions of La. C. C. P. art. 1292, a sheriffs return of service of process "shall be considered prima facie correct." While the recitation on the return of citation is presumed to be correct, the presumption is rebuttable. The latest pronouncementontheburdenofproofisinRoperv.Dailey,393 So.2d85(La., 1980). In Roper, the Supreme Court held that the burden ofpersuasion that applies to a party seeking to overcome the rebuttable presumption afforded a completed
sheriffs return of service by La. C. C. P. art. 1292 is preponderance ofthe

evidence. Accordingly, the party attacking service must prove that, more probably than not, proper service was not made. Hall v. Folger Coffee Co., 2003-1734 (La. 4/14/04), 874 So.2d 90, 97. Generally, the uncorroborated testimony ofthe party attacking service, standing alone, is insufficient to rebut the presumption ofprima facie correctness accorded the sheriffs return. Roper, 393 So.2d at 86; Hall, 843 So.2d at 632.
The sheriff's return is contained in the record and shows that Ms. Dixie Ramirez was served personally with the original citation and petition. The date on the return is unclear and there is some dispute over whether it was served on the 20* or the 26* of November, 2003.
Sergeant Herbert Cortez ofthe St. John's Sheriff's Department, testified that he personally served Ms. Dixie Ramirez with the original petition. He further stated that he is familiar with the location at 1 Ormond Boulevard. He recalled going to the address to serve Ms. Ramirez but could not recall ifthe service was made at that location or at her residence. Sergeant Cortez, who has been employed with the Sheriff's office for eighteen years, explained that whenever he tries unsuccessfully to serve papers at a business address, he goes to the new address or the residence address to complete service. In this case he could not recall at which addresshe actuallyserved Ms. Ramirez,but he statedthatifhe indicatedpersonal service on the return, he handed it to Ms. Ramirez personally.
Sergeant Cortez explained that he could not recall this specific service. However, he stated that ifhe had left the paper with someone other than Ms. Ramirez at the 1 Ormond Boulevard address, he would have indicated that the service was "domiciliary" and not "personal." Sergeant Cortez stated that ifhe indicated "personal" and signed the return of service, he personally served Ms.
Ramirez with the citation and the attached petition. However, he could not be sure

whether he served it on the 20* or the 26*.
Hubbard stipulated that Ms. Dixie Ramirez was the registered agent for service at the time the citation and petition was served. Further, Ms. Ramirez testified at trial that she was the registered agent for Hubbard and her address was listed as her office location at 1 Ormond Boulevard, LaPlace, Louisiana. Ms. Ramirez testified that she owned Southwestern Title and operated the business out ofthe Ormond Boulevard address. However, in 1997, she sold the business, including the location and furniture, to Winters Title Agency, Inc. When Winters Title purchased the business, it took over all of Southwestern Title's active files. At that time Ms. Ramirez retired and no longer maintained an office at the Ormond Boulevard location. She stated that she requested Winters Title to inform her if anything important came into the office regarding Hubbard. Ms. Ramirez testified that she notified the Office ofthe Secretary of State ofthe sale to Winters Title. She assumed the Secretary of State's office received the letter because she did not receive a form to sign at the end ofthe year as usual.
She maintained that she was never personally served at 1 Ormond Boulevard, Suite C, in LaPlace, Louisiana in November of 2003. Ms. Ramirez further testified that in November, 2003 she was employed by Prestige Title in Metairie and produced pay stubs and copies of checks received for services rendered to Prestige from October through November, 2003, including several dated November 26, 2003, but none on November 20, 2003. On cross

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