ROSEMARY LEDET, Judge.
This is a workers' compensation case. The defendant, A-1 St. Bernard Taxie & Delivery, LLC ("A-1"), appeals the August 4, 2016 judgment of the Louisiana Office of Workers' Compensation (the "OWC") rendered in favor of the claimant, Veronica Gordon. For the reasons that follow, we reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On May 2, 2015, Ms. Gordon was involved in a motor vehicle accident while working as an independent contractor for A-1. At the time of the accident, Ms. Gordon was driving a cab owned by A-1. Three days later, she sought treatment at the emergency room for pain in her left arm, shoulder, neck, and back.
On August 17, 2015, Ms. Gordon filed a disputed claim for compensation— a Form 1008—against A-1 (the "Original Claim"). In the Original Claim, she alleged that A-1 failed to pay wage benefits and to authorize medical treatment. In addition to wage and medical benefits, she sought penalties and attorney's fees. Also in the Original Claim, Ms. Gordon listed A-1's contact information for service as follows: "Attention Vincent Rizzuto, 3301 Delille Street in Chalmette, Louisiana." On August 31, 2016, the OWC notified Ms. Gordon's attorney that service on A-1 was unable to be perfected at that location. The OWC also requested that Ms. Gordon provide it with either the correct address or the name of the registered agent for service of process for service to be reissued.
On September 8, 2015, Ms. Gordon filed an amended disputed claim for compensation (the "First Amended Claim"). In the First Amended Claim, she listed A-1's and Mr. Rizzuto's address as "227 W. Genie Street, Chalmette, Louisiana." On October 16, 2015, the OWC notified Ms. Gordon's attorney that service could not be perfected at that location. The OWC further explained in the notification that Ms. Gordon's claim could not proceed until service was perfected and it informed her that she could file a motion to appoint a private process server.
On December 21, 2015, the OWC, sua sponte, ordered that Ms. Gordon show cause why her claim should not be dismissed for failure to prosecute. The record is devoid of a ruling on the dismissal for failure to prosecute. One week later, however, Ms. Gordon filed a motion to appoint Jeff Toepfer as special process server, which the OWC granted.
On February 3, 2016, Ms. Gordon filed a second disputed claim for compensation (the "Second Amended Claim"), in which she changed A-1's and Mr. Rizzuto's address to "3201 Delille Street, Chalmette, Louisiana." On that same date, she filed a "Motion to Appoint Louisiana Secretary of State as Agent for Service of Process." In her motion, Ms. Gordon stated that Mr. Toepfer made several unsuccessful attempts to serve A-1's agent for service of process; a copy of Mr. Toepfer's affidavit was attached to Ms. Gordon's motion. Thereafter, the OWC granted Ms. Gordon's motion and appointed the Secretary of State as A-1's agent for service of process. On February 10, 2016, the Secretary of State transmitted, by certified mail, the Second Amended Claim to A-1's last known mailing address.
On April 25, 2016, the OWC again ordered Ms. Gordon to show cause why her claim should not be dismissed for failure to prosecute. A minute entry reflects that on May 12, 2016, the OWC denied the motion. Four days later, the OWC scheduled a telephone status conference, which was held on June 22, 2016.
On the scheduled trial date, a trial against A-1 proceeded without either counsel or any representative of A-1 being present.
STANDARD OF REVIEW
In workers' compensation cases, the standard of review to be applied by an appellate court to the OWC's findings of fact is the manifest error-clearly wrong standard. Orozco v. Aries Bldg. Sys., Inc., 16-0187, p. 5 (La. App. 4 Cir. 9/28/16), 202 So.3d 1018, 1022, writ denied, 16-1949 (La. 12/16/16), 212 So.3d 1173 (citing Dean v. Southmark Constr., 03-1051, p. 7 (La. 7/6/04), 879 So.2d 112, 117). "`When legal error interdicts the fact-finding process in a workers' compensation proceeding, the de novo, rather than the manifest error, standard of review applies.'" Orozco, 16-0187 at p. 5, 202 So.3d at 1023 (quoting MacFarlane v. Schneider Nat'l Bulk Carriers, Inc., 07-1386, p. 3 (La. App. 4 Cir. 4/30/08), 984 So.2d 185, 188).
Although A-1 raises six assignments of error on appeal,
A-1 contends that it was never properly served with Ms. Gordon's citation or any of her disputed claims for compensation. A-1 argues that there was only one attempt to serve its registered agent at its agent's proper address before Ms. Gordon sought service through the Secretary of State. A-1 further argues that service was never perfected by the Secretary of State because the certified mail containing the citation was never delivered; rather, the tracking information showed it was still in transit to its destination at the time of trial. According to A-1, the OWC erred in rendering judgment against A-1 when it was never served as required by law. A-1 thus contends that the OWC's judgment must be annulled.
Ms. Gordon counters that service on A-1 was perfected when the Secretary of State forwarded the citation to A-1's last known address. According to Ms. Gordon, the law "simply requires the Secretary of State to forward the citation of service, nothing more." Louisiana Truck Parts, Inc. v. W & W Clarklift, Inc., 444 So.2d 733, 734 (La. App. 5th Cir. 1984); see also Bastian v. Wallace Colored Sch. Club, 11-708, p. 7 (La. App. 5 Cir. 5/8/12), 99 So.3d 680, 683. Furthermore, she contends that Mr. Rizzuto, A-1's registered agent, received notice of the trial date, yet he failed to retain counsel or appear at trial. Given A-1 was served as required by law and had notice of the trial, Ms. Gordon submits that the OWC's judgment was correct.
A judgment rendered against a defendant who has not been served with process as required by law is an absolute nullity, and the judgment shall be annulled. La. C.C.P. art. 2002(A)(2);
In workers' compensation cases, service may also be made on a named defendant by certified mail. See La. R.S. 23:1310.3(B);
"Proper citation is the cornerstone of all actions. The law is, moreover, patently clear that actual knowledge cannot supplant the need for strict compliance with the requisites of proper citation." Elkins v. Louisiana Dep't of Agric. & Forestry, 36,829, p. 2 (La. App. 2 Cir. 3/5/03), 839 So.2d 992, 993 (citing Rivers v. Groth Corp. 95-2509, p. 2 (La. App. 1 Cir.9/27/96), 680 So.2d 762, 763). Nonetheless, when service on an agent for service of process cannot be effectuated with due diligence, a process server may be appointed. La C.C.P. art. 1266(B). After the process server certifies his inability to make service in accordance with Article 1266, a plaintiff may alternatively serve the Secretary of State. La. C.C.P. art. 1267;
Louisiana law neither defines "diligent effort" nor "due diligence." Whether a diligent effort has been made to effect service of process depends on the circumstances of the case. 2 Steven R. Plotkin and Mary Beth Akin, LA. PRAC. CIV. PROC., Article 1262 (2016 ed.) (citing Alaynick v. David Reiss, M.D., 482 So.2d 58 (La. App. 5th Cir. 1986).
In Victory Temple, the process server made six attempts at service on the church corporation defendant. 376 So. 2d at 170. Thereafter, service was made on the Secretary of State. Id. On appeal, the appellate court held that the six attempts to serve did not constitute the required "diligent effort" since no attempt was made on a Sunday morning when church services were conducted. Victory Temple, 376 So. 2d at 171. Due to the ineffective service, the appellate court annulled the trial court's granting of a default judgment. Id.
In Thomas, the process server noted that the agent "is seldom at the address" and that he needed another address. 01-379 at p. 2, 802 So.2d at 931. After a hearing on the defendant's motion to dismiss for insufficient service of process, the trial court ordered the plaintiff to amend his petition with the correct name of the defendant and to obtain service through its registered agent by a specified date. Id. The plaintiff, however, did not try to serve the agent until after the court-specified date; and, at that time, the process server was unable to serve the agent because he was "out of the country." Thomas, 01-379 at p. 3, 802 So.2d at 931. Thereafter, the trial court found that the plaintiff was not diligent in pursuing service and dismissed the case. Thomas, 01-379 at p. 4, 802 So.2d at 932. On appeal, the appellate court held that "two unsuccessful attempts to obtain service in a period of three years does not constitute a diligent attempt at service." Thomas, 01-379 at p. 5, 802 So 2d at 933.
In Valvo, the plaintiff's request for service was proper—it had named the proper party and the proper address, service was given to the proper authority, and service was carried out by the proper authority in the proper manner. 08-622 at p. 5, 7 So.3d at 754. After five unsuccessful attempts at service were made within one week, no further service was requested or attempted. Valvo, 08-622, pp. 5-6, 7 So.3d 752, 754-55. The trial court, thereafter, granted the defendant's motion to dismiss for lack of service. Valvo, 08-622 at. p. 4, 7 So.3d at 754. In affirming the judgment, the appellate court found that the "plaintiff was not diligent in attempting to serve defendant." Valvo, 08-622 at p. 6, 7 So.3d at 755.
Here, the record reflects that A-1's registered agent listed with the Secretary of State was Mr. Rizzuto, whose address was stated as "3201 Delille Street, Chalmette, Louisiana." Ms. Gordon's Original Claim, however, provided the OWC with an incorrect address for Mr. Rizzuto—"3301 Delille Street."
The OWC made two unsuccessful attempts at service, both of which were at incorrect addresses for Mr. Rizzuto. Following those attempts, Mr. Toepfer was appointed as special process server. In his affidavit regarding his attempts at serving Mr. Rizzuto, Mr. Toepfer attested as follows:
Thereafter, the Secretary of State was substituted for service for A-1.
Based on the record on appeal, we find that an adequate showing of a diligent effort to serve A-1, pursuant to La. C.C.P. arts. 1266 and 1267, was not made. Initially, Ms. Gordon failed to provide the OWC with Mr. Rizzuto's correct address. Then, as A-1 points out, Mr. Toepfer was appointed; and he made only a single attempt to serve Mr. Rizzuto at his correct address. At that time, no one was available to accept service. Furthermore, Ms. Gordon provided the OWC with Mr. Rizzuto's correct address on the same day that she requested the Secretary of State be substituted for service. Contrary to Ms. Gordon's contentions, A-1 was not properly served with the citation, and notice of the trial date does not constitute sufficient service. Thus, substituting service on the Secretary of State was improper. Given that A-1 was never properly served, the OWC's judgment is an absolute nullity pursuant to La. C.C.P. art. 2002(A)(2).
A-1 contends that, even assuming service through the Secretary of State was proper, the OWC erred in rendering a final judgment of default when Ms. Gordon failed to file a motion for preliminary default. As noted elsewhere in this opinion, the August 2, 2016 minute entry indicates that a motion hearing was held to confirm a default judgment.
Although the rules of evidence and procedure are relaxed in workers' compensation proceedings, such proceedings are nonetheless lawsuits that must be conducted in conformity with the accepted standards of practice and procedure. See Dick v. B & B Cut Stone Co., L.L.C, 40,441, p. 6 (La. App. 2 Cir. 12/14/05), 917 So.2d 1191, 1195 (citing Taylor v. Tommie's Gaming, 04-2254, p. 5 (La. 5/24/05), 902 So.2d 380, 383); see also Chapman v. Lalumia, 154 So.2d 93 (La. App. 4th Cir. 1963) (noting that "[w]hile the technical rules of evidence and procedure may be relaxed somewhat in a compensation case, such a case is nevertheless a lawsuit and the rules of practice prescribed by the Code of Civil Procedure and the jurisprudence may not be disregarded entirely."). A final judgment rendered against a defendant against whom a valid default judgment has not been taken is an absolute nullity. La. C.C.P. art. 2002(A)(2). It is well-settled that this article applies only to technical defects of the form of the judgment or procedure. Ganey v. RMH Cable, Inc, 99-460, pp. 10-11 (La. App. 3 Cir. 10/13/99), 745 So.2d 123, 129 (citing National Income Realty Trust v. Paddie, 98-2063 (La. 7/2/99), 737 So.2d 1270, 1271). In workers' compensation cases, those procedures require that a preliminary default must be entered before a default judgment may be confirmed; and a judgment entered without a preliminary default having been taken is an absolute nullity. King v. Employers Cas. Co., 515 So.2d 542, 543 (La. App. 1st Cir. 1987). Here, it is undisputed that Ms. Gordon failed to move for a preliminary default.
Ms. Gordon, however, counters that La. R.S. 23:1317(A) explicitly allows the OWC to proceed to a trial on the merits in the absence of the entry of a default judgment. As Ms. Gordon points out, the final judgment indicates that a trial on the merits occurred.
Louisiana Revised Statute 23:1317(A) provides as follows:
In this case, A-1 had not filed an answer and a default judgment was not entered against it. According to La. R.S. 23:1317(A), A-1 had a right to be present at any hearing. The OWC, however, proceeded with trial without either counsel or any representative for A-1 present. Contrary to Ms. Gordon's contentions, we find that the scenario presented here falls outside the scope of La. R.S. 23:1317. Given our finding that the OWC erred in rendering judgment in Ms. Gordon's favor, we pretermit the other assignments of error raised by A-1.
For the foregoing reasons, the judgment of the Louisiana Office of Workers' Compensation is reversed and this case is remanded for further proceedings.
This court further observed that "the only differences being the substitution of the word `corporation' for `limited liability company' and the use of corporate terminology in 1261 B(1) rather than L.L.C. terminology." Washington, 03-1614 at pp. 4-5, 872 So.2d at 1190. This court thus found that "based on the striking similarity of language and purpose between La. C.C.P. art. 1261 and 1266," cases under 1261 may serve as authority for cases arising under 1266." Washington, 03-1614 at p. 5, 872 So.2d at 1190.