A petition for nullity for vice of form may be brought where a final judgment was issued against an incompetent person not represented as required by law, against a defendant who was not properly served or against whom a valid default judgment has not been taken, or by a court with no subject-matter jurisdiction.1 This type of nullity action can be brought at any time.2 A judgment annulled for vice of form is absolutely null and may be attacked “collaterally, at any time, by rule or by any other method.”3 As such, an absolutely null judgment can be attacked by contradictory motion.4
Default judgments of eviction based only on tacking service of the rule could be subject to nullification because the United States Supreme Court has held that tacking service is constitutionally inadequate in eviction cases.5 First City Court for the City of New Orleans constables must also serve Rules for Possession by regular mail pursuant to Sylvester v. Detweiler.6
Default judgments in which the record itself discloses an insufficient notice to vacate, or a premature rule date, can usually be nullified because eviction court judges generally recognize that a default judgment should not have been entered.7
- 1La. C.C.P. art. 2002.
- 2La. C.C.P. art. 2002(B).
- 3Johnson v. La. Dep’t of Pub. Safety & Corr., 2019-1244, p. 13 (La. App. 1 Cir. 05/11/20), 304 So. 3d 426, 434.
- 4Leonard v. Reeves, 2011-1009 (La. App. 1 Cir. 1/12/12), 82 So. 3d 1250, 1260.
- 5Greene v. Lindsey, 456 U.S. 444 (1982) (finding tacking insufficient where public housing residents provided evidence that notices were frequently removed by children and other tenants); see La. C.C.P. art. 2002. But see French Quarter Realty v. Gambel, 2005-CA-0933 (La. App. 4 Cir. 12/28/05), 921 So. 2d 1025 (finding due process satisfied when defendant claimed non-receipt of tacked notice but provided no evidence and did receive mailed notice).
- 6No. 84-3399 (E.D. La. 1985) (class action consent judgment based on Greene).
- 7See generally La. C.C.P. arts. 4732, 1701–1703; Baham v. Faust, 373 So. 2d 725 (La. App. 1 Cir. 1979), appeal after remand, 382 So. 2d 975 (La. App. 1 Cir. 1980).