USCS CAPITAL LLC v. DUONG VIET VU THE UNOPENED SUCCESSION OF CUC THI DANG AND THE UNOPENED SUCCESSION OF MUI THI VU (2026)

Defendants-Appellants appeal the district court's October 2, 2025 judgment granting the Plaintiff-Appellee's Motion to Strike and striking their Answer and Reconventional Demand from the record. For the following reasons, we convert Defendants’ appeal into a supervisory writ, grant writ, vacate the district court's judgment, and remand this case for further proceedings.

PROCEDURAL AND FACTUAL HISTORY

On February 21, 2024, the Plaintiff-Appellee, USCS Capital, LLC (“Plaintiff”), filed a Petition to Quiet Title against the Defendants-Appellants—Duong Viet Vu, the Unopened Succession of Mui Thi Vu, and the Unopened Succession of Cuc Thi Dang (collectively “Defendants”). In response, Defendants filed a pleading titled “Answer” on July 17, 2024, and then a subsequent pleading titled “Answer and Reconventional Demand” (herein, Defendants’ “Second Answer”) on January 31, 2025.¹ This instant appeal concerns Defendants’ Second Answer.

On June 10, 2025, Plaintiff filed a Motion to Strike, asserting that Defendants’ Second Answer was untimely filed without leave of court in violation of La. C.C.P. art. 1151.² The hearing was set for August 14, 2025. Defendants filed a Motion to Continue on August 5, 2025, and the district court signed the motion the next day. Notably, the district court reset the matter to “the next available date on the Court's docket” without specifying in the signed order what that date would be. Shortly thereafter, on August 13, 2025, Plaintiff filed a Motion to Reset, requesting that the district court reset the Motion to Strike to September 25, 2025. Plaintiff's counsel emailed an unsigned copy of the Motion to Reset to Defendants’ counsel that same day. The district court signed the Motion to Reset two days later on August 15, 2025. Prior to the hearing, Plaintiff's counsel filed a certificate of service attesting that he had served Defendants pursuant to La. C.C.P. art. 1313 ³ by emailing a copy of the Motion to Reset to Defendants’ counsel on August 13, 2025.

The hearing went forward on September 25 without Defendants’ counsel. During that hearing, Plaintiff's counsel certified that he had served Defendants but admitted that he had not spoken with opposing counsel since emailing her the Motion to Reset. At the conclusion of the hearing, the district court struck Defendants’ Second Answer.⁴ The very same day, Defendants filed a Motion for New Trial, asserting that they never received formal notice that the hearing had been reset. The district court denied the Motion for New Trial without setting the matter for a contradictory hearing. This appeal followed.

JURISDICTION

Plaintiff urges this Court to decline use of its supervisory jurisdiction and refuse to convert this improper appeal into a supervisory writ. Plaintiff contends that the issue in this case does not meet any of the factors warranting our intervention. See Herlitz Constr. Co. v. Hotel Invs. of New Iberia, Inc., 396 So. 2d 878 (La. 1981). We disagree.

“The decision of whether to convert an appeal to a writ is within an appellate court's discretion.” Lassalle v. Napoleon, 2023-0705, p. 7 (La. App. 4 Cir. 4/11/24), 390 So. 3d 805, 810-11 (citation omitted). Under the guidance of Herlitz, the appellate court should invoke its supervisory jurisdiction when the judgment of the lower court is “arguably incorrect,” when “fundamental fairness to the litigants” is raised as an issue, and when there is no dispute as to the facts involved. See Herlitz, 396 So. 2d at 878.

As will be discussed below, the judgment of the district court is clearly incorrect and fundamentally unfair in that it was rendered without proper notice to Defendants and without giving them an opportunity to be heard. There are no disputes over the underlying facts of the case. Rather, this case presents a solely legal issue—whether emailing an unsigned order constitutes proper service of a contradictory hearing. Therefore, we will invoke our supervisory jurisdiction and convert Defendants’ devolutive appeal into a supervisory writ.

STANDARD OF REVIEW

Typically, a lower court's ruling on a motion to strike is reviewed for an abuse of discretion. See Hurel v. Nat'l Fire & Marine Ins. Co., 2025-0049, p. 15 (La. App. 4 Cir. 3/11/25), 414 So. 3d 778, 788 (citation omitted). However, when the lower court commits an error of law as it did here, then the appellate court reviews the ruling de novo. E.g. NGA 911, LLC v. Orleans Par. Commc'n Dist., 2022-0049, p. 3 (La. App. 4 Cir. 9/15/22), 348 So. 3d 839, 842. When the lower court's decision is based on an erroneous application of the law, the appellate court affords no deference to the lower court's decision, and it “must redetermine the facts de novo from the entire record and render a judgment on the merits.” Richard v. Richard, 2014-1365, p. 4 (La. App. 4 Cir. 6/3/15), 171 So. 3d 1097, 1100 (citation omitted).

DISCUSSION

Defendants raise multiple errors in their appeal to this Court. We find the issue of whether Defendants’ received sufficient, legal notice of the hearing on the Motion to Strike to be dispositive.

“Absent an express waiver, citation and service thereof are essential in all civil actions ․” Richard v. Williams, 2023-0911, p. 4 (La. App. 1 Cir. 4/30/24), 390 So. 3d 885, 888 (citations omitted). “[E]very pleading subsequent to the original petition shall be served on the adverse party as provided by [La. C.C.P. arts.] 1313 or 1314, whichever is applicable.” La. C.C.P. art. 1312. A judgment rendered against a defendant who has not been properly served under the law constitutes an absolute nullity. See Richard, 2023-0911, p. 5, 390 So. 3d at 889.

Defendants argue that they were not provided sufficient legal notice of the hearing on the Motion to Strike because the district court did not provide notice and the email sent by Plaintiff's counsel contained an unsigned order. In response, Plaintiff advances two main arguments as to why the hearing was proper—(1) the Motion to Reset was necessitated by Defendants’ own deficient Motion to Continue and (2) Defendants had actual notice of the hearing. We address each in turn.

First, Plaintiff argues that it had to file a Motion to Reset because the Motion to Continue filed by Defendants was deficient. In furtherance of this argument, Plaintiff's counsel represents that he had a conversation with a clerk of the presiding division, who allegedly represented that the court would not set a matter for hearing unless the order contained a space for the court to fill in the hearing date. However, this does not appear to be true from our review of the record. The order submitted by Defendants stated, “IT IS HEREBY ORDERED that the hearing/trial currently scheduled for August 14, 2025 be continued and reset to the next available date on the Court's docket.” Yet, the lower court did not deny the order. Rather, it granted Defendants’ continuance but failed to write in a date for the matter to be reset, thus creating confusion for the parties. While Plaintiff argues that Defendants should have been more proactive in their actions in obtaining their continuance, the facts demonstrate that the district court's order granted Defendants a continuance but failed to provide notice of the September 25 hearing date.

Next, Plaintiff argues that Defendants had actual notice of the September 25 hearing date because counsel served Defendants via La. C.C.P. art. 1313. Louisiana Code of Civil Procedure article 1313(C) provides that an order setting a court date may be served by emailing the document to the email address designated for service by the receiving party. “The purpose of La. C.C.P. art. 1313(C) is to fulfill the due process requirements under the Louisiana Constitution and United States Constitution and should be strictly construed.” Richard, 2023-0911, p. 5, 390 So. 3d at 889 (citation omitted). Furthermore, when service is conducted via electronic means, the serving party must file a certificate into the record certifying the manner in which service was made. See La. C.C.P. art. 1313 (B).

We find that the certificate of service Plaintiff filed in the record is facially deficient and did not establish that Defendants had been served. The certificate states that Plaintiff served Defendants on August 15, 2025, when, in fact, the lower court did not sign the order until two days later. An unsigned order is not an order of the court, and, therefore, prematurely emailing the blank order to opposing counsel did not constitute service of the September 25 hearing. Even assuming Defendants had actual notice—which we do not find in light of the unsigned order—actual notice is not a substitute for legal notice. See e.g. Fisher v. Majestic Trucking, Inc., 2009-1398, p. 5 (La. App. 4 Cir. 3/17/10), 35 So. 3d 384, 387; see also Chaney v. Coastal Cargo, Inc., 1998-1902, p. 4 (La. App. 4 Cir. 1/20/99), 730 So. 2d 971, 973.

In short, we find that the hearing on Plaintiff's Motion to Strike should have never occurred without proper legal notice being given to Defendants. Therefore, we vacate the district court's judgment striking Defendants’ Second Answer.

DECREE

For the foregoing reasons, we convert Defendants’ appeal into a supervisory writ, grant writ, vacate the district court's October 2, 2025 judgment and remand this case for further proceedings in accordance with the guidance from this opinion.

APPEAL CONVERTED TO WRIT; WRIT GRANTED; VACATED AND REMANDED

FOOTNOTES

1.   Although not relevant to this appeal, Defendants have admitted that the “Answer and Reconventional Demand” is not a reconventional demand.

2.   Louisiana Code of Civil Procedure article 1151 provides, in pertinent part, “A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party.”

3.   Louisiana Code of Civil Procedure article 1313(B) mandates that counsel file a certificate into the record specifying the manner in which service was made if it is affected via electronic means.

4.   The district court signed the formal, written judgment on October 2, 2025.

Judge Nakisha Ervin-Knott