272 So. 3d 1
La. Ct. App.2019Background
- Lathan Company filed a breach-of-contract/public-works petition against the State on April 18, 2016 and initially transmitted filings by facsimile.
- Lathan faxed a request for service on the State to the district clerk on July 15, 2016 (within 90 days), but did not forward the original signed request and fees to the clerk within seven days as required by La. R.S. 13:850; the clerk received the original on August 22, 2016 and service occurred September 19, 2016.
- The State filed a declinatory exception for insufficiency of service of process, arguing Lathan’s service request was untimely under La. R.S. 13:5107/D(1) and that service on the attorney general was not requested as required.
- The district court overruled the State’s exception; the appellate court granted supervisory review, reversed, and granted the exception; the Louisiana Supreme Court remanded for full opinion and this court reconsidered.
- The central legal questions: whether a facsimile request for service that does not comply with 13:850 retains effect for the 90-day service-request rule in 13:5107(D)(1), and whether failure to request service on the attorney general within 90 days mandates dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of faxed service request under La. R.S. 13:5107(D)(1) | Fax received by clerk within 90 days is a timely request (relying on Wilborn) | Fax was ineffective because originals/fees were not forwarded within 7 days under La. R.S. 13:850 | Held timely: Wilborn remains controlling; a faxed request received within 90 days is effective if fees/funds were available for service within the 90-day period. |
| Applicability of La. R.S. 13:850 to service requests on State | 13:850 filing formalities should not defeat a timely faxed service request | 13:850(C) voids facsimile filing if B-subsection obligations not satisfied | Held Morales and Wilborn allow faxed receipt to count; 13:850 requirements do not automatically nullify a faxed service request received within 90 days. |
| Requirement to have funds/fees available for service | A timely fax plus evidence of funds in clerk’s account satisfied the rule | If clerk could not effect service for lack of fees, request was not actionable | Held consistent with Jenkins: a facsimile request is insufficient if no funds/fee were available; here clerk records showed funds, so requirement met. |
| Mandatory service on Attorney General and remedy for failure | Whitley: plaintiff need not serve both AG and agency head; permissive options remain | Statutory amendment (A)(2) mandates requesting service on AG within 90 days; failure should lead to dismissal | Held: Service on AG is mandatory under A(2), but statute is unclear about penalty for failing to request AG service; construing ambiguities in favor of maintaining actions, dismissal was not mandatory here and trial court’s denial of the exception was affirmed. |
Key Cases Cited
- Wilborn v. Vermilion Parish Police Jury, 877 So.2d 985 (La. 2004) (facsimile request received within 90 days can be a timely service request; 13:850 filing formalities not dispositive)
- Tranchant v. State, 5 So.3d 832 (La. 2009) (service is "requested" when clerk receives service instructions and can act on them)
- Morales v. State ex rel. Bd. of Supervisors of LSU, 106 So.3d 104 (La. 2013) (facsimile is deemed filed when clerk receipt is transmitted under 13:850(A); compliance with B-subsection relates to whether facsimile has force and effect)
- Whitley v. State ex rel. Bd. of Supervisors of LSU, 66 So.3d 470 (La. 2011) (statutory "may" in 13:5107(A)(1) permits election of service methods; holding that serving AG is not necessarily required under A(1))
- Jenkins v. Larpenter, 906 So.2d 656 (La. App. 1st Cir. 2005) (a request for service without payment or sufficient funds is not a proper request)