143 So. 3d 1211
La. Ct. App.2014Background
- Dr. Roberto Llopis filed suit (Oct. 31, 2011) against the Louisiana State Board of Dentistry and individual board members based on alleged injury from his 2010 restricted-license application after he voluntarily surrendered his license in 2006.
- At filing Dr. Llopis instructed the clerk to "PLEASE HOLD SERVICE."
- Dr. Llopis filed a first amended petition (Jan. 25, 2012) that named the State/Department of Health & Hospitals as the proper state defendant and requested service; citations issued Jan. 26, 2012.
- Defendants moved on multiple exceptions, including insufficiency of service of process, and a motion for involuntary dismissal.
- Trial court granted the insufficiency-of-service exception and involuntary dismissal (dismissal without prejudice), reasoning Dr. Llopis failed to request service within 90 days and referencing a June 2012 amendment to La. R.S. 13:5107(A) (which postdated the hearing).
- The appellate court reversed, holding the amended petition timely requested service within 90 days, defendants received notice within a reasonable time, and dismissal was inappropriate under the circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court relied on the wrong (post-hearing amended) statute | Llopis: trial court considered an amendment effective after the hearing; reversal required | Defendants: trial court’s references were harmless and did not control the judgment | Court: references to the June 2012 amendment were improper but did not show the court relied on the wrong statute; no reversible error on that ground |
| Whether dismissal for failure to timely request service was proper | Llopis: service was requested by amended petition within 90 days; dismissal was too harsh | Defendants: original petition held service; timely request was not made as to the proper state agent within 90 days | Court: service request in the Jan. 25, 2012 amended petition (naming the State/agent) complied with La. R.S. 13:5107(D) and art. 1201(C); dismissal was manifestly erroneous; reverse and remand |
Key Cases Cited
- Johnson v. Brown, 851 So.2d 319 (La. App. 4th Cir. 2003) (standard of review for dismissal for failure to timely request service is manifest error)
- Anderson v. Norfolk Southern Railway Co., 814 So.2d 659 (La. App. 4th Cir. 2002) (purpose of 90-day service request is timely notice to defendant)
- Hugh Eymard Towing, Inc. v. Aeroquip Corp., 776 So.2d 472 (La. App. 5th Cir. 2000) (same principle regarding timely notice)
- Morgan v. Investment Cars Unlimited, Inc., 843 So.2d 580 (La. App. 2d Cir. 2003) (discussing 90-day service request purpose)
- Pylant v. Jefferson Parish, State of La., Dep’t of Health & Hosps., 907 So.2d 807 (La. App. 5th Cir. 2005) (distinguished — late service on correct agent)
- McGuire v. Environmental Monitoring Serv., Inc., 865 So.2d 759 (La. App. 5th Cir. 2003) (distinguished — amended petition filed after 90 days)
- Whitley v. State ex rel. Bd. of Sup’rs of La. State Univ. Agr. Mechanical College, 66 So.3d 470 (La. 2011) (statutory ambiguity should be construed to preserve claims)