251 So. 3d 540
La. Ct. App.2018Background
- In June 2016 Robert L. Lucien, Sr. sued attorney Robert J. Carter for damages alleging Carter caused wrongful seizure and sale of Lucien's property by filing unlawful pleadings, obtaining judgments and a writ of seizure and sale.
- Lucien originally requested service of process at a post office box within 90 days of filing; a physical address for Carter was provided to the clerk six months after filing, and service was effected December 27, 2016.
- Carter filed a declinatory exception (insufficiency of service / improper service and insufficiency of citation) arguing service was not timely requested under La. C.C.P. art. 1201(C), and a peremptory exception contending Lucien had no right of action against him.
- The trial court sustained the declinatory and peremptory exceptions, found service improper, and dismissed the suit with prejudice; the court declined to award attorney’s fees but taxed costs to Lucien.
- On appeal this court affirmed the holding that service was not properly requested within 90 days, reversed the with-prejudice dismissal, and amended the judgment to dismiss the action without prejudice under La. C.C.P. art. 1672(C).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service was timely requested under La. C.C.P. art. 1201(C) | Lucien argued his request at the post office box was adequate/timely and that he reasonably believed the PO box constituted a physical address in that parish | Carter argued service was not properly requested within 90 days because the PO box is not a valid address for personal or domiciliary service | Held: Request was not proper within 90 days; declinatory exception for insufficiency of service sustained |
| Whether good cause existed to excuse late request for service | Lucien argued confusion about Carter’s address and local reliance on PO boxes showed good cause | Carter contended no good cause; proper address could have been obtained earlier | Held: No good cause shown; court refused to order service within a specified time |
| Whether the trial court properly reached insufficiency of citation and no-right-of-action after sustaining service exception | Lucien argued court erred in dismissing and in ruling on other exceptions | Carter preserved and urged those exceptions | Held: Those exceptions were rendered moot by the service ruling; trial court should have dismissed without prejudice rather than rule on remaining exceptions or dismiss with prejudice |
| Whether appellate court should award attorney’s fees for frivolous appeal | Lucien appealed; Carter sought fees for frivolous appeal | Carter argued appeal was frivolous; Lucien maintained appeal had at least some basis | Held: No fees awarded; slightest justification for appeal precludes frivolous-appeal damages; partial relief to Lucien granted |
Key Cases Cited
- Johnson v. Brown, 851 So.2d 319 (La. App. 4th Cir.) (strict compliance required for request of service within 90 days)
- Barnett v. Louisiana State University Medical Center–Shreveport, 841 So.2d 725 (La. 2003) (request for service must be accurate and directed to proper agent)
- Morgan v. Investment Cars Unlimited, Inc., 843 So.2d 580 (La. App. 2d Cir.) (purpose of 90‑day rule is timely notice to defendant)
- Courtney v. Fletcher Trucking, 111 So.3d 411 (La. App. 1st Cir.) (penal statute for frivolous appeal must be strictly construed)