ASHLEY N. MILLER AND DRUSILLA PARKER VERSUS JOSEPH P. HIRSTIUS AND AMERICAN ALTERNATIVE INSURANCE CORPORATION
2022 CA 0740
STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
MAR 15 2023
The Honorable Alan A. Zaunbrecher, Presiding Judge
Douglas M. Schmidt
Peter R. Borstell
New Orleans, Louisiana
COUNSEL FOR APPELLANTS PLAINTIFFS—Ashley N. Miller and Drusilla Parker
Thomas S. Schneidau
Slidell, Louisiana
COUNSEL FOR APPELLEES DEFENDANTS—City of Slidell and Joseph P. Hirstius
WELCH, J.
We are called upon to decide the procedural question of what constitutes a valid and timely “request” for service of citation upon state entities; specifically, we must decide whether a request for service is considered timely if a plaintiff does not pay all of the sheriff‘s service fees within 90 days of commencing suit. Further, if service was not timely requested, we must determine whether, under
FACTS AND PROCEDURAL HISTORY
On November 2, 2020, plaintiffs, Ashley N. Miller and Drusilla Parker, fax-filed a petition for damages to the Twenty-Second Judicial District Court for the Parish of St. Tammany. The petition named the City of Slidell (“the City“); its employee, Joseph P. Hirstius; and its insurer, American Alternative Insurance Company (“AAIC“), as defendants. The petition included a request for service of citation on all three defendants.1 That same day, plaintiffs received a fax confirmation from the clerk of court advising that the “total amount” of $535.00 was due within seven days, exclusive of legal holidays. Plaintiffs timely mailed a copy of their original petition and a check in the amount of $535.00 to the clerk of court. The clerk of court received plaintiffs’ original petition and the $535.00 check two days later on November 4, 2020, and generated a receipt acknowledging payment.
Approximately one month later, on December 1, 2020, the clerk of court issued the citations to be served on the three defendants. On December 2, 2020, the St. Tammany Parish Sheriff‘s Office (“sheriff“) sent an email to a private email address purportedly owned by plaintiffs’ counsel in his private capacity. The body of the email stated, “Please see the attached letter.” The attached letter stated that sheriff‘s service fees in the amount of $77.10 were due and that failure to pay the fees would result in a return of the citations to the clerk of court.
On December 9, 2020, the Sheriff for East Baton Rouge Parish served AAIC though its agent for service of process, the Louisiana Secretary of State. On December 31, 2020, defense counsel emailed plaintiffs’ counsel, noting his belief that the City and Mr. Hirstius had not yet been served, but that AAIC had been served. On January 5, 2021, the sheriff sent a second email to plaintiffs’ counsel at the same private email address. Like the first email, an attached letter notified plaintiffs’ counsel that sheriff‘s service fees were due. This time, the attached letter indicated that $66.84 was due.
The sheriff held the two citations for another month. Then on February 4, 2021—94 days after plaintiffs requested service—the sheriff returned the citations for the City and Mr. Hirstius to the clerk of court. The returned citations included a page stamped “RTC INSUFFICIENT FUNDS TO PROCESS” and were filed into the record.
On February 8, 2021—98 days after plaintiffs requested service—the clerk of court mailed plaintiffs notices that the sheriff returned the citations for the City and Mr. Hirstius to its office due to insufficient funds. The clerk of court requested “further service instructions.”
Prior to receipt of the “insufficient funds” notices mailed by the clerk of court, the parties had entered into settlement negotiations. For the next five months, the parties attempted to settle plaintiffs’
On August 9, 2021—280 days after suit was filed—plaintiffs requested re-issuance of the citations for service on the City and Mr. Hirstius and paid $200.00 to the clerk of court. Mr. Hirstius was personally served on September 28, 2021—330 days after suit was filed.
However, the sheriff again emailed plaintiffs’ counsel‘s private email address to inform him that outstanding sheriff‘s service fees in the amount of $6.80 were due. On October 12, 2021, the clerk of court mailed plaintiffs a notice that the sheriff had returned the citation for the City due to insufficient funds. The clerk of court requested “further service instructions.” On October 26, 2021, plaintiffs requested the re-issuance of the citation for service on the City and paid $145.00 to the clerk of court relative thereto. On November 24, 2021—387 days after plaintiffs’ suit was filed—the City was served through its agent for service of process, the Mayor of the City of Slidell.
Plaintiffs filed oppositions to the defendants’ exception, arguing that they acted in good faith by requesting service of citation on all defendants within 90 days of filing suit and paying the $535.00 “total amount” as directed by the clerk of court. Plaintiffs’ counsel argued that when hand-delivering original petitions to the clerk of court, he “always brings additional pleadings and checks in case a problem arises such as the [sheriff] needs to be paid service fees,” but in this case, he was prevented from entering the clerk of court‘s office in person due to COVID-19 restrictions, so he had to mail the original petition and a $535.00 check to the clerk of court. Plaintiffs contended that at the time of filing, they “were never informed that separate fees were due the sheriff‘s office until the ninety-day period ran.” (Emphasis removed). The plaintiffs further argued that the same attorney represented all three defendants, so once AAIC was formally served, all defendants “had formal notice of this litigation.” Finally, plaintiffs averred that the parties agreed to “stay all proceedings while they worked on a settlement of the case,” thereby waiving citation and service.
The trial court held a hearing on defendants’ exception on January 27, 2022, and sustained the exception. The trial court signed a judgment on February 11, 2022, in conformity with its oral ruling, sustaining the declinatory exception raising the objection of insufficiency of service of process filed by the City and Mr. Hirstius and dismissing those defendants without prejudice.2 The plaintiffs now appeal.3
Plaintiffs argue the trial court erred in sustaining defendants’ declinatory exception raising the objection of insufficiency of service of process. Plaintiffs contend that they timely fax-filed their petition for damages and complied with all requirements of
On appeal, the trial court‘s dismissal of a suit for failure of the plaintiff to timely request service is subject to the manifest error standard of review. Jones v. Iberville Parish Council, 2012-0391 (La. App. 1st Cir. 11/2/12), 111 So. 3d 83, 85. Under the manifest error standard, in order to reverse a trial court‘s determination of fact, an appellate court must review the record in its entirety and find that (1) a reasonable factual basis does not exist for the finding, and (2) the record establishes that the factfinder is clearly wrong or manifestly erroneous. Allerton v. Broussard, 2010-2071 (La. 12/10/10), 50 So. 3d 145, 147. However, when the facts are not disputed and the issue before this Court is whether the trial court properly interpreted and applied the law, the standard of review for questions of law is simply a review of whether the trial court was legally correct or incorrect. Lathan Company, Inc. v. Division of Administration, 2017-0396 (La. App. 1st Cir. 1/24/19), 272 So. 3d 1, 4, writ denied, 2019-0331 (La. 4/29/19), 268 So. 3d 1036.
Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing, and the additional defendant shall be served with the original petition and the supplemental or amended petition. The defendant may expressly waive the requirements of this Paragraph by any written waiver. The requirement provided by this Paragraph shall be expressly waived by a defendant unless the defendant files, in accordance with the provisions of Article 928, a declinatory exception of insufficiency of service of process specifically alleging the failure to timely request service of citation.
In particular,
In all suits in which the state, a state agency, or political subdivision, or any
officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party.
Furthermore, “[i]f service is not requested by the party filing the action within the [90-day] period...the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the...political subdivision...upon whom service was not requested within the [90-day] period[.]”
A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C) or 3955 upon the sustaining of a declinatory exception filed by such defendant, or upon contradictory motion of any other party, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.
None of these statutes require that a defendant actually be served within 90 days of the plaintiff‘s filing of the petition—only that service be “requested.” See Lockett v. Reese, 2004-0328 (La. App. 4th Cir. 4/28/04), 874 So. 2d 913, 916.
The citation must be signed by the clerk of the court issuing it with an expression of his official capacity and under the seal of his office; must be accompanied by a certified copy of the petition, exclusive of exhibits, even if made a part thereof; and must contain the following:
(1) The date of issuance;
(2) The title of the cause;
(3) The name of the person to whom it is addressed;
(4) The title and location of the court issuing it; and
(5) A statement that the person cited must either comply with the demand contained in the petition or make an appearance, either by filing a pleading or otherwise, in the court issuing the citation within the delay provided in Article 1001 under penalty of default.
Under
Although
To determine whether plaintiffs timely requested service, we must ascertain what constitutes a “request” for service pursuant to
The plaintiff in Methvien fax-filed a petition for damages that included a request that the defendant be served through its agent for service of process. The plaintiff received a fax confirmation from the clerk of court, noting that the plaintiff owed $487.00 in filing fees. There was a line on the fax confirmation to list any fees owed to the sheriff for service; however, that line was blank. The plaintiff paid the $487.00 to the clerk of court as provided on the fax confirmation. Nearly seven months later, the defendant filed an exception of insufficiency of service of process and motion for involuntary dismissal in which it asserted that the plaintiff failed to properly request service of process within 90
The Methvien court interpreted Jenkins to require timely payment of all fees owed, including service fees to the sheriff. In the instant case, the trial court found that plaintiffs requested service in their petition but did not pay the service fees to the sheriff within 90 days of filing their petition. The City and Mr. Hirstius were not served until after they filed the exception, which was approximately 387 and 330 days, respectively, after plaintiffs’ petition was filed. Thus, the trial court, like the court in Methvien, concluded that service was not requested within 90 days of the suit‘s commencement because payment of the required sheriff‘s fees was not timely. In light of this Court‘s ruling in Methvien, we find no error in the trial court‘s finding that service was not timely requested.7
Upon sustaining the exception, the trial court was obligated under
Although “good cause” is not defined in the article, Louisiana courts have strictly construed the good cause requirement. Barnett v. Louisiana State University Medical Center-Shreveport, 2002-2576 (La. 2/7/03), 841 So. 2d 725, 726; Jones, 111 So. 3d at 85. Confusion over proper service information or inadvertence by the plaintiff‘s counsel are not enough to support a finding of good cause. See Norbert v. Loucks, 2001-1229 (La. 6/29/01), 791 So. 2d 1283, 1285.
* * *
The jurisprudence has consistently placed some responsibility on the party and attorney and found no good cause under
La. Code Civ. P. art. 1672(C) when the attorney could have taken steps to verify service, particularly after a long period of time.
When, on the face of the pleadings, the 90-day time limit for requesting service has been exceeded without request, the burden of proof is upon the party alleging “good cause” to show “why service could not be requested.”
Plaintiffs cited several cases that have addressed what constitutes good cause under
Plaintiffs also cite Covington v. Town of Jackson, No. CV-19-201-JWD-RLB (M.D. La. 2/20/20), 2020 WL 838293 at *2 (unpublished). In that case, Mr. Covington filed his petition for damages against a political subdivision and its employee; he also requested to proceed in forma pauperis. The clerk of court sent Mr. Covington a bill for $174.50, which he promptly paid. Approximately 146 days after filing his petition and receiving no answer from the defendants, Mr. Covington inquired with the clerk of court, who informed him that an additional $325.00 was due to complete service. Mr. Covington paid the additional fee that same day and service of his petition was effectuated on the defendants 155 days after filing. The defendants removed the case to federal court and sought dismissal of Mr. Covington‘s suit for insufficient service of process. Applying Louisiana law, the federal district court denied the defendants’ motion to dismiss, finding that Mr. Covington “took sufficient steps to request service on the [d]efendants under [La. R.S.] 13:5107, although an error may have resulted in the lack of actually affecting service.” Covington, 2020 WL 838293 at *6.
In addition to being non-binding on this Court, Covington is distinguishable from the instant matter for several reasons. First, Covington involved an order granting pauper status, which is not at issue here. Second, there is no indication that Mr. Covington ever received any notice he owed outstanding service fees or that there were issues with service during the 90 days after he filed suit. In the instant case, however, the record reflects (and does not contain any evidence to refute) that both sheriff and defense counsel emailed plaintiffs’ counsel to inform him that sheriff‘s service fees were outstanding and that service of the citations on the City and Mr. Hirstius had not been effected. Finally, Mr. Covington actively took steps to verify whether service had occurred, whereas the record before us is devoid of any evidence that plaintiffs took any steps to verify service on the City and Mr. Hirstius until long after being notified
When the Methvien court was called to determine whether the plaintiff demonstrated “good cause” as contemplated under
Furthermore, plaintiffs’ argument that the COVID-19 protocols established by the Louisiana Supreme Court—as followed by the Twenty-Second Judicial District Court and the clerk of court‘s office—prevented or interfered with plaintiffs’ counsel‘s ability to contact the clerk of court‘s office is likewise not considered “good cause.” The COVID-19 protocols did not prevent plaintiffs’ counsel from telephoning, emailing, or mailing correspondence to the clerk of court to confirm that service of the citations had occurred—especially in light of defense counsel‘s December 31, 2020 email to plaintiffs’ counsel, noting his belief that the City and Mr. Hirstius had not been served. Thus, any COVID-19 protocols in place at the time of filing do not establish “good cause.”
As to their argument that the parties were engaged in settlement negotiations and agreed to an “indefinite extension” to file responsive pleadings, plaintiffs presented no evidence at the hearing on defendants’ exception that would constitute a written waiver of service by the defendants, as is required under
Therefore, we find plaintiffs failed to carry their burden of demonstrating “good cause” for failure to timely effect service and find no error in the trial court‘s judgment sustaining defendants’ exception of insufficient service of process.
DECREE
We affirm the trial court‘s February 11, 2022 judgment, sustaining the declinatory exception raising the objection of insufficiency of service of process filed by the defendants, the City of Slidell and Joseph P. Hirstius, and dismissing those defendants, without prejudice. All costs of this appeal are assessed to plaintiffs, Ashley N. Miller and Drusilla Parker.
AFFIRMED.
Notes
The request for service stated:
PLEASE SERVE:
- The Defendant Joseph P. Hirstius
2112 Sgt. Alfred Dr.
Slidell, LA 70458 - The Defendant City of Slidell, through its Chief Executive Officer
The Honorable Greg Cromer, Mayor
2055 Second Street
Slidell, LA 70460 - The Defendant American Alternative Insurance Company
Through the Louisiana Secretary of State
8585 Archives Ave, Baton Rouge, LA 70809
Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing, and the additional defendant shall be served with the original petition and the supplemental or amended petition. The defendant may expressly waive the requirements of this Paragraph by any written waiver. The requirement provided by this Paragraph shall be expressly waived by a defendant unless the defendant files, in accordance with the provisions of Article 928, a declinatory exception of insufficiency of service of process specifically alleging the failure to timely request service of citation.