NO. 2022-CA-0160
COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA
OCTOBER 5, 2022
Judge Paula A. Brown
APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 66-873, DIVISION “A” Honorable Kevin D. Conner, Judge
(Court composed of Judge Joy Cossich Lobrano, Judge Paula A. Brown, Judge Dale N. Atkins)
LOBRANO, J., CONCURS IN THE RESULT
Michael C. Ginart, Jr.
Joyce Duhe Young
Nicholas N.S. Cusimano
John C. Ginart
LAW OFFICE OF MICHAEL C. GINART, JR. & ASSOCIATES
2114 Paris Road
Chalmette, LA 70043
COUNSEL FOR PLAINTIFF/APPELLANT
Jeff Landry
Attorney General
LOUISIANA DEPARTMENT OF JUSTICE
P. O. Box 94005
Baton Rouge, LA 70804-9005
William David Coffey
Brad C. Cashio
LOUISIANA ATTORNEY GENERAL‘S OFFICE
1450 Poydras Street
Suite 900
New Orleans, LA 70112
Phyllis E. Glazer
LOUISIANA DEPARTMENT OF JUSTICE
1885 North Third Street
4th Floor
Baton Rouge, LA 70802
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED IN PART;
VACATED IN PART;
REMANDED
OCTOBER 5, 2022
PAB
DNA
This is a negligence suit. Appellants, David Lepine, Jr. and Cayden Lepine (collectively “the Lepines“), appeal the district court‘s February 4, 2022 judgment, which granted Appellee‘s – State of Louisiana, Department of Wildlife and Fisheries (the “LDWF“) – motion for involuntary dismissal for failure to timely request service, sustained the LDWF‘s declinatory exceptions of insufficiency of service of process and insufficiency of citation and dismissed the claims against the LDWF without prejudice. For the reasons that follow, we affirm the district court‘s judgment in part, vacate in part, and remand for further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
On July 22, 2021, the Lepines filed a petition for damages (the “Petition“) against LDWF,1 alleging that on July 24, 2020, while operating a boat on the Delacroix Canal (“the canal“) located in Plaquemines Parish, Louisiana, their boat struck a wooden pier and steel barriers obstructing the canal, causing them to be
On November 16, 2021, the LDWF filed a motion for involuntary dismissal for failure to timely request service (the “motion“) and declinatory exceptions of insufficiency of service of process and insufficiency of citation (collectively the “exceptions“), seeking to have the Lepines’ suit dismissed without prejudice.3 The LDWF argued that the Lepines failed to comply with the mandatory service of process requirements for all tort actions against the State of Louisiana (the “State“), its agencies or employees under both
On January 10, 2022, the LDWF‘s motion and exceptions came for hearing. Following the hearing, the district court orally granted the LDWF‘s motion, dismissing the Lepines’ Petition without prejudice, and sustained LDWF‘s exceptions. The district court reasoned that the use of the word “shall” in
This timely appeal followed.
DISCUSSION
On appeal, the Lepines assert as their sole assignment of error that the district court erred in finding they failed to timely request and effectuate service on the LDWF. When there are no disputes as to the facts, as in the case sub judice, “the ruling on exceptions of insufficiency of citation and service of process is [reviewed under] a de novo standard of review.” Brown v. Chesson, 20-00730, p. 2 (La. 3/24/21), 315 So.3d 834, 836 (citing Wilson v. Dep‘t of Pub. Safety & Corr., 53,433, p. 3 (La. App. 2 Cir. 4/22/20), 295 So.3d 1274, 1276, writ denied, 20-00717 (La. 9/29/20), 301 So.3d 1176). Accordingly, an appellate court‘s interpretation of the application of
A. (1) In all suits filed against the state of Louisiana or a state agency, citation and service may be obtained by citation and service on the attorney general of Louisiana, or on any employee in his office above the age of sixteen years, or any other proper officer or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and the identity of the named board, commission, department, agency, or officer through which or through whom suit is to be filed against.
(2) Service shall be requested upon the attorney general within ninety days of filing suit. This shall be sufficient to comply with the requirements of Subsection D of this Section and also
Code of Civil Procedure Article 1201(C) . However, the duty of the defendant served through the attorney general to answer the suit or file other responsive pleadings does not commence to run until the additional service required upon the department, board, commission, or agency head has been made.* * *
D. (1) 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. This requirement may be expressly waived by the defendant in such action by any written waiver. If not waived, a request for service of citation upon the defendant shall be considered timely if requested on the defendant within the time period provided by this Section, notwithstanding insufficient or erroneous service.
(2) If service is not requested by the party filing the action within the period required in Paragraph (1) of this Subsection, the action shall be dismissed without prejudice, after contradictory motion as provided in
Code of Civil Procedure Article 1672(C) ,6 as to the state, state agency, or political subdivision, or any officer or employee thereof, upon whom service was not requested within the period required by Paragraph (1) of this Subsection.
D. In actions brought pursuant to this Section, process shall be served upon the head of the department concerned, the office of risk management, and the attorney general, as well as any others required by R.S. 13:5107.
“The starting point in the interpretation of any statute is the language of the statute itself.” Whitley v. State ex rel. Bd. of Sup‘rs of La. State Univ. Agric. Mech. Coll., 11-0040, p. 6 (La. 7/1/11), 66 So.3d 470, 474 (citing M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371, p. 13 (La. 7/1/08), 998 So.2d 16, 27). It is axiomatic that when statutory language is troublesome, i.e. ambiguous, it falls to the courts to parse their meaning. As the Supreme Court articulated in Pierce Founds., Inc., 15-0785, p. 6, 190 So.3d at 303, “[l]egislation is the solemn expression of the legislative will; thus, the interpretation of legislation is primarily the search for the legislative intent.” (citing Cat‘s Meow, Inc. v. City of New Orleans through Dep‘t of Fin., 98-0601, p. 15 (La. 10/20/98), 720 So.2d 1186, 1198; La. Safety Ass‘n of Timbermen Self-Insurers Fund v. La. Ins. Guar. Ass‘n, 09-0023, p. 8 (La. 6/26/09), 17 So.3d 350, 355-56; see also
“Generally, statutes using mandatory language prescribe the result to follow (a penalty) if the required action is not taken.” Stow-Serge v. Side by Side Redevelopment, Inc., 20-0015, p. 8 (La. App. 4 Cir. 6/10/20), 302 So.3d 71, 78, writ denied, 20-00870 (La. 10/14/20), 302 So. 3d 1120. “If the terms of the statute are limited to what is required to be done, i.e., procedural rules, then the statute is considered directory even though mandatory language is employed.” Id. (citing Marks v. New Orleans Police Dep‘t, 06-0575, p. 10 (La. 11/29/06), 943 So.2d 1028, 1035). “Provisions designed to secure order, system,
In accordance with
A. When the grounds of the objections pleaded in the declinatory exception may be removed by amendment of the petition or other action of plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court; if the court finds, on sustaining the objection that service of citation on the defendant was not requested timely, it may either dismiss the action as to that defendant without prejudice or, on the additional finding that service could not have been timely requested, order that service be effected within a specified time.
B. If the grounds of the objection cannot be so removed, or if the plaintiff fails to comply with an order requiring such removal, the action, claim, demand, issue, or theory subject to the exception shall be dismissed; except that if an action has been brought in a court of improper jurisdiction or venue, the court may transfer the action to a proper court in the interest of justice.
With these tenets in mind, we conduct our de novo review.
Analysis
The Lepines’ argument is two-fold. First, they argue that, pursuant to
In response, the LDWF argues that the district court‘s judgment granting its exception for insufficiency of service should stand because the Lepines did not cite or effectuate service on all of the essential parties provided for in
I. La. R.S. 13:5107(D)(1)
The case sub judice, largely hinges upon our interpretation of
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 . . . . This requirement may be expressly waived by the defendant in such action by any written waiver. If not waived, a request for service of citation upon the defendant shall be considered timely if requested on the defendant within the time period provided by this Section, notwithstanding insufficient or erroneous service.
In addition to this supplemental language in
This argument has merit.
II. La. R.S. 39:1538(D)
The Lepines, relying on the Supreme Court‘s reasoning in Whitley, contend that service of citation on the general counsel, a person belonging to the state agency, was sufficient service on LDWF. The Lepines maintain that even assuming the secretary was the only person allowed to receive service on behalf of LDWF, their failure to request service on the specific person within ninety days of the commencement of their action did not entitle LDWF to the dismissal of their claims under
In Whitley, 11-0040, 66 So.3d 470, the plaintiff filed a medical malpractice action against the State of Louisiana, through the Board of Supervisors of Louisiana State University Agricultural Mechanical College on behalf of the Medical Center of Louisiana at New Orleans–University Campus (the “hospital“). The plaintiff initially requested service of citation on the Board of Supervisors, through its chairman and agent for service of process. About two and half years later, service was effectuated on the ORM and the attorney general. The hospital filed a declinatory exception for insufficient service of process, which was overruled by the district court. This Court denied the hospital‘s writ application, and plaintiff sought certiorari review. The Supreme Court granted the hospital‘s application for certiorari review for the sole purpose to determine whether, in a tort action against a state agency, it is sufficient to serve only the head of the state agency with citation within the ninety-day timeframe, or whether service of process was also necessary on the ORM and the attorney general. The Whitley Court found that although the plaintiff failed to serve the ORM and the attorney general pursuant to
More recently, in Brown, 20-00730 (La. 3/24/21), 315 So.3d 834, the Supreme Court granted certiorari review to determine whether the service requirements of
This Court, relying on Velasquez v. Chesson, 13-1260, (La. App. 4 Cir. 10/8/14), 151 So.3d 812 and Wright, 18-0825 (La. App. 4 Cir. 10/31/18), 258 So.3d 846, reversed the district court‘s judgment and found that the doctor – although named individually in the patient‘s petition – was required to receive timely service of citation through the head of the department for the Board of Supervisors, the ORM or the attorney general. See Brown v. Chesson, 19-0447, (La. App. 4 Cir. 4/24/20), 299 So.3d 741. The Supreme Court, in reversing this Court‘s decision, reiterated Whitley and set forth that “while
In cases similar to the instant appeal, Federal Courts have routinely been called
The Gomez Court also found the case of Hunter v. La. State Univ. Agr. & Mech. Coll. ex rel. La. Health Care Servs. Ctr. for Univ. Hosp. at New Orleans, 11-2841 (La. 3/9/12), 82 So.3d 268, to be instructive. The facts of Hunter, as set forth by this Court in Hunter v. La. State Univ. Agric. & Mech. Coll. ex rel. La. Health Care Servs. Ctr. for Univ. Hosp. at New Orleans, 10-1406, (La. App. 4 Cir. 6/8/11), 77 So.3d 264, are summarized as follows:
The plaintiff alleged he sustained injuries while visiting University Hospital. The plaintiff subsequently filed suit, inadvertently naming Louisiana State University Agricultural Mechanical College on behalf of Louisiana Health Care Service Center for University Hospital at New Orleans, AKA University Hospital (the “hospital“) as a defendant. The plaintiff timely requested service of citation on the attorney general and attempted service of citation on the hospital through an improper agent for process, rather than the chairman of the Board of Supervisors, as required by the statute. Following, service of citation was effectuated on the attorney general but never made on the hospital. After a hearing, the district court sustained an exception of insufficiency of service of process filed by the hospital and dismissed plaintiff‘s action against the hospital without prejudice. The plaintiff appealed. On appeal, this Court affirmed the district court‘s judgment, finding that the plaintiff lacked good cause for failing to request service of citation on the correct agent for service of process for the hospital within ninety-days of commencement of the suit. The plaintiff filed an application for certiorari review with the Louisiana Supreme Court, which was granted. On review, the Supreme Court, in reversing this Court‘s decision, found that the plaintiff timely requested service on the attorney general; thus, placing the attorney general on notice of the tort action against the hospital and satisfying the requirements of
Moreover, in Neighbors of 200 Henry Clay Avenue v. Board of Zoning Adjustment, 21-0387, pp. 13-14 (La. App. 4 Cir. 1/26/22), 335 So.3d. 255, 264, this Court applied the very same reasoning:
Since . . . insufficient service of process may possibly be cured by amending the petition and requesting proper service, the trial court erred by failing to allow plaintiffs time to amend pursuant to
La. C.C.P. art. 932(A) . . . . Accordingly, we vacate the portion of the trial court judgment dismissing Plaintiffs’ claims without prejudice and remand the matter to allow Plaintiffs an opportunity to attempt to cure the defects. See Interdiction of Hunter, 18-0685, p. 5 (La. App. 4 Cir. 12/19/18), 318 So. 3d 784, 788; Scott v. Jack‘s Cookie Co., 413 So. 2d 1334, 1336 (La. App. 1st Cir. 1982).
Turning to the case sub judice, there is no dispute that the plain language of
This argument has merit.
Consequently, while we have attempted to provide a somewhat comprehensive review of the various jurisprudential permutations regarding both
CONCLUSION
For the foregoing reasons, we affirm that portion of the district court‘s judgment that sustains the exceptions of insufficiency of service of process and insufficiency of citation, vacate the portion of the district court‘s judgment dismissing the Lepines’ claims without prejudice and remand the matter to allow the Lepines an opportunity to attempt to cure the defects.
VACATED IN PART;
REMANDED
Notes
II.
. . . the [LDWF] had caused to be erected by defendant John Doe Company, a rock dam and later, a storm dam and wooden piling/pier with steel barriers/[trusses] in the Delacroix Canal (also known as “Manuel‘s Canal“) . . . which said dam was obstructing the subject canal causing a hazardous condition to those navigating the said waterway. This was done without public notice and without notice to boaters and without the placement of any type of lighting and/or reflective materials.
*In the Senate committee hearing, Senator Murray referred to this phrase as “the crux of the bill.” See infra fn. 11 at 15:12.