Ashley N. Miller and Drusilla Parker v. Joseph P. Hirstius and American Alternative Insurance Corporation ( 2023 )

STATE OF LOUISIANA
Ic j
COURT OF APPEAL
ol&l FIRST CIRCUIT
2022 CA 0740
ASHLEY N. MILLER AND DRUSILLA PARKER
VERSUS
JOSEPH P. HIRSTIUS AND AMERICAN ALTERNATIVE
INSURANCE CORPORATION
JUDGMENT RENDERED:
MAR 15 2023
Appealed from the Twenty -Second Judicial District Court
Parish of St. Tammany • State of Louisiana
Docket Number 2020- 14674 • Division H
The Honorable Alan A. Zaunbrecher, Presiding Judge
Douglas M. Schmidt COUNSEL FOR APPELLANTS
Peter R. Borstell PLAINTIFFS— Ashley N. Miller and
New Orleans, Louisiana Drusilla Parker
Thomas S. Schneidau COUNSF,L FOR APPELLEES
Slidell, Louisiana DEFENDANTS --- City of Slidell and
Joseph P. Hirstius
BEFORE: WELCH, PENZATO, AND LANIER, JJ,
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 La. C. C. P. art.
1672( 0), good cause was shown why service could not be timely requested. In this
case, plaintiffs appeal the trial court' s judgment sustaining defendants' declinatory
exception urging insufficiency of service of process and dismissing plaintiffs' claims
against defendants, the City of Slidell and its employee, Joseph P. Hirstius, without
prejudice. For the reasons that follow, we affirm.
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.' 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
The request for service stated:
PLEASE SERVE:
1) The Defendant Joseph P. Hirstius
2112 Sgt. Alfred Dr.
Slidell, LA 70458
2) The Defendant City of Slidell, through its Chief Executive Officer
The Honorable Greg Cromer, Mayor
2055 Second Street
Slidell, LA 70460
3) The Defendant American Alternative Insurance Company
Through the Louisiana Secretary of State
8585 Archives Ave, Baton Rouge, LA 70809
V
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
sheriffs 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."
3
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' claims, during which all parties agreed to an
indefinite extension" to file responsive pleadings, as shown by an email sent by
defense counsel to plaintiffs' counsel dated March 11, 2021. Once settlement
negotiations broke down, defendants filed an answer and affirmative defenses. The
City and Mr. Hirstius also fled a declinatory exception raising the objection of
insufficiency of service of process on July 27, 2021— approximately 267 days after
suit was filed. Therein, defendants argued that plaintiffs failed to request service on
the City and Mr. Hirstius and pay the service fees within 90 days of filing suit under
La. C. C.P. art. 1201( C) and La. R.S. 13: 5107( D).
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 sheriffs 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.'
2 Defendants argue that because the trial court' s judgment disposes of only two out of the three
defendants, it is a partial judgment that is not subject to an immediate appeal absent a designation
by the court after an express determination that there is no just reason for delay. However, pursuant
to La. C. C. P. art. 1915( A)( 1), where a party is dismissed from a suit, the judgment is final and
there is no requirement for a designation of finality. See Cavalier v. Rivere' s Trucking, Inc.,
2003- 2197 ( La. App. 1st Cir, 9117104), 897 So.2d 38, 40; Bridges v. Smith, 2001- 2166 ( La. App.
1st Cir. 9127/ 02), 832 So. 2d 307, 309 n.4, writ denied, 2002- 2951 ( La. 2114103), 836 So. 2d 121.
Accordingly, we find that the trial court' s February 11, 2022 judgment is a final, appealable
judgment.
Plaintiffs timely filed a petition for suspensive appeal on March 2, 2022. The trial court signed
an order of appeal on March 14, 2022, notice of which was transmitted by the clerk of court to the
parties on March 25, 2022. In accordance with La. C. C. P. arts. 2127 and 2128, plaintiffs designated
portions of the record to constitute the record on appeal. See Uniform Rules, Courts of Appeal,
Rules 21 to 2- 1. 16; Bezet v. Original Libr. Joe' s, Inc., 2001- 1586 ( La. App. 1St Cir. 6/21102),
835 So.2d 472, 475.
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LAW AND DISCUSSION
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 La. R.S. 13: 550. Plaintiffs further argue they validly and timely
requested service of citations within 90 days of commencing their suit against
defendants, in accordance with La. C. C.P. art. 1201( C) and La. R. S. 13: 5107( D).
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. I" Cir. 1112112), 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.
1St
v. Division of Administration, 2017- 0396 ( La. App. Cir. 1/ 24/ 19), 272 So. 3d 1,
4, writ denied, 2019- 0331 ( La. 4129119), 268 So. 3d 1036.
Louisiana Code of Civil Procedure article 1201( C) provides:
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
R
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, La. R. S. 13: 5107( D)( 1) and ( 2) govern the requisite period of service
of citation on a political subdivision or employee thereof, such as the City and Mr.
Hirstius.4 As set forth in La. R.S. 13: 5107( D)( 1), in pertinent part:
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, ' Jiff 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[.]"
La. R. S. 13: 5107( D)( 2). Louisiana Code of Civil Procedure article 1672( C)
provides:
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. 4"' Cir. 412$ 104), 874 So. 2d 913, 916.
Louisiana Code of Civil Procedure article 1202 sets out the requirements for a valid
citation and service:
4
According to La. R. S. 13: 5102( B)( 1), the City is classified as a political subdivision, and as such,
service in accordance with La. R.S. 13: 5107( D)( 1) applies to the City and its employee.
7
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 La. C. C. P. art. 1202, the request for service is made to the clerk of court, not
the sheriff. Parker v. Rite Aid Corp., 2003- 0208 ( La. App. 4" Cir. 3/ 26103), 843
So. 2d 1140, 1140- 41, writ denied, 2003- 1152 ( La. 6/ 20/ 03), 847 So. 2d 1237.
Although La. R.S. 13: 5107( D)( 1) clearly requires that service of citation be
requested" within 90 days of the commencement of the action, the statute does not
specify the manner of making such request or when a request is deemed to be made.
Tranchant v. State, 2008- 0978 ( La. 1/ 21/ 09), 5 So. 3d 832, 835. In the absence of
such specificity, plaintiffs in the instant matter argue that service was requested on
November 2, 2020, the date plaintiffs filed their petition with the clerk of court by
facsimile transmission. The record on appeal reflects that plaintiffs complied with
all fax -filing requirements pursuant to La. R.S. 13. 850. Defendants, on the other
hand, argue that because plaintiffs failed to pay the sheriff' s service fees with respect
to service of the citations for the City and Mr. Hirstius within 90 days of filing suit,
plaintiffs failed to validly and timely request service. Defendants contend that La.
C. C. P. art. 1241( C) and La. R.S. 13: 5107( D) require that a " request" for service be
accompanied with payment of the service fees or an order granting pauper status. In
support of their position that service of citation is not considered " requested" until
N.
the clerk of court receives a request for service and payment of the required fees or
an order granting pauper status, defendants cite Methvien v. Our Lady of the Lake,
2020- 1081 ( La. App. V Cir. 4/ 16/ 21), 318 So. 3d 329, 332, which relies on the
holding in Jenkins v. Larpenter, 2004- 0318 ( La. App. I` Cir. 3124105), 906 So.2d
6565 659, writ denied, 2005- 1078 ( La. 6/ 17/ 05), 904 So. 2d 711. 5
To determine whether plaintiffs timely requested service, we must ascertain
what constitutes a " request" for service pursuant to La. C. C. P. art. 1201( C) and La.
R. S. 13: 5107( D). The Louisiana Supreme Court answered this question in
Tranchant when it declared " the ordinary meaning of the word `request,' without
more, contemplates a two-party transaction involving one who asks that something
be done and one who does what is asked. Thus, for purposes of La. R. S.
13: 5107( D)( 1), service of citation should be deemed ` requested' when the clerk
receives service instructions from the plaintiff."' Tranchant, 5 So. 3d at 836. This
Court recently took that declaration one step further in Methvien. In that case, this
Court held that a patient did not timely request service of citation on the defendant
hospital within 90 days of commencing a medical malpractice action under La.
C. C. P. art. 1201( C) because the patient did not pay the necessary service fees to the
5 The Jenkins court considered whether an inmate' s request for service was valid and timely under
La. R. S. 13: 5107( D). The inmate requested service of the petition on the defendants and
simultaneously filed a request to proceed in forma pauperis. Jenkins, 906 So. 2d at 657. The trial
court denied inmate' s pauper application and sent him notice of the denial. Thereafter, the
defendant moved to dismiss inmate' s suit for failure to timely request service; the trial court
granted the dismissal. In affirming the trial court' s dismissal of inmate' s suit for failure to timely
request service on the defendant, the Jenkins court held that " a request for service without payment
of required fees, or without leave of court excusing such payment because ofpauper status, simply
is no proper request at all." Jenkins, 906 So. 2d at 659 ( emphasis added). The Jenkins court noted
that inmate' s service request was not accompanied by payment of any required fees— neither clerk
of court filing fees nor sheriff' s service fees— and that inmate had been denied pauper status.
Moreover, inmate failed to pay any fees for " well over ten months" after receiving notice of the
denial of his request to proceed in forma pauperis, and no good cause was shown for such a failure.
Jenkins, 906 So. 2d at 659.
It should be noted that there are stark differences between Tranchant and the present matter—
namely, Mr. Tranchant' s attorney initially requested that service be withheld, while in the case
before us, service was never withheld. Further, the core issue in Tranchant was whether the 90 -
day time limit is satisfied when a letter containing service instructions is mailed versus when a
letter containing service instructions is received by the clerk of court. See Tranchant, 5 So. 3d at
833, 835.
E
sheriff until after the 90 -day period for service lapsed. Methvien, 318 So. 3d at 332.
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 property
request service of process within 90 days of the commencement of the action. In
support of its exception, the defendant submitted a notice mailed by the clerk of
court (" Message Reply") to the plaintiff s counsel approximately ten days after he
filed suit, which indicated that the plaintiff owed additional sheriff' s service fees in
the amount of $40.08. Methvien, 318 So. 3d at 331- 32. The plaintiffs counsel
denied receiving the " Message Reply" notice from the clerk of court. Methvien, 318
So.3d at 334. After a hearing, the trial court sustained the defendant' s exception,
granted its motion for involuntary dismissal, and dismissed all of the plaintiff' s
claims against the defendant without prejudice. Methvien, 318 So. 3d at 332. On
appeal, this Court noted that "[ s] ervice of citation is not considered requested until
the clerk receives a request for service and payment of the required fees or an order
granting pauper status." Methvien, 318 So. 3d at 332 ( citing Jenkins, 906 So. 2d at
658- 59) ( Emphasis added). Since it was undisputed that the plaintiff failed to pay
the fees to the sheriffs office within 90 days of filing the petition, this Court held
service was not timely and affirmed the trial court. Methvien, 318 So. 3d at 332.
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
10
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 sheriffs fees was not timely.
In light ofthis Court' s ruling in Methvien, we find no error in the trial court' s finding
that service was not timely requested.'
Upon sustaining the exception, the trial court was obligated under La. C.C.P.
art. 1672( C) to dismiss plaintiffs' claims against the City and Mr. Hirstius without
prejudice, unless good cause was shown why service could not be requested.
Therefore, we must next determine whether the trial court erred in finding that no
good cause was shown. As stated by this Court in Methvien, 318 So. 3d at 333- 34:
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- 122.9 ( La.
6129101), 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." La. C. C. P. art. 1672( C);
This Court is bound by the law of the circuit to follow our prior decisions. See Garrett v. K &
B Machine Works, Inc., 2015- 1381 ( La. App. VY Cir. 2/ 26/ 16), 191 So. 3d 1074, 1076, writ
denied, 2016- 0581 ( La. 6/ 17/ 16), 194 So. 3d 1110.
11
Freeman v. Ochsner Clinic Foundation, 2020- 283 ( La. App. 5" Cir. 11110120),
307 So. 3d 335, 337.
Plaintiffs cited several cases that have addressed what constitutes good cause
under La. C. C.P. art. 1672( C). In Anyanwu v. University Medical Center
Management Corp., 2015- 0066 ( La. App. 1ST Cir. 9/ 21/ 15), 2015 WL 5547480 at
2 ( unpublished), Ms. Anyanwu filed a petition for damages against the Sheriff for
East Baton Rouge Parish, among other defendants, and attached an in forma
pauperis affidavit with her petition, which was ultimately denied. Thereafter, Ms.
Anyanwu submitted payment of $710.00 to the clerk of court approximately 78 days
after filing her petition. The sheriff was not served, however, until 207 days after
Ms. Anyanwu filed her petition; accordingly, he filed a declinatory exception of
insufficiency of service of process, which the trial court sustained. This Court
reversed, finding that Ms. Anyanwu paid all fees necessary to serve the defendants
named in her petition within the 90 -day period. The sheriff, who was not served
within 90 days, had incorrectly argued on appeal that the service fees were not paid
within the 90 -day period. Anyanwu, 2015 WL 5547480 at * 2- 3. In Anyanwu, all
necessary fees were paid by the plaintiff within 90 days of filing suit to effect service;
in the present case, however, not all necessary fees were paid by the plaintiffs within
90 days of filing suit to effect service. Therefore, Anyanwu has no bearing on the
case before us.
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
12
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 $ 38293 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.
8
Hirstius until long after being notified that service fees were outstanding.
When the Methvien court was called to determine whether the plaintiff
demonstrated " good cause" as contemplated under La. C. C. P. art. 1672( C), it could
not determine whether the plaintiff s attorney received the clerk of court' s " Message
s In addition to Anyanwu and Covington, plaintiffs also cite Walker v. GoAuto Ins. Co., 2020-
0331 ( La. App. 01 Cir. 6/ 10/ 21), 323 So. 3d 918, 919. Walker, however, concerns a finding that
service was timely requested in compliance with La. C. C. P. art. 1201( C) and explicitly stated that
it need not address " good cause." See Walker, 323 So. 3d at 923. As we stated previously, we find
that service was not timely requested in light ofthis Court' s prior ruling in Methvien. Accordingly,
we do not find this case instructive as to good cause.
13
Reply" regarding the payment of additional fees based on the evidence in the record.
The Methvien court noted, however, that the record did show that the defendant was
not served until seven months after the plaintiff filed his petition and that the plaintiff
did not ascertain the status of service until the defendant' s exception was filed. The
Methvien court stated, " The jurisprudence has consistently placed some
responsibility on the party and attorney and found no good cause under [ Article]
1672( C) when the attorney could have taken steps to verify service, particularly after
a long period of time." Methvien, 318 So. 3d at 334. Based on the evidence in the
record in the case before us, we also cannot determine whether plaintiff's' counsel
received the email from the sheriffs office nor are we able to determine whether
plaintiffs' counsel attempted to ascertain the status of service prior to the fling of
defendants' exception.
The only thing clear from the record on appeal is that
defendants were not served within the 90 -day period to effect service. We cannot
say under the circumstances presented herein that plaintiffs proved " good cause."
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
goad 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
14
a written waiver of service by the defendants, as is required under La. C. C.P. art.
1201( B) and (C), 9 nor does any such written waiver appear in the record. The March
11, 2021 email, sent by defense counsel to plaintiffs' counsel, which indicated that
all parties had agreed to an " indefinite extension" to file responsive pleadings,
contains no stated intention by defendants to waive service of citation. Accordingly,
defendants' actions do not constitute an express written waiver of citation and
service, as is required under La. C. C. P. art. 1201( B) and ( C). See Igbinoghene v. St.
Paul Travelers Ins. Co., 2011- 0124 ( La. 4/ 4/ 11), 58 So. 3d 452, 453 ( per curiam)
quoting Filson v. Windsor Court Hotel, 2004- 2893 ( La. 6/ 29/ 05), 907 So. 2d 723,
729 ("[ Tlhe mere act of filing an answer and participating in discovery does not
constitute an express written waiver of citation and service as contemplated by La.
C. C. P. art. 1201( 0).")). Similarly, defendants' actual knowledge of the filing of
plaintiffs' suit does not obviate the need for service. See Igbinoghene, 58 So. 3d at
453 ( qy2ting Naquin v. Titan Indemnity Co., 2000- 1585 ( La. 2/ 21/ 01), 779 So. 2d
704, 710 ("[ I] t is well -accepted that even a defendant' s actual knowledge of a legal
action cannot supply the want of citation because proper citation is the foundation
of all actions.")).
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.
9 Louisiana Code of Civil Procedure article 1201( B) provides, " The defendant may expressly
waive citation and service thereof by any written waiver made part of the record." Furthermore,
La. C. C. P, art. 1201( C) provides:
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.
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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.
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