Lois Eugene Versus Brett Duroncelet, Waste Connection, Inc., and Xyz Insurance Company ( 2019 )

LOIS EUGENE NO. 19-C-224
VERSUS FIFTH CIRCUIT
BRETT DURONCELET, WASTE COURT OF APPEAL
CONNECTION, INC., AND XYZ INSURANCE
COMPANY STATE OF LOUISIANA
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 785-459, DIVISION "J"
HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING
July 03, 2019
JUDE G. GRAVOIS
JUDGE
Panel composed of Judges Jude G. Gravois,
Hans J. Liljeberg, and John J. Molaison, Jr.
WRIT GRANTED; RULING REVERSED; EXCEPTION OF
INSUFFICIENCY OF SERVICE OF PROCESS GRANTED;
CLAIMS AGAINST WASTE CONNECTIONS BAYOU, INC.
DISMISSED WITHOUT PREJUDICE
JGG
HJL
JJM
COUNSEL FOR PLAINTIFF/RESPONDENT,
LOIS EUGENE
Clarence J. Roby, Jr.
COUNSEL FOR DEFENDANT/RELATOR,
WASTE CONNECTIONS BAYOU, INC.
Guice A. Giambrone, III
Carolan D. Luning
GRAVOIS, J.
Relator, Waste Connections Bayou, Inc. (“Bayou”), seeks this Court’s
supervisory review of the trial court’s March 28, 2019 written judgment which
denied its declinatory exception of insufficiency of service of process. For the
following reasons, we grant this writ, reverse the ruling of the trial court, grant
Bayou’s exception of insufficiency of service of process, and dismiss the claims
asserted by plaintiff, Lois Eugene, against Bayou, in this case, without prejudice.
FACTS AND PROCEDURAL BACKGROUND
On July 9, 2018, plaintiff, Lois Eugene, filed a petition for damages
asserting claims against Bayou for injuries she allegedly sustained in a motor
vehicle accident which purportedly occurred on July 10, 2017 in Jefferson Parish.1
At the end of the petition, there was a handwritten note to “HOLD” service as to
“Corporate Service Company, 501 Louisiana Ave., Baton Rouge, LA 70802.” No
other service information was provided.
According to plaintiff, service was initially withheld because of active
ongoing settlement negotiations between the parties, and a courtesy copy of the
petition was emailed to the insurance adjuster handling the claim. Plaintiff asserts
that service was later requested by letter from plaintiff’s counsel to the Jefferson
Parish Clerk of Court’s office dated September 24, 2018. According to an affidavit
of Greta Perrier, plaintiff’s counsel’s legal assistant, on October 30, 2018, during a
routine accounting audit, she discovered that the check mailed with the September
24, 2018 service request letter never cleared. Thus, she contacted the Clerk of
Court’s office and was informed that the Clerk of Court’s office never received the
1
In the petition, plaintiff also asserted claims against Brett Duroncelet and “XYZ Insurance Company.”
The petition avers that the accident was due to the negligence and legal fault of Mr. Duroncelet, but he was not listed
as being “Made Defendant Herein.” The petition specifically avers, however, that Mr. Duroncelet was negligent
through a number of specific acts and lists him as a defendant in the prayer at the end of the petition. At the hearing
on the exception, the trial court determined that “if Duroncelet is, in fact, not a named defendant and … whether or
not [Bayou had] the right to assert anything about Duroncelet not being served” was a separate question that was not
of concern at the hearing.
19-C-224 1
September 24, 2018 check for service. Plaintiff subsequently issued her second
request for service of citation by letter dated November 1, 2018, requesting that the
“hold” on service be lifted. The letter stated that plaintiff’s counsel’s legal
assistant was submitting this again “because [she] discovered the check still has
not cleared.” On November 14, 2018, the Jefferson Parish Clerk of Court’s office
notified plaintiff’s counsel that the service instructions on the petition listed an
address but did not name the defendant plaintiff wished to serve. On that same
day, plaintiff responded and requested that Bayou be served through “Corporation
Service Company.” On November 28, 2018, Bayou was served.
On December 13, 2018, Bayou filed a motion for an extension of time
within which to file pleadings in response to plaintiff’s petition, which was
granted. On January 8, 2019, Bayou filed a declinatory exception of insufficiency
of service of process, alleging that service of process on Bayou was not requested
within 90 days of filing of the petition, as required by La. C.C.P. art. 1201(C),2 and
thus the claims against it should be dismissed without prejudice pursuant to La.
C.C.P. art. 1672(C).3 Bayou argued that service was not requested on it until
November 14, 2018, 128 days after the petition was filed, and thus service of
process on it was not timely requested. Bayou argued that it did not expressly
waive service in writing and that plaintiff would not be able to demonstrate “good
cause” for the delay.
2
La. C.C.P. art. 1201(C) provides, in pertinent part:
Service of the citation shall be requested on all named defendants within ninety days of
commencement of the action. …
3
La. C.C.P. art. 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.
19-C-224 2
In response, plaintiff argued that because service was timely requested on
September 24, 2018, 77 days after the filing of suit, there is no insufficient service
of process, and the exception should thus be overruled.
The trial court orally denied the exception after arguments on March 12,
2019. In its oral reasons for judgment, the trial court noted that it was strictly
construing the application of La. C.C.P. art. 1201(C) and stated that it believed that
the very purpose of the article is to prevent a defendant from being prejudiced by a
plaintiff who sat on a case for some extended period of time before the defendant
had a chance to sufficiently discover the case. The trial court stated that there did
not appear to be any prejudice to defendant in this case since defendant was made
fully aware of the claim and plaintiff’s allegations. The trial court stated that there
was good cause not to apply La. C.C.P. art. 1201(C) since plaintiff’s counsel did
request service within the 90 days according to the September 24, 2018 letter to the
Clerk of Court’s office. The trial court noted that the law does not require “actual
effecting of service, it just requires a request.” The court further noted that when
plaintiff’s counsel realized that there was an issue, he sought to remedy it within
thirty days. The written judgment denying the exception was signed on March 28,
2019.
In its writ application, Bayou argues that the trial court erred because the
Clerk of Court’s office did not receive a request from plaintiff for service within 90
days of the suit being filed; rather, the request for service was not received by the
Clerk of Court’s office until November 14, 2018, some 128 days after
commencement of the action. Bayou also argues that the trial court erred in
finding good cause as to why service could not have been timely requested.
Finally, Bayou argues that, though it had knowledge of the suit and was attempting
to negotiate resolution of the claim prior to the suit being filed, there was no
express written waiver of service by Bayou.
19-C-224 3
ANALYSIS
Pursuant to La. C.C.P. art. 1201(C), “[s]ervice of the citation shall be
requested on all named defendants within ninety days of the commencement of the
action.” If service is not requested within the time period provided by La. C.C.P.
art. 1201(C), La. C.C.P. art. 1672(C) mandates that the action be dismissed without
prejudice, “unless good cause is shown why service could not be requested.” The
standard of review for an appellate court regarding an exception of insufficient
service of process is manifest error. Davis v. Caraway, 14-264 (La. App. 5 Cir.
10/29/14), 164 So.3d 223, 225.
In Rollins v. City of Zachary, 00-0160 (La. App. 1 Cir. 2/16/01), 808 So.2d
439, the plaintiffs filed a petition for damages on May 4, 1999, but requested that
service be withheld. On July 29, 1999, the plaintiffs wrote a letter requesting
service upon all the defendants and deposited the letter into the regular U.S. Mail
within the 90-day period as required by La. C.C.P. art 1201(C) and La. R.S.
13:5107(D)(1).4 Thereafter, on August 27, 1999, the plaintiffs’ counsel learned
that the Clerk of Court’s office never received the July 29 request for service;
therefore, on that same day, the plaintiffs hand-delivered a second request for
service upon all of the defendants.5 On October 25, 1999, the defendants filed a
motion to dismiss the plaintiffs’ petition for failure to serve the defendants within
90 days of the filing date of the petition, as required by La. 13:5107(D)(1). Id. at
4
The named defendants in Rollins included, among others, the City of Zachary, Zachary City Police, Chief
of the Zachary City Police, a sergeant with the Zachary City Police, and the Mayor of Zachary. La. R.S.
13:5107(D)(1) provides the specific services requirements against the state, a state agency or political subdivision,
or any officer or employee thereof named as a party. It states:
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.
5
Plaintiffs learned this information after two defendants, Allstate Insurance Company and Christopher
Holden, filed a motion for involuntary dismissal of the petition for failure of the plaintiffs to request service within
90 days of the commencement of the action, pursuant to La. C.C.P. art. 1201(C). Plaintiffs did not oppose the
motion for dismissal filed by Allstate and Holden, and they were subsequently dismissed. Rollins, 808 So.2d at 441.
19-C-224 4
441. The trial court granted the motion to dismiss without prejudice. Id. at 442.
On appeal, the First Circuit Court of Appeal found that merely attesting that a
request was placed in the regular U.S. Mail was not sufficient to establish that a
timely “request for service” was made.6 Id. at 443. The court found that a valid
and effective “request” requires the receipt of the request by the Clerk of Court’s
office. Id. The court went on to note that “the plaintiffs could have sent the July
29 request by certified mail-return receipt requested, hand-delivered the July 29
request, or simply placed a telephone call to the Clerk of Court’s office before
expiration of the 90-day time period to verify that the Clerk of Court’s office
received the service request.” Id. The court further noted that the plaintiffs did not
dispute that the Clerk of Court’s office did not receive the July 29 request, even
after the 90-day time limit expired. Id.In Tranchant v. State, 08-0978 (La. 1/21/09), 5 So.3d 832, the plaintiffs
mailed a letter requesting service within 90 days of the commencement of the
action pursuant to La. 13:5107(D)(1). The Clerk of Court’s office received the
letter but not until after the 90-day period had expired. Id. at 833. In considering
whether this was a timely request, the Louisiana Supreme Court analyzed what
constitutes a “request” for service pursuant to La. R.S. 13:5107(D)(1). The court
found that 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. Id. at 836. Thus, it found that, for the 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. Id. It went on to find that the
request for service was received by the Clerk of Court’s office more than 90 days
6
In Rollins, in support of their argument, the plaintiffs included an affidavit from a law clerk for plaintiffs’
attorney, and at the hearing on the motion to dismiss, they introduced the affidavit as well a copy of the July 29
letter. Rollins, 808 So.2d at 441-442. Similarly, in the present case, plaintiff presented an affidavit of plaintiff’s
counsel’s legal assistant, with copies of the September 24 letter and the top portion of the original check for service
attached thereto (but not a copy of the actual check).
19-C-224 5
after the commencement of the action. Thus, the plaintiffs did not request service
upon the named defendants within ninety days from the commencement of the
action pursuant to La. R.S. 13:5107(D)(1), and it was mandatory that the action be
dismissed without prejudice. Id at 837-838.7
Though in the present case we are dealing with service pursuant to La.
C.C.P. art. 1201(C), rather than La. R.S. 13:5107(D)(1), we find Tranchant and
Rollins are instructive. Here, though it is alleged that a letter with a check
requesting service was mailed to the Clerk of Court’s office on September 24,
2018, the writ application reflects that the Clerk of Court’s office apparently did
not receive the letter and the check. Thus, we find that service was not timely
requested as the September 24, 2018 request for service was never received by the
Clerk of Court’s office.
Further, we find that the trial court erred in finding “good cause” for
plaintiff’s failure to timely request service. “Good cause” is not defined by Article
1672(C). Although the manifest error standard of review applies to the trial court’s
dismissal of a suit for failure to request timely service, Louisiana courts strictly
construe the good cause requirement of La. C. C. P. art. 1672(C). See Boyd v.
Picayune, 11-119 (La. App. 5 Cir. 11/15/11), 82 So.3d 298, 300; Barnett v.
Louisiana State Univ. Med. Ctr.-Shreveport, 02-2576 (La. 2/7/03), 841 So.2d 725,
726. In the present case, plaintiff could have sent the September 24 request for
service letter by certified mail-return receipt requested, or hand-delivered the
September 24 request for service letter. Plaintiff also could have simply placed a
telephone call to the Clerk of Court’s office before expiration of the 90-day time
period to verify that the Clerk of Court’s office received the service request letter.
7
In Tranchant, the court discussed Rollins, supra. The Supreme Court noted that the court in Rollins was
not required to determine whether the receipt had to be within the ninety-day period because the Clerk of Court in
Rollins never received the letter at all; rather, the court in Rollins simply concluded that a valid and effective request
of service pursuant to La. R.S 13:5107(D)(1) requires the receipt of the request by the Clerk of Court’s office.
Tranchant, 5 So.3d at 837.
19-C-224 6
See Rollins, supra. Thus, under the circumstances presented, we do not find that
there is “good cause” for plaintiff’s failure to request service within ninety days of
commencement of the action.
Finally, service was still necessary on Bayou even though Bayou was aware
of the claims that were being brought against it by plaintiff. See Naquin v. Titan
Indemnity Co., 00-1585 (La. 2/21/01), 779 So.2d 704, 710.
CONCLUSION
For the foregoing reasons, we find that the trial court was manifestly
erroneous in denying Bayou’s declinatory exception of insufficiency of service of
process. We accordingly grant this writ, reverse the ruling of the trial court, grant
Bayou’s exception of insufficiency of service of process, and dismiss the claims
asserted by plaintiff, Lois Eugene, against relator, Waste Connections Bayou, Inc.,
in this case, without prejudice.
WRIT GRANTED; RULING REVERSED; EXCEPTION
OF INSUFFICIENCY OF SERVICE OF PROCESS
GRANTED; CLAIMS AGAINST WASTE
CONNECTIONS BAYOU, INC. DISMISSED WITHOUT
PREJUDICE
19-C-224 7
SUSAN M. CHEHARDY MARY E. LEGNON
CHIEF JUDGE INTERIM CLERK OF COURT
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JULY 3, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-C-224
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE)
GUICE A. GIAMBRONE, III (RELATOR) CAROLAN D. LUNING (RELATOR)
MAILED
CLARENCE J. ROBY, JR. (RESPONDENT)
ATTORNEY AT LAW
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NEW ORLEANS, LA 70119