DocketNumber: NO. 2017 CA 1292
Citation Numbers: 244 So. 3d 472
Judges: Crain, Guidry, Pettigrew
Filed Date: 3/15/2018
Status: Precedential
Modified Date: 7/29/2022
*473The plaintiff, Brooke Pullin, appeals a judgment sustaining an exception of prescription and dismissing her claims against the defendants, Linda A. Chauvin, B & T Leasing, Inc., and State Farm Mutual Automobile Insurance Company. We reverse and remand.
FACTS AND PROCEDURAL HISTORY
This suit arises out of an automobile accident that occurred on May 17, 2013. Pullin filed suit claiming damages resulting from the accident (Suit 1), but failed to request service of process upon the defendants within ninety days. The defendants were dismissed pursuant to a consent judgment dated June 3, 2016, which in pertinent part, read:
CONSENT JUDGMENT ON EXCEPTION OF INSUFFICIENCY OF SERVICE OF PROCESS
* * * * *
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants' exception herein is hereby granted, dismissing defendants, Linda A. Chauvin, B & T Leasing, Inc. and State Farm Mutual Automobile Insurance Company, from this litigation without prejudice, at plaintiffs' cost.
On December 20, 2016, Pullin again sued the defendants claiming damages from the 2013 accident. The defendants filed an exception of prescription. Following a hearing on the exception, the trial court found Pullin voluntarily dismissed her cause of action in Suit 1 by entering the consent judgment and, consequently, Suit 1 did not interrupt prescription. The trial court granted the exception and dismissed Pullin's claims against the defendants. Pullin now appeals.
DISCUSSION
The issue presented is the effect of the consent judgment on the interruption of prescription that resulted from filing Suit 1. The December 20, 2016 petition was filed more than one year after the May 17, 2013 accident; therefore, the petition is prescribed on its face. See La. Civ. Code art. 3492 (providing that delictual actions are subject to a one-year prescriptive period commencing the date injury or damage is sustained). Pullin bore the burden of showing that prescription did not toll because of an interruption or suspension. See Big 4 Trucking, Inc. v. New Hampshire Ins. Co. , 17-0420 (La. App. 1 Cir. 11/1/17),
Prescription is interrupted by filing suit in a court of competent jurisdiction and venue. See La. Civ. Code art. 3462. The interruption continues as long as the suit is pending. See La. Civ. Code art. 3463. By interrupting prescription, the time prior to the interruption is not counted, and prescription begins anew from the last day of the interruption. See La. Civ. Code art. 3466.
Although Suit 1 was filed within the one-year prescriptive period in a court of competent jurisdiction and venue, Pullin failed to request service of process on the defendants within ninety days as required by Louisiana Code of Civil Procedure article 1201C.
Louisiana Revised Statute 9:5801 specifically addresses the effect on the interruption of prescription of a defendant being dismissed because the plaintiff failed to timely request service and provides:
Notwithstanding the provisions of Civil Code Article 2324(C) [ (that interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors) ], interruption is considered never to have occurred as to a person named as a defendant who is dismissed from a suit because service of citation was not timely requested and the court finds that the failure to timely request service of citation was due to bad faith. Nonetheless, as to any other defendants or obligors, an interruption of prescription, as provided in Civil Code Article 3463, shall continue.
According to Section 5801, absent bad faith, a timely suit filed in a court of competent jurisdiction and venue interrupts prescription regardless of whether the defendant requests service within the ninety-day time period. See Bordelon v. Medical Center of Baton Rouge , 03-0202 (La. 10/21/03),
No evidence was introduced to show, and no party has argued, Pullin's failure to timely request service on the defendants in Suit 1 was in bad faith. Rather, the defendants argued, and the trial court agreed, Section 5801 does not apply because by entering the consent judgment Pullin voluntarily, rather than involuntarily, dismissed Suit 1. Article 3463, in relevant part, provides:
Interruption is considered never to have occurred if the plaintiff abandons, vol untarily dismisses the action *475at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial. (Emphasis added.)
The defendants argue "[t]here are no recognized exceptions to the principles set forth in Article 3463."
Louisiana Code of Civil Procedure article 1671 defines "voluntary dismissal" as follows:
A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if the application is made prior to any appearance of record by the defendant. If the application is made after such appearance, the court may refuse to grant the judgment of dismissal except with prejudice. (Emphasis added.)
Notably, a voluntary dismissal requires an affirmative action by the plaintiff seeking dismissal of the suit. See La. Code Civ. Pro. art. 1671 ; Gorman v. Miller , 12-0412 (La. App. 1 Cir. 11/13/13),
Here, the consent judgment expressly confirms that in response to Suit 1, the defendants filed an exception of insufficiency of service of process. Pullin indisputably did not request service of Suit 1 within ninety days. Therefore, absent good cause, the trial court was required to enter a judgment dismissing the action without prejudice. See La. Code Civ. Pro. art. 1672C (providing that the judgment of dismissal "shall be rendered"); see also La. R.S. 1:3 (providing that the word "shall" is mandatory). Faced with these facts, Pullin consented to the trial court granting the exception of insufficiency of service of process. Her "consent" was irrelevant to the defendants' entitlement to a judgment granting the exception and dismissing the suit against the defendants. At most, Pullin's consent simply confirmed she had no good cause to not request service, which prevented the trial court from ordering service within a specified time. See La. Code Civ. Pro. art. 1672C. Like a dismissal after a compromise or settlement, the consent judgment, which the defendants were clearly entitled to, cannot be characterized as a voluntary and unqualified dismissal by the plaintiff alone. See Dark v. Marshall , 41, 711 (La. App. 2 Cir. 12/13/06),
In summary, Section 5801 specifically addresses interruption of prescription where a defendant is dismissed because service is not timely requested. Bordelon ,
CONCLUSION
The judgment of the trial court is reversed, and this matter is remanded for further proceedings. Costs of this appeal are assessed to the defendants, Linda A. Chauvin, B & T Leasing, Inc., and State Farm Mutual Automobile Insurance Company.
REVERSED AND REMANDED.
Although not formally introduced in evidence, the record sufficiently establishes the trial court took judicial notice of the filings in Suit 1, referencing them in both oral reasons and the judgment rendered. Cf. La. Code Ev. arts. 201 -02; Pinegar v. Harris , 06-2489 (La. App. 1 Cir. 5/4/07),
There is no evidence or suggestion that the defendants expressly waived service. See La. Code Civ. Pro. art. 1201C.