Brenda Morales and Jerson Rodriguez VS State of Louisiana Through the Board of Supervisors of LSU Through Earl K. Long Medical Center
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 CA 0077 BRENDA MORALES AND JERSON RODRIGUEZ VERSUS STATE OF LOUISIANA THROUGH THE BOARD OF SUPERVISORS OF LSU THROUGH EARL K LONG MEDICAL CENTER Judgment rendered September 21 2012 Appealed from the 19 Judicial District Court in and for the Parish of East Baton Rouge Louisiana Trial Court No C586544 Honorable Todd Hernandez Judge IVAN A ORIHUELA ATTORNEY FOR KENNER LA PLAINTIFFS APPELLANTS BRENDA MORALES AND JERSON RODRIGUEZ JAMES D BUDDY CALDWELL ATTORNEYS FOR ATTORNEY GENERAL DEFENDANTS APPELLEES JUDE D BOURQUE STATE OF LOUISIANA THROUGH ASSISTANT ATTORNEY GENERAL THE BOARD OF SUPERVISORS BATON ROUGE LA OF LSU THROUGH EARL K LONG MEDICAL CENTER BEFORE KUHN PETTIGREW AND McDONAL 37 D PETTIGREW In the instant appeal plaintiffs challenge the trial court judgment granting s s defendant exception raising the objection of insufficiency of service of process and dismissing plaintiffs suit against defendant at plaintiffs cost For the reasons that follow we amend and as amended affirm FACTS AND PROCEDURAL HISTORY On January 19 2010 plaintiffs Brenda Morales and Jerson Rodriguez filed a malpractice suit against the State of Louisiana through the Board of Supervisors of LSU alleging that Ms Morales presented to the through Earl K Long Medical Center LSU Medical Center while pregnant and complaining of labor pains and that the Medical Center discharged her without conducting any tests When she returned four days later with abdominal pain an examination revealed the lack of fetal heart tones for plaintiffs unborn child Plaintiffs allege that LSU failed to use reasonable care and diligence and breached the applicable standard of care in the medical care that they provided or failed to provide Plaintiffs further assert that LSU negligence caused them to suffer s to Ms Morales injuries damages and pain and suffering When the petition was originally filed service was held Subsequently on April 19 2010 plaintiffs fax filed a request that service be effected on LSU through its Chairman R Blake Chatelain and through the Attorney General of Louisiana James D Buddy Caldwell However according to the record it was not until April 26 2010 that the original was received in the clerk office along with payment of service fees s On May 20 2010 LSU filed an exception raising the objection of insufficiency of service of process and a motion to dismiss under La Code Civ P art 1572 Noting that the petition for damages was filed on January 19 2010 the motion 1 The petition was fax filed on January 19 2010 and the original was subsequently t in the clerk office iled s on January 21 2010 1 states in pertinent part as follows received a faxed letter On April 19 2010 the Clerk of Court requesting service on only two of the three statutory required entities Specifically the letter only requested service on LSU and the Attorney s General Office Plaintiffs have never requested service on the Office of Risk Management The Clerk office received payment for the requested s service on April 26 2010 This request for service is insufficient The State further cited La R 13 as authority S 5107 On August 9 2010 the trial court held a hearing on the exception The trial court ruled in open court that the exception was sustained and ordered that the matter be dismissed A written judgment was signed in accordance with that ruling on August 24 2010 It provides IT IS ORDERED that the Exception of Insufficiency of Service of Process and Motion to Dismiss be granted dismissing the suit against the defendant at plaintiffs cost This judgment bears a stamp of the 19 JDC certifying that a notice of the above judgment was mailed by the deputy clerk of court to counsel of record on August 27 2010 Thereafter the trial court signed an August 31 2010 judgment that ordered the identical relief to defendant as the August 24 2010 judgment this latter signed judgment does not reflect a certificate by the deputy clerk indicating that notice of this judgment was provided On September 13 2010 plaintiffs flied a motion for new trial wherein they asserted that the motion was timely fled because it was filed within seven days from the day after the clerk mailed the notice of judgment or from September 1 2010 Please see attached Notice of Judgment envelope in which notice of judgment was enclosed showing a postmark of September 1 2010 and postcard postmarked September 1 2010 attached hereto as Exhibit A in globo On September 14 2010 plaintiffs fled a motion for appeal This motion recognized that the motion for new trial was still pending but it also stated that o of ut 2 The trial court denied plaintiffs motion to continue the hearing 3 According to an affidavit from a deputy clerk of court for the East Baton Rouge Parish Clerk of Court judgment in this matter was signed by the trial court on August 24 2010 A second duplicate judgment was signed by the trial court on August 31 2010 However only the August 24 2010 judgment included a stamp indicating notice of judgment was mailed to counsel of record 3 an abundance of caution plaintiffs now file the present Motion for Appeal The trial court signed an order granting an appeal on September 24 2010 this order granted a devolutive appeal from the judgment rendered in open court on August 9 2010 written Subsequently the trial court signed an October judgment signed on August 24 2010 12 2010 order wherein the trial court explained why it had not ruled on plaintiffs motion for new trial In this order the trial court stated that plaintiffs motion for new trial was not received from the clerk of court until the trial court had already granted the motion for appeal The trial court noted further that it believed that the signing of the appeal motion divested it of jurisdiction Therefore the court will not make a ruling on the motion for new trial On appeal plaintiffs assign the following sole assignment of error for our review 1 The Trial Court erred when it granted s LSU Exception of Insufficiency of Service of Process and Motion to Dismiss u Article nder 1672 and dismissed plaintiffs claims even though plaintiffs timely and properly requested service upon LSU pursuant to La R 13 and S 5107 even though La R 39 does not require that plaintiffs make service S 1538 or request that service be made within a certain time period or provide for dismissal DISCUSSION On appeal plaintiffs cite the case of Whitley v State ex rel Bd of Sup rsof Louisiana State University Agr Mechanical College 2011 0040 pp 6 13 La 11 1 7 66 So 470 474 479 for the proposition that multiple requests for service by a 3d plaintiff within the 90day period set forth by La R 13 are not mandatory Thus S 5107 plaintiffs argue timely request for service on any one of the listed entitiespersons is sufficient Plaintiffs assert however that they properly requested service on both LSU and the Attorney General sOffice They maintain that based on the date the petition was filed their request for service on April 19 2010 was timely and the receipt of the original signed document and service fees by the clerk office on April 26 2010 was within five s 4 On January 24 2012 this court issued a show cause order asking the parties to address 1 whether the motion for new trial was timely filed 2 what effect if any did the August 31 2010 judgment have on this matter and 3 whether the appeal should be dismissed as premature In a May 21 2012 order another panel of this court maintained the instant appeal 11 days in compliance with La R 13 Plaintiffs further argue that although La R S 850 S 4 1538 39 requires them to serve multiple entitiespersons that statutory provision does not require that the service or request for service be made within a certain time period or provide for dismissal Thus plaintiffs point out that an objection of insufficiency of service based on La R 39 can be cured by subsequent service on those S 1538 4 entitiespersons not previously served To the contrary defendant asserts that the law clearly dictates that a proper request for service must be filed within 90 days of commencement of the action in default of which the action shall be dismissed without prejudice unless good cause is shown why service could not be requested Defendant maintains that because the clerk s office did not receive payment of service fees until 95 days after the original petition was received in the clerk office 97 days after the fax filing of the petition it was mandatory s that the action be dismissed 5 Fax filing is provided for in La R 13 and at the time of this lawsuit stated as follows S 850 A Any paper in a civil action may be filed with the court by facsimile transmission All clerks of court shall make available for their use equipment to accommodate facsimile filing in civil actions Filing shall be deemed complete at the time that the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court The facsimile when filed has the same force and effect as the original B Within five days exclusive of legal holidays after the clerk of court has received the transmission the party filing the document shall forward the following to the clerk 1 The original signed document 2 The applicable filing fee if any 3 A transmission fee of five dollars C If the party fails to comply with the requirements of Subsection B the facsimile filing shall have no force or effect The various district courts may provide by court rule for other matters related to filings by facsimile transmission D The clerk may purchase equipment and supplies necessary to accommodate facsimile filings out of the clerk salary fund s 6 As set forth in La R 391538 in all claims against the State or any of its agencies to recover damages in S tort process shall be served upon the head of the department concerned the office of risk management S 1538 4 and the attorney general as well as any others required by La R 13 La R 39 S 5107 However there are no time constraints on the service provisions in this statute as there are in La R S 5107 13 Nonetheless as we find that plaintiffs request for service on LSU and the attorney general office s in the instant case was untimely pursuant to La R 13 5107 and that dismissal without prejudice is the S appropriate remedy herein we need not discuss further the alleged applicability of La R 39 to the S 1538 facts and circumstances herein or the many differences between the two statutes 5 In Whitley the plaintiff was a patient at the Louisiana State University Health Sciences Center Medical Center of Louisiana at New Orleans University Campus Medical Center who received treatment at the Medical Center following an accident that occurred in May 2003 On July 7 2003 Ms Whitley delivered a stillborn infant Thereafter she filed a petition for medicai malpractice against the Medical Center seeking damages arising from negligence in the medical care provided to her and her unborn child after the accident At the time of fling Ms Whitley requested service only on the Chairman of the Louisiana State University Board of Supervisors More than two years later Ms Whitley scounsel faxed copies of the citation and the pleadings to the Attorney General and the Office of Risk Management The Medical Center then fled a declinatory exception pleading the objection of insufficiency of service of process seeking the dismissal of Ms Whitley suit based on her alleged failure to comply with s the service requirements of La R 13 and La R 39 The exception was S 5107 S 1538 overruled by the trial court and the appellate court denied the Medical Center s application for a supervisory review of the trial court ruling s The supreme court subsequently granted the Medical Center application for a supervisory writ in order to s determine whether the request for service on the Medical Center alone was sufficient under La R 13 and La R 39 or whether service on the Attorney S 5107 S 1538 General and the Office of Risk Management was also required Whitley 2011 0040 at 1 4 56 So at 470 473 3d At the time Ms Whitley filed her petition and the judgment in her case was rendered by the trial court La R 13 5107 provided in pertinent part S A 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 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 This version of the statute applicable in Whitley was the same version applicable at the time plaintiffs filed their petition in this matter on January 19 2010 r commission department agency or officer through which or through whom suit is to be filed against 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 2 If service is not requested by the party filing the action within that period the action shall be dismissed without prejudice after contradictory motion as provided in Code of Civil Procedure Article C 1672 as to the state state agency or political subdivision or any officer or employee thereof who has not been served E After a thorough interpretation of the language of La R 13 the Whitley S 5107 A court determined that the phrase may be obtained modified all of the phrases after it including those appearing after the conjunctive and The supreme court therefore concluded that from a grammatical standpoint the statute should read that citation and service 1 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 2 may be obtained by citation and service 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 3 may be obtained by citation and service 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 8 Paragraph D has since been amended by 2010 La Acts No 55 2 1 to provide as follows 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 as to the state C 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 Although the earlier version of this paragraph was in effect when plaintiffs filed the petition in the matter currently before this court it was the amended version of the paragraph that was in effect when the judgment at issue was rendered 7 Whitley 2011 0040 at 10 11 66 So at 477 3d The court further concluded that roviding p permission to request service on the Attorney General and the head of the agency does not impose a requirement that the plaintiffs request for service pertain to both Whitley 2011 0040 at 11 66 So at 477 In support of this conclusion 3d the court focused on the legislature suse of the permissive term may rather than the mandatory terms shall or must Id The supreme court also noted that pursuant to La R 13 when S 5107 2 D service is not requested by the plaintiff within 90 days of the commencement of the action the action shall be dismissed without prejudice after contradictory motion as provided in La Code Civ P art 1672 When such a dismissal occurs prescription is C La R 13 Considering this S 5107 3 D not interrupted as to the state defendants harsh consequence and the policy favoring maintaining actions the court concluded that if the legislature word choice made La R 13 susceptible to two s S 5107 A possible constructions the statute should be construed in such a manner as to maintain the claim Whitley 2011 0040 at 1213 66 So at 478 3d Accordingly the court determined that Ms Whitley request for service of citation on the Medical Center s satisfied the requirement of La R 13 and D and afforded the Medical S 5107 A Center an opportunity to request the legal representation to which it was entitled Whitley 2011 0040 at 13 66 So at 479 3d Based on the supreme court holding in Whitley we agree with plaintiffs s argument that La R 13 does not require plaintiffs to make multiple requests S 5107 A for service within the 90day period end here However our inquiry in the instant case does not What Louisiana law does require of plaintiffs is that service of citation be requested within 90 days of commencement of the action in default of which the action shall be dismissed without prejudice Plaintiffs rely on La R 13 and claim that S 850 their request for service which was fax filed on April 19 2010 was timely because the s clerk office received the original and the service fees within five days Under the facts and circumstances herein plaintiffs reliance on La R 13 is misplaced In Wilborn S 850 8 v Vermillion Parish Police Jury 20041074 p 1 La 7 877 So 985 per 04 2 2d curiam the Louisiana Supreme Court held Louisiana Revised Statutes 13 provides that in suits against the D 5107 state or a political subdivision service of citation shall be requested within ninety days of the commencement of the action Nothing in that statute requires that the request be filed with the court The court of appeal s reliance on the fax filing statute La R 13 is misplaced as that S 850 statute deals with the requirements for fling papers in civil actions Emphasis in original For the reasons that follow we find no merit to plaintiffs arguments on appeal and affirm the trial court sjudgment below We note however that La R 13 provides that S 5107 the dismissal shall be without prejudice and we amend the trial court judgment s accordingly Simmons v Braquet 991534 p 6 La App 1 Cir 6 762 So 00 23 2d 766 769 With few exceptions citation and service are essential in all civil actions La Code Civ P art 1201 Proper citation is the cornerstone of these actions Naquin A v Titan Indem Co 20001585 p 8 La 2 779 So 704 710 Pursuant to 01 21 2d La R 13 i all suits in which the state a state agency or political S 5107 n 1 D 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 If service i is not requested within the time period provided the action shall be dismissed without prejudice after a contradictory motion as provided in La Code Civ P art 1672 C La R 13 Article 1672 provides that such dismissal shall be rendered S 5107 2 D C unless good cause is shown why service could not be requested See also Johnson 9 The general rule is specified in La Code Civ P art 1201 Cwhich provides that service of citation be requested on all named defendants within ninety days of commencement of the action io At the time of this lawsuit Article 1672 provided C 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 upon the sustaining of a declinatory exception filed by such C 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 I v University Medical Center in Lafayette 20071683 p 2 La 11 968 07 21 2d So 724 725 In Tranchant v State 2008 0978 La 1 5 So 832 the Louisiana 09 21 3d Supreme Court addressed the question of what constitutes a request for service pursuant to La R 13 The plaintiffs in Tranchant filed suit on August 3 S 5107 D 2006 and asked that service be held On November 2 2006 the 90th day plaintiffs counsel mailed a service request with payment for service The service request was received on November 8 2006 The trial court granted defendants motion to dismiss finding that the service request was only effective on the date it was actually received by the clerk office The appeal court reversed concluding that the dating and mailing s of a letter on the 90th day constituted a timely request for service Tranchant 2008 0978 at 23 5 So at 833 834 3d The supreme court reversed the decision of the appellate court and reinstated the trial court sjudgment stating as follows In our view the ordinary meaning of the word request without more contemplates a two transaction involving one who asks that party something be done and one who does what is asked Thus for purposes 1 D 5107 13 service of citation should be deemed requested when the clerk receives service instructions from the plaintiff of La S R A valid request for service under La R 13 is made S 5107 1 D when the clerk receives the request for service and can then act on it Emphasis added Tranchant 2008 0978 at 711 5 So at 836 838 3d Prior to the Louisiana Supreme Court decision in Tranchant this court in s Jenkins v Larpenter 20040318 La App 1 Cir 3 906 So 656 writ 05 24 2d denied 2005 1078 La 6 904 So 711 considered whether an inmate 05 17 2d s request for service on the sheriff in a personal injury action constituted a request for purposes of the statute requiring service to be requested within 90 days of commencement of an action in suits against government entities public officers or employees This court noted that the inmate request was not accompanied by s payment of the required fees and that the inmate had been denied pauper status Moreover the inmate failed to pay the required fees for well over ten months after ID being notified of that denial Jenkins 20040318 at 5 906 So at 659 In affirming 2d the trial court sdismissal of the inmate suit for failure to timely request service on the s defendants this court concluded We find that a request for service without payment of required fees or without leave of court excusing such payment because of pauper status simply is no proper request at all The articles requiring that service be requested within 90 days would be rendered meaningless if a non pauper plaintiff could include a paragraph in his petition requesting service but not actually pay the fee required for service to be effected Even if the 90day deadline was tolled until the denial of his request for pauper status Jenkins failed to pay the required fee for well over ten months after being notified of that denial and no good cause was shown for such failure Thus he did not request service within the 90day period and the trial court was therefore correct in dismissing his petition Emphasis added Jenkins 20040318 at 45 906 So at 659 citation omitted 2d Applying the above legal precepts to the instant case we conclude that plaintiffs request for service on LSU and the attorney general office was not valid under La R s S 5107 13 As the supreme court in Tranchant recognized unless the clerk office can s act on the request for service then the request for service is not valid or effective Tranchant 20080978 at 1011 5 So at 838 3d Plaintiffs fax filed their request for service on April 19 2010 but the clerk office could not act on the request for service s because there was no payment of service fees The original signed document and service fees were not received by the clerk office until April 26 2010 97 days after s the petition was fax filed on January 19 2010 and 95 days after the original petition was filed in the clerk office on January 21 2010 s Thus because plaintiffs did not validly request service within 90 days from the commencement of the action pursuant to La R 13 the action must be dismissed without prejudice S 5107 1 D CONCLUSION For the above and foregoing reasons we affirm the trial court August 24 2010 s judgment dismissing plaintiffs suit against LSU We amend the judgment to reflect that the dismissal is to be without prejudice All costs associated with this appeal are assessed against plaintiffs Brenda Morales and Jerson Rodriguez AMENDED AND AS AMENDED AFFIRMED 11
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