Golden Jones VS Iberville Parish Council

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STATE OF LOUISIANA 9 COURT OF APPEAL g FIRST CIRCUIT 2012 CA 0391 i GOLDENJONES VERSUS IBERVILLE PARISH COUNCIL o Judgment Rendered 2 2012 V N I On Appeal from the Eighteenth Judicial District Court In and for the Parish of Iberville State of Louisiana Docket No 69937 Honorable J Robin Free Judge Presiding Karen Baton Hayes Green Rouge Louisiana Counsel for Plaintiff Appellant Golden Jones And Michelle Elaine Simmons Kenner Louisiana Jack K Whitehead Jr Ed John L Bishop Baton Rouge Louisiana BEFORE Counsel for Defendant Appellee Iberville Parish Council WHIPPLE McCLENDON AND HIGGINBOTHAM J7 McCLENDON J Golden Jones appeals a judgment dismissing his action for failure to request service of process within the time period required by LSA S R 1 5107D 13 For the following reasons we affirm FACTS AND PROCEDURAL HISTORY On February 25 2011 Golden Jones through counsel filed a Petition for Damages alleging that he had been wrongfully terminated by the Iberville Parish Council the Council because he had made a workers compensation claim Mr Jones requested service on the Council but paid no filing or service fees at that time Rather Mr Jones filed a to Proceed In Forma Pauperis On Motion April 6 2011 the trial court denied Mr Jones pauper motion s Because his pauper request was denied Mr Jones paid the filing fees on June 3 2011 and paid for service of citation on June 24 2011 more than 90 days after filing of the petition The Council was served with Mr Jones petition s on July 7 2011 On July 12 2011 Mr Jones filed a Motion Order to Extend Time for Service on Defendant seeking an extension of time to execute service on the Council The trial court subsequently signed the order granting Mr Jones s motion On July 22 2011 the Council filed a Exception of Improper Declinatory Service alleging that Mr Jones petition should be dismissed without prejudice s because service of process was not requested within ninety days of commencement of the action as required by LSA 13 Following a S1 R 5107D hearing the trial court granted the Council exception effectively dismissing Mr s s Jones petition Mr Jones has appealed alleging that the trial court erred in granting the Council sexception Louisiana Code of Civil Procedure article 1672C recognizes that the objection of untimely service can be raised by the declinatory eacception 2 I DISCUSSION The Council is a political subdivision of the State of Louisiana La Const Art 6 2 44 As such service of citation on the Council shall be requested within ninety days of the commencement of the action LSA 13 S1 R 5107D If service is not requested by the party filing the action within the ninety day period the action shall be dismissed without subdivision prejudice as to the political upon whom service was not requested within the ninety day period LSA 13 S 2 R 5107D On appeal the trial court dismissal of a suit for failure of the plaintiff to s timely request service is sub to the manifest error standard of review ect Johnson v Brown 2003 La 4 Cir 6 851 So 319 322 0679 App 03 25 2d Pylant v Jefferson Parish State of Louisiana Dept of Health and Hosp 148 App 05 La 5 Cir 6 907 So 807 809 writ denied 05 La 05 28 2d 1992 06 17 3 925 So 537 2d Mr Jones contends that the trial court erred in finding that service was not requested timely because he requested service on the Council in the original petition However service of citation is not considered requested until the clerk receives a request for service and payment or an order granting pauper status See Jenkins v Larpenter 04 La 1 Cir 3 906 So 656 0318 App 05 24 2d 659 writ denied 05 La 6 904 So 711 1078 05 17 2d Accordingly because the clerk did not receive payment for service within ninety days of the filing of the petition nor was an order granting pauper status obtained within ninety days of the filing of the petition service was not timely requested within the period required by LSA 13 S 1 R 5107D I Louisiana Code of Civil Procedure article 1672C provides that the failure to timely request service of citation is ground for dismissal of an action without prejudice unless good cause is shown why service could not be requested Although good cause is not defined in the article Louisiana courts strictly construe the good cause requirement 09 21 3d 1 5 So 832 837 3 Tranchant v State 08 La 0978 Mr Jones contends that the trial court had already determined that good cause existed when it granted his e of time to execute service on ension August 1 2011 so it could not grant the Council exception and reverse its prior s finding of good cause Mr Jones avers that once the trial court granted his extension the Council should have timely filed a motion for a new trial or sought appellate review of that ruling Because the Council failed to do so Mr Jones concludes that the trial court subsequent grant of the Council exception was s s improper Although the August 1 2011 order granted Mr Jones an extension of time for service to occur it had no bearing on the resolution of the issue presented here The motion for e of time was filed on July 14 2011 which was ension outside of the ninety days allowed by law for requesting service If Mr Jones had sought a cause determination arising from his failure to request good service within ninety days LSA art 963 requires the motion be served on P C and tried contradictorily with the adverse party See LSA article 1672C P C and Mohsen v Mohsen 08 La 1 Cir 12 5 So 218 221 1703 App 08 23 3d The order sought by Damaris in this case was not one to which she was clearly entitled and required supporting proof accordingly the motion had to be served on and tried contradictorily with Murad Even though the Council had been served with the petition on July 7 2011 Mr Jones never requested service nor was the Council ever served with his ex parte motion for extension of time Nevertheless Mr Jones contends that the trial court erred in failing to find that good cause existed for his failure to request service within the ninety day period Mr Jones notes that his pauper status was not denied by the trial court until April 6 2011 or forly days after it had been filed with the petition Mr Jones avers that he was not notified of the denial of his pauper status until April 18 2011 leaving only thirty days to execute service in a timely manner eight Moreover Mr Jones asserts that during the relevant time period he was unemployed due to his on injury scheduled to undergo surgery related job the thereto and had lost his home in a January 9 2011 house fire 4 Mr Jones submits that these series of events made it impossible for him to generate and pay filing fees within thirty days eight We note that Mr Jones work injury and details surrounding the s related house fire were known by Mr Jones at the time he filed his petition and his motion seeking pauper status Nevertheless the district court on April 6 2011 denied Mr Jones motion seeking pauper status and Mr Jones has never s sought appellate review of that ruling Moreover the trial court denial of Mr s s Jones pauper motion was rendered well in advance of the ninety deadline day and afforded Mr Jones sufficient time to request service as required by LSA S R 1 5107D 13 In light of the foregoing we cannot conclude that the trial court manifestly erred in dismissing Mr Jones suit for failure to timely request s service CONCWSION For the foregoing reasons the January 3 2012 judgment of the trial court is a Costs of this appeal are assessed to plaintiff Golden Jones rmed AFFIRM ED z The Motion to Proceed in Forma Pauperis did not include any specific details regarding Mr s Jones circumstances or financial condition However attached to the motion were the a davits of Mr ones and Dewayne Oubre a third party having personal knowledge of Mr Jones s financial condition which allegedly verified Mr Jones lack of ineans to pay court costs The s affidavits are not included in the record 3 We note that Mr Jones also asserts that the trial court erred in considering a reply memorandum filed by the Council and mailed to counsel for Mr Jones on Friday October 7 2011 contending that it was untimely Uniform Rules of District Courts Rule 9 provides that c he t mover or exceptor may furnish the trial judge a reply memorandum but only if the reply memorandum is furnished to the trial judge and served on all other parties so that it is received before 4 p on a day that allows one full working day before the hearing Because the 00 m hearing was not scheduled until Wednesday October 12 2011 and Mr Jones does not allege that he did not receive the reply memorandum aRer October S0 2011 at 4 p the 00 m memorandum was timely submitted pursuant to Rule 9 and could be considered by the trial c court 5

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