Gaynelle Issac v. Louise Amos-Gombako, M.D.

• Court: Louisiana Court of Appeal
• Decided: December 10, 2008
• Docket: CA-0008-0840
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

08-840

GAYNELLE ISAAC, ET AL.

VERSUS

LOUISE AMOS-GOMBAKO, M.D., ET AL.

************

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2005-5387 HONORABLE J. BYRON HEBERT, DISTRICT JUDGE

MICHAEL G. SULLIVAN JUDGE

Court composed of Michael G. Sullivan, Elizabeth A. Pickett, and Chris J. Roy, Sr.,* Judges.

AFFIRMED.

Pride J. Doran Quincy L. Cawthorne The Doran Law Firm Post Office Box 2119 Opelousas, Louisiana 70571 (337) 948-8008 Counsel for Plaintiff/Appellant: Gaynelle Isaac

Paula Boagni Bertuccini Assistant Attorney General Post Office Box 94005 Baton Rouge, Louisiana 70804-9005 (225) 326-6320 Counsel for Defendant/Appellee: University Medical Center

* Honorable Chris J. Roy, Sr., participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore. Brian H. McMillan Angela Elly Attorneys at Law 1010 Common Street, Suite 1950 New Orleans, Louisiana 70112 (504) 525-5025 Counsel for Plaintiff/Appellant: Gaynelle Isaac

Daryl Dion Parks Parks & Crump, LLC 240 North Magnolia Drive Tallahassee, Florida 32301 (850) 222-3333 Counsel for Plaintiff/Appellant: Gaynelle Isaac SULLIVAN, Judge.

Plaintiff appeals the trial court’s dismissal of her claims against a state hospital

for failure to timely request service on that defendant. We affirm.

Facts

Plaintiff, Gaynell Isaac, filed suit against University Medical Center (UMC)

and Dr. Louise Amos-Gombako, a physician at UMC, to recover damages arising

from the death of Kimberly Issac, who died while a patient in that facility. Plaintiff

requested that service be made on UMC’s administrator, and it was. UMC did not

file an answer to the suit, and Plaintiff entered a preliminary default against it.

Thereafter, UMC filed a motion to have Plaintiff’s claims dismissed on the basis that

she did not request or obtain service on it as required by the Code of Civil Procedure

and the Revised Statutes.

After a hearing, the trial court granted UMC’s request and signed a judgment

dismissing Plaintiff’s claims against it. Plaintiff filed a motion for new trial, which

the trial court denied. She then filed this appeal.

Discussion

UMC’s motion to have Plaintiff’s claims against it dismissed was based on

La.Code Civ.P. art. 1672(C), which provides for the dismissal of an action without

prejudice when service was not requested within ninety days of suit being filed, as

required by La.Code Civ.P. art. 1201(C).

UMC is a state medical facility. Two statutes address service and citation

when the state is sued. Louisiana Revised Statutes 39:1538(4) provides that suits

asserting tort claims against the state or any of its agencies “shall be served upon the

head of the department concerned, the office of risk management, and the attorney

1 general, as well as any others required by R.S. 13:5107,” and La.R.S. 13:5107(A)

provides that when Louisiana or one of its agencies has been sued, “citation and

service may be obtained by citation and service on the attorney general of Louisiana,

or on any employee in his office . . . or any other proper officer or person . . . and in

accordance with the laws of this state. . . .”

Plaintiff does not deny that she did not comply with the requirements of

La.Code Civ.P. art. 1670(C). Instead, she contends that the trial court erred in

dismissing her claims against UMC because she made a “good faith effort to comply

with the rules regarding proper service and citation upon a state entity” and that she

“conformed to general rules of service and citation when she properly served the

party that caused the harm.” She urges that her “error in interpreting the Louisiana

Code of Civil Procedure” equates to “good cause,” which excuses her failure to

satisfy these service requirements.

The Louisiana Supreme Court has addressed this issue on numerous occasions

and recently held that a party’s failure to obtain service of process on one “authorized

to accept service is illegal and without effect.” Johnson v. Univ. Med. Ctr., 07-1683,

p. 2 (La. 11/21/07), 968 So.2d 724, 725. In Johnson, the supreme court also held that

it is a plaintiff’s responsibility to provide accurate service information for the proper

agent for service of process to satisfy R.S.13:5107(D). Id.

The “good cause” requirement of La.Code Civ.P. art. 1672(C) has been strictly

construed by Louisiana courts, as has been the duty of plaintiffs to determine and

provide accurate service information. Barnett v. La. State Univ. Med. Ctr.-

Shreveport, 02-2576 (La. 2/7/03), 841 So.2d 725. As noted by Plaintiffs, “good

cause” is not defined in Article 1672(C); however, the supreme court has held that

2 “mere confusion over a party’s proper service information is not a sufficient basis for

good cause.” Johnson, 968 So.2d at 725 (citing Norbert v. Loucks, 01-1229 (La.

6/29/01), 791 So.2d 1283). Indeed, in Barnett, 841 So.2d at 726, the supreme court

observed that “La.R.S. 13:5107 explicitly governs service on a state agency, such as

the defendant medical center. Thus, plaintiff could have discerned the proper agent

with minimal effort and cannot show good cause for the delay in proper service.”

Plaintiff has not established that her actions are any different from the

plaintiff’s actions in Barnett, where the supreme court determined that the failure to

determine the proper agent for service of process on the defendant state medical

center was not “good cause,” as contemplated by La.Code Civ.P. art. 1672(C).

Accordingly, we find no merit with Plaintiff’s arguments.

Disposition

The judgment of the trial court dismissing Plaintiff’s claims against UMC is