NORETTA PHILLIPS * NO. 2021-CA-0225
VERSUS * COURT OF APPEAL LOUISIANA STADIUM AND * EXPOSITION DISTRICT, FOURTH CIRCUIT BOARD OF COMMISSIONERS / * GAYLE M. BENSON STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2019-12306, DIVISION “A” Honorable Ellen M Hazeur, Judge ****** Judge Rosemary Ledet ****** (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Rosemary Ledet)
Julius C. Ford LAW OFFICE OF J. CHRISTOPHER FORD, LLC 927 Kerlerec Street New Orleans, LA 70116
COUNSEL FOR PLAINTIFF/APPELLANT
Jabrina C. Edwards LOUISIANA DEPARTMENT OF JUSTICE 330 Marshall Street, Suite 777 Shreveport, LA 71101
William David Coffey LOUISIANA ATTORNEY GENERAL'S OFFICE 1450 Poydras Street, Suite 900 New Orleans, LA 70112
Jeff Landry, Attorney General LOUISIANA DEPARTMENT OF JUSTICE P. O. Box 94005 Baton Rouge, LA 70804--9005
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED December 8, 2021 RML EAL RLB
This is a premises liability suit. The plaintiff, Noretta Phillips, appeals the
trial court’s judgment granting a declinatory exception of insufficiency of service
of process filed by defendant, the Louisiana Stadium & Exposition District
(“LSED”), and dismissing her claims against LSED. For the reasons that follow,
we affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On November 25, 2019, Ms. Phillips filed this suit claiming she suffered
injuries a year and a day earlier when she tripped and fell on a walkway at the
Superdome. In her suit, she named the following three defendants: (i) LSED,
alleged to be a political subdivision of the State; (ii) Gayle Benson, alleged to be
the lessee of the Superdome from the State; and (iii) LSED’s Board of
Commissioners (“the Board”), alleged to be LSED’s governing board. Only LSED
is a party to this appeal.
In her petition, Ms. Phillips requested service of process on LSED and the
Board through the State of Louisiana, Department of Justice, Office of Attorney
General, Jeff Landry at the Attorney General’s offices in Baton Rouge. On August
21, 2020, LSED filed a declinatory exception of insufficiency of service of
1 process.1 LSED argued that Ms. Phillips failed to comply with the requirements for
service of process on a state entity under La. R.S. 13:5107(A)(1) and La. R.S.
39:1538(D). Read together, LSED argued, these statutory provisions require that
all actions filed against the State of Louisiana or a state agency must be served
upon not only the Attorney General, but also the head of the state agency or entity
and the Louisiana Office of Risk Management. LSED argued that Ms. Phillips’
failure to serve the head of LSED or the Office of Risk Management mandated
dismissal of Ms. Phillips’ claims against LSED without prejudice, under La. R.S.
13:5107(D)(2).
In response, Ms. Phillips contended that the Louisiana Supreme Court
explicitly rejected LSED’s argument in Whitley v. State ex rel. Bd. Of Sup’rs of
Louisiana State, 11-0040 (La. 7/1/11), 66 So.3d 470. Ms. Phillips further
contended that the Supreme Court, in Whitley, held that service on the Attorney
General alone satisfied the service requirements of La. R.S. 13:5107(A). LSED
replied that the Whitley case—decided in 2011—was no longer applicable after La.
R.S. 13:5107 was amended in 2012.
At the hearing on LSED’s exception, the trial court granted LSED’s
declinatory exception. The trial court reasoned that a plaintiff filing suit against the
State or a state agency must request service of process on the Attorney General, the
Office of Risk Management, and the head of the defendant-state agency within
ninety days of commencing the suit. Further, the trial court found the Whitley case
was inapposite because it predated the amendments to La. R.S. 13:5107. Hence,
1 LSED also filed a peremptory exception of prescription. Because the trial court granted LSED’s declinatory exception, the trial court denied LSED’s prescription exception as moot. Thus, we do not address the prescription exception.
2 the trial court reasoned, LSED is a state agency,2 mandating service on the Office
of Risk Management and the head of LSED. Accordingly, the trial court granted
the exception of insufficiency of service and dismissed Ms. Phillips’ claims against
LSED without prejudice. This appeal followed.
DISCUSSION
Although Ms. Phillips assigns three errors on appeal,3 the crux of her
argument is that the trial court misinterpreted La. R.S. 13:5107 and La. R.S.
39:1538 to require that she not only request service upon the Attorney General, but
also upon the head of LSED and the Office of Risk Management within ninety
days of commencing suit. She argues that the Whitley case rejected this
interpretation. Thus, the sole issue before this Court is the sufficiency of Ms.
Phillips’ request for service on LSED through the Attorney General.
This court reviews a trial court’s judgment dismissing a matter for failure to
timely request service—granting a declinatory exception of insufficiency of service
of process—under the manifest error standard. See George v. ABC Ins. Co., 19-
0124, p. 3 (La. App. 4 Cir. 5/8/19), 271 So.3d 1289, 1291. This court, however,
applies a de novo standard of review in deciding questions of law. See Pierce
2 As previously stated and as discussed in more detail elsewhere in this opinion, LSED is not a state agency; rather, LSED is a political subdivision of the State. 3 On appeal, Ms. Phillips assigns three errors by the trial court:
1. The trial court erred by granting LSED’s declinatory exception and dismissing Ms. Phillips’ claims against LSED.
2. The trial court erred by misinterpreting La. R.S. 13:5107 to require that a plaintiff request initial citation on three different State entities within ninety days of filing suit.
3. The trial court erred by misinterpreting La. R.S. 39:1538 to require that a plaintiff request initial citation on three different State entities within ninety days of filing suit.
3 Foundations, Inc. v. Jaroy Const., Inc., 15-0785, p. 7 (La. 5/3/16), 190 So.3d 298,
303.
Before this court, the parties repeat the arguments they made before the trial
court, each citing differing interpretations of La. R.S. 13:5107(A) and La. R.S.
39:1538(D). These specific statutory provisions govern service of process in suits
against the State or a state agency. LSED is neither; rather, as Ms. Phillips
acknowledged in her petition, LSED is a political subdivision of the State.4 A
political subdivision is distinct from a state agency and is defined as “a parish,
municipality, and any other unit of local government, including a school board and
a special district, authorized by law to perform governmental functions.” La.
Const. of 1972, Art. 6, § 44(2).
In suits against a political subdivision, La. R.S. 13:5107(B) governs service
of process. Neither the statutory provisions relied upon by the parties—La. R.S.
13:5107(A) and La. R.S. 39:1538(D)—nor the jurisprudence construing those
statutory provisions—including the Whitley case—applies here. Those statutory
provisions and the jurisprudence construing them address service of process upon
the State or a state agency. Again, LSED is neither.
The governing statutory provision, La. R.S. 13:5107(B), provides as follows:
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NORETTA PHILLIPS * NO. 2021-CA-0225
VERSUS * COURT OF APPEAL LOUISIANA STADIUM AND * EXPOSITION DISTRICT, FOURTH CIRCUIT BOARD OF COMMISSIONERS / * GAYLE M. BENSON STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2019-12306, DIVISION “A” Honorable Ellen M Hazeur, Judge ****** Judge Rosemary Ledet ****** (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Rosemary Ledet)
Julius C. Ford LAW OFFICE OF J. CHRISTOPHER FORD, LLC 927 Kerlerec Street New Orleans, LA 70116
COUNSEL FOR PLAINTIFF/APPELLANT
Jabrina C. Edwards LOUISIANA DEPARTMENT OF JUSTICE 330 Marshall Street, Suite 777 Shreveport, LA 71101
William David Coffey LOUISIANA ATTORNEY GENERAL'S OFFICE 1450 Poydras Street, Suite 900 New Orleans, LA 70112
Jeff Landry, Attorney General LOUISIANA DEPARTMENT OF JUSTICE P. O. Box 94005 Baton Rouge, LA 70804--9005
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED December 8, 2021 RML EAL RLB
This is a premises liability suit. The plaintiff, Noretta Phillips, appeals the
trial court’s judgment granting a declinatory exception of insufficiency of service
of process filed by defendant, the Louisiana Stadium & Exposition District
(“LSED”), and dismissing her claims against LSED. For the reasons that follow,
we affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On November 25, 2019, Ms. Phillips filed this suit claiming she suffered
injuries a year and a day earlier when she tripped and fell on a walkway at the
Superdome. In her suit, she named the following three defendants: (i) LSED,
alleged to be a political subdivision of the State; (ii) Gayle Benson, alleged to be
the lessee of the Superdome from the State; and (iii) LSED’s Board of
Commissioners (“the Board”), alleged to be LSED’s governing board. Only LSED
is a party to this appeal.
In her petition, Ms. Phillips requested service of process on LSED and the
Board through the State of Louisiana, Department of Justice, Office of Attorney
General, Jeff Landry at the Attorney General’s offices in Baton Rouge. On August
21, 2020, LSED filed a declinatory exception of insufficiency of service of
1 process.1 LSED argued that Ms. Phillips failed to comply with the requirements for
service of process on a state entity under La. R.S. 13:5107(A)(1) and La. R.S.
39:1538(D). Read together, LSED argued, these statutory provisions require that
all actions filed against the State of Louisiana or a state agency must be served
upon not only the Attorney General, but also the head of the state agency or entity
and the Louisiana Office of Risk Management. LSED argued that Ms. Phillips’
failure to serve the head of LSED or the Office of Risk Management mandated
dismissal of Ms. Phillips’ claims against LSED without prejudice, under La. R.S.
13:5107(D)(2).
In response, Ms. Phillips contended that the Louisiana Supreme Court
explicitly rejected LSED’s argument in Whitley v. State ex rel. Bd. Of Sup’rs of
Louisiana State, 11-0040 (La. 7/1/11), 66 So.3d 470. Ms. Phillips further
contended that the Supreme Court, in Whitley, held that service on the Attorney
General alone satisfied the service requirements of La. R.S. 13:5107(A). LSED
replied that the Whitley case—decided in 2011—was no longer applicable after La.
R.S. 13:5107 was amended in 2012.
At the hearing on LSED’s exception, the trial court granted LSED’s
declinatory exception. The trial court reasoned that a plaintiff filing suit against the
State or a state agency must request service of process on the Attorney General, the
Office of Risk Management, and the head of the defendant-state agency within
ninety days of commencing the suit. Further, the trial court found the Whitley case
was inapposite because it predated the amendments to La. R.S. 13:5107. Hence,
1 LSED also filed a peremptory exception of prescription. Because the trial court granted LSED’s declinatory exception, the trial court denied LSED’s prescription exception as moot. Thus, we do not address the prescription exception.
2 the trial court reasoned, LSED is a state agency,2 mandating service on the Office
of Risk Management and the head of LSED. Accordingly, the trial court granted
the exception of insufficiency of service and dismissed Ms. Phillips’ claims against
LSED without prejudice. This appeal followed.
DISCUSSION
Although Ms. Phillips assigns three errors on appeal,3 the crux of her
argument is that the trial court misinterpreted La. R.S. 13:5107 and La. R.S.
39:1538 to require that she not only request service upon the Attorney General, but
also upon the head of LSED and the Office of Risk Management within ninety
days of commencing suit. She argues that the Whitley case rejected this
interpretation. Thus, the sole issue before this Court is the sufficiency of Ms.
Phillips’ request for service on LSED through the Attorney General.
This court reviews a trial court’s judgment dismissing a matter for failure to
timely request service—granting a declinatory exception of insufficiency of service
of process—under the manifest error standard. See George v. ABC Ins. Co., 19-
0124, p. 3 (La. App. 4 Cir. 5/8/19), 271 So.3d 1289, 1291. This court, however,
applies a de novo standard of review in deciding questions of law. See Pierce
2 As previously stated and as discussed in more detail elsewhere in this opinion, LSED is not a state agency; rather, LSED is a political subdivision of the State. 3 On appeal, Ms. Phillips assigns three errors by the trial court:
1. The trial court erred by granting LSED’s declinatory exception and dismissing Ms. Phillips’ claims against LSED.
2. The trial court erred by misinterpreting La. R.S. 13:5107 to require that a plaintiff request initial citation on three different State entities within ninety days of filing suit.
3. The trial court erred by misinterpreting La. R.S. 39:1538 to require that a plaintiff request initial citation on three different State entities within ninety days of filing suit.
3 Foundations, Inc. v. Jaroy Const., Inc., 15-0785, p. 7 (La. 5/3/16), 190 So.3d 298,
303.
Before this court, the parties repeat the arguments they made before the trial
court, each citing differing interpretations of La. R.S. 13:5107(A) and La. R.S.
39:1538(D). These specific statutory provisions govern service of process in suits
against the State or a state agency. LSED is neither; rather, as Ms. Phillips
acknowledged in her petition, LSED is a political subdivision of the State.4 A
political subdivision is distinct from a state agency and is defined as “a parish,
municipality, and any other unit of local government, including a school board and
a special district, authorized by law to perform governmental functions.” La.
Const. of 1972, Art. 6, § 44(2).
In suits against a political subdivision, La. R.S. 13:5107(B) governs service
of process. Neither the statutory provisions relied upon by the parties—La. R.S.
13:5107(A) and La. R.S. 39:1538(D)—nor the jurisprudence construing those
statutory provisions—including the Whitley case—applies here. Those statutory
provisions and the jurisprudence construing them address service of process upon
the State or a state agency. Again, LSED is neither.
The governing statutory provision, La. R.S. 13:5107(B), provides as follows:
In all suits filed against a political subdivision of the state, or any of its departments, offices, boards, commissions, agencies or instrumentalities, citation and service may be obtained on any proper agent or agents designated by the local governing authority and in accordance with the laws of the state provided that the authority has filed notice of the designation of agent for service of process with and paid a fee of ten dollars to the secretary of state, who shall maintain 4 Article XIV, Section 47 of the Louisiana Constitution of 1921 provides, in pertinent part: “There is hereby created the Louisiana Stadium and Exposition District, hereinafter simply called the ‘District’, which shall be a body politic and corporate and political subdivision of the State of Louisiana composed of all of the territory in the Parishes of Orleans and Jefferson.” Article XIV, Section 47 was continued as a statute after ratification of the Louisiana Constitution of 1972. See La. Const. Art. 14, § 16(A)(10).
4 such information with the information on agents for service of process for corporations. If no agent or agents are designated for service of process, as shown by the lack of such designation in the records of the secretary of state, citation and service may be obtained on the district attorney, parish attorney, city attorney, or any other proper officer or person, depending upon the identity of the named defendant and in accordance with the laws of the 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, commission, department, agency, or officer through which or through whom suit is to be filed against.
Accordingly, to effect service of process on LSED, Ms. Phillips was required, by
La. R.S. 13:5107(B), to serve either LSED’s designated agent or agents for service,
or, if no agent was designated, to serve the district attorney, parish attorney, city
attorney, or other proper officer and the head of the LSED Board of
Commissioners. Ms. Phillips, however, only requested service on LSED through
the Attorney General.
The record is devoid of any evidence that the Attorney General is LSED’s
designated agent for service. Indeed, LSED denies that the Attorney General is its
designated agent for service. Ms. Phillips, thus, failed to comply with La. R.S.
13:5107(B)’s requirements for service on a political subdivision.
Suits against a political subdivision of the State, such as LSED, are also
subject to La. R.S. 13:5107(D)(1), which provides, in pertinent part:
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.
The Legislature’s use of the word “shall” in La. R.S. 13:5107(D)(1) indicates that a
request for service of process within ninety days of filing suit was mandatory.
Further, “the requirement that service upon defendant be requested within the
5 ninety-day period should reasonably be read to require: (1) an accurate request of
service (2) upon the proper agent for defendant.” Thomas v. Louisiana Dep't of
Pub. Safety & Corr., 02-0897, p. 6 (La. App. 1 Cir. 3/28/03), 848 So. 2d 635, 639.
Another pertinent provision is La. R.S. 13:5107(D)(2), which cross-
references La. C.C.P. art. 1672(C). It provides:
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(C), as to the state, 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.
Article 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.
La. C.C.P. art. 1672(C).
Applying these principles, we conclude that Ms. Phillips failed to accurately
request service upon LSED within ninety days of filing her petition. The
jurisprudence is well-settled that “mere confusion or inadvertence or mistake in
requesting service on the part of the plaintiff’s counsel is not a sufficient basis for
good cause.” Liberty Mut. v. Noble 04-727, p. 3 (La. App. 5 Cir. 11/30/04), 889
So.2d 1158, 1159 (collecting cases). Indeed, the trial court in this case recognized
6 this principle as applicable here, albeit citing the incorrect statutory provisions
regarding service on LSED. 5
The record, thus, supports a finding that there is no just cause for Ms.
Phillips’ failure to request service of process in compliance with La. R.S.
13:5107(B). As a result, the trial court, as mandated by La. R.S. 13:5107(D), did
not err in dismissing her claims against LSED without prejudice. See Johnson v.
Reg'l Transit Auth., 00-2647, pp. 2–3 (La. App. 4 Cir. 4/18/01), 785 So. 2d 1015,
1016 (“[T]he language of the statute indicates that a trial court has no discretion to
deny a motion to dismiss without prejudice when a petition against a political
subdivision of the State . . . has not been served within 90 days of the date the
petition is filed. No cases in Louisiana have allowed a trial court discretion to act
otherwise.”). Accordingly, we find no error in the trial court’s judgment granting
LSED’s declinatory exception of insufficiency of service of process.
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED
5 Although we find that the trial court’s reliance on La. R.S. 13:5107(B) in its reasons for judgment was misplaced, we note that “[a]ppellate courts review judgments, not reasons for judgment.” Wooley v. Lucksinger, 09-0571, 09-0584, 09-0585, 09-0586, p. 77 (La. 4/1/11), 61 So.3d 507, 572.