Nyles Walker v. Goauto Insurance Company, James River Insurance, Raiser, LLC and Joy Brue

• Court: Louisiana Court of Appeal
• Decided: June 10, 2021
• Docket: 2020-CA-0331
• Status: Published

Opinion

NYLES WALKER * NO. 2020-CA-0331

VERSUS * COURT OF APPEAL GOAUTO INSURANCE * COMPANY, JAMES RIVER FOURTH CIRCUIT INSURANCE, RAISER, LLC * AND JOY BRUE STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-01779, DIVISION “D” Honorable Nakisha Ervin-Knott, Judge ****** JUDGE JAMES F. MCKAY III CHIEF JUDGE ****** (Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins)

CARL RACHAL 1031 Camellia Boulevard Lafayette, Louisiana 70508 COUNSEL FOR PLAINTIFF/APPELLANT

KEVIN F. TRUXILLO ANNISSA M. ALARIO GARRISON, YOUNT, FORTE & MULCAHY, LLC 909 Poydras Street, Suite 1800 New Orleans, Louisiana 70112 COUNSEL FOR DEFENDANT/APPELLEE JAMES RIVER INSURANCE COMPANY

DAWN DANNA MARULLO ASHLEY M. DEMOUY NICHOLAS J. SMELTZ 616 Girod St. New Orleans, Louisiana 70130 COUNSEL FOR DEFENDANT/APPELLEE GOAUTO INSURANCE COMPANY

REVERSED AND REMANDED

JUNE 10, 2021 JFM DLD SCJ

Nyles Walker (“plaintiff”), appeals the judgment of the District Court

sustaining the defendants’/appellees’ Exception of Insufficiency of Service of

Process and Citation, and dismissing the claims against GoAuto Insurance

Company and James Rivers Insurance Company, Raiser LLC and Joy Bruhe

(“defendants”) without prejudice. Finding no basis for sustaining these exceptions,

we reverse the District Court’s judgment and remand the matter for further

proceedings consistent with this opinion.

FACTS AND PROCEDURE

On February 24, 2017, an automobile accident occurred on South Claiborne

Avenue in the City of New Orleans, when plaintiff was rear-ended by a car driven

by Joy Bruhe. As a result of this accident, the plaintiff sustained injuries. Joy

Bruhe was driving within the course and scope of her employment with Raiser

LLC, which was insured by James Rivers Insurance Company.

On February 23, 2018, the plaintiff filed his petition for damages via

facsimile in Civil District Court for the Parish of Orleans. In the petition, the

1 plaintiff requested service on all the defendants named in the petition: GoAuto

Insurance Company, James River Insurance Company, Raiser LLC and Joy Bruhe.

On February 26, 2018, the original petition for damages was forwarded via

Federal Express overnight shipping, to the Clerk of Court for Civil District Court

(“Clerk of Court”), which was delivered on February 27, 2018. The appellant, in

his original petition requested to proceed in forma pauperis 1 On or about March

12, 2018, the Clerk of Court informed plaintiff’s counsel (“counsel”) that the in

forma pauperis application was denied.

On March 19, 2018, the Clerk of Court sent counsel a notification that

$670.00 was due for court costs, and further apprised counsel that those costs were

due within seven (7) business days from the date of that correspondence. Upon

receiving this correspondence, on March 26, 2018, counsel forwarded the Clerk of

Court, via Federal Express overnight delivery, a law firm check #2123 in the

amount of $670.00. The Clerk of Court received the check on March 27, 2018; the

check cleared counsel’s account on April 2, 2018. However, service on the

defendants, as requested in the original petition for damages filed on February 23,

2018, was never effectuated. It is important to note that at no time did the plaintiff

request to withhold service of citation on the defendants.

Approximately one year later, despite counsel’s numerous inquiries to the

Clerk of Court concerning the status of the services of process upon the named

defendants, the Clerk of Court informed counsel that the original petition for

1 La. C.C.P. art. 5181 et seq.

2 damages was being held by the Orleans Parish Sheriff’s Office because there were

funds due to the Sheriff’s Office to cover service fees. Following this notification,

counsel was advised of the amounts of additional service fees that were due

(presumably to the Sheriff); the record is unclear when counsel received this

information.2 On April 16, 2019, counsel forwarded checks payable to the

Louisiana Secretary of State ($50.00), Orleans Parish Sheriff’s Office, ($120.00),

and the East Baton Rouge Parish Sheriff’s Office ($118.00).

On September 10, 2019, again after previously making numerous calls to the

Clerk of Court and the Orleans Parish Sheriff’s office, counsel realized that no

service had ever been effectuated despite the payments for additional services

being made. Finally, after sending a letter to the Clerk of Court requesting that

service on the defendants be re-issued, on or about September 19, 2019, service on

the defendants was finally effected.

In response to receiving service of citation of plaintiff’s original petition for

damages, the defendants filed their respective Declinatory Exceptions of

Insufficiency of Service of Process and Citation of Service, pursuant to La. C.C.P.

art. 925(A)(2). On January 24, 2020, following a hearing on the exceptions, the

District Court sustained the defendants’ exceptions, opining that the plaintiff had

failed to timely request service of process on the defendants. It is from this

judgment that the appellant asserts his appeal.

2 La. R.S. 13:5530, “Fees in civil matters”, allows the sheriffs the authority to collect fees for their services. However, the mode and timing of collection is not specifically addressed in the statute.

3 STANDARD OF REVIEW

Appellate courts review a dismissal of an action for failure to timely request

service under a manifest error standard. Macquet v. Westbay, 2019-1093, p. 2 (La.

App. 4 Cir. 7/15/20) 302 So.3d 564,565 (citing Llopis v. Louisiana State Bd. Of

Dentistry, 2013-0659, p. 5 (La. App. 4 Cir. 6/11/14), 143 So.3d 1211. 1214).

ASSIGNMENT OF ERROR

In his sole assignment of error, plaintiff asserts that the District Court

committed reversible error by granting the defendants’ Declinatory Exceptions of

Insufficiency of Service of Process and Citation of Service.

DISCUSSION

The crux of the matter in this appeal is purely procedural; specifically,

timeliness issues and what constitutes a request for service of process pursuant to

La. C.C.P. art 1201(C).

The defendants, in their Declinatory Exceptions of Insufficiency of Service

of Process and Citation of Service, allege that the plaintiff failed to request service

of process within ninety-days days from the filing of the lawsuit and further that

the plaintiff failed to timely pay the court costs once the in forma pauperis status

was denied.

On February 23, 2018, the plaintiff filed the original petition for damages,

against the named defendants via facsimile and forwarded a hard copy via Federal

Express overnight to the Clerk of Court. The plaintiff in his original petition for

damage attached (included) a request and affidavit to proceed in forma pauperis,

4 and a request for service on all defendants which included an attachment that

included with specificity the defendants’ names and known addresses.

On March 12, 2018, the Clerk of Court notified the plaintiff that his request

to proceed in forma pauperis was denied. Additionally, the Clerk of Court sent

counsel an invoice for court cost and informed him that the costs were due within

seven (7) days. We note that the correspondence sent to counsel did not include

the amount due to the Sheriff or even give notice to the plaintiff that there were

Sheriff’s cost/fees due separate and apart from the amount quoted. Relying on the

Clerk of Court’s correspondence, counsel sent the full amount of the cost/fees due

via Federal Express overnight mail; the Clerk of Court received the checks on

March 27, 2018 and cleared counsel’s office account on April 2, 2018.

The applicable statutes in this matter are La. C.C.P art. 1201(C) and La.

C.C.P art. 1672.

La. C.C.P art. 1201(C) (Service of Process) provides in pertinent part:

Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety-days of filing. The defendant may expressly waive the requirements of this Paragraph by any written waiver. The requirement provided by this Paragraph shall be expressly waived by a defendant unless the defendant files, in accordance with the provisions of Article 928, a declinatory exception of service of process specifically alleging the failure to timely request service of citation.

La. C.C.P. art. 1672 (c) (Involuntary Dismissal) provides in pertinent part:

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

5 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 specific time.

Notably, regarding the ninety-day notice requirement, this Court has

indicated that “[t]he purpose of the requirement that service be requested within 90

days of the suit’s commencement is to insure that the defendant receives notice of

the suit within a reasonable time after it has been commenced”. Anderson v.

Norfolk Southern Railway Company, 2002-0230, p. 4 (La. App. 4 Cir. 3/27/02),

814 So.2d 659, 661.

La. C.C.P. art 1201(C) requires that service of citation be requested on all

named defendants within ninety-days of commencement of action. La. C.C.P. art

1672(C) mandates that an action be dismissed if good cause is not shown why

service of the citation is not requested within the ninety-day period provided in La.

C.C.P. art 1201(C). Moreover, our courts have held that simply requesting service

and providing service instructions without payment is not a request for service

sufficient for compliance with La. C.C.P. art. 1201(C). Jenkins v. Larpenter,

2004-0318, pp. 4-5 (La. App. 1 Cir. 3/24/05), 906 So.2d 656, 659; Ayers v.

Goodwill Industries, 2003-1576, p. 2 (La. App. 4 Cir 3/10/04), 870 So.2d 348,

349.3

3 For clarification and to distinguish applicable jurisprudence concerning the issue of what satisfies the statutory requirement of “request” for service, we note that an abundance of cases involve service of citation on the State, State Agency or Agent pursuant to La. R.S. 13:5107 (D)(1)), specifically when referring to the requirement to request service of citation within the ninety-day requirement. This is analogous to the case sub judice concerning La. C.C.P. art. 1201.

6 In both Jenkins and Ayers, as in the case sub judice, the plaintiffs requested

service of the petition on the defendants and simultaneously filed a request to

proceed in forma pauperis. In Jenkins and Ayers, in forma pauperis status was

denied by the District Court, however, in each of those cases, the plaintiffs failed to

timely pay the fees after receiving the notice that the in forma pauperis was denied.

Plaintiffs simply did not pay the requisite court costs, therefore, service was not

effectuated. In both cases, the defendants’ motions for involuntary dismissal were

granted on the basis of plaintiffs’ non-compliance with the ninety-day service

mandated by La. C.C.P. art. 1201(C).

Notably, in the case sub judice, unlike Jenkins and Ayers, counsel timely

paid the cost ($670.00), which the Orleans Parish Clerk of Court stipulated to

counsel was due. Also unlike the plaintiffs in Jenkins and Ayers, here, the plaintiff

timely forwarded payment to the Clerk of Court after receiving notice of the denial

of his request to proceed to proceed in forma pauperis. Again, we note that here

service on all defendants was properly requested on all named defendants in the

petition for damages.

This Court addressed an issue analogous to the case at bar in Parker v Rite

Aid Corp, 2003-0208, pp. 1-2 (La. App. 4 Cir. 6/26/03) 843 So.2d 1140-1141,

wherein the plaintiff/respondent did not deliver a payment for service of the

petition to the civil sheriff as was the custom with the Orleans Parish Civil Sheriff.

In Parker, this Court held that: The precise issue before us is to whom must the request for service be made, for neither La. C.C.P.art 1201(C) nor La. C.C.P. art 1672 (C) mandates to whom the request for service should be made.

7 Under La. C.C.P. art 1202, the clerk must issue the citation under the clerk’s signature and seal of the court. (A citation must accompany a certified copy of the petition in order to complete the citation and service.) It therefore follows that the initial request for service should be made to the clerk of court, not the civil sheriff. The plaintiff/respondent in the case at bar made the request for service to the clerk of court at the time of filing his petition. The requirements of La. C.C.P. arts 1201(C) and 1672 (C) have been met. Accordingly, we find that the plaintiff/respondent timely made a request for service of the petition. The trial court did not err.

Id. While Parker was a writ opinion, it is dispositive of the issue before

us in the case sub judice.

In Tranchant v. State, 2008-0978, p. 7 (La. 1/21/09), 5 So.3d 832, 836, the

Louisiana Supreme Court said that:

To resolve the legal question presented by this case, we must determine what is required to constitute a request for service. Generally, a request is made when asks someone for something. Here, plaintiff asks the clerk to serve the persons named as defendants in a lawsuit. The clerk cannot act to effect service until he is aware of what is being asked of him. In our view, the ordinary meaning of the word “request,” without more, contemplates a two-party transaction involving one who asks that something be done and one who does what is asked, Thus for purposes of La. R.S. 13:5017 (D)(1), service of citation should be deemed “requested” when the clerk receives service instructions from the plaintiff.

In Red Stick Studio Dev., L.L.C. v. State ex rel. Dept. of Econ. Dev., 2010-

0193, p.10 (La 1/19/11), 56 So.3d 181, 187-88, (citing M.J.Farm, Ltd. v. Exxon

Mobile, 2007-2371, p.3 (La. 7/1/08) 988 So.2d 16, 27), the Louisiana Supreme

Court on the issue of statutory interpretation said that:

The starting point in the interpretation of any statute begins with the language of the statute itself. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the legislative intent.

8 Here, the statute is unambiguous and only requires that service be requested.

We note here that Tranchant originated in Orleans Parish District Court

where the District Court sustained the defendant’s Declinatory Exception of

Insufficiency of Service of Process. On appeal, this Court reversed that judgment,

only to be reversed by the Louisiana Supreme Court. The facts in Tranchant are

substantially different from the case at bar. In Tranchant, the request for service of

citation was received by the Clerk of Court more that ninety days from the filing of

the original petition for damages. The pronouncement in Tranchant that “service

of citation should be deemed ‘requested’ ” when the clerk receives service

instructions from the plaintiff” is dispositive as applied to the case at bar.

Tranchant is authoritative in its clarification of what is a timely “request” relevant

La. C.C.P. art 1201(C). 4

In the instant matter, following the pronouncements in Parker, Anyanwu,

and Tranchant, and in accordance with La. C.C.P. art 1201, service of process was

timely requested. The above jurisprudence makes it clear that the plaintiff timely

requested service of citation on the defendants in compliance with La. C.C.P. art

1201(C).

CONCLUSION

4 Another case on point with this position is an opinion from our brethren at the Louisiana First Circuit Court of Appeals, Anyanwu v. University Mecical Management Corp., 2015-0066, p.2 (La. App 1 Cir. 9/21/15), ____So.3d____, 2016, 2015 WL 5547480 (unpub.). In this case, the plaintiff contended that the trial court erred in finding that the service of citation was not requested timely because the service fees were not paid at the time of filing. The plaintiff argued that since the original petition and filing fees were received by the Clerk of Court within the ninety-days, the duty imposed by La. R.S. 13:5107 (D)(1) was met. The Anyanwu Court noted:“To determine whether plaintiff timely requested service of citation, we must ascertain what constitutes a ‘request’ for service of citation pursuant to La. R.S. 13:5107 (D).” The court looked to Tranchant. The Anyanwu Court ultimately applied the facts to the clarification of the meaning of “request,” and reversed the district court, finding that a request for service citation on the sheriff satisfied the requirements of the statute.

9 The record reflects that counsel continually corresponded with the Clerk of

Court’s office and the Sheriff concerning the issues of cost and service but he

failed to receive competent instructions. Thus, we find that counsel’s initial

request for service of process complied with La. C.C.P. art. 1201. That is, plaintiff

satisfied the requisite “request” for service pursuant to La. C.C.P art 1201. Thus,

we need not address the determination of “good cause”, pursuant to La. C.C. art.

1672.

Therefore, balancing equity, justice and the applicable jurisprudence, we

find that under the particularized circumstances of this case, the District Court

erred in granting the exceptions of Insufficiency of Service of Process and Citation

of Service.

For the reasons state above, we reverse the ruling of the District Court and

remand for further proceedings.