Thomas v. LOUISIANA DEPT. OF PUBLIC SAFETY

848 So. 2d 635, 2003 WL 1702045
CourtLouisiana Court of Appeal
DecidedMarch 28, 2003
Docket2002 CA 0897
StatusPublished
Cited by13 cases

This text of 848 So. 2d 635 (Thomas v. LOUISIANA DEPT. OF PUBLIC SAFETY) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas v. LOUISIANA DEPT. OF PUBLIC SAFETY, 848 So. 2d 635, 2003 WL 1702045 (La. Ct. App. 2003).

Opinion

848 So.2d 635 (2003)

Hilner THOMAS
v.
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS and Dixon Correctional Institute.

No. 2002 CA 0897.

Court of Appeal of Louisiana, First Circuit.

March 28, 2003.
Rehearing Denied July 22, 2003.

*636 Joseph C. Possa, Richard P. Bullock, Baton Rouge, Baton Rouge, for Plaintiff/Appellant, Hilner Thomas.

Marjorie G. O'Connor, Baton Rouge, for Defendant/Appellee, State of Louisiana, Department of Public Safety and Corrections.

Before: CARTER, C.J., WHIPPLE and CIACCIO, JJ.[1]

WHIPPLE, J.

Plaintiff appeals the dismissal of his suit without prejudice for failure to timely request service of citation upon defendant, the State of Louisiana through the Department of Public Safety and Corrections. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 16, 1998, plaintiff, Hilner Thomas, filed suit for damages against the State of Louisiana through the Department of Public Safety and Corrections ("DPSC") and Dixon Correctional Institute. Plaintiff alleged that he had been a passenger in a van owned by Dixon Correctional Institute and driven by an employee of DPSC and that, through the negligence of the DPSC employee, the vehicle was involved in an accident and plaintiff was injured.

At the time suit was filed, plaintiff erroneously requested service on DPSC and Dixon Correctional Institute, through "Walter Fox McKeithen, Secretary of State," whom the parties concede was not the proper agent for service of process for suits against DPSC or Dixon Correctional Institute. Thereafter, the East Baton Rouge Sheriff's Office apparently served the Secretary of State with the citation and petition.[2] However, the Secretary of *637 State then rejected service of the petition on the basis that he was not the correct agent for service of process for any state agency.[3] A written rejection of service was signed by a representative of the Office of the Secretary of State on October 23, 1998.

Nonetheless, counsel for plaintiff subsequently received a post card from the Clerk of Court for the Nineteenth Judicial District Court dated October 29, 1998, indicating that the "State of La." had been served. Further information regarding the type of pleading and the party served was recorded as "Citation/Secretary of State." However, the post card did not set forth any specific information as to the date or type of service, indicating the following on the card: "Date and Type of Service: 00/00/0000 No Information Gi."

Thereafter, on April 18, 2000, approximately eighteen months after filing the petition herein, plaintiff requested service of the petition and citation upon DPSC and Dixon Correctional Institute through Richard L. Stalder, the Secretary of DPSC. This service was perfected on April 25, 2000.

On May 23, 2000, DPSC responded by filing an exception raising an objection to the "timeliness of service" and a motion to dismiss on the grounds that plaintiff had failed to timely request service upon DPSC.[4] DPSC noted that service upon it through its proper agent for service of process was not requested until April of 2000 and that service was not perfected upon it until April 25, 2000. DPSC argued that LSA-R.S. 13:5107(D) mandates that service of citation be requested within ninety days of the filing of the initial pleading where the state, a state agency, political subdivision or any officer or employer thereof is named as a party and that failure to do so warrants dismissal of the action.

A hearing on the exception and motion to dismiss was conducted before a commissioner of the Nineteenth Judicial District Court on July 10, 2001. Thereafter, the commissioner issued a report, recommending to the trial court that plaintiff's petition be dismissed without prejudice pursuant to LSA-R.S. 13:5107(D) for failure to request service within ninety days of filing of the petition. In accordance with the commissioner's recommendation, the trial court rendered judgment on December 20, 2001, dismissing plaintiff's claim without prejudice at plaintiff's cost.

From this judgment, plaintiff appeals, assigning the following as error:

(1) The trial court erred in finding that plaintiff had not requested service under LSA-R.S. 13:5107;

(2) Alternatively, the trial court erred in finding that plaintiff did not have good cause in failing to re-request proper service *638 during the initial ninety-day period under LSA-R.S. 13:5107; and

(3) The trial court erred in dismissing plaintiff's suit even though proper service was made during the time that prescription was interrupted.

ASSIGNMENT OF ERROR NUMBER ONE

Louisiana Revised Statute 13:5107(D) provides, in pertinent part, as follows:

(1) In all suits in which the state, a state agency, or political subdivision ... is named as a party, service of citation shall be requested within ninety days of the commencement of the action.... 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 1672(C), as to the state, state agency, or political subdivision ... who has not been served. (Emphasis added).

The parties do not dispute that a request for service upon the Secretary of DPSC was not received until April 18, 2000, more than one and one-half years after suit was filed. However, plaintiff argues that LSA-R.S. 13:5107 merely requires that service be requested within ninety days of filing the initial pleading, not that service be perfected. Moreover, while he concedes that service was initially requested on an improper agent for service of process, he asserts that his initial request for service on the date of filing of the petition complied with this statutory requirement because he timely requested service on the proper party, even though service was requested on the wrong agent for service of process. Accordingly, the first issue presented is whether plaintiff's initial request for service upon the wrong agent for service of process complied with the requirement of LSA-R.S. 13:5107(D) that service be "requested" within ninety days of filing of the initial pleading.

As stated above, LSA-R.S. 13:5107(A) governs service of citation on a state agency and provides that service shall be made upon the attorney general and on the "agency head." In the instant case, plaintiff did not request service upon the secretary of DPSC until eighteen months after suit was filed. With regard to plaintiff's contention that the request for service made at the time of filing of the petition was sufficient, even though the requested service was upon the wrong person or entity, our research does not reveal any cases directly on point.

However, in Rollins v. City of Zachary, XXXX-XXXX, p. 5 (La.App. 1st Cir.2/16/01), 808 So.2d 439, 442-443, this court considered the meaning of "request for service" as contemplated by LSA-R.S. 13:5107(D). In Rollins, the plaintiffs asserted that they had satisfied the requirement of "requesting" service pursuant to LSA-R.S. 13:5107(D) by mailing a request for service to the clerk of court, even though the request was never received by the clerk.

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Bluebook (online)
848 So. 2d 635, 2003 WL 1702045, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-louisiana-dept-of-public-safety-lactapp-2003.