THE LATHAN COMPANY, INC.
THE STATE OF LOUISIANA, DIVISION OF ADMINISTRATION, OFFICE OF FACILITY PLANNING AND CONTROL
Review from the 19th Judicial District Court In and for the
Parish of East Baton Rouge State of Louisiana Trial Court No.
647, 686 Honorable Donald R. Johnson, Judge Presiding
N. Shields, Elizabeth L. Gordon Adrienne C. May New Orleans,
LA Attorneys for Plaintiff -Respondent, The Lathan Company,
Johnson, Bridget B. Denicola Office of the General Counsel
Baton Rouge, LA Attorneys for Defendant -Relator, State of
Louisiana, Division of Administration, Office of Facility
Planning and Control
BEFORE: McDONALD, McCLENDON, HIGGINBOTHAM, CRAIN, AND
the State of Louisiana, Division of Administration, Office of
Facility Planning and Control (the State), filed for
supervisory review of the trial court's denial of the
State's declinatory exception raising the objection of
insufficiency of service of process by the
plaintiff-respondent, The Lathan Company, Inc.
AND PROCEDURAL HISTORY
April 18, 2016, Lathan filed a petition through facsimile,
naming the State as the defendant and seeking damages for
breach of contract and violations of La. R.S.
38;2191(A). The dispute arose out of a public works
contract that Lathan entered into with the State for
construction work at Jackson Barracks in New Orleans,
Louisiana. On April 27, 2016, Lathan filed the original
petition with the notation "Please Hold Service" on
the final page. On July 15, 2016, Lathan faxed a letter to
the Clerk of Court for the 19th Judicial District Court
requesting that its petition be served on the
"defendant, the State of Louisiana, Department of
Administration, Office of Planning and Control." Lathan
also requested a return facsimile acknowledging receipt and
indicating whether any additional fees were owed for service.
On that same day, the clerk's office responded,
acknowledging receipt of the July 15, 2016 facsimile and
stating that, "[i]n accordance with R.S. 13:850(B),
within seven days, exclusive of holidays, the party filing
the [facsimile] document shall forward to the clerk the
original signed document, applicable fees and a transmission
fee." On August 22, 2016, the clerk's office
received an original document dated August 12, 2016,
requesting service and the State was served on September 19,
November 4, 2016, the State filed a declinatory exception of
insufficiency of service of process asserting that Lathan
failed to request service of the petition within ninety days
of commencement of the action, as prescribed by La. Code Civ.
P. art. 1201(C) and La. R.S. 13:5107(D)(1). Specifically, the
State argued that Lathan's facsimile on July 15, 2016,
requesting service of the petition, was of no effect because
the original request was not forwarded within seven days,
exclusive of legal holidays, as required by La. R.S. 13:850,
the fax-filing statute. Therefore, the State maintained that
Lathan's request for service was not timely, because
Lathan's original document requesting service was not
received until August 22, 2016, one hundred twenty-six days
after Lathan filed its petition. In response, Lathan argued
that under the precedent set in the supreme court case of
Wilborn v. Vermillion Parish Police Jury, 2004-1074
(La. 7/2/04), 877 So.2d 985 (per curiam), its request for
service on the State sent by facsimile on July 15, 2016, and
received by the clerk on that day was sufficient and timely.
matter came before the district court on January 9, 2017,
after which the State filed a post-trial memorandum arguing
for the first time that service requested by Lathan was also
insufficient because Lathan did not request service on the
attorney general as required by La. R.S. 13:5107(A)(2). On
February 14, 2017, the district court signed a "Judgment
with Written Reasons" overruling the State's
exception of insufficiency of service of process and finding
that under Wilborn, the fax-filing statute, La. R.S. 13:850,
does not apply to the request for service by facsimile.
State filed for supervisory review of the district
court's ruling with this court. This court granted the
State's writ, reversed the ruling of the district court,
and granted the State's declinatory exception of
insufficiency of service of process. Lathan applied for writs
with the supreme court, which the supreme court granted and
then remanded the matter back to this court for briefing,
argument, and full opinion. Thus, the issue before this court
for review is whether Lathan's request for service on the
State via facsimile has force and effect when the
requirements of La. R.S. 13:850 were not met, as well as
whether Lathan's failure to request service on the
attorney general within ninety days of the filing of the
petition requires dismissal of the petition pursuant to La.
district court's ruling on an exception of insufficiency
of service of process is reviewed under the manifest error
standard. In Re Professional Liability Claim of
Snavely, 2015-207 (La.App. 3rd Cir. 11/4/15), 178 So.3d
614, 619; Davis v. Caraway, 2014-264 (La.App. 5th
Cir. 10/29/14), 164 So.3d 223, 225. However, when the facts
are not disputed and the issue before this court is whether
the district court properly interpreted and applied the law,
the standard of review for questions of law is simply a
review of whether the district court was legally correct or
incorrect. See Babcock v. Martin, 2016-0073 (La.App.
1st Cir. 9/16/16), 2016 WL 4973229 *5 (unpublished).
of Service Request/Applicability of La. R.S. 13:850 to a
Request for Service on the State or a State Agency
first issue this court must decide is whether a request for
service on the State is timely pursuant to La. R.S.
13:5107(D)(1), which mandates that in all suits in which a
state agency is named as a party, "service of citation
shall be requested within ninety days of the commencement of
the action" when the request for service on the state is
by facsimile transmission within ninety days of the filing of
the original petition, but the original service document is
not forwarded to the clerk's office within seven days
exclusive of legal holidays.
Revised Statute 13:850, which was in effect at the time
Lathan requested service via facsimile on July 15, 2016,
A. Any paper in a civil action may be filed with the court by
facsimile transmission. All clerks of court shall make
available for their use equipment to accommodate facsimile
filing in civil actions. Filing shall be deemed complete at
the time that the facsimile transmission is received and a
receipt of transmission has been transmitted to the sender by
the clerk of court. The facsimile when filed has the same
force and effect as the original.
B. Within seven days, exclusive of legal holidays, after the
clerk of court has received the transmission, the party
filing the document shall forward the following to the clerk:
(1) The original signed document.
(2) The applicable filing fee, if ...