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The Lathan Company, Inc. v. State

Court of Appeals of Louisiana, First Circuit

January 24, 2019

THE LATHAN COMPANY, INC.
v.
THE STATE OF LOUISIANA, DIVISION OF ADMINISTRATION, OFFICE OF FACILITY PLANNING AND CONTROL

          On 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

          Lloyd N. Shields, Elizabeth L. Gordon Adrienne C. May New Orleans, LA Attorneys for Plaintiff -Respondent, The Lathan Company, Inc.

          Scott 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 HOLDRIDGE, JJ.

          HIGGINBOTHAM, J.

         Defendant-Relator, 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.

         FACTUAL AND PROCEDURAL HISTORY

         On 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).[1] 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, 2016.[2]

         On 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.

         The 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.

         The 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. R.S. 13:5107.

         LAW AND ANALYSIS

         A 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).

         Timeliness of Service Request/Applicability of La. R.S. 13:850 to a Request for Service on the State or a State Agency

         The 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.

         Louisiana Revised Statute 13:850, which was in effect at the time Lathan requested service via facsimile on July 15, 2016, pertinently provided[3]:

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 ...

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