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Eugene v. Duroncelet

Court of Appeals of Louisiana, Fifth Circuit

July 3, 2019

LOIS EUGENE
v.
BRETT DURONCELET, WASTE CONNECTION, INC., AND XYZ INSURANCE COMPANY

          ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 785-459, DIVISION "J" HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/RESPONDENT, LOIS EUGENE Clarence J. Roby, Jr.

          COUNSEL FOR PLAINTIFF/RESPONDENT, LOIS EUGENE Clarence J. Roby, Jr.

          Panel composed of Judges Jude G. Gravois, Hans J. Liljeberg, and John J. Molaison, Jr.

          JUDE G. GRAVOIS JUDGE

         Relator, Waste Connections Bayou, Inc. ("Bayou"), seeks this Court's supervisory review of the trial court's March 28, 2019 written judgment which denied its declinatory exception of insufficiency of service of process. For the following reasons, we grant this writ, reverse the ruling of the trial court, grant Bayou's exception of insufficiency of service of process, and dismiss the claims asserted by plaintiff, Lois Eugene, against Bayou, in this case, without prejudice.

         FACTS AND PROCEDURAL BACKGROUND

         On July 9, 2018, plaintiff, Lois Eugene, filed a petition for damages asserting claims against Bayou for injuries she allegedly sustained in a motor vehicle accident which purportedly occurred on July 10, 2017 in Jefferson Parish.[1]At the end of the petition, there was a handwritten note to "HOLD" service as to "Corporate Service Company, 501 Louisiana Ave., Baton Rouge, LA 70802." No other service information was provided.

         According to plaintiff, service was initially withheld because of active ongoing settlement negotiations between the parties, and a courtesy copy of the petition was emailed to the insurance adjuster handling the claim. Plaintiff asserts that service was later requested by letter from plaintiff's counsel to the Jefferson Parish Clerk of Court's office dated September 24, 2018. According to an affidavit of Greta Perrier, plaintiff's counsel's legal assistant, on October 30, 2018, during a routine accounting audit, she discovered that the check mailed with the September 24, 2018 service request letter never cleared. Thus, she contacted the Clerk of Court's office and was informed that the Clerk of Court's office never received the September 24, 2018 check for service. Plaintiff subsequently issued her second request for service of citation by letter dated November 1, 2018, requesting that the "hold" on service be lifted. The letter stated that plaintiff's counsel's legal assistant was submitting this again "because [she] discovered the check still has not cleared." On November 14, 2018, the Jefferson Parish Clerk of Court's office notified plaintiff's counsel that the service instructions on the petition listed an address but did not name the defendant plaintiff wished to serve. On that same day, plaintiff responded and requested that Bayou be served through "Corporation Service Company." On November 28, 2018, Bayou was served.

         On December 13, 2018, Bayou filed a motion for an extension of time within which to file pleadings in response to plaintiff's petition, which was granted. On January 8, 2019, Bayou filed a declinatory exception of insufficiency of service of process, alleging that service of process on Bayou was not requested within 90 days of filing of the petition, as required by La. C.C.P. art. 1201(C), [2] and thus the claims against it should be dismissed without prejudice pursuant to La. C.C.P. art. 1672(C).[3] Bayou argued that service was not requested on it until November 14, 2018, 128 days after the petition was filed, and thus service of process on it was not timely requested. Bayou argued that it did not expressly waive service in writing and that plaintiff would not be able to demonstrate "good cause" for the delay.

         In response, plaintiff argued that because service was timely requested on September 24, 2018, 77 days after the filing of suit, there is no insufficient service of process, and the exception should thus be overruled.

         The trial court orally denied the exception after arguments on March 12, 2019. In its oral reasons for judgment, the trial court noted that it was strictly construing the application of La. C.C.P. art. 1201(C) and stated that it believed that the very purpose of the article is to prevent a defendant from being prejudiced by a plaintiff who sat on a case for some extended period of time before the defendant had a chance to sufficiently discover the case. The trial court stated that there did not appear to be any prejudice to defendant in this case since defendant was made fully aware of the claim and plaintiff's allegations. The trial court stated that there was good cause not to apply La. C.C.P. art. 1201(C) since plaintiff's counsel did request service within the 90 days according to the September 24, 2018 letter to the Clerk of Court's office. The trial court noted that the law does not require "actual effecting of service, it just requires a request." The court further noted that when plaintiff's counsel realized that there was an issue, he sought to remedy it within thirty days. The written judgment denying the exception was signed on March 28, 2019.

         In its writ application, Bayou argues that the trial court erred because the Clerk of Court's office did not receive a request from plaintiff for service within 90 days of the suit being filed; rather, the request for service was not received by the Clerk of Court's office until November 14, 2018, some 128 days after commencement of the action. Bayou also argues that the trial court erred in finding good cause as to why service could not have been timely requested. Finally, Bayou argues that, though it had knowledge of the suit ...


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