Albert Glen Davis v. State Of Louisiana Through

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #020
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 13th day of May, 2021 are as follows:
BY Crichton, J.:
2020-CC-01020 ALBERT GLEN DAVIS VS. STATE OF LOUISIANA THROUGH
THE LOUISIANA RACING COMMISSION, ET AL. (Parish of Calcasieu)
REVERSED AND RENDERED. SEE OPINION.
Hughes, J., dissents and assigns reasons.
Genovese, J., dissents.
Griffin, J., dissents.

05/13/21
S
UPREME COURT OF LOUISIANA
No
. 2020-CC-01020
A
LBERT GLEN DAVIS
VS.
STATE OF LOUISIANA THROUGH THE LOUISIANA RACING
COMMISSION, ET AL.
O
N SUPERVISORY WRIT TO THE 14TH JUDICIAL DISTRICT COURT,
PARISH OF CALCASIEU
CRI
CHTON, J.
This case presents a res nova legal issue: whether a suit against the state, in
which plaintiff fails to request service within 90 days and which was dismissed for
insufficient service of process, interrupts prescription on the second suit filed before
dismissal of the first. For the reasons set forth herein, we hold that the plain language
of La. R.S. 13:5107(D)(3) makes clear that the plaintiff’s second suit was untimely
and the first suit did not interrupt or suspend prescription as to the state defendants.
Accordingly, because the state defendants’ exception of prescription should have
been granted, the trial court’ s ruling denying the exception of prescription is
reversed.
BACKGROUND
In 2017, Albert Glen Davis filed suit against the Louisiana State R acing
Commission (“Commission”) as well as Edward Todd, DVM (“Dr. Todd”), and
Jocko Fontenot (collectively , “s tate defendants”), and several other individuals .
Plaintiff alleged he suffered damages due to the misidentification of his horse as the
winner of a horse race in December 2016.1 In this action, plaintiff requested service
1 According to the petition, plaintiff’s horse “Tough to the Bone” and another horse of similar size
and appearance, “Willieverwin,” were in the care of the same trainer . On December 20, 2016,
Willieverwin was entered into a race. As part of the pre-race examination, the trainer’s stablehands
presented a horse they identified as Willieverwin to Dr. Todd, the state veterinarian . P laintiff

2

on the Commission through its executive director, Charles A. Gardiner III, Mr.
Fontenot, and Dr. Todd, under the long- arm statute. Service was effected on the
Commission and Mr. Fontenot. Plaintiff was unable to serve Dr. Todd. He also failed
to request service on the Louisiana Attorney General or the Office of Risk
Management within ninety days of the commencement of the suit.2 In January 2019,
the state defendants filed an exception of insufficiency of service and a motion to
dismiss for failure to timely request service as required by La. R.S. 39:1538(D) and
La. R.S. 13:5107.3 The exception and motion were scheduled for hearing on March
19, 2019. Immediately following that hearing, the tri al court dismissed plaintiff ’s
suit without prejudice pursuant to R.S. 13:5107(D)(2). Plaintiff did not appeal this
judgment, and it is now final.4 La. C.C.P. arts. 2082, 2083(A), and 2087(A).
Meanwhile, on March 18, 2019, one day before the scheduled hearing,
plaintiff filed a second suit—the underlying action here — asserting t he same

alleges that the horse examined that morning was not Willieverwin, but was Tough to the Bone,
and further alleges that Dr. Todd “failed to detect” that the horse he examined was Tough to the
Bone. At the race that evening, Tough to the Bone, racing as Willieverwin, finished sixth.
On December 22, 2016, Tough to the Bone was entered into a race. During the pre-race procedure,
the trainer’s stablehands presented Willieverwin, rather than Tough to the Bone, to Dr. Todd for
examination, but identified the horse as Tough to the Bone. Plaintiff alleges that Dr. Todd “failed
to detect” that the horse was Willieverwin , not Tough to the Bone . At the race that evening,
Willieverwin, racing as Tough to the Bone, finished in first place, and plaintiff received proceeds
in the amount of $5,040. When the race was over, Mr. Fontenot, serving as the “ Test Barn
Official,” also failed to detect that the horse was not Tough to the Bone . The error was later
discovered by a “substitute state veterinarian,” and plaintiff was ordered to refund the award.
Plaintiff alleges he did not have the funds to make the repayment, and because of this, the racetrack
suspended him. He complains that he was forced to dispose of his ownership interest in
thoroughbred racehorses and can no longer enjoy horseracing and prays for relief.
2 The record establishes that the assistant attorney general advised plaintiff’s counsel of this defect
in March 2018, yet he never took curative steps. In his original opposition to the state defendants’
exception, plaintiff’s counsel deemed this an “oversight.”
3 La. R.S. 39:1538(D) provides that in claims against the state or its agencies, “process shall be
served upon the head of the department concerned, the office of risk management, and the attorney
general, as well as any others required by R.S. 13:5107.” La. R.S. 13:5107(A) requires that in all
suits filed against the state or a state agency, service “shall” be requested upon the attorney general
within 90 days of filing suit, and R.S. 13:5107(D)(1) and (2) provide that the action “shall” be
dismissed without prejudice as to the state if service is not requested within 90 days. See generally
Whitley v. State ex rel. Bd. of Supervisors of La. State Univ. Agr. Mech. College , 2011-0040 (La.
7/1/11), 66 So. 3d 470.
4 Because the dismissal of the first lawsuit is final, this opinion does not address the merits of the
dismissal. The transcript indicates that plaintiff’s attorney did not appear at the hearing.

3

allegations against the same state defendants as he did in the first suit. On March 19,
2019, plaintiff filed an amended peti tion for damages, naming additional non-state
defendants. He requested service on all defendants. Thus, the second suit was filed
one day before the exception of prescription was granted in the first suit.
In response to plaintiff’s second suit, the state defendants filed an exception
of prescription, asserting plaintiff’s 2019 petition was prescribed on its face, because
the alleged acts of negligence, for which the prescriptive period is one year, occurred
in December 2016. As to the dismissed 2017 suit, the state defendants asserted that
La. R.S. 13:5107(D)(3) applies and, pursuant to that statute, the filing of an earlier
action “shall not interrupt or suspend the running of prescription as to the state, state
agency, or political subdivision, or any of ficer or employee thereof.” Plaintiff
opposed the exception, arguing the second suit was timely because prescription was
interrupted under La. Civ. Code art. 3463.5 The trial court agreed, denying the state
defendants’ exception of prescription and finding that pursuant to La. Civ. Code art.
3463, prescription was interrupted by the filing of the first suit and continues as long
as the suit is pending. Because the plaintiff filed the second suit on March 18, and
did not dismiss the original suit until March 19, there was “no issue” as to
prescription. The state sought review and the Court of Appeal, Third Circuit, denied
the state defendants’ writ. This Court thereafter granted the writ. Davis v. State,
through the La. Racing Commission, et al., 20-1020 (La. 11/18/20), -- So. 3d --.
DISCUSSION
The objection of prescription is raised by the peremptory exception. La.
C.C.P. art. 927(A)(1). Ordinarily, the exceptor bears the burden of proof at the trial
of the exception. However, if prescription is evident on the face of the petition, the

5 La. Civ. Code art. 3463 provides, in pertinent part: “ An interruption of prescription resulting
from the filing of a suit in a competent court and in the proper venue or from service of process
within the prescriptive period continues as long as the suit is pending. . . .”

4

burden shifts to the plaintiff to show the action has not prescribed. Campo v. Correa,
01-2707 (La. 6/21/02), 828 So. 2d 502, 508. Where, as here, the petition alleges a
delictual action, the liberative prescription period is one year from the day the injury
or damage is sustained. La. C.C. art. 3492. Because plaintiff ’s alleged injury
occurred on December 20, 2016, and this suit was filed on March 18, 2019—over
two years later—it is plaintiff ’s burden to prove his action has not prescribed.
The trial court found that the first suit interrupted prescription under Civil
Code arts. 3462 and 3463. Article 3462 provides that prescription is interrupted
when the suit is filed “in a court of competent jurisdiction and venue.” Article 3463
then provides that interruption “continues as long as the suit is pending.” If this
general rule applies, plaintiff’s first suit, which was timely filed in a competent court
and proper venue, would have interrupted prescription until the first suit was
dismissed on March 19, 2019. The trial court held that, because the second suit was
filed before the first was dismissed, the second suit was timely.
We find the trial court’s reliance upon these general provisions was in error,
as it does not take into consideration the more specific statute, La. R.S.
13:5107(D)(3), related to service of state defendants under the Louisiana
Governmental Claims Act. Rules of statutory construction provide that where two
statutes deal with the same subject matter, they should be harmon ized if possible;
however, if there is a conflict, the statute specifically directed to the matter at issue
must prevail as an exception to the more general provision. LeBreton v. Rabito, 97-
2221 (La. 7/8/98), 714 So. 2d 1226 . Because Civil Code art. 3463 and La. R.S.
13:5107(D)(3) both address interruption of prescription, the question is whether the
two provisions can be harmonized.
La. R.S. 13:5107(D)(3) applies here and cannot be harmonized with La. C.C.
arts. 3462 and 3463. Revised Statute 13:5107(D)(3) provides:

5

When the state, a state agency, or a political subdivision, or any officer
or employee thereof, is dismissed as a party pursuant to this Section,
the filing of the action, even as against other defendants, shall not
interrupt or sus pend the running of prescription as to the state, state
agency, or political subdivision, or any officer or employee thereof;
however, the effect of interruption of prescription as to other persons
shall continue.

This statute is part of a larger scheme, La. R.S. 13:5101, et seq., known as the
Louisiana Governmental Claims Act, which “ applies to any suit in contract or for
injury to person or property against the state, a state agency, an officer or employee
of the state or a state agency arising out of the discharge of his official duties or
within the course and scope of his employment.” La. R.S. 13:5101(B). It is
uncontested that the Commission is a state agency as defined by La. R.S. 13:510 2,
and that Dr. Todd and Mr. Fontenot are employees of a state agency and were
discharging their official duties. See also La. R.S. 4:144(A) (creating the Louisiana
State Racing Commission).
In LeBreton, we found that the Medical Malpractice Act contains “special
provisions” for prescription and interruption, and noted that the legislative intent in
enacting those special provisions as part of the medical malpractice scheme was
“clear” and excluded the application of general codal articles. Id., 97-2221, p.10, 714
So. 2d at 1231. See also Borel v. Young, 989 So. 2d 42 (“LeBreton clearly stands for
the principle that medical malpractice claims are governed by the specific provisions
of the Medical Malpractice Act regarding suspension of prescription, to the
exclusion of the general codal articles on interruption of presc ription.”). The same
is true here — the Governmental Claims Act is a comprehensive statutory scheme
enacted by the Legislature to apply to claims made by litigants against the state. See
La. Const. art. 12 § 10(C) (directing the Legislature to “provide a procedure for suits
against the state, a state agency, or a political subdivision”). The prescription articles
contained therein have direct application to claims made against the state, its

6

agencies, and its employees, and apply to the exclusion of general Civil Code
provisions related to interruption.
Further, there is a n actual conflict between the code a rticles and La. R.S.
13:5107(D)(3). Civil Code articles 3462 and 3463 provide that prescription is
interrupted when the action is commenced, and interruption continues as long as the
suit is pending. On the other hand, La. R.S. 13:5107(D)(3) provides that when the
action is against the state and it is dismissed pursuant to the statute, the filing of the
action “shall not interrupt or suspend the running of prescription as to the state, state
agency, or political subdivision . . . .” In other words, the Civil Code articles address
generalities about when lawsuits interrupt prescription. In contrast, the more specific
statute provides for no interruption at all after a d ismissal under the subsection
where the state is a defendant (“shall not interrupt or suspend. . .”) . Those
fundamentally contrasting approaches— that is, in general cases versus when the
state is a defendant— prevent harmonization.
Having foun d that La. R.S. 13:5107(D)(3) applies, we turn to the
interpretation of the statute , in which we are guided by well-established rules of
statutory construction. Legislation is the solemn expression of the legislative will;
thus, the interpretation of legislation is primarily the search for legislative intent. La.
Civ. Code art. 2; Kirt v. Metzinger , 19-1162, p.6 (La. 4/3/20), -- So. 3d --. The
starting point for interpreting any statute is the language of the statute itself, as the
text of the law is the best evidence of legislative intent. See La. R.S. 1:4 (“When the
wording of a Section is clear and fre e of ambiguity, the letter of it shall not be
disregarded under the pretext of pursuing its spirit.”); La. R.S. 24:177B(1) (“The
text of a law is the best evidence of legislative intent. ”). When the law is clear and
unambiguous and its application does not lead to absurd consequences, its language
must be given effect , and its provisions must be construed to give effect to the
purpose indicated by a fair interpretation of the language used. La. Civ. Code art. 9.

7

Words and phrases must be read in context and construed according to the common
and approved usage of the language. La. R.S. 1:3. See also Kirt, 19-1162, p.6, -- So.
3d at --.
The narrow legal issue that remains is whether La. R.S. 13:5107(D)(3)
provides that a suit against the state, in which plaintiff fails to request service within
ninety days, has the effect of interrupting prescription on a second, substantially
similar suit, filed prior to the dismissal of the first suit. The first clause of this statute
provides: “When the state, a state agency, or a political subdivision, or any officer
or employee thereof, is dismissed as a party pursuant to this Section . . .” Plaintiff’s
first suit was dismissed without prejudice pursuant to La. C.C.P. art. 1672(C) and
La. R.S. 13:5107(D)(2), because plaintiff failed to serve the Attorney General or the
Office of Risk Management within 90 days of the commencement of the suit. The
article therefore applies to this case . The second clause states: “[T]he filing of the
action, even as against other defendants, shall not interrupt or suspend the running
of prescription as to the state, state agency, or political subdivision, or a ny officer
or employee thereof. . .” (emphasis added). Since La. R.S. 13:5107(D)(3) mandates
that the filing of the dismissed action “shall” not interrupt or suspend the running of
prescription against state defendants, the statute’s plain language prohibits plaintiff
from relying upon his original petition in any manner for the interruption of
prescription against the state defendants here. La. R.S. 1:3 (“The word ‘ shall’ is
mandatory.”). As a result, the first suit did not serve to interrupt or suspend the
running of prescription against the state defendants, and the claim prescribed on
December 20, 2017. Under the plain language of the statute, plaintiff’s initial
petition had no effect.
This proposition finds support in this Court’s unanimous decision in Bordelon
v. Medical Center of Baton Rouge , 03-0202 (La. 10/21/03), 871 So. 2d 1075, in
which we held t hat, in the context of non- state defendants, the first- filed suit

8

interrupted prescription even if service was not requested within 90 days. In dicta ,
the Court distinguished that situation from one where the state is a defendant:
Prescription is interrupted by the timely filing of a lawsuit in a court of
competent jurisdiction and venue, and continues as long as that suit is
pending. A request for service of citation upon the defendant or
defendants is required within 90 days, afte r which time, the court, on
its own motion or that of any other party, shall dismiss from the action
the defendant against whom service was not requested, unless good
cause for non -service within 90 days is shown. However, unless that
unserved party is the state, that lawsuit, although not timely served,
interrupts prescription, unless the court finds that failure to request
service was due to the plaintiff’s bad faith. In that case, interruption of
prescription is considered never to have occurred.
Id., 03-0202, p. 11, 871 So. 2d at 1084 (emphasis added) .
6 Our decision is also
supported by the interpretation of the federal appellate court, applying Louisiana
procedural law. See Cruz v. State of La. ex rel. Dept. of Public Safety & Corrections,
528 F.3d 375, 381 (finding that, under La. R.S. 13:5107(D), “a suit brought against
an agency and later dismissed for failure to timely serve does not interrupt
Louisiana’s prescriptive period”).
The last clause of La. R.S. 13:5107(D)(3) provides further support for our
holding. It states: “. . . however, the effect of interruption of prescription as to other
persons shall continue.” This clause would be rendered meaningless if the remainder
of the statute, under which the filing “shall not” interrupt prescription, did not apply
to the state defendants here. See Kirt, 19-1162, p.6, -- So. 3d at -- (“It is presumed

6 While the facts giving rise to these cases differ, the appellate courts of our state have similarly
interpreted this provision. See, e.g., Wright v. State on Behalf of Alleyn, 2019- 0499 (La. App. 4
Cir. 8/5/20), -- So. 3d -- (Ledet, J., joined by Chase, J., concurring) (“Given that La. R.S.
13:5107(D)(3) applies here, the filing of the initial suit did not serve to interrupt prescription.
Contrary to the trial court ’s conclusion, the interruption of prescription provided for in La. C.C.
art. 3463 does not apply here. . . .”); Pate v. Reg. Transit Auth., 08-1147 (La. App. 4 Cir. 3/11/09),
8 So. 3d 744 (“La. C.C. arts. 3462 and 3463 are rendered inapplicable to a situation in which
service was not requested on ‘the state, a state agency, or a political subdivision, or any officer or
employee thereof’ within ninety days of the filing of an otherwise timely lawsuit in a competent
court and a proper venue. . . . The Louisiana Supreme Court impliedly recognized this result in
Bordelon. . . .”); Matthews v. City of Bossier City, 42-202, p.6 (La. App. 2 Cir. 8/15/07), 963 So.
2d 516, 519-20 (“La. R.S. 13:5107(D)(3) unequivocally prohibits plaintiff from relying upon his
original petition in any manner for the interruption of prescription against the governmental
defendants.”); Borrello v. City of Kenner, 99-420 (La. App. 5 Cir. 11/30/99), 750 So. 2d 230, 234
(“Once a governmental entity is dismissed under [La. R.S. 13:5107(D)], the filing of the action
shall not interrupt prescription. Therefore, . . .the filing of the original petition did not interrupt
prescription.”).

9

that every word, sentence, or provision in a law is intended to serve some useful
purpose, that some effect is given to each such provision, and that no unne cessary
words or provisions were employed. Courts are bound to give effect, if possible, to
all parts of a statute and to construe no sentence, clause, or word as meaningless and
surplusage if a construction giving force to and preserving every word can
legitimately be found. ”) (internal quotations omitted). If La. R.S. 13:5107(D)(3)
were interpreted as plaintiff proposes, the effect of this clause would be gutted.
Plaintiff argues that the word “when” at the beginning of the statute has a
temporal component—that is, “when” the state is dismissed, the interruption ceases
to exist. The corollary of this statement is that before dismissal, the interruption
remains in effect. Here, because plaintiff filed his second suit one day before the first
was dismissed by the trial court, he argues that the interruption remained in effect
before the filing of the second suit. This argument cannot be squared with the
statute’s plain language, as explained above. In any event, th e term “when” is not
always temporal in nature. Though the first definition of “when” is “at or during the
time that,” the second definition is “in the event that.” See Merriam-Webster.com
Dictionary, 2021, https://www.merriam-webster.com. Thus, contrary to plaintiff’s
argument, it is not clear that the legislature intended the word “when” to be temporal,
as that interpretation would render much of the rest of the statute meaningless.
Rather, it is apparent that the legislative intent was to provide that, in the event that
the state is dismissed as a party, the earlier action does not interrupt or suspend
prescription as to the state. La. R.S. 1:3 (“Words and phrases shall be read with their
context and shall be construed according to the common and approved usage of the
language.”).
7

7 Plaintiff also argues, without citation, that La. R.S. 13:5107(D)(3) violates the equal protection
clause. This argument is without merit. It is presumed that the L egislature acts within its
constitutional authority in promulgating a legislative instrument, and this court must construe a
legislative instrument so as to preserve its constitutionality when it is reasonable to do so. La.
Fed’n of Teachers v. State , 13- 0120, p.22 (La. 5/7/13), 118 So. 3d 1033, 1048. A person

10

Finally, our decision is supported by the fact that, under plaintiff ’s proposed
interpretation, and a s demonstrated by the facts of this case, a party could fail to
properly request service within 90 days, but “cure” the defect himself by filing a new
suit prior to the issuance of the judgment of dismissal in the first suit. In effect,
plaintiff’s interpretation would largely eviscerate any consequences for failing to
comply with the 90-day service requirement, permitting the plaintiff to make an end-
run around the legislative prerogative to require service on the state as set forth in
the statute, and render meaningless the purpose of the statute in the Governmental
Claims Act.
CONCLUSION
For the reasons set forth above, the ruling of the trial court is reversed. The
state defendants’ exception of prescription is sustained, and the plaintiff ’s claims
against the state defendants are dismissed with prejudice.
REVERSED AND RENDERED

challenging the constitutionality of a statute “must point to a particular provision of the constitution
that would prohibit the enactment of the legislative instrument and must demonstrate clearly and
convincingly that it was the constitutional aim of that provision to deny the legislature the power
to enact the legislative instrument in question.” Id. With respect to this statute, La. Const. art. 12
§ 10(C) directs the Legislature to provide a procedure for suits against state entities, including
permitting limitations on liability and procedures, which the Legislature has done in enacting the
Governmental Claims Act. In any event, plaintiff has not met the high burden required to overcome
the presumption of constitutionality, failing to demonstrate “clearly and convincingly” that his
rights were violated.

SUPREME COURT OF LOUISIANA
No. 2020-CC-01020
ALBERT GLEN DAVIS
VS.
STATE OF LOUISIANA THROUGH THE LOUISIANA RACING
COMMISSION, ET AL.
On Supervisory Writ to the 14th Judicial District Court, Parish of Calcasieu
HUGHES, J., dissents with reasons.
Generally, prescription statutes are strictly construed against prescription and
in favor of the claim sought to be extinguished by it; thus, of two possible
constructions, that which favors maintaining, as opposed to barring an action, should
be adopted. Wells v. Zadeck, 2011-1232 (La. 3/30/12) 89 So.3d 1145, 1149; Carter
v. Haygood, 04-0646 (La. 1/19/05), 892 So.2d 1261, 1268; Bailey v. Khoury , 04-
0620 (La. 1/20/05), 891 So.2d 1268.
05/13/21