Noretta Phillips v. Louisiana Stadium and Exposition District, Board of Commissioners / Gayle M. Benson

NORETTA PHILLIPS * NO. 2021-CA-0225

VERSUS *
COURT OF APPEAL
LOUISIANA STADIUM AND *
EXPOSITION DISTRICT, FOURTH CIRCUIT
BOARD OF COMMISSIONERS / *
GAYLE M. BENSON STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2019-12306, DIVISION “A”
Honorable Ellen M Hazeur, Judge
******
Judge Rosemary Ledet
******
(Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge
Rosemary Ledet)

Julius C. Ford
LAW OFFICE OF J. CHRISTOPHER FORD, LLC
927 Kerlerec Street
New Orleans, LA 70116

COUNSEL FOR PLAINTIFF/APPELLANT

Jabrina C. Edwards
LOUISIANA DEPARTMENT OF JUSTICE
330 Marshall Street, Suite 777
Shreveport, LA 71101

William David Coffey
LOUISIANA ATTORNEY GENERAL'S OFFICE
1450 Poydras Street, Suite 900
New Orleans, LA 70112

Jeff Landry, Attorney General
LOUISIANA DEPARTMENT OF JUSTICE
P. O. Box 94005
Baton Rouge, LA 70804--9005

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED
December 8, 2021

RML
EAL
RLB

This is a premises liability suit. The plaintiff, Noretta Phillips, appeals the

trial court’s judgment granting a declinatory exception of insufficiency of service

of process filed by defendant, the Louisiana Stadium & Exposition District

(“LSED”), and dismissing her claims against LSED. For the reasons that follow,

we affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On November 25, 2019, Ms. Phillips filed this suit claiming she suffered

injuries a year and a day earlier when she tripped and fell on a walkway at the

Superdome. In her suit, she named the following three defendants: (i) LSED,

alleged to be a political subdivision of the State; (ii) Gayle Benson, alleged to be

the lessee of the Superdome from the State; and (iii) LSED’s Board of

Commissioners (“the Board”), alleged to be LSED’s governing board. Only LSED

is a party to this appeal.

In her petition, Ms. Phillips requested service of process on LSED and the

Board through the State of Louisiana, Department of Justice, Office of Attorney

General, Jeff Landry at the Attorney General’s offices in Baton Rouge. On August

21, 2020, LSED filed a declinatory exception of insufficiency of service of

1

process.1 LSED argued that Ms. Phillips failed to comply with the requirements for

service of process on a state entity under La. R.S. 13:5107(A)(1) and La. R.S.

39:1538(D). Read together, LSED argued, these statutory provisions require that

all actions filed against the State of Louisiana or a state agency must be served

upon not only the Attorney General, but also the head of the state agency or entity

and the Louisiana Office of Risk Management. LSED argued that Ms. Phillips’

failure to serve the head of LSED or the Office of Risk Management mandated

dismissal of Ms. Phillips’ claims against LSED without prejudice, under La. R.S.

13:5107(D)(2).

In response, Ms. Phillips contended that the Louisiana Supreme Court

explicitly rejected LSED’s argument in Whitley v. State ex rel. Bd. Of Sup’rs of

Louisiana State, 11-0040 (La. 7/1/11), 66 So.3d 470. Ms. Phillips further

contended that the Supreme Court, in Whitley, held that service on the Attorney

General alone satisfied the service requirements of La. R.S. 13:5107(A). LSED

replied that the Whitley case—decided in 2011—was no longer applicable after La.

R.S. 13:5107 was amended in 2012.

At the hearing on LSED’s exception, the trial court granted LSED’s

declinatory exception. The trial court reasoned that a plaintiff filing suit against the

State or a state agency must request service of process on the Attorney General, the

Office of Risk Management, and the head of the defendant-state agency within

ninety days of commencing the suit. Further, the trial court found the Whitley case

was inapposite because it predated the amendments to La. R.S. 13:5107. Hence,

1
LSED also filed a peremptory exception of prescription. Because the trial court granted
LSED’s declinatory exception, the trial court denied LSED’s prescription exception as moot.
Thus, we do not address the prescription exception.

2

the trial court reasoned, LSED is a state agency,2 mandating service on the Office

of Risk Management and the head of LSED. Accordingly, the trial court granted

the exception of insufficiency of service and dismissed Ms. Phillips’ claims against

LSED without prejudice. This appeal followed.

DISCUSSION

Although Ms. Phillips assigns three errors on appeal,3 the crux of her

argument is that the trial court misinterpreted La. R.S. 13:5107 and La. R.S.

39:1538 to require that she not only request service upon the Attorney General, but

also upon the head of LSED and the Office of Risk Management within ninety

days of commencing suit. She argues that the Whitley case rejected this

interpretation. Thus, the sole issue before this Court is the sufficiency of Ms.

Phillips’ request for service on LSED through the Attorney General.

This court reviews a trial court’s judgment dismissing a matter for failure to

timely request service—granting a declinatory exception of insufficiency of service

of process—under the manifest error standard. See George v. ABC Ins. Co., 19-

0124, p. 3 (La. App. 4 Cir. 5/8/19), 271 So.3d 1289, 1291. This court, however,

applies a de novo standard of review in deciding questions of law. See Pierce

2
As previously stated and as discussed in more detail elsewhere in this opinion, LSED is not a
state agency; rather, LSED is a political subdivision of the State.
3
On appeal, Ms. Phillips assigns three errors by the trial court:

1. The trial court erred by granting LSED’s declinatory exception and dismissing Ms.
Phillips’ claims against LSED.

2. The trial court erred by misinterpreting La. R.S. 13:5107 to require that a plaintiff
request initial citation on three different State entities within ninety days of filing suit.

3. The trial court erred by misinterpreting La. R.S. 39:1538 to require that a plaintiff
request initial citation on three different State entities within ninety days of filing suit.

3

Foundations, Inc. v. Jaroy Const., Inc., 15-0785, p. 7 (La. 5/3/16), 190 So.3d 298,

303.

Before this court, the parties repeat the arguments they made before the trial

court, each citing differing interpretations of La. R.S. 13:5107(A) and La. R.S.

39:1538(D). These specific statutory provisions govern service of process in suits

against the State or a state agency. LSED is neither; rather, as Ms. Phillips

acknowledged in her petition, LSED is a political subdivision of the State.4 A

political subdivision is distinct from a state agency and is defined as “a parish,

municipality, and any other unit of local government, including a school board and

a special district, authorized by law to perform governmental functions.” La.

Const. of 1972, Art. 6, § 44(2).

In suits against a political subdivision, La. R.S. 13:5107(B) governs service

of process. Neither the statutory provisions relied upon by the parties—La. R.S.

13:5107(A) and La. R.S. 39:1538(D)—nor the jurisprudence construing those

statutory provisions—including the Whitley case—applies here. Those statutory

provisions and the jurisprudence construing them address service of process upon

the State or a state agency. Again, LSED is neither.

The governing statutory provision, La. R.S. 13:5107(B), provides as follows:

In all suits filed against a political subdivision of the state, or
any of its departments, offices, boards, commissions, agencies or
instrumentalities, citation and service may be obtained on any proper
agent or agents designated by the local governing authority and in
accordance with the laws of the state provided that the authority has
filed notice of the designation of agent for service of process with and
paid a fee of ten dollars to the secretary of state, who shall maintain
4
Article XIV, Section 47 of the Louisiana Constitution of 1921 provides, in pertinent part:
“There is hereby created the Louisiana Stadium and Exposition District, hereinafter simply
called the ‘District’, which shall be a body politic and corporate and political subdivision of the
State of Louisiana composed of all of the territory in the Parishes of Orleans and Jefferson.”
Article XIV, Section 47 was continued as a statute after ratification of the Louisiana Constitution
of 1972. See La. Const. Art. 14, § 16(A)(10).

4

such information with the information on agents for service of process
for corporations. If no agent or agents are designated for service of
process, as shown by the lack of such designation in the records of the
secretary of state, citation and service may be obtained on the district
attorney, parish attorney, city attorney, or any other proper officer or
person, depending upon the identity of the named defendant and in
accordance with the laws of the state, and on the department, board,
commission, or agency head or person, depending upon the identity of
the named defendant and the identity of the named board,
commission, department, agency, or officer through which or through
whom suit is to be filed against.

Accordingly, to effect service of process on LSED, Ms. Phillips was required, by

La. R.S. 13:5107(B), to serve either LSED’s designated agent or agents for service,

or, if no agent was designated, to serve the district attorney, parish attorney, city

attorney, or other proper officer and the head of the LSED Board of

Commissioners. Ms. Phillips, however, only requested service on LSED through

the Attorney General.

The record is devoid of any evidence that the Attorney General is LSED’s

designated agent for service. Indeed, LSED denies that the Attorney General is its

designated agent for service. Ms. Phillips, thus, failed to comply with La. R.S.

13:5107(B)’s requirements for service on a political subdivision.

Suits against a political subdivision of the State, such as LSED, are also

subject to La. R.S. 13:5107(D)(1), which provides, in pertinent part:

In all suits in which the state, a state agency, or political
subdivision, or any officer or employee thereof is named as a party,
service of citation shall be requested within ninety days of the
commencement of the action or the filing of a supplemental or
amended petition which initially names the state, a state agency, or
political subdivision or any officer or employee thereof as a party.

The Legislature’s use of the word “shall” in La. R.S. 13:5107(D)(1) indicates that a

request for service of process within ninety days of filing suit was mandatory.

Further, “the requirement that service upon defendant be requested within the

5

ninety-day period should reasonably be read to require: (1) an accurate request of

service (2) upon the proper agent for defendant.” Thomas v. Louisiana Dep't of

Pub. Safety & Corr., 02-0897, p. 6 (La. App. 1 Cir. 3/28/03), 848 So. 2d 635, 639.

Another pertinent provision is La. R.S. 13:5107(D)(2), which cross-

references La. C.C.P. art. 1672(C). It provides:

If service is not requested by the party filing the action within
the period required in Paragraph (1) of this Subsection, 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, or any officer or employee
thereof, upon whom service was not requested within the period
required by Paragraph (1) of this Subsection.

Article 1672(C) provides:

A judgment dismissing an action without prejudice shall be
rendered as to a person named as a defendant for whom service has
not been requested within the time prescribed by Article 1201(C) or
3955 upon the sustaining of a declinatory exception filed by such
defendant, or upon contradictory motion of any other party, unless
good cause is shown why service could not be requested, in which
case the court may order that service be effected within a specified
time.

La. C.C.P. art. 1672(C).

Applying these principles, we conclude that Ms. Phillips failed to accurately

request service upon LSED within ninety days of filing her petition. The

jurisprudence is well-settled that “mere confusion or inadvertence or mistake in

requesting service on the part of the plaintiff’s counsel is not a sufficient basis for

good cause.” Liberty Mut. v. Noble 04-727, p. 3 (La. App. 5 Cir. 11/30/04), 889

So.2d 1158, 1159 (collecting cases). Indeed, the trial court in this case recognized

6

this principle as applicable here, albeit citing the incorrect statutory provisions

regarding service on LSED. 5

The record, thus, supports a finding that there is no just cause for Ms.

Phillips’ failure to request service of process in compliance with La. R.S.

13:5107(B). As a result, the trial court, as mandated by La. R.S. 13:5107(D), did

not err in dismissing her claims against LSED without prejudice. See Johnson v.

Reg'l Transit Auth., 00-2647, pp. 2–3 (La. App. 4 Cir. 4/18/01), 785 So. 2d 1015,

1016 (“[T]he language of the statute indicates that a trial court has no discretion to

deny a motion to dismiss without prejudice when a petition against a political

subdivision of the State . . . has not been served within 90 days of the date the

petition is filed. No cases in Louisiana have allowed a trial court discretion to act

otherwise.”). Accordingly, we find no error in the trial court’s judgment granting

LSED’s declinatory exception of insufficiency of service of process.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

5
Although we find that the trial court’s reliance on La. R.S. 13:5107(B) in its reasons for
judgment was misplaced, we note that “[a]ppellate courts review judgments, not reasons for
judgment.” Wooley v. Lucksinger, 09-0571, 09-0584, 09-0585, 09-0586, p. 77 (La. 4/1/11), 61
So.3d 507, 572.

7