Ashley N. Miller and Drusilla Parker v. Joseph P. Hirstius and American Alternative Insurance Corporation

STATE OF LOUISIANA

Ic j
COURT OF APPEAL

ol&l FIRST CIRCUIT

2022 CA 0740

ASHLEY N. MILLER AND DRUSILLA PARKER

VERSUS

JOSEPH P. HIRSTIUS AND AMERICAN ALTERNATIVE
INSURANCE CORPORATION

JUDGMENT RENDERED:
MAR 15 2023

Appealed from the Twenty -Second Judicial District Court
Parish of St. Tammany • State of Louisiana
Docket Number 2020- 14674 • Division H

The Honorable Alan A. Zaunbrecher, Presiding Judge

Douglas M. Schmidt COUNSEL FOR APPELLANTS
Peter R. Borstell PLAINTIFFS— Ashley N. Miller and
New Orleans, Louisiana Drusilla Parker

Thomas S. Schneidau COUNSF,L FOR APPELLEES
Slidell, Louisiana DEFENDANTS --- City of Slidell and
Joseph P. Hirstius

BEFORE: WELCH, PENZATO, AND LANIER, JJ,

WELCH, J.

We are called upon to decide the procedural question of what constitutes a

valid and timely " request" for service of citation upon state entities; specifically, we

must decide whether a request for service is considered timely if a plaintiff does not

pay all of the sheriff' s service fees within 90 days of commencing suit. Further, if

service was not timely requested, we must determine whether, under La. C. C. P. art.

1672( 0), good cause was shown why service could not be timely requested. In this

case, plaintiffs appeal the trial court' s judgment sustaining defendants' declinatory

exception urging insufficiency of service of process and dismissing plaintiffs' claims

against defendants, the City of Slidell and its employee, Joseph P. Hirstius, without

prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 2, 2020, plaintiffs, Ashley N. Miller and Drusilla Parker, fax -

filed a petition for damages to the Twenty -Second Judicial District Court for the

Parish of St. Tammany. The petition named the City of Slidell (" the City"); its

employee, Joseph P. Hirstius; and its insurer, American Alternative Insurance

Company (" AAIC"), as defendants. The petition included a request for service of

citation on all three defendants.' That same day, plaintiffs received a fax

confirmation from the clerk of court advising that the " total amount" of $535. 00 was

due within seven days, exclusive of legal holidays. Plaintiffs timely mailed a copy

The request for service stated:

PLEASE SERVE:
1) The Defendant Joseph P. Hirstius
2112 Sgt. Alfred Dr.
Slidell, LA 70458
2) The Defendant City of Slidell, through its Chief Executive Officer
The Honorable Greg Cromer, Mayor
2055 Second Street
Slidell, LA 70460
3) The Defendant American Alternative Insurance Company
Through the Louisiana Secretary of State
8585 Archives Ave, Baton Rouge, LA 70809

V

of their original petition and a check in the amount of $535. 00 to the clerk of court.

The clerk of court received plaintiffs' original petition and the $ 535. 00 check two

days later on November 4, 2020, and generated a receipt acknowledging payment.

Approximately one month later, on December 1, 2020, the clerk of court

issued the citations to be served on the three defendants. On December 2, 2020, the

St. Tammany Parish Sheriff' s Office (" sheriff') sent an email to a private email

address purportedly owned by plaintiffs' counsel in his private capacity. The body

of the email stated, " Please see the attached letter." The attached letter stated that

sheriffs service fees in the amount of $77. 10 were due and that failure to pay the

fees would result in a return of the citations to the clerk of court.

On December 9, 2020, the Sheriff for East Baton Rouge Parish served AAIC

though its agent for service of process, the Louisiana Secretary of State. On

December 31, 2020, defense counsel emailed plaintiffs' counsel, noting his belief

that the City and Mr. Hirstius had not yet been served, but that AAIC had been

served. On January 5, 2021, the sheriff sent a second email to plaintiffs' counsel at

the same private email address. Like the first email, an attached letter notified

plaintiffs' counsel that sheriff' s service fees were due. This time, the attached letter

indicated that $66. 84 was due.

The sheriff held the two citations for another month. Then on February 4,

2021- 94 days after plaintiffs requested service— the sheriff returned the citations

for the City and Mr. Hirstius to the clerk of court. The returned citations included a

page stamped " RTC INSUFFICIENT FUNDS TO PROCESS" and were filed into

the record.

On February 8, 2021--- 98 days after plaintiffs requested service ---the clerk of

court mailed plaintiffs notices that the sheriff returned the citations for the City and

Mr. Hirstius to its office due to insufficient funds. The clerk of court requested

further service instructions."

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Prior to receipt of the " insufficient funds" notices mailed by the clerk of court,

the parties had entered into settlement negotiations. For the next five months, the

parties attempted to settle plaintiffs' claims, during which all parties agreed to an

indefinite extension" to file responsive pleadings, as shown by an email sent by

defense counsel to plaintiffs' counsel dated March 11, 2021. Once settlement

negotiations broke down, defendants filed an answer and affirmative defenses. The

City and Mr. Hirstius also fled a declinatory exception raising the objection of

insufficiency of service of process on July 27, 2021— approximately 267 days after

suit was filed. Therein, defendants argued that plaintiffs failed to request service on

the City and Mr. Hirstius and pay the service fees within 90 days of filing suit under

La. C. C.P. art. 1201( C) and La. R.S. 13: 5107( D).

On August 9, 2021- 280 days after suit was filed— plaintiffs requested re -

issuance of the citations for service on the City and Mr. Hirstius and paid $ 200. 00

to the clerk of court. Mr. Hirstius was personally served on September 28, 2021-

330 days after suit was filed.

However, the sheriff again emailed plaintiffs' counsel' s private email address

to inform him that outstanding sheriffs service fees in the amount of $6. 80 were

due. On October 12, 2021, the clerk of court mailed plaintiffs a notice that the sheriff

had returned the citation for the City due to insufficient funds. The clerk of court

requested " further service instructions." On October 26, 2021, plaintiffs requested

the re -issuance of the citation for service on the City and paid $ 145. 00 to the clerk

of court relative thereto. On November 24, 2021- 387 days after plaintiffs' suit was

filed— the City was served through its agent for service of process, the Mayor of the

City of Slidell.

Plaintiffs filed oppositions to the defendants' exception, arguing that they

acted in good faith by requesting service of citation on all defendants within 90 days

of filing suit and paying the $ 535. 00 " total amount" as directed by the clerk of court.

Plaintiffs' counsel argued that when hand -delivering original petitions to the clerk

of court, he " always brings additional pleadings and checks in case a problem arises

such as the [ sheriff) needs to be paid service fees," but in this case, he was prevented

from entering the clerk of court' s office in person due to COVID- 19 restrictions, so

he had to mail the original petition and a $ 535. 00 check to the clerk of court.

Plaintiffs contended that at the time of filing, they " were never informed that

separate fees were due the sheriff's office until the ninety[ -]day period ran."

Emphasis removed). The plaintiffs further argued that the same
attorney

represented all three defendants, so once AAIC was formally served, all defendants

had formal notice of this litigation." Finally, plaintiffs averred that the parties

agreed to " stay all proceedings while they worked on a settlement of the case,"

thereby waiving citation and service.

The trial court held a hearing on defendants' exception on January 27, 2022,

and sustained the exception. The trial court signed a judgment on February 11, 2022,

in conformity with its oral ruling, sustaining the declinatory exception raising the

objection of insufficiency of service of process filed by the City and Mr. Hirstius

and dismissing those defendants without prejudice.2 The plaintiffs now appeal.'

2 Defendants argue that because the trial court' s judgment disposes of only two out of the three
defendants, it is a partial judgment that is not subject to an immediate appeal absent a designation
by the court after an express determination that there is no just reason for delay. However, pursuant
to La. C. C. P. art. 1915( A)( 1), where a party is dismissed from a suit, the judgment is final and
there is no requirement for a designation of finality. See Cavalier v. Rivere' s Trucking, Inc.,
2003- 2197 ( La. App. 1st Cir, 9117104), 897 So.2d 38, 40; Bridges v. Smith, 2001- 2166 ( La. App.
1st Cir. 9127/ 02), 832 So. 2d 307, 309 n.4, writ denied, 2002- 2951 ( La. 2114103), 836 So. 2d 121.
Accordingly, we find that the trial court' s February 11, 2022 judgment is a final, appealable
judgment.

Plaintiffs timely filed a petition for suspensive appeal on March 2, 2022. The trial court signed
an order of appeal on March 14, 2022, notice of which was transmitted by the clerk of court to the
parties on March 25, 2022. In accordance with La. C. C. P. arts. 2127 and 2128, plaintiffs designated
portions of the record to constitute the record on appeal. See Uniform Rules, Courts of Appeal,
Rules 21 to 2- 1. 16; Bezet v. Original Libr. Joe' s, Inc., 2001- 1586 ( La. App. 1St Cir. 6/21102),
835 So.2d 472, 475.

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LAW AND DISCUSSION

Plaintiffs argue the trial court erred in sustaining defendants' declinatory

exception raising the objection of insufficiency of service of process. Plaintiffs

contend that they timely fax -filed their petition for damages and complied with all

requirements of La. R.S. 13: 550. Plaintiffs further argue they validly and timely

requested service of citations within 90 days of commencing their suit against

defendants, in accordance with La. C. C.P. art. 1201( C) and La. R. S. 13: 5107( D).

On appeal, the trial court' s dismissal of a suit for failure of the plaintiff to

timely request service is subject to the manifest error standard of review. Jones v.

Iberville Parish Council, 2012- 0391 ( La. App. I" Cir. 1112112), 111 So. 3d 83, 85.

Under the manifest error standard, in order to reverse a trial court' s determination of

fact, an appellate court must review the record in its entirety and find that ( 1) a

reasonable factual basis does not exist for the finding, and ( 2) the record establishes

that the factfinder is clearly wrong or manifestly erroneous. Allerton v. Broussard,

2010- 2071 ( La. 12/ 10/ 10), 50 So. 3d 145, 147. However, when the facts are not

disputed and the issue before this Court is whether the trial court properly interpreted

and applied the law, the standard of review for questions of law is simply a review

of whether the trial court was legally correct or incorrect. Lathan Company, Inc.
1St

v. Division of Administration, 2017- 0396 ( La. App. Cir. 1/ 24/ 19), 272 So. 3d 1,

4, writ denied, 2019- 0331 ( La. 4129119), 268 So. 3d 1036.

Louisiana Code of Civil Procedure article 1201( C) provides:

Service of the citation shall be requested on all named
defendants within ninety days of commencement of the
action. When a supplemental or amended petition is filed
naming any additional defendant, service of citation shall
be requested within ninety days of its filing, and the
additional defendant shall be served with the original
petition and the supplemental or amended petition. The

defendant may expressly waive the requirements of this
Paragraph by any written waiver. The requirement
provided by this Paragraph shall be expressly waived by a
defendant unless the defendant files, in accordance with

R

the provisions of Article 928, a declinatory exception of
insufficiency of service of process specifically alleging the
failure to timely request service of citation.

In particular, La. R. S. 13: 5107( D)( 1) and ( 2) govern the requisite period of service

of citation on a political subdivision or employee thereof, such as the City and Mr.

Hirstius.4 As set forth in La. R.S. 13: 5107( D)( 1), 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.

Furthermore, ' Jiff service is not requested by the party filing the action within the

90 -day] period— the action shall be dismissed without prejudice, after contradictory

motion as provided in Code of Civil Procedure Article 1672( C), as to the— political

subdivision...
upon whom service was not requested within the [ 90 -day] period[.]"

La. R. S. 13: 5107( D)( 2). Louisiana Code of Civil Procedure 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.

None of these statutes require that a defendant actually be served within 90

days of the plaintiff' s filing of the petition— only that service be " requested." See

Lockett v. Reese, 2004- 0328 ( La. App. 4"' Cir. 412$ 104), 874 So. 2d 913, 916.

Louisiana Code of Civil Procedure article 1202 sets out the requirements for a valid

citation and service:

4
According to La. R. S. 13: 5102( B)( 1), the City is classified as a political subdivision, and as such,
service in accordance with La. R.S. 13: 5107( D)( 1) applies to the City and its employee.

7

The citation must be signed by the clerk of the court
issuing it with an expression of his official capacity and
under the seal of his office; must be accompanied by a
certified copy of the petition, exclusive of exhibits, even if
made a part thereof, and must contain the following:

1) The date of issuance;

2) The title of the cause;

3) The name of the person to whom it is addressed;

4) The title and location of the court issuing it; and

5) A statement that the person cited must either comply
with the demand contained in the petition or make an
appearance, either by filing a pleading or otherwise, in the
court issuing the citation within the delay provided in
Article 1001 under penalty of default.

Under La. C. C. P. art. 1202, the request for service is made to the clerk of court, not

the sheriff. Parker v. Rite Aid Corp., 2003- 0208 ( La. App. 4" Cir. 3/ 26103), 843

So. 2d 1140, 1140- 41, writ denied, 2003- 1152 ( La. 6/ 20/ 03), 847 So. 2d 1237.

Although La. R.S. 13: 5107( D)( 1) clearly requires that service of citation be

requested" within 90 days of the commencement of the action, the statute does not

specify the manner of making such request or when a request is deemed to be made.

Tranchant v. State, 2008- 0978 ( La. 1/ 21/ 09), 5 So. 3d 832, 835. In the absence of

such specificity, plaintiffs in the instant matter argue that service was requested on

November 2, 2020, the date plaintiffs filed their petition with the clerk of court by

facsimile transmission. The record on appeal reflects that plaintiffs complied with

all fax -filing requirements pursuant to La. R.S. 13. 850. Defendants, on the other

hand, argue that because plaintiffs failed to pay the sheriff' s service fees with respect

to service of the citations for the City and Mr. Hirstius within 90 days of filing suit,

plaintiffs failed to validly and timely request service. Defendants contend that La.

C. C. P. art. 1241( C) and La. R.S. 13: 5107( D) require that a " request" for service be

accompanied with payment of the service fees or an order granting pauper status. In

support of their position that service of citation is not considered " requested" until

N.

the clerk of court receives a request for service and payment of the required fees or

an order granting pauper status, defendants cite Methvien v. Our Lady of the Lake,

2020- 1081 ( La. App. V Cir. 4/ 16/ 21), 318 So. 3d 329, 332, which relies on the

holding in Jenkins v. Larpenter, 2004- 0318 ( La. App. I` Cir. 3124105), 906 So.2d

6565 659, writ denied, 2005- 1078 ( La. 6/ 17/ 05), 904 So. 2d 711. 5

To determine whether plaintiffs timely requested service, we must ascertain

what constitutes a " request" for service pursuant to La. C. C. P. art. 1201( C) and La.

R. S. 13: 5107( D). The Louisiana Supreme Court answered this question in

Tranchant when it declared " the ordinary meaning of the word `request,' without

more, contemplates a two-party transaction involving one who asks that something

be done and one who does what is asked. Thus, for purposes of La. R. S.

13: 5107( D)( 1), service of citation should be deemed ` requested' when the clerk

receives service instructions from the plaintiff."' Tranchant, 5 So. 3d at 836. This

Court recently took that declaration one step further in Methvien. In that case, this

Court held that a patient did not timely request service of citation on the defendant

hospital within 90 days of commencing a medical malpractice action under La.

C. C. P. art. 1201( C) because the patient did not pay the necessary service fees to the

5 The Jenkins court considered whether an inmate' s request for service was valid and timely under
La. R. S. 13: 5107( D). The inmate requested service of the petition on the defendants and
simultaneously filed a request to proceed in forma pauperis. Jenkins, 906 So. 2d at 657. The trial
court denied inmate' s pauper application and sent him notice of the denial. Thereafter, the
defendant moved to dismiss inmate' s suit for failure to timely request service; the trial court
granted the dismissal. In affirming the trial court' s dismissal of inmate' s suit for failure to timely
request service on the defendant, the Jenkins court held that " a request for service without payment
of required fees, or without leave of court excusing such payment because ofpauper status, simply
is no proper request at all." Jenkins, 906 So. 2d at 659 ( emphasis added). The Jenkins court noted
that inmate' s service request was not accompanied by payment of any required fees— neither clerk
of court filing fees nor sheriff' s service fees— and that inmate had been denied pauper status.
Moreover, inmate failed to pay any fees for " well over ten months" after receiving notice of the
denial of his request to proceed in forma pauperis, and no good cause was shown for such a failure.
Jenkins, 906 So. 2d at 659.

It should be noted that there are stark differences between Tranchant and the present matter—
namely, Mr. Tranchant' s attorney initially requested that service be withheld, while in the case
before us, service was never withheld. Further, the core issue in Tranchant was whether the 90 -
day time limit is satisfied when a letter containing service instructions is mailed versus when a
letter containing service instructions is received by the clerk of court. See Tranchant, 5 So. 3d at
833, 835.

E

sheriff until after the 90 -day period for service lapsed. Methvien, 318 So. 3d at 332.

The plaintiff in Methvien fax -filed a petition for damages that included a request

that the defendant be served through its agent for service of process. The plaintiff

received a fax confirmation from the clerk of court, noting that the plaintiff owed

487. 00 in filing fees. There was a line on the fax confirmation to list any fees owed

to the sheriff for service; however, that line was blank. The plaintiff paid the $487.00

to the clerk of court as provided on the fax confirmation. Nearly seven months later,

the defendant filed an exception of insufficiency of service of process and motion

for involuntary dismissal in which it asserted that the plaintiff failed to property

request service of process within 90 days of the commencement of the action. In

support of its exception, the defendant submitted a notice mailed by the clerk of

court (" Message Reply") to the plaintiff s counsel approximately ten days after he

filed suit, which indicated that the plaintiff owed additional sheriff' s service fees in

the amount of $40.08. Methvien, 318 So. 3d at 331- 32. The plaintiffs counsel

denied receiving the " Message Reply" notice from the clerk of court. Methvien, 318

So.3d at 334. After a hearing, the trial court sustained the defendant' s exception,

granted its motion for involuntary dismissal, and dismissed all of the plaintiff' s

claims against the defendant without prejudice. Methvien, 318 So. 3d at 332. On

appeal, this Court noted that "[ s] ervice of citation is not considered requested until

the clerk receives a request for service and payment of the required fees or an order

granting pauper status." Methvien, 318 So. 3d at 332 ( citing Jenkins, 906 So. 2d at

658- 59) ( Emphasis added). Since it was undisputed that the plaintiff failed to pay

the fees to the sheriffs office within 90 days of filing the petition, this Court held

service was not timely and affirmed the trial court. Methvien, 318 So. 3d at 332.

The Methvien court interpreted Jenkins to require timely payment of all fees

owed, including service fees to the sheriff. In the instant case, the trial court found

that plaintiffs requested service in their petition but did not pay the service fees to

10

the sheriff within 90 days of filing their petition. The City and Mr. Hirstius were not

served until after they filed the exception, which was approximately 387 and 330

days, respectively, after plaintiffs' petition was filed. Thus, the trial court, like the

court in Methvien, concluded that service was not requested within 90 days of the

suit' s commencement because payment of the required sheriffs fees was not timely.

In light ofthis Court' s ruling in Methvien, we find no error in the trial court' s finding

that service was not timely requested.'

Upon sustaining the exception, the trial court was obligated under La. C.C.P.

art. 1672( C) to dismiss plaintiffs' claims against the City and Mr. Hirstius without

prejudice, unless good cause was shown why service could not be requested.

Therefore, we must next determine whether the trial court erred in finding that no

good cause was shown. As stated by this Court in Methvien, 318 So. 3d at 333- 34:

Although " good cause" is not defined in the article,
Louisiana courts have strictly construed the good cause
requirement. Barnett v. Louisiana State University
Medical Center -Shreveport, 2002- 2576 ( La. 2/ 7/ 03),
841 So. 2d 725, 726; Jones, 111 So. 3d at 85. Confusion
over proper service information or inadvertence by the
plaintiff's counsel are not enough to support a finding of
good cause. See Norbert v. Loucks, 2001- 122.9 ( La.
6129101), 791 So.2d 1283, 1285.

The jurisprudence has consistently placed some

responsibility on the party and attorney and found no good
cause under La. Code Civ. P. art. 1672( C) when the
attorney could have taken steps to verify service,

particularly after a long period of time.

When, on the face of the pleadings, the 90 -day time limit for requesting service has

been exceeded without request, the burden of proof is upon the party alleging " good

cause" to show " why service could not be requested." La. C. C. P. art. 1672( C);

This Court is bound by the law of the circuit to follow our prior decisions. See Garrett v. K &
B Machine Works, Inc., 2015- 1381 ( La. App. VY Cir. 2/ 26/ 16), 191 So. 3d 1074, 1076, writ
denied, 2016- 0581 ( La. 6/ 17/ 16), 194 So. 3d 1110.

11

Freeman v. Ochsner Clinic Foundation, 2020- 283 ( La. App. 5" Cir. 11110120),

307 So. 3d 335, 337.

Plaintiffs cited several cases that have addressed what constitutes good cause

under La. C. C.P. art. 1672( C). In Anyanwu v. University Medical Center

Management Corp., 2015- 0066 ( La. App. 1ST Cir. 9/ 21/ 15), 2015 WL 5547480 at

2 ( unpublished), Ms. Anyanwu filed a petition for damages against the Sheriff for

East Baton Rouge Parish, among other defendants, and attached an in forma

pauperis affidavit with her petition, which was ultimately denied. Thereafter, Ms.

Anyanwu submitted payment of $710.00 to the clerk of court approximately 78 days

after filing her petition. The sheriff was not served, however, until 207 days after

Ms. Anyanwu filed her petition; accordingly, he filed a declinatory exception of

insufficiency of service of process, which the trial court sustained. This Court

reversed, finding that Ms. Anyanwu paid all fees necessary to serve the defendants

named in her petition within the 90 -day period. The sheriff, who was not served

within 90 days, had incorrectly argued on appeal that the service fees were not paid

within the 90 -day period. Anyanwu, 2015 WL 5547480 at * 2- 3. In Anyanwu, all

necessary fees were paid by the plaintiff within 90 days of filing suit to effect service;

in the present case, however, not all necessary fees were paid by the plaintiffs within

90 days of filing suit to effect service. Therefore, Anyanwu has no bearing on the

case before us.

Plaintiffs also cite Covington v. Town of Jackson, No. CV- 19- 201- JWD-

RLB ( M.D. La. 2/ 20/20), 2020 WL 838293 at * 2 ( unpublished). In that case, Mr.

Covington filed his petition for damages against a political subdivision and its

employee; he also requested to proceed in forma pauperis. The clerk of court sent

Mr. Covington a bill for $ 174. 50, which he promptly paid. Approximately 146 days

after filing his petition and receiving no answer from the defendants, Mr. Covington

inquired with the clerk of court, who informed him that an additional $ 325. 00 was

12

due to complete service. Mr. Covington paid the additional fee that same day and

service of his petition was effectuated on the defendants 155 days after filing. The

defendants removed the case to federal court and sought dismissal of Mr.

Covington' s suit for insufficient service of process. Applying Louisiana law, the

federal district court denied the defendants' motion to dismiss, finding that Mr.

Covington " took sufficient steps to request service on the [ d] efendants under [ La.

R.S.] 13: 5107, although an error may have resulted in the lack of actually affecting

service." Covington, 2020 WL $ 38293 at * 6.

In addition to being non-binding on this Court, Covington is distinguishable

from the instant matter for several reasons. First, Covington involved an order

granting pauper status, which is not at issue here. Second, there is no indication that

Mr. Covington ever received any notice he owed outstanding service fees or that

there were issues with service during the 90 days after he filed suit. In the instant

case, however, the record reflects ( and does not contain any evidence to refute) that

both sheriff and defense counsel emailed plaintiffs' counsel to inform him that

sheriff' s service fees were outstanding and that service of the citations on the City

and Mr. Hirstius had not been effected. Finally, Mr. Covington actively took steps

to verify whether service had occurred, whereas the record before us is devoid of

any evidence that plaintiffs took any steps to verify service on the City and Mr.
8
Hirstius until long after being notified that service fees were outstanding.

When the Methvien court was called to determine whether the plaintiff

demonstrated " good cause" as contemplated under La. C. C. P. art. 1672( C), it could

not determine whether the plaintiff s attorney received the clerk of court' s " Message

s In addition to Anyanwu and Covington, plaintiffs also cite Walker v. GoAuto Ins. Co., 2020-
0331 ( La. App. 01 Cir. 6/ 10/ 21), 323 So. 3d 918, 919. Walker, however, concerns a finding that
service was timely requested in compliance with La. C. C. P. art. 1201( C) and explicitly stated that
it need not address " good cause." See Walker, 323 So. 3d at 923. As we stated previously, we find
that service was not timely requested in light ofthis Court' s prior ruling in Methvien. Accordingly,
we do not find this case instructive as to good cause.

13

Reply" regarding the payment of additional fees based on the evidence in the record.

The Methvien court noted, however, that the record did show that the defendant was

not served until seven months after the plaintiff filed his petition and that the plaintiff

did not ascertain the status of service until the defendant' s exception was filed. The

Methvien court stated, " The jurisprudence has consistently placed some

responsibility on the party and attorney and found no good cause under [ Article]

1672( C) when the attorney could have taken steps to verify service, particularly after

a long period of time." Methvien, 318 So. 3d at 334. Based on the evidence in the

record in the case before us, we also cannot determine whether plaintiff's' counsel

received the email from the sheriffs office nor are we able to determine whether

plaintiffs' counsel attempted to ascertain the status of service prior to the fling of

defendants' exception.
The only thing clear from the record on appeal is that

defendants were not served within the 90 -day period to effect service. We cannot

say under the circumstances presented herein that plaintiffs proved " good cause."

Furthermore, plaintiffs' argument that the COVID- 19 protocols established

by the Louisiana Supreme Court— as followed by the Twenty -Second Judicial

District Court and the clerk of court' s office— prevented or interfered with plaintiffs'

counsel' s ability to contact the clerk of court' s office is likewise not considered

goad cause." The COVID- 19 protocols did not prevent plaintiffs' counsel from

telephoning, emailing, or mailing correspondence to the clerk of court to confirm

that service of the citations had occurred— especially in light of defense counsel' s

December 31, 2020 email to plaintiffs' counsel, noting his belief that the City and

Mr. Hirstius had not been served. Thus, any COVID- 19 protocols in place at the time

of filing do not establish " good cause."

As to their argument that the parties were engaged in settlement negotiations

and agreed to an " indefinite extension" to file responsive pleadings, plaintiffs

presented no evidence at the hearing on defendants' exception that would constitute

14

a written waiver of service by the defendants, as is required under La. C. C.P. art.

1201( B) and (C), 9 nor does any such written waiver appear in the record. The March

11, 2021 email, sent by defense counsel to plaintiffs' counsel, which indicated that

all parties had agreed to an " indefinite extension" to file responsive pleadings,

contains no stated intention by defendants to waive service of citation. Accordingly,
defendants' actions do not constitute an express written waiver of citation and

service, as is required under La. C. C. P. art. 1201( B) and ( C). See Igbinoghene v. St.

Paul Travelers Ins. Co., 2011- 0124 ( La. 4/ 4/ 11), 58 So. 3d 452, 453 ( per curiam)

quoting Filson v. Windsor Court Hotel, 2004- 2893 ( La. 6/ 29/ 05), 907 So. 2d 723,

729 ("[ Tlhe mere act of filing an answer and participating in discovery does not

constitute an express written waiver of citation and service as contemplated by La.

C. C. P. art. 1201( 0).")). Similarly, defendants' actual knowledge of the filing of

plaintiffs' suit does not obviate the need for service. See Igbinoghene, 58 So. 3d at

453 ( qy2ting Naquin v. Titan Indemnity Co., 2000- 1585 ( La. 2/ 21/ 01), 779 So. 2d

704, 710 ("[ I] t is well -accepted that even a defendant' s actual knowledge of a legal

action cannot supply the want of citation because proper citation is the foundation

of all actions.")).

Therefore, we find plaintiffs failed to carry their burden of demonstrating

good cause" for failure to timely effect service and find no error in the trial court' s

judgment sustaining defendants' exception of insufficient service of process.

9 Louisiana Code of Civil Procedure article 1201( B) provides, " The defendant may expressly
waive citation and service thereof by any written waiver made part of the record." Furthermore,
La. C. C. P, art. 1201( C) provides:

Service of the citation shall be requested on all named defendants within ninety
days of commencement of the action. When a supplemental or amended petition is
filed naming any additional defendant, service of citation shall be requested within
ninety days of its filing, and the additional defendant shall be served with the
original petition and the supplemental or amended petition. The defendant may
expressly waive the requirements of this Paragraph by any written waiver. The
requirement provided by this Paragraph shall be expressly waived by a defendant
unless the defendant files, in accordance with the provisions of Article 928, a
declinatory exception of insufficiency of service of process specifically alleging the
failure to timely request service of citation.

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DECREE

We affirm the trial court' s February 11, 2022 judgment, sustaining the

declinatory exception raising the objection of insufficiency of service of process

filed by the defendants, the City of Slidell and Joseph P. Hirstius, and dismissing

those defendants, without prejudice. All costs of this appeal are assessed to plaintiffs,

Ashley N. Miller and Drusilla Parker.

AFFIRMED.

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