Erica Kennedy Personally and on Behalf of Minor Child, Kenyale Simpson v. Morehouse Parish School Board an Incorporated Body Through Debbie Wilson, in her Capacity as President; and David Gray in his Official Capacity as Superintendent; Morehouse Parish School Board Members, Karen Diel, Louis Melton, Tab Wilkerson, Rick Hixon, Veronica Tappin and Adrin Williams; Letha L. Heckford, in her Official Capacity as a Morehouse Elementary School Teacher

Judgment rendered
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 56,267-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

ERICA KENNEDY Plaintiffs-Appellants
PERSONALLY AND ON
BEHALF OF MINOR CHILD,
KENYALE SIMPSON

versus

MOREHOUSE PARISH SCHOOL Defendants-Appellees
BOARD AN INCORPORATED
BODY THROUGH DEBBIE
WILSON, IN HER OFFICIAL
CAPACITY AS PRESIDENT;
AND DAVID GRAY IN HIS
OFFICIAL CAPACITY AS
SUPERINTENDENT;
MOREHOUSE PARISH SCHOOL
BOARD MEMBERS, KAREN
DIEL, LOUIS MELTON, TAB
WILKERSON, RICK HIXON,
VERONICA TAPPIN AND
ADRIN WILLIAMS; LETHA L.
HECKFORD, IN HER OFFICIAL
CAPACITY AS A MOREHOUSE
ELEMENTARY SCHOOL
TEACHER

*****

Appealed from the
Fourth Judicial District Court for the
Parish of Morehouse, Louisiana
Trial Court No. 2023-225

Honorable Walter Meter Caldwell, IV, Judge

*****

SMITH & NWOKORIE, LLC Counsel for
By: Brian G. Smith Plaintiffs-Appellants

RANKIN, YELDELL & KATZ (APLC) Counsel for
By: Stephen J. Katz Defendants-Appellees

*****

Before PITMAN, HUNTER, and MARCOTTE, JJ.

HUNTER, J., concurs in part and dissents in part with written reasons.

PITMAN, C. J.

Plaintiff-Appellant Erica Kennedy, personally and on behalf of minor

child Kenyale Simpson, appeals the district court’s granting of a motion to

dismiss filed by Defendant-Appellee David Gray, in his official capacity as

superintendent; of an exception of insufficiency of service of process and

motion for involuntary dismissal filed by Defendants-Appellees Morehouse

Parish School Board (the “School Board”), through Debbie Wilson in her

official capacity as president, Morehouse Parish School Board Members

Karen Diel, Louis Melton, Tab Wilkerson, Rick Hixon, Veronica Tappin

and Adrin Williams and Letha L. Heckford in her official capacity as a

Morehouse Elementary School teacher; and of an exception of insufficiency

of service of process and motion for involuntary dismissal filed by

Defendants-Appellees the School Board and Heckford. For the following

reasons, we affirm.

FACTS

On June 15, 2023, Kennedy filed a petition for damages against

Defendants. She stated that Heckford was employed as a teacher at

Morehouse Elementary School by the School Board. She alleged that

Simpson, her daughter, was present in Heckford’s classroom when Heckford

became angry and committed an assault and battery on Simpson. She

alleged that Simpson suffered injuries to her back, neck and head from the

attack and that Heckford refused to provide medical assistance to her. She

stated that the school failed to address the incident and injuries, to notify her

of the incident or to report the criminal act and that the school district

refused to call law enforcement. Kennedy stated that she, Simpson and

Simpson’s father suffer mental and emotional distress caused by these

events. She requested that Defendants be held liable for all damages, costs

of the proceedings and any other relief deemed necessary and proper by the

court. She requested service on Gray.

On July 18, 2023, Gray filed exceptions of vagueness and no cause of

action. He argued that the petition did not state the date of the alleged

incident or the alleged actions of Heckford. He also argued that the petition

did not note any specific act or inaction by him and, therefore, that the

petition failed to state a cause of action against him.

On January 23, 2024, Kennedy filed a response to the exceptions. She

alleged that Defendants had knowledge of the acts sued upon because they

viewed a video showing the actions of Heckford against Simpson. She

stated that Gray is responsible for the acts of his employees pursuant to

respondeat superior.

On February 5, 2024, Defendants, excluding Gray, filed a declinatory

exception of insufficiency of service of process and a motion for involuntary

dismissal for failure to request service of citation within the time prescribed

by La. C.C.P. art. 1201(C). They noted that the last line of the petition states

“PLEASE SERVE DAVID GRAY, SUPERINTENDENT,” but that

Kennedy did not request service on any other Defendant nor had any other

Defendant been served. They stated that the court record confirmed that

service of citation was not requested on them within 90 days of the

commencement of the action as required by La. C.C.P. art. 1201(C).

A hearing on Gray’s exceptions was held on January 30, 2024. On

February 15, 2024, the district court filed a judgment sustaining the

exceptions of vagueness and no cause of action and granted Kennedy

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45 days to file an amended petition to cure the exceptions; otherwise, the

case would be dismissed with prejudice as to Gray.

On March 21, 2024, Kennedy filed an amended petition for damages.

She named as defendants the School Board, through its president, and

Heckford. She requested service on Defendants’ attorney.

On April 9, 2024, the School Board and Heckford filed a declinatory

exception of insufficiency of service of process and a motion for involuntary

dismissal for failure to request service of citation within the time prescribed

by La. C.C.P. art. 1201(C), regarding the amended petition. They argued

that the filing of the amended petition did not cure the basis for the

previously filed exception of insufficiency of service of process and motion

for involuntary dismissal.

On April 9, 2024, Gray filed a motion to dismiss all claims against

him with prejudice. He argued that the amended petition did not address the

exceptions of vagueness or no cause of action and omitted him as a party

defendant.

A hearing was held on May 14, 2024. The district court then filed a

judgment dismissing all claims against Gray with prejudice. It found that

the amended petition did not cure Gray’s exceptions of vagueness and no

cause of action. In a separate judgment, it sustained the other Defendants’

exception of insufficiency of service of process, granted their motion for

involuntary dismissal for failure to request service of citation and dismissed,

without prejudice, the matter as to these Defendants. In an additional

judgment, the district court sustained the School Board and Heckford’s

exception of insufficiency of service of process, granted their motion for

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involuntary dismissal for failure to request service of citation and dismissed,

without prejudice, the amended petition.

Kennedy appeals.

DISCUSSION

Motion to Dismiss

Kennedy argues that the district court erred in granting Gray’s motion

to dismiss. She contends that the amended petition cured any issue

regarding vagueness and no cause of action. She argues that the School

Board is responsible for the acts of its employees under respondeat superior

and that Gray as superintendent knew of Heckford’s acts and failed to

respond.

Defendants argue that the district court properly dismissed all claims

against Gray. They state that Kennedy’s petition did not allege any act or

inaction by Gray and that the amended petition omitted him as a defendant.

They note that La. R.S. 17:439 provides immunity for school employees

from tort actions and that Kennedy made no allegations that Gray acted

maliciously, willfully or deliberately to cause bodily harm, to harass or

intimidate Simpson or that his actions were outside the course and scope of

his employment.

The function of an exception of no cause of action is to test the legal

sufficiency of the petition by determining whether the law affords a remedy

on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v.

Subaru S., Inc., 616 So. 2d 1234 (La. 1993). An exception of no cause of

action is triable on the face of the petition; and, for the purpose of

determining the issues raised by the exception, the well-pleaded facts in the

petition must be accepted as true. Indus. Companies, Inc. v. Durbin,
4

02-0665 (La. 1/28/03), 837 So. 2d 1207. It should be granted only when it

appears beyond doubt that the plaintiff can prove no set of facts in support of

any claim which would entitle him to relief. Badeaux v. Sw. Computer

Bureau, Inc., 05-0612 (La. 3/17/06), 929 So. 2d 1211. If the petition states a

cause of action on any ground or portion of the demand, the exception

should generally be overruled. Id. Every reasonable interpretation must be

accorded the language used in the petition in favor of maintaining its

sufficiency and affording the plaintiff the opportunity of presenting evidence

at trial. Indus. Companies, Inc. v. Durbin, supra.

When the grounds of the objection pleaded by the peremptory

exception may be removed by amendment of the petition, the judgment

sustaining the exception shall order such amendment within the delay

allowed by the court. La. C.C.P. art. 934. If the grounds of the objection

raised through the exception cannot be so removed, or if the plaintiff fails to

comply with the order to amend, the action, claim, demand, issue or theory

shall be dismissed. Id.

In reviewing a trial court’s ruling sustaining an exception of no cause

of action, the appellate court should conduct a de novo review because the

exception raises a question of law, and the trial court’s decision is based

only on the sufficiency of the petition. Indus. Companies, Inc. v. Durbin,

supra.

La. R.S. 17:439 states in part:

A. Except as otherwise provided in this Section, no person shall
have a cause of action against any school employee based on
any statement made or action taken by the school employee
provided that the action or statement was within the course and
scope of the school employee’s duties as defined by the school
board in which the school employee is employed and was

5

within the specific guidelines for school employee behavior as
established by that school board.

B. As used in this Section, the terms “school employee” means
any school employee who has direct contact with students in
the course and scope of the school employee’s duties as defined
by the school board by which the school employee is employed,
and includes but is not limited to school-based administrators,
classroom teachers, coaches, librarians, counselors, teachers’
aides, clerical employees, lunchroom workers, custodial
workers, school bus operators, and school bus operators’ aides.

C. The immunity from liability established by this Section shall
not apply to any action or statement by a school employee that
was maliciously, willfully, and deliberately intended to cause
bodily harm to a student or to harass or intimidate a student.

The exception of no cause of action is separate and distinct from an

exception of vagueness. Williams v. State, 34,691 (La. App. 2 Cir. 5/9/01),

786 So. 2d 927. An exception of no cause of action, if sustained, can bring

about a dismissal of the suit, while an exception of vagueness will, if

sustained, result in an order to the plaintiff to amend his pleadings and make

them more definite. Id.

The purpose of the exception of vagueness is to place the defendant

on notice of the nature of the facts sought to be proved so as to enable him to

identify the cause of action, thus preventing future relitigation after a

judgment is obtained. Port City Glass & Paint Inc. v. Brooks, 52,534 (La.

App. 2 Cir. 2/27/19), 266 So. 3d 516. If the plaintiff’s petition fairly

informs the defendant of the nature of the cause of action and includes

sufficient substantial particulars to enable the defendant to prepare its

defense, then the exception of vagueness will be denied. Id. An appellate

court reviews a judgment on an exception of vagueness under the manifest

error standard of review because the district court’s judgment is based on a

factual determination. Id.

6

In her petition, Kennedy failed to state a cause of action against Gray.

There were no well-pleaded facts in the petition to accept as true—it was

void of any allegation of actions or inactions by Gray, in his capacity as

superintendent, that would entitle Kennedy to relief. Kennedy made no

allegations that Gray was not immune from liability pursuant to La.

R.S. 17:439(C). The petition was also impermissibly vague as it failed to

inform Gray of the nature of the cause of action against him or to include

sufficient substantial particulars to enable him to prepare a defense.

Although the district court granted Kennedy an opportunity to cure these

exceptions, she failed to do so. In her amended petition, Kennedy did not

include Gray as a defendant or add any allegations against him. Therefore,

the district court correctly found that the amended petition did not cure

Gray’s exceptions of vagueness and no cause of action and dismissed, with

prejudice, Kennedy’s claims against him.

Accordingly, this assignment of error lacks merit.

Insufficient Service

Kennedy argues that the district court erred in sustaining the

exceptions of insufficiency of service of process and granting the motions

for involuntary dismissal. She contends that the amended petition relates

back to the original petition.

Defendants argue that the district court properly sustained their

exceptions of insufficiency of service of process and granted their motions

for involuntary dismissal. They state that only Gray was served with the

original petition as Kennedy requested that only he be served. They allege

that Kennedy did not request service on the other Defendants within 90 days

of the commencement of the action and that, at the time of filing their
7

appellate brief, she still had not requested service on Defendants. They

further state that the amended petition only named as defendants and

requested service on the School Board and Heckford. They argue that the

filing of the amended petition did not cure the exceptions of insufficiency of

service of process because no service was ever requested of the original

petition on anyone other than Gray. They also contend that Kennedy’s

argument that the amended petition related back to the original petition is

not applicable to the facts of this case.

Service of the citation shall be requested on all named defendants

within 90 days of commencement of the action. La. C.C.P. art. 1201(C). If

the requirements of La. C.C.P. art. 1201(C) are not followed, a motion for

involuntary dismissal pursuant to La. C.C.P. art. 1672(C) is the proper

procedural vehicle for an aggrieved party to obtain a dismissal of the claims

against it. Filson v. Windsor Ct. Hotel, 04-2893 (La. 6/29/05), 907 So. 2d

723. La. C.C.P. art. 1672(C) states:

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) . . . 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.

A 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. Wilson v.

Dep’t of Pub. Safety & Corr., 53,433 (La. App. 2 Cir. 4/22/20), 295 So. 3d

1274, writ denied, 20-00717 (La. 9/29/20), 301 So. 3d 1176. However,

when the facts are not disputed and the issue before the court is whether the

district court properly interpreted and applied the law, the standard of review

8

for questions of law is simply a review of whether the district court was

legally correct or incorrect. Id.

In this case, Kennedy requested service of citation within 90 days of

commencement of the action only on Gray—she did not request service on

any other named defendant and did not show good cause as to why service

could not be requested. Regarding the original petition, Defendants

followed the proper procedure by filing an exception of insufficiency of

service of process and a motion for involuntary dismissal, and the district

court did not err in granting this exception and motion. Regarding the

exception of insufficiency of service of process and motion for involuntary

dismissal filed by the School Board and Heckford in response to the

amended petition, the district court also did not err in granting this exception

and motion. Kennedy’s argument that the amended petition related back to

the original petition is inapplicable to the facts of this case.1 The amended

petition did not cure the insufficient service of process of the original

petition because Kennedy never requested service of the original petition on

anyone other than Gray.

1
In her brief, Kennedy, quoting Ray v. Alexandria Mall, Through St. Paul Prop.
& Liab. Ins., 434 So. 2d 1083 (La. 1983), contends that the amended petition relates back
to the original petition as it meets the following criteria:
(1) The amended claim must arise out of the same transaction or
occurrence set forth in the original pleading;
(2) The purported substitute defendant must have received notice of the
institution of the action such that he will not be prejudiced in maintaining
a defense on the merits;
(3) The purported substitute defendant must know or should have known
that but for a mistake concerning the identity of the proper party
defendant, the action would have been brought against him;
(4) The purported substitute defendant must not be a wholly new or
unrelated defendant, since this would be tantamount to assertion of a new
cause of action which would have otherwise prescribed.
These criteria do not apply to the facts of this case as Kennedy did not attempt to
substitute a new defendant in the amended petition. The defendants named in the
amended petition were named in the original petition. The issue in this case is that these
defendants were not served with the original petition.
9

Accordingly, this assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the district court’s granting of

the motion to dismiss, sustaining of the exceptions of insufficiency of

service of process and granting of the motions for involuntary dismissal.

Costs of this appeal are assessed to Plaintiff-Appellant Erica Kennedy.

AFFIRMED.

10

HUNTER, J., concurring in part and dissenting in part.

I concur with the portion of the district court’s judgment granting the

exception of no cause of action. However, I dissent from the judgment

sustaining defendants’ declinatory exception of insufficiency of service of

process and granting the motion for involuntary dismissal filed by the

Morehouse Parish School Board and Letha L. Heckford. Unlike in the

plaintiffs in the companion cases, White v. Morehouse Par. Sch. Bd., 56,267

(La. App. 2 Cir. 5/21/25), 2025 WL 1456229 and Robinson v. Morehouse

Par. Sch. Bd., 56,289 (La. App. 2 Cir. 5/21/25), 2025 WL 1456202, plaintiff

herein was ordered to amend her petition, and she filed the amended petition

within 45 days as ordered. Notably, the order granting plaintiff leave to

amend the petition after defendants filed the declinatory exception and

motion for dismissal.

LSA-C.C.P. art. 1153 provides a means by which the action or defense

asserted in an amended petition can relate back to the date of filing the

original petition, thereby avoiding dismissal. LSA-C.C.P. art. 1153

provides:

When the action or defense asserted in the amended petition or
answer arises out of the conduct, transaction, or occurrence set
forth or attempted to be set forth in the original pleading, the
amendment relates back to the date of filing the original
pleading.

In Acuff v. Treece, 24-0058 (La. App. 4 Cir. 3/18/24), 390 So. 3d 283,

writ denied, 24-00474 (La. 6/19/24), 386 So. 3d 316, the Fourth Circuit

applied the “relation back” principle of prescription to the tolling of the 90-

day deadline set forth in L. C.C.P. art. 1201(C). In Acuff, supra, the

plaintiffs filed a lawsuit against the defendants in 2019; the plaintiffs later

1

filed a first amending petition expanding their claims. In 2020, the trial court

stayed the proceedings in state court pending resolution of a related

proceeding in federal court. No further action was taken in the lawsuit until

April 7, 2023, when the plaintiffs filed a motion to lift the stay and to file a

second amendment to the petition. On August 2, 2023, the trial court granted

plaintiffs’ motion to lift the stay and amend the petition; the court signed a

judgment deeming the petition filed “as of April 7, 2023.” Subsequently, the

plaintiffs requested service and citation on the defendants. The defendants

filed an exception of insufficiency of service of process, or alternatively,

motion for involuntary dismissal. The defendant argued plaintiff did not

request service of citation within 90 days of filing the lawsuit as required by

La. C.C.P. art. 1201(C). The trial court denied the exception, and the court

of appeal affirmed, stating:

The procedural history of this case indicates service was timely
requested pursuant to La. C.C.P. art. 1201(C). Specifically, the
relevant date to start the tolling of the La. C.C.P. art. 1201
ninety-day service requirement is August 2, 2023, the date of
the signing of judgment lifting the stay and granting leave to
amend.
***
Two issues precluded service of Plaintiff’s second amended
petition: (1) the February 20, 2020 stay order and (2) an order
granting leave from the trial court to file the second amended
petition. *** Thus, until the trial court lifted the stay, no action
was permitted in the case. Couple this suspensive condition
with the fact that Plaintiffs could not request service of the
second amended petition until the trial court issued an order
granting leave to do so.
***
It appears Plaintiffs’ inclusion of the April 7, 2023 date in the
judgment caused confusion as to the relevant date to start the
tolling of La. C.C.P. art. 1201(C). The insertion of the date was
unnecessary as La. C.C.P. art. 1155 allows amended and
supplemental petitions to relate back to the date of the original
petition.

Id. at 285-6.

2

In the instant case, on February 15, 2024, the district court signed the

judgment granting plaintiff 45 days to file an amended petition. Plaintiff

filed the amended petition on March 21, 2024, within the 45-day timeframe

as order by the court. The relevant date to start the tolling of the 90-day

service requirement was February 15, 2024, the date the district court signed

the judgment granting leave to amend the petition. Plaintiff requested

service and served counsel for Heckford and the MPSB within the 90-day

timeframe. Counsel acknowledged he received service, and he did not make

a limited appearance for the sole purpose of defending the actions.

Articles of the Code of Civil Procedure are to be construed liberally

and with due regard for the fact that forms of procedure implement the

substantive law and are not an end in themselves. La. C.C.P. art. 5051.

Therefore, weighing all factors in the light most favorable to affording these

litigants their day in court, while safeguarding due process protections, I

believe the timely request service of the amended petition should relate back

and cure the failure to timely request service as to the original petition.

Accordingly, I would reverse the district court’s ruling sustaining the

exception of insufficient service of process and granting the motion to

dismiss the petition.

3