Wilbert Curry v. Javell McGinnis

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1050

WILBERT CURRY, INDIVIDUALLY
PHILLIP CURRY, INDIVIDUALLY
JOWANDA CURRY, INDIVIDUALLY
PHILLIP CURRY AND JOWANDA CURRY
AS NATURAL TUTOR OF THE MINOR
CHILDREN, PHILLIP CURRY, JR. AND
JOSEPH CURRY

VERSUS

JAVELL MCGINNIS, GEICO INSURANCE
COMPANY, TOWN OF JONESVILLE,
MILTON SAVAGE, AND LOUISIANA
MUNICIPAL RISK MANAGEMENT, INC.

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APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CATAHOULA, NO. 24,234, “B”
HONORABLE LEO BOOTHE, DISTRICT COURT JUDGE

************

JAMES T. GENOVESE
JUDGE

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Court composed of Oswald A. Decuir, J. David Painter, and James T. Genovese,
Judges.

REVERSED AND REMANDED.

Jerry L. Lavespere, Jr.
1805 Jackson Street
Alexandria, Louisiana 71301
(318) 443-9926
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Wilbert Curry, Phillip Curry and Jowanda Curry,
individually and as natural tutor of the minor children,
Phillip Curry, Jr. and Joseph Curry

John P. Doggett
Provosty, Sadler, deLaunay, Fiorenza & Sobel
934 Third Street, Suite 800
Post Office Drawer 1791
Alexandria, Louisiana 71309-1791
(318) 445-3631
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Wilbert Curry, Phillip Curry and Jowanda Curry,
individually and as natural tutor of the minor children,
Phillip Curry, Jr. and Joseph Curry

Samuel T. Singer
Law Office of Samuel T. Singer, PLC
6603 Main Street
Winnsboro, Louisiana 71295
(318) 435-9903
COUNSEL FOR DEFENDANTS/APPELLEES:
Town of Jonesville, Milton Savage, and
Risk Management, Inc.

Russell L. Potter
Stafford, Stewart & Potter
3112 Jackson Street
Post Office Box 1711
Alexandria, Louisiana 71309-1711
(318) 487-4910
COUNSEL FOR DEFENDANTS:
Geico Indemnity Company, Javell McGinnis,
Hillary McGinnis, Jr., and Tangee R. Davis

Gregory S. Marsiglia
Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P.
One Shell Square, Suite 3600
701 Poydras Street
New Orleans, Louisiana 70139
(504) 581-2450
COUNSEL FOR DEFENDANT/THIRD-PARTY PLAINTIFF:
Javell McGinnis

Ronald J. Fiorenza
Theodore D. Vicknair
Provosty, Sadler, deLaunay, Fiorenza & Sobel
934 Third Street, Suite 800
Post Office Drawer 1791
Alexandria, Louisiana 71309-1791
(318) 445-3631
COUNSEL FOR PLAINTIFF:
Ereeca Hill, individually and on
behalf of her minor son, Davell Davis

GENOVESE, Judge.

Plaintiffs/Appellants, Wilbert Curry, Phillip Curry and Jowanda Curry,

individually and as natural tutor of the minor children, Phillip Curry, Jr. and Joseph

Curry (hereinafter collectively referred to as “Plaintiffs”), appeal the trial court’s

ruling sustaining the peremptory exception of prescription filed by the

Defendants/Appellees, Town of Jonesville and Milton Savage. For the following

reasons, we reverse and remand the case for further proceedings.

PROCEDURAL HISTORY

On August 23, 2006, Plaintiffs filed a Petition for Damages against Javell

McGinnnis, GEICO Indemnity Company (GEICO),1 Milton Savage, the Town of

Jonesville (Jonesville), and Risk Management, Inc. (RMI)2 for an accident which

occurred on August 12, 2006. Plaintiffs’ petition provided service information only

for GEICO and RMI. GEICO filed an Answer to Plaintiffs’ petition on September

11, 2006; RMI filed an Answer on September 16, 2006; and Javell McGinnis filed an

answer on June 22, 2007.

On August 10, 2007, Plaintiffs filed a Motion and Order for Leave of Court and

a First Amending and Supplemental Petition for Damages. Plaintiffs’ amending

petition provided service information for all Defendants. GEICO and Javell

McGinnis filed an Answer to Plaintiffs’ amending petition on August 27, 2007.

On September 5, 2007, Jonesville and Officer Savage filed Declinatory and

Peremptory Exceptions. These exceptions asserted that because Plaintiffs had not

1
Plaintiffs’ petition erroneously identified GEICO Indemnity Company as GEICO Insurance
Company. For accuracy, we refer to this Defendant by its correct name (GEICO Indemnity
Company) as ascertained from its responsive pleadings.
2
Plaintiffs’ petition erroneously identified Risk Management, Inc. as Louisiana Municipal
Risk Management, Inc. For accuracy, we refer to this Defendant by its correct name (Risk
Management, Inc.) as ascertained from its responsive pleadings.

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requested service upon Jonesville and Officer Savage within ninety days of the filing

of Plaintiffs’ original petition on August 23, 2006, La.R.S. 13:5107 mandated that

Plaintiffs’ claims against them be dismissed.

A hearing was held on the exceptions filed by Jonesville and Officer Savage

on October 29, 2007. The trial court took the matter under advisement and allowed

the parties to file post-hearing memoranda. On April 8, 2008, the trial court issued

its Reasons for Judgment, sustaining the peremptory exception of prescription filed

by Jonesville and Officer Savage. The trial court also ordered the dismissal, with

prejudice, of Plaintiffs’ claims against these Defendants. A judgment to this effect

was signed by the trial court on the same day. Plaintiffs appeal.

ASSIGNMENT OF ERROR

On appeal, Plaintiffs assert: “The trial court erred in granting the ‘Peremptory

Exception of Prescription’ filed by [D]efendants, [t]he Town of Jonesville and Milton

Savage[,] and thereby dismissing with prejudice [P]laintiffs/[A]ppellants’ complaint

against these governmental [D]efendants.”

STANDARD OF REVIEW

“A dismissal premised upon La.R.S. 13:5107(D)(2) should not be reversed in

the absence of manifest error. Patterson v. Jefferson Davis Parish School Bd., [00-

580] (La.App. 3 Cir. 12/6/00), 773 So.2d 297.” Taylor v. LSU Med. Ctr., 38,944, p.

4 (La.App. 2 Cir. 10/14/04), 892 So.2d So.2d 581, 584, writ denied, 05-480 (La.

5/20/05), 902 So.2d 1049.

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LAW AND DISCUSSION

Considering the facts in this case, the requirements for service of process and

citation upon Jonesville and Officer Savage3 are found in La.R.S. 13:5107(D)(1):

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. This
requirement may be expressly waived by the defendant in such action by
any written waiver.

The requisite time period in which service is to be effectuated upon Jonesville

and Officer Savage, as well as the penalty for the failure to do so, are set forth in

La.R.S. 13:5107(D)(2):

If service is not requested by the party filing the action within that
period, 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, who has not been served.

Louisiana Code of Civil Procedure 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) 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.

Plaintiffs argue, in brief, that the trial court mis-characterized their “original

Petition as containing a ‘non-request’ for service” because Plaintiffs “provided

insufficient service information in the original Petition . . . on [Jonesville and Officer

Savage].” Plaintiffs also assert that the trial court erroneously “reasoned that because

3
Officer Savage is a police officer whose alleged actions while in the course and scope of his
employment with Jonesville is the basis of Plaintiffs’ suit.

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[Jonesville and Officer Savage] were initially named in the original Petition,

[P]laintiffs could not cure the defect by filing a Supplemental and Amended Petition

and requesting service of same, even [though] the Supplemental and Amending

Petition and request for service were filed within the prescriptive period[.]” This

interpretation, according to Plaintiffs, “acts as a peremptive bar to a subsequent action

filed within the one (1) year prescriptive period.”

Plaintiffs also contend that the trial court erred by failing to determine “whether

[Jonesville and Officer Savage] had waived the objection to insufficient service.”

According to Plaintiffs, and substantiated by the exhibits accepted into evidence at

the hearing on these exceptions, on September 8, 2006, Plaintiffs’ counsel received

written correspondence from Mr. Ronald A. Reibe, a Casualty Claims Manager for

RMI. In his letter, Mr. Reibe declared: “We[, RMI,] are the servicing agent for the

Town of Jonesville’s liability coverages and have just been forwarded the referenced

suit on behalf of your clients.” The letter further requested “an informal extension

of time to file responsive pleadings to this matter.” On September 16, 2006, RMI

filed an Answer through its attorney, Samuel T. Singer. At the hearing on these

exceptions, Plaintiffs argued that, at all times, they believed the Town of Jonesville

had been served with their original petition based on Mr. Singer’s representations,4

the September 8, 2006 letter from Mr. Reibe, and the fact that the Town of Jonesville

had no agent for service of process registered with the Louisiana Secretary of State.

Jonesville and RMI counter this allegation, in brief, stating:

Plaintiffs’ counsel did not grant the extension; therefore, [RMI]
immediately filed its answer on September 15, [sic] 2006. Said answer
stated that RMI was not an insurance company against whom a direct
cause of action exists. The answer did not include [Jonesville] or

4
Notably, Mr. Singer appears herein as counsel for RMI, Jonesville, and Officer Savage.

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[Officer Savage] because they had not been served.

Finally, Plaintiffs assert that the trial court clearly erred when it dismissed their

claims with prejudice regardless of the fact that Plaintiffs had filed a First Amending

and Supplemental Petition for Damages on August 10, 2007. Said amended petition

was filed two days before the prescriptive date of Plaintiffs’ claims and did properly

request service upon Jonesville and Officer Savage.

In its Reasons for Judgment, the trial court declared that it was “particularly

impressed with the Supreme Court decision in Naquin [v.] Titan Indemnity Co., [00-

1585 (La. 2/21/01), 779 So.2d 704.]” The trial court even quoted numerous “head

notes” from Naquin in its Reasons for Judgment. While we agree that Naquin

touches upon the issue in this case, we disagree that it is analogous or controlling.

Naquin primarily considered whether La.R.S. 13:5107, a then newly enacted

procedural statute, was applicable to an action which arose prior to the statute’s

effective date; however, the claim was not filed until after its effective date. We find

Naquin distinguishable on the basis that it did not involve a subsequent petition

which was both timely filed and in which a timely request for service of process upon

the governmental defendants was properly made.

Citing La.Code Civ.P. art. 1151,5 the trial court agreed with Plaintiffs’ assertion

that the First Amending and Supplemental Petition for Damages filed on August 10,

2007 “was timely filed prior to the expiration of the one year liberative prescriptive

period.” However, the trial court ultimately reasoned that Jonesville and Officer

Savage “were ‘initially’ named in the original Petition, the ‘90 day request

5
Louisiana Code of Civil Procedure Article 1151 provides, in pertinent part: “A plaintiff may
amend his petition without leave of court at any time before the answer thereto is served. He may
be ordered to amend his petition under Articles 932 and 934.”

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requirement’ began to toll from the filing of the original Petition, not the ‘First

Amending and Supplemental Petition [for Damages,]’ and as such, Plaintiffs’ ‘service

request’ was not timely and their cause of action has prescribed.” We disagree.

We find Filson v. Windsor Court Hotel, 04-2893 (La. 6/29/05), 907 So.2d 723,

to be pertinent and much more instructive. In Filson, the supreme court examined the

requirement in La.R.S. 13:5107(D) to request service within ninety days and

distinguished the motion for involuntary dismissal under La.Code of Civ.P. art. 1672

from the declinatory exception of insufficiency of citation or service. The supreme

court stated:

First, an objection to insufficiency of citation or service under
La.C.C.P. art. 925 “is properly leveled at the form of the citation” and
also “focuses on the person to whom citation is delivered or on the
manner in which delivery is made.” Maraist, Frank L. and Lemmon,
Harry T., Louisiana Civil Law Treatise, Vol. 1, § 6.5, p. 108. When a
defendant objects to the failure to request service within 90 days, he is
not objecting because the service is “insufficient;” rather, it is either
non-existent or it is untimely. Where the objection is based on service
outside the 90-day time limit of La. C.C.P. art. 1201(C), La. C.C.P. art.
1672(C) specifically provides that the manner for objecting is by filing
a motion for involuntary dismissal. While plaintiffs argue that these
statutes conflict and are ambiguous, we disagree. Pursuant to general
rules of statutory construction, “where two statutes deal with the same
subject matter, they should be harmonized if possible; however, if there
is a conflict, the statute specifically directed to the matter at issue must
prevail as an exception to the statute more general in character.” City of
Pineville v. American Federation of State, County, and Municipal
Employees, AFL-CIO, Local 3352, 00-1983 (La.6/29/01), 791 So.2d
609, 612; LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226.
Clearly, even if Article 925’s reference to “insufficiency” of citation and
service of process could be read generally to apply where service was
not timely requested, Articles 1201(C) and 1672(C) are specifically
directed to cases where service was not requested within 90 days of the
commencement of the action, making a motion for involuntary dismissal
under 1672(C), and not a declinatory exception, the proper method for
objecting to late service.

Filson, 907 So.2d at 726-27.

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Thus, pursuant to Filson, we find that the trial court erred in dismissing

Plaintiffs’ action for failure to request service within ninety days because Jonesville

and Officer Savage failed to file the requisite motion for involuntary dismissal

pursuant to La.Code Civ.P. art. 1672(C).

Further, we find the trial court’s dismissal of Plaintiffs’ claims “with prejudice”

against Jonesville and Officer Savage to be clearly in derogation of the law.

Louisiana Revised Statutes 13:5107(D)(2) imposes the penalty of dismissal “without

prejudice” of actions where service is not timely requested upon governmental

defendants. Thus, the trial court’s judgment was legally erroneous in this respect as

well.

In the instant case, the Plaintiffs timely filed suit against Jonesville and Officer

Savage. Even considering the fact that service was not timely effectuated against

Jonesville and Officer Savage, the legal remedy was to pursue an involuntary

dismissal without prejudice. This was not done. Instead, the trial court sustained

Defendants’ peremptory exception of prescription and dismissed Plaintiffs’ lawsuit

with prejudice. The record clearly states, and the trial court clearly acknowledged,

that Plaintiffs’ lawsuit and their first supplemental and amending petition, with the

legally required request for service of process upon Jonesville and Officer Savage,

were timely filed prior to the expiration of the one year liberative prescription period.

Therefore, Plaintiffs’ lawsuit has not prescribed.

DECREE

Accordingly, we find the trial court erred in sustaining the peremptory

exception of prescription filed by the Town of Jonesville and Milton Savage and

dismissing Plaintiffs’ claims under La.R.S. 13:5107(D). We reverse the trial court

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judgment and remand the case for further proceedings. Further, we assess all costs

of this appeal against the Defendants/Appellees, Town of Jonesville and Milton

Savage, in accordance with La.R.S. 13:5112, in the amount of $1,838.75.

REVERSED AND REMANDED.

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