Yolanda McClure v. Target Corporation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-758

YOLANDA MCCLURE

VERSUS

TARGET CORPORATION, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 260,578
HONORABLE MONIQUE FREEMAN RAULS, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and D. Kent Savoie, Judges.

AFFIRMED.

Ellyn J. Clevenger
Attorney at Law
1115 Moody Avenue
Galveston, TX 77550
(409) 621-6440
COUNSEL FOR PLAINTIFF/APPELLANT:
Yolanda McClure

David P. Curlin
Lawrence Knight & Associates
225 St. Ann Drive
Mandeville, LA 70471
(985) 674-4446
COUNSEL FOR DEFENDANTS/APPELLEES:
Sedgwick Claims Management Services, Inc.
Target Corporation

GREMILLION, Judge.

From the judgment of the trial court granting summary judgment in favor of

Defendants/Appellees, Target Corporation and Sedgwick Claims Management

Services, Inc.1 (Target), Plaintiff/Appellant, Ms. Yolanda McClure, appeals. The

appeal is founded upon Ms. McClure’s assertions that the motion for summary

judgment filed by Target was not properly served and that the trial court erred in

finding that her attorney had waived service of the motion. We affirm for the reasons

that follow.

FACTS AND PROCEDUAL HISTORY

This premises-defect claim results from an accident in Target’s parking lot in

Alexandria, Louisiana, on December 13, 2016, in which Ms. McClure alleged that

she stumbled over uneven concrete and fell, striking her head against a wall and

landing on the concrete on her arms and legs. This incident allegedly resulted in

surgical intervention. The suit was filed in the Ninth Judicial District Court in

Rapides Parish on December 8, 2017. The petition was signed by Ms. McClure’s

attorney, whose address was listed as 25583 Winged Foot Court, Denham Springs,

Louisiana. At no time since filing the petition has Ms. McClure’s attorney filed a

notice of change of address with the trial court.

On January 22, 2019, Target filed its motion for summary judgment in which

it asserted that Ms. McClure could not produce factual support for an essential

element of her claim, that Target had actual or constructive notice of the condition

that caused her fall. In support of the motion, Target produced the affidavit of an

employee who attested that Ms. McClure’s accident was the only such incident

1
We note that, although counsel filed the brief on behalf of Target Corporation and
Sedgwick Claims Management Services, Inc., the trial court dismissed Sedgwick Claims
Management Services, Inc. as a defendant pursuant to a voluntary dismissal filed by Ms. McClure.

reported at the location where she indicated she fell. It also produced Ms. McClure’s

deposition in which she identified the location.

In its proposed order, Target requested that Ms. McClure be served with the

motion for summary judgment through her counsel of record at 1280 Del Este

Avenue in Denham Springs, Louisiana. The trial court fixed the hearing date for

March 11, 2019.

On February 27, 2019, Target filed a motion to reset the hearing because Ms.

McClure’s attorney had not been served with the motion for summary judgment.

The trial court set the new hearing date as April 15, 2019. Again, Target requested

that Ms. McClure’s attorney be served at the Del Este Avenue address.

Target again moved to refix the hearing in a motion it filed on March 20, 2019.

The stated reason for this request was that Ms. McClure’s attorney had relocated to

Galveston, Texas. In its order, Target requested that the clerk of court provide

certified copies of the order, which fixed a June 17, 2019 hearing date, along with

certified copies of its motion for summary judgment. Target requested these

certified copies for the stated purpose of serving Ms. McClure’s attorney pursuant

to La.R.S. 13:3204.2 Certified mail was forwarded to Ms. McClure’s attorney at the

2
Louisiana Revised Statutes 13:3402 reads:

A. In a suit under R.S. 13:3201, a certified copy of the citation or the notice
in a divorce under Civil Code Article 102 and of the petition or a certified copy of
a contradictory motion, rule to show cause, or other pleading filed by the plaintiff
in a summary proceeding under Code of Civil Procedure Article 2592 shall be sent
by counsel for the plaintiff, or by the plaintiff if not represented by counsel, to the
defendant by registered or certified mail, or actually delivered to the defendant by
commercial courier, when the person to be served is located outside of this state or
by an individual designated by the court in which the suit is filed, or by one
authorized by the law of the place where the service is made to serve the process of
any of its courts of general, limited, or small claims jurisdiction.

B. If service of process cannot be made on the nonresident by registered or
certified mail or by actual delivery, the court shall order that service of process be
made on an attorney at law appointed to represent the defendant pursuant to Code
of Civil Procedure Article 5091.

2

address of 1115 Moody Avenue, Galveston, Texas. The U.S. Postal Service

attempted delivery on April 4, 2019, but “an authorized recipient was not available.”

Ms. McClure’s attorney did not appear for the June 17, 2019 hearing. Target’s

attorney appeared and produced a series of email exchanges between himself and

Ms. McClure’s attorney. These exchanges began in February 2019. In an email

dated March 15, 2019, Ms. McClure’s attorney wrote:

I apologize for the typo in addressing you. I will absolutely waive
service; moving forward, I see no reason why long-arm service will not
be effective (that’s how I’ve perfected service in the past when dealing
with out-of-state counsel, and I do not think there is any limitation in
the statute that prevents it); however, I have no problem with you
personally serving my client either (I will confirm with her, but it
should be easy enough to serve her at the courthouse).

On April 4, 2019, Target’s counsel emailed Ms. McClure’s attorney and

advised her that “Long-arm service by certified has been issued.” That email also

advised her of the June 17, 2019 hearing date. On April 8, Target’s attorney emailed

Ms. McClure’s and advised her that his attempt to serve her via certified mail had

failed. He asked her to accept service. On May 6, Target’s attorney sent another

email to Ms. McClure’s attorney asking her to confirm in writing her waiver of

service. She replied the following day, advising, “I am happy to waive service of

the Motion, if you will please send me an electronic copy. I see no need to mail it

or have me served, it’s just that I need a copy. Once I have it, I will waive service.”

C. Service of process so made has the same legal force and validity as
personal service on the defendant in this state.

D. For purposes of this Section, a “commercial courier” is any foreign or
domestic business entity having as its primary purpose the delivery of letters and
parcels of any type, and which:

(1) Acquires a signed receipt from the addressee, or the addressee’s agent,
of the letter or parcel upon completion of delivery.

(2) Has no direct or indirect interest in the outcome of the matter to which
the letter or parcel concerns.

3

Target’s attorney’s paralegal emailed a copy the following day, May 8, 2019.

There was no further correspondence between counsel in the record until June 12,

2019, when Ms. McClure’s counsel emailed:

I just realized that I had not been in touch with you about the setting of
your motion next week; I apologize for my lateness. I have been
preparing for several trials this month, one of which was a jury trial that
ended up being continued at the last minute, but I have been remiss in
not having messaged you earlier. Because we are retaining an expert
in order to respond to your motion, I cannot waive service for Monday’s
hearing. However, I have reached out to the Court’s assistant to request
available dates in early August. I will get back to you as soon as I
receive dates, to see whether any will be acceptable to you.

The trial court reviewed this evidence and found that counsel’s May 7, 2019

email, coupled with Target’s response the following day sending her an electronic

copy of its motion, effectively waived service of the motion. Judgment was rendered

in favor of Target.

ASSIGNMENTS OF ERROR

Ms. McClure assigns the following as error:

The trial court erred in granting summary judgment, where
neither the Appellant nor her counsel were served with the motion or
hearing; neither had waived service thereof, and neither was present at
the hearing on the motion.

The trial court erred in construing a copy of an email as a waiver
of service, where the email contained a statement from counsel
indicating that counsel would prospectively waive formal service after
receipt of a copy of the motion; did not thereafter transmit her express
written waiver of service (as required by La. C.C.P. Art. 1201); and
subsequently transmitted an email stating that counsel could not waive
service.

The trial court erred in presumably construing a copy of said
email as a waiver of the mandatory 65-day notice requirement. La.
C.C.P. Art. 966(B)(1).

ANALYSIS

Motions for summary judgment are subject to a number of time constraints,

mostly intended to promote judicial efficiency: they must be filed no less than sixty-

4

five days prior to trial (La.Code Civ.P. art. 966(B)(1)); they must be fixed for

hearing no less than thirty days prior to trial (La.Code Civ.P. art. 966(C)(1)(a)); the

notice of the hearing must be served no less than thirty days prior to the hearing

(La.Code Civ.P. art. 966(C)(1)(b)); oppositions and opposing documentation must

be filed no less than fifteen days prior to the hearing (La.Code Civ.P. art. 966(B)(2));

reply memoranda must be field no less than five days prior to the hearing (La.Code

Civ.P. art. 966(B)(3)); and, the trial court must rule no less than twenty days prior to

trial. (La.Code Civ.P. art. 966(C)(3)).3

The service requirements of motions for summary judgment are set forth in

La.Code Civ.P. art 1313. See La.Code Civ.P. art. 966(B) & (C). 4 Service of a

motion for summary judgment can be waived. See Kinkle v. R.D.C., L.L.C., 04-1092

(La.App. 3 Cir. 12/8/04), 889 So.2d 405. That waiver need not follow the formal

requirements of La.Code Civ.P. art. 1201, which governs citation. Id.

We find no manifest error in the trial court’s determination that Ms.

McClure’s counsel waived service. She indicated in her email that she would waive

service if an electronic copy were transmitted to her. An electronic copy was

transmitted to her. But for the fact that the motion set a hearing date, service by that

means would have been effective under La.Code Civ.P. art. 1313(A)(4). See

La.Code Civ.P. art. 1313(C).

3
“Trial” and “hearing” are italicized to emphasize the distinction La.Code Civ.P. art. 966
draws between those words. “Trial” means trial on the merits of the case, while “hearing” means
a contradictory hearing fixed for the motion for summary judgment. The record does not reflect
that a trial on the merits of Ms. McClure’s case had been fixed; therefore, the sixty-five-day
requirement does not apply to this case.
4
As a technical aside, such service is not made pursuant to the Louisiana Long Arm Statute,
La.R.S. 13:3204, which governs citation and service of petitions or motions or rules to show cause
in summary proceedings, nor pursuant to La.Code Civ.P. art. 1201, which governs citation. Under
La.Code Civ.P. art. 1312, “every pleading subsequent to the original petition shall be served on
the adverse party as provided by Article 1313 or 1314, whichever is applicable.”
5

Accordingly, we find that Ms. McClure’s assignments of error lack merit. Her

second assignment of error lacks merit because the formal requirements of La.Code

Civ.P. art. 1201 apply to citation and not to service of pleadings subsequent to the

petition. Her third assignment of error lacks merit because there was no trial date in

the case; therefore, the sixty-five-day service requirement does not govern Target’s

motion for summary judgment. We find no manifest error in the trial court’s

determination that service was waived by the May 7, 2019 email and Target’s

transmission of the motion.5

The judgment of the trial court is affirmed. All costs of this appeal are taxed

to Plaintiff/Appellant, Yolanda McClure

AFFIRMED.

5
Counsel for Ms. McClure acknowledges in brief that she received the motion.
6