text:
    STATE IN the INTEREST OF K.D.M., K.J.M. & K.K.B.
    18-992
    Court of Appeal of Louisiana, Third Circuit.
    May 8, 2019
   Robert L. Kennedy, Grant Parish District Defender, 352 2nd Street, Colfax, LA 71417, (318) 627-3255, COUNSEL FOR APPELLANT: D. M. (father of K.D.M. & K.J.M)

Guy R. Lain, Louisiana Dept. of Children and Family Services, Bureau of General Counsel, 1721 Carter Street, Vidalia, LA 71373, COUNSEL FOR APPELLEE: State of Louisiana, Dept. of Children and Family Services

Thomas Gardiner Wilson, Attorney at Law, 420 Kings Drive, Pineville, LA 71360, (318) 201-2807, COUNSEL FOR OTHER APPELLEE: K.M. (mother)

Hon. James Patrick Lemoine, D.A., 35th JDC, P. O. Box 309, Colfax, LA 71417-0309, (318) 627-3205, COUNSEL FOR OTHER APPELLEE: State of Louisiana

Jacqueline Chevette Williams, Assistant District Attorney, P.O. Box 838, Natchitoches, LA 71458-0838, (318) 357-2244, COUNSEL FOR OTHER APPELLEES: K.D.M., K.J.M., K.K.B.

Joseph P. Beck, III, Attorney At Law, 5529 Monroe Hwy, Ball, LA 71405, (318) 640-9202, COUNSEL FOR OTHER APPELLEE: D. B. (father of K.K.B.)

Jerrica Wilson, Case Worker, 900 Murray Street, Alexandria, LA 71301, (318) 487-5054, COUNSEL FOR OTHER APPELLEE: Grant Dept of Children and Family Svcs

Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and D. Kent Savoie, Judges.

SAVOIE, Judge.

D.M., who is the biological father of twin children, K.D.M. and K.J.M. , appeals the trial court's order terminating his parental rights. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 18, 2017, the State, through the Department of Children and Family Services (the State), sought and obtained an instanter order from the trial court placing K.D.M. and K.J.M., and also K.K.B., who is another child with a different father, in the temporary custody of the State. The children were placed in foster care. K.D.M. and K.J.M. were eight years old at the time, and K.K.B. was one. In support of the instanter order, the State alleged that the mother of the three children provided inadequate shelter and "sells her food stamps, smokes synthetic marijuana on a daily basis in the presence of the minor children, and the trailer in which they lived was in bad condition, there are no working utilities in the home, and the children looked malnourished." In addition, the State alleged that, at the time, school had been in session for three weeks, yet the children had not attended during that time. The State also alleged that it eventually made contact with the children's mother, who provided false information concerning the whereabouts of the children. The State further alleged that the family had previously been offered services on two separate occasions; however, the cases were closed due to the mother's noncompliance.

On August 29, 2017, the State filed a Petition seeking to declare K.D.M., K.J.M., and K.K.B. as children in need of care. Therein it alleged that D.M. was the father of K.D.M. and K.J.M., and that K.B. was the father of K.K.B. Given that this appeal involves only D.M. with respect to K.D.M. and K.J.M., we will not further discuss actions taken in the trial court with respect to K.B. and/or K.K.B.

A continued custody hearing was held August 21, 2017. The children's mother and her attorney were present in court. Counsel for D.M. also made an appearance on D.M.'s behalf and noted that D.M. was incarcerated. Following the hearing, the trial court rendered an order the same day finding that it was in the children's best interest for them to remain in the custody of the State. The order further advised the parents of their rights and responsibilities, including their responsibility to keep the State apprised of their current address, and to cooperate in preparing a case plan and meeting the needs of their children.

The matter was heard again on September 6, 2017. Counsel for the mother, and counsel for D.M., were present, as well as a Court Appointed Special Advocate (CASA) on behalf of the children. An adjudication hearing was then held on October 11, 2017. D.M., through counsel, was present, as well as the mother and her counsel. D.M.'s counsel again indicated that D.M. was incarcerated. During the October 11, 2017 hearing, a Case Plan dated September 13, 2017, was offered and accepted by the trial court.

The September 2017 Case Plan reflected that D.M. participated by phone. It stated that the primary goal with respect to K.D.M. and K.J.M. was reunification, with a secondary goal of adoption. The plan stated that D.M. "will support his children in foster care and agree to pay $ 10.00 per month per child ... when not working and $ 25.00 per month per child if working." It further provided that visitation would occur on the second and fourth Thursdays, and included specific action steps to be taken by D.M., including maintaining safe housing, participating in a substance abuse assessment and screenings, and attending visitation. The plan further stated that D.M. "will maintain contact with the Agency, report all changes in situation such as: employment, address change, telephone number, etc. He will attend all court hearings, FTC's and any other meetings or functions concerning the children."

D.M. was incarcerated at the time of the September 2017 case plan, and his case worker, Ms. Jerrica Wilson, provided a copy of the plan to him when she visited with him in jail in October 2017.

Following the October 11, 2017 hearing, the trial court rendered a Judgment finding that it was in K.D.M.'s and K.J.M.'s best interests to remain in the State's custody. The Judgment also advised the parents of their rights and responsibilities, adjudicated the children in need of care, and set a case plan review hearing for February 7, 2018.

On January 31, 2018, the State filed with the court a report dated January 22, 2018. Therein, the State noted that "[D.M.'s] whereabouts are unknown. [D.M.] was released from jail on November 1, 2017. [D.M.] has contacted this worker one time since being out of jail. He has not had any more contact with the agency." The report further noted that D.M.'s employment status was unknown and that he had not completed the case plan's required substance abuse assessment, parenting education, or financial contributions.

Also on January 31, 2018, the State filed a Case Plan dated January 23, 2018. The plan reflected that all three children had been placed with the same foster family and K.D.M. and K.J.M. had changed schools due to this placement. It also reflected that D.M. had not fulfilled any of the required obligations and further stated that D.M.:

was incarcerated ... until November 1, 2017. The worker visited with him once while he was in jail. Worker had contact with him one time in November when he was released and notified of a family visit. He did not show up and has not been in contact with the Agency since November 2017.

A case plan review hearing was held February 7, 2018. Counsel for D.M. made an appearance on his behalf. Thereafter, the trial court entered a Judgment ordering the children to remain in the State's custody and approving the January 23, 2018 case plan.

On July 20, 2018, the State submitted a report dated July 25, 2018, to the trial court, which stated as follows with respect to D.M.:

[D.M.]'s whereabouts are unknown. [D.M.] was released from jail on November 1, 2017. [D.M.] has contacted this worker one time in November 2017. He has not had any more contact with the Agency. Clear searches have been completed but did not turn up any information on his whereabouts. The Grant Parish Child Support office contacted this worker in June 2018. They located [D.M.] in Richland Correctional Center for a misdemeanor and resisting an officer. The office had pursued child support for [D.M.] Once located and brought forth in front of your Honor, he denied being the father of [K.D.M.] and [K.J.M.] and requested a DNA test. The test was completed and results showed that he is the father of the twins. [D.M.] was released from jail on June 29, 2018.

The July 25, 2018 report further reflected that D.M.'s employment status was unknown, he had not provided any financial support for the children, and he had not completed the requisite substance abuse assessment or parenting education. It also stated that D.M. "has never visited the children since they have been in foster care."

Also on July 30, 2018, the State submitted a Case Plan dated July 2, 2018, to the trial court. This plan similarly noted that D.M. had not provided financial support for the children, his whereabouts were unknown, and he had not completed any of the plan's action steps.

Another case review hearing was held on August 15, 2018. Counsel for D.M. made an appearance on his behalf but noted "he has been absent." Following the hearing, the trial court found that it was in the children's best interest to remain in the State's custody, and it approved the July 2, 2018 case plan, as amended on July 25, 2018, to change the case plan goal to adoption.

On August 31, 2018, the State filed a Petition for Termination of Parental Rights and Certification of Minor Children for Adoption, naming D.M. and the mother as Defendants. Therein, the State alleged that D.M. and the mother have failed to substantially comply with their case plans, provide significant contributions to the care of their children well in excess of six consecutive months, and have not had significant contact with the children. The trial court signed an order on September 4, 2018, appointing a Curator Ad Hoc for D.M., and set the matter for hearing.

A hearing on the State's Petition was held November 14, 2018. D.M. was transferred from the Richland Parish Detention Center pursuant to a motion filed by appointed counsel and was present for the hearing. Thereafter, the trial court rendered a judgment terminating D.M.'s parental rights with respect to K.D.M. and K.J.M. and certified the children as available for adoption.

D.M. appealed. On appeal, D.M. asserts the following as assignments of error:

(1) The [trial] [c]ourt erred in finding that [D.M.] violated any provision of Article 1015 of the Louisiana Children's Code sufficient to warrant the termination of his parental rights with regard to K.D.M. and K.[J].M.
(2) The [trial] [c]ourt erred in finding that [D.M.] did not communicate with [the State].
(3) The [trial] [c]ourt erred in failing to recognize that the time period from when [D.M.] actually had knowledge that he was the father of the children K.D.M. and K.[J].M. as a result of DNA testing which was in June 2018 until the termination hearing on November 14, 2018[,] was insufficient to address his reconciliation issues and in violation of Article 1015 of the Louisiana Children's Code.
(4) The [trial] [c]ourt erred in failing to consider that the [State's] contention that during the many proceedings at which [D.M.] was not present it ... was alleged that [D.M.]'s whereabouts were unknown was incorrect because much of the time he was incarcerated[, and] when he was free his whereabouts were known to his parole officer, and to Child Support Services.

ANALYSIS

Louisiana Children's Code art. 1015 provides various grounds for the termination of parental rights, including:

(5) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
....
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child's care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.
(6) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent's custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child's age and his need for a safe, stable, and permanent home.

With respect to a parent's failure to substantially comply with a case plan as contemplated by La.Ch.Code art. 1015(6), La.Ch.Code art. 1036(C) states:

C. Under Article 1015(6), lack of parental compliance with a case plan may be evidenced by one or more of the following:
(1) The parent's failure to attend court-approved scheduled visitations with the child.
(2) The parent's failure to communicate with the child.
(3) The parent's failure to keep the department apprised of the parent's whereabouts and significant changes affecting the parent's ability to comply with the case plan for services.
(4) The parent's failure to contribute to the costs of the child's foster care, if ordered to do so by the court when approving the case plan.
(5) The parent's repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent's lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.
(8)(a) The parent's failure to provide a negative test result for all synthetic or other controlled dangerous substances, except for any drug for which the parent has lawfully received a prescription, at the completion of a reasonable case plan.
(b) For purposes of this Article, "controlled dangerous substance" shall have the meaning ascribed in R.S. 40:961.

The State is only required to establish one of these statutory grounds. State ex. rel. ML , 95-45 (La. 9/5/95), 660 So.2d. 830.

In State ex rel. D.H.L. , 08-39, pp. 4-5 (La.App. 3 Cir. 4/30/08), 981 So.2d 906, 910 (footnotes omitted), we discussed the State's burden of proof and our standard of review in connection with termination of parental rights proceedings as follows:

Our supreme court has recognized that the gravity of terminating parental rights requires our courts to impose a stricter standard of proof than the preponderance of the evidence standard; rather, the State must prove by clear and convincing evidence at least one of the statutory grounds contained in La.Ch.Code art. 1015 in order to terminate a parent's rights. See State ex rel. J.M. , 02-2089 (La. 1/28/03), 837 So.2d 1247 ; La.Ch.Code art. 1035(A). "Further, even upon finding that the State has met its evidentiary burden, a court still should not terminate parental rights unless it determines that to do so is in the child's best interests." State ex. rel. J.M. , 837 So.2d at 1253 ; see also La.Ch.Code art. 1037(B).
An appellate court cannot set aside a juvenile court's findings of fact regarding the termination of parental rights unless it is manifestly erroneous or unless those findings are clearly wrong. In re A.J.F. , 00-948 (La. 6/30/00), 764 So.2d 47 ; Rosell v. ESCO , 549 So.2d 840 (La.1989).

In Interest of CLS , 94-531, pp. 5-6 (La.App. 3 Cir. 11/2/94), 649 So.2d 532, 536 (internal citations omitted), we explained:

Proof by clear and convincing evidence requires a party to persuade the trier of fact that the fact or causation sought to be proved is highly probable, i.e. much more probable than its non-existence. This burden is an intermediate one between the burden of proof by a preponderance of the evidence and the burden of proof beyond a reasonable doubt. Proof by clear and convincing evidence requires more than a "preponderance" of the evidence, the traditional measure of persuasion, but less than "beyond a reasonable doubt," the stringent criminal standard.

We further keep in the mind the following, as recognized by the Louisiana Supreme Court in State ex rel. J.A. , 99-2905, pp. 7-8 (La. 1/12/00), 752 So.2d 806, 810-811 :

In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the law, Lassiter v. Department of Soc. Servs. , 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship, State in Interest of Delcuze , 407 So.2d 707 (La.1981). However, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. Lehman v. Lycoming County Children's Serv.'s Agency , 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982) ; see also State in the Interest of S.M. , 98-0922 (La. 10/20/98), 719 So.2d 445, 452. In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent. See, e.g., State in the Interest of S.M. , 719 So.2d at 452 ; State in the Interest of A.E. , 448 So.2d 183, 186 (La.App. 4 Cir.1984) ; State in the Interest of Driscoll , 410 So.2d 255, 258 (La.App. 4 Cir. 1982).

In its oral reasoning for terminating D.M.'s parental rights, the trial court stated as follows:

[D.M.] had um, a requirement to provide housing for the children. Um, Ms. Wilson [the case worker] testified that in October of 2017, that [D.M.] identified his sister as a possible relative ... placement. I don't think Ms. Wilson testified as to why that placement was not attempted, uh, but [D.M.] did offer that apparently his sister ... was going through some issues at that time, that he was unaware of, and that possibly that was a reason the children weren't placed there.
... Ms. Wilson testified that in November of 2017, that [D.M.] was released. Um, both Ms. Wilson and [D.M.] testified that there was a telephone communication at some point in November of 2017. Um, the substance of that telephone conversation was not really discussed. I believe Ms. Wilson testified that she was having difficulty hearing [D.M.] on the telephone call. Um, but Ms. Wilson testified that after that brief telephone call, that she had no other contact with [D.M.]
There was testimony that in October of 2017, Ms. Wilson discussed and provided a case plan to [D.M.] that outlined the requirements of his case plan which, according to her testimony, consisted of stable housing ... parental contributions. She testified that she was requiring substance abuse treatment due to a history of drug convictions.
Maintaining visits with the children, and maintaining contact with her. Ms. Wilson testified that after the November 17th phone conversation, she had no contact therefore, according to her testimony, there has been no provision of stable housing, no parental contributions, no visits with the children, no substance abuse treatment, uh, by [D.M.]
....
Given the time that has passed, and the improvements that are being made by the children in their foster home, um, the Court does not belief that there is a likelihood that ... [D.M.] would substantially comply with the case plan in the near future[.]

On appeal, D.M. argues that the State failed to sufficiently establish that: (1) D.M. failed to provide significant financial contributions for six consecutive months, as contemplated by La.Ch.Code art. 1015(5)(b) ; (2) D.M. failed to maintain contact with the children by visiting or communicating with them for six consecutive months, as contemplated by La.Ch.Code art. 1015(5)(c) ; and (3) D.M. failed to substantially comply with the case plan for more than a year after the children were removed, as contemplated by La.Ch.Code art. 1016(6). In support of his arguments, D.M. primarily relies on the fact that the termination hearing was held only six months after his positive DNA test in June 2018; therefore, according to D.M., he has not been provided with an adequate amount of time to comply with the case plan.

In response, the State notes that it sought termination of D.M.'s parental rights due to his alleged failure to comply with the court-ordered case plan, and abandonment by failing to financially support the children and/or have significant contact with them. It argues there is no support for D.M.'s position that he had no obligations under the case plan or otherwise with respect to the children until he underwent a DNA test in a separate Child Support Enforcement proceeding and obtained the results, especially when he had not challenged paternity in connection with the instant proceedings.

At the termination hearing, D.M.'s caseworker, Jerrica Wilson, testified that D.M. participated by phone as the father of K.D.M. and K.J.M. in connection with the development of the initial September 2017 case plan, noting that D.M. was incarcerated at the time. His phone participation is also reflected on the case plan document. Ms. Wilson further testified that she gave D.M. a copy of the case plan when she met with him in jail in October 2017. Also according to Ms. Wilson, approximately a week after D.M. was released from jail in November 2017, D.M. contacted her by phone and she advised him of a visitation scheduled that day; however, D.M. did not attend. Ms. Wilson further testified that D.M. did not make any further contact with her after November 2017 and failed to comply with any component of his case plan since the children had entered into the State's care in August 2017. He has not had any contact with the children or contributed financially for them since they came into the State's care in August 2017.

D.M. did not dispute his noncompliance with the case plan at the hearing. He admitted that he failed to contact his caseworker after November 2017. He also testified that at the time of the November 2018 termination hearing, he was incarcerated as a result of two misdemeanor charges and his release date was being "work[ed] on." He also indicated that he had a job "waiting for" him upon his release from jail. No other details regarding this job opportunity were provided. He further indicated that while he did not own a vehicle, he had "access" to one. When asked about his living situation upon being released from jail, he stated that his aunt and sister live with him, and he further testified as follows when questioned by the trial court:

Q. [D.M.] who ... did you list as possible family placement for the children?
A. Uh, uh, I listed my oldest sister, ... but I didn't know that she was going through trials and tribulations in her life at the time, because ... I did three and half (3/12) years in Tensas ... with no communication to the outside world whatsoever. When I left the street, my sister had a house, she had a car, and she was doing good. Now she got a three (3) bedroom trailer .... I've been there working on it. I did all the plumbing for her, ... I hooked the box up to the pole .... Lights, gas all that's on right now. And ... that will be my residence for me and my kids. My sister, she has a place already, but if I want to move there, I can move there with my kids, or I can take them to [another address] in Pineville.

When asked by the trial court regarding his attempts to contact his caseworker when not incarcerated, D.M. stated that he tried to call, and that he mistakenly thought he had go to court for it to tell him what to do because he had taken his mother's and grandmother's word that "they were going to get my kids back." He further testified that he did not fully understand the case plan due to his lack of education.

The facts in this case are undisputed that D.M. failed to comply with the case plan as contemplated by La.Ch.Code art. 1015(6) and that he abandoned the children by failing to make financial contributions or have contact with them for six consecutive months, as contemplated by La.Ch.Code art. 1015(5). Rather, D.M. argues that his failures should be excused because he did not have an adequate amount of time to satisfy these obligations given that his paternity was not verified by a DNA test until June 2018 and he had a reasonable basis to challenge his paternity.

However, we find no legal support for D.M.'s argument that he was not required to comply with a case plan that he willingly participated in as the children's father from the date of the plan's inception in September 2017 just because he waited nine months to ask for a DNA test. He did not challenge his paternity in these proceedings, rather he simply failed to sufficiently comply with the case plans.

In support of his position, D.M. cites to State in Interest of I.D. , 11-1570 (La.App. 3 Cir. 4/4/12), 87 So.3d 351, wherein this court affirmed the termination of the father's parental rights, but noted in the factual and procedural background section of the opinion that a hearing on the State's petition was rescheduled several times to allow the parties more time to work on their case plan. However, the I.D. court did not hold that the State was required to provide extra time for the parties to complete the case plan, but rather was merely setting forth the procedural background of the case. Therefore, we find I.D. inapplicable to the issues present in the instant matter.

We further note that in State ex rel. A.R. , 15-497, p. 8 (La.App. 3 Cir. 11/4/15), 178 So.3d 280, 286 (alternation in original), this court addressed, and rejected, a parent's defense that incarceration limited the amount of time available to satisfy a case plan, stating:

Imprisonment is not an excuse to escape parental obligations. State ex rel. C.M.O. , 04-1780 (La.App. 4 Cir. 4/13/05), 901 So.2d 1168. Incarceration is not a defense to failure to support or maintain contact with one's children in a termination of parental rights case, particularly because incarceration results from one's actions. State ex rel. M.H. v. K.W.H. , 40,332 (La.App. 2 Cir. 9/23/05), 912 So.2d 88. 1168.
State in the Interest of O.L.R. , 13-616, p. 5 (La.App. 3 Cir. 11/6/13), 125 So.3d 569, 573. This court opined that incarceration of a parent is the result of his/her own "conduct and actions" and may not be used "as an excuse for ... failing to substantially comply with [a] case plan." Id.

In addition to failing to comply with a case plan under La.Ch.Code art. 1015(6), abandonment for failing to contribute financially for the support of the children, or failing to contact the children, for six consecutive months, are also grounds for termination of parental rights. La.Ch.Code. art. 1015(5). This is so, even if a putative father's paternity has not been positively established, "in order to protect a child's interest in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships." State in Interest of D.B. , 16-694, p. 4 (La.App. 5 Cir. 12/8/16), 206 So.3d 1021, 1025. Therefore, the date that the DNA test was completed is irrelevant to the abandonment analysis, and we reject D.M.'s suggestion that we should not consider his failure to financially support or contact the children during the time prior to the June 2018 DNA test.

We conclude that the trial court's ruling is adequately supported by the record and find no merit in D.M.'s assignments of error.

CONCLUSION

For the reasons set forth above, we affirm the trial court's ruling in this matter. Costs of this appeal are assessed to Appellant, D.M.

AFFIRMED.

      Initials of the parties are used in this matter pursuant to Uniform Rules, Courts of Appeal - Rules 5-1 and 5 -2.

      We note that in the trial court and appellate counsel refer to K.J.M. as "K.C.M." However, for purposes of consistency with the docketing of this matter, we will use "K.J.M."

      D.M. also argues that the State failed to sufficiently prove that D.M.'s whereabouts were unknown for at least four months, as contemplated by La.Ch.Code art. 1015(5)(a) ; however, because the State did not seek, or obtain, relief on these grounds, we do not consider whether said grounds were sufficiently proven.


source: Caselaw Access Project

author: Judge Tiffany G. Chase

license: Public Domain

text:
    Rose GEORGE and Melvin George v. ABC INSURANCE COMPANY and Southern University New Orleans
    NO. 2019-CA-0124
    Court of Appeal of Louisiana, Fourth Circuit.
    May 8, 2019
    Don A. Rouzan, Dana Henry, DON A. ROUZAN & ASSOCIATES, LLC, 1010 Common Street, Suite 2410, New Orleans, LA 70112, COUNSEL FOR PLAINTIFFS/APPELLANTS
    William David Coffey, ASSISTANT ATTORNEY GENERAL LOUISIANA DEPARTMENT OF JUSTICE LITIGATION DIVISION, 1450 Poydras Street, Suite 900, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Tiffany G. Chase )
   Judge Tiffany G. Chase

Rose and Melvin George, (hereinafter "plaintiffs"), seek review of the trial court's October 1, 2018 judgment sustaining the Board of Supervisors of Southern University and Agricultural and Mechanical College's, (hereinafter "Board of Supervisors"), exception of insufficiency of service of process. After consideration of the record before this court and the applicable law, we reverse the decision of the trial court sustaining the exception of insufficiency of service of process.

FACTS AND PROCEDURAL HISTORY

The underlying claim in this matter involves injuries plaintiff Rose George allegedly suffered as a result of fainting while inside a facility located on the campus of Southern University New Orleans on June 25, 2016. Plaintiffs filed a petition for damages on May 2, 2017, naming Southern University New Orleans and ABC Insurance Company as defendants. Plaintiffs contemporaneously requested service on Southern University New Orleans, at its principle place of business, through the Chancellor's Office. Southern University New Orleans was served with the original petition for damages on May 15, 2017.

On January 24, 2018, plaintiffs filed a request for leave to file a first amended and supplemental petition for damages, which was granted by the trial court on February 1, 2018. Plaintiffs sought to add, as defendants to the litigation, the Board of Supervisors of Southern University and Agricultural and Mechanical College; State of Louisiana; and Southern University System. On the same date, service of the original and first amended and supplemental petitions for damages was requested on (1) the Board of Supervisors, Southern University and Agricultural and Mechanical College, through the Office of the Attorney General (service effectuated on February 2, 2018); (2) Southern University System Office of the Chancellor, through the Office of the Attorney General (service effectuated on February 2, 2018); (3) Office of the Chancellor, Southern University New Orleans (service effectuated on February 20, 2018); (4) State of Louisiana Office of Risk Management (service effectuated on February 8, 2018 ); and (5) State of Louisiana Office of the Attorney General (service effectuated on February 5, 2018).

The Board of Supervisors filed an exception of insufficiency of service of process on December 14, 2017. A hearing on the exception was held on August 10, 2018, and by judgment dated October 1, 2018, the trial court sustained the Board of Supervisors' exception dismissing plaintiffs' case without prejudice. The judgment was designated a final judgment and this appeal followed.

DISCUSSION

Plaintiffs present the following assignments of error: (1) the trial court erred in granting the Board of Supervisors' exception of insufficiency of service of process and (2) the trial court erred in dismissing their case rather than allowing an opportunity to cure the service defect.

A trial court's judgment dismissing a matter for failure to timely request service is reviewed under a manifest error standard of review. Llopis v. Louisiana State Bd. of Dentistry , 2013-0659, p. 5 (La.App. 4 Cir. 6/11/14), 143 So.3d 1211, 1214.

Plaintiffs acknowledge that service upon the Attorney General, Office of Risk Management and Board of Supervisors was requested more than 90-days after the filing of the original petition for damages. However, they argue the trial court erred in granting defendant's exception of insufficiency of service of process because service on the primary defendant, Southern University New Orleans, was requested through the Chancellor's Office within 90-days of commencement of the action. Plaintiffs also maintain that service was requested on the Attorney General, Office of Risk Management and Board of Supervisors within 90-days of filing the amended and supplemental petition for damages and thus, the subsequent service request sufficiently satisfied La. R.S. 13:5107.

Conversely, the Board of Supervisors maintain that service must be requested upon the State of Louisiana, through the Board of Supervisors, since Southern University New Orleans is managed by the Board of Supervisors and is not an entity with the power to sue or be sued. As such, the Board of Supervisors argues, service of the original petition for damages on the Chancellor's Office was insufficient. The Board of Supervisors also contends that the subsequent service requested when the amended and supplemental petition for damages was filed was untimely because service was not requested on the State of Louisiana in the original petition for damages.

The trial court found that plaintiffs had not properly requested service within 90-days of filing the original petition for damages. It also found that the service request in the amended and supplemental petition for damages did not satisfy the requirements of La. R.S. 13:5107.

The applicability of the 90-days service request period is contingent upon whether the State of Louisiana is properly named as a defendant in the original petition for damages. Thus, this Court must first address that threshold issue before determining if dismissal of the action, based on insufficiency of service of process, was proper.

Our analysis begins with the consideration of the applicable statutory authorities. Under La. R.S. 39:1538(D) :

In actions brought pursuant to this Section, process shall be served upon the head of the department concerned, the office of risk management, and the attorney general, as well as any others required by R.S. 13:5107....

La. R.S. 13:5107 provides, in pertinent part,:

(A)(1) In all suits filed against the State of Louisiana or a state agency, citation and service may be obtained by citation and service on the attorney general of Louisiana, or any employee in his office above the age of sixteen years, or any other proper officer or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and in accordance with the laws of this 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.
(2) Service shall be requested upon the attorney general within ninety days of filing suit....
* * * *
(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....
(2) 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....

In the case sub judice , the original petition for damages names the following defendant: "Southern University New Orleans ("SUNO") made a party defendant herein, is a non-profit corporation authorized to do and doing business in the State of Louisiana...." Plaintiffs did not name the State of Louisiana, or a state agency, as a party in the original petition for damages. La. R.S. 13:5107(D)(1) requires that service of process be requested within 90-days of the commencement of the action or filing of the supplemental or amended petition for damages when the state is initially named as a party. However, because the State of Louisiana was not a named party in the original petition for damages, plaintiffs had no obligation to request service upon the State of Louisiana within the statutory period of La. R.S. 13:5107.

Additionally, plaintiffs did not request service upon the State of Louisiana in their original petition for damages. Rather, service was requested on Southern University New Orleans Chancellor's Office. "The requirement that service upon defendant be requested within the 90-days period should reasonably be read to require an accurate request of service upon the proper agent for defendant." Barnett v. Louisiana State Univ. Med. Ctr.-Shreveport , 2002-2576, p. 2 (La. 2/7/03), 841 So.2d 725, 726. By requesting service upon Southern University New Orleans through the Chancellor's Office, in the original petition for damages, plaintiffs' service request was not directed toward the proper agent.

The 90-days period is not applicable because the State was not a named defendant. Additionally, the service request on Southern University New Orleans' Chancellor's Office is insufficient to prompt dismissal of plaintiffs' action for failure to request service within 90-days of filing the original petition for damages. Therefore, dismissal of plaintiffs' action was not warranted and the trial court erred in sustaining the Board of Supervisors exception of insufficiency of service of process.

As it pertains to the service requested in plaintiffs' amended and supplemental petition for damages, it is undisputed that service was requested on the Attorney General, Office of Risk Management and Board of Supervisors beyond 90-days of filing the original petition for damages. However, having determined that the State of Louisiana was not initially a named defendant in the original petition for damages, we pretermit further discussion of the service requested in plaintiffs' amended and supplemental petition for damages.

CONCLUSION

The initial service request on Southern University New Orleans' Chancellor's Office was insufficient to warrant dismissal of plaintiffs' action pursuant to La. R.S. 13:5107, where the State of Louisiana was not initially a named defendant in the original petition for damages. Since the State of Louisiana was not a named defendant, the 90-days service request period was not activated when plaintiffs filed the original petition for damages. Considering the foregoing, we find the trial court erred in sustaining the Board of Supervisors' exception of insufficiency of service of process. Accordingly, the judgment of the trial court is reversed and the matter remanded for further proceedings.

REVERSED AND REMANDED

      The Office of Risk Management was also served on March 7, 2018, at its New Orleans, Louisiana office.

      The Board of Supervisors also filed exceptions of lack of procedural capacity, vagueness and ambiguity, nonconformity to La. C.C.P. art. 891 and no cause of action. The trial court deemed the remaining exceptions moot in light of granting the exception of insufficiency of service of process.


author: HIGGINBOTHAM, J. CRAIN, J., concurring.

text:
    The LATHAN COMPANY, INC. v. The State of Louisiana, DIVISION OF ADMINISTRATION, Office of Facility Planning and Control
    NO. 2017 CW 0396 R
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JANUARY 24, 2019
    Lloyd N. Shields, Elizabeth L. Gordon, Adrienne C. May, New Orleans, LA, Attorneys for Plaintiff-Respondent, The Lathan Company, Inc.
    Scott Johnson, Bridget B. Denicola, Office of the General Counsel, Baton Rouge, LA, Attorneys for Defendant-Relator, State of Louisiana, Division of Administration, Office of Facility Planning and Control
    BEFORE: McDONALD, McCLENDON, HIGGINBOTHAM, CRAIN, AND HOLDRIDGE, JJ.
   HIGGINBOTHAM, J.

Defendant-Relator, the State of Louisiana, Division of Administration, Office of Facility Planning and Control (the State), filed for supervisory review of the trial court's denial of the State's declinatory exception raising the objection of insufficiency of service of process by the plaintiff-respondent, The Lathan Company, Inc.

FACTUAL AND PROCEDURAL HISTORY

On April 18, 2016, Lathan filed a petition through facsimile, naming the State as the defendant and seeking damages for breach of contract and violations of La. R.S. 3812191(A). The dispute arose out of a public works contract that Lathan entered into with the State for construction work at Jackson Barracks in New Orleans, Louisiana. On April 27, 2016, Lathan filed the original petition with the notation "Please Hold Service" on the final page. On July 15, 2016, Lathan faxed a letter to the Clerk of Court for the 19th Judicial District Court requesting that its petition be served on the "defendant, the State of Louisiana, Department of Administration, Office of Planning and Control." Lathan also requested a return facsimile acknowledging receipt and indicating whether any additional fees were owed for service. On that same day, the clerk's office responded, acknowledging receipt of the July 15, 2016 facsimile and stating that, "[i]n accordance with R.S. 13:850(B), within seven days, exclusive of holidays, the party filing the [facsimile] document shall forward to the clerk the original signed document, applicable fees and a transmission fee." On August 22, 2016, the clerk's office received an original document dated August 12, 2016, requesting service and the State was served on September 19, 2016.

On November 4, 2016, the State filed a declinatory exception of insufficiency of service of process asserting that Lathan failed to request service of the petition within ninety days of commencement of the action, as prescribed by La. Code Civ. P. art. 1201(C) and La. R.S. 13:5107(D)(1). Specifically, the State argued that Lathan's facsimile on July 15, 2016, requesting service of the petition, was of no effect because the original request was not forwarded within seven days, exclusive of legal holidays, as required by La. R.S. 13:850, the fax-filing statute. Therefore, the State maintained that Lathan's request for service was not timely, because Lathan's original document requesting service was not received until August 22, 2016, one hundred twenty-six days after Lathan filed its petition. In response, Lathan argued that under the precedent set in the supreme court case of Wilborn v. Vermillion Parish Police Jury, 2004-1074 (La. 7/2/04), 877 So.2d 985 (per curiam), its request for service on the State sent by facsimile on July 15, 2016, and received by the clerk on that day was sufficient and timely.

The matter came before the district court on January 9, 2017, after which the State filed a post-trial memorandum arguing for the first time that service requested by Lathan was also insufficient because Lathan did not request service on the attorney general as required by La. R.S. 13:5107(A)(2). On February 14, 2017, the district court signed a "Judgment with Written Reasons" overruling the State's exception of insufficiency of service of process and finding that under Wilborn , the fax-filing statute, La. R.S. 13:850, does not apply to the request for service by facsimile.

The State filed for supervisory review of the district court's ruling with this court. This court granted the State's writ, reversed the ruling of the district court, and granted the State's declinatory exception of insufficiency of service of process. Lathan applied for writs with the supreme court, which the supreme court granted and then remanded the matter back to this court for briefing, argument, and full opinion. Thus, the issue before this court for review is whether Lathan's request for service on the State via facsimile has force and effect when the requirements of La. R.S. 13:850 were not met, as well as whether Lathan's failure to request service on the attorney general within ninety days of the filing of the petition requires dismissal of the petition pursuant to La. R.S. 13:5107.

LAW AND ANALYSIS

A district court's ruling on an exception of insufficiency of service of process is reviewed under the manifest error standard. In Re Professional Liability Claim of Snavely , 2015-207 (La. App. 3rd Cir. 11/4/15), 178 So.3d 614, 619 ; Davis v. Caraway , 2014-264 (La. App. 5th Cir. 10/29/14), 164 So.3d 223, 225. However, when the facts are not disputed and the issue before this court is whether the district court properly interpreted and applied the law, the standard of review for questions of law is simply a review of whether the district court was legally correct or incorrect. See Babcock v. Martin, 2016-0073 (La. App. 1st Cir. 9/16/16), 2016 WL 4973229 *5 (unpublished).

Timeliness of Service Request/Applicability of La. R.S. 13:850 to a Request for Service on the State or a State Agency

The first issue this court must decide is whether a request for service on the State is timely pursuant to La. R.S. 13:5107(D)(1), which mandates that in all suits in which a state agency is named as a party, "service of citation shall be requested within ninety days of the commencement of the action" when the request for service on the state is by facsimile transmission within ninety days of the filing of the original petition, but the original service document is not forwarded to the clerk's office within seven days exclusive of legal holidays.

Louisiana Revised Statute 13:850, which was in effect at the time Lathan requested service via facsimile on July 15, 2016, pertinently provided :

A. Any paper in a civil action may be filed with the court by facsimile transmission. All clerks of court shall make available for their use equipment to accommodate facsimile filing in civil actions. Filing shall be deemed complete at the time that the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court. The facsimile when filed has the same force and effect as the original.
B. Within seven days, exclusive of legal holidays, after the clerk of court has received the transmission, the party filing the document shall forward the following to the clerk:
(1) The original signed document.
(2) The applicable filing fee, if any.
(3) A transmission fee of five dollars.
C. If the party fails to comply with the requirements of Subsection B, the facsimile filing shall have no force or effect. The various district courts may provide by court rule for other matters related to filings by facsimile transmission.

Lathan sent through facsimile the request for service on the State on July 15, 2016, within ninety days of filing the petition on April 18, 2016, but did not forward the original document to the clerk's office within seven days exclusive of legal holidays, after the clerk received the facsimile request. The supreme court considered a similar issue in Wilborn, 877 So.2d at 985. In Wilborn, the supreme court summarily reinstated a judgment of the district court, which held a facsimile request for service received within ninety days was timely, even though the requirements of La. R.S. 13:850 had not been satisfied. The supreme court stated:

La. R.S. 13:5107(D) provides that in suits against the state or a political subdivision, service of citation shall be requested within ninety days of the commencement of the action. Nothing in that statute requires that the request be filed with the court. The court of appeal's reliance on the fax-filing statute, La. R.S. 13:850, is misplaced, as that statute deals with the requirements for filing papers in civil actions.

Wilborn, 877 So.2d at 985.

Thereafter, in Tranchant v. State of Louisiana, Louisiana State University Health Sciences Center, 2008-0978 (La. 1/21/09), 5 So.3d 832, 836, the supreme court was called to determine whether a request for service is deemed made when a letter containing service instructions is mailed or when it is received by the clerk's office. In Tranchant, the plaintiff filed suit on August 3, 2006, and asked that service be held. On November 2, 2006 (the 90th day), plaintiffs' counsel mailed a service request with payment for service. The service request was received on November 8, 2006. In finding that service was not requested timely, the supreme court held "[i]n our view, 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. "A valid request for service under La. R.S. 13:5107(D)(1) is made when the clerk receives the request for service and can then act on it." Tranchant, 5 So.3d at 838. Additionally, the supreme court pointed out that requiring that service on state defendants shall be requested within ninety days of the commencement of the action or be subject to dismissal is not a punitive concept. Rather, like abandonment, the ninety-day request of service rule balances the policies of seeing that every litigant has his day in court with the policy that lawsuits, once filed, should be prosecuted without unreasonable delay. In fact, it appears that by adopting the ninety-day request of service rule, the legislature indicated its intent to shift the balance in favor of moving cases, once filed, more quickly through the judicial system. Tranchant, 5 So.3d at 835.

Then in Morales v. State ex rel. Board of Supervisors of LSU ex rel. Earl K. Long Medical Center, 2012-2301 (La. 1/11/13), 106 So.3d 104 (per curiam), the supreme court was faced with the issue of whether service upon a state entity is timely pursuant to La. R.S. 13:5107(D), where the request for service is made by facsimile filing within ninety days from the filing of the petition, but the facsimile filing is not perfected under La. R.S. 13:850 until five days later when the fees are paid. In Morales, this court found service was not "requested" under Tranchant because the clerk's office could not act on the service request without the filing of fees, which were received ninety-five days after the filing of the original petition. Morales v. State ex rel. Board of Supervisors of LSU, 2012-0077 (La. App. 1st Cir. 9/21/12), 104 So.3d 130, 136-37, writ granted, 2012-2301 (La. 1/11/13), 106 So.3d 104. In overruling this court, the supreme court held that the service request was received by the clerk's office within the ninety-day period, and pursuant to La. R.S. 13:850(A), such a filing "shall be deemed complete at the time that the facsimile transmission is 'received' and a receipt of transmission has been transmitted to the sender by the clerk of court." Morales, 106 So.3d at 104.

The supreme court in Morales pointed out that La. R.S. 13:850(C) provides "[i]f the party fails to comply with the requirements of Subsection B [relative to filing of original documents and payment of fees], the facsimile filing shall have no force or effect." But the Morales court noted that it was undisputed that plaintiffs complied with all necessary requirements within five days. Therefore, the supreme court found that the request for service was received within ninety days. In a footnote in Morales, the supreme court acknowledged the holding in Wilborn but stated that, "We need not pass on the applicability of that holding in the instant case, as it is undisputed plaintiffs complied with the requirements of La. R.S. 13:850." Morales, 106 So.3d at 105 n.1. The Morales court appeared to relax the interpretation set forth in Tranchant that service is requested when it can be acted on, since, in Morales, the fees were not paid until the ninety-fifth day.

Here, Lathan did not comply with the requirements of La. R.S. 13:850, as the original document requesting service was not forwarded to the clerk's office until nearly a month after the facsimile requesting service. Thus, considering the jurisprudence we must consider whether Lathan's failure to comply with La. R.S. 13:850 renders the facsimile request for service on the State to be without force or effect. After thorough consideration of the current jurisprudence, we conclude that Morales provides that a party can request service through facsimile and follow the requirements of the fax-filing statute (by forwarding the original as well as the applicable filing and transmission fees within seven days exclusive of legal holidays) and benefit from the payment of fees and/or filing of the original relating back to the facsimile requesting service under La. R.S. 13:850. While the Morales court applied La. R.S. 13:850 to a request for service on the State, it did not overrule Wilborn. Accordingly, Wilborn is still currently the law which states that a request for service does not have to be filed. Therefore, the requirements of La. R.S. 13:850 are not mandatory and the failure to forward the original to the clerk's office within seven days does not render the facsimile request without force and effect.

Nevertheless, under our jurisprudence in Jenkins, which held "a request for service without payment of required fees, or without leave of court excusing such payment because of pauper status, simply is no proper request at all[,]" a facsimile request without payment of fees or money in the account to effectuate service within ninety days is not a proper request. See Jenkins v. Larpenter, 2004-0318 (La. App. 1st Cir. 3/24/05), 906 So.2d 656, 659, writ denied, 2005-1078 (La. 6/17/05), 904 So.2d 711. Consequently, although we agree with Lathan that Wilborn is currently the law, Lathan had to have money in its account for the clerk to effectuate service. Lathan introduced the accounting report from the clerk's office which appears to show there was money in its account for service. This evidence was uncontradicted by the State. In this matter, granting the State's motion for insufficiency of service of process would have the effect of Lathan's claim being dismissed, adversely affecting Lathan's constitutional right of access to the court. Therefore, we conclude if plaintiffs make a request for service, even by facsimile, and pay for service within ninety days of filing the petition, service is "requested" under La. R.S. 13:5107. Lathan's request for service as well as its payment of fees was within ninety days of filing the petition, satisfying the requirements of La. R.S. 13:5107.

Service on the Attorney General

The parties do not dispute that Lathan requested service on the Division of Administration, through its director, but did not and has not requested service on the attorney general. Louisiana Revised Statute 13:5107 provides in pertinent part:

A. (1) In all suits filed against the state of Louisiana or a state agency, citation and service may be obtained by citation and service on the attorney general of Louisiana, or on any employee in his office above the age of sixteen years, or any other proper officer or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and in accordance with the laws of this 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.
(2) Service shall be requested upon the attorney general within ninety days of filing suit. This shall be sufficient to comply with the requirements of Subsection D of this Section and also Code of Civil Procedure Article 1201(C). However, the duty of the defendant served through the attorney general to answer the suit or file other responsive pleadings does not commence to run until the additional service required upon the department, board, commission, or agency head has been made.
B. 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 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.
* * *
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. If not waived, a request for service of citation upon the defendant shall be considered timely if requested on the defendant within the time period provided by this Section, notwithstanding insufficient or erroneous service.
(2) 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.
(3) When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof; however, the effect of interruption of prescription as to other persons shall continue.

In favor of its position that service of the attorney general is mandatory, the State points to subsection (A)(2) of the statute, as amended in 2012, which provides that "[s]ervice shall be requested upon the attorney general within ninety days of filing suit." (Emphasis added.) In response, Lathan cites the supreme court case of Whitley v. State ex rel. Board of Supervisors of Louisiana State University Agr. Mechanical College, 2011-0040 (La. 7/1/11), 66 So.3d 470, and argues that even after the amendment to the statute, Whitley is still good law and the amendment does not change the law or alter plaintiffs' election among service options given in (A)(1). Instead, the amendment merely clarified the requirements of the existing law concerning the deadline for requesting service on the attorney general.

In 2011, in Whitley, the supreme court was faced with the question of whether plaintiff's failure to request service on the attorney general within ninety days of the filing of the petition required dismissal pursuant to La. R.S. 13:5107. The supreme court thoroughly considered subsection (A)(1) of the statute and determined that the phrase, "may be obtained," modified all of the phrases after it, including those appearing after the conjunctive "and." The supreme court therefore concluded that, from a grammatical standpoint, the statute should read that citation and service:

1. may be obtained by citation and service on the attorney general of Louisiana, or on any employee in his office above the age of sixteen years, or any other proper officer or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and
2. may be obtained by citation and service on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and
3. may be obtained by citation and service 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.

Whitley, 66 So.3d at 477.

The court further concluded that, "[p]roviding permission to request service on the [attorney general] and the head of the agency does not impose a requirement that the plaintiff's request for service pertain to both." Id. In support of this conclusion, the court focused on the legislature's use of the permissive term "may," rather than the mandatory terms "shall" or "must." Id.

The supreme court in Whitley , 66 So.3d at 478, also pointed out that the consequences for dismissal are harsh and there is a policy in favor of maintaining actions. The Whitley court concluded that if the legislature's word choice makes La. R.S. 13:5107(A) susceptible to two possible constructions, the statute should be construed in favor of maintaining the plaintiff's claim. Id.

After the supreme court's decision in Whitley, the statute was amended by the addition of subsection (A)(2), effective on June 12 2012, but subsection (A)(1) was not changed. Thus, subsection (A)(1) as pointed out in Whitley uses the permissive "may" giving three persons who can be served, but subsection (A)(2) uses the mandatory "shall" stating that the attorney general "shall" be served within ninety days. See La. Code Civ. P. art. 5053 (The word "shall" is mandatory, and the word "may" is permissive.) A review of the legislative history from the 2012 House Legislative Services digest states that the "proposed law [ La. R.S. 13:5107 presented as SB 308 and enacted as Act. No. 770] retains prior law and adds that service shall be requested upon the attorney general within 90 days of filing suit" and in the summary of house amendments to the senate bill specifies "that service 'shall' not 'must', be requested on the attorney general within 90 days of filing suit." Louisiana Resume Digest, S.B. 308, 2012 Reg. Sess. (La. 2012). (The language of the original bill which stated "must" was changed to "shall" by the house committee on civil law and procedure.)

Under well-established rules of statutory interpretation, a more detailed provision prevails over a more general provision addressing the same subject matter, and the latest prevails over previously enacted conflicting provisions. See Black v. St. Tammany Parish Hospital, 2008-2670 (La. 11/6/09), 25 So.3d 711, 717 ; see also Malone v. Shyne, 2006-2190 (La. 9/13/06), 937 So.2d 343, 352. To the extent that section (A)(1) may be construed to conflict with section (A)(2), the latter, a more recent and more specific provision, prevails. State ex rel. Moreau v. Castillo, 2007-1865 (La. App. 1st Cir. 9/24/07), 971 So.2d 1081, 1083, (per curiam), writ denied, 2007-1900 (La. 9/28/07), 964 So.2d 349, cert. denied, 552 U.S. 1110, 128 S.Ct. 896, 169 L.Ed.2d 748 (2008).

Furthermore, the last sentence of subsection (A)(2) points out that "the duty of the defendant served through the attorney general to answer the suit or file responsive pleadings does not commence to run until the additional service required upon the department, board, commission, or agency head has been made ." This language clearly contemplates that service upon the attorney general as well as an additional service is required in suits against the State or a state agency.

However, while we agree with the State that service upon the attorney general is mandatory, the statute thereafter becomes unclear about what effect the failure to timely request service on the attorney general has on plaintiff's suit. The language mandating service on the attorney general is in subsection (A)(2), but the consequence for the failure to timely request service is in subsection (D)(2) and provides the result of the failure to serve a party only under subsection (D). Subsection (D)(2) states "[i]f 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." (Emphasis added.) Furthermore, the general provision regarding service of process requires service on "all named defendants within ninety days of commencement of the action" and the attorney general is not a "named defendant" in Lathan's petition. See La. Code Civ. P. art. 1201(C).

Considering the harsh consequence of dismissal and the policy favoring maintaining actions, we conclude that the legislature's addition of (A)(2) mandating service on the attorney general without providing the consequences for failure to timely request service on the attorney general creates a gap in the law and this gap should be construed in favor of maintaining Lathan's claim. See Whitley, 66 So.3d at 478. Cf. Lima v. Schmidt, 595 So.2d 624, 629 (La. 1992) (holding that of two possible constructions of a prescription statute, one barring the action and one maintaining it, the statute will be read in such manner as to maintain the claim). Having determined that the law is unclear regarding what the consequences are for Lathan's failure to serve the attorney general, we conclude that dismissal under La. R.S. 13:5107 is not mandatory, and find no error in the district court's judgment dismissing the State's declinatory exception raising the objection of insufficiency of service of process.

CONCLUSION

For the foregoing reasons, we grant the State's writ to consider the merits, but deny relief, finding no error in the judgment of the district court overruling the State's exception of insufficiency of service of process. The matter is remanded for further proceedings.

WRIT GRANTED TO CONSIDER THE MERITS; RELIEF DENIED; REMANDED FOR FURTHER PROCEEDINGS.

McDonald, J. concurs in the result only

McClendon, J. concurs with the result reached.

Holdridge, J. dissents w/ reasons

Crain, J. concurs and assigns reasons

CRAIN, J., concurring.

The record before us does not confirm that the attachments to the writ application and briefs were introduced into evidence; therefore, I disagree that they can be considered in reaching a decision in this matter. See Dickerson v. Blair, 97-0851 (La. App. 1 Cir. 12/29/97), 705 So.2d 1165, 1166, writ denied, 98-0272 (La. 3/20/98), 715 So.2d 1218. Further, what constitutes a request for service under Louisiana Revised Statute 13:5107D is governed by the supreme court's decisions in Wilborn v. Vermillion Parish Police Jury, 04-1074 (La. 7/2/04), 877 So.2d 985 (per curiam ), and Morales v. State ex rel. Board of Supervisors of LSU , 12-2301 (La. 1/11/13), 106 So.3d 104 (per curiam ). This court's decision in Jenkins v. Larpenter, 04-1318 (La. App. 1 Cir. 3/24/05), 906 So.2d 656, writ denied, 05-1078 (La. 6/17/05), 904 So.2d 711, is not applicable because it conflicts with Morales. Therefore, even assuming the record contained proof of the dates relied on by the majority, the faxed request would be timely, despite its inadequacies as a filing.

The parties do not dispute that service on the attorney general was neither requested nor accomplished; therefore, whether the plaintiff failed to timely request service for this reason presents a legal question of statutory interpretation that we may consider on the record before us. See Franks v. Louisiana Patient's Compensation Fund Oversight Board, 16-0765 (La. App. 1 Cir. 5/3/17), 220 So.3d 862, 866, writs denied , 17-0868, 17-0877 (La. 9/29/17), 227 So.3d 294. The 2012 amendment to R.S. 13:5107A(2) that requires service on the attorney general within 90 days did not alter the interpretation of Part A(1) set forth in Whitley v. State ex rel. Board of Supervisors of Louisiana State University Agricultural Mechanical College, 11-0040 (La. 7/1/11), 66 So.3d 470. Contra Cutler v. State, Dept. of Public Safety & Corrections, 13-971 (La. App. 3 Cir. 2/12/14), 153 So.3d 1109. Thus, service on the attorney general is available, but not necessary. Part A(2) applies only if the attorney general is served pursuant to Part A(1). This interpretation gives effect to all parts of the statute and avoids making any part superfluous or meaningless. See Montgomery v. St. Tammany Par. Gov't. by & through St. Tammany Par. Council, 17-1811 (La. 6/27/18), --- So. 3d ----, ---- (2018 WL 3151290).

HOLDRIDGE, J., DISSENTS, AND ASSIGNS REASONS.

I respectfully dissent in this matter. I agree with the majority opinion as to the timeliness of the service request, but I disagree with that part of the opinion on the effect of Lathan's failure to request service on the attorney general. The amendment to La. R.S. 13:5107(A)(2) without question requires two services, one on the attorney general and one on the department, board, or commission. Furthermore, one request for service must be made within 90 days of the filing of the commencement of the action in accordance with La. R.S. 13:5107(D)(1). As the majority opinion recognizes, subsection A(2) mandates a request of service on the attorney general. ("Service shall be requested upon the attorney general.") It does not allow for a waiver or for service not to be made on the attorney general and the suit to go forward. See La. R.S. 13:5107(A)(2) ("[T]he duty of the defendant ...to answer the suit or file other responsive pleadings does not commence to run until the additional service... has been made."). Additional service can only mean that there must be two services under this statute.

While it is beyond question that the attorney general must be served, the article does not delineate the penalty if service is not requested on the attorney general, but instead is only requested on the defendant/department. Therefore, the real issue is, what is the penalty for non-service on the attorney general when there is service on the department? Clearly, subsection D does not apply since we have service on a party-the department. La. C.C.P. art. 1201(C) does not apply because we have service requested on the named defendant. The language of La. C.C.P. art. 932(A), "[w]hen the grounds of the objections ... may be removed by...other action of plaintiff," should be used to grant the exception of insufficiency of service of process filed by the attorney general since service was not requested or served on the attorney general as required by La. R.S. 13:5107(A)(2).

In accordance with La. C.C.P. art. 932(A), this court should order the plaintiff to request service on the attorney general within fifteen days or his suit will be dismissed without prejudice. This interpretation would make all parts of the statute meaningful. Both the attorney general and department must be served before a suit can go forward, and at least one of them has to have service requested on it within 90 days so that dismissal under La. R.S. 13:5107(D) will not apply. I think the language in Whitley v. State ex rel. Bd. of Sup'rs of Louisiana State University Agr. Mechanical College, 2011-0040 (La. 7/1/11), 66 So.3d 470, 481, that says only one service request is necessary has been legislatively overruled by subsection A(2).

Therefore, I respectfully dissent from the majority's affirmation of the trial court's judgment overruling the State's exception of insufficiency of service of process.

      Regarding public contracts, Louisiana Revised Statute 38:2191(A) provides: "All public entities shall promptly pay all obligations arising under public contracts when the obligations become due and payable under the contract. All progressive stage payments and final payments shall be paid when they respectively become due and payable under the contract."

      The transcript of the hearing on the exception was not in the record; therefore, it was unclear if the following documents attached to Lathan's writ application were introduced into evidence: the July 15, 2016 facsimile; the clerk's office's response to the facsimile; and the August 12, 2016 letter. However, each document was directed to or from the clerk's office and the trial court could take judicial notice of the documents. See Louisiana Lift & Equipment, Inc. v. Eizel , 33,747 (La. App. 2d Cir. 11/1/00), 770 So.2d 859, 864 (a trial court may take judicial notice of records in its own clerk's office.). Additionally, the clerk's docket report results printout that was included in the record clearly revealed that Lathan's letter requesting service was received by the clerk's office via facsimile on July 15, 2016, and Lathan's original document requesting service was received by the clerk's office on August 22, 2016, and neither party disputed the authenticity of the documents.

      Louisiana Revised Statute 13:850 was amended by 2016 Acts 109, § 1, effective August 1, 2016.