Opinion
No. 2020-CC-01020
05-13-2021
Albert Glen DAVIS v. STATE of Louisiana THROUGH the LOUISIANA RACING COMMISSION, et al.
This case presents a res nova legal issue: whether a suit against the state, in which plaintiff fails to request service within 90 days and which was dismissed for insufficient service of process, interrupts prescription on the second suit filed before dismissal of the first. For the reasons set forth herein, we hold that the plain language of La. R.S. 13:5107(D)(3) makes clear that the plaintiff's second suit was untimely and the first suit did not interrupt or suspend prescription as to the state defendants. Accordingly, because the state defendants’ exception of prescription should have been granted, the trial court's ruling denying the exception of prescription is reversed.
BACKGROUND
In 2017, Albert Glen Davis filed suit against the Louisiana State Racing Commission ("Commission") as well as Edward Todd, DVM ("Dr. Todd"), and Jocko Fontenot (collectively, "state defendants"), and several other individuals. Plaintiff alleged he suffered damages due to the misidentification of his horse as the winner of a horse race in December 2016. In this action, plaintiff requested service on the Commission through its executive director, Charles A. Gardiner III, Mr. Fontenot, and Dr. Todd, under the long-arm statute. Service was effected on the Commission and Mr. Fontenot. Plaintiff was unable to serve Dr. Todd. He also failed to request service on the Louisiana Attorney General or the Office of Risk Management within ninety days of the commencement of the suit. In January 2019, the state defendants filed an exception of insufficiency of service and a motion to dismiss for failure to timely request service as required by La. R.S. 39:1538(D) and La. R.S. 13:5107. The exception and motion were scheduled for hearing on March 19, 2019. Immediately following that hearing, the trial court dismissed plaintiff's suit without prejudice pursuant to R.S. 13:5107(D)(2). Plaintiff did not appeal this judgment, and it is now final. La. C.C.P. arts. 2082, 2083(A), and 2087(A).
According to the petition, plaintiff's horse "Tough to the Bone" and another horse of similar size and appearance, "Willieverwin," were in the care of the same trainer. On December 20, 2016, Willieverwin was entered into a race. As part of the pre-race examination, the trainer's stablehands presented a horse they identified as Willieverwin to Dr. Todd, the state veterinarian. Plaintiff alleges that the horse examined that morning was not Willieverwin, but was Tough to the Bone, and further alleges that Dr. Todd "failed to detect" that the horse he examined was Tough to the Bone. At the race that evening, Tough to the Bone, racing as Willieverwin, finished sixth.
On December 22, 2016, Tough to the Bone was entered into a race. During the pre-race procedure, the trainer's stablehands presented Willieverwin, rather than Tough to the Bone, to Dr. Todd for examination, but identified the horse as Tough to the Bone. Plaintiff alleges that Dr. Todd "failed to detect" that the horse was Willieverwin, not Tough to the Bone. At the race that evening, Willieverwin, racing as Tough to the Bone, finished in first place, and plaintiff received proceeds in the amount of $5,040. When the race was over, Mr. Fontenot, serving as the "Test Barn Official," also failed to detect that the horse was not Tough to the Bone. The error was later discovered by a "substitute state veterinarian," and plaintiff was ordered to refund the award. Plaintiff alleges he did not have the funds to make the repayment, and because of this, the racetrack suspended him. He complains that he was forced to dispose of his ownership interest in thoroughbred racehorses and can no longer enjoy horseracing and prays for relief.
The record establishes that the assistant attorney general advised plaintiff's counsel of this defect in March 2018, yet he never took curative steps. In his original opposition to the state defendants’ exception, plaintiff's counsel deemed this an "oversight."
La. R.S. 39:1538(D) provides that in claims against the state or its agencies, "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(A) requires that in all suits filed against the state or a state agency, service "shall" be requested upon the attorney general within 90 days of filing suit, and R.S. 13:5107(D)(1) and (2) provide that the action "shall" be dismissed without prejudice as to the state if service is not requested within 90 days. See generally Whitley v. State ex rel. Bd. of Supervisors of La. State Univ. Agr. Mech. College , 2011-0040 (La. 7/1/11), 66 So. 3d 470.
Because the dismissal of the first lawsuit is final, this opinion does not address the merits of the dismissal. The transcript indicates that plaintiff's attorney did not appear at the hearing.
Meanwhile, on March 18, 2019, one day before the scheduled hearing, plaintiff filed a second suit—the underlying action here—asserting the same allegations against the same state defendants as he did in the first suit. On March 19, 2019, plaintiff filed an amended petition for damages, naming additional non-state defendants. He requested service on all defendants. Thus, the second suit was filed one day before the exception of prescription was granted in the first suit.
In response to plaintiff's second suit, the state defendants filed an exception of prescription, asserting plaintiff's 2019 petition was prescribed on its face, because the alleged acts of negligence, for which the prescriptive period is one year, occurred in December 2016. As to the dismissed 2017 suit, the state defendants asserted that La. R.S. 13:5107(D)(3) applies and, pursuant to that statute, the filing of an earlier action "shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof." Plaintiff opposed the exception, arguing the second suit was timely because prescription was interrupted under La. Civ. Code art. 3463. The trial court agreed, denying the state defendants’ exception of prescription and finding that pursuant to La. Civ. Code art. 3463, prescription was interrupted by the filing of the first suit and continues as long as the suit is pending. Because the plaintiff filed the second suit on March 18, and did not dismiss the original suit until March 19, there was "no issue" as to prescription. The state sought review and the Court of Appeal, Third Circuit, denied the state defendants’ writ. This Court thereafter granted the writ. Davis v. State, through the La. Racing Commission, et al. , 20-1020 (La. 11/18/20), 304 So.3d 71.
La. Civ. Code art. 3463 provides, in pertinent part: "An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. ..."
DISCUSSION
The objection of prescription is raised by the peremptory exception. La. C.C.P. art. 927(A)(1). Ordinarily, the exceptor bears the burden of proof at the trial of the exception. However, if prescription is evident on the face of the petition, the burden shifts to the plaintiff to show the action has not prescribed. Campo v. Correa , 01-2707 (La. 6/21/02), 828 So. 2d 502, 508. Where, as here, the petition alleges a delictual action, the liberative prescription period is one year from the day the injury or damage is sustained. La. C.C. art. 3492. Because plaintiff's alleged injury occurred on December 20, 2016, and this suit was filed on March 18, 2019—over two years later—it is plaintiff's burden to prove his action has not prescribed.
The trial court found that the first suit interrupted prescription under Civil Code arts. 3462 and 3463. Article 3462 provides that prescription is interrupted when the suit is filed "in a court of competent jurisdiction and venue." Article 3463 then provides that interruption "continues as long as the suit is pending." If this general rule applies, plaintiff's first suit, which was timely filed in a competent court and proper venue, would have interrupted prescription until the first suit was dismissed on March 19, 2019. The trial court held that, because the second suit was filed before the first was dismissed, the second suit was timely.
We find the trial court's reliance upon these general provisions was in error, as it does not take into consideration the more specific statute, La. R.S. 13:5107(D)(3), related to service of state defendants under the Louisiana Governmental Claims Act. Rules of statutory construction provide that 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 more general provision. LeBreton v. Rabito , 97-2221 (La. 7/8/98), 714 So. 2d 1226. Because Civil Code art. 3463 and La. R.S. 13:5107(D)(3) both address interruption of prescription, the question is whether the two provisions can be harmonized.
La. R.S. 13:5107(D)(3) applies here and cannot be harmonized with La. C.C. arts. 3462 and 3463. Revised Statute 13:5107(D)(3) provides:
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.
This statute is part of a larger scheme, La. R.S. 13:5101, et seq ., known as the Louisiana Governmental Claims Act, which "applies to any suit in contract or for injury to person or property against the state, a state agency, an officer or employee of the state or a state agency arising out of the discharge of his official duties or within the course and scope of his employment." La. R.S. 13:5101(B). It is uncontested that the Commission is a state agency as defined by La. R.S. 13:5102, and that Dr. Todd and Mr. Fontenot are employees of a state agency and were discharging their official duties. See also La. R.S. 4:144(A) (creating the Louisiana State Racing Commission).
In LeBreton , we found that the Medical Malpractice Act contains "special provisions" for prescription and interruption, and noted that the legislative intent in enacting those special provisions as part of the medical malpractice scheme was "clear" and excluded the application of general codal articles. Id. , 97-2221, p.10, 714 So. 2d at 1231. See also Borel v. Young , 989 So. 2d 42 (La. 2007) (" LeBreton clearly stands for the principle that medical malpractice claims are governed by the specific provisions of the Medical Malpractice Act regarding suspension of prescription, to the exclusion of the general codal articles on interruption of prescription."). The same is true here—the Governmental Claims Act is a comprehensive statutory scheme enacted by the Legislature to apply to claims made by litigants against the state. See La. Const. art. 12 § 10 (C) (directing the Legislature to "provide a procedure for suits against the state, a state agency, or a political subdivision"). The prescription articles contained therein have direct application to claims made against the state, its agencies, and its employees, and apply to the exclusion of general Civil Code provisions related to interruption.
Further, there is an actual conflict between the code articles and La. R.S. 13:5107(D)(3). Civil Code articles 3462 and 3463 provide that prescription is interrupted when the action is commenced, and interruption continues as long as the suit is pending. On the other hand, La. R.S. 13:5107(D)(3) provides that when the action is against the state and it is dismissed pursuant to the statute, the filing of the action "shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision ...." In other words, the Civil Code articles address generalities about when lawsuits interrupt prescription. In contrast, the more specific statute provides for no interruption at all after a dismissal under the subsection where the state is a defendant ("shall not interrupt or suspend..."). Those fundamentally contrasting approaches—that is, in general cases versus when the state is a defendant—prevent harmonization.
Having found that La. R.S. 13:5107(D)(3) applies, we turn to the interpretation of the statute, in which we are guided by well-established rules of statutory construction. Legislation is the solemn expression of the legislative will; thus, the interpretation of legislation is primarily the search for legislative intent. La. Civ. Code art. 2 ; Kirt v. Metzinger , 19-1162, p.6 (La. 4/3/20), ––– So. 3d ––––. The starting point for interpreting any statute is the language of the statute itself, as the text of the law is the best evidence of legislative intent. See La. R.S. 1:4 ("When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit."); La. R.S. 24:177B(1) ("The text of a law is the best evidence of legislative intent."). When the law is clear and unambiguous and its application does not lead to absurd consequences, its language must be given effect, and its provisions must be construed to give effect to the purpose indicated by a fair interpretation of the language used. La. Civ. Code art. 9. Words and phrases must be read in context and construed according to the common and approved usage of the language. La. R.S. 1:3. See also Kirt , 19-1162, p.6, ––– So. 3d at ––––.
The narrow legal issue that remains is whether La. R.S. 13:5107(D)(3) provides that a suit against the state, in which plaintiff fails to request service within ninety days, has the effect of interrupting prescription on a second, substantially similar suit, filed prior to the dismissal of the first suit. The first clause of this statute provides: "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 ..." Plaintiff's first suit was dismissed without prejudice pursuant to La. C.C.P. art. 1672(C) and La. R.S. 13:5107(D)(2), because plaintiff failed to serve the Attorney General or the Office of Risk Management within 90 days of the commencement of the suit. The article therefore applies to this case. The second clause states: "[T]he 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..." (emphasis added). Since La. R.S. 13:5107(D)(3) mandates that the filing of the dismissed action "shall" not interrupt or suspend the running of prescription against state defendants, the statute's plain language prohibits plaintiff from relying upon his original petition in any manner for the interruption of prescription against the state defendants here. La. R.S. 1:3 ("The word ‘shall’ is mandatory."). As a result, the first suit did not serve to interrupt or suspend the running of prescription against the state defendants, and the claim prescribed on December 20, 2017. Under the plain language of the statute, plaintiff's initial petition had no effect.
This proposition finds support in this Court's unanimous decision in Bordelon v. Medical Center of Baton Rouge , 03-0202 (La. 10/21/03), 871 So. 2d 1075, in which we held that, in the context of non-state defendants, the first-filed suit interrupted prescription even if service was not requested within 90 days. In dicta , the Court distinguished that situation from one where the state is a defendant:
Prescription is interrupted by the timely filing of a lawsuit in a court of competent jurisdiction and venue, and continues as long as that suit is pending. A request for service of citation upon the defendant or defendants is required within 90 days, after which time, the court, on its own motion or that of any other party, shall dismiss from the action the defendant against whom service was not requested, unless good cause for non-service within 90 days is shown. However, unless that unserved party is the state , that lawsuit, although not timely served, interrupts prescription, unless the court finds that failure to request service was due to the plaintiff's bad faith. In that case, interruption of prescription is considered never to have occurred.
Id. , 03-0202, p. 11, 871 So. 2d at 1084 (emphasis added). Our decision is also supported by the interpretation of the federal appellate court, applying Louisiana procedural law. See Cruz v. State of La. ex rel. Dept. of Public Safety & Corrections , 528 F.3d 375, 381 (5th Cir. 2008) (finding that, under La. R.S. 13:5107(D), "a suit brought against an agency and later dismissed for failure to timely serve does not interrupt Louisiana's prescriptive period").
While the facts giving rise to these cases differ, the appellate courts of our state have similarly interpreted this provision. See , e.g. , Wright v. State on Behalf of Alleyn, 2019-0499 (La. App. 4 Cir. 8/5/20), ––– So. 3d –––– (Ledet, J., joined by Chase, J., concurring) ("Given that La. R.S. 13:5107(D)(3) applies here, the filing of the initial suit did not serve to interrupt prescription. Contrary to the trial court's conclusion, the interruption of prescription provided for in La. C.C. art. 3463 does not apply here. ..."); Pate v. Reg. Transit Auth. , 08-1147 (La. App. 4 Cir. 3/11/09), 8 So. 3d 744 ("La. C.C. arts. 3462 and 3463 are rendered inapplicable to a situation in which service was not requested on ‘the state, a state agency, or a political subdivision, or any officer or employee thereof’ within ninety days of the filing of an otherwise timely lawsuit in a competent court and a proper venue. ... The Louisiana Supreme Court impliedly recognized this result in Bordelon ...."); Matthews v. City of Bossier City , 42,202, p.6 (La. App. 2 Cir. 8/15/07), 963 So. 2d 516, 519-20 ("La. R.S. 13:5107(D)(3) unequivocally prohibits plaintiff from relying upon his original petition in any manner for the interruption of prescription against the governmental defendants."); Borrello v. City of Kenner , 99-420 (La. App. 5 Cir. 11/30/99), 750 So. 2d 230, 234 ("Once a governmental entity is dismissed under [La. R.S. 13:5107(D) ], the filing of the action shall not interrupt prescription. Therefore, ...the filing of the original petition did not interrupt prescription.").
The last clause of La. R.S. 13:5107(D)(3) provides further support for our holding. It states: "... however, the effect of interruption of prescription as to other persons shall continue." This clause would be rendered meaningless if the remainder of the statute, under which the filing " shall not " interrupt prescription, did not apply to the state defendants here. See Kirt , 19-1162, p.6, ––– So. 3d at –––– ("It is presumed that every word, sentence, or provision in a law is intended to serve some useful purpose, that some effect is given to each such provision, and that no unnecessary words or provisions were employed. Courts are bound to give effect, if possible, to all parts of a statute and to construe no sentence, clause, or word as meaningless and surplusage if a construction giving force to and preserving every word can legitimately be found.") (internal quotations omitted). If La. R.S. 13:5107(D)(3) were interpreted as plaintiff proposes, the effect of this clause would be gutted.
Plaintiff argues that the word "when" at the beginning of the statute has a temporal component—that is, "when" the state is dismissed, the interruption ceases to exist. The corollary of this statement is that before dismissal, the interruption remains in effect. Here, because plaintiff filed his second suit one day before the first was dismissed by the trial court, he argues that the interruption remained in effect before the filing of the second suit. This argument cannot be squared with the statute's plain language, as explained above. In any event, the term "when" is not always temporal in nature. Though the first definition of "when" is "at or during the time that," the second definition is "in the event that." See Merriam-Webster.com Dictionary, 2021, https://www.merriam-webster.com. Thus, contrary to plaintiff's argument, it is not clear that the legislature intended the word "when" to be temporal, as that interpretation would render much of the rest of the statute meaningless. Rather, it is apparent that the legislative intent was to provide that, in the event that the state is dismissed as a party, the earlier action does not interrupt or suspend prescription as to the state. La. R.S. 1:3 ("Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language.").
Plaintiff also argues, without citation, that La. R.S. 13:5107(D)(3) violates the equal protection clause. This argument is without merit. It is presumed that the Legislature acts within its constitutional authority in promulgating a legislative instrument, and this court must construe a legislative instrument so as to preserve its constitutionality when it is reasonable to do so. La. Fed'n of Teachers v. State , 13-0120, p.22 (La. 5/7/13), 118 So. 3d 1033, 1048. A person challenging the constitutionality of a statute "must point to a particular provision of the constitution that would prohibit the enactment of the legislative instrument and must demonstrate clearly and convincingly that it was the constitutional aim of that provision to deny the legislature the power to enact the legislative instrument in question." Id. With respect to this statute, La. Const. art. 12 § 10 (C) directs the Legislature to provide a procedure for suits against state entities, including permitting limitations on liability and procedures, which the Legislature has done in enacting the Governmental Claims Act. In any event, plaintiff has not met the high burden required to overcome the presumption of constitutionality, failing to demonstrate "clearly and convincingly" that his rights were violated.
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Finally, our decision is supported by the fact that, under plaintiff's proposed interpretation, and as demonstrated by the facts of this case, a party could fail to properly request service within 90 days, but "cure" the defect himself by filing a new suit prior to the issuance of the judgment of dismissal in the first suit. In effect, plaintiff's interpretation would largely eviscerate any consequences for failing to comply with the 90-day service requirement, permitting the plaintiff to make an end-run around the legislative prerogative to require service on the state as set forth in the statute, and render meaningless the purpose of the statute in the Governmental Claims Act.
CONCLUSION
For the reasons set forth above, the ruling of the trial court is reversed. The state defendants’ exception of prescription is sustained, and the plaintiff's claims against the state defendants are dismissed with prejudice.
REVERSED AND RENDERED
Hughes, J., dissents and assigns reasons.
Genovese, J., dissents.
Griffin, J., dissents.
HUGHES, J., dissents with reasons.
Generally, prescription statutes are strictly construed against prescription and in favor of the claim sought to be extinguished by it; thus, of two possible constructions, that which favors maintaining, as opposed to barring an action, should be adopted. Wells v. Zadeck , 2011-1232 (La. 3/30/12), 89 So.3d 1145, 1149 ; Carter v. Haygood, 04-0646 (La. 1/19/05), 892 So.2d 1261, 1268 ; Bailey v. Khoury , 04-0620 (La. 1/20/05), 891 So.2d 1268.