Opinion
NO. 2024-C-0058
03-18-2024
Katherine ACUFF, Chris Jablonowski, and Hanna Haile, Individually and on Behalf of Perrier Condominium Owners’ Association, Inc. v. Dwayne TREECE, Phallon Treece and Greater New Orleans Fair Housing Action Center
Karen M. Dicke, Lewis, Brisbois, Bisgaard & Smith, LLP, 400 Poydras Street, Suite 2000, New Orleans, LA 70130, COUNSEL FOR RESPONDENTS/PLAINTIFFS James H. Gibson, Courtnee C. Green, P.O. Box 52124, Lafayette, LA 70505, John Adcock, Adcock Law, LLC, 3110 Canal St., New Orleans, LA 70119, Ron L. Wilson, Attorney at Law, 701 Poydras St., Ste. 4100, New Orleans, LA 70139, COUNSEL FOR RELATORS/DEFENDANTS
APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH, NO. 2019-04512, DIVISION "M", Honorable Paulette R. Irons, Judge
Karen M. Dicke, Lewis, Brisbois, Bisgaard & Smith, LLP, 400 Poydras Street, Suite 2000, New Orleans, LA 70130, COUNSEL FOR RESPONDENTS/PLAINTIFFS
James H. Gibson, Courtnee C. Green, P.O. Box 52124, Lafayette, LA 70505, John Adcock, Adcock Law, LLC, 3110 Canal St., New Orleans, LA 70119, Ron L. Wilson, Attorney at Law, 701 Poydras St., Ste. 4100, New Orleans, LA 70139, COUNSEL FOR RELATORS/DEFENDANTS
(Court composed of Chief Judge Terri F. Love, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge Tiffany Gautier Chase, Judge Nakisha Ervin-Knott)
Judge Tiffany Gautier Chase
1Relators/Defendants, Greater New Orleans Fair Housing Action Center d/b/a Louisiana Fair Housing Action Center, Peter Theis, Cashauna Hill, Sarah Carthen Watson and Elizabeth Owen (hereinafter collectively "Defendants"), seek review of the trial court’s January 30, 2024 judgment denying the declinatory exception of insufficiency of service of process, or alternatively, motion for involuntary dismissal. After consideration of the record before this Court and the applicable law, we grant the writ, deny relief and affirm the judgment of the trial court.
Facts and Procedural History
On April 29, 2019, Respondents/Plaintiffs, Katherine Acuff, Chris Jablonowski and Hanna Haile individually and on behalf of the Perrier Condominium Owners’ Association, Inc. (hereinafter collectively "Plaintiffs"), filed a petition for damages against Dwayne and Phallon Treece and the Greater New Orleans Fair Housing Action Center. The petition alleged violations of the lease agreement. Plaintiffs subsequently filed a first amended petition for damages expounding the previous claims.
2On February 20, 2020, the trial court stayed the proceedings pending resolution of a related federal court proceeding. No further actions were taken until April 7, 2023, when Plaintiffs filed a "Motion to Lift Stay and Amend and Supplement Petition for Damages with Incorporated Supporting Memorandum." Plaintiffs requested the trial court lift the stay and grant leave of court to amend the first amended petition. Plaintiffs attached the second amended petition which added Peter Theis, Cashauna Hill, Sarah Carthen Watson and Elizabeth Owen as named defendants to the suit. The matter was heard by the trial court on July 13, 2023. By judgment dated August 2, 2023, the trial court granted Plaintiffs’ motion. The written judgment provided, in pertinent part, "the Petition is filed as of April 7, 2023." Plaintiffs subsequently requested issuance of service and citation on Defendants.
Dwayne Treece, Phallon Treece, and Clifford Harlan v. Perrier Condominium Owners Association, Inc., Katherine E. Acuff, Hanna M. Haile, and Christopher Jablonowski, United States District Court, Eastern District of Louisiana, No. 17-10153-SM-DE.
I note that Plaintiffs’ counsel drafted the language retroactively applying the petition's filing date despite the clear mandate of Articles 1201 and 1672.
Defendants filed an exception of insufficiency of service of process, or alternatively, motion for involuntary dismissal asserting that service was not effectuated within ninety-days of the filing of the second amended petition as required by La. C.C.P. art. 1201(C). By judgment dated January 30, 2024, the trial court denied Defendants’ exception. This timely application for supervisory review followed.
La. C.C.P. art. 1201(C) provides, in pertinent part:
C. Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing, and the additional defendant shall be served with the original petition and the supplemental or amended petition ….
3 Discussion
[1] Defendants contend the trial court erred in denying their exception of insufficiency of service of process, or alternatively, motion for involuntary dismissal, as Plaintiffs failed to effectuate service within the delays as required by La. C.C.P. art. 1201(C). We disagree.
This Court reviews a trial court’s ruling on an exception of insufficiency of service of process under a de novo standard of review when there is no dispute of facts. Lepine v. Dep't of Wildlife & Fisheries, 2022-0160, p. 3 (La.App. 4 Cir. 10/5/22), 350 So.3d 988, 991, writ denied, 2022-01627 (La. 1/11/23), 352 So.3d 983.
The procedural history of this case indicates service was timely requested pursuant to La. C.C.P. art. 1201(C). Specifically, the relevant date to start the tolling of the La. C.C.P. art. 1201 ninety-day service requirement is August 2, 2023, the date of the notice of signing of judgment lifting the stay and granting leave to amend.
On February 20, 2020, the trial court issued a judgment staying all proceedings in the matter pending resolution of a related federal court proceeding. The federal proceeding concluded, and on April 7, 2023 Plaintiffs filed a motion requesting to lift the stay and leave to amend their first amended petition.
[2–4] Two issues precluded service of Plaintiffs’ second amended petition: (1) the February 20, 2020 stay order and (2) an order granting leave from the trial court to file the second amended petition. A "stay of the proceedings" is defined as "[t]he temporary suspension of the regular order of proceedings in a cause…." State in the Interest of A.D., 2012-0258, p. 3, n. 3 (La. App. 4 Cir. 8/15/12), 98 So.3d 950, 952 (citation omitted). Thus, until the trial court lifted the stay, no action was permitted in the case. Couple this suspensive condition with the fact that Plaintiffs 4could not request service of the second amended petition until the trial court issued an order granting leave to do so. La. C.C.P. art. 1151, provides, in pertinent part:
A plaintiff may amend his petition without leave of court at any time before the answer thereto is served. He may be ordered to amend his petition under Articles 932 through 934. A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party.
As such, until the trial court lifted the stay and granted Plaintiffs’ leave to amend, no action could be taken.
On July 13, 2023, the trial court heard Plaintiffs motion and granted the request to lift the stay and amend the first amended petition. However, the judgment and notice are dated August 2, 2023. Therefore, the actions taken by the trial court on July 13, 2023, were not effective until August 2, 2023. See La. C.C.P. art. 1914(B) ("The interlocutory judgment shall be reduced to writing if the court so orders…."). It appears Plaintiffs’ inclusion of the April 7, 2023 date in the judgment caused confusion as to the relevant date to start the tolling of La. C.C.P. art. 1201(C). The insertion of the date was unnecessary as La. C.C.P. art. 1155 allows amended and supplemental petitions to relate back to the date of the original petition.
La. C.C.P. art. 1155 provides:
The court, upon written consent of the parties, may permit the mover to file a supplemental petition or answer setting forth items of damage, causes of action or defenses that have become exigible since the date of filing the original petition or answer, and that are related to or connected with the causes of action or defenses asserted therein. If the parties do not consent, the court may grant leave to file a supplemental petition or answer only upon contradictory motion.
Plaintiffs had ninety-days from August 2, 2023, the date of the lifting of the stay order, to request service and citation. Accordingly, we grant the writ, deny relief and affirm the January 30, 2024 judgment of the trial court.
The motion for leave to amend the supplemental petition was filed on April 7, 2023 and the hearing was not held until July 13, 2023. If Plaintiffs were required to serve the petition within ninety-days, the time period would have expired July 7, 2023, a week before the hearing granting leave to amend the petition.
5 WRIT GRANTED; RELIEF DENIED JUDGMENT AFFIRMED
JENKINS, J., DISSENTS
ERVIN-KNOTT, J., DISSENTS WITH REASONS
JENKINS, J., DISSENTS
1I respectfully dissent for the reasons assigned by Judge Ervin-Knott.
ERVIN-KNOTT, J., DISSENTS WITH REASONS
1I respectfully dissent with the majority’s decision to affirm the trial court’s judgment denying both the Declinatory Exception of Insufficiency of Service of Process or, alternatively, Motion for Involuntary Dismissal.
DISCUSSION
Plaintiffs’ request for service was untimely on the face of the pleadings
Defendants’ sole assignment of error is that the trial court erred in denying their Exception of Insufficiency of Service of Process or, Alternatively Motion for Involuntary Dismissal. Appellate courts review a trial court’s ruling on an exception of insufficiency of service of process under a de novo standard if the underlying facts of the case are not in dispute. Brown v. Chesson, 2020-00730, p. 2 (La. 3/24/21), 315 So. 3d 834, 836. A trial court’s ruling on a motion for involuntary dismissal due to lack of service or untimely service is reviewed for manifest error. Johnson v. Brown, 2003-0679, p. 2 (La. App. 4 Cir. 6/25/03), 851 So. 2d 319, 322 (citing Futrell v. Cook, 2000-2531 (La. App. 4 Cir. 12/19/01), 805 So. 2d 325).
2Louisiana Code of Civil Procedure article 1201(C) provides that service of the citation shall be requested on all named defendants within ninety days of the petition’s filing. If a plaintiff fails to timely request service within ninety days, then the trial court shall dismiss the action, without prejudice, unless the plaintiff shows good cause for the failure to timely request service. La. C.C.P. art. 1672(C) (emphasis added). If the face of the pleadings show that the plaintiff failed to timely request service, then the plaintiff bears the burden of showing good cause as to why service could not be requested. Freeman v. Ochsner Clinic Foundation, 20-283, pp. 2-3 (La. App. 5 Cir. 11/10/20), 307 So. 3d 335, 337.
Here, the parties do not dispute that the Plaintiffs failed to request service within ninety days of April 7, 2023. Plaintiffs contend that they could not have requested service because the supplemental petition was not filed until the trial court formally granted its judgment on August 2, 2023. However, that judgment retroactively applied the amended and supplemental petition’s filing date to April 7, 2023. As such, Plaintiffs’ request for service in October is untimely on the face of the petition1a, and the trial court erred in its blanket decision denying the exception and motion. Because the Plaintiffs failed to timely request service, the trial court should have made a finding as to whether the Plaintiffs had good cause in failing to do so.
The majority’s decision
The majority’s decision to affirm the trial court’s ruling ignores the plain language of the August 2023 judgment retroactively applying the amended and supplemental petition’s filing date. As the appellate court, we are bound to review the lower court’s written judgment. Reaver v. Degas House, L.L.C., 2022-0464, p. 6 (La. App. 4 Cir. 3/13/23), 359 So. 3d 570, 575 ("Our job, as an appellate court, is 3to review written judgments."). Although the judgment in this matter was interlocutory, and therefore not required to be reduced to writing, our jurisprudence mandates that the language in a written judgment controls the case. Bourgeois v. Bazil, 18-676, p. 9 (La. App. 5 Cir. 4/24/19), 271 So. 3d 341, 348 ("A trial judge may render a written judgment which differs in substance from his or her prior oral statements… the written judgment controls."). As there is a written judgment in this case, the language of the written judgment controls. To date, the trial court has not amended, altered, or vacated the August 2023 judgment. Thus, the language of that judgment governs the disposition of this case.
The majority places emphasis on the fact that the Plaintiffs could not have requested service until the stay in the case was lifted and the trial court had granted leave for the petition to be filed. I find that this logic applies to whether the Plaintiffs had good cause in failing to timely request service, not to whether service was timely requested. As noted earlier, the trial court never made a finding as to good cause because it erroneously denied the exception of insufficiency of service of process. Therefore, it is proper to remand this case back for such a determination. To further support its reasoning, the majority notes, "The insertion of the date was unnecessary as La. C.C.P. art. 1155 allows amended and supplemental petitions to relate back to the date of the original petition." The majority’s reliance on this legal theory is not relevant to the issue at hand.
This Court has previously ruled that only amended petitions under La. C.C.P. art. 1153 may relate back to the filing of an original petition. See Smith v. Cutter Biological, 1999-2068, pp. 36-37 (La. App. 4 Cir. 9/6/00), 770 So. 2d 392, 412. Even then, a court is required to apply a multi-element test to determine whether a claim in an amending petition will relate back to the original petition. 4 Ahmed v. Downman Dev., L.L.C. 2017-0114, pp. 12-13 (La. App. 4 Cir. 12/28/17), 234 So. 3d 1111, 1120. Regardless, "La. C.C.P. art. 1153 provides a mechanism by which the action or defense asserted in an amended petition can relate back to the date of filing of the original pleading, thereby avoiding dismissal by prescription." Id. (emphasis added). In short, whether Plaintiffs’ amended and supplemental petition relates back to the original petition’s filing date has nothing to do with the service requirements of La. C.C.P. art. 1201—prescription and service are two separate issues. Plaintiffs chose to put the date in the August 2023 judgment, and the trial court signed that judgment, making it the ruling of the court. The inclusion of the date in the judgment makes the subsequent request for service of the amended and supplemental petition untimely.
CONCLUSION
For the foregoing reasons, I would grant Defendants’ writ, reverse the trial court’s judgment, and remand the case back to the trial court to make a determination as to whether the Plaintiffs’ had good cause in failing to timely request service.