Opinion
2022 CA 0970
06-02-2023
OMOLABAKE OJOMO-BAKARE AND DELE BAKARE, INDIVIDUALLYAND ON BEHALF OF THEIR MINOR CHILD, BRITNEY BAKARE v. BATON ROUGE COMMUNITY COLLEGE, THE BATON ROUGE COMMUNITY COLLEGE FOUNDATION, INC., AND XYZ INSURANCE COMPANY
Cullen R. Clement, Joseph C. Possa, Lauren M. Ferand, Stephanie M. Possa, Baton Rouge, Louisiana, Counsel for Plaintiffs/Appellants Omolabake Ojomo- Bakare and Dele Bakare, individually and on behalf of their minor child, Britney Bakare Jeffrey M. Landry, Jabrina C. Edwards, Peter J. Giarrusso, Phyllis E. Glazer, Baton Rouge, Louisiana, Counsel for Defendant/Appellee State of Louisiana through Baton Rouge Community College
On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. 688629 Honorable Richard "Chip" Moore, Judge Presiding
Cullen R. Clement, Joseph C. Possa, Lauren M. Ferand, Stephanie M. Possa, Baton Rouge, Louisiana, Counsel for Plaintiffs/Appellants Omolabake Ojomo- Bakare and Dele Bakare, individually and on behalf of their minor child, Britney Bakare
Jeffrey M. Landry, Jabrina C. Edwards, Peter J. Giarrusso, Phyllis E. Glazer, Baton Rouge, Louisiana, Counsel for Defendant/Appellee State of Louisiana through Baton Rouge Community College
BEFORE: McCLENDON, HOLDRIDGE, AND GREENE, JJ.
McCLENDON, J.
In this slip and fall case, the plaintiffs appeal the district court's judgment that sustained the defendant's declinatory exception raising the objection of insufficiency of service of process and dismissed the plaintiffs' action without prejudice. For the following reasons, we reverse and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
On October 1, 2019, Omolabake Ojomo-Bakare and Dele Bakare, individually and on behalf of their minor child, Britney Bakare (the Bakares), filed a Petition for Damages, naming as defendant, Baton Rouge Community College (BRCC). Therein, the Bakares alleged that on or about October 1, 2018, Omolabake Ojomo-Bakare, a student at BRCC, slipped and fell on campus as a result of an unknown substance causing her injury. The Bakares requested service of process on BRCC "[t]hrough its agent for service of process: Willie E. Smith, Sr., Interim Chancellor."
The Bakares also originally named as defendants XYZ Insurance Company and Baton Rouge Community College Foundation, Inc. Baton Rouge Community College Foundation, Inc. was granted summary judgment and dismissed from the lawsuit on September 23, 2021.
On May 6, 2020, BRCC filed Exceptions of No Cause of Action, Insufficiency of Service of Process, and Vagueness with Motion to Strike. On September 23,2020, before the hearing set for October 5, 2020, the Bakares filed a Motion for Leave of Court to File Plaintiffs' First Amending and Supplemental Petition for Damages, which was granted.In the amending and supplemental petition, the Bakares added the Board of Supervisors of the Louisiana Community and Technical Colleges System (the Board) as a defendant and amended all paragraphs of the petition to replace BRCC with the Board. The Bakares requested service on the Board through Monty Sullivan, Ph.D., President, on Attorney General Jeff Landry, and on the Office of Risk Management through its Director, Melissa Harris. The Bakares opposed the exceptions, and after the hearing, the district court signed a judgment, on October 13, 2020, denying the exceptions.
Louisiana Code of Civil Procedure article 925(A) provides that the objections that may be raised through the declinatory exception include the insufficiency of service of process. LSA-C.C.P. art. 925(A)(2).
We note that Judge Nadine Ramsey was sitting as Judge Pro Tempore, on behalf of Judge Richard "Chip" Moore, III.
On November 5, 2020, the district court, after reconsideration ex proprio motur vacated the judgment and granted a new trial for hearing BRCC's exceptions. After a continuance, the hearing was held on September 7, 2021, at which time the district court denied the new trial, rather than ruling on the exceptions. The court signed its judgment in conformity with its ruling on September 30, 2021. Thereafter, the Board applied for supervisory writs. On January 31, 2022, another panel of this court granted the writ with order, stating:
The record reflects that Judge Moore returned to the bench by early January of 2021.
The district court judge sitting pro tempore had the authority to review any interlocutory order she rendered during the progress of this case under the broad powers conferred by [LSA-C.C.P.] art. 1631. Prior to final judgment, the judge had the discretion to change the substance or the result of an interlocutory ruling she found to be erroneous and set it aside without any formal motion, [citation omitted]. The district court's November 5, 2020 order granted a new trial and vacated the original judgment that denied defendant's exceptions. Although the exceptions were reset for hearing, when the matter came before the district court on September 7, 2021, the court treated it as a hearing on a motion for new trial rather than a hearing on the exceptions. As a result of the prior ruling that vacated the initial ruling on the exceptions, there is currently no ruling on defendant's exceptions. Accordingly, the September 30, 2021 judgment denying a new trial is vacated. The matter is remanded to the district court for consideration of the exceptions of No Cause of Action, Insufficiency of Service of Process, and Vagueness with Motion to Strike filed by defendant, Baton Rouge Community College.
Subsequently, the State of Louisiana, on behalf of BRCC, moved the district court for a new hearing date, which was set for May 31, 2022. The district court issued a Ruling on Exceptions on that date, finding that the Bakares waited until March 25, 2020, to request service on the Attorney General, Office of Risk Management, and the Board. The district court, therefore, sustained the declinatory exception raising the objection of insufficiency of service of process and dismissed the action without prejudice. The district court also found that the resolution of the dilatory exception raising the objection of vagueness was moot as a result of the ruling. Further, the district court did not make any ruling regarding the peremptory exception raising the objection of no cause of action. On July 13, 2022, the district court signed a judgment in accordance with its rulings.
In their appellate reply brief, the Bakares assert that on March 25, 2020, "[o]ut of [a]n abundance of caution, [they] requested the Petition and Citations be served on the Attorney General, Office of Risk Management, and Board of Supervisors of Louisiana Community and Technical Colleges." They contend that the Attorney General and the Board were served through its agents for service of process on April 1, 2020, and that the Office of Risk Management was served through its agent for service of process on April 2, 2020. However, this information is not in the record before us.
The Bakares have appealed the district court's judgment, arguing that the district court erred in sustaining the exception raising the objection of insufficiency of service of process; in failing to recognize that any defects in service were cured when they filed the amending and supplemental petition; and in dismissing their claims.
The Bakares also contend that the district court erred in making any rulings after the December 4, 2020 return date set by the court for BRCC to apply for supervisory writs regarding the October 13, 2020 judgment that denied the exceptions. They contend that the district court no longer had jurisdiction and could not file and grant its own motion for new trial. The Bakares further argue that since no writ application was filed as to that judgment, "all time delays ran and the judgment denying the [exceptions stands." However, as explained in this court's January 31, 2022 writ action, the district court has the authority and discretion, prior to final judgment, to change the substance or the result of an interlocutory ruling it finds erroneous, citing Jackson v. Ace American Insurance Company, 2017-0830 (La.App. 1 Cir. 9/21/18), 2018 WL 4562071, *3 (unpublished). Accordingly, we find the Bakares' first two assignments of error to be without merit.
DISCUSSION
"Citation and service thereof are essential in all civil actions ... Without them all proceedings are absolutely null." LSA-C.C.P. art. 1201(A). At the time this suit was filed, LSA-C.C.P. art. 1201(C) provided, in pertinent part, that "[s]ervice 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."
Article 1201(A) provides limited exceptions to this rule, none of which are applicable to the matter before us.
We note that Article 1201(C) was amended by 2022 La. Acts, No. 455, § 1, effective August 1, 2022, which added the following language to the end of the second sentence: "and the additional defendant shall be served with the original petition and the supplemental or amended petition."
A district court's ruling on an exception objecting to the sufficiency of service of process is reviewed under the manifest error standard. 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. Mallet v. Fauveau, 2021-0562 (La.App. 1 Cir. 12/22/21), 340 So.3d 1237, 1240, writ denied, 2022-00145 (La. 3/22/22), 334 So.3d 759. As the facts in this matter are not in dispute and the issue is purely one of statutory interpretation, we review this matter de novo, without deference to the legal conclusions of the district court. Turner v. Willis Knighton Medical Center, 2012-0703 (La. 12/4/12), 108 So.3d 60, 62.
In their appeal, the Bakares argue that service on the chancellor of BRCC, the only named defendant in the original petition, was timely requested. The Bakares contend that when the original petition was filed, neither the State nor a state agency was named as a defendant. The Bakares also assert that BRCC is a political subdivision regulated by LSA-C.C.P. art. 1265 and LSA-R.S. 13:5107(B), and service on a political subdivision, pursuant to LSA-R.S. 13:5107(B), is to be made on the chief executive officer. Therefore, according to the Bakares, LSA-R.S. 13:5107(A), which provides general requirements for service on the State, was not triggered. Thus, the Bakares maintain that service on the chancellor of BRCC was properly requested within the deadline of LSA-R.S. 13:5107(B) and satisfied all statutory requirements. Critical to the issue before us is a determination of whether BRCC is a state agency or a political subdivision.
The Louisiana Governmental Claims Act (the Act), found in LSA-R.S. 13:5101, et seq., establishes procedural rules that apply to any suit in contract or for injury to person or property against the state, a state agency, or a political subdivision of the state. Fecke v. Board of Supervisors of Louisiana State University, 2015-1806 (La. 9/23/16), 217 So.3d 237, 244, modified on rehearing on other grounds. 2015-1806 (La. 10/19/16), 218So.3d 1 (per curiam). Louisiana Revised Statutes 13:5107(A) and (B) provide:
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 fried against.
The Act defines a "state agency" as including "any board, commission, department, agency, special district, authority, or other entity of the state." LSA-R.S. 13:5102(A). The Act further defines a "political subdivision" as "[a]ny parish, municipality, special district, school board, sheriff, public board, institution, department, commission, district, corporation, agency, authority, or an agency or subdivision of any of these, and other public or governmental body of any kind which is not a state agency." LSA-R.S. 13:5102(B)(1). Additionally, LSA-R.S. 13:5102(A) provides, In part, that a “[s]tate agency does not include any political subdivision or any agency of a political subdivision."
The Bakares contend that because BRCC is an "institution" under LSA-R.S. 17:3222, it is a political subdivision, as defined under the plain language of LSA-R.S. 13:5102(B), and not a state agency as defined in LSA-R.S. 13:5102(A). Louisiana Revised Statutes 17:3222 establishes BRCC as "a two-year institution of higher education which shall be located in East Baton Rouge Parish and shall be known as the Baton Rouge Community College." LSA-R.S. 17:3222(A). Therefore, the Bakares maintain that BRCC is not a state agency and that service in this matter is governed by LSA-C.C.P. art. 1265and LSA-R.S. 13:5107(B).
Louisiana Code of Civil Procedure art. 1265 provides, in pertinent part:
Service of citation or other process on any political subdivision, public corporation, or state, parochial or municipal board or commission is made at its office by personal service upon the chief executive officer thereof, or in his absence upon any employee thereof of suitable age and discretion. A public officer, sued as such, may be served at his office either personally, or in his absence, by service upon any of his employees of suitable age and discretion.
The starting point in the interpretation of any statute is the language of the statute itself. 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, 474. When the wording of a section of the Revised Statutes is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit. See LSA-R.S. 1:4; see also LSA- C.C. art. 9.
While we agree that BRCC is a two-year institution of higher education as established in LSA-R.S. 17:3222(A), we disagree with the Bakares that this language makes BRCC a political subdivision. The Bakares fail to note that LSA-R.S. 17:3222 also provides that BRCC "shall be under the control, supervision, and management of the Board of Supervisors of Community and Technical Colleges. The community college shall have such operating authority and limitations as is determined by the board." LSA- R.S. 17:3222(B)(1).
In Fecke, the supreme court found LSA-R.S. 13:5102(A) to be clear and unambiguous and to be applied as written, agreeing with this court that the Board of Supervisors of Louisiana State University is a state agency. Fecke, 217 So.3d at 245-46. Likewise, we find, based on the clear language of LSA-R.S. 13:5102(A), as well as that of LSA-R.S. 13.5102(B), that the Board of Supervisors of the Louisiana Community and Technical Colleges System is not a political subdivision, but rather is included within the definition of *any board, commission, department, agency, special district, authority, or other entity of the state" and is a "state agency." Accordingly, we look to the procedural rules set forth in LSA-R.S. 13:5107(A) and (D) for the sufficiency of service in this matter.
BRCC filed its exception objecting to service of process before the Bakares filed their amending and supplemental petition in which BRCC was replaced by the Board as a defendant. In the exception, BRCC stated that it is part of the Louisiana Community and Technical College System, under the supervision and management of the Board of Supervisors of Community and Technical Colleges pursuant to LSA-R.S. 17:3217.1. BRCC argued that the State through the Board is the proper party in lawsuits involving the Louisiana Community and Technical College System. BRCC claimed that because it is a state agency and because it was named as a defendant in the original petition for damages, the ninety-day time period to request service on the State, pursuant to LSA-R.S. 13:5107(D), began when the original petition was filed on October 1, 2019. According to BRCC, because the request for service on the Attorney General, Office of Risk Management, and the State agency head, as required by LSA-R.S. 39:1538(D) and LSA-R.S. 13:5107(A), was not made until the amending and supplemental petition was filed on September 23, 2020, the service request was untimely, and the Bakares' lawsuit should be dismissed.
Louisiana Revised Statutes 17:3217.1(A) provides:
A. The Louisiana Community and Technical College System is composed of the institutions under the supervision and management of the Board of Supervisors of Community and Technical Colleges as follows:
(1) Baton Rouge Community College,
(14) Any other community college, technical college, or other institution or program now or hereafter under the supervision and management of the Board of Supervisors of Community and Technical Colleges.Louisiana Revised Statutes 17:3218 also provides:
The corporate authority, internal and otherwise, vested in the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, the Board of Supervisors of Southern University and Agricultural and Mechanical College, the Board of Supervisors of Community and Technical Colleges, and the Board of Supervisors for the University of Louisiana System to supervise and manage the systems under the jurisdiction of each, extends to all the colleges and universities, branches, centers of learning, or extensions of such systems now existing or hereafter established.
Louisiana Revised Statutes 39:1538(D) provides, in part: "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."
Louisiana Revised Statutes 13:5107(D) provides:
(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.
Thus, according to Subsection (D), in suits where the state or a state agency is named as a party, when service is not requested by the plaintiff within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state or a state agency as a party, the action shall be dismissed, without prejudice, after a contradictory motion, as provided in LSA-C.C.P. art. 1672(C). LSA-R.S. 13:5107(D)(2); Whitley, 66 So.3d at 478. When such a dismissal occurs, prescription is not interrupted as to the state defendants. LSA-R.S. 13:5107(D)(3).
Louisiana Code of Civil Procedure article 1672(C) provides:
A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C) or 3955 upon the sustaining of a declinatory exception filed by such defendant, or upon contradictory motion of any other party, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.
Legislation is the solemn expression of the legislative will; thus, the interpretation of legislation is primarily the search for the legislative intent. Borcik v. Crosby Tugs, LLC, 2016-1372 (La. 5/3/17), 222 So.3d 672, 675. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. However, when the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. Moreover, when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. Red Stick Studio Development, L.L.C. v. State ex rel. Dept. of Economic Development, 2010-0193 (La. 1/19/11), 56 So.3d 181, 187-88. Further, where the legislature's word choice makes a statute susceptible to two possible constructions, one barring the action and one maintaining it, the statute should be construed in favor of maintaining the claim. See Whitley, 66 So.3d at 487; see also La than Company, Inc. v. Division of Administration, 2017-0396 (La.App. 1 Or. 1/24/19), 272 So.3d 1, 9, writ denied, 2019-0331 (La. 4/29/19), 268 So.3d 1036.
In this matter, the Bakares named BRCC as the original defendant and requested service on BRCC within ninety days of filing suit. However, as BRCC is a state agency, the proper defendant is the Board. On September 23, 2020, the Bakares filed their amending and supplemental petition, in which BRCC was replaced with the Board as a defendant, identified as “a political agency/board of [the] State of Louisiana." In their amending and supplemental petition, the Bakares requested service on the Board, the Attorney General, and the Office of Risk Management. This request for service, however, was outside ninety days of the filing of the original petition, but within ninety days of the filing of their amending and supplemental petition.
In order to determine the applicable ninety-day service request period under LSA- R.S. 13:5107(D)(1), we must determine when a state agency was "named as a party." Stated another way, we must decide whether the naming of BRCC, who we have determined to be a state agency, equates to the naming of a state agency within the meaning of the statute.
The facts in the fourth circuit case of George v. ABC Insurance Company, 2019-0124 (La.App. 4 Cir. 5/8/19), 271 So.3d 1289, writ denied. 2019-944 (La. 9/24/19), 279 So.3d 886, are similar to those herein. In George, one of the plaintiffs alleged that she suffered injuries as a result of fainting while on the campus of Southern University New Orleans. The initial request for service on the named defendant, Southern University New Orleans, was through Southern University New Orleans, Chancellor's Office, within ninety days of the commencement of the action. Thereafter, the plaintiffs filed a request for leave to file a first amended and supplemental petition for damages, which was granted. Therein, the plaintiffs added as defendants, the Board of Supervisors of Southern University and Agricultural and Mechanical College, the State of Louisiana, and Southern University System, and service was requested on the added defendants on the same date. The plaintiffs acknowledged that service on the added defendants was requested more than ninety days after the filing of the original petition. However, they argued that the service through the chancellor within ninety days of commencement of the action was sufficient. The Board of Supervisors filed an exception objecting to the service of process, and after a hearing, the trial court sustained the exception and dismissed the plaintiffs' suit without prejudice. George, 271 So.3d at 1290-91.
The fourth circuit found that by requesting service upon Southern University New Orleans through the Chancellor's Office in the original petition for damages, like the present case, the plaintiffs' service request was not directed toward the proper agent. George, 271 So.3d at 1292-93. Nevertheless, the fourth circuit determined that the "[p]laintiffs did not name the State of Louisiana, or a state agency, as a party in the original petition for damages." George, 271 So.3d at 1292. Therefore, the court found that the ninety-day period in LSA-R.S. 13:5107 was not applicable and that dismissal of the plaintiffs' action was not warranted pursuant to LSA-R.S. 13:5107, where the State of Louisiana was not initially a named defendant in the original petition for damages. George, 271 So.3d at 1292-93. Accordingly, the fourth circuit reversed the trial court's judgment that sustained the exception objecting to service of process and remanded the matter for further proceedings. George, 271 So.3d at 1293.
The supreme court denied the defendants' application for a writ of certiorari, with Justice Crichton dissenting. Justice Crichton specifically found that the plaintiff did not comply with LSA-R.S. 39:1538 and LSA-R.S. 13:5107, and he would have reversed the court of appeal and reinstated the trial court's ruling that dismissed the plaintiffs' case without prejudice. In his view, the appellate court improperly relieved the plaintiffs of their statutory obligation to perfect service. George, 279 So.3d at 886.
As evidenced by Justice Crichton's reasoning, LSA-R.S. 13:5107(D)(1) is subject to more than one plausible interpretation. We agree that both interpretations of the words "named as a party" suggested by the parties herein are reasonable and therefore find that Subsection (D)(1) is ambiguous. Accordingly, considering the harsh consequence of dismissal and the policy favoring maintaining actions, and in light of the ambiguity of the statute, we must construe Subsection (D)(1) in favor of maintaining the Bakares' claim.
To the extent LSA-R.S. 13:5107(D)(1) needs clarification, this falls within the authority of the legislative branch of government.
We next determine whether the district court erred in dismissing the Bakares' suit. The Bakares filed their amending and supplemental petition on September 23, 2020, at which time the Board, identified as a political agency or board of the State of Louisiana, replaced BRCC as a defendant. Also, on September 23, 2020, the Bakares requested service of citation on the Board, the Attorney General, and the Office of Risk Management. The ninety-day time period under LSA-R.S. 13:5107(DX1) to request service of citation was triggered when the Bakares named the Board as a defendant, identifying them as an agency of the State. Therefore, having timely requested service pursuant to LSA-R.S. 13:5107(D)(1), the district court erred in dismissing the Bakares' suit without prejudice.
We recognize that LSA-R.S. 13:5107(A)(2) now mandates that service shall be requested upon the Attorney General within ninety days of filing suit and that service on the Attorney General was not requested herein until the Board was named as a party on September 23, 2020. See La than, 272 So.3d at 4. However, dismissal under LSA-R.S. 13:5107 is not mandatory. In Lathan, this court concluded that the gap created by the legislature's addition of the mandatory service requirement in LSA-R.S. 13:5107(A)(2) without providing any consequence in Subsection (D) should be construed in favor of maintaining the plaintiffs action. Lathan, 272 So.3d at 10.
Moreover, we agree with the Bakares that any objection of insufficiency of service of process based on LSA-R.S. 39:1538(D) was cured by serving the Board, the Attorney General, and the Office of Risk Management, as LSA-R.S. 39:1538(D), unlike LSA-R.S. 13-.5107(D)(2), does not mandate that service of process be requested within ninety days of the commencement of the action or be subject to dismissal pursuant to LSA-C.CP. art, 1672(C). See Whitley, 66 So.3d at 482; Hollyfield v. Tullos, 2022-0050 (La.App. 4 Cir. 10/5/22), 350 So.3d 999, 1006.
CONCLUSION
For the foregoing reasons, we reverse the July 13, 2022 judgment of the district court, sustaining the declinatory exception raising the objection of insufficiency of service of process and dismissing the action filed by Omolabake Ojomo-Bakare and Dele Bakare, individually and on behalf of the minor child, Britney Bakare, without prejudice. This matter is remanded for further proceedings consistent with this opinion. All costs of this appeal in the amount of $1,533.00 are assessed to the Board of Supervisors of the Louisiana Community and Technical Colleges System.
REVERSED AND REMANDED.