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Rollins v. City of Zachary2/16/2001
This is an appeal from a trial court judgment dismissing the plaintiffs' claims for failure to request service within 90 days of the filing of the petition, as required by LSA-R.S. 13:5107D.
BACKGROUND
On May 10, 1998, Michael Whittington was struck by a vehicle driven by defendant, Christopher Holden, while Whittington was walking on a highway. Whittington was intoxicated at the time and had just been discharged from Lane Memorial Hospital. According to the plaintiffs' allegations, Whittington's mother, Helen Rollins, and sister, Scarlett Hooge, had asked the Zachary Police Department to assist them in restraining Whittington and getting him off of the highway, but these requests were denied and/or ignored. As a result of the accident, Whittington was seriously injured.
FACTUAL AND PROCEDURAL HISTORY
On May 4, 1999, Michael Whittington, Helen Rollins and Scarlett Hooge (hereinafter collectively referred to as "the plaintiffs") filed a petition for damages against Holden and his automobile liability insurer, Allstate Insurance Company. Also named as defendants in the petition were the City of Zachary, Zachary City Police, Chief of the Zachary City Police, a sergeant with the Zachary City Police and the Mayor of Zachary (hereinafter collectively referred to as "the City"). At the conclusion of the petition, the plaintiffs requested that service be withheld.
The plaintiffs' attorney contends that he subsequently wrote a letter to the Clerk of Court for the Nineteenth Judicial District Court dated July 29, 1999, requesting service upon all of the defendants. Plaintiffs allege that this letter was deposited into the regular U.S. Mail, postage prepaid, on Thursday, July 29, 1999. Three business days later, on August 3, 1999, plaintiffs contend that their attorney's office was contacted by counsel for Allstate and Holden to request an extension of time in which to answer the petition. This request was granted by the plaintiffs' attorney. Additionally, this request led the plaintiffs' attorney to believe that the request for service had been received and that service had been perfected as requested.
However, on August 20, 1999, Allstate and Holden filed a motion for involuntary dismissal of the petition for the failure of the plaintiffs to request service within 90 days of the commencement of the action, as required by LSA-C.C.P. art. 1201C. Holden and Allstate contended that this failure warranted an involuntary dismissal of the plaintiffs' claim against them pursuant to LSA-C.C.P. art. 1672C. On August 23, the trial court assigned the motion for contradictory hearing on September 20.
On August 27, plaintiffs' counsel learned that the Clerk of Court's office never received the July 29 request for service. Thus, on August 27, plaintiffs hand-delivered a second request for service upon all the defendants and for pauper status, which request led to service on the defendants.
Plaintiffs did not oppose Allstate and Holden's motion for dismissal. Thus, at the September 20 hearing on the motion for involuntary dismissal, the matter was submitted. A judgment dismissing the plaintiffs' suit without prejudice as to Allstate and Holden was signed on September 29, 1999.
On October 25, 1999, the City filed a motion to dismiss the plaintiffs' petition for the failure to serve the City within 90 days of the filing date of the petition, as required by LSA-R.S. 13:5107. Plaintiffs filed a memorandum in opposition to the City's motion, contending that they timely "requested" service through the July 29 letter. Plaintiffs supported their contention that the request was timely with an affidavit executed by Grayson Gi
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