Spillman v. Parker
| Decision Date | 25 May 2022 |
| Docket Number | 54,532-CA,54,533-CA |
| Citation | 339 So.3d 1268 |
| Parties | Steven SPILLMAN, Appellant v. Deputy PARKER and Sheriff Jay Russell, Ex Officio as Sheriff of Ouachita Parish and Travelers Commercial Insurance Company, Appellees Jack Robertson, Appellant v. Deputy Parker and Sheriff Jay Russell, Ex Officio as Sheriff of Ouachita Parish and Travelers Commercial Insurance Company, Appellees |
| Court | Court of Appeal of Louisiana — District of US |
GRODNER & ASSOCIATES, By: Donna U. Grodner, Baton Rouge, Counsel for Appellant
GIEGER, LABORDE & LAPEROUSE, LLC, By: Rachel G. Webre, New Orleans, Nicholas S. Bergeron, Counsel for Appellee
Before MOORE, THOMPSON, and HUNTER, JJ.
Steven Spillman and Jack Robertson, two prisoners formerly housed in Ouachita Correctional Center, appeal a judgment that sustained a dilatory exception of prematurity (as to Spillman) and a declinatory exception of insufficiency of service of process (as to Robertson) and dismissed both prisoner suits without prejudice. We affirm.
Spillman and Robertson were state prisoners being held in OCC; on August 20, 2018, they were to be transferred to Claiborne Parish Detention Center in a van driven by Deputy Parker. According to their petitions, Dep. Parker backed out of the sally-gate and struck a pole; both plaintiffs, "in full restraints and no seat belts," were jolted out of their seats and injured.
The cases were consolidated in June 2020, but because they pose different issues, we review the procedural histories separately.
No. 54,532-CA – Spillman
Spillman filed a "Petition for Damages / Single Car Wreck" against Dep. Parker, Sheriff Russell, and their insurer in the Fourth JDC on June 24, 2019. Attached to the petition was a motion to proceed in forma pauperis, which was granted.
The defendants filed a dilatory exception of prematurity on October 17, 2019, arguing that Spillman had not exhausted the mandatory administrative remedy procedure under the Corrections Administrative Remedy Procedure ("CARP"), La. R.S. 15:1171 -1179, and the Prison Litigation Reform Act ("PLRA"), R.S. 15:1181 -1191. Spillman filed an opposition on November 27, 2019, urging that he had indeed filed a grievance, but OCC had never responded, so the administrative remedy was deemed completed.
On February 6, 2020, the defendants sent the Fourth JDC a request to withdraw their exception on the basis that they had "discovered some new information, which renders the argument factually inaccurate." The district court entered an order "denying" the exception.
Then, on March 4, 2020, the defendants filed a new exception of prematurity, this time alleging further factual support.1 The court set the hearing on the new exception for May 28, 2020; after various continuances, mostly owing to COVID-19 restrictions, it was finally set for May 13, 2021, via Zoom. The record does not show that Spillman filed an opposition to the second exception.
At the hearing, the defendants argued that Spillman did not follow OCC's administrative remedy procedure; counsel for Spillman countered that he did follow it, and called Spillman to testify about how he did so. The defendants objected that because he filed no opposition to the exception, he waived the right to offer argument or evidence, under Uniform Rules of District Court 9.9 (e). Counsel for Spillman contended that his opposition to the first exception should count toward the second one, but the court disagreed and sustained the objection. Spillman was then allowed to proffer his testimony. Counsel for Spillman also argued that the second exception was invalid, because all dilatory and declinatory exceptions must be filed at the same time, under La. C.C.P. art. 928 A. Again, the court disagreed.
After taking the matter under advisement, the court sustained the exception of prematurity, dismissed Spillman's suit without prejudice, and advised that he could refile "should the prematurity impediment cure itself or become cured."
Spillman appealed, raising three assignments of error.
No. 54,533-CA – Robertson
Robertson filed a nearly identical "Petition for Damages / Single Car Wreck" against the same defendants in the Fourth JDC on June 26, 2019. He requested service on Sheriff Russell and Dep. Parker at the Ouachita Parish Sheriff's Office. Like Spillman, he attached a motion to proceed in forma pauperis, but Robertson's was denied; as a result, no money was advanced and no service was effected. Robertson took a writ on the denial of his pauper motion, but this court denied it on the showing made, on October 30, 2019. Eventually, Robertson assembled the needed funds and service was effected on December 20, 2019, nearly six months after suit was filed.
The defendants filed a declinatory exception of insufficiency of service of process and a motion for involuntary dismissal on July 17, 2020. They alleged failure to request timely service of process (within 90 days after filing suit), under La. R.S. 13:5107 and La. C.C.P. art. 1201 C. Robertson filed an opposition, and the matter was set for hearing on May 13, 2021, via Zoom.
At the hearing, the defendants argued that Robertson's failure to obtain pauper status was tantamount to failure to request timely service. Counsel for Robertson countered that § 5107 required only a timely request for service, not actual service, and that the 90-day limit should be suspended while pauper status was being litigated.
The court ruled from the bench that it was "familiar with this line of procedure" and that, based on this timeline, it would sustain the exception. It rendered judgment to that effect, dismissing the suit without prejudice, and advising Robertson that he could refile his petition or re-serve the defendants "in accordance with Louisiana law."
Robertson appealed, raising one assignment of error.
An offender in the custody of the Department of Public Safety and Corrections is required to initiate an administrative remedy for a delictual action for injury or damages within 90 days from the date the injury or damage is sustained. La. R.S. 15:1172 B(1). If he files a petition for damages while the administrative remedy process is ongoing but has not yet been completed, the suit must be dismissed without prejudice. La. R.S. 15:1172 C; Dillon v. La. Dept. of Pub. Safety & Corrs., 20-0484 (La. App. 1 Cir. 12/30/20), 318 So. 3d 929.
The dilatory exception of prematurity, La. C.C.P. art. 926 A(1), is used in cases where the applicable law has provided a procedure for a claimant to seek administrative relief before resorting to judicial action. Dupuy v. NMC Oper. Co. , 15-1754 (La. 3/15/16), 187 So. 3d 436 ; Larkin Dev. N. LLC v. City of Shreveport, 53,374 (La. App. 2 Cir. 3/4/20), 297 So. 3d 980, writ denied , 20-01026 (La. 12/22/20), 307 So. 3d 1039. CARP and PLRA are such procedures which must be completed before any judicial action is mature. Dailey v. Travis , 04-0744 (La. 1/19/05), 892 So. 2d 17.
All objections which may be raised through the dilatory exception are waived unless pleaded therein. La. C.C.P. art. 926 B. The declinatory exception and the dilatory exception shall be pleaded prior to or in the answer; when both exceptions are pleaded, they shall be filed at the same time. La. C.C.P. art. 928 A. On the trial of the dilatory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 930 ; Kelleher v. University Med. Ctr. Mgmt. Corp. , 21-00011 (La. 10/10/21), 332 So. 3d 654 ; Long v. Jeb Breithaupt Design Build Inc. , 44,002 (La. App. 2 Cir. 2/25/09), 4 So. 3d 930.
Service and citation shall be requested on all named defendants, including any officer or employee of the state or any of its political subdivisions, within 90 days of commencement of the action. La. C.C.P. art. 1201 A; La. R.S. 13:5107 D(1). A valid request for service is made when the clerk receives the request for service and can then act on it. Tranchant v. State , 08-0978 (La. 1/21/09), 5 So. 3d 832. Service is not considered requested until the clerk receives a request for service and payment of the required fees or an order granting pauper status. Methvien v. Our Lady of the Lake , 20-1081 (La. App. 1 Cir. 4/16/21), 318 So. 3d 329 ; Jenkins v. Larpenter , 04-0318 (La. App. 1 Cir. 3/24/05), 906 So. 2d 656, writ denied , 05-1078 (La. 6/17/05), 904 So. 2d 711.
Waiver is the intentional relinquishment of a known right, power, or privilege, which occurs when there is an existing right, a knowledge of its existence, and an actual intention to relinquish it or conduct so inconsistent with the intent to enforce the right as to induce a reasonable belief that it has been relinquished. Tate v. Charles Aguillard Ins. & Real Est. Inc. , 508 So. 2d 1371 (La. 1987) ; Green v. Brown , 51,152 (La. App. 2 Cir. 2/15/17), 212 So. 3d 718, writ denied , 17-0707 (La. 9/6/17), 224 So. 3d 985.
The filing of, or the granting of, a writ application does not stay further proceedings unless the trial court or appellate court expressly orders otherwise. URCA Rule 4-4 (A); Everett v. Baton Rouge Student Housing LLC , 10-0856 (La. App. 1 Cir. 5/6/11), 64 So. 3d 883, writ denied , 11-1169 (La. 9/16/11), 69 So. 3d 1149.
A party who opposes an exception or motion shall concurrently furnish the trial judge and serve on all other parties an opposition memorandum so it is received at least eight calendar days before the scheduled hearing. URDC Rule 9.9 (c).
Parties who fail to comply with this rule may forfeit the privilege of oral argument. URDC Rule 9.9 (d); O'Connor v. Nelson , 10-250 (La. App. 5 Cir. 1/11/11), 60 So. 3d 27.
By his first assignment of error, Spillman urges the district court erred in allowing the defendants to file a second exception of prematurity, and this was wrong for two reasons. First, citing C.C.P. art. 926 B ("All objections which may be raised through the dilatory exception are...
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