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Jenkins v. Larpenter3/24/2005
Appellant appeals the dismissal of his suit for failure to timely request service on the defendants. Having reviewed the record and the applicable law, we affirm.
PROCEDURAL HISTORY
On January 14, 2002, Tommie T. Jenkins, Jr. filed a personal injury suit against Jerry J. Larpenter, as Sheriff of Terrebonne Parish; the Terrebonne Parish Sheriff's Office; and four other defendants, based on injuries he sustained on January 18, 2001, while confined in the Terrebonne Parish Criminal Justice Complex. In his petition, Jenkins alleged that he was "without funds and ... unable to prepay court costs or as they accrue or provide funds for bonds for costs." He requested that Sheriff Larpenter and the Terrebonne Parish Sheriff's Office be served with a copy of the petition, but that service be withheld on all other defendants. Attached to the petition was a signed pauper application. Jenkins's request to proceed in forma pauperis was denied by order of the trial court on January 17, 2002, and notice of the order was sent on January 23, 2002. As a result of the court's denial of his request to prosecute the suit in forma pauperis, service was not made.
On January 22, 2003, Sheriff Larpenter filed a motion for involuntary dismissal pursuant to La. C.C.P. art. 1672(C), based on Jenkins's failure to timely request service as prescribed in La. C.C.P. art. 1201(C) and La. R.S. 13:5107(D). Larpenter also filed a declinatory exception raising the objection of insufficiency of service of process, wherein he contended and attached proof that Jenkins did not again request service until January 10, 2003, on which date service was effected.
A joint hearing on the motion and exception was held, and by judgment dated July 11, 2003, the trial court dismissed Jenkins's suit without prejudice. Following the denial of his motion for new trial, Jenkins moved for an order of devolutive appeal, which was granted by the trial court.
ASSIGNMENTS OF ERROR
By this appeal Jenkins raises the following assignments of error:
1. The trial court erred in finding that plaintiff's request for service in the original petition did not constitute a "request" that satisfied the requirements of La. C.C.P. art. 1201(C) and La. R.S. 13:5107(D).
2. The trial court erred in redefining the word "request" to mean more than the ordinary meaning of the word.
3. The trial court erred in granting defendant's Exception of Insufficiency of Service of Process and Motion for Involuntary Dismissal.
4. The trial court erred in denying plaintiff's motion for new trial.
DISCUSSION
Article 1672(C) of the Louisiana Code of Civil Procedure mandates that an action be dismissed if good cause is not shown why service of the citation is not requested within the ninety-day time period provided in La. C.C.P. art. 1201(C). Ayers v. Goodwill Industries, 03-1576, p. 2 (La.App. 4th Cir.3/10/04), 870 So.2d 348, 349. Since the Sheriff of Terrebonne Parish is an officer of the parish, a political subdivision, the provisions of La. R.S. 13:5107(D) apply to this matter:
(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.
(2) If service is not requested by the party filin
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