SELVIN NUNEZ v. JANE DOE MARFANI FRANCISCO RODRIGUEZ GEZMAN SORIANO OLD AMERICAN INDEMNITY COMPANY AND SAFEWAY INSURANCE COMPANY OF LOUISIANA (2026)

The plaintiff, Selvin Nunez, appeals the trial court's granting of a declinatory exception of insufficiency of service of process ¹ and motion for involuntary dismissal in favor of defendant, Old American Indemnity Company (“Old American”). For the reasons that follow, we vacate the trial court's judgment and remand this matter to the trial court.

At approximately 9:31 p.m., on March 31, 2021, Mr. Nunez contends that he was traveling southbound on Shirley Drive near its intersection with Vespasian Street in New Orleans when his vehicle was hit by either Jane Doe or Marfani Francisco Rodriguez, and Gezman Soriano. Mr. Soriano contends that his vehicle was rear ended by the Rodriguez vehicle ² , which in turn pushed his vehicle into the rear of Mr. Nunez's vehicle.

On March 21, 2022, Mr. Nunez filed a petition for damages, naming Ms. Doe, Mr. Rodriguez, Mr. Soriano, Old American and Safeway Insurance Company of Louisiana (“Safeway”) as defendants. At the same time the petition was filed, Mr. Nunez requested service on the defendants. However, service was never made on Mr. Rodriguez, Mr. Soriano, or Old American. Mr. Nunez had requested service on Old American, but the service request was returned on May 11, 2022 for money due to Civil District Court. Safeway was voluntarily dismissed from the lawsuit prior to its filing an answer.

Old American filed a declinatory exception of insufficiency of service of process and motion for involuntary dismissal. The plaintiff was served with Old American's exception and notice of hearing on November 4, 2024, and the hearing on the exception took place on November 14, 2024.³ Following the hearing, on December 3, 2024, the trial court entered a judgment maintaining “Defendant's Exception of Prescription” and “dismissing Plaintiff's Petition for Damages Without Prejudice.”⁴ Although the matter was dismissed without prejudice, the plaintiff never refiled the matter, but filed his motion for appeal on February 3, 2025.

Old American admits that it did not file an exception of prescription in this matter, but rather it filed a declinatory exception for insufficiency of service of process and motion for involuntary dismissal. The caption of the judgment as well as the preamble in the judgment state the same. However, the actual order maintains an exception of prescription dismissing the petition for damages without prejudice.

La. C.C.P. art. 1918(A) provides that “[a] final judgment in accordance with Article 1841 shall be identified as such by appropriate language; shall be signed and dated; and shall, in its decree, identify the name of the party in whose favor the relief is awarded, the name of the party against whom the relief is awarded, and the relief that is awarded. If appealed, a final judgment that does not contain the appropriate decretal language shall be remanded to the trial court, which shall amend the judgment in accordance with Article 1951 within the time set by the appellate court.” (emphasis added). The parties agree that the exception heard by the trial court was an exception of insufficiency of service of process and not an exception of prescription; hence the trial court's final judgment on appeal references the incorrect exception and is therefore improper. While not necessarily a decretal language issue, the December 3, 2024 judgment is not a proper final judgment in accordance with La. C.C.P. art. 1918. The December 3, 2024 judgment is hereby vacated and this case is remanded to the trial court to render a corrected judgment in accordance with this opinion.

VACATED AND REMANDED

FOOTNOTES

1.   While the trial court's judgment was actually titled “JUDGMENT ON DEFENDANT'S EXCEPTION OF INSUFFICIENCY OF SERVICE OF PROCESS AND MOTION FOR INVOLUNTARY DISMISSAL,” the judgment later states: “IT IS ORDERED, ADJUDGED AND DECREED that Defendant's Exception of Prescription is hereby maintained dismissing Plaintiff's Petition for Damages Without Prejudice.”

2.   According to Mr. Soriano, the Rodriguez vehicle was operated by a Hispanic female who fled the scene after the accident.

3.   Although Mr. Nunez avers that he was not served with the exception ten full days prior to the hearing, Rule 9.9 of the Local Rules of Civil District Court provide that a party who opposes an exception shall be served at least eight days before the scheduled hearing.

4.   The judgment was accompanied by a Rule 9.5 Certificate, which the trial court signed on December 3, 2025.

Judge Daniel L. Dysart

ATKINS, J., CONCURS IN THE RESULT.