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Keith MILLER v. Nurse Paula STRINGER and State of Louisiana Through Louisiana Department of Public Safety and Corrections Rayburn Correctional Center
This is an appeal from the trial court's judgment imposing sanctions pursuant to LSA-C.C.P. art. 863 against the Louisiana Department of Justice (DOJ) and Assistant Attorney General Tracey J. Comeaux (counsel for the defendants, Louisiana Department of Public Safety and Corrections (DPSC) and Paula Stringer) (collectively, appellants) for the filing of a declinatory exception of insufficient service of process. For the reasons that follow, we reverse the trial court's imposition of sanctions.
FACTS AND PROCEDURAL HISTORY
The plaintiff in this matter, Keith Miller, a former inmate, filed suit against the State of Louisiana, through the DPSC and Paula Stringer, a nurse employed at the Rayburn Correctional Center (RCC), (collectively, defendants) for injuries he sustained while housed at RCC in Angie, Louisiana. In his petition, Mr. Miller alleged that on August 29, 2018, he was injured while assigned to his job, which required walking up and down stairs, despite his duty status providing that he was not to participate in prolonged walking or standing, sports, or weights and that he suffers from dizziness, light headedness, fatigue, and back pain. Miller further asserted that, after being injured, he made numerous complaints of pain which were largely ignored or improperly handled, in violation of DPSC and RCC policy, and that he was forced to work and walk on his injured foot without the use of crutches while being denied access to a doctor or an x-ray until two weeks after the injury, at which time, an x-ray revealed his foot was broken.
With his petition, Miller filed a motion to proceed in forma pauperis pursuant to LSA-C.C.P. art. 5181, the civilian pauper statute, which was denied by the trial court. Instead, Miller was ordered to pay the full filing fee with the Clerk of Court, as well as the appropriate service fees to the East Baton Rouge Parish Sheriff's Office (EBRPSO). Although Miller's petition does not bear a file stamp, his pauper motion was file stamped on May 1, 2019, after the trial judge signed the order denying the motion.1
On March 2, 2021, Miller filed a Motion to Lift Stay for Service, wherein he alleged there was a stay in place and that the stay should be lifted. With the motion, Miller also filed a second motion to proceed in forma pauperis, pursuant to LSA-C.C.P. art 5181. The trial court granted both motions on the same day they were filed.
On July 26, 2021, the defendants filed a declinatory exception of insufficient service of process, alleging that Miller failed to timely request service and subsequently serve the Office of Risk Management (ORM) in accordance with LSA-R.S. 39:1538 and LSA-R.S. 13:1507. Through their exception, the defendants contended that Miller failed to request service upon the ORM at its proper address and through its proper agent for service. Miller opposed the exception, maintaining that the EBRPSO served the ORM on May 30, 2019, and, moreover, that the ORM is not required to be served with citation, only with process, pursuant to LSA-R.S. 39:1538. In his opposition, Miller requested costs, “including mileage and court costs.”
Miller subsequently supplemented his opposition to the exception and filed a motion for sanctions, contending that the defendants “repeatedly mis-cite and misquote the law and omit applicable provisions of the law with the intention to mislead the Court.” The defendants responded with a reply memorandum in support of their exception and an opposition to Miller's motion for sanctions, again maintaining that Miller did not properly request service of process on ORM, and that any award of mileage, costs, and attorney fees to Miller “would be an unjustified shift of expenses.”
The defendants’ exception and Miller's motion for sanctions were both heard by the trial court on November 19, 2021. At the hearing, counsel for the parties each presented oral argument on the exception and the motion, and Miller's counsel introduced into evidence various emails between the attorneys discussing the merits of the exception. At the conclusion of the hearing, the trial court overruled the exception, finding it “baseless,” and ordered sanctions against the DOJ “for all costs of these proceedings and $1,000.00 in attorney's fees.” On December 15, 2021, the trial court signed a judgment in conformity with its oral ruling granting the motion for sanctions and specifically imposed sanctions against the DOJ and its counsel, Tracey J. Comeaux.2 From this judgment the DOJ and Comeaux appeal, assigning the following as error:
(1) The trial court lacked the requisite authority to impose sanctions;
(2) The trial court committed “clear error” in finding a violation of LSA-C.C.P. art. 863; and
(3) The trial court abused its discretion by imposing an unreasonable amount of monetary sanctions.
Miller filed an answer seeking the dismissal of this appeal, contending that the judgment is not a final appealable judgment, and further requesting additional fees and costs for frivolous appeal.
ANSWER TO APPEAL
At the outset, we will address Miller's answer to the appeal, which raises the issue of our appellate jurisdiction in this matter. Miller requests that the appeal be dismissed for a lack of jurisdiction and contends that the judgment at issue herein “is not a final appealable judgment as it was never certified as same and/or the appeal is frivolous” for which he seeks additional fees, costs, and attorney fees as a result of the appeal.
Louisiana Code of Civil Procedure article 1915(A)(6) provides that a judgment which imposes sanctions pursuant to LSA-C.C.P. art. 863 is a final judgment, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case. See Brown v. Sanders, 2006-1171 (La. App. 1st Cir. 3/23/07), 960 So. 2d 931, 933 n.1 (noting that a judgment that imposes sanctions pursuant to Article 863 is a final judgment for purposes of appeal). Additionally, a final judgment under Article 1915(A) is appealable without being designated as a final judgment by the trial court. LSA-C.C.P. art. 1915, Comment - 1999. Moreover, as to Comeaux in particular, a judgment imposing sanctions against a non-party is clearly a final judgment subject to immediate review on appeal. See Moore v. State Farm Fire and Casualty Company, 2020-0942 (La. App. 1st Cir. 5/25/21), 2021 WL 2102935, *2 (unpublished) and In re Succession of Nobles, 2008-2133 (La. App. 1st Cir. 5/13/09), 2009 WL 1331349, *2 (unpublished).
Miller's motion for sanctions specifically sought sanctions pursuant to LSA-C.C.P. art. 863, averring that the defendants’ exception was frivolous and without basis in law or fact. Thus, the trial court's judgment granting Miller's motion and awarding sanctions against appellants is clearly a final, appealable judgment subject to an immediate appeal. As to the remaining request for relief in Miller's answer to the appeal, for the reasons that follow, the relief requested by Miller in his answer to the appeal is denied.
Assignment of Error No. 1
In their first assignment of error, appellants contend that the trial court did not have authority to impose sanctions in this suit, which they classify as a “prisoner suit,” and maintain that Miller's release from prison does not change his inmate status for purposes of the rules governing inmate pauper status. Specifically, appellants contend that the Prison Litigation Reform Act (PLRA) explicitly provides that the status as a “prisoner” is determined as of the time the cause of action arises, and that subsequent events, including release from custody, do not affect such status. See LSA-R.S. 15:1181(6). Appellants further aver that pursuant to the PLRA, an order granting an inmate's request to proceed in forma pauperis automatically stays all proceedings, including service of process, until all costs are paid. LSA-R.S. 15:1186(B)(2)(a). Appellants argue that the inmate pauper statute applies in this case, and as such, a stay was in place, and the trial court lacked authority to set the exception or the motion for sanctions for hearing. Thus, they argue the award of sanctions must be reversed as a matter of law.
In Templet v. State, through Louisiana Department of Public Safety and Corrections, 2022-0226 (La. App. 1st Cir. 11/4/22), ––– So. 3d ––––, 2022 WL 16707123, a case recently handed down by this court, the DPSC similarly argued that because the plaintiff was an inmate when the cause of action arose, the plaintiff was still subject to the PLRA's pauper provisions, even though he had been released from custody when the motions to proceed in forma pauperis were filed. Templet, ––– So. 3d at ––––, 2022 WL 16707123 at *2.
Rejecting the DPSC's arguments, this court found that requiring the plaintiff to comply with the inmate pauper statute was unwarranted and would lead to an absurd result, noting, as follows:
Templet is no longer incarcerated and no longer has an inmate trust account; thus, he cannot comply with the provisions of [LSA-]R.S. 15:1186(A)(2) and (B)(1) requiring a percentage of the costs to be paid in monthly installments out of the inmate's account. Further, the record does not contain any evidence of Templet's inmate account. It would lead to an absurd result to require Templet, with no inmate account, to continue to be required to comply with the inmate pauper statute.
Templet, ––– So. 3d at ––––, 2022 WL 16707123 at *3.
Although the record in this matter does not clearly indicate whether Miller was an inmate at the time he filed his petition for damages, Miller's motion to lift stay to allow service, which accompanied his second motion to proceed in forma pauperis, explicitly sets forth (and the defendants do not dispute) that he was not incarcerated at the time the motion was filed. Moreover, the second pauper motion and the accompanying order, which the trial court signed and granted, cite LSA-C.C.P. art. 5181, without reference to LSA-R.S. 15:1186, which sets forth requirements applicable to prisoners proceeding in forma pauperis.
Thus, for the same reasons noted by this court in Templet, ––– So. 3d at ––––, 2022 WL 16707123, we find no merit to this assignment of error.
Assignment of Error No. 2
In their second assignment of error, appellants argue that the trial court committed clear error by finding a violation of LSA-C.C.P. art. 863. They contend that if there was even a “minimal legal justification” for the exception, sanctions are not warranted. They further assert that the imposition of sanctions herein should be set aside as the trial court's only stated reason for imposing sanctions was that the exception was “baseless,” and the trial court did not actually describe the sanctionable conduct or explain the basis for the imposition of sanctions as required by LSA-C.C.P. art. 863(G).
Appellants point out that the trial court allowed both sides to present extensive arguments as to the exceptions and then “clearly contemplated” the merits of each party's legal arguments before overruling the exception. Accordingly, appellants argue that it was contradictory for the trial court to then rule that the exception was so “baseless” as to warrant sanctions. Appellants further argue that even if Miller's purported proof of service was sufficient to show service on the ORM, he cannot show that the exception was unreasonable at the time it was filed, where Miller's purported proof of service was not filed into the record and was only presented for the first time in opposition to the exception.
At the time the judgment was signed, LSA-C.C.P. article 863 provided, in pertinent part, as follows:3
A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose physical address for service of process shall be stated. A party who is not represented by an attorney shall sign his pleading and state his physical address for service of process. If mail is not received at the physical address for service of process, a designated mailing address shall also be provided.
B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following:
(1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
(2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.
(3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.
With regard to the imposition of sanctions, LSA-C.C. art 863 further provides:
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.
E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.
F. A sanction authorized in Paragraph D shall not be imposed with respect to an original petition which is filed within sixty days of an applicable prescriptive date and then voluntarily dismissed within ninety days after its filing or on the date of a hearing on the pleading, whichever is earlier.
G. If the court imposes a sanction, it shall describe the conduct determined to constitute a violation of the provisions of this Article and explain the basis for the sanction imposed.
Accordingly, under LSA-C.C.P. art. 863, there is an affirmative duty imposed on attorneys and litigants to make an objectively reasonable inquiry into the facts and the law. See Droddy v. Porter, 2019-0633 (La. App. 1st Cir. 12/27/19), 292 So. 3d 925, 928. In determining whether an attorney has breached that affirmative duty, the trial court should avoid using the wisdom of hindsight and must test the signer's conduct by inquiring what was reasonable to believe at the time the pleading was submitted. Sanchez v. Liberty Lloyds, 95-0956 (La. App. 1st Cir. 4/4/96), 672 So. 2d 268, 272, writ denied, 96-1123 (La. 6/7/96), 674 So. 2d 972.
Article 863 does not empower a trial court to impose sanctions simply because a particular argument or ground for relief is subsequently found to be unjustified; failure to prevail does not trigger an award of sanctions. Furthermore, Article 863 is intended to be used only in exceptional circumstances; where there is even the slightest justification for the assertion of a legal right, sanctions are not warranted. Landry v. Landry, 2021-0337 (La. App. 1st Cir. 10/8/21), 331 So. 3d 351, 356, writ denied, 2022-00044 (La. 3/2/22), 333 So. 3d 835. Article 863 seeks to strike a balance between the need to curtail abuse of the legal system and the need to encourage creativity and vitality in the law. Lafourche Parish Council v. Breaux, 2002-1565 (La. App. 1st Cir. 5/9/03), 845 So. 2d 645, 648. For an attorney, who owes professional and ethical considerations pursuant to Article 863, and at the same time has the duty of due diligence and timeliness to his clients, this often creates a delicate balance, warranting a case-by-case consideration of the particular facts and circumstances present in each case. Brown, 960 So. 2d at 934-35. A trial court's determination regarding the imposition of sanctions is subject to the manifest error or clearly wrong standard of review. Once the trial court finds a violation of Article 863 and imposes sanctions, the determination of the type and/or amount of the sanction is reviewed on appeal utilizing the abuse of discretion standard. Stroscher v. Stroscher, 2001-2769 (La. App. 1st Cir. 2/14/03), 845 So. 2d 518, 526.
In the instant case, the basis for Miller's motion for sanctions was the filing of an exception of insufficient service of process by Comeaux on behalf of the defendants, wherein the defendants argued that Miller failed to request service of process upon the ORM at its proper address and through its proper agent for service. On appeal, the appellants point out that in filing the exception, they relied on Miller's request for service in his petition, which requested service on “LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS RAYBURN CORRECTIONAL CENTER Office of Risk Management through the Governor's Office through the Attorney General and Attorney General through Honorable Jeff Landry State Capitol, 22nd Floor Baton Rouge, Louisiana 70809.”4
In his opposition to the exception, Miller further responded that he not only requested service on the ORM as listed in the petition, but that, on May 30, 2019, the EBRPSO actually served the ORM with the petition on “Office of Risk Management Director, Bud Thompson 1201 North 3rd St. Baton Rouge, LA 70802.” Miller also asserted that after he filed his Motion to Lift Stay for Service, he again requested service on “LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS RAYBURN CORRECTIONAL CENTER Office of Risk Management through the Governor's Office through the Attorney General and Attorney General through Honorable Jeff Landry 1885 North Third Street, 3rd Floor, Baton Rouge, La 70802.”
In support of his opposition, Miller attached a letter dated April 20, 2019 and addressed to the EBRPSO, which purported to request the Sheriff serve the petitions in fourteen different matters, including the petition in the instant case, on “Office of Risk Management Director, Bud Thompson 1201 North 3rd St. Baton Rouge, LA 70802.” The letter bears a stamp stating a Deputy Sheriff made service on May 30, 2019. Miller also attached a letter, which appeared to request payment for service from the EBRPSO.
Miller subsequently filed a joint supplemental opposition to the exception and motion for sanctions, wherein he requested sanctions pursuant to LSA-C.C.P. art. 863 and contended that “multiple emails were sent to the Defendants providing applicable law, proof of service on [the] ORM and․ opinions from the First Circuit Court of Appeal[, but] in the absence of a basis in law or fact, the Defendants persist with pushing this matter to a hearing.”
The defendants filed a joint reply memorandum in support of their exception and opposition to the motion for sanctions, asserting that Miller's various purported requests for process upon ORM were insufficient and lack any proof of process; that since 2018 the proper agent and address for service on ORM is “Melissa Harris Director of the Office of Risk Management 1201 N. Third St. Baton Rouge, LA 70802;” and that there is no provision of law which permits service of process upon the ORM through the Office of the Attorney General, despite Miller's repeated requests that the ORM be served through the attorney general. The defendants further contended that Miller's purported request for service on “Director, Bud Thompson,” shown in the letter attached to Miller's opposition, was made before the petition was filed with the trial court; and, moreover, the letter does not show or include a copy of what was actually served on the ORM.
In determining whether the trial court erred in imposing sanctions herein, we note that despite Miller's repeated assertions in opposition to the exception that the ORM is only entitled to service of process and not service of citation, thereby rendering the exception filed herein frivolous, the defendants filed an exception of insufficient service of process not an exception of insufficient citation. See LSA-C.C.P. art. 925 (which separately lists the declinatory exception of insufficiency of citation and the declinatory exception of insufficiency service of process).5
Further, as pointed out by the defendants in their exception, the law is clear that service of process made on one other than the person authorized to accept such service is illegal and without effect. Johnson v. University Medical Center in Lafayette, 2007-1683 (La. 11/21/07), 968 So. 2d 724, 725 (per curiam). Moreover, it is a plaintiff's responsibility to provide accurate service information for the proper agent for service of process. Johnson, 968 So. 2d at 725.
As to whether the defendants had a basis for the filing of their exception warranted by the facts and law, we find the instant case comparable to the facts presented in Dorsey v. Moses, 2018-961 (La. App. 3rd Cir. 4/10/19), 269 So. 3d 907. In Dorsey, the plaintiff attempted service on the ORM in an almost identical manner as requested in Mr. Miller's petition. Dorsey, 269 So. 3d at 908. The Third Circuit concluded that failure to effect service on the head of the department involved, ORM, or the attorney general is insufficient service of process and the defendants were entitled to have the exception sustained by the trial court; thus, the matter was remanded to the trial court to allow the plaintiff a reasonable time to “cure the defect in service.” Dorsey, 269 So. 3d at 910-11.
Our review of the record herein shows that at the time the defendants filed their exception, the record was devoid of any evidence that Miller properly sought to effect service of process on the ORM. Instead, at the time of filing, the petition improperly sought service on the ORM as follows: “LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS RAYBURN CORRECTIONAL CENTER Office of Risk Management through the Governor's Office through the Attorney General and Attorney General through Honorable Jeff Landry State Capitol, 22nd Floor Baton Rouge, Louisiana 70809.” Thus, at the time the exception was filed, the defendants had a reasonable basis in the law for its filing. Accordingly, we find the trial court erred in imposing sanctions. See Landry, 331 So. 3d at 356 (where there is even the slightest justification for the assertion of a legal right, sanctions are not warranted).
The mere fact that an exception is ultimately denied on the merits does not concomitantly establish that the filing of the exception was frivolous or that the filing warranted the imposition of sanctions. The fact that Miller filed proof of service at the proper address in the record, albeit on an improper head of the department, in opposition to the exception, does not establish that the defendants had such knowledge at the time the pleading was filed. See Sanchez, 672 So. 2d at 272 (the trial court should avoid using the wisdom of hindsight and instead, should test the signer's conduct by inquiring what was reasonable to believe at the time the pleading was submitted).
As such, we find the trial court manifestly erred in imposing sanctions against the DOJ and Comeaux. Because we find there is merit to this assignment of error, we pretermit discussion of the appellants’ remaining assignment of error.
For the above and foregoing reasons, we reverse the trial court's December 15, 2021 judgment, which granted Keith Miller's motion for sanctions and imposed sanctions against the Louisiana Department of Justice and Tracey Comeaux. We also deny the relief requested in Miller's answer to the appeal. Costs of this appeal are assessed to the plaintiff/appellee, Keith Miller.
REVERSED; ANSWER TO APPEAL DENIED.
1. The then-presiding trial judge, William H. Burris, signed and dated the order denying the pauper motion. The date written in by the trial court, April 2, 2019, appears to be an error as the affidavits and verification filed in support of the motion are dated April 26, 2019.
2. On January 4, 2022, the trial court signed a separate judgment overruling the defendants’ exception.
3. The 2021 amendment to Article 863, effective January 1, 2022, only added the requirement that an attorney or the litigant filing the pleading include an email address for service of process, as well as a physical address. La. Acts 2021, No. 68, § 1, eff. Jan. 1, 2022.
4. Although the DPSC often refers to both “citation” and “process” throughout their exception, it also explicitly argues that “service of process, made on one other than the person authorized to accept service, is illegal and without effect.” (Emphasis added.) Miller also made extensive arguments in his brief regarding the difference between service of process and service of citation, despite admitting that citation was not the basis of the exception filed by the defendants.
5. Both parties in this matter rely on the Louisiana Supreme Court case of Whitley v. State ex rel. Board of Supervisors of Louisiana State University Agricultural and Mechanical College. 2011-0040 (La. 7/1/11), 66 So. 3d 470, to support their various assertions herein. Whitley is clear that there is no time requirement in which to effect service on the ORM when it is not a named defendant; however, Whitley is also clear that LSA-R.S. 39; 1538 still requires service of process on the ORM when a party is suing the state or any of its agencies to recover damages in tort. Whitley, 66 So. 3d at 479, 481. The Court in Whitley also found that “subsequent service on the attorney general and the [ORM] cured the objection posed by” the exception. Whitley, 66 So. 3d at 471-472. Thus, under Whitley, while a state agency may succeed on an exception of insufficient service of process if the plaintiff fails to serve the ORM, the state agency would not be entitled to dismissal of the suit.
Wolfe, J. concurs.
Response sent, thank you
Docket No: NUMBER 2022 CA 0649
Decided: December 22, 2022
Court: Court of Appeal of Louisiana, First Circuit.
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