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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 51 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down of the 29th day of June, 2005 , are as follows:

BY VICTORY, J. :

2004-CC-2893

LEA SINCLAIR FILSON, ET AL. v. WINDSOR COURT HOTEL, ET AL. (Parish of Orleans) For the reasons expressed herein, the judgment of the court of appeal is affirmed. AFFIRMED. CALOGERO, C.J., concurs and assigns reasons. KIMBALL, J., dissents. JOHNSON, J., dissents and assigns reasons. TRAYLOR, J., dissents and assigns reasons.

(06/29/2005)

SUPREME COURT OF LOUISIANA
No. 2004-CC-2893 LEA SINCLAIR FILSON AND RON FILSON VERSUS WINDSOR COURT HOTEL, ET AL. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

VICTORY, J. We granted this writ application to determine whether the filing of an answer and discovery requests by a defendant upon whom service was not requested within 90 days of the commencement of the action as required by La. C.C.P. art. 1201(C) constitutes a waiver of that requirement. After reviewing the record and the applicable law, we affirm the judgment of the court of appeal and hold that the mere filing of an answer and discovery requests by the defendant does not waive his right to file a motion for involuntary dismissal under La. C.C.P. art. 1672(C). FACTS AND PROCEDURAL HISTORY Lea and Ron Filson ("plaintiffs") filed a Petition for Damages on March 25, 2003, against several defendants, including Keta Construction ("Keta"),and requested that service be withheld as to all defendants. On July 14, 2003, Keta was served with plaintiffs' petition, and on August 25, 2003, Keta answered the petition and propounded discovery requests on plaintiffs. No exceptions were set forth in Keta's answer. The remaining defendants in the suit filed exceptions of insufficiency of service of process and citation based on the fact that plaintiffs' counsel failed to request service upon them within 90 days as required by La. C.C.P. art. 1201(C).1

These exceptions were filed on August 25, 2003 (Windsor Court), October 2, 2003 (Sean Cummings), October 3, 2003 (Orient Express), and October 20, 2003 (ekistics, Inc.).

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On February 6, 2004, the trial court granted the declinatory exceptions of insufficiency of service of process and citation filed by the other defendants and dismissed the plaintiffs' claims against those defendants without prejudice.2 Thereafter, on February 9, 2004, Keta filed a Motion for Involuntary Dismissal under La. C.C. art. 1672(C), adopting all the arguments made by the other co-defendants. The trial court denied the motion, reasoning that by filing an answer to plaintiffs' petition and by conducting discovery, Keta failed to preserve its right to file a motion for involuntary dismissal. The court of appeal granted Keta's writ application, reversed the trial court's judgment, and granted Keta's motion for involuntary dismissal without prejudice. Filson v. Windsor Court Hotel, et al., 04-C-0943 (La. App. 4 Cir. 10/28/04). We granted plaintiffs' writ application. Filson v. Windsor Court Hotel, et al., 04-2893 (La. 2/17/05). DISCUSSION Louisiana Code of Civil Procedure article 1201(C) provides: Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. The defendant may expressly waive the requirements of this Paragraph by any written waiver. In this case, plaintiffs did not request service of the citation on Keta within 90 days of filing the petition as required by this article. Subsequently, Keta filed a motion for involuntary dismissal pursuant to La. Code Civ. P. art. 1672(C) which provides: A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C), upon

The judgment signed on February 20, 2004, dismissed plaintiffs' claims against ekistics, Inc., Sean Cummings and the Windsor Court defendants with prejudice, but, an amended judgment was signed on July 29, 2004, dismissing the claims without prejudice. 2

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contradictory motion of that person or any party or upon the court's own motion, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time. Plaintiffs assert that by filing an answer and discovery requests prior to filing the motion for involuntary dismissal, Keta waived its right to object to the late service request. First, plaintiffs argue that by making a general appearance in this case Keta submitted to the jurisdiction of the district court under La. C.C.P. art. 6(3), which provides that a court obtains jurisdiction over a person by the "waiver of objection to jurisdiction by failure to timely file the declinatory exception." La. C.C.P. art. 925, which provides the objections which must be raised by declinatory exception or else they are waived, provides: A. The objections which may be raised through the declinatory exception include but are not limited to the following: (1) Insufficiency of citation. (2) Insufficiency of service of process. (3) Lis pendens. (4) Improper venue. (5) The court's lack of jurisdiction over the person of the defendant. (6) The court's lack of jurisdiction over the subject matter of the action. B. When two or more of these objections are pleaded in the declinatory exception, they need not be pleaded in the alternative or in any particular order. C. All objections which may be raised through the declinatory exception, except the court's lack of jurisdiction over the subject matter of the action, are waived unless pleaded. La. C.C.P. art. 928 provides, inter alia, that the declinatory exception shall be pleaded prior to or in the answer. We reject plaintiffs' argument for two reasons. First, an objection to insufficiency of citation or service of process under La. C.C.P. art. 925 "is properly leveled at the form of the citation" and also "focuses on the person to whom citation is delivered or on the manner in which delivery is made." Maraist, Frank L. and Lemmon, Harry T., Louisiana Civil Law Treatise, Vol. 1,

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