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BARBARA ANN VALVO

NO. 08-CA-622

VERSUS
DEBRA VALVO

FIFTH CIRCUIT
COURT OF APPEAL STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 597-365, DIVISION "D" HONORABLE ROBERT M. MURPHY, JUDGE PRESIDING
JANUARY 13, 2009

MADELINE JASMINE
JUDGE PRO TEMPORE
Panel composed of Judges Edward A. Dufresne, Jr., Greg G. Guidry, and Madeline Jasmine

BARBARA ANN VALVO Attorney at Law 41 Harley Place
Willow Spring, North Carolina 27592

IN PROPER PERSON FOR PLAINTIFF/APPELLANT ELIZABETH O. ROME ELIZABETH O. ROME, LLC Attorney at Law
2908 Hessmer Avenue Metairie, Louisiana 70002

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED

Barbara Valvo appeals the dismissal of a lawsuit for failure to serve the defendant. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY
On August 5, 2003, plaintiff, Barbara Ann Valvo, filed suit against her sister Debra Valvo. This tort suit alleged that the defendant destroyed the bond between

plaintiff and her mother causing damages to plaintiff. Service was requested to be held at the time the suit was filed. The suit was accompanied by an Application for Pauper Status and on August 5, 2003, an Order was signed granting plaintiff pauper status for one year. On October 30, 2003, a letter was delivered to the Clerk of Court requesting service "as indicated on the last page of the petition."
Although this letter does not appear in the record in chronological order, the record indicates that citation was issued by the Clerk of Court on November 4, 2003. The record further indicates that service was attempted on the defendant on five

occasions between November 6, 2003 and November 12, 2003. On November 4, -2-

2004, plaintiff filed a second Application for Pauper Status and a second Order was signed that same date granting plaintiff pauper status. On December 6, 2004, a letter was mailed to plaintiff stating she had been granted pauper status on November 4, 2004. On November 19, 2004, defendant filed a Motion to Dismiss for failure to request service pursuant to La. C.C.P. art. 1672(C) or alternatively an exception of insufficiency of service of process. A hearing on this motion was set for February
18, 2005. A minute entry dated February 18, 2005 states that the Motion to

Dismiss was continued without date at the request of the attorney for the mover. On December 18, 2007, plaintiff filed Interrogatories propounded to the defendant in the court record, stating that the Interrogatories had been mailed to defendant's
counsel. On February 12, 2008, defendant filed a Motion to Reset the Motion to

Dismiss filed on November 19, 2004. The hearing was set for April 21, 2008. On March 25, 2008, plaintiff filed a Request to Change the Hearing Date. This request was granted and the hearing date was changed to May 22, 2008. On April 29,
2008, plaintiff filed a Request to Participate in the Hearing by Phone. Said request

was denied by the trial court on May 7, 2008. On May 15, 2008, plaintiff filed a
Memorandum in Opposition to the Motion to Dismiss stating that service was
timely requested. She stated that when she met with the attorney for her deceased

mother's estate, who works in the same firm as defendant's attorney, she saw a copy of an Answer to her petition. Plaintiff contends that because an Answer to the petition had been drafted coupled with the fact that she was never notified that the sheriff was unable to serve the defendant, she believed in good faith that the
defendant had been served. Defendant filed a reply Memorandum arguing that even if the October 30, 2003 letter was a valid request for service, the Motion to Dismiss should be sustained "in that it is an abuse to the legal system that Barbara

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Ann Valvo has not had Debra Valvo served even to this date although she filed her petition on August 5, 2003." Defendant goes on to argue that plaintiff only attempted service on the defendant at her residence, although plaintiff was aware of the defendant's work address. On May 22, 2008, a hearing on defendant's motion was held. Plaintiff did not appear. Defendant's attorney stated that plaintiff tried to have defendant

served at home during the day while defendant was at work. At the conclusion of
the hearing, the trial judge granted defendant's motion. On May 27, 2008, the trial

court signed a judgment dismissing plaintiff's petition for "lack of service upon Debra Valvo." This timely appeal followed.

LAW AND DISCUSSION
The defendant filed a motion entitled Motion to Dismiss for Failure to

Request Service or Alternatively Exception of Insufficiency of Service of Process.
The trial court judgment states that plaintiff's suit was dismissed for "lack of

service upon Debra Valvo." Pursuant to La. C.C.P. art. 1201(C), "[s]ervice of the citation shall be requested on all named defendants within ninety days of the commencement of the action." If service is not requested within the time period provided by La. C.C.P.
art. 1201(C), La. C.C.P. art. 1672(C) mandates that the action be dismissed without prejudice, "unless good cause is shown why service could not be requested." Since

the trial court record shows plaintiff's request for service was received by the Clerk

of Court within 90 days of the filing of the suit articles 1201(C) and 1672(C) are
not applicable to the instant case.

La. C.C.P. art. 925 states that insufficiency of service of process may be raised through a declinatory exception. The trial court dismissed the suit for

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failure to serve the defendant, which falls under article 925 Exception of

Insufficiency of Service of Process. Appellant argues that service was not insufficient because the request for service named the proper party and the proper address, was given to the proper authority, and was carried out by the proper authority in the proper manner. While we do not dispute that the request for service was proper, the fact remains that the defendant was never served. The record indicates that five unsuccessful attempts were made shortly after service was requested. The next document in the record, plaintiff's second Application for Pauper Status, was filed into the record nearly
one year after the request for service.

Plaintiff, an attorney, is representing herself in this matter. Plaintiff states she was in the hospital with severe medical conditions that began shortly after suit was filed in 2003 and that she spent all of 2004 rehabilitating from her medical conditions. Because she viewed what she believed to be an answer to her lawsuit when she visited the law firm of defendant's attorney in 2005, she contends she was in good faith in believing defendant had been served'.

In Thomas v. Quality Inn Westbank, 01-930 (La. App. 5 Cir. 11/27/01), 802
So.2d 930, the plaintiff filed suit and was unsuccessful in serving the defendant. The defendant filed an Exception of Insufficiency of Service of Process. At the hearing on the motion, the trial court ordered plaintiff to obtain service no later than February 7, 1997. Plaintiff again failed to serve defendant and a second
hearing was held resulting in the dismissal of plaintiff's suit. In affirming the trial

court's dismissal of plaintiff's suit, this Court stated "We agree with the trial judge
that two unsuccessful attempts to obtain service in a period of three years does not constitute a diligent attempt at service."

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