Bridges v. Bullock

124 So. 3d 1171, 2013 WL 5345630, 2013 La. App. LEXIS 1959
CourtLouisiana Court of Appeal
DecidedSeptember 25, 2013
DocketNo. 48,231-CA
StatusPublished
Cited by2 cases

This text of 124 So. 3d 1171 (Bridges v. Bullock) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bridges v. Bullock, 124 So. 3d 1171, 2013 WL 5345630, 2013 La. App. LEXIS 1959 (La. Ct. App. 2013).

Opinion

STEWART, J.

11At issue in this appeal by Cynthia Bridges, Secretary of the Louisiana Department of Revenue (referred to herein as the “LDR”), is whether the trial court erred in granting a motion for involuntary dismissal filed by taxpayers Kenneth and Margaret Bullock (“the Bullocks”) in response to the LDR’s petition for judicial review of a judgment by the Board of Tax Appeals (“the board”) favorable to the Bullocks. The involuntary dismissal was based upon the alleged lack of service on the Bullocks of the petition for judicial review. Because we find that the LDR satisfied the requirements under La. R.S. 47:1434 for judicial review, we reverse the trial court’s judgment and remand for further proceedings.

FACTS

These proceedings were initiated by the Bullocks against the LDR by the filing of two petitions for refund with the board in 2006 and 2008. They claimed they were denied credits for ad valorem inventory taxes paid by their business, JPS Equipment, L.L.C., to political subdivisions in 2004, 2005, and 2006.1 The board heard the Bullocks’ claims on April 12, 2011, and rendered a judgment in their favor on May 12, 2011.

As authorized by La. R.S. 47:1434, the LDR filed on June 8, 2011, a petition for review of the board’s decision with the district court, specifically, the 3rd Judicial District Court (“3rd JDC”) in Lincoln Parish. On June 9, 2011, the district court judge signed an order allowing judicial review, directing that copies of the petition be mailed to the board and the 12Bullocks, and directing the board to file the record of its proceedings with the court within 20 days, all as prayed for in the petition for review. In fact, personal service of the petition for review was made on the Bullocks through their counsel of record on June 16, 2011.2

On July 1, 2011, the Bullocks filed a number of exceptions. They asserted dec-linatory exceptions of insufficiency of cita[1173]*1173tion and service, arguing that the petition for review is an original petition that must be served on the naméd defendant. Because the petition for review was served on their counsel of record in the proceedings before the board, they also asserted an exception of lack of personal jurisdiction. Asserting their domicile to be in Union Parish, not Lincoln Parish, the Bullocks excepted to venue. Lastly, they asserted the peremptory exception of prescription based on the alleged failure of Bridges to timely file the petition for review as required by La. R.S. 47:1434 in the proper district court within 80 calendar days after the Board’s decision was rendered and signed on May 12, 2011. Before these exceptions were heard, the Bullocks filed a supplemental declinatory exception of improper service and a motion for involuntary dismissal under La. C.C.P. art. 1672(C) for the LDR’s failure to request service within 90 days of commencement of the action as required by La. C.C.P. art. 1201(C).

After a hearing on the exceptions, the district court judge rendered an oral ruling sustaining the exception of improper venue and ordering the |smatter transferred to Union Parish, which is also within the 3rd JDC.3 The judge determined that the court of proper venue should address the other exceptions raised by the Bullocks. A judgment was signed on January 6, 2012.

Upon transfer to Union Parish, the same judge of the 3rd JDC who heard and granted the exception of venue in Lincoln Parish then heard the remaining exceptions and the motion for involuntary dismissal on March 22, 2013. After taking the matter under advisement, the district court judge rendered an oral ruling granting the motion for involuntary dismissal. Though the district court judge noted' that its granting of the motion made it unnecessary for it to decide the exceptions, the basis of the dismissal was that service of the petition for review on the Bullocks’ counsel of record in the proceedings before the board was not proper service of an original petition that commences a civil action. In effect, the trial court found merit to the exception as to insufficiency of service of process. The district court concluded that the LDR had neither requested nor made proper service on the Bullocks or a proper agent for them and that there was no showing of “good cause” as to why proper service could not have been requested. Accordingly, a judgment granting the Bullocks’ motion for involuntary dismissal and dismissing, without prejudice, the petition for review was signed on May 21, 2012. The LDR’s appeal followed.

^DISCUSSION

Though the LDR presents eight assignments of error on appeal, the underlying issue is whether a petition for judicial review filed under La. R.S. 47:1434 is subject to an involuntary dismissal under La. C.C.P. art. 1672(C) for the failure to comply with the requirements for citation and service under La. C.C.P. art. 1201.

With regard to an involuntary dismissal, La. C.C.P. art. 1672(C) reads:

C. A judgment dismissing an action without prejudice shall rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C) or 3955 upon the sustaining of a declina-tory exception filed by such defendant, or upon contradictory motion of any other party, 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.

[1174]*1174A trial court has great discretion in granting an involuntary dismissal. Barnes v. Barnes, 46,417 (La.App.2d Cir.6/22/11), 71 So.3d 1004; Smith v. Knight, 39,781 (La. App.2d Cir.6/29/05), 907 So.2d 831.

As stated, the trial court’s ruling effectively sustained the declinatory exception of insufficient service of process based on the failure of Bridges to comply with La. C.C.P. art. 1201, which provides:

A. Citation and service thereof are essential in all civil actions except summary and executory proceedings, divorce actions under Civil Code Article 102, and proceedings under the Children’s Code. Without them all proceedings are absolutely null.
B. The defendant may expressly waive citation and service thereof by any written waiver made part of the record.
C. 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. The requirement provided by this Paragraph shall be expressly waived by a defendant unless the defendant files, in accordance with the provisions of Article 928, a declinato-ry exception of insufficiency of service of process specifically alleging the failure to timely request service of citation.

A civil action is a demand for the enforcement of a legal right and is commenced by the filing of pleading presenting such demand to a court of competent jurisdiction. La. C.C.P. art. 421. Here, the Bullocks made a demand for the enforcement of a legal right by filing petitions for refund of overpayments of taxes. The power of taxation is vested .in the legislature, which is mandated to “provide a complete and adequate remedy for the prompt recovery of an illegal tax paid by a taxpayer.” La. Const. Art.

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Bluebook (online)
124 So. 3d 1171, 2013 WL 5345630, 2013 La. App. LEXIS 1959, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bridges-v-bullock-lactapp-2013.