Burge v. State

43 So. 3d 235, 2010 La.App. 1 Cir. 0051, 2010 La. App. LEXIS 895, 2010 WL 2342655
CourtLouisiana Court of Appeal
DecidedJune 11, 2010
Docket2010 CA 0051
StatusPublished
Cited by3 cases

This text of 43 So. 3d 235 (Burge v. State) 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
Burge v. State, 43 So. 3d 235, 2010 La.App. 1 Cir. 0051, 2010 La. App. LEXIS 895, 2010 WL 2342655 (La. Ct. App. 2010).

Opinions

CARTER, C.J.

| pGerald Burge appeals the district court’s dismissal of his petition against the State of Louisiana for failure to timely request service. For the following reasons, we affirm.

FACTS

On July 27, 2007, Gerald Burge filed a petition in the Nineteenth Judicial District Court against the State of Louisiana pursuant to LSA-R.S. 15:572.8, which allows an applicant to seek compensation for wrongful conviction and imprisonment.1 [236]*236Burge alleged that he had been wrongfully convicted of second degree murder in the Twenty-Second Judicial District Court and sentenced to life imprisonment in 1986. After serving six years in prison, Burge alleges that pursuant to post-conviction relief, his conviction and sentence were reversed by the Twenty-Second Judicial District Court; and after a new trial, he was acquitted by a jury and released. Thereafter, Burge filed the instant suit in proper person, seeking compensation for the six years he spent incarcerated on the alleged wrongful conviction.

Burge’s petition did not include any service request, and the record is void of any service information or return of citation. However, in a pleading entitled Declinato-ry Exception of Insufficiency of Service of Process, |sAnswer, and Peremptory Exception of No Cause of Action filed on April 20, 2009, the State alleged that Burge, who was at that point represented by counsel, did not request service on the defendants until March 23, 2009. In its oral reasons for judgment, the district court found that Burge had requested service on all defendants on March 30, 2009, almost two years after filing his claim. We are unable to verify the actual date of Burge’s service request since the return is not in the record; however, it is undisputed that Burge did not request service upon the State within ninety days of filing his action for compensation.

Burge claims that he was not responsible for service under LSA-R.S. 15:572.8, arguing that it was the district court’s responsibility to serve the defendants. The State maintained that Burge failed to comply with the ninety-day service requirements found in LSA-C.C.P. art. 1201 C, and therefore, a judgment dismissing Burge’s petition without prejudice was mandatory, pursuant to LSA-C.C.P. art. 1672 C. The district court agreed with the State, finding that the service of process was requested more than ninety days from the commencement of Burge’s action. Thus, the district court maintained the State’s exception raising the objection of insufficient service of process and dismissed Burge’s suit without prejudice on November 3, 2009. Burge filed this appeal.

DISCUSSION

A judgment of dismissal for insufficient service of process should not be reversed in the absence of manifest error. Johnson v. Brown, 03-0679 (La.App. 4 Cir. 6/25/03), 851 So.2d 319, 322. Burge argues that the district court erred in dismissing his petition because the Code of Civil Procedure service provisions do not apply in this case. Burge maintains that LSA-R.S. |415:572.8 places the responsibility for service on the district court, and that this more specific statute supersedes the general service requirements of LSA-C.C.P. art. 1201 C. Burge relies on the language of the 2005 [237]*237version of LSA-R.S. 15:572.8 C(l), which was in effect at the time that he filed his petition: “[tjhe court shall submit a copy of any application filed pursuant to this Section to the sentencing court and the district attorney within fifteen days of receiving such application.” (Emphasis added.) Burge also points to specific language in the 2007 version of LSA-R.S. 15:572.8 E, which became effective a few weeks after he filed his petition: “[t]he attorney general shall represent the state of Louisiana in these proceedings. The court shall serve a copy of any petition filed pursuant to this Section upon the attorney general and the district attorney ... and upon the court ... or pardon board ... within fifteen days of receiving such petition.” (Emphasis added.) The State contends that LSA-R.S. 15:572.8 does not dictate service requirements and that Burge is required to follow the service requirements of LSA-C.C.P. art. 1201 C.

We find that neither party has correctly identified the pertinent authority for service in this situation. The general rule of service is specified in LSA-C.C.P. art. 1201 C, which provides in pertinent part: “[sjervice of the citation shall be requested on all named defendants within ninety days of commencement of the action.” But the more specific rule of service in “all suits filed against the state of Louisiana” is specified in LSA-R.S. 13:5107. The statute governing the petition process for compensation for wrongful conviction and imprisonment does not supersede the explicit requirement of service and citation on the attorney general in a suit against the State of Louisiana. This is evident by the language in the 2007 version of LSA-R.S. |s15:572.8 E that appears after the part relied on by Burge, as follows: “Upon receipt of the petition and of confirmation of service on the attorney general’s office, the court shall ask the state, through the attorney general’s office, to respond to the petition within forty-five days of service of the petition.”2 (Emphasis added.)

With few exceptions, citation and service are essential in all civil actions. LSA-C.C.P. art. 1201 A; Tranchant v. State, 08-0978 (La. 1/21/09), 5 So.3d 832, 834. Proper citation is the cornerstone of civil actions. Naquin v. Titan Indemnity Co., 00-1585 (La.2/21/01), 779 So.2d 704, 710. Pursuant to LSA-R.S. 13:5107 D(l), “[i]n all suits in which the state ... is named as a party, service of citation shall be requested within ninety days of the commencement of the action ...” (Emphasis added). And, “[i]f service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in [LSA-C.C.P. art. 1672 C], as to the state ..., who has not been served.”3 LSA-R.S. 13:5107 D(2).

Burge’s petition is most certainly a civil action against the State of Louisiana. As such, the service requirements of LSA-R.S. 13:5107 D(l) are not only applicable in [238]*238this case, they are clearly and unambiguously mandatory. See Chinn v. Mitchell, 98-1060 (La.App. 1 Cir. 5/14/99), 734 So.2d 1263, 1265-1266, writ not considered, 99-1772 (La.7/2/99), 747 So.2d 7. Burge’s reliance on the language of either version of LSA-R.S. 15:572.8 to place the burden of service on the district court is misplaced and in error. The Louisiana Supreme Court has held that it is a plaintiffs responsibility to provide accurate service information for the proper agent for service of process in order to satisfy LSA-R.S. 13:5107 D. Johnson v. Univ. Med. Ctr. In Lafayette, 07-1683 (La. 11/21/07), 968 So.2d 724, 725. For service to be requested and effectuated, the clerk of court must be provided with the correct name and address of those persons to be served.4 Tranchant, 5 So.3d at 836. The clerk of court cannot act to effect service until service instructions are received from the plaintiff. Id.

Further, the Supreme Court has held that “mere confusion over a party’s proper service information is not a sufficient basis for good cause” to defend against the mandatory dismissal. Johnson, 968 So.2d at 725.

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Bluebook (online)
43 So. 3d 235, 2010 La.App. 1 Cir. 0051, 2010 La. App. LEXIS 895, 2010 WL 2342655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burge-v-state-lactapp-2010.