Gerald Burge VS State of Louisiana

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 CA 0051 GERALD BURGE J VERSUS STATE OF LOUISIANA Judgment Rendered June 11 2010 On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No 557 608 Honorable William A Morvant Judge Presiding David Park New Orleans LA James D Buddy Caldwell Attorney General Terri R Lacy Attorney for Plaintiff Appellant Gerald Burge Attorneys for Defendant Appellee State of Louisiana Matthew B Derbes Baton Rouge LA BEFORE CARTER C GUIDRY AND PETTIGREW JJ J CARTER C J Gerald Burge appeals the district court dismissal of his petition s 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 8 572 15 which allows an applicant to seek compensation for wrongful conviction and imprisonment Burge alleged that he had been wrongfully convicted of second degree murder in the TwentySecond 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 TwentySecond 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 s Burge 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pleading entitled Declinatory Exception of Insufficiency of Service of Process I 486 Louisiana Revised Statutes 15 was originally enacted by Acts 2005 No 8 572 1 effective September 1 2005 providing that all applications for compensation be filed in the Nineteenth Judicial District Court allotted to the civil division and shall be tried by the judge alone The statute was amended by Acts 2007 No 262 1 effective August 15 2007 to specifically establish among other things that the attorney general is the representative of the State in these types of proceedings The 2007 amendment further required service to be made by the court upon the attorney general the district attorney of the parish in which the conviction was obtained and upon the court or pardon board that reversed or vacated the conviction within fifteen days of receiving the petition The 2005 version of the statute states that a copy of the application for compensation shall be submitted by the court to the sentencing court and the district attorney within fifteen days of receiving the application For purposes of this opinion we will analyze both versions of the statute as it pertains to citation and service without deciding whether the 2007 amendment is retroactive 2 Answer 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 LSAR S 8 572 15 arguing that it was the district court responsibility to serve the s defendants The State maintained that Burge failed to comply with the ninety day service requirements found in LSA C art 1201C and P therefore a judgment dismissing Burge petition without prejudice was s mandatory pursuant to LSAC art 1672C P 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 action Thus the district s court maintained the State exception raising the objection of insufficient s service of process and dismissed Burge suit without prejudice on s 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 6851 So 319 322 Burge argues that the district 03 25 2d court erred in dismissing his petition because the Code of Civil Procedure service provisions do not apply in this case Burge maintains that LSAR S 3 8places the responsibility for service on the district court and that 572 15 this more specific statute supersedes the general service requirements of LSAC art 1201C Burge relies on the language of the 2005 version of P C LSA R 15 S 572 1which was in effect at the time that he filed his 8C petition tcourt shall submit a copy of any application filed pursuant he 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 15 which became S 572 8E effective a few weeks after he filed his petition tattorney general shall he 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 within fifteen days of receiving such petition or pardon board Emphasis added The State contends that LSAR 15 S 572 8does not dictate service requirements and that Burge is required to follow the service requirements of LSAC P C art 1201C We find that neither party has correctly identified the pertinent authority for service in this situation The general rule of service is specified in LSAC art 1201C which provides in pertinent part s of P C ervice 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 LSAR 13 S 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 ofLSAR S El 8Ethat appears after the part relied on by Burge as follows Upon 572 15 receipt of the petition and of confirmation of service on the attorney s general office the court shall ask the state through the attorney general s office to respond to the petition within fortyfive days of service of the petition Emphasis added With few exceptions citation and service are essential in all civil actions LSAC art P C 09 21 1 5 So 832 834 3d 1201A Tranchant v State 08 0978 La Proper citation is the cornerstone of civil actions Naquin v Titan Indemnity Co 00 1585 La 2779 So 01 21 2d 704 710 Pursuant to LSA R 13 iall suits in which the S 5107D n 1 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 fservice 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 LSAC art 1672C as to the state P C who has not been served 3 LSAR 13 S 5107D 2 s Burge petition is most certainly a civil action against the State of Louisiana As such the service requirements of LSA R 13 S 5107D 1are not only applicable in this case they are clearly and unambiguously mandatory See Chinn v Mitchell 98 1060 La App 1 Cir 5734 99 14 2 The 2005 version of LSA R 15 is completely silent regarding service on S 572 8 the attorney general or any service at all and instead refers to a submission of a copy of the claim to the sentencing court and district attorney who are not named defendants in s Burge action 3 750 Louisiana Code of Civil Procedure article 1672C was amended by Acts 2006 No 1 to include upon the sustaining of a declinatory exception filed by such defendant in addition to a contradictory motion by any other party Therefore the s State use of the declinatory exception raising the objection of insufficient service of process was a proper procedural device for obtaining a dismissal of Burge spetition Cf Filson v Windsor Court Hotel 042893 La 6907 So 723 729 730 which 05 29 2d was decided prior to the Legislature s2006 amendment of LSA Cart 1672C P M 2d So 1263 1265 1266 writ not considered 99 1772 La 7 747 99 2 2d So 7 Burge reliance on the language of either version of LSAR s S 8 572 15 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 plaintiff s responsibility to provide accurate service information for the proper agent for service of process in order to satisfy LSA R 13 Johnson v S 5107D Univ Med Or In Lafayette 071683 La 11 968 So 724 725 07 21 2d 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 Tranchant 5 So at 836 The clerk of court cannot act to effect service 3d until service instructions are received from the plaintiff Id Further the Supreme Court has held that mere confusion over a s party proper service information is not a sufficient basis for good cause to defend against the mandatory dismissal Johnson 968 So at 725 And 2d we should not disregard the clear meaning of the mandatory service requirements merely because Burge elected to initially proceed in proper person Therefore we find no merit to any intimation that Burge made a good faith effort to comply with the rules regarding proper service and citation upon the State when he mistakenly relied on his belief that the district court was responsible for service Louisiana courts have strictly construed the good cause requirement of LSAC art 1672C and P C consequently Burge is strictly held to the obligation of serving the correct agent for service of process as well as to the obligation of serving the named 4 The clerk of court is charged with the duty to issue all citations and other processes of the district court See LSA C art 252 P 2 State defendants within the ninetyday time period specified by LSAR S 1 5107D 13 See Tranchant 5 So at 837 838 3d We find that an error in interpreting service requirements does not excuse Burge failure in satisfying service and citation requirements in this s case See Isaac v Amos Gombako 08 840 La App 3 Cir 12 999 08 10 2d So 349 350 351 writ denied 090067 La 3 3 So 490 09 6 3d Because Burge did not request service on the State within ninety days from the commencement of his action for compensation for his alleged wrongful conviction it is mandatory that the action be dismissed without prejudice LSAR 13 LSAC art 1672C Therefore the district court S 510713 P C s judgment is not manifestly erroneous CONCLUSION The judgment of the district court dismissing Gerald Burge claims s against the State of Louisiana without prejudice is affirmed All costs ofthis appeal are assessed to Gerald Burge AFFIRMED 7 GERALD BURGE NUMBER 2010 CA 0051 VERSUS COURT OF APPEAL STATE OF LOUISIANA FIRST CIRCUIT STATE OF LOUISIANA BEFORE CARTER C GUIDRY AND PETTIGREW JJ J PETTIGREW J DISSENTS AND ASSIGNS REASONS I am of the humble opinion that La R 15 is the most recent and more S 572 8 specific statute on applications for compensation for wrongful conviction and therefore supersedes and controls rather than La Code Civ P art 1201 andor La R S 5107 13 If there is a conflict between two statutes the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character LeBreton v Rabito 97 2221 p 7 La 7 714 So 1226 1229 98 8 2d Thomas v Louisiana Dept of Public Safety and Corrections 20020897 p 10 La App 1 Cir 3 writ denied 20032397 La 11 860 So 552 03 28 03 21 2d The compensation statute under La R 15 specifically outlines the S 572 8 procedures for entertaining all petitions filed under the statute including the responsibility of service and the parties to be served This responsibility is placed upon the district courts and not the petitioner I further note that this statute falls under the criminal procedure statutes in particular Chapter 5 Reprieve Pardon and Parole After reviewing this statute I have serious questions as to whether this is even a civil proceeding Rather I believe it may be nothing more than a claims procedure established by the legislature proceeding is error I am of the humble opinion that treating it as a civil

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