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Burgo v. Chambers

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
Jan 7, 2016
NO. 2015 CA 0485 (La. Ct. App. Jan. 7, 2016)

Opinion

NO. 2015 CA 0485

01-07-2016

DONALD BURGO v. LOIS EVA SAMPEY CHAMBERS (BURGO), ET AL.

Donald Burgo Angola, Louisiana Plaintiff/Appellant, In Proper Person James D. "Buddy" Caldwell Attorney General Ryan M. Seidemann Assistant Attorney General Baton Rouge, Louisiana Attorneys for Defendant/Appellee, State of Louisiana, Department of Natural Resources Robert P. Fuhrer Morgan City, Louisiana Attorney for Defendant/Appellee, Lois Eva Sampey Chambers Burgo


NOT DESIGNATED FOR PUBLICATION

On Appeal from the 16th Judicial District Court, Parish of St. Mary, State of Louisiana
Trial Court No. 19,379
The Honorable Keith Comeaux, Judge Presiding Donald Burgo
Angola, Louisiana Plaintiff/Appellant,
In Proper Person James D. "Buddy" Caldwell
Attorney General
Ryan M. Seidemann
Assistant Attorney General
Baton Rouge, Louisiana Attorneys for Defendant/Appellee,
State of Louisiana, Department of
Natural Resources Robert P. Fuhrer
Morgan City, Louisiana Attorney for Defendant/Appellee,
Lois Eva Sampey Chambers Burgo BEFORE: PETTIGREW, HIGGINBOTHAM, AND CRAIN, JJ. CRAIN, J.

In a previous appeal taken by the appellant in this case, Donald Christopher Burgo, this court affirmed a judgment of possession rendered in the succession proceedings of Donald's father, James Samuel Burgo. See Succession of Burgo, 13-0595, 2014WL651415, (La. App. 1 Cir. 2/18/14). Donald then filed the "Burden of Proof in Action to Annul" in this case, seeking to annul that judgment of possession. The State of Louisiana, through the Department of Natural Resources was named as a defendant and served with the pleading. The State then filed an exception of no cause of action, which was granted and a judgment was signed dismissing Donald's claims. Donald now challenges that judgment.

Additionally, this court recently addressed an appeal by Donald in a separate, but related, petitory action that contested the transfer of property through his father's estate. See Burgo v. Chambers, 15-0484 (La. App. 1 Cir. 11/9/15), 2015WL6951264. A more detailed history of these proceedings is set forth in these prior opinions.

At the hearing on the State's exception, Donald (an inmate in the custody of the Department of Public Safety and Corrections who appeared pro se), stated that he did not name the State as a defendant, but served the State with his nullity action because the action concerned immovable property over which the State had jurisdiction. He further explained his belief that service on the State was required by Louisiana Revised Statute 13:5106. Donald did not contest the State's assertion that his nullity action neither asserted allegations against nor requested relief from the State. Rather, he maintained that there was a "jurisdictional question" regarding the State, referencing some environmental management orders affecting the succession property. The State's attorney speculated that Donald may have mistakenly named it as a defendant in an effort to obtain information he sought in a pending public records request.

Section 13:5106 generally sets forth limitations of liability for suits against the State of Louisiana.

Although Donald has referred to a "jurisdictional question," he has not challenged the jurisdiction of the courts over this proceeding. Nonetheless, we have examined both ours and the district court's subject matter jurisdiction and are satisfied that authority exists to adjudicate this cause. See La. Code Civ. Pro. arts. 1, 2; Boudreaux v. State, Dep't. of Transp. & Dev., 01-1329 (La. 2/26/02), 815 So. 2d 7, 12-13.

In support of this appeal, Donald filed a twenty-nine page handwritten brief setting forth numerous arguments and six assignments of error, none of which are briefed as required by Uniform Rules - Courts of Appeal, Rule 2-12.4. Among his complaints, he contends that he was not properly served with the State's exception of no cause of action. This issue was raised in the trial court, which determined that the exception was properly before the court. The record on appeal contains a certificate of service showing that the exception was mailed to Donald in prison and an order requesting that the rule to show cause setting the exception for hearing be served on Donald and that he be transported to court for the hearing. Our review of the record before us reveals no procedural deficiencies in the proceedings below. See La. Code Civ. Pro. art. 1313. The record also does not substantiate Donald's assertions that the exception was improperly ruled on in chambers.

The judgment before us sustained the exception of no cause of action urged by the State. The purpose of the peremptory exception raising the objection of no cause of action is to test the legal sufficiency of a pleading by determining whether the law affords a remedy on the facts alleged. Naquin v. Bollinger Shipyards, Inc., 13-1638 (La. App. 1 Cir. 5/2/14), 147 So. 3d 207, 209, writ denied, 14-1091 (La. 9/12/14), 148 So. 3d 933. The exception is triable on the face of the pleading, and for the purpose of determining the issues raised by the exception, the well-pleaded facts must be accepted as true. Id. Because the exception of no cause of action raises a question of law, and the trial court's decision is based solely on the sufficiency of the petition, review of the trial court's ruling on an exception of no cause of action is de novo. Scheffler v. Adams and Reese, LLP, 06-1774 (La. 2/22/07), 950 So. 2d 641, 647. The State correctly points out that Donald's nullity action does not set forth any factual allegations regarding the State. In fact, Donald does not even argue that he is attempting to state a cause of action against the State. Donald's pleading demonstrates that he has no cause of action against the State to nullify the judgment of possession.

After de novo review, we affirm the trial court's judgment sustaining the State's exception of no cause of action and dismissing the State as a defendant in the nullity action. In an abundance of caution, the State has filed an exception of no cause of action with this court setting forth the same argument presented in support of the trial court's judgment on the exception of no cause of action filed below, that Donald has neither made allegations against nor seeks relief from the State. Because we affirm the trial court's judgment sustaining the exception urged in the trial court, the exception filed with this court is dismissed as moot. Costs of this appeal are assessed to Donald Christopher Burgo. This memorandum opinion is issued in compliance with Uniform Rules - Courts of Appeal, Rule 2-16.1B.

The trial court did not allow Donald the opportunity to amend his petition to remove the grounds of the objection. Based on the record before us, including Donald's repeated assertions at the hearing before the trial court that he did not intend to name the State as a defendant, but only to question the State's jurisdiction over certain property matters, we find no error in the trial court's decision not to allow Donald to amend his petition to attempt to remove the grounds of the objection. See La. Code Civ. Pro. art. 934; Clegg v. USAgencies Ins. Co., 07-1781 (La. App. 1 Cir. 3/26/08), 985 So. 2d 781, 785 (if a petition fails to state a cause of action, the court shall allow the opportunity to remove the impediment by amendment, unless the attempt would be in vain, in which case no opportunity for amendment is required and the action should be dismissed.)

The State did not answer this appeal and request frivolous appeal damages. However, we caution Donald that even pro se litigants subject themselves to frivolous appeal damages by taking appeals that are clearly without merit. Cf. Bankston v. Alexandria Neurosurgical Clinic, 94-693 (La. App. 3 Cir. 12/7/94), 659 So. 2d 507, 511 ("filing pro se offers a party neither an impenetrable shield nor a license to harass others, clog the judicial machinery with meritless litigation, or abuse already overloaded court dockets"). Further, in preparing future filings with this court, we admonish Donald that he must comply with Uniform Rules - Courts of Appeal, Rule 2-12.4, which requires that appellate briefs be courteous and free from insulting criticisms, or the author be subject to contempt. --------

JUDGMENT AFFIRMED; EXCEPTION DISMISSED.


Summaries of

Burgo v. Chambers

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
Jan 7, 2016
NO. 2015 CA 0485 (La. Ct. App. Jan. 7, 2016)
Case details for

Burgo v. Chambers

Case Details

Full title:DONALD BURGO v. LOIS EVA SAMPEY CHAMBERS (BURGO), ET AL.

Court:STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Date published: Jan 7, 2016

Citations

NO. 2015 CA 0485 (La. Ct. App. Jan. 7, 2016)