Charles Cutler v. State of La, Dept. of Public Safety & Corrections

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-971

CHARLES CUTLER

VERSUS

STATE OF LA, DEPT. OF PUBLIC SAFETY & CORRECTIONS

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 245,949
HONORABLE JOHN C. DAVIDSON, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Jimmie C. Peters, Judges.

AFFIRMED.

Judith M. Williams
Assistant Attorney General
429 Murray Street – 4th Floor
P. O. Box 1710
Alexandria, LA 71309-1710
Telephone: (318) 487-5944
COUNSEL FOR:
Defendant/Appellee - State of LA, Dept. of Public Safety & Corrections

Charles Cutler
Richwood Correctional
180 Pine Bayou Circle
Monroe, LA 71202
Telephone: (318) 449-4360
Plaintiff/Appellant

THIBODEAUX, Chief Judge.

Charles Cutler appeals the trial court’s judgment granting an

Exception of Insufficiency of Service of Process and dismissing his personal injury

suit against the State of Louisiana, Department of Public Safety and Corrections,

following a vehicular accident. We affirm the trial court’s judgment.

I.

ISSUES

We must decide whether the trial court erred in dismissing the

plaintiff’s petition without prejudice for insufficient service of process.

II.

FACTS AND PROCEDURAL HISTORY

Charles Cutler was a prisoner of the Louisiana Department of Public

Safety and Corrections (DPSC) and was housed with the Rapides Parish Sheriff’s

Work Release Program Department at the time of the accident on November 15,

2011. Mr. Cutler and other prisoners were working on the Alexandria airport

grounds and traveling in a transport van when the van was struck by the driver of a

Jeep, who had run a stop sign. Several prisoners were treated for injuries. Mr.

Cutler settled with the driver of the Jeep and disclosed the amount of the settlement

as $1,000.00. On November 7, 2012, Mr. Cutler filed this suit in Rapides Parish

alleging fault against the DPSC for the collision.

The Clerk of Court returned Mr. Cutler’s petition to him for failure to

include an order, and then the court denied his in forma pauperis petition. Mr.

Cutler paid the filing fee and requested service on the Office of Risk Management

only, at 1201 N. 3rd Street in Baton Rouge. The Office of Risk Management was

served. The Attorney General received the assignment, and the case was

transferred to the Alexandria office of the Attorney General. After conducting an

investigation, the Attorney General’s office filed a Declinatory Exception of

Improper Service on behalf of the DPSC.

In response to the exception, Mr. Cutler argued that he had relied

upon a 2008 representation by the Attorney General’s office in Lake Charles in a

suit that he had filed in Calcasieu Parish against the parole board in a criminal

matter. The five-year-old Calcasieu suit was not in the possession of the Rapides

agency defendant in this matter.

The trial court granted the DPSC’s exception and dismissed Mr.

Cutler’s civil suit without prejudice.

III.

STANDARD OF REVIEW

Questions of law are reviewed de novo. City of Bossier City v.

Vernon, 12-78 (La. 10/16/12), 100 So.3d 301. An appellate court may not set aside

a trial court’s findings of fact in the absence of manifest error or unless it is clearly

wrong. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). The manifest

error standard of review applies to a trial court’s dismissal of a suit for failure to

request proper and timely service; however, the requirement that good cause be

shown as to why service could not be requested is strictly construed. La.Code

Civ.P. art. 1672(C); Burgo v. Henderson, 12-332 (La.App. 3 Cir. 12/19/12), 106

So.3d 275.

2

IV.

LAW AND DISCUSSION

On appeal, Mr. Cutler argues that the trial court erred in not following

Whitley v. State Board of Supervisors, 11-40 (La. 7/1/11), 66 So.3d 470, for the

proposition that service on the Office of Risk Management is proper service under

La.R.S. 13:5107. He further argues that the Attorney General wrongfully withheld

the proper physical address for service, and that the trial court erred in not finding

that Mr. Cutler had shown good cause for the improper service. We find no error

on the part of the trial court.

Whitley is not applicable. Effective June 2012, prior to Mr. Cutler’s

November 2012 accident, La.R.S. 13:5107 was amended. The amendment

designated paragraph A as A(1) and added paragraph A(2). It provides in pertinent

part (emphasis added):

§ 5107. Service of citation and process

A. (1) In all suits filed against the state of
Louisiana or a state agency, citation and service may be
obtained by citation and service on the attorney general
of Louisiana, or on any employee in his office above the
age of sixteen years, or any other proper officer or
person, depending upon the identity of the named
defendant and in accordance with the laws of this state,
and on the department, board, commission, or agency
head or person, depending upon the identity of the named
defendant and in accordance with the laws of this state,
and on the department, board, commission, or agency
head or person, depending upon the identity of the named
defendant and the identity of the named board,
commission, department, agency, or officer through
which or through whom suit is to be filed against.

(2) Service shall be requested upon the attorney
general within ninety days of filing suit. This shall be
sufficient to comply with the requirements of Subsection
D of this Section and also Code of Civil Procedure
Article 1201(C). However, the duty of the defendant

3

served through the attorney general to answer the suit or
file other responsive pleadings does not commence to run
until the additional service required upon the
department, board, commission, or agency head has been
made.

....

D. (1) In all suits in which the state, a state
agency, or political subdivision, or any officer or
employee thereof is named as a party, service of citation
shall be requested within ninety days of the
commencement of the action or the filing of a
supplemental or amended petition which initially names
the state, a state agency, or political subdivision or any
officer or employee thereof as a party. This requirement
may be expressly waived by the defendant in such action
by any written waiver.

(2) If service is not requested by the party filing the
action within the period required in Paragraph (1) of this
Subsection, the action shall be dismissed without
prejudice, after contradictory motion as provided in
Code of Civil Procedure Article 1672(C), as to the state,
state agency, or political subdivision, or any officer or
employee thereof, upon whom service was not requested
within the period required by Paragraph (1) of this
Subsection.

Mr. Cutler requested service only upon the Office of Risk

Management. He never requested service on the Attorney General or on the

defendant agency, DPSC. Further, there is no merit to Mr. Cutler’s argument that

the Attorney General deliberately concealed its physical address by using a post

office box on its letterhead. Such physical addresses are a matter of public record.

Nor was Mr. Cutler deliberately misled by relying on an old case he had filed in

another jurisdiction. Likewise, there is no merit to his arguments in the record that

he could not find the proper address because he was incarcerated and the prison

library was below standard. Mr. Cutler has not shown “good cause” for improper

4

service under La.Code Civ.P. art. 1672(C) within the ninety days prescribed by

La.Code Civ.P. art. 1201(C) and La.R.S. 13:5107, which is his burden to establish.

In Burgo v. Henderson, 12-332 (La.App. 3 Cir. 12/19/12), 106 So.3d

275, we found that an inmate who filed suit for damages against the DPSC failed

to show good cause why he could not request service within ninety days of the

commencement of his action where his only explanation was that State agents

created impediments by withholding the addresses of those entities. Under the

same statutes, we found that mere confusion over a party’s proper service

information was not sufficient to show good cause for improper and untimely

service; nor was inadvertence on the part of the plaintiff’s counsel; nor was the

plaintiff’s allegation that his incarceration excused his failure to obtain proper

service information.

V.

CONCLUSION

Based upon the foregoing, the judgment of the trial court is affirmed.

Costs of this appeal are assessed to Mr. Charles Cutler.

AFFIRMED.

5