Opinion
NUMBER 2015 CA 0484
11-09-2015
DONALD CHRISTOPHER BURGO v. LOIS EVA SAMPEY CHAMBERS; (LOIS EVA BURGO); DIAMOND NICOLE BURGO, ET AL.
Donald Christopher Burgo Angola, LA Plaintiff-Appellant In Proper Person Robert P. Fuhrer Morgan City, LA Counsel for Defendant/Appellee Diamond Nicole Burgo
NOT DESIGNATED FOR PUBLICATION
Appealed from the Sixteenth Judicial District Court In and for the Parish of St. Mary State of Louisiana
Docket Number 124810
Honorable James R. McClelland, Judge Donald Christopher Burgo
Angola, LA
Plaintiff-Appellant
In Proper Person
Robert P. Fuhrer
Morgan City, LA
Counsel for
Defendant/Appellee
Diamond Nicole Burgo
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. GUIDRY, J.
Plaintiff, Donald Christopher Burgo, an inmate housed at the Louisiana State Penitentiary at Angola, appeals a judgment sustaining a peremptory exception raising the objection of no cause of action and dismissing one of the defendants in his petitory action. For the following reasons, we affirm the sustaining of the objection of no cause of action, but vacate the dismissal of a defendant and remand this matter in order to allow the plaintiff an opportunity to amend his petition.
FACTS AND PROCEDURAL HISTORY
On June 6, 2012, Mr. Burgo filed a pro se petition for a petitory action in the Sixteenth Judicial District Court for St. Mary Parish. In the caption of the petition, Mr. Burgo specifically identified Lois Eva Chambers (Lois Eva Burgo) and Diamond Nicole Burgo as defendants in the action. The pro se petition recites various state and federal statutes as grounds for the action and primarily presents allegations against Lois Burgo challenging her right to inherit any property from the succession of Mr. Burgo's deceased father, James Burgo. Additionally, Mr. Burgo presented allegations to establish why, as the adopted and only child of the deceased, he was entitled to claim ownership of the property found in his father's succession estate.
Thereafter, Mr. Burgo sought to have several subpoenas duces tecum issued to attorneys and the judge involved in his father's succession proceedings, which were all uniformly denied by the trial court. Then on January, 11, 2013, the trial court issued an order reciting the following history as well as reasons for ruling on the various pre-trial and discovery requests filed by Mr. Burgo:
James S. Burgo died in St. Mary Parish, Louisiana, on February 18, 2012. Mr. Burgo was married but once and then to Lois Sampey Burgo. No children were born of this marriage but Mr. Burgo did adopt one child, namely Donald Christopher Burgo, d/o/b/ December 16, 1966. James S. Burgo left a testament in proper notarial form dated December 16, 2010 in which Lois Sampey Burgo was recognized as his surviving spouse and named as his universal legatee.
"Petition for Probate and Possession" was filed in the Succession of James S. Burgo, Probate No. 19,379 and a Judgment of Possession recognizing Lois Sampey Burgo as surviving spouse and universal legatee and placing her in possession of all of title property owned by James S. Bugro was signed on June 6, 2012.See also Succession of Burgo, 13-0595 (La. App. 1st Cir. 2/18/14), 2014 WL 651415 (wherein this court affirmed the judgment of possession in the succession proceeding) and State v. Burgo, 07-0227 (La. App. 1st Cir. 6/8/07), 958 So. 2d 1217 (wherein this court affirmed Mr. Burgo's convictions for two counts of cruelty to the infirm and his adjudication as a habitual offender).
Donald Christopher Burgo was charged with two counts of cruelty to the infirm under St. Mary Parish Docket No. 2005-168512. He was tried and found guilty of those two counts on June 27, 2006. The victims of those two counts of cruelty to the infirm were James S. Burgo and Lois Sampey Burgo. Evidence adduced at sentencing indicated that Donald Christopher Burgo had physically abused his parents for many years and that both had suffered broken bones as a result of this abuse. On August 30, 2006 Donald Christopher Burgo was found to be a habitual offender and was ordered to serve [eight] years at hard labor on each count of cruelty to the infirm, the sentences to be served concurrently. On June 8, 2007 Donald Christopher Burgo's conviction and sentence were affirmed by the First Circuit Court of Appeal.
From his prison cell, Donald Christopher Burgo has continued to abuse Lois Sampey Burgo by filing numerous petitions and motions. This order will address each of those petitions and/or motions.
Donald Christopher Burgo has filed a "Motion and Order for Default Judgment" alleging that citation was issued by the Clerk of Court on June 21, 2012. The motion makes no reference to service upon any defendant. The citation issued on June 21, 2012 was under the Louisiana Long Arm Statute, La.R.S. 13:3201, et al and was directed to defendant Diamond Nicole Burgo. No evidence of compliancy with the Louisiana Long Arm Statute is found in the record. Therefore this motion is denied.
Donald Christopher Burgo has filed a "Motion to Issue Writs of Attachment and/or Execution for Assistance" against attorneys Alfred S. Lippman and Alex H. Hayes and District Judge Edward M. Leonard, Jr. This motion does not comply with the requirements of the Code of Evidence for issuance of subpoenas to a judge. Therefore, this motion is hereby denied.
Donald Christopher Burgo has filed a "Request for a Jury Trial" in the captioned matter. This request is not timely and is not in proper form. Therefore this motion is hereby denied.
Following the issuance of the foregoing order, Mr. Burgo filed a motion to amend his petition for petitory action to name the following persons as additional "parties" to the action: Attorney Robert P. Fuhrer, John Legendre, "Malcom" (sic) Sampey, Attorney Alfred S. Lippman, Attorney Dale H. Hayes, and the Honorable Edward M. Leonard. By an order signed March 7, 2013, Mr. Burgo's motion to amend was granted. He then filed pleadings seeking a judgment declaring him the owner of his deceased father's estate pursuant to federal rules of civil procedure, which motions were denied. Mr. Burgo refiled his request for declaratory judgment pursuant to La. C.C. art. 526, which was also denied. Thereafter, he sought to recuse the judge who had been presiding over the proceedings. The recusal motion was set for a separate hearing before another judge, who, following the hearing, denied the motion.
On August 13, 2014, the originally identified defendants to this action, Lois Eva Sampey Chambers Burgo and Diamond Nicole Burgo, filed an answer to the petition for petitory action denying and denying for lack of sufficient information to justify a belief therein all of the allegations of the petition for petitory action. On that same date, a peremptory exception raising the objection of no cause of action was filed by Diamond Nicole Burgo, alleging that Mr. Burgo's petition for petitory action failed to state a cause of action against her. In her memorandum in support of the exception, Diamond Nicole Burgo stated that "she is not an heir or legatee of the Succession of James Burgo nor a transferee or [recipient] of any property belonging to the succession of James S. Burgo, Docket No. 19370." A hearing on the exception was held on October 14, 2014, following which the trial court sustained the exception and dismissed the claims against Diamond Nicole Burgo with prejudice. It is from this judgment that Mr. Burgo now appeals.
DISCUSSION
Initially, it should be pointed out that Mr. Burgo has a separate appeal pending before another panel of this court under docket number 2015 CA 0485, under the caption "Succession of James S. Burgo." Although that appeal is from an entirely separate proceeding and judgment, it is indicated on Mr. Burgo's appellate brief in this matter that the brief pertains to both appeals, as the docket numbers of both appeals are listed on the cover page of his brief. Moreover, from what we can glean, the arguments in the brief appear to only relate to the proceedings in the record for 2015 CA 0485, and not the instant matter. We can discern no viable arguments relative to the judgment appealed.
Nevertheless, considering Mr. Burgo's pro se status and that review of a trial court's ruling sustaining an exception raising the objection of no cause of action is de novo, we will nonetheless review the pleadings in light of the applicable substantive law to see if Mr. Burgo's petition can be construed as establishing a cause of action against Diamond Nicole Burgo. See Greenland v. Greenland, 08-2568, p. 6 (La. App. 1st Cir. 12/9/09), 29 So. 3d 647, 651-52, writ denied, 10-0004 (La. 3/5/10), 28 So. 3d 1011.
In light of Mr. Burgo's pro se status, this court will consider the merits of his appeal, despite the improper form of his appellate brief. Putman v. Quality Distribution, Inc., 11-0306, p. 3 (La. App. 1st Cir. 9/30/11), 77 So. 3d 318, 320.
The purpose of the peremptory exception raising the objection of no cause of action is to test the legal sufficiency of a pleading to determine whether the law affords a remedy on the facts alleged in the pleading. Ourso v. Wal-Mart Stores, Inc., 08-0780, pp. 3-4 (La. App. 1st Cir. 11/14/08), 998 So. 2d 295, 298, writ denied, 08-2885 (La. 2/6/09), 999 So. 2d 785. 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 in the pleading must be accepted as true. Ourso, 08-0780 at p. 4, 998 So. 2d at 298. In ruling on a peremptory exception raising the objection of no cause of action, the court must determine whether the law affords any relief to the claimant if the factual allegations in the pleading were proven at trial. An exception raising the objection of no cause of action should be sustained only when it appears beyond doubt that the party can prove no set of facts in support of any claim that would entitle him to relief. Dural v. Louisiana State Board of Cosmetology, 08-0929, p. 3 (La. App. 1st Cir. 12/23/08), 4 So. 3d 874, 877.
The petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiff's ownership. La. C.C.P. art. 3651. In this case, the petition for petitory action contains no allegations that Diamond Nicole Burgo possesses any immovable property or claims ownership of any immovable property of which Mr. Burgo opposingly claims ownership. Most notably, other than the listing of her name in the caption of the petition, no other reference is made to Diamond Nicole Burgo nor is any reference or description given of any immovable property over which title is disputed. Hence, considering the allegations contained in both the original and amended petition filed in this matter, we find no error in the trial court's ruling sustaining the exception urging the objection of no cause of action.
Nevertheless, consistent with La. C.C.P. art. 934, prior to the dismissal of the claims against Diamond Nicole Burgo, we find that Mr. Burgo should have been given an opportunity to amend his petition in the event he is able to state a cause of action against Diamond Nicole Burgo in these proceedings. Thus, although we affirm the trial court's ruling sustaining the objection of no cause of action, to the extent the judgment dismisses Diamond Nicole Burgo from the suit, we will vacate that portion of the trial court's judgment and remand this matter to the trial court with instructions to allow Mr. Burgo an opportunity to amend his petition to remove the grounds for the objection of no cause action sustained in this matter.
CONCLUSION
Having carefully reviewed the petition and considering the applicable law, we affirm the portion of the trial court's judgment sustaining the exception raising the objection of no cause of action, but vacate that portion of the judgment dismissing Diamond Nicole Burgo from the petitory action. We further remand this matter to the trial court with instructions to allow Mr. Burgo an opportunity to amend his petition to remove the grounds for the objection of no cause of action. All costs of this appeal are cast to the appellant, Donald Christopher Burgo.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.