text:
    In re Justice of the Peace Randy THOMAS, Jr., District B, Parish of Red River, State of Louisiana.
    No. 2011-O-0572.
    Supreme Court of Louisiana.
    July 1, 2011.

      Office of Special Counsel, Henry Nathan Bellamy, Special Counsel, Michael Bewers, Assistant Special Counsel, for Applicant.
    Randy Thomas, Jr., Coushatta, LA, for Respondent.
    Nancy E. Rix, Commission Counsel.
   ON RECOMMENDATION FOR DISCIPLINE FROM THE JUDICIARY COMMISSION OF LOUISIANA

GUIDRY, Justice.

| jThis matter arises from a recommendation of the Judiciary Commission of Louisiana regarding the failure of Justice of the Peace Randy Thomas, Jr., to comply with the financial disclosure requirements of Louisiana Supreme Court Rule XXXIX (also referred to as the “reporting rule”). The Judiciary Commission (hereinafter, “Commission”) found Justice of the Peace Thomas failed to file his 2009 personal financial disclosure statement timely, specifically 116 days after the deadline for filing, thereby subjecting him to a monetary penalty. The Commission deemed Justice of the Peace Thomas to have acted willfully and knowingly in failing to comply with the financial disclosure rule. Thus, the Commission recommended that Justice of the Peace Thomas be ordered to pay a penalty of $5,800.00 and to reimburse the Commission for costs in the amount of $175.00. For the reasons set forth below, we find Justice of the Peace Thomas failed to comply with the financial disclosure rule, thereby subjecting him to a civil monetary penalty. We further find the record evidence supports the hearing officer’s determination that Justice of the Peace Thomas’s failure to comply with the reporting rule was not willful and knowing. After considering the facts, circumstances, and applicable law, Justice of the Peace Thomas is ordered to pay a penalty in the amount of $200.00.

Supreme Court Rule XXXIX, recently promulgated by this court, requires for the first time the filing of annual personal financial disclosure statements by judges and justices of the peace. See In re: Sanborn, 10-2051, p. 2 (La.11/30/10), 50 So.3d 1279. Pursuant to Section 3 of the rule, all elected justices of the peace must file a financial statement by May fifteenth of each year, using a form prescribed by the Judicial Administrator’s Office (“JAO”) for that purpose. Rule XXXIX, Sections 3(A) and (B). The rule became effective with regard to justices of the peace on January 1, 2010. We have discussed this rule and its requirements pertaining to justices of the peace in a companion case decided this date. See In re: Hoffman, 11-0417 (La.07/01/11), 66 So.3d 455. The instant case is the third of three cases decided this date involving a justice of the peace who has been charged with failing to file timely the personal financial disclosure statement required by Rule XXXIX. See In re: Hoffman, supra; In re: Flaherty, 11-0418 (La.07/01/11), 66 So.3d 461.

Justice of the Peace Thomas (hereinafter, “Respondent”), who is not an attorney, was an elected justice of the peace for Red River Parish, District B, during the entire calendar year of 2009. In 2009 and 2010, the JAO made a presentation at the Attorney General’s training conference for justices of the peace regarding the May 15, 2010 deadline for filing the personal financial disclosure statement for 2009 (herein-

12FACTS and PROCEDURAL HISTORY after referred to as the “2009 statement”). It is unclear from the record whether Respondent was in attendance at either of these sessions, but it is noted that all justices of the peace are required to attend the conference every other year. Respondent did not file his 2009 statement by May 15, 2010. A JAO staff attorney, telephoned Respondent on June 3, 2010, to inquire about his non-compliance, and in response, he indicated that he “was mailing his form.” Nevertheless, nothing was | .¡received from Respondent. Accordingly, on June 16, 2010, the JAO sent Respondent a notice of delinquency by certified mail. Respondent’s wife accepted the certified mail on June 18, 2010. The notice of delinquency advised Respondent that the 2009 statement “must be filed no later than fourteen (14) business days after receipt of this notice of delinquency, or by July 8, 2010.” The notice of delinquency also stated that failure to file the 2009 statement by the deadline “shall result in the imposition of penalties as provided in Section 4 of Rule XXXIX.” Respondent did not submit a written response to the notice of delinquency by July 8, 2010. On July 23, 2010, the JAO referred Respondent’s matter to the Commission, based upon his failure to timely file the 2009 statement. Respondent eventually filed the 2009 statement on November 2, 2010, after the Commission filed a Formal Charge against him.

This matter was set for a hearing before a hearing officer on December 7, 2010. Though he was subpoenaed to appear at the hearing, Respondent was not present when the hearing was called to order. He was, however, reached by telephone, at which time he informed the hearing officer that he was not present for two reasons: first, he said he wanted to accompany his wife to Texas because her father was ill, and second, he said he did not have transportation to New Orleans. Respondent then made an oral request to continue the hearing. The motion was denied, and the hearing proceeded without Respondent.

Following the hearing, the hearing officer filed findings of fact and conclusions of law with the Commission. In his report, the hearing officer found that Respondent did not timely file his 2009 statement and that his conduct was “extremely negligent.” The hearing officer found that the evidence showed that Respondent was given ample opportunity to file his 2009 statement after the due date without incurring penalties. Instead, the hearing officer found, he delayed filing the statement until long after the ^deadline, even though he told a JAO staff attorney in a June 3, 2010 telephone conversation that he was mailing the form to her. Nevertheless, the hearing officer concluded there was no evidence presented to show that Respondent acted in bad faith or purposefully chose not to file his 2009 statement:

Although the lack of bad faith or a dishonest motive does not excuse JP Thomas’s actions, and although it was JP Thomas’s responsibility to file timely disclosures that are required by law and to respond promptly to communications from the JA’s Office and the [Office of Special Counsel], his failure to file the 2009 Statement promptly was not ‘willful and knowing’ as that phrase was interpreted by the Louisiana Supreme Court in [In re: Sanborn ].

Following the filing of the report containing the hearing officer’s findings, the Commission invited, but did not order or require, Respondent to appear before the Commissioners on January 18, 2011, to make a statement in response to the hearing officer’s report. Though the Commission’s counsel contacted Respondent, who indicated during a telephone call that he would review his schedule, he did not attend the January Commission meeting and he did not file a brief.

On March 21, 2011, the Commission filed its recommendation in this court. In its report, the Commission adopted all of the hearing officer’s proposed conclusions of fact and law except the finding that Respondent’s failure to file the 2009 statement was not willful and knowing, but rather extremely negligent. The Commission found Respondent acted knowingly with regard to his failure to file his 2009 statement until after he was served with the Formal Charge, reasoning that it is willful conduct for a judicial officer to know he is required by the highest court in the state to make financial disclosures and to simply not do so until faced with a formal charge. The Commission also pointed out that the record contains proof that Respondent received notices about the necessity of compliance, and the JAO staff |fiattorney testified at the hearing to her telephone conversation with Respondent in June and his agreement to make a filing at that time, which he did not do. The Commission stated:

... The facts of this judicial officer’s conduct show the level of his misconduct was deliberate and obstinate. He knew what he was supposed to do. He refused to comply on multiple occasions. And he refused to give any explanation whatsoever for his failure to comply much less express any remorse or apologize for his failure to act. His conduct was clearly willful.

Based upon these findings, the Commission determined the burden of proof was satisfied. The Commission calculated the delay to be 116 days from July 9, 2010 (the first date of delinquency as set forth in the delinquency notice) until November 2, 2010 (the date he filed his 2009 statement). Accordingly, the Commission recommended Respondent be ordered to pay $5,800.00 in penalties using the fifty dollar per day penalty provided in former Rule XXXIX, Section 4(F)(7), which has since been amended. The Commission further recommended Respondent be ordered to reimburse the Commission $175.00 in costs.

DISCUSSION

After our review, we find the record establishes by clear and convincing evidence that Respondent did not timely file his financial disclosure statement. See Sanborn, p. 4, 50 So.3d at 1281. Accordingly, the imposition of a civil sanction is appropriate.

Having found Respondent in violation of Rule XXXIX, we next decide | fiwhether his violation was “willful and knowing” under Rule XXXIX, Section 4(F)(8). Although Respondent’s conduct was “extremely negligent,” and no excuses or explanations have been offered by Respondent, we find the record evidence supports the hearing officer’s conclusion that Respondent did not willfully and knowingly violate Rule XXXIX. There is no evidence Respondent acted in bad faith or purposely chose not to file his disclosure statement to obtain some personal or professional gain. See Hoffman, supra; Flaherty, supra; Sanborn, 50 So.3d at 1282-83. This is a case of “extreme neglect,” but not willful and knowing disobedience of the financial disclosure rule. Although Respondent’s case is the least sympathetic of the three cases decided today, we nevertheless acknowledge that some leniency is appropriate, given that the financial disclosure rule became effective as to justices of the peace only in 2010 and given the possibility that justices of the peace, who are not necessarily attorneys, may have confused the financial disclosure rule with other financial reporting requirements. See Flaherty, 11-0418, 66 So.3d 461, supra. We reiterate emphatically, however, that in the future such leniency or benefit of the doubt will not be extended now that the financial disclosure rule has been in effect for more than one year. See Hoffman, supra. As we explained in Sanborn, judges, as well as justices of the peace, are held to a high standard, and they are “often called upon to enforce deadlines on litigants before [their courts], and must likewise show respect for the deadlines this Court has imposed on all judges [and all justices of the peace] of this State, without exception.” Sanborn, pp. 6-7, 50 So.3d at 1283.

We next decide an appropriate penalty for Respondent’s failure to file his financial disclosure statement timely under Rule XXXIX, Section 4(F)(7)(b), as recently reenacted by this court. We find that a civil penalty of $200.00 is appropriate under the facts and circumstances of this case.

| CONCLUSION

We find the record establishes that Justice of the Peace Thomas failed to comply with the financial disclosure requirement of Rule XXXIX, thereby subjecting him to a civil monetary penalty. We further find that his failure to comply with the financial disclosure rule did not rise to the level of a willful and knowing violation. Accordingly, Justice of the Peace Thomas is ordered to pay a civil penalty to the State of Louisiana, Judicial Branch, in the amount of $200.00, no later than thirty days from the finality of this judgment.

      . Sections 4(F)(7)(a) and (b) of Rule XXXIX were recently repealed and reenacted to provide for penalties of up to one hundred dollars per day for judges and up to fifty dollars per day for justices of the peace. This rule change became effective on May 18, 2011, and is applicable to all cases pending on its effective date and will remain in full force and effect thereafter until amended or changed through future orders of this court.

      . Rule XXXIX does not address the imposition of costs incurred by the Commission. In San-born, supra, the court declined to award costs. We similarly decline to impose costs in this case.


source: Caselaw Access Project

author: WEIMER, Justice.

license: Public Domain

text:
    Regina Marie WHITLEY, individually and on behalf of Chance Whitley (D) v. STATE of Louisiana, through the BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AGRICULTURAL MECHANICAL COLLEGE, on behalf of the Medical Center of Louisiana at New Orleans-University Campus.
    No. 2011-CC-0040.

    Supreme Court of Louisiana.
    July 1, 2011.

      James D. Caldwell, Attorney General, Rebecca M. Urrutia, Assistant Attorney General, for Applicant.
    Orrill, Cordell & Beary, LLC, R. Ray Orrill, Jr., William Christopher Beary, Leslie A. Cordell, New Orleans, LA, for Respondent.

      . This case was consolidated for oral argument with Burnett v. James Construction Group, the Parish of St. Tammany, and the State of Louisiana, Department of Transportation and Development, which is on supervisory writs to the Twenty-second Judicial District Court, Parish of St. Tammany, and is decided in a separate opinion. Burnett, (La.7/1/11), 56 So.3d 991.

   WEIMER, Justice.

| ,The issue to be resolved is whether it is sufficient to serve with citation only the head of a state agency or whether it is necessary to also serve the attorney general and the office of risk management in a tort action against a state agency. Specifically, this matter is before the court for a determination of whether the plaintiffs request for service and citation within 90 days from the commencement of this tort suit on only the head of the state agency satisfied the requirements of LSA-R.S. 13:5107 and LSA-R.S. 39:1538. For the reasons that follow, we find that the initial service on only the department head was sufficient and that the subsequent service on the 12attorney general and the office of risk management cured the objection posed by the state agency’s exception of insufficiency of service. Consequently, the appellate court did not err in affirming the trial court’s judgment, which overruled the state agency’s exception and denied its request for dismissal of the plaintiffs suit. Accordingly, we affirm the court of appeal’s decision.

FACTS AND PROCEDURAL HISTORY

Following an automobile accident that occurred in May 2003, Regina Whitley (Whitley), who was approximately five months pregnant, received treatment at Louisiana State University Health Sciences Center-Medical Center of Louisiana at New Orleans — University Campus (University). On July 7, 2003, Whitley delivered a stillborn infant.

The instant action for medical malpractice against University was filed by Whitley on October 26, 2007, seeking damages arising from negligence in the medical care rendered to her and her unborn child following the automobile accident. At the time of the filing, Whitley requested service of process only on “Rod West, Esq. (Chairman — [Louisiana State University] Board of Supervisors).” On April 12, 2010, about two-and-a-half years after suit was filed, the attorney general (AG) and the office of risk management (ORM) received a faxed copy of the citation and petition from Whitley’s counsel. University then filed a “Declinatory Exception of Insufficiency of Service of Process Pursuant to Article 925(A)(2), La.Code of Civil Procedure,” requesting the dismissal of Whitley’s suit pursuant to LSA-C.C.P. art. 1672(C) based on Whitley’s alleged failure to comply with the service requirements I,of LSA-R.S. 39:1538 and LSA-R.S. 13:5107. University argues that these statutory provisions require that the AG and ORM both be served in addition to the head of the department. After a hearing on July 26, 2010, the trial court overruled University’s exception of insufficiency of service of process, stating:

Service was timely requested and made on a proper agent of the State, Rod West in his capacity as Chairman of the LSU Board of Supervisors. It is the Court’s opinion that the State, through West, was sufficiently served pursuant to La. C.C.P. art. 1201, La. R.S. 13:5107 and 39:1538.

Nonetheless, service was subsequently requested by Whitley and made on the AG and ORM as reflected in Whitley’s supplementation of the court record.

University sought supervisory review of the trial court’s ruling, which was denied by the appellate court for the following reasons:

The trial court, in its reasons for judgment, found that service was timely requested and made on a proper agent of the state, Rod West in his capacity as Chairman of the LSU Board of Supervisors. We agree. Athough La. R.S. 13:5107 provides general requirements for service on the state, “R.S. 13:5107 does not prohibit service as provided in [La.] C.C.P. art. 1265.” Thorning v. State, Dep’t. of Transp, and Dev., 06-57, 1 (La.App. 5 Cir. 6/28/06), 934 So.2d 895, 901 (Daley, J., concurring). Under La. C.C. art. 1265, “[sjervice of citation or other process on any political subdivision, public corporation, or state, parochial or municipal board or commission is made at its office by personal service upon the chief executive officer thereof, or in his absence upon any employee thereof of suitable age or discretion.” By serving Mr. West, in his capacity as Chairman of the LSU Board of Supervisors, the plaintiff timely requested and made service on a proper agent of the state. The trial court thus did not err in denying the Relator’s exception of insufficient service of process. Accordingly, the Relator’s application for supervisory writ is denied. [Footnote omitted.]

Whitley v. State, Board of Supervisors of Louisiana State University Agricultural Mechanical College, on behalf of the Medical Center of Louisiana at New Orleans-University Campus, 10-1198 (La.App. 4 Cir. 12/7/10) (unpublished writ action). Judge Jones dissented for the following reasons:

I have reviewed the writ application of the State of Louisiana in the above-captioned and numbered matter, and pursuant to La. R.S. 39:1538(4), at a minimum, the respondent, Ms. Regina Marie Whitley, was required to effect service upon the Attorney General, the Office of Risk Management, and Mr. Rod West in his capacity as the head of LSU’s Board of Supervisors. Although the majority has relied upon the general articles for service of process upon the state to support the position that service upon Mr. West was effective service as to all, Louisiana case law is silent on this issue.
Furthermore, while the respondent attempted to supplement the writ application on November 12, 2010, with documentation indicating that service was made on both the Attorney General and the Office of Risk Management on September 23, 2010, service was clearly untimely. Ms. Whitley filed suit on October 24, 2007, more than three years ago, but she failed to request service on the Attorney General and the Office of Risk Management within ninety (90) days pursuant to La. R.S. 13:5107(D)(1) and (D)(2). Therefore, service was insufficient in this case and I would grant the writ application of the relator. For these reasons, I respectfully dissent.

Id. (Jones, J., dissenting).

In its writ application to this court, University argued that the trial court erred in overruling its exception of insufficiency of service since Whitley was required to request and provide service of process on the head of University and the AG under LSA-R.S. 13:5107 and LSA-R.S. 39:1538, as well as ORM under LSA-R.S. 39:1538. We granted University’s application for a supervisory writ to determine whether request for service on University alone was sufficient or whether service on the AG and ORM was also required. See Whitley v. State, Board of Supervisors of Louisiana State University Agricultural Mechanical College, on behalf of the Medical Center of Louisiana at New Orleans-University Campus, 11-0040 (La.3/4/11), 58 So.3d 463.

DISCUSSION

Two statutes must be considered in determining the sufficiency of service on University: LSA-R.S. 13:5107 and LSA-R.S. 39:1538. University urges that these | Sstatutes require a request for multiple service within the specified time to avoid an involuntary dismissal pursuant to LSA-C.C.P. art. 1672(C). On the other hand, Whitley contends that a request for service on one of the entities/persons enumerated in LSA-R.S. 18:5107(A) is sufficient to preclude the dismissal of her action. Despite the fact that the substance of LSA-R.S. 13:5107(A) was enacted in 1966, this matter has only recently been contested by state agencies in an effort to obtain the dismissal of suits against the agencies and has not been directly addressed by this court. However, the appellate courts and some panels of the same appellate courts that have considered this issue in unpublished writ actions have reached conflicting decisions. See Butler v. Louisiana Technical College-Greater Capital Area Foundation, Inc., 10-1880 (La.App. 1 Cir. 11/17/10), writ denied, 10-2783 (La.2/11/11), 56 So.3d 1002 (unpublished writ action that denied the state agency’s application for a supervisory writ from the trial court’s denial of the agency’s motion for dismissal where a timely request for service had been made as to the AG and the agency’s head, who was not the agency’s designated agent for service of process); Burnett v. James Construction Group, 10-1275 (La.App. 1 Cir. 10/27/10), writ granted, 10-2608 (La.2/11/11), 56 So.3d 991 (unpublished writ action holding that service on only the AG was insufficient since LSA-R.S. 13:5107 clearly mandates that service of citation on a state agency must be made upon the attorney general and on the “agency head” for the department against which the action is filed); Edwards v. State of Louisiana, 10-1332 (La.App. 4 Cir. 10/27/10) (unpublished writ action finding that service on only the department head was insufficient under LSA-R.S. 13:5107 and LSA-R.S. 39:1538); Williams v. Zar, 10-888 (La.App. 5 Cir. 10/15/10) (unpublished writ action holding that service on only the head of the state agency was sufficient); Oliver v. Bayou Regions Support Services through the State of Louisiana, 10-0748 (La.App. 1 Cir. 7/19/10) (unpublished writ action that held LSA-R.S. 13:5107(A) mandates service on the agency head and the AG).

The starting point in the interpretation of any statute is the language of the statute itself. M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 (La.7/1/08), 998 So.2d 16, 27. When the wording of a section of the revised statutes is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit. LSA-R.S. 1:4. “Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language.” LSA-R.S. 1:3. “The word ‘shall’ is mandatory and the word ‘may’ is permissive.” Id.

A. LSA-R.S. 13:5107

Louisiana Revised Statute 13:5107(A) provides:

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. [Emphasis added.]

|7In support of their arguments, Whitley focuses on the legislature’s use of the word “may,” and University relies on the legislature’s use of the word “and.” The use of the word “may” followed by the use of the words “or” and “and” in numerous instances throughout the statute makes this provision convoluted and confusing.

In part, LSA-R.S. 13:5107(A) provides that when Louisiana or one of its agencies has been sued, “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.” Emphasis added. Whitley correctly observes that the word “may” is permissive. See LSA-R.S. 1:3. Furthermore, unless it is otherwise clearly indicated by the context, whenever the term “or” is used in the revised statutes, it is used in the disjunctive and does not mean “and/or.” LSA-R.S. 1:9. Based on the legislature’s use of the words “may” and “or” in this portion of Subsection A, Whitley argues she had the choice of either serving the AG or the appropriate representative of University. However, Subsection A does not end there, and that portion of Subsection A cannot be read in isolation. See City of New Orleans v. Louisiana Assessors’ Retirement and Relief Fund, 05-2548 (La.10/1/07), 986 So.2d 1, 18 (a statute cannot be interpreted by review of select portions of the statutory scheme). All the words must be read together. The meaning and intent of a law must be determined by a consideration of the law in its entirety. Id.

The remainder of LSA-R.S. 13:5107(A) provides “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.” Emphasis added. According to Whitley, the latter portions of Subsection A address the requirements for service when the named defendant is a member of the department, board, commission, or agency, and the requirements for service on the proper board, commission, department, agency, or officer suit is filed against. A review of the history of this legislation does not support Whitley’s contention.

Service and citation in suits against the state were initially addressed by the legislature in 1960 La. Acts No. 27, § 6, which provided:

Citation and process in suits against the state shall[] be served on the Attorney General, or on any employee in his office above the age of sixteen years; and in suits against other public bodies, in the manner provided by law.

This provision was amended by 1966 La. Acts No. 284, § 1, to specifically address suits against other public entities and was enacted as LSA-R.S. 13:5106, which provided:

In all suits authorized by the Louisiana Legislature to be filed against the state of Louisiana or any of its boards, commissions, departments or agencies or any of its political subdivisions, 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 a district attorney or a city attorney 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. [Emphasis added.]

IsThe AG is the state’s chief legal officer. La. Const, art. IV, § 8. Notwithstanding any other law to the contrary, and in addition to any other powers, duties, or authority granted to the AG and the Department of Justice by the constitution and laws of the state, the AG shall represent the state and all departments and agencies of state government in all litigation arising out of or involving tort or contract. LSA-R.S. 49:257(A).

A review of these statutory provisions reveals that the portion of LSA-R.S. 13:5107(A) preceding the conjunctive “and” in question pertains to citation and service on the legal counsel of the named defendant, as those respective offices will presumably have the primary responsibility for representing the named defendant. And, where the legal counsel for the named defendant is not the AG, the district attorney, or the city attorney, citation and service may be made on “any other proper officer or person, depending upon the identity of the named defendant.” Those portions of Subsection A that follow the word “and” pertain to citation and service on the named defendant.

In 1975, Part XV of Chapter 32 of Title 13 of the revised statutes containing LSA-R.S. 13:5101 to 5111 was amended and reenacted at which time former LSA-R.S. 13:5106 was only slightly revised and was renumbered to 5107. See 1975 La. Acts No. 434, § 1 (establishing the Louisiana Government Claims Act pursuant to authority vested by La. Const, art. XII, § 10). In 1983, Section 5107 was amended and divided into Subsections A and B. See 1983 La. Acts No. 586, § 1. Subsection A of Section 5107 addressed citation and service in suits against the state and its agencies, and Subsection B pertained to citation and service in suits against a political subdivision of the state. When the legislature removed political subdivisions of the state from the first portion of Subsection A, it also removed the references to the legal | ^counsel of those public entities. When considered in this context, the phrase “or any other proper officer or person, depending upon the identity of the named defendant and in accordance with the laws of this state” in the first portion of Subsection A clearly pertains to citation and service on the legal counsel of the named defendant and not to the named defendant itself, which is addressed in the latter parts of Subsection A. Accordingly, we find that Whitley’s argument to the contrary lacks merit.

As to the legislature’s use of the words “may” and “and,” Whitley urges that interpreting the language of LSA-R.S. 13:5107(A) to compel double service would require the insertion of a mandatory “shall” in place of the permissive “may” that appears in the statute. On the other hand, University urges that the permissive term “may” applies only to the list of individuals, including the AG, any employee above the age of 16 years, or any other proper officer or person, depending upon the identity of the named defendant, and that the legislature’s subsequent use of the conjunctive term “and” requires a plaintiff to additionally serve “the department, board, commission, or agency head or person.”

Key to our interpretation of this statutory provision is the fact that LSA-R.S. 13:5107(A) contains a single verb phrase, that is, “may be obtained,” which modifies all of the phrases that follow it, including those that appear after the conjunctive “and” in question. Therefore, from a grammatical standpoint, citation and service:

1. 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

2. may be obtained by citation and service 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

3. may be obtained by citation and service 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.

Providing permission to request service on the AG and the head of the agency does not impose a requirement that the plaintiffs request for service pertain to both. The fact that these phrases are joined by a conjunctive “and” does not make the phrases mandatory. If the legislature had intended to require a request for service on multiple individuals, it could have done so by use of mandatory language such as “shall” or “must.” See, e.g., Federal Rules of Civil Procedure Rule 4(i)(l) (pertaining to the service of a summons on the United States and its agencies that utilizes the word “must” to clearly indicate that multiple service is required); see also Fla. Stat. § 768.28(7); Ga.Code Ann. § 50-21-26(a)(2); Nev.Rev.Stat. § 41.031(2) (pertaining to the service of process in a suit against the state or a state agency that utilize the word “shall” or “must” to clearly indicate that multiple service is required). To interpret LSA-R.S. 13:5107(A) to mandate a request for multiple service would require this court to replace the word “may” in the lone verb phrase in this statutory provision with the word “shall” or “must.” Notably, the inclusion of a mandatory “shall” in Subsection A by the legislature would not have otherwise impacted the disjunctive nature of the service provided for in the phrase that precedes the “and” in question.

| ^Furthermore, at the time suit was filed and judgment was rendered by the trial court in this matter, LSA-R.S. 13:5107(D) provided:

(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 that period, 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, who has not been served.
(3) When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof; however, the effect of interruption of prescription as to other persons shall continue.

When service is not requested by the plaintiff within 90 days of the commencement of the action, the action shall be dismissed, without prejudice, after contradictory motion as provided in LSA-C.C.P. art. 1672(C). LSA-R.S.13:5107(D)(2). When such a dismissal occurs, prescription is not interrupted as to the state defendants. LSA-R.S.13:5107(D)(3). Considering this harsh consequence and the policy favoring maintaining actions, we conclude that, if the legislature’s word choice makes LSA-R.S. 13:5107(A) susceptible to two possible constructions, this statute should be sconstrued in favor of maintaining Whitley’s claim. Cf. Lima v. Schmidt, 595 So.2d 624, 629 (La.1992) (holding that of two possible constructions of a prescription statute, one barring the action and one maintaining it, the statute will be read in such manner as to maintain the claim).

Furthermore, the legislature obviously understands the significance of the use of the permissive “may” as opposed to the mandatory “shall” because both “shall” and “may” are used in LSA-R.S. 13:5107. Compare LSA-R.S. 13:5107(A), which uses “may” with LSA-R.S. 13:5107(D)(1) through (3) all of which use “shall.”

Applying the rules of statutory interpretation, we conclude that Whitley’s request for service of citation on University satisfied the requirements of LSA-R.S. 13:5107(A) and (D) and, thus, afforded University an opportunity to request the legal representation to which it is entitled. Next, we must determine if University is otherwise entitled to dismissal of Whitley’s claim pursuant to LSA-C.C.P. art. 1672(C) for failure to serve the AG and ORM, as required by LSA-R.S. 89:1538(4), within 90 days of the commencement of her action.

B. LSA-R.S. 39:1538

Louisiana Revised Statute LSA-R.S. 39:1538 was added by 1980 La. Acts No. 520, § 1, which addresses the funding for the state’s liabilities for money damages arising from tort suits, and has not been amended. LSA-R.S. 39:1538 provides:

(1) Claims against the state or any of its agencies to recover damages in tort for money damages against the state or its agencies for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency while acting within the scope of his office or employment under circumstances in which the state or such agency, if a private person, would be liable to the claimant in accordance with the general laws of this state, may be prosecuted in accordance with the provisions specified in this Chapter. However, immunity for discretionary acts of executive, legislative, and judicial officers within the scope of their legally defined powers shall not be abridged.
| u(2) The state and its agencies shall be liable for claims in the same manner and to the same extent as a private individual under like circumstances.
(3) A judgment may be settled in accordance with R.S. 39:1535(B)(6).
(4) In actions brought pursuant to this Section, process shall be served upon the head of the department concerned, the office of risk management, and the attorney general, as well as any others required by R.S. 13:5107. However, there shall be no direct action against the Self-Insurance Fund and claimants, with or without a final judgment recognizing their claims, shall have no enforceable right to have such claims satisfied or paid from the Self-Insurance Fund.

In addition to the service of citation required by LSA-R.S. 13:5107(A), LSA-R.S. 39:1538(4) utilizes the mandatory “shall,” which clearly requires that service of process be effected on three entities/persons: the department head, the ORM, and the AG. Notably, the service requirements imposed by LSA-R.S. 39:1538(4) have not previously been directly addressed by this court.

Because Whitley initially requested service on only the department head, University urges that the lower courts erred in overruling its exception of insufficiency of process and denying its motion for dismissal. Relying on Woods v. State, Dept. of Health and Hospitals, 08-0257 (La.App. 1 Cir. 6/6/08), 992 So.2d 1050, 1056 n. 7, writ denied, 08-2426 (La.12/19/08), 996 So.2d 1133, and Thorning v. State, Dept. of Transp. and Development, 06-57 (La.App. 5 Cir. 6/28/06), 934 So.2d 895, 901 (Daley, J., concurring), writ denied, 06-1869 (La.10/27/06), 939 So.2d 1286, Whitley questions the applicability of this statutory provision to her claim because it does not involve a “procedure for collecting on a claim against the state or a state agency.”

Concerning the applicability of LSA-R.S. 39:1538(4) to Whitley’s tort action, we note the following. The phrase “actions brought pursuant to this Section” refers 11Bto “[c]laims[] against the state or any of its agencies to recover damages in tort for money damages against the state or its agencies for injury or loss of property, personal injury, or death caused by the negligent or -wrongful act or omission of any employee of the agency while acting within the scope of his office or employment ... [which] may be prosecuted in accordance with the provisions specified in [Chapter 16-A titled “Insurance” in Title 39 of the Louisiana Revised Statutes].” See LSA-R.S. 39:1538(1). Furthermore, pursuant to LSA-R.S. 39:1535, the commissioner of administration through ORM is responsible for, among other things, (1) managing all tort claims made against the state or any state agency whether or not covered by the Self-Insurance Fund, (2) assisting its counsel in the defense of claims against the state, (3) investigating claims that fall within the scope of Chapter 16-A, and (4) negotiating, compromising, and settling all claims against the state or state agencies covered by the Self-Insurance Fund, and all tort claims against the state or state agencies whether or not covered by the Self-Insurance Fund. See LSA-R.S. 39:1535(A) and (B)(4), (5), and (6). These duties and responsibilities extend to tort claims in general and are not limited to those claims that have been litigated and a money judgment has been entered against the state or a state agency. Moreover, there is no requirement in Chapter 16-A of Title 39 that a plaintiff bring a separate cause of action pursuant to LSA-39:1538 to obtain payment following settlement or judgment in a suit against a state agency. In fact, Chapter 16-A sets forth the guidelines and framework necessary for ORM to pay a plaintiff following a | ^settlement or post-trial judgment, which does not require that the plaintiff assert another cause of action or claim for collection purposes.

Considering the language of LSA-R.S. 39:1538(4) together with the other statutes in Chapter 16-A of Title 39, we conclude that LSA-R.S. 39:1538(4) applies in this tort action and that, pursuant to this statute, Whitley was, at a minimum, required to serve “the head of the department concerned, the office of risk management, and the attorney general.” Thus, Whitley’s failure to effect service on the AG and ORM would have entitled University to have its declinatory exception of insufficiency of service of process sustained by the trial court. See LSA-C.C.P. art. 925(A)(2). However, for the following reasons, University would not have been entitled to dismissal of Whitley’s action.

The service provisions of LSA-R.S. 39:1538(4) are distinguishable from those of LSA-R.S. 13:5107 and LSA-C.C.P. art. 1201 in several respects. Louisiana R.S. 39:1538(4) addresses “service” as opposed to “request for service” and concerns service of “process” as opposed to “service of citation.” Furthermore, unlike the provisions of LSA-R.S. 13:5107, LSA-R.S. 39:1538 does not mandate that service of citation be requested within 90 days of the filing of the petition or that the failure to do so warrants the dismissal of the action pursuant to LSA-C.C.P. art. 1672(C). See LSA-R.S. 13:5107(D). In 1996, the legislature amended Section 5107 to add Subsection D, providing for the request of service of citation within 90 days “of the filing of the initial pleading, which names a state, a state agency, or political subdivision or any officer or employee thereof as a party.” See 1996 La. Acts, 1st Ex.Sess., No. 63, § 1. In 1997, the legislature enacted LSA-C.C.P. arts. 1201(C) and 1672(C) to require that service of citation be requested on all named defendants within 90 days of the commencement of the action. If the plaintiff failed to request service of citation on a named defendant, an involuntary dismissal of his/her action could result. See 1997 La. Acts No. 518, which also amended and reenacted LSA-R.S. 13:5107(D) to make its language similar to that of newly enacted LSA-C.C.P. arts. 1201(C) and 1672(C).

We also note the Louisiana Code of Civil Procedure requirement for service within 90 days and the corresponding dismissal for a failure to serve within 90 days is limited to “named defendants.” See LSA-C.C.P. arts. 932(A) (which refers to “service of citation on the defendant”), 1201(C) (“Service of the citation shall be requested on all named defendants within ninety days of commencement of the action.”), and 1672(C) (“A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C)....”). The AG and the ORM are not defendants, and the department head in this matter is not a named defendant. Thus, the requirement of service and sanction of dismissal is not available.

The purpose of LSA-R.S. 39:1538 is to provide notice to the AG, the ORM, and the department head that a tort action has been brought. This statute does not provide for dismissal for the failure to effectuate service. Although there is a reference in LSA-R.S. 39:1538(4) to LSA-R.S. 13:5107, based on the clear language, this is a reference to who must be served and not a reference to when service must occur or to a sanction for failure to serve timely.

If the legislature had intended that the service required by LSA-R.S. 39:1538(4) be made within a certain time period, it could have amended LSA-R.S. 39:1538(4) in 1996 or 1997 to specifically provide so when it imposed the 90-day request for service requirement by enacting LSA-R.S. 13:5107(D) and LSA-C.C.P. arts. 1201(C) and 1672(C), respectively. In the absence of the legislature’s imposition of a requirement in LSA-R.S. 39:1538 similar to that found in LSA-R.S. 13:5107(D), we decline to judicially impose one. See Carter v. Duhe, 05-0390 (La.1/19/06), 921 So.2d 963, 970. Since the sustaining of University’s objection regarding service of citation under LSA-R.S. 39:1538(4) would not be based on the lack of a timely request, that objection was cured by Whitley’s subsequent service of citation on the AG and ORM, and University was not entitled to the dismissal of Whitley’s action pursuant to LSA-C.C.P. art. 1672(C).

CONCLUSION

Considering the legislature’s use of the permissive word “may” in LSA-R.S. 13:5107, we find that multiple requests for service by the plaintiff within the 90-day period are not mandatory. Therefore, timely request for service on one of the listed entities/persons was sufficient. Furthermore, although a plaintiff must serve multiple entities/persons under LSA-R.S. 39:1538(4), which applies to tort actions against the state and its agencies, that statutory provision does not require that the plaintiff make service (or request that service be made) within a certain time period or provide for dismissal. Therefore, an objection of insufficiency of service based on LSA-R.S. 39:1538(4) can be cured by subsequent service on those entities/persons not previously served. Accordingly, Whitley’s request for service initially on University through Mr. West and subsequent service on the AG and ORM was sufficient to satisfy the service requirements of LSA-R.S. 13:5107 and LSA-R.S. 39:1538(4).

DECREE

For the foregoing reasons, the court of appeal’s decision is affirmed. This matter is remanded to the trial court for further proceedings.

AFFIRMED AND REMANDED.

      . At the conclusion of the proceeding before the medical review panel, the panel found that nothing in the record indicated that University or its employees deviated from the applicable standard of care. The panel further found that Whitley had been properly monitored following the automobile accident and that there was "no indication that the auto accident caused the complication of pregnancy, i.e., placental abruption.”

      . See 1966 La. Acts No. 284, § 1.

      . Although Barnett v. Louisiana State University Medical Center-Shreveport, 02-2576 (La.2/7/03), 841 So.2d 725, 726, has been cited by litigants and at least two panels of one appellate court for the proposition that LSA-R.S. 13:5107(A) clearly mandates that service of citation on a state agency must be made on the AG and on the agency head for the department against which the action is filed, this court did not reach that issue in Barnett since the request for service did not provide the state agency's correct agent for service of process.

      .As previously noted, Burnett is currently pending before this court and, although consolidated for oral argument with this action, is the subject of a separate opinion.

      . We note the use of the mandatory word "shall.”

      . We note the change to the permissive word "may.”

      . In the context of venue, this court has recognized that "the permissive 'may' and the mandatory ‘shall’ have often been interchanged.” Underwood v. Lane Memorial Hosp., 97-1997 (La.7/8/98), 714 So.2d 715, 717. The logic underlying such a recognition in the context of venue was thoroughly discussed in Underwood, 714 So.2d at 717-18. See Colvin v. Louisiana Patient’s Compensation Fund Oversight Bd., 06-1104 (La. 1/17/07), 947 So.2d 15, 18-22. This concept is an exception to the general rule that "[t]he word 'shall' is mandatory and the word 'may' is permissive” and has not been juris-prudentially extended to other areas. See LSA-R.S. 1:3.

      . Subsection (D)(2) was amended by 2010 La. Acts No. 55, § 1, to provide:
      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.

      . The term "claims” as used in LSA-R.S. 39:1538 refers to only those claims, including medical malpractice, covered by the Self-Insurance Fund in accordance with Chapter 16-A titled "Insurance” in Title 39 of the Louisiana Revised Statutes governing public finance. See LSA-R.S. 39:1527(1); LSA-R.S. 39:1539.

      . See LSA-C.C.P. arts. 252, 925, and 1231 which indicate a distinction between service of process and service of citation.

      . See LSA-C.C.P. art. 932 (pertaining to the effect of sustaining a declinatory exception).


text:
    Shawn BURNETT v. JAMES CONSTRUCTION GROUP, the Parish of St. Tammany and the State of Louisiana, Department of Transportation and Development.
    No. 2010-CC-2608.

    Supreme Court of Louisiana.
    July 1, 2011.

      Edward J. Womac, Jr. & Associates, LLC, Edward Jude Womac, Jr., Matthew J. Sutton, New Orleans, LA, for Applicant.
    James D. Caldwell, Attorney General, Taylor Mills Simon, Assistant Attorney General, Walter P. Reed, District Attorney, Leo R. Hemelt, II, Assistant District Attorney, Richard Stephen Vale, Metairie, LA, for Respondent.

      . This case was consolidated for oral argument with Whitley v. State of Louisiana, through the Board of Supervisors of Louisiana State University Agricultural Mechanical College, on behalf of the Medical Center of Louisiana at New Orleans-University Campus, which is on supervisory writ to the Civil District Court, Parish of Orleans, and is decided in a separate opinion. Whitley, 11-0040 (La. 7/1/11), 66 So.3d 470.

   WEIMER, Justice.

liThe issue to be resolved is whether it is sufficient to serve only the attorney general or whether it is necessary to also serve other entities/individuals when a tort action is brought against the Department of Transportation and Development. Specifically, this matter is before the court for a determination of whether the plaintiff’s request for service and citation within 90 days from the commencement of this tort suit on only the attorney general satisfied the requirements of LSA-R.S. 13:5107 and LSA-R.S. 39:1538. For reasons that follow, we find that the service of citation on only the attorney general was sufficient for purposes of LSA-R.S. 13:5107, and the plaintiff should be allowed to effectuate service pursuant to LSA-R.S. 39:1538. Consequently, we find the trial court’s judgment that denied the state |2agency’s motion to dismiss was correct, and the court of appeal erred in dismissing the plaintiffs suit. We reverse the portion of the court of appeal’s decision that granted the state agency’s motion for involuntary dismissal pursuant to LSA-C.C.P. art. 1672(C). Although the appellate court correctly sustained the state agency’s exception of insufficiency of service of process, it erred in failing to allow the plaintiff an opportunity to cure that objection. That portion of the appellate court decision is amended to give the plaintiff an opportunity to serve those required by LSA-R.S. 39:1538(4) to be served.

DISCUSSION

On February 3, 2010, the plaintiff, Shawn Burnett, fax-filed suit against several defendants, including the State of Louisiana, through the Department of Transportation and Development (DOTD), seeking to recover damages arising from an automobile accident. In his petition, Burnett requested service on DOTD through the attorney general.

On May 13, 2010, DOTD filed a motion for involuntary dismissal and an exception of insufficiency of service of process based on the fact that Burnett had not also requested service on the secretary of DOTD, citing LSA-R.S. 13:5107(A). RBased on Burnett’s lack of service on DOTD’s secretary, DOTD argued Burnett failed to request proper service within 90 days of the filing of his suit pursuant to LSA-R.S. 13:5107(D)(1), entitling DOTD to the dismissal of Burnett’s claims under LSA-R.S. 13:5107(D)(2). Burnett opposed DOTD’s motion and exception, urging DOTD’s motion for dismissal was based on its mistaken assumption that when litigation involves state agencies LSA-R.S. 13:5107(A) requires double service, i.e., service on the agency head and the attorney general.

After a hearing, the trial court denied DOTD’s motion to dismiss and overruled its exception of insufficiency of service of process, stating that “it would be absurd that you would have to serve two people with the State of Louisiana.” DOTD’s application for supervisory writs from that judgment was granted by the appellate court, and the trial court’s judgment was reversed. In support of its reversal, the appellate court, in pertinent part, stated:

The jurisprudence is consistent that LSA-R.S. 13:5107 clearly mandates that service of citation on a state agency must be made upon the attorney 14 general and on the “agency head” for the department against whom the action is filed. Barnett v. Louisiana State University Medical Center-Shreveport, 02-2576, (La. 2/7/03), 841 So.2d 725; Thomas v. Louisiana Department of Public Safety and Corrections, 02-0897, at p. 5 (La.App. 1st Cir. 3/28/03), 848 So.2d 635, 638. Moreover, it is equally well-established that mere confusion over a party’s proper service information is not a sufficient basis for failure to abide by the service and citation mandates of the statute. Johnson v. University Medical Center of Lafayette, 07-1683 (La. 11/21/07), 968 So.2d 724; Thomas, supra; see also, Taylor v. LSU Medical Center, 38-944 (La.App. 2nd Cir. 10/14/04), 892 So.2d 581; Lockett v. Reese, 04-0328 (La.App. 4th Cir. 4/28/04), 874 So.2d 913; Johnson v. Regional Transit Authority, 00-2647 (La.App. 4th Cir. 4/18/01), 785 So.2d 1015.

Accordingly, the appellate court sustained DOTD’s exception and granted its motion to dismiss Burnett’s claims against the DOTD. Burnett v. James Construction Group, 10-1275 (La.App. 1st Cir. 10/27/10) (unpublished writ action).

We granted Burnett’s application for a supervisory writ in which Burnett contended that the appellate court misinterpreted LSA-R.S. 13:5107(A) to require a double request for service of citation in suits against the state and its agencies. Burnett v. James Construction Group, 10-2608 (La. 2/11/11), 56 So.3d 991. For the reasons this day assigned in Whitley v. State, Board of Supervisors of Louisiana State University Agricultural Mechanical College, on behalf of the Medical Center of Louisiana at New Orleans-University Campus, 11-0040 (La. 7/1/11), 66 So.3d 470, we agree with Burnett. A double request for service is not necessary. Clearly, Burnett’s request for service on the attorney general alone satisfied the service requirements of LSA-R.S. 13:5107(A).

Having rejected DOTD’s argument based on LSA-R.S. 13:5107(A) and (D), we consider DOTD’s assertion that Burnett’s failure to serve DOTD’s secretary requires dismissal based on LSA-R.S. 39:1538(4), which requires service of process Ron the head of the department, the office of risk management, and the attorney general. Since LSA-R.S. 39:1538 neither imposes a time constraint on the service required by LSA-R.S. 39:1538(4) nor provides for dismissal for the failure to effectuate service, Burnett’s failure to request service on the department head and the office of risk management within 90 days of commencement of his action does not entitle DOTD to the dismissal of his claims against it pursuant to LSA-C.C.P. art. 1672(C). Whitley, 11-0040, pp. 16-18, 66 So.3d at 480-82.

For the reasons assigned in Whitley, 11-0040, p. 18, 66 So.3d at 481-82, we find the appellate court properly sustained DOTD’s declinatory exception of insufficiency of service of process due to Burnett’s failure to effect service on DOTD’s secretary and the office of risk management. However, since the grounds for the objection, that is, incomplete service, can be cured by Burnett requesting and obtaining service of process on DOTD’s secretary and the office of risk management, the appellate court erred in failing to allow him an opportunity to do so as required by LSA-C.C.P. art. 932(A).

DECREE

Accordingly, that portion of the court of appeal’s decision that granted DOTD’s motion for involuntary dismissal is reversed. That portion of the appellate court decision sustaining DOTD’s exception of insufficiency of service of process is affirmed but amended so as to allow Burnett a reasonable period of time, to be set by 16the trial court on remand of this matter, in which to cure the defect in service. This case is remanded to the trial court for further proceedings.

REVERSED IN PART; AFFIRMED IN PART, AS AMENDED; AND REMANDED.

      . See LSA-R.S. 48:12, which provides that "[s]ervice of citation and other process directed to the department shall be made by handing the citation or other process to the secretary or to the undersecretary.”

      . LSA-R.S. 13:5107(A) provides:
      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. [Emphasis added.]

      . Prior to its 2010 amendment by La. Acts No. 55, § 1, LSA-R.S. 13:5107(D) provided, in pertinent part:
      (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 that period, 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, who has not been served.
      After its 2010 amendment, Subsection (D)(2) provided:
      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.

      . LSA-R.S. 39:1538(4) provides:
      In actions brought pursuant to this Section, process shall be served upon the head of the department concerned, the office of risk management, and the attorney general, as well as any others required by R.S. 13:5107. However, there shall be no direct action against the Self-Insurance Fund and claimants, with or without a final judgment recognizing their claims, shall have no enforceable right to have such claims satisfied or paid from the Self-Insurance Fund.

      . Whitley, 11-0040, p. 18, 66 So.3d at 481-82.


text:
    In re Krystal Denise RICHARDSON.
    No. 2011-B-1705.
    Supreme Court of Louisiana.
    July 29, 2011.
   ORDER

| T Considering the Joint Petition for Interim Suspension filed by respondent, Krystal Denise Richardson, and the Office of Disciplinary Counsel,

IT IS ORDERED that Krystal Denise Richardson, Louisiana Bar Roll number 26746, be and she hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.8, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

FOR THE COURT:

/s/ Marcus R. Clark /s/ Justice, Supreme Court of Louisiana


author: MARION F. EDWARDS, Chief Judge.

text:
    STATE of Louisiana v. Jamal WALKER.
    No. 10-KA-536.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 10, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Bulter, Jacquelyn F. Maloney, Matthew R. Clauss, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   MARION F. EDWARDS, Chief Judge.

12The defendant/appellant, Jamal Walker (“Walker”), appeals his conviction and sentence on a charge of armed robbery with a firearm in violation of La. R.S. 14:64 and R.S. 14:64.3. The charge was brought by bill of information filed on November 14, 2007. Walker pled not guilty at his arraignment and subsequently filed motions to suppress the evidence and the identification. After these motions were denied by the trial court, Walker was tried before a jury that found him guilty of armed robbery. Walker filed a motion for new trial that was denied by the trial court.

In due course, the trial court sentenced Walker to imprisonment at hard labor for twenty-five years without benefit of parole, probation, or suspension of sentence. The State filed a multiple offender bill of information alleging that Walker was a third felony offender. After a hearing on that bill of information, Walker was adjudicated a third felony offender. The trial court vacated the original sentence and resen-tenced Walker to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Walker filed a motion for appeal that was granted by the trial court.

| oFACTS

On October 20, 2007, Bianca Davis (“Ms. Davis”) went to a birthday party at 1420 Utah Beach Drive in Bridge City. That night, between 9:00 and 9:15 p.m., Ms. Davis walked outside to call her sister. As Ms. Davis was lea'hing on a car talking to her sister, she noticed a black Chrysler Sebring convertible with dark-tinted windows drive past her. Ms. Davis then noticed the brake lights come on. She hung up the phone and, as she did so, she saw a man she later identified as Walker walk toward her.

Ms. Davis asked Walker how he was doing, and Walker said, “Fine b . . ch.” Walker immediately put a black semi-automatic gun to Ms. Davis’ head and said, “I’ll be fine when you give me your purse.” Walker also demanded Ms. Davis’ cell phone. After Ms. Davis gave Walker her purse and cell phone, Walker walked back to the black Sebring and reached for the passenger side door handle to get into the car. When the car sped off, Ms. Davis screamed and ran inside the house.

Ms. Davis’ friend, Rosemary Cook, called 911 and reported the robbery because Ms. Davis was too upset to do so. Deputy Rhonda Goff of the Jefferson Parish Sheriffs Office (JPSO) came to the scene, and Ms. Davis told her what happened. After talking to Ms. Davis, Deputy Goff broadcasted a description of the car and the suspect (a black male, 5'11", medium build, with a clean-shaven head wearing blue jeans and a black-hooded shirt) over the police radio. The deputy wrote down Ms. Davis’ version of events, and Ms. Davis signed the written statement. Ms. Davis testified that she had just cashed a check and had ^approximately $500 in her purse, which included hundreds, fifties, twenties, and some smaller bills.

Meanwhile, JPSO Deputy Chad Mackie was at the scene of another armed robbery at Barataría and the Westbank Expressway when he heard the broadcast. Approximately 30 to 45 minutes later, Deputy Mackie saw a car with two black males that matched the descriptions given by Ms. Davis. Deputy Mackie got in his vehicle and started following the car, which went westbound up the ramp of the Westbank Expressway at Avenue D. The deputy turned on his lights and sirens and pulled the vehicle over to the side of the expressway just before the Lafayette Street exit. Deputy Mackie exited his car and ordered the two occupants to the rear of the car, where he handcuffed them and patted them down for his safety.

Deputy Mackie briefly searched the black Sebring and, as he did so, he observed a handgun on the passenger side floorboard. He picked up the gun, removed the bullets and the magazine and locked it inside his vehicle to ensure his safety. After other officers arrived, Deputy Mackie conducted a more thorough search of the suspects and found $475 in cash split almost evenly on the driver (Adrian Hall) and the passenger (Walker). The cash included hundreds, fifties, twenties, and some smaller bills. Ms. Davis’ purse was never recovered.

A short while after the robbery, Ms. Davis received a phone call from Deputy Goff who told her that they had possibly caught the perpetrator of the robbery. The deputy requested that Ms. Davis meet them on the upper level of the Westbank Expressway just before the Lafayette Street exit. Ms. Davis went to that location with her mother and her sister and positively identified Walker as the perpetrator and the black Sebring as the one used in the robbery. Ms. Davis was able to identify Walker as the perpetrator on the expressway, even though he was | swearing an orange-reddish shirt and not the black-hooded shirt he wore at the time of the robbery. At trial, Ms. Davis positively Walker as the perpetrator and the gun found in the black Sebring as the same gun Walker used to rob her.

After Walker was placed in custody, someone used the credit cards and checks that had been in Ms. Davis’ purse. The State and the defense stipulated that if corporate counsel or representatives from Pizza Hut or Domino’s Pizza were called, they would testify that it is their policy not to report worthless checks to the district attorney’s office or to follow-up with worthless check cases. The State and the defense also stipulated that if Betty Hila-dang, one of the heads of the worthless check unit at the district attorney’s office were called as a witness, she would testify that there had been no affidavits filed by Pizza Hut or Domino’s Pizza in connection with the worthless checks issued on Ms. Davis’ account after the robbery.

LAW AND ANALYSIS

Walker assigns two errors for our review. He asserts that the motion to suppress the identification should have been granted and that the evidence is insufficient to support the conviction.

We recognize that, when a defendant raises issues on appeal as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for that is because, when the entirety of the- evidence, including evidence that was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any issues regarding trial errors become moot. However, in this instance, the issue of identification is the main thrust of Walker’s argument regarding the sufficiency of | fithe evidence. Therefore, we will combine consideration and analysis of both assignments of error in the same discussion.

To support a conviction for armed robbery, the State must prove beyond a reasonable doubt that there was a taking of anything of value from the person of another by use of force or intimidation while armed with a dangerous weapon. A gun used in connection with and at the scene of a robbery is as a matter of law a dangerous weapon.

In the instant case, Walker does not argue that the State failed to establish any of the essential statutory elements of his conviction. Rather, Walker contends that the State failed to prove beyond a reasonable doubt his identity as the offender.

In addition to proving the statutory elements of the charged offense at trial, the State is required to prove the perpetrator’s identity. When the key issue is identification, the State must negate any reasonable probability of misidentification in order to carry its burden of proof. Positive identification by only one witness is sufficient to support a conviction.

Walker maintained throughout the prosecution that he was mistakenly identified as the robber. In the motion to suppress the evidence, Walker argued that the “show up” identification procedure was suggestive and unreliable. He further argued that Ms. Davis was mistaken in her identification of him because she insisted on seeing the suspects’ ear before identifying him as the perpetrator, and the identification was made while he was seated in handcuffs in front of the passenger side of the car. Walker argued that the presence of the black Sebring 17made the identification unduly suggestive because, in Ms. Davis’ mind, whoever was the passenger in the car was the robber.

Walker also points out that he was not wearing the same clothing at the time he was identified as the perpetrator wore at the time of the robbery. He notes that neither the hooded shirt worn by the perpetrator, nor Ms. Davis’ purse, was found in the black Sebring.

A trial court’s decision to deny a motion to suppress is afforded great weight, and will not be set aside unless the preponderance of the evidence clearly favors suppression. An appellate court is not limited to the evidence adduced at the hearing on the motion; instead, it may also consider pertinent evidence given at trial, in determining whether the ruling on a defendant’s motion to suppress is correct.

A defendant challenging an identification procedure has the burden of proving the identification was suggestive and there was a substantial likelihood of misidentification as a result of the identification process. An identification procedure is suggestive if, during the procedure, the witness’s attention is unduly focused on the accused. Even if an identification procedure is suggestive, it is the likelihood of misidentification, not the mere existence of suggestiveness, which violates due process.

Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Factors to consider in assessing the reliability of an identification | sinclude: (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation.

Although “show up” or one-on-one identifications are not favored in law, circumstances may justify the use of such procedures. One such exception is when the suspect is apprehended and viewed soon after the crime. Such immediate identifications increase accuracy in identification and provide for the expeditious release of innocent suspects. One-on-one identifications similar to the one at issue herein have been held not to be suggestive.

In the instant case, we find that, applying the Manson v. Brathwaite factors, even if the identification was considered suggestive, Walker has failed to show there was a substantial likelihood of mis-identification. The evidence shows that Ms. Davis had an opportunity to observe the perpetrator at the time of the crime and that her degree of attention was excellent. Ms. Davis testified that she saw Walker walk toward her and that she saw his face and made eye contact with him. She explained that the area was “lit up” with street lights and that the weather conditions were clear. Ms. Davis testified at the suppression hearing that, when she talked to the police after the robbery, she remembered everything to the “T” about the robbery because she was aware of her surroundings. She further testified that she had good vision and that she did not wear any type of visual aid and had never been directed to wear one by a physician.

|flShortly after the robbery, Ms. Davis gave the police a physical description of the robber, his clothing, and the car used in the robbery. Ms. Davis testified at the suppression hearing that the robber was a black man, “kind of tall,” with a clean-shaven head, and he had a hood over his head but not covering his face. She explained that she was able to see his head because it was not covered all the way.

Also, Ms. Davis expressed a high level of certainty at the confrontation, and the time between the crime and the confrontation was short. Ms. Davis positively identified Walker approximately 45 minutes to one hour after the robbery, even though he was wearing an orange-reddish shirt, and not the black-hooded shirt he was wearing at the time of the robbery. She also positively identified Walker at the suppression hearing and at trial as the man who robbed her. Ms. Davis testified at tidal that she was “100 percent positive” that the man she identified at the top of the Westbank Expressway was the same man who had robbed her one hour earlier. Ms. Davis further testified at trial that “this man sitting right here” (indicating Walker) was that same man.

Additionally, Deputy Goff testified at trial that Ms. Davis “immediately” and “emphatically” identified Walker when she saw him at the top of the expressway, and that Ms. Davis never wavered in her identification and never looked at the other suspect, nor said she was not sure of her identification. Ms. Davis maintained that the police did not tell her which of the two suspects she should identify and that no one forced, threatened, or coerced her into identifying Walker.

Upon review, we find that the trial judge did not err by denying the motion to suppress the identification.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in |10the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. In cases involving circumstantial evidence, the trial court must instruct the jury that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.

At trial, the State presented evidence to show that Walker robbed Ms. Davis while armed with a gun. Ms. Davis testified that a black man exited a black Sebring convertible, held a gun to her head, and demanded her purse and cell phone. After Ms. Davis gave him those items, she saw him walk to the black Sebring and reach for the passenger side door handle. The vehicle then sped away. She gave a description of the perpetrator and the car to the police. A deputy subsequently called Ms. Davis to inform her that they might have caught the suspect. Ms. Davis proceeded to the deputy’s location, where she identified Walker as the perpetrator and the black Sebring as the car used in the robbery.

The evidence at trial showed that Ms. Davis had $500 in large bills in her purse before it was stolen, and the deputy found $475 in large bills split almost evenly between Walker and the driver. A gun was found on the passenger side floor board of the black Sebring. At trial, Ms. Davis positively identified Walker |nin court as the man who robbed her, and she identified the gun found on the floor board as the gun Walker used to commit the crime.

As previously stated, Walker only questions the identification element of the crime charges. On appeal, Walker makes the same arguments he set forth before the trial court in his motion to suppress the identification.

With respect to the “show up” identification procedure, the evidence at trial reflects that Ms. Davis went to the upper level of the Westbank Expressway after receiving a call from Deputy Goff telling her that they had possibly caught the perpetrator of the robbery. When Ms. Davis, her mother, and her sister got there (approximately 45 minutes to one hour after the robbery), Ms. Davis saw three police cars with flashing lights. The police told her to pull behind the police cars and then look through the lights to see if she could identify the man who robbed her. Ms. Davis testified that she did not get a good look at the black car at that time because she was looking through the lights.

Deputy Goff testified that Ms. Davis was very vocal about wanting to see the black Sebring before she made the identification. However, Ms. Davis testified that she did not ask the police to allow her to view the vehicle before she viewed the suspect. Nevertheless, Deputy Goff insisted that Ms. Davis not see the black Sebring until after she identified Walker in order to make it a “more fair identification.” She took every precaution to block Ms. Davis’ view of the bláck car prior to the identification.

Deputy Goff explained that Ms. Davis pulled up behind several police units that were behind the black Sebring on the shoulder of the expressway. She testified that Ms. Davis might have seen a black car, but she did not think Ms. Davis got a good look at it. Walker and the driver of the black Sebring were sitting |12on the ground in handcuffs at the time of the identification. Deputy Goff put the two suspects side-by-side to make the identification fair.

Deputy Mackie testified that, during the identification procedure, the two suspects were placed behind his marked vehicle and the black Sebring was in front of his vehicle. However, Ms. Davis testified that the two suspects were leaning against the guard rails and were adjacent to the vehicle. According to Deputy Goff, the two suspects were similar-looking black males with the same height and build, and both had bald heads. Nevertheless, Ms. Davis identified one of the men, Walker, as the man who robbed her. Deputy Goff allowed Ms. Davis to see the black car after she identified Walker, and Ms. Davis positively identified the car as the one used in the robbery. Deputy Goff testified that Ms. Davis was “100 percent sure of the car” at the crime scene and on the expressway because her friend had a silver Sebring convertible that looked just like it.

With respect to the convertible top of the black Sebring, Ms. Davis testified that it was up at the time of the robbery and down at the time of the identification. Deputy Goff explained that Ms. Davis had told her the top was up at the time of the robbery and down at the time of the identification. Ms. Davis asserted that, although she previously testified that the top was up on the expressway, she misinterpreted the lawyer’s question.

Ultimately, the State presented evidence that showed Walker robbed the victim while armed with a gun. Defense counsel cross-examined the State’s witnesses in an attempt to show that the victim was mistaken in her identification of Walker as the perpetrator. Through that cross-examination, the jury was made aware of the issues Walker has raised on appeal, including the issues regarding the victim’s credibility and the identification procedure. Nevertheless, the jury | ^obviously believed the victim’s testimony that Walker was the man who robbed her.

The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. Where there is conflicting testimony about factual matters, the resolution of which depends on a determination of credibility of the witnesses, this is a matter of the weight of the evidence, not its sufficiency. Furthermore, the credibility of witnesses will not be reweighed on appeal.

In light of the foregoing, we find that a rational trier of fact could have found that the evidence was sufficient under the Jackson standard to support Walker’s armed robbery conviction, and the State negated any reasonable probability of misidentification.

This assignment is without merit.

ERRORS PATENT

We have reviewed the record for errors patent and have found the following errors.

On August 7, 2009, Walker filed a “motion and incorporated memorandum to reconsider sentence” before he was sentenced on August 20, 2009, on the armed robbery conviction and before he was resentenced on November 9, 2009, as a multiple offender. It is unclear from the motion whether he was challenging the original or the enhanced sentences or both. The record does not reflect that the trial judge ruled upon the motion. However, because Walker’s sentence is mandated by La. R.S. 15:529.1(A)(3)(b), and no argument has been made to this | |4Court regarding the sentence, we find it unnecessary to remand this matter to the trial court for consideration of the motion.

For reasons set forth within this opinion, we affirm Walker’s conviction on the charge of armed robbery, his adjudication of a third felony offender, and his enhanced sentence.

AFFIRMED

      . The record indicates that Walker was only tried on, and convicted of, the armed robbery charge, although the State did present evidence that Walker used a firearm in the robbery.

      . Deputy Rhonda Goff testified that Ms. Davis, who was unfamiliar with guns, said that the gun Walker used was similar to the one that Deputy Goff carried, which was a semi-automatic pistol, and not a "cowboy-type gun” or revolver.

      . Ms. Davis testified that Walker had a hood over his head at the time of the robbery, but it did not cover his face.

      . Deputy Goff testified that the gun retrieved from the black Sebring was slightly larger than her gun and a different caliber. The gun retrieved from the black Sebring was a .40 caliber, and Deputy Goff’s gun was a ,9mm.

      . State v. Taylor, 04-346, p. 4 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 592.

      . La. R.S. 14:64(A); State v. Ragas, 07-3 (La.App. 5 Cir. 5/15/07), 960 So.2d 266, 271, writ denied, 07-1440 (La. 1/7/08), 973 So.2d 732, cert. denied, 555 U.S. 834, 129 S.Ct. 55, 172 L.Ed.2d 56 (2008).

      . State v. Refuge, 300 So.2d 489, 491-92 (La.1974).

      . State v. Ingram, 04-551 (La.App. 5 Cir. 10/26/04), 888 So.2d 923, 926.

      . Id.

      . State v. Williams, 02-645 (La.App. 5 Cir. 11/26/02), 833 So.2d 497, 503, writ denied, 02-3182 (La.4/25/03), 842 So.2d 398.

      . State v. Raines, 00-1941 (La.App. 5 Cir. 5/30/01), 788 So.2d 635, 639-40, writ denied, 01-1906 (La.5/10/02), 815 So.2d 833.

      . Id. at 640.

      . State v. Hurd, 05-258 (La.App. 5 Cir. 11/29/05), 917 So.2d 567, 570, writ denied, 06-1128 (La. 11/17/06), 942 So.2d 530.

      . State v. Robinson, 07-832 (La.App. 5 Cir. 4/15/08), 984 So.2d 856, 865, writ denied, 08-1086 (La. 12/19/08), 996 So.2d 1132.

      . State v. Hurd, 917 So.2d at 570.

      . Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).

      . Manson v. Brathwaite, 97 S.Ct. at 2253.

      . State v. Ayo, 08-468 (La.App. 5 Cir. 3/24/09), 7 So.3d 85, 93, writ denied, 09-1026 (La.3/5/10), 28 So.3d 1006.

      . Id.

      . See, State v. Scott, 06-134 (La.App. 5 Cir. 7/25/06), 939 So.2d 462, writ denied, 06-2133 (La.3/30/07), 953 So.2d 61.

      . Deputy Goff described the lighting conditions at the crime scene as "fair.”

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . La. R.S. 15:438.

      . State v. Washington, 03-1135 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 977.

      . State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

      . State v. White, 472 So.2d 130, 132 (La.App. 5 Cir.1985).

      . State v. Rowan, supra.

      . See, La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).