author: WILLIAMS, J. STEWART, J.,

text:
    STATE of Louisiana, Plaintiff-Appellee v. $107,156 U.S. CURRENCY SEIZED, FROM MARLIN MORTON AND RICHARD WOODS, Defendant-Appellant.
    No. 41,090-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 30, 2006.
    Rehearing Denied Aug. 17, 2006.

      Paul A. Lemke, III, for Appellant.
    Jerry L. Jones, District Attorney, Robert S. Tew, Assistant District Attorney, for Appellee.

      Before WILLIAMS, STEWART and PEATROSS, JJ.
   WILLIAMS, J.

_JjThe claimant, Richard Woods, appeals the trial court’s judgment in favor of the state, ordering the forfeiture of $107,156 under the Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989 (“Forfeiture Act”). For the reasons that follow, we affirm the trial court’s denial of the motion to dismiss the forfeiture action; however, we reverse the trial court’s judgment ordering forfeiture of the currency.

FACTS

On March 3, 2004, Richard Woods was a guest passenger in a 1999 Ford Crown Victoria operated by Marlin Morton. During a routine patrol of Interstate 20 in Ouachita Parish, Louisiana State Trooper Jason Jordan noticed the vehicle and observed that its temporary license plate was handwritten and illegible. Trooper Jordan stopped the vehicle for the traffic violation.

According to Trooper Jordan’s testimony, Morton and Woods appeared nervous and avoided eye contact. The trooper requested their names and identification and returned to his patrol unit to request another unit to assist him and to perform criminal background checks. The background checks revealed that both men had prior felony convictions.

After issuing a warning citation for the traffic violation, Trooper Jordan asked whether illegal items or contraband were present in the vehicle and requested permission to search the vehicle. Woods and Morton refused to consent to a search, so Trooper Jordan requested a K-9 unit to conduct a dog sniff of the vehicle. Upon its arrival at the scene, the K-9 unit gave positive alerts on the driver-side front door and the back passenger-side | ?door. Woods and Morton were then asked whether “anything of value” was present in the vehicle. Woods informed the officers that his computer equipment was in the vehicle. The vehicle was then searched, and the officers observed a black duffel bag on the back passenger side floorboard. A search of the bag revealed four plastic “Ziploe” bags containing a large sum of cash. According to the officers, $104,456 was found in the duffel bag, and an additional $2,700 was on Woods’ person. No controlled dangerous substances were discovered.

Woods and Morton were asked to accompany the officers to Troop F headquarters to determine the origin of the currency. Once they arrived at the headquarters, Morton informed the officers that he was unaware of the presence of the currency in the vehicle and signed a disclaimer to that effect. Woods took full responsibility for the currency, explaining that he had the money to pay for the production of four music compact discs (“CDs”). He informed the officers that he and Morton were in route to Dallas, Texas to meet with the music producer who would be producing the CDs. Woods also stated that he produced music under his company, RSG Entertainment, LLC, and the currency found in the vehicle was from the cash sales of music CDs he had produced through his company.

On June 1, 2004, the state of Louisiana filed a petition for in rem forfeiture of $107,156 of U.S. currency, pursuant to the Forfeiture Act, LSA-R.S. 40:2601, et seq. On June 4, 2004, Woods accepted service of ^process by the long-arm statute through his attorney. He later filed an answer, asserting that he is the exclusive owner of the currency and that the currency was acquired through his legitimate business. Woods later filed a motion to set the forfeiture action for trial on the merits, which was dismissed. On August 13, 2004, he filed a motion to set the matter for trial, and the motion was denied. Instead, the matter was set for a status conference on November 17, 2004.

On September 15, 2004, Woods filed a motion to dismiss the action for failure to prosecute within the 60-day delay provided by LSA-R.S. 40:2612(G). In the alternative, Woods requested an evidentiary hearing to enable him to assert his due process rights. The trial court denied both the motion to dismiss and the request for an evidentiary hearing. Woods filed an application for supervisory writs, which this Court granted and remanded the matter for an evidentiary hearing. State of Louisiana v. $107,156 U.S. Currency, 39,-502 (La.App. 2d Cir.10/28/04)(unpublished). On remand, the trial court denied the motion to dismiss the in rem action. Subsequently, Woods filed another application for supervisory writs, which this Court denied. State of Louisiana v. $107,156 U.S. Currency, 39,865 (La.App. 2d Cir.2/17/05)(unpublished).

Following a trial on the merits, the trial court concluded that the state trooper had probable cause to stop and detain Woods, and the state had produced sufficient evidence to show that the currency was properly forfeited. The trial court stated:

... I find that the state ... has proven its case that the money was properly forfeited. [A]s to the credibility, I— [that’s4 maybe for a higher court to determine. I’m satisfied that this money ... was not ... packed in cellophane paper. I’ve never seen business people do business with money wrapped in cellophane paper. They have ... usually letters of credit. They have ... certified checks, the amounts are determined in advance. [T]his is a bag with ... cellophane paper wrapped in five thousand denominations or one thousand denominations. It is just not a proper way to do business, Mr. Woods.

Thus, the trial court rendered judgment in favor of the state, forfeiting the $107,156 in currency to the state. This appeal followed.

DISCUSSION

The Stop and Detention

Woods assigns as error the trial court’s conclusion that the state trooper had probable cause to stop and detain him. According to Woods, the stop and his prolonged detention violated his rights under the Fourth Amendment of the United States Constitution, which protects individuals “against unreasonable searches and seizures.”

The authority and limits of the Fourth Amendment apply to investigative stops of vehicles. United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). The legality of a traffic stop is analyzed under the framework articulated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). State v. Sims, 40,300 (La.App. 2d Cir.10/26/05), 914 So.2d 594. For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred, or is about to occur, before stopping the vehicle. United States v. Sharpe, supra; State v. Sims, supra.

First, we find no merit in Woods’ argument that the initial stop constituted a violation of his Fourth Amendment rights. During the trial, Trooper Jordan testified that the vehicle in which Woods was a passenger initially aroused his suspicion because it had “push bumpers” and numerous antennas, similar to those on law enforcement vehicles. When Trooper Jordan proceeded behind the vehicle, he noticed a “piece of paper hanging in the rear window like some kind of tag, identification.” He stated that the numbers on the paper were handwritten and illegible from his vantage point. He also testified that he had never seen such a temporary tag in his ten years as a state trooper. Consequently, he decided to initiate a stop of the vehicle.

A traffic violation is a valid basis for an investigatory stop. State v. Waters, 2000-0356 (La.3/12/01), 780 So.2d 1053. LSA-R.S. 47:521 governs the display of a temporary license plate. It reads:

Each temporary registration license plate shall at all times be in a clearly visible place and position. It shall be fastened to the rear of the vehicle or in the rear window of the vehicle to which it has been assigned. The temporary registration license plate shall be maintained in a condition that is clearly legible and free from foreign materials.

In this case, the stop of the vehicle was based upon Trooper Jordan’s initial observation that the temporary license plate was handwritten and | ^legible. At that point, he had no knowledge that the temporary tag was from another state. Trooper Jordan testified that the tag, if issued in Louisiana, was invalid because temporary license plates issued in Louisiana are computer generated, rather than handwritten. Although a closer investigation of the temporary document revealed that it, in fact, was legible, Woods introduced no evidence that Trooper Jordan did not have reasonable suspicion that a traffic violation had occurred at the inception of the stop. The evidence in the record indicates that the trooper had reasonable suspicion that a traffic violation had occurred. Thus, we conclude that the trial court did not err in ruling that Woods’ Fourth Amendment rights were not violated by the initial stop of the vehicle.

Having concluded that the stop was valid, we must now determine whether Woods’ constitutional rights were violated by his further detention. In State v. Miller, 2000-1657 (La.10/26/01), 798 So.2d 947, the defendant was stopped for a traffic violation and was detained for approximately one hour awaiting the arrival of a K-9 unit. The Court held that the officers were justified in detaining the defendant. The court found that the officers did not have probable cause to arrest the defendant for an offense during the detention. However, her answers to the officers’ questions gave them reasonable suspicion of criminal activity, and the duration of the wait for the K-9 unit “reasonably correlated with the escalating level of suspicion as the officers pursued a means of investigation likely to confirm or dispel the trooper’s suspicions without unnecessary delay.” Id., 798 So.2d at 950.

In this case, we conclude the officers were justified in detaining |7Morton and Woods to await the arrival of the K-9 unit. Trooper Jordan testified that he approached the vehicle to obtain Morton’s driver’s license and the vehicle’s registration documents to ensure that the temporary registration tag was valid. Although probable cause to arrest the two men did not exist, their nervousness, avoidance of eye contact and indirect answers to questions aroused the officer’s suspicion of criminal activity. Trooper Jordan stated that, rather than answering questions, Woods immediately began to question why the vehicle was stopped, and his carotid artery was beating at a faster pace as the discussion progressed. Additionally, Morton initially denied having any pri- or criminal offenses, but he later admitted to having a cocaine charge. A criminal background investigation revealed that both Morton and Woods had past criminal histories, with Woods having a prior firearms conviction.

Morton and Woods’ nervousness and criminal histories, as well as their indirect answers to Trooper Jordan’s questions, gave the officer reason to believe that he should investigate further. He called for a K-9 unit, and the dog gave positive alerts on the vehicle. A canine search is not a “search” within the meaning of the Fourth Amendment. United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); State v. Gant, 93-2895 (La.5/20/94), 637 So.2d 396; State v. Paggett, 28,843 (La.App. 2d Cir.12/11/96), 684 So.2d 1072. Once the dog “alerted” on the door panels, the officers had probable cause to search the vehicle without first obtaining a warrant. See, Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Thus, we find the trial court did not err in upholding the validity of the detention of Woods and Morton, as well as the subsequent search of the vehicle.

Motion to Dismiss

Woods also assigns as error the trial court’s denial of his motion to dismiss the in rem action on the basis that the matter was not tried within 60 days of service of process as mandated by LSA-R.S. 40:2612(G), which provides, in pertinent part:

The issue shall be determined by the court alone, and the hearing on the claim shall be held within sixty days after service of the petition unless continued for good cause....

It is undisputed that the hearing on the claim was not held within 60 days after service of the petition. As noted above, Woods accepted service of the petition on June 4, 2004. Thus, the hearing on the claim should have been heard prior to August 4, 2004, “unless continued for good cause.” The matter was not brought to trial until April 18, 2005. There is no evidence in the record that either party moved for a continuance or that “good cause” existed to justify the delay.

In State v. Nourallah, 98-1651 (La.7/2/98), 721 So.2d 900, after the trial court ordered that the claimants’ property be returned based on the state’s failure to request a hearing within the 60-day time limit set forth in LSA-R.S. 40:2612(G), the court of appeal denied the state’s application for supervisory writs. The Supreme Court granted the writ application and “remanded to the court of appeal for briefing, argument and an opinion in light of United States v. $8,850 U.S. Currency, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983).”

In $8,850 U.S. Currency, supra, the Court held that the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), provides the relevant framework for determining the reasonableness of a delay in filing a forfeiture action. In Barker, the court developed the following four-pronged test to determine whether a government delay has abridged a defendant’s right to a speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) the prejudice to the defendant.

The initial factor, the length of the delay, is often referred to as the “triggering-mechanism” because absent a “presumptively prejudicial” delay, further inquiry into the Barker factors is unnecessary. See State v. Santiago, 03-0693 (La.App. 4 Cir. 7/23/03), 853 So.2d 671. Under Barker, the peculiar circumstances of the case determine the weight to be ascribed to the length of the delay and the reason for the delay. State v. Reaves, 376 So.2d 136 (La.1979).

In this case, the trial court denied Woods’ motion to dismiss on two separate occasions. Both times, the denial was reviewed by this Court via applications for supervisory writs. In the first instance, we granted the application, made it peremptory and remanded this matter for an evidentiary hearing to determine “whether good cause exists for continuation of the _j_lflaction, and whether [Woods’] due process rights ha[d] been violated by the delay.” State of Louisiana v. $107,156 U.S. Currency, supra. Following the evidentia-ry hearing and the trial court’s denial of the motion, Woods filed another application for supervisory writ. This Court denied that writ application on the showing made, stating:

Under the four-factor test of Barker v. Wingo, 407 U.S. 514[, 92 S.Ct. 2182, 33 L.Ed.2d 101] (1972), and considering applicant’s showing, we detect no abuse of discretion in the trial court’s decision to deny applicant’s motion to dismiss. Under the particular circumstances of this case, we consider the most significant factor to be whether the delay has prejudiced claimant by hampering him in presenting his case at the upcoming trial on the merits of the seizure. We further note that our denial of this writ application on the showing made does not prevent applicant from raising the issue again in the event of any unfavorable decision on the merits and that applicant has other remedies available for any economic losses, including those set forth in La.R.S. 40:2611(L).

State of Louisiana v. $107,156 U.S. Currency, supra.

With the benefit of the full record before us, we now review the trial court’s denial of the motion to dismiss in light of the factors set forth in Barker. The delay between the filing of the in rem action and the date of the hearing was approximately eleven months. This period of delay was significant, and therefore, is presumptively prejudicial under the first factor of Barker, supra,, thereby necessitating further analysis.

Concerning the second Barker prong, the state has provided no meaningful justification for the delay, merely urging that the delays were attributable solely to Woods. According to the state, Woods failed to comply with requests for discovery within a timely manner and continued depositions which had been scheduled for September 7, 2004. Thereafter, InWoods filed a motion to dismiss, followed by two applications for supervisory writs. Unlike in $8,850 U.S. Currency, supra, no criminal charges were pending against Woods which might serve to justify the delay of the civil forfeiture action. Nevertheless, the state correctly argues that trial and hearing dates are within the control of the trial court, and the prosecution has no discretion in setting dates. There is no indication that the state deliberately delayed the trial in an attempt to hamper the defense. See, State v. McDaniel, 340 So.2d 242 (La.1976).

The third element to be considered is the claimant’s assertion of the right to a hearing. In this case, it is clear that Woods attempted to assert his rights. His first motion to set the forfeiture action for trial was dismissed. On August 13, 2004, after the 60-day statutory delay had elapsed, Woods filed a motion to set this matter for trial, and the trial court denied the motion.

The final Barker element to consider is whether Woods has been prejudiced by the delay. The primary inquiry with regard to whether a claimant has been prejudiced is whether the delay has hampered the claimant in presenting a defense on the merits, through, for example, the loss of witnesses or other important evidence. $8,850 U.S. Currency, supra. Such prejudice could be a weighty factor indicating that the delay was unreasonable. Id.

To support his contention that he was prejudiced by the delay, Woods testified that he has been financially burdened by the seizure, and he has been unable to pay his personal and business expenses. However, as noted |12in our previous reasons for the denial of Woods’ applications for supervisory writs, Woods has not shown that he has been prejudiced by the delay, ie., the delay has affected his ability to defend the forfeiture on the merits.

In State v. Love, 2000-3347 (La.5/23/03), 847 So.2d 1198, the Louisiana Supreme Court considered whether an appellate court abused its discretion in overturning a trial court’s denial of a motion to quash where the defendant argued that his right to a speedy trial was violated. The court noted the relationship of the courts and stated:

Because the complementary role of trial courts and appellate courts demands that deference be given to a trial court’s discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion.

Id., 847 So.2d at 1206.

In State v. Harris, 2003-0524 (La.App. 4 Cir. 9/10/03), 857 So.2d 16, citing Love, supra, the court stated:

Thus, ... the proper approach to the question of whether the defendant’s right to a speedy trial was violated is not merely a review of the dates and circumstances of the hearings, but an examination of the entire record in order to discern whether there was “palpable abuse” on the part of the trial court in granting the motion to quash.

Id., 857 So.2d at 18.

Taking all of the Barker factors into consideration, we cannot say that there was “palpable abuse” on the part of the trial court in denying the motion to dismiss. While the delay between the filing of the in rem action and the hearing was significant, nothing in the record indicates that the bsdelay was deliberate or designed to hamper Woods’ ability to defend the forfeiture or that Woods was prejudiced by the delay. Therefore, this assignment of error is without merit.

Forfeiture

Woods also contends the trial court erred in concluding that the currency was subject to forfeiture under the Forfeiture Act. LSA-R.S. 40:2603 provides:

Any of the following conduct gives rise to forfeiture:
(1) An act or omission punishable by confinement for more than one year under R.S. 40:961 et seq., whether or not there is a prosecution or conviction related to the act or omission.
(2) An act or omission occurring outside this state, which would be subject to prosecution in the place of occurrence and would be described in Paragraph (1) of this Section if the act or omission occurred in this state, whether or not it is prosecuted in any state.
(3) Any act or omission committed in furtherance of any violation of R.S. 40:961 et seq. which is punishable by confinement with or without hard labor, including any inchoate or preparatory offense, regardless of whether there is a prosecution or conviction related to the act or omission.

Civil forfeiture is the process by which governments seize property without compensating its owner, based on its connection with the commission of crime. State v. Edwards, 2000-1246 (La.6/1/01), 787 So.2d 981. There is no prerequisite that a crime be proven before property is subject to confiscation. Id.

Under the original enactment of the Forfeiture Act, the state had the initial burden of showing the existence of probable cause for the forfeiture 114of property. In 1997, the burden of proof for forfeiture was amended by Acts 1997, No. 1334 § 1, which changed the state’s burden of proof from “probable cause” to “preponderance of the evidence.” LSA-R.S. 40:2612(G); State v. 790 Cash, 36,107 (La.App. 2d Cir.6/12/02), 821 So.2d 609; State v. One (1) 1991 Pontiac Trans Sport Van, 98-64 (La.App. 5 Cir. 7/9/98), 716 So.2d 446.

In Young Oil Co. of Louisiana, Inc. v. Durbin, 412 So.2d 620 (La.App. 2d Cir. 1982), this court discussed the distinction between the standards of proof of probable cause and preponderance of the evidence, stating, “Probable cause is not synonymous with ‘preponderance,’ being somewhere between ‘preponderance’ and ‘suspicion.’ ” Id., at 626.

After reviewing the record in its entirety, we find that the state failed to meet its burden of proving that the currency was subject to forfeiture. Although we recognize that carrying such a substantial amount of money in plastic bags in a duffel bag, and the dog’s act of positively alerting to the bag may indicate a connection with illegal drugs, the evidence in this record is insufficient to show that the currency was derived from or intended to be used in a narcotics transaction.

In an effort to show that the currency was derived from drug transactions, the state offered the testimony of Louisiana State Trooper Steve Wallace, who testified that the currency was packaged in a manner which is consistent with “drug money.” Neither the currency nor the bag in which it was contained was tested for drug residue or chemicals.

The state attempted to place the burden of proof on Woods, |-^contending that he failed to prove that the currency was earned through the sale of music CDs. However, Woods’ 2004 Income Tax Return shows a gross income of over $170,000 derived from his legitimate business, RSG Entertainment, LLC. Woods also introduced receipts for business expenditures, investment agreements and other business records. The trial court based its ruling upon the fact that it had “never seen business people do business” with money packaged as in this case.

Woods’ criminal background does not reveal any prior history of drug offenses. Although the amount of cash involved herein and the manner in which it was packaged leads to a suspicion that some illegality may have been involved, based on the evidence presented herein, we cannot say that the state proved that the currency was obtained from drug transactions. Thus, we conclude that the state failed to show, by a preponderance of the evidence, that the currency was subject to forfeiture. Accordingly, we find that the trial court was manifestly erroneous in determining that the currency was subject to forfeiture under the Forfeiture Act.

CONCLUSION

For the foregoing reasons, the judgment of the trial court denying the motion to dismiss is affirmed. However, the judgment ordering forfeiture of the currency is hereby reversed.

AFFIRMED IN PART; REVERSED IN PART.

STEWART, J., concurs with written reasons.

STEWART, J.,

concurs.

[J agree with the majority that the state failed to meet its burden of proving that the currency seized was subject to forfeiture. The evidence in the records fails to show that the currency was derived from or intended to be used in a narcotics transaction. As a result, I concur in the majority’s result, as I believe that the money was improperly forfeited.

However, I disagree with the majority’s determination that “palpable abuse” did not exist on the part of the trial court in denying the motion to dismiss. LSA-R.S. 40:2612 clearly states that “the hearing on the claim shall be held within sixty days after service of the petition unless continued for good cause.” Mr. Woods was served with the petition for the in rem forfeiture on June 4, 2004. It is undisputed that the hearing on the claim was not held within 60 days after the service of the petition. The record indicates that the matter was not brought to trial until April 18, 2005, which is a significant amount of time after the service of the petition. Additionally, there is no evidence that would indicate that either party moved for a continuance or that “good cause” existed to justify the delay. Based on these facts, I cannot agree with the majority’s opinion that the trial court correctly denied Mr. Woods’ motion to dismiss.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, PEATROSS, DREW, and MOORE, JJ.

Rehearing denied.

      . The actual amount of the currency seized remains in dispute. Woods has filed a lawsuit against Trooper Jordan, alleging that the receipt issued to him failed to include $20,000.

      . The court ordered the district attorney to be reimbursed $503.57 and awarded $1,071.56 to the Louisiana District Attorneys Association ("LDAA”), with the remaining balance to be disbursed as follows:
      Louisiana State Police O' o
      Fourth Judicial District Attorney N> o
      Fourth Judicial Criminal Court Fund N> o

      . On remand, the court of appeal instructed the trial court to conduct "an immediate evi-dentiary hearing on the forfeiture and to decide whether the delay in holding a forfeiture trial violated the claimant's state or federal rights to due process of law in light of United States v. $8,850, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983) and State v. $126,053.00 U.S. Currency, 595 So.2d 1157 (La.1992).”

      . Because of our conclusion that the property was not subject to forfeiture, we will not address Woods' argument with regard to the allocations of the forfeited money.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Kenneth Glenn AUSTIN and Patty L. Austin, Plaintiffs-Appellees, v. Claude BUNDRICK and Colony Insurance Company, Defendants-Appellants.
    No. 41,064-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 30, 2006.

      Mayer, Smith & Roberts, L.L.P. by Steven E. Soileau, Shreveport, for Appellants.
    H. Lynwood Lawrence, Jr., for Appel-lees.
    Before WILLIAMS, GASKINS and DREW, JJ.
   DREW, J.

lilt was a dark and stormy night (actually, a dark and rainy pre-dawn) on January 25, 2004, when a truck driven by Kenneth G. Austin collided with a cow owned by Claude Bundriek. Austin was traveling north when he struck Bundrick’s cow in his lane of travel on La. Highway 1 at the intersection with La. Hwy. 509. Bundriek and his insurer, Colony Insurance Company, have appealed the partial summary judgment finding Bundriek liable for the damages resulting from the accident. The partial summary judgment is reversed, and the matter is remanded for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Austin and his wife alleged in their petition:

• Austin was driving in a lawful manner north on Highway 1 in Red River Parish.
• As he approached the intersection with Highway 509, his vehicle struck a cow which stepped suddenly and without warning into the roadway.
• Bundrick, owner of the cow, had the burden of proof to exculpate himself from negligence under La. R.S. 3:2803, which designated Highway 1 a “stock law” highway.
• Bundrick was responsible for the accident by knowingly or negligently permitting his stock to be on the road where stock was prohibited and failing to take reasonable measures to enclose his livestock or prevent its escape.

In his answer, Bundrick admitted owning the cow and denied liability. He asserted that Austin was driving under suspension, was not driving lawfully, and should not have been on the public highway.

The plaintiffs filed a motion for partial summary judgment on the issue of liability based upon the assertions that the collision was ^unavoidable and occurred on a stock law highway. Therefore, the stock owner must exculpate himself from negligence.

In support of the motion for partial summary judgment, the Austins attached a portion of Austin’s deposition in which he stated:

• It was still dark and he had his headlights on bright. The weather was cloudy and rainy, and he was driving the posted speed of 55 mph, with the windshield wipers on.
• As he got to the caution light at the intersection, the cow was a foot or two in front of his vehicle, which struck the animal.
• The cow was broadside in the road with its face turned toward the southbound lane and pointed toward the driver’s side of his truck.
• Austin recalled the cow being black with a white spot. He did not see the animal move.
• The truck came to rest in the middle of the road, and Austin called a nearby friend to assist him in pulling the truck off the roadway.
• He learned the day of the accident his driver’s license had been suspended due to child support arrearages.

Austin also referred to Bundrick’s deposition in which Bundrick responded to questioning and said:

• His father went to the accident scene and identified the cow as belonging to Bundrick.
• The cow killed in the collision was in heat and being chased by two bulls.
• Including the cow and the two bulls, 30 of Bundrick’s cattle escaped from the pasture.
• “Well, sometimes bulls will start fighting right around the gate and just— they have tremendous mass and it breaks things.”
• The barbed wire was wrapped around once.
• Austin told Bundrick the weather was foggy; the highway was dark and not well lighted at the point of the collision.

lain opposing the motion for partial summary judgment, Bundrick filed an affidavit stating (verbatim):

That he was the owner of a cow that Kenneth Austin claims he struck with his vehicle on Hwy. 1 on January 5, 2004 at approximately 5:00 a.m. Further, that the evening before the accident he is certain that the gate through which the cows escaped was tied shut with barbed wire, and that the gate could not be pushed open absent significant force or from a person opening the gate. Further that he did not have any knowledge of any cows escaping onto a roadway from this gate before. Further his inspection of the gate indicates that the cows were enclosed behind fenced property the evening before the accident and escaped when the gate was pushed open during the middle of the night. He did not have any knowledge prior to the accident. Further that he believes he used all prudent measures to enclose his livestock and that the animal did not escape due to any fault or negligence on his part.

With a supplemental motion for summary judgment, the Austins filed the deposition of the investigating Louisiana state trooper, Phillip E. Krouse, who stated:

• The state police generally work all the auto crashes in Red River Parish.
• Notified of the accident at approximately 6:00 a.m., he arrived at the scene at 7:40 a.m.; dark at the time of the accident, day was breaking when he arrived.
• The day was cloudy and the road was wet; he did not recall rain.
• When asked, Austin stated at the scene he did not need medical attention. However, Krouse described Austin as “shook up” with shaking hands when Austin handed something to the trooper; nothing indicated Austin had been drinking.
• Austin’s truck was severely damaged with the grill and radiator area crushed in three to four feet and the windshield shattered.
• The truck rested 100 feet from point of impact, and the estimated distance the cow moved was 50 feet from impact; the trooper did not know someone helped Austin pull his truck off the roadway.
14* There were no skid, yaw, or gorge marks in the road; because the road was wet, there would not necessarily have been skid marks if Austin applied his brakes.
• Austin reported he was driving northbound at 55 mph when the cow stepped in front of him.
• Mr. Bundrick (defendant’s father) arrived and stated the cow was his.
• Because he was not getting a signal to his car computer and because the headquarter’s computer was down when he radioed, the trooper did not learn until he released everyone from the scene that Austin was driving under suspension.
• Neither Austin nor Bundrick received a citation. Red River Parish issues citations for loose stock, not the state police.
• The accident was unavoidable.

After hearing arguments and reviewing the filings, the trial court found that a single strand of barbed wire on the gate was insufficient legally to discharge the cow owner’s responsibility to keep the cows off the highway. The trial court granted the partial summary judgment against Bundrick on liability.

DISCUSSION

Appellate courts review summary judgments de novo, while considering the record and all reasonable inferences drawn from the record in the light most favorable to the non-movant. La. C.C.P. art. 966(C)(1) provides that summary judgment is warranted only if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. The court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but is to determine whether there is a genuine issue of material fact while resolving all doubts in favor of the non-moving party. A material fact is one which potentially insures or precludes | ¿recovery, affects a litigant’s ultimate success, or determines the outcome of a legal dispute. Reasonable people could disagree on a genuine issue. If reasonable people could reach only one conclusion, then there is no need for a trial on that issue and summary judgment is appropriate. Hines v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764.

La. Highway 1 is included in the enumerated highways in La. 3:2803, which states, “[n]o person owning livestock shall knowingly, willfully, or negligently permit his livestock to go at large upon the following public highways of this state.”

The supreme court in Hines v. Garrett, supra, noted that it is well settled that when an auto strikes a cow on one of the enumerated “stock law” highways, the burden of proof rests upon the owner of the animal to exculpate himself from even the slightest degree of negligence. To rebut the legal presumption of negligence or fault, the livestock owner must establish that he took all reasonable and prudent measures to enclose his livestock and must explain the presence of the animal on the road by showing when, where, and how the animal escaped. That is, the cattle owner must establish his “complete freedom from fault.”

In Hines, supra, the defendant cow owner moved for summary judgment. The supreme court noted that only the first sentence of La. C.C.P. art. 966(C)(2) applied; ie., “The burden of proof remains with the movant.” The remainder of that provision does not apply, since, under La. |fiR.S. 3:2803, Bundrick had the burden of proving at trial that he was not negligent in allowing his cattle to be on the highway at the time of the crash. Moreover, Bun-drick must show that (1) he took all reasonably prudent precautions to enclose his livestock, (2) how the animals escaped, and (3) he was free from fault in the slightest degree in that escape. If there is any evidence in the record from any source from which a reasonable inference in the nonmoving party’s favor (here, Bundrick) may be drawn, then the moving party cannot obtain a summary judgment. Hines, supra.

In Hines, supra, the supreme court found that summary judgment was inappropriate because credibility was at issue. The defendant moved for summary judgment and presented inconsistent and self-serving statements to overcome the statutory presumption of negligence against him. The general rule in summary judgments is that the court is not to decide credibility issues. The cattle owner’s credibility was a genuine issue of material fact better suited to a resolution at trial.

The posture of this summary judgment litigation is unusual due to the statutory presumption against the cattle owner in this “stock law highway” collision. Here, Bundrick correctly points out that both his and Austin’s credibility are at issue. Austin stated at the scene and in his petition that the cow stepped in front of his vehicle, while at his deposition he indicated he saw no movement and the cow was standing in the road. Bundrick asserted |7in his affidavit in opposition to the summary judgment that he took every prudent action necessary to secure his cattle and was in no way negligent.

Bundrick also acknowledged that he tied one strand of barbed wire around the gate, which was apparently pushed open by two bulls pursuing a cow in heat. Bundrick stated that no animals, to his knowledge, had ever escaped from that gate, which he carefully secured.

The trial court concluded Bun-driek’s action was legally insufficient to meet his obligation to keep his cows enclosed. We find that reasonable people could reach different conclusions as to whether or not Bundrick took sufficient action to fence his cattle, in light of the information that no animals had ever escaped through that gate. Bundrick stated that he took reasonably prudent precautions to enclose his cows, explained how the animals escaped, and asserted his action was not negligent. In light of his acknowledging that the mass of two fighting bulls could push over a barrier, Bun-drick may have an uphill battle at trial on the merits. However, we believe Bundrick should have his day in court.

DECREE

Concluding that the trial court erred in finding that Bundrick’s enclosure was legally insufficient to meet his duty under La. R.S. 3:2803, we reverse the partial summary judgment on the issue of liability and remand the matter for trial on the merits.

REVERSED AND REMANDED.

      . "... However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his eviden-tiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2), in part.


text:
    COLE, EVANS & PETERSON, Plaintiff-Respondent v. T.F. MANAGEMENT, INC., Defendant-Applicant Cole, Evans & Peterson, Plaintiff-Respondent v. Maurice Riemer Calhoun, Jr., et al, Defendant-Applicant Cole, Evans & Peterson, Plaintiff-Respondent v. Calhoun Partners, L.L.C., et al, Defendant-Applicant Cole, Evans & Peterson, Plaintiff-Respondent v. James C. Howell, Jr., Inc., et al, Defendant-Applicant Cole, Evans & Peterson, Plaintiff-Respondent v. B.L. of Louisiana, Inc., et al, Defendant-Applicant Cole, Evans & Peterson, Plaintiff-Respondent v. Mansfield Elderly Housing Association, Defendant-Applicant Cole, Evans & Peterson, Plaintiff-Respondent v. Calhoun Builders, Inc., et al, Defendant-Applicant.
    Nos. 40,774-CW, 40,775-CW, 40,776-CW, 40,777-CW, 40,778-CW, 40,779-CW, 40,780-CW.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 2006.

      Corkern & Crews, L.L.C., by Ronald E. Corkern, Jr., for Applicants.
    McGlinchey Stafford, PLLC, by Stephen Winthrop Rider, Lisa Dawn Munyon, New Orleans, Plummer & Means, L.L.C., by David B. Means, III, Mansfield, for Respondent.
    Before STEWART, DREW and LOLLEY, JJ.
   DREW, J.

Lin 2001, the accounting firm of Cole, Evans, and Peterson (“CEP”) filed seven suits on open accounts against two limited liability companies, two individuals, five corporations, and over 100 real estate partnerships. The defendants, which number approximately 125, owned low-income and subsidized housing units in Louisiana and Texas. It was alleged in the seven lawsuits that the defendants had failed to pay for professional services that had been provided to them by CEP. The seven lawsuits were ultimately consolidated.

In 2003, the trial court granted CEP’s motion for summary judgment against all defendants. CEP then set about to recover the amounts owed to it under this judgment. CEP filed petitions for garnishment under writ of fieri, facias against financial institutions believed to hold assets belonging to defendants. Garnishment interrogatories were also propounded to these institutions. CEP was able to seize assets to satisfy a portion of the judgment.

Meanwhile, in October of 2003, attorney Ronald Corkern filed his first pleading in the case, a motion to recall and vacate the writ of fieri facias, which the trial court ultimately denied. David Rothell, who had represented defendants in this litigation since the original petitions had been filed, was permitted by the court to withdraw as counsel of record in November of 2003.

In November of 2004, through service by mail on Corkern, CEP submitted post-judgment interrogatories and requests for production of documents to 74 defendants, most of which were partnerships. The | ^partnerships moved to quash this discovery request on the grounds that service on counsel of record was insufficient; they asserted that it was required to be made on a general partner of each partnership or a partnership employee of suitable age and discretion. While the motion was pending, Corkern filed a motion to withdraw as counsel of record in which he asserted that defendants had informed him that his services were no longer needed and that he was no longer authorized to appear on their behalf. On January 14, 2005, the trial court denied the motion to quash, but granted Corkern’s motion to withdraw.

CEP filed a motion for new trial on the granting of the motion to withdraw. CEP accused defendants of removing their counsel of record in order to make the collection of the judgment more difficult. The trial court granted CEP’s motion for new trial on February 28, 2005. Corkern reurged his motion, but the trial court denied his amended motion to withdraw on April 5, 2005, having concluded that “the interests of the administration of justice are better served” by Corkern continuing his representation.

On June 16, 2005, CEP filed a motion to compel responses to its post-judgment interrogatories and requests for productions of documents. The trial court granted the motion to compel on July 19, 2005. Certain partnerships (“Applicants”) then applied for a supervisory writ with this court to seek review of this ruling. This court granted the writ, and we now affirm the trial court.

I,¿DISCUSSION

In their brief submitted to this court after the grant of the supervisory writ, Applicants contend that: (1) granting the motion to compel was improper because service of the interrogatories and requests for production upon their counsel was not done in accordance with law, and (2) the trial court erred in not permitting Corkern to withdraw as counsel of record.

Motion to Compel

Applicants argue that service was required to be made on the individual partnerships as set forth in La. C.C.P. art. 1263. They assert that service by mail to counsel of record was insufficient. We disagree, as the method of service employed by plaintiffs is permitted under La. C.C.P. art. 2451.

The intent of art. 2451, which regulates the examination of judgment debtors, is “to assist creditors in executing their judgments by providing them a means to discover assets or property belonging to the debtor which may be subject to seizure.” Parish Nat. Bank v. Lane, 397 So.2d 1282, 1284 (La.1981). Article 2451 provides, with emphasis added:

A. In aid of execution the judgment creditor may examine the judgment debtor, his books, papers, or documents, upon any matter relating to his property, either as provided in Articles 1421 through 1515 or as provided in Articles 2452 through 2456.
B. In aid of execution of the judgment, the judgment creditor may also examine any person upon any matter relating to the judgment debtor’s property, as provided in Articles 1421 through 1474.

|4Paragraph A gives the judgment creditor the option of utilizing the articles pertaining to traditional methods of discovery (arts. 1421 through 1515) or conducting an in-court examination (arts. 2452 through 2456).

Written interrogatories and production of documents are specifically set forth as discovery methods in La. C.C.P. art. 1421. La. C.C.P. art. 1474 states, in relevant part, with our emphasis:

A. Except as otherwise provided by Article 1430, all of the objections, notices, requests, affidavits, interrogatories, and answers to interrogatories, required by any Article in this Chapter to be in writing and served on an adverse party, may be served as provided in Article 1313.
B. Interrogatories and the answers thereto, requests for production or inspection, and requests for admissions and the responses thereto authorized by Article 1421 shall be served upon other counsel or parties, but shall not be filed in the record of the proceedings, unless filing is required under the provisions of Paragraph C of this Article or unless ordered to be filed by the court....

La. C.C.P. art. 1313 provides, in part:

A. Except as otherwise provided by law, every pleading subsequent to the original petition, and every pleading which under an express provision of law may be served as provided in this Article, may be served either by the sheriff or by:
(1) Mailing a copy thereof to the counsel of record, or if there is no counsel of record, to the adverse party at his last known address, this service being complete upon mailing.
(2) Delivering a copy thereof to the counsel of record, or if there is no counsel of record, to the adverse party.

In support of their argument, applicants rely on Strange v. Imperial Pools, Inc., 506 So.2d 1205 (La.1987). There, the court addressed whether the attorney of record for two corporate defendants was properly served with a motion and order for the corporate defendants to appear in court for a | ¿judgment debtor examination. Strange can be readily distinguished as it dealt with the examination of a judgment debtor under La. C.C.P. art. 2452. As noted earlier, art. 2451(A) gives the judgment creditor the option of proceeding as provided in arts. 1421 through 1515, or as provided in arts. 2452 through 2456. CEP elected to use the former rather than the latter option. Therefore, service was proper on the applicants’ counsel of record. We find no error in the trial court granting the motion to compel.

Motion to Withdraw

We note that in their application for the supervisory writ, the applicants’ only assigned error was that the trial court erred in granting the motion to compel. Although, as part of their argument, applicants’ counsel noted that the trial court’s judgment had placed him in an ethical dilemma, applicants did not seek relief from the earlier ruling that denied the motion to withdraw. Accordingly, this court will not address that ruling.

CONCLUSION

At applicants’ costs, we AFFIRM the ruling granting the motion to compel.

      . However, we note that CEP’s primary objection to Corkern’s withdrawal rings hollow. CEP asserts that if Corkern is allowed to withdraw, it will become too burdensome with future discovery requests to track down the agents for service of process for more than 100 defendants. Yet, this challenge did not prove too insurmountable to CEP when it filed its original petitions. By our count, service of the original petition was requested to be made on approximately 86% of the defendants through Maurice Riemer Calhoun, Jr., individually, as a partner, or as a registered agent for service or process. The remaining defendants were served through three other individuals (Thomas Calhoun, Thomas Frye, and Bill Lowery), either in their individual capacity or as a registered agent for service of process.


author: DREW, J. CARAWAY, J.,

text:
    Shane M. GARRETT and Holly A. Garrett, Plaintiff-Appellee, v. Martha Johnson CROSS, Defendant-Appellant.
    No. 41,139-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 18, 2006.
    Alex J. Washington, for Appellant.
    Kitchens, Benton, Kitchens & Black by Clinton C. Black, Minden, for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   DREW, J.

hThis is an appeal from a judgment in eviction proceedings in favor of plaintiffs, Shane and Holly Garrett, and against defendant, Martha Johnson Cross. The trial court not only ordered Ms. Cross evicted, but also awarded $9,090.00 in rent arrears, plus court costs and attorney’s fees. On appeal, Ms. Cross asserts that the trial court erred by awarding a money judgment in eviction proceedings, and that the trial court erred by not determining whether Ms. Cross’ failure to pay rent was due to the Garretts’ failure to make repairs to the leased property. For the following reasons, we affirm the trial court’s judgment.

FACTS

In August 2005, the Garretts filed suit against Ms. Cross for eviction and for rent arrears. Two citations were issued, one of which was solely on the eviction rule. The citation on that rule was personally served on Ms. Cross on August 18, 2005, while the other citation was personally served on her on August 19, 2005. The former ordered Ms. Cross to appear in Minden City Court on August 29, 2005, to show cause why possession of the premises should not be delivered to the plaintiffs and why Ms. Cross should not be required to pay all court costs.

The record does not indicate that Ms. Cross filed any answer or reconventional demand to the plaintiffs’ petition. Instead, she appeared in proper person on August 29 as ordered. After she was sworn in, the trial court asked her if she understood why she was in court, and she responded in the affirmative. The trial court stated that the plaintiffs were trying to evict her from the premises, and after Ms. Cross indicated that she was still | ¡Jiving on the premises, the trial court asked her if she knew of any lawful reason why the plaintiffs could not evict her. She responded, “No, I don’t.” The trial court then asked her about the arrears, particularly whether she believed that the arrearage of $9,090.00 was incorrect. She responded, “No, I don’t.” Ms. Cross subsequently indicated that she would not like to be evicted and that she could pay “the back pay” the next day. However, counsel for the Garretts declined Ms. Cross’ offer and sought eviction. The trial court asked Ms. Cross if she was agreeable to be out of the leased premises by Friday of that week, and Ms. Cross responded that she would try. The following colloquy then took place:

JUDGE: Will you ... Ok. Well, then, I’m just going to let the record refíect that a consent judgment has been reached. I’m ordering the eviction of Mrs. Cross, ordering the judgment in the amount of Nine Thousand Ninety Dollars ($9,090.00) plus costs and I’m going to order that she be out of the premises this Friday, which is the ... I believe .... let me see .... the 2nd.
MRS. CROSS: Judge Campbell, could I just ask a question of ... ? When I had ... when Mrs. Garrett and Mr. Garrett ... at the time I didn’t know his wife. At the time they ... he took over the mortgage from ... for me ... it was ... went into his name and I was making my payment to him, but I was supposed to get the house back into my name within a years time. So I never did get it back and then I was under the impression that insurance was included in my house payment and so I explained to him that I needed ... the house was leaking and I needed a roofing on the house, plus the plumbing had ... the floors had buckled up and I ... he told me that that was for me to fix but I didn’t understand that I was supposed to fix the (inaudible). Since it was still in his name and I was under the impression that the insurance was taking care of that ... so this is one reason why that was a problem too.
JUDGE: It’s one reason, probably, why you want to move out.
MRS. CROSS: Well, I didn’t really want to move out ... I was going to go on ahead and try to get it fixed later on myself.
|sJUDGE: Well, let’s just let that judgment stand as we’ve entered it today. We’ll grant that judgment of eviction, and of the past due rent and we’ll do it Friday at 2 PM.
MRS. CROSS: Well, if I could have the past due rent....
JUDGE: No, ma’am. You’ve been evicted ... you’re going to have to move out.
MRS. CROSS: Ok.
JUDGE: Ok ... by this Friday. And you still owe the rent that you never paid. Y’all are free to go.

The trial court proceedings concluded at this point.

DISCUSSION

Arrearage Award

The first issue Ms. Cross raises on appeal is whether the trial court erred as a matter of law by awarding “a money judgment in an eviction proceeding.” She asserts that the only determination properly before the court was whether she should be evicted, and that any disposition that determined an award of money was inappropriate for a summary proceeding. We find this argument to be without merit.

The unauthorized use of summary proceedings is a dilatory exception, and all objections that may be raised through the dilatory exception are waived unless pleaded therein. La. C.C.P. art. 926. See also Boyd v. Boyd, 499 So.2d 164 (La.App. 2d Cir.1986), in which a former husband, who objected on appeal to the use of summary proceedings to accrue installments due under a judgment in a partition suit, was held to have waived his right to object by failing to file a written exception to the unauthorized use of summary proceedings.

14As previously noted, two citations were issued in the instant case. As a result, the trial court may have simply addressed both the summary proceedings (eviction) and the ordinary proceedings (arrears) at the same hearing due to Ms. Cross’ willingness to admit the plaintiffs’ rights to eviction and to arrears. In any event, Ms. Cross failed to file any exception to the unauthorized use of summary proceedings, and she thus waived any objection thereto.

Claims for Repairs

Ms. Cross argues that while she did not dispute that the eviction was valid, she explained to the trial court that “she did not agree with the Garretts’ claim that she was in arrears $9,090.00.” She asserts that there was some dispute as to the terms of their agreement. Ms. Cross also states that she explained to the court that the premises were plagued by a leaking roof, poor plumbing, and floors that were buckling, but was informed by the Gar-retts that the repairs were her responsibility. Ms. Cross further argues that in Louisiana the lessor has the obligation to maintain the leased premises in a condition fit for its intended use and to make necessary repairs, and that if the lessor fails to fulfill this obligation, the lessee may either sue for dissolution of the lease agreement and resulting damages, or make indispensable repairs and deduct the reasonable cost from the rent due. Accordingly, Ms. Cross contends that if this court determines that eviction was proper, any award of arrears must be amended to reflect the cost of repairs or diminution in value of the property because of the Garretts’ failure to make repairs “despite repeated requests by Ms. Cross.”

|sMs. Cross’ previously-quoted testimony falls short, at best, of showing that she did not agree with the amount of arrears due. To the contrary, when the trial court stated the alleged amount of $9,090.00 and asked if Ms. Cross believed that number to be incorrect, she responded in the negative. She later stated that she had not understood that she was supposed to make certain repairs and that she was under the impression that the insurance would take care of it, but these statements seem better understood as a reason why there had been a problem with her not paying the rent, not as an objection to the amount of arrears. Under the circumstances, the trial court did not err by failing to make further inquiry. Furthermore, her subsequent testimony revealed that she had made no repairs to the premises, but “was going to go on ahead and try to get it fixed later on myself.” Accordingly, while La. C.C. art. 2694 allows a lessee to either demand reimbursement for the amounts expended for repairs, or apply that amount to payment of rent when the lessor fails to timely perform his repair obligation, Ms. Cross had no claim for reimbursement because she made no repairs. Nor is this a case in which Ms. Cross ever, attempted to dissolve the lease agreement, as she undis-putedly lived on the premises without paying rent from February 2004 through August 2005. Finally, we observe that Ms. Cross never filed an answer, never set forth any affirmative defenses, and never made any reconventional demands.

In summary, this is a case in which the defendant agreed that eviction was proper and indicated that she did not find incorrect the arrears of $9,090.00. Moreover, any misunderstanding on her part concerning repair | (¡obligations notwithstanding, she made no repairs, filed no answer or reconventional demand, and never stated to the trial court at the hearing that she wished to claim any kind of offset against the amount of arrears for past due rent. Thus, we conclude that the trial court did not err in its ruling..

CONCLUSION

For the reasons set forth above, the judgment of the trial court is hereby AFFIRMED at appellant’s costs.

CARAWAY, J., concurs in part and dissents in part with written reasons.

CARAWAY, J.,

concurring in part and dissenting in part.

LThe plaintiffs’ action and the majority’s opinion recognize that there are two separate actions with two different forms of proceedings cumulated in this case. First, the eviction is a special summary proceeding. The plaintiffs set a hearing for the rule and served Cross with a form “Citation on Eviction Rule,” ordering her to show cause before the court on August 29 to prevent the eviction. Second, plaintiffs’ petition also alleged that Cross owed $9,090 in past due rent. While the petition did not pray for a money judgment but contained only a specific prayer for eviction, an action for a money judgment would be an ordinary proceeding. Despite this weakness in their petition, plaintiffs considered that this action was for ordinary relief and had the clerk issue a standard city court “Citation,” informing Cross that she had been sued and had ten days to “respond in writing” by answering the plaintiffs’ unprayed for money claim.

The majority’s opinion concedes that cu-mulating this summary proceeding with this ordinary proceeding is problematic. See, McLellan v. Pearson, 546 So.2d 817 (La.App. 5th Cir.1989). Nevertheless, if a tenant does not raise the objection of improper cumulation via a dilatory exception, and if she otherwise fails to timely answer, a judgment for eviction and a default judgment for unpaid rent might be entered following a hearing after the running of the default period. That did not happen in this case.

Cross was served with the “Citation” on August 19. Exactly ten days later, the hearing was held and the money judgment was rendered. With the appropriate calculation using La. C.C.P. art. 5059, the August 29 hearing lúdate was the last day for Cross to answer, or stated differently, at the time of the hearing, Cross’s delay for answering had not run. Overlooking that problem, the majority nevertheless chides Cross for not raising an affirmative defense by answering the plaintiffs’ money “claim.”

Due process requires service of citation which is essential in all civil, ordinary actions. La. C.C.P. art. 1201; In re Justice of Peace Landry, 01-0657 (La.6/29/01), 789 So.2d 1271. A default judgment entered in city court without the running of its special ten-day period for answering may be set aside as a nullity. Alphonso v. Cement Produce Service, Inc., 499 So.2d 305 (La.App. 1st Cir.1986), writ denied, 502 So.2d 112 (La.1987); Waters v. Keever, 442 So.2d 868 (La.App. 3d Cir.1983). Finally, there could be no waiver implicit in Cross’s attendance at the hearing on the rule for eviction. As observed by the court in Federal Nat’l Mortgage Ass’n. v. Williams, 427 So.2d 640, 641 (La.App. 5th Cir.1983), “[t]he appellant had no reason to object prior to the hearing, as he was served notice only of a rule to show cause and not of a trial on the merits. The 15-day delay for answering a petition had not elapsed on the day of the hearing.” Thus, in Federal National, Mortgage, the judgment on the merits for the plaintiffs’ claim for ordinary relief could not be rendered following a rule for summary relief for a preliminary injunction. All of these rulings allow the defendant the full time for answering before the request for ordinary relief may be granted. Carr did not receive that in this case, and the money judgment against her should be set aside.

^Accordingly, I concur in the majority’s ruling on eviction and respectfully dissent regarding the portion of the judgment for the delinquent rent.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    Jonathan M. WYATT v. HARAHAN MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD.
    No. 06-CA-81.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 25, 2006.
    Rehearing Denied Aug. 22, 2006.

      Thomas P. Anzelmo, Jacqueline Blankenship, Metairie, Louisiana, for Defendant/Appellee.
    Brandon J. Venegas, Metairie, Louisiana, for Plaintiff/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKS HOMBERG WICKER.
   EDWARD A. DUFRESNE, JR., Chief Judge.

liiThis is an appeal by Jonathan Wyatt, plaintiff-appellant, from a judgment sustaining a determination by the Harahan Municipal Fire and Police Civil Service Board that his termination by the Harahan Police Department was done in good faith and for cause. For the following reasons we affirm that judgment.

Because of our disposition of this matter we need not recite the facts in detail as they are well known to the parties. We do note the following particulars, however, because they are essential to understanding our resolution of this appeal. In early April of 2004, Wyatt rear-ended another vehicle while driving his police unit. The driver of the other vehicle, Danny Wall, eventually gave a statement to the Hara-han Police to the effect that Wyatt asked him at the scene not to report the accident because if he did Wyatt feared that he would lose his job. Wall also said that his right taillight was broken. He also said that Wyatt gave him his cell phone number. Wall’s passenger, Nicholas Cordero, corroborated this version of events |sand noted that a headlight of the police unit was broken in the accident and that there was glass in the street.

Several days later Wall tried twice to call Wyatt about the damage to his vehicle, but both times a man answered and said that Wall had a wrong number. The number that Wall got from Wyatt was indeed Wyatt’s cell phone number. At that point Wall decided to call the Harahan Police. On April 6, Wall reported the accident and the next day Detective Blackwell was assigned to open a criminal investigation into the matter. It was later determined that at the time of the accident Wall was driving with a suspended license and had no liability insurance. Wall’s suit against the department for damage to his vehicle was settled, and Cordero’s suit for personal injuries is still pending.

On Saturday, April 3, at about 8:05 PM, Wyatt had called in a report that his unit had been vandalized while he was stopped at a convenience store for a business check. Officer Adams went to the scene and found that a headlight of the unit was broken. Although his initial report indicated vandalism, he later testified that the scene was suspicious for two reasons: first, the headlight fragments were in a small pile rather than dispersed as would be expected from a blow to the light, and second, the unit was parked behind the store in a dark area rather than in the lighted front of the business as would be normal for a “business check” which is intended to show police presence.

Although officers with the Harahan department are required to report any accidents within 24 hours of their occurrence, Wyatt did not report the accident with Wall until April 6, and in that report he gave the date of the incident as April 6. He also stated there that there had been no damage to either vehicle.

After conducting his investigation, Blackwell referred the matter to the Jefferson Parish District Attorney’s office and criminal charges were brought |4against Wyatt by that office in regard to the vandalism report. Based in part on the results of the Blackwell investigation, the Harahan Police Chief decided to open a disciplinary action. He assigned this task to Officer Cazanavette on June 5, and that investigation was completed by late July and resulted in two disciplinary actions. The first involved Wyatt’s failure to report the accident promptly, and the second was based on an allegation that he had falsified the report asserting that his unit had been vandalized at the convenience store. A pre-termination hearing was set for August 5, but was continued by Wyatt until August 17.

During the above investigations, yet another matter concerning Wyatt arose. On April 16, Wyatt submitted a psychiatric report stating that because of work related stress he needed a 30 work day sick leave, and that was granted. In early May he submitted another report from his doctor indicating an additional 60 days sick leave, which was also granted. Then in late June Chief Dale learned that Wyatt was working private details in violation of regulations requiring officers on sick leave to remain at home except for necessary shopping and doctors’ visits, and to get pre-approval for all private details. The chief also noted that Wyatt was being paid by the department while on sick leave, and was being paid for the private detail as well. On the basis of this information another disciplinary proceeding was begun.

It appears that Wyatt learned of this inquiry and submitted a request that regular leave be substituted for the requested sick leave. This request was denied by Chief Dale because as he testified at the Civil Service hearing he did not intend to return an officer to duty who was on sick leave for stress on advice of his psychiatrist until that doctor released him as fit for duty.

By the time of the August 17 hearing Wyatt was thus facing three separate disciplinary proceedings: one for failure to report an accident timely, a second for | Smisusing sick leave by leaving home and working details, and a third for submitting a false police report concerning vandalism of his unit. At that hearing at the police department he was found to have acted improperly on all three allegations and was terminated. He appealed to the Civil Service Board, which sustained the actions of the Police Department on all three matters finding that the department had acted in good faith and for cause.

Wyatt appealed those determinations to the district court, but again suffered an adverse ruling. He now brings this appeal from the district court judgment and urges two assignments of error. In the first he argues that the accident did not occur until after he reported the vandalism to his unit, and that the vandalism report was in fact truthful. He asserts that the contrary findings by the department and board thus should not have been cumulated with the other two infractions so as to justify his termination. His second assignment alleges that the disciplinary investigation of the accident and vandalism report took more than 60 days as required by La. R.S. 40:2531(B)(7) and therefore the disciplinary proceeding should be set aside.

In Moore v. Ware, 2001-3341 (La.2/25/03), 839 So.2d 940, 945-946, the court set forth the law as to civil service appeals as follows:

An employee under classified service may appeal from any decision of the civil service board that is prejudicial to him. La.Rev.Stat. Ann. Sec. 33:2501(E)(1). Such an appeal shall be taken to the district court wherein the civil service board is domiciled. Id. This hearing “shall be confined to the determination of whether the decision of the board was made in good faith and for cause” and “[no] appeal shall be taken except on these grounds.” La.Rev.Stat. Ann. Sec.33:2501(E)(3).
If made in good faith and statutory cause, a decision of the civil service board cannot be disturbed on judicial review. Good faith does not occur if the appointing authority acted arbitrarily or capriciously, or as a result of prejudice or political expediency. Arbitrary or capricious means the lack of a rational basis for the action taken. The district court should accord deference to a civil service board’s factual conclusions and must not overturn them unless they are manifestly erroneous. Likewise, the | ¿intermediate appellate court and our review of a civil service board’s findings of fact are limited. Those findings are entitled to the same weight as findings of fact made by a trial court and are not to be overturned in the absence of manifest error. (Citations omitted).

The role of the appellate courts is thus circumscribed by deference to determinations made by civil service boards and we must affirm those determinations if they are reasonable on the record.

Here Wyatt was alleged to have violated police department regulations in three regards. The first relates to his failure to submit a timely report of the accident as required by regulations. He does not dispute that he did not timely file such a report. The second concerns leaving home and working details while on sick leave. Again, he does not dispute that he violated these regulations. The third involves his making a false report as to his unit being vandalized which he denies.

To understand his argument as to the vandalism report the facts of the accident need to be examined in detail. There is no question that the vandalism report was made a little after 8 PM on April 3, a Saturday. When Wall and Cordero were later interviewed by Officer Blackwell they were uncertain of the exact time or date of the accident. However it was established that Cordero worked until 10 PM at a country club on both Friday, April 2, and Saturday, April 3. Blackwell went to the club and interviewed Mr. Butler, Cordero’s boss. Butler said that he remembered clearly that he was watching a Final Four basketball game when Cordero reported to work on Saturday, April 3, and told him all about the accident. He said that Cordero particularly noted that his cousin Wall had escaped citations for driving with a suspended license and without insurance. Butler said that this conversation could not have taken place on Sunday, April 4, because there were no Final Four games that day.

17Based on this information it was clearly reasonable to find that the accident occurred sometime between 10 PM Friday, April 2, when Cordero left work, and midday on Saturday, April 3, when he reported it to Butler. Because the vandalism report was made at about 8 PM on Saturday, April 3, the alleged vandalism would necessarily have occurred after the accident. This was a factual finding made by the department and affirmed by the board, and as there is a reasonable basis for this finding, we cannot set it aside on appeal.

The next issue involves application of La. R.S. 40:2531(B)(7). That statute provides that a disciplinary investigation must be completed within 60 days. However, it also states that “nothing in this paragraph shall limit any investigation of alleged criminal activity.” Here, Officer Blackwell began an investigation into the facts surrounding Wyatt’s submission of a vandalism report on April 7. That investigation resulted in a referral to the district attorney for criminal prosecution. Clearly this was an inquiry into “criminal activity” and thus not governed by the 60 day rule. The record shows that the disciplinary action was not begun by Agent Cazanavette until June 5, and it was completed in time to schedule a hearing on August 5. There was thus no violation of the 60 day rule.

Our review of the entire record of the civil service hearing shows that the conclusions of the civil service board that the police department acted in good faith and for cause in terminating Wyatt was not arbitrary and capricious, and further that the factual findings underlying this determination were not manifestly erroneous. We therefore must affirm the judgment of the district court upholding the action of the department and the board.

For the foregoing reasons the judgment of the district court is hereby affirmed.

AFFIRMED.