author: MOORE, J.

text:
    SUCCESSION OF Leola LARD (nee Peoples), Plaintiff-Appellee, v. David POLAND d/b/a Landstar, Inc., Defendant-Appellant.
    No. 42,284-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.
    Pamela Blankenship, for Appellant David Poland d/b/a Landstar, Inc.
    John C. Blake, Jonesboro, for Appellees Zula Peoples Qualls, Succession of Leola Peoples Lard, and David Poland d/b/a Landstar, Inc.
    James E. Beal, Jonesboro, for Interve-nors George Lee Loyd (Lard) and Dennis Lamar Loyd (Lard).
    Before GASKINS, DREW and MOORE, JJ.
   MOORE, J.

| Appellant, David Poland d/b/a Lands-tar, Inc. (hereinafter, “Poland” or “Lands-tar”) appeals a judgment that ordered cancellation and erasure from the public records of a lien that he filed against the Succession of Leola Lard and recorded in the mortgage records of Bienville Parish. For the reasons stated herein, we affirm.

Facts and Procedural History

Anticipating that his mother, Blumer Peoples Poland, who was a sister of the decedent, Leola Peoples Lard, would inherit undivided ownership of a tract of land as a collateral heir in the Succession of Leola Peoples Lard, David Poland obtained a survey of the tract on May 20, 2000, for purpose of dividing the property among the heirs. Mr. Poland .contends that he paid for the survey and he alleges that the Administratrix, Zula Qualls, entered into an agreement in which Poland would “advance funds to preserve and benefit the estate with the mutual agreement that any advancements would be repaid prior to the settlement of the estate of the decedent.” However, when the Adminis-tratrix filed annual accountings for the years 1999 to 2005, she never made disbursements to the Appellant nor requested permission from the court to do so. Nor did she submit the claim in her proposed final tableau of distribution when her tenure as Administratrix ended. In fact, appellate counsel for Mr. Poland acknowledges that there is no evidence in the record that the Administratrix requested the survey or acknowledged fhe debt incurred as a result of the survey. She requests that the case be remanded for an evidentiary hearing in order to submit evidence that ,the Administratrix acknowledged the|2succession debt.

Ms. Qualls was eventually removed as Administratrix by a motion filed by Dennis Lamar Loyd, and George Lee Loyd, two grandchildren of the decedent. Dennis was appointed Administrator of the succes•sion.

In April 1, 2005, nearly five years after the survey was made, Poland filed an $18,000 lien against the property for payment of the survey dated May 20, 2000. According to the affidavit or “Claim of Lien” that Mr. Poland executed before a California notary, he attested that he served notice of the lien on the owner on April 28, 2005. The Administrator has denied ever being served with such notice.

On January 17, 2006, the new succession administrator filed a petition to sell timber from the property. Notice of the proposed sale was published on February 16, 2006 and February 23, 2006.

On March 7, 2006, Mr. Poland filed into the succession record an apparent opposition to the sale which consisted of the following documents: the affidavit or “Claim of Lien,” a plat of the survey, a notarized affidavit attesting that Landstar, Inc.' is the lienor and that David Poland is the agent or officer of Landstar, and a letter-sized sheet of paper captioned “David' Poland, 5321 San Onofre Ter., San Diego, CA 92114” and a photocopy of the legal notice by the succession administrator regarding the proposed sale |sof timber.

In response, the administrator filed a rule to show cause why the lien should not be invalidated and removed, and the opposition to the -sale of the timber dismissed. He requested that Landstar be cast in judgment for costs and attorney’fees. Pri- or to the hearing, the Administrator filed an amended rule alleging that the lien was invalid because it had not been filed within 60 days of the work performed and had prescribed under the three-year liberative prescription for suits on open account.

The matter was taken up at a hearing on July IS, 2006. The court listened to argument from Mr. Beal, attorney for the current succession representative, arid Mr. Blake, counsel for the former succession representative and who appeared now as Mr. Poland’s attorney regarding the lien. The court allowed Mr. Blake to proffer into evidence .some of Mr. Poland’s alleged expense receipts into evidence. No other testimony was adduced at the hearing. Ruling from the bench, the court found that the claims had prescribed. A signed, written judgment was issued on July 23, 2006, cancelling the lien and ordering it erased from the public records and allowing the timber sale to go forward. Lands-tar filed this appeal alleging two assignments of error:

(1) The trial court erred in characterizing the lien claim as an open account and then ruling that the claim had prescribed.
(2) The trial court erred by not recognizing an apparent conflict of interest by attorney Blake who represented the pri- or succession Administratrix, the Succession and the alleged creditor of the succession, David Poland d/b/a Lands-tar, Inc.

|4Discussion

By his first assignment of error, appellant alleges that the trial court erred in characterizing the debt for which the lien was filed as an “open account” and therefore prescribed, and that the trial court failed to conduct an evidentiary hearing on the issue of whether the claim had prescribed. Although the trial court did not give written reasons for judgment, the judge stated at the hearing on the rule that the two issues before the court were whether the lien itself was timely filed and whether the claim had prescribed as an open, account subject to the prescription of three years. The court found that the claim(s) had prescribed and said he was going to allow the sale to go forward. The signed judgment issued on July 23, 2006, ordered the lien cancelled and' erased from the mortgage records and approved the timber sale.

Appeals are taken from judgments, and not from findings on various issues in the course of the trial court’s determination of the judgment. Davis v. Borskey, 94-C-2399 (La.9/9/95), 660 So.2d 17, 103 Ed. Law Rep. 538. In this case, the judgment appealed from concerns the trial court’s ruling on the Administrator’s rule to show cause that ordered the lien to be cancelled and erased from the Bienville Parish mortgage records. The judgment in this case concerns solely the validity of the lien recorded against the immovable property in the succession.

We are at somewhat of a loss in this case to ascertain the statutory grounds for which the appellant claims a privilege against the succession. |sThe succession in this case is under administration, and the alleged debt was incurred during administration. Therefore, La. R.S. 9:5011 through 9:5016 in which; creditors of .the deceased are given a privilege on all the immovables left by the deceased are inapplicable.

Landstar essentially argues that the debt for which the lien was filed is an estate debt arising as a succession administration expense incurred for the preservation of the estate. La. C.C. art. 1415. Estate debts are charged against the property of the estate and its fruits and products. La. C.C. art. 1421. Specifically, administration expenses are charged first to the fruits and products of property and then to the property itself. Of course, these codal provisions are intended to direct the administrator as to how to pay the debts from estate property. Generally, charges such as funeral charges, law charges and claims against the succession originating after the death of the person whose succession is under administration are to be paid before the debts of the deceased and are not required to be recorded. La. C.C. art. 3276.

The other privileges on immovables that are authorized by the Civil Code are established in Civil Code articles 3249 and 3252. La. C.C. art. 3249(2 & 3) provides a special privilege on immovables to workmen such as “architects, undertakers, bricklayers, painters, master builders, contractors, subcontractors, journeymen cartmen and other workmen employed in constructing, rebuilding or repairing houses, buildings, or making other works,” and also “[tjhose who have supplied the owner or person employed by the owner or his agent ... with materials of any kind for the construction or repair of an edifice or other work.” These privileges are preserved by | ^recordation. La. C.C. art. 3272. The method and manner of preserving and recording most of these privileges are now covered under the Private Works Act. La. R.S. 9:4801 et seq.

La. C.C. art. 3252 establishes a general privilege on both movables and immov-ables for the following: (1) Funeral charges; (2) Judicial charges; (3) Expenses of last illness; (4) The wages of servants; and (5) The salaries of secretaries, clerks and other agents of that kind. The services allegedly provided by Lands-tar do not appear to fit within this category.

The matters of record in this case establish that an affidavit styled “Claim of Lien” was filed and recordéd in Bienville Parish in April of 2005. This document states that David Poland is the lienor or agent of the lienor, and that “in accordance with a contract with Landstar, Inc., he (Poland) provided labor, services, or materials consisting of’ [the] “Boundary Line Survey of 60.37 acre tract of land being situated in the SW 1/4 SE 1/4 and E ½ SE 1/4 SW 1/4, Section 22, T14N, Bienville Parish, Louisiana” on the real property. The lien document further states that the value of the services is $18,000, of which “zero” remains unpaid. Finally, the document states that the first of the items were furnished on May 20, 2000, and the last of the items on April 28, 2005.

In addition to the above-described “Claim of Lien” submitted in opposition to the Administrator’s request to sell the timber, the appellant submitted an additional notarized document to the effect that Landstar, Inc. is the lienor and he (Poland) is its agent. However, the lien affidavit asserts that he (Poland) was the lienor or agent of the lienor who provided the survey by virtue of a contract with Landstar, Inc. The survey, which is the 17sole “labor, services, or materials” described in the lien, was completed on May 20, 2000. The plat resulting from the survey that was submitted into the record indicates that Poland did not do the survey. The plat bears the name, Hulett & Associates, Professional Land Surveyors located in Louisiana, and a certification stamp indicates that the survey was performed by Walter Glen Kirkland, a certified professional Louisiana land surveyor. The plat also indicates that the survey was requested by Mr. David Poland.

Neither party called witnesses at the hearing on the rule, but the statements of counsel at oral argument indicate that the actual cost of the survey was $4000, which Poland (or Landstar) apparently has paid, and Poland (or Landstar) claims he is owed the remaining $12,000 balance because the succession was enriched as a result of the survey, which uncovered the existence of a timber trespass on the tract. Additionally, he claimed to have incurred some bills in preservation of the property, which included energy bills and water bills.

Finally, from statements made at the hearing on the rule, it appears that Mr. Poland is not alleging that he did the survey himself. There is no evidence of a contract between the succession Adminis-tratrix or Administrator and Landstar or Mr. Poland to perform work on the immovable property.

We observe initially that Landstar’s lien cannot be characterized as a surveyor’s lien under La. R.S. 37:701(H)(1), which affords a lien or privilege in favor of professional land surveyors against the immovable property associated with the professional surveying services provided when |sengaged by the owner to provide those surveying services. The surveyor’s lien must be filed within 90 days of the date of rendition of the services. La. R.S. 37:701(H)(2). Since the lien was not filed until nearly five years after the survey, any right to file a surveyor’s lien was prescribed, and inasmuch as neither Landstar nor David Poland appear to be professional land surveyors, the lien is not a surveyor’s lien to begin with.

Hence, we conclude that the lien was filed as a Private Works Act lien governed by La. R.S. 9:4801, et seq. The language of the lien document suggests that it is a lien of this nature. The document states that the lienor provided labor, services or materials on the property and describes the property and the survey. There is no recorded contract between the Administratrix and the lienor, however.

The owner of the property against which a lien is filed who seeks to have the recordation cancelled and erased by a rule to show cause merely calls upon the person recording the lien to show some color of right to the lien and that the affidavit or other writing evidencing the claim was timely filed. Davis-Wood Lumber Co. v. Wood, 224 La. 825, 71 So.2d 125 (La.1954). To go further and require the person recording the lien to prove the validity of each item making up his claim on the rule to show cause would be to try the merits of the case by rule. Id.

There is no evidence that Mr. Poland is a surveyor, workman or laborer who provided the services in the lien. Under La. R.S. 4801, a contractor has a privilege on an immovable to secure the obligations of the owner arising out of work on the immovable. Assuming, arguendo, that Landstar, Inc. or Poland met the definition of a contractor, the lien is | flnevertheless invalid. Persons claiming a lien or privilege under R.S. 4801 or out of a general contract under R.S. 4802, shall file a statement of their claim and privilege within sixty days after “substantial completion or abandonment of the work, if notice [of termination of the work] is not filed.” La. R.S. 9:4822(B) & (C). The sixty days begins to run after the work is completed and expires thereafter. La. R.S. 9:4822(D). The record is clear that the survey, which is the only service for which a lien against the immovable could have been filed, albeit not by Mr. Poland, was completed on May 20, 2000. The lien was filed nearly five years later, long after the time to file the lien had expired.

As previously stated, there is no evidence in the record of a contract between the Administratrix and Mr. Poland or Landstar. The evidence in the record indicates that the service or labor provided in this case was provided neither by Mr. Poland, nor by his or Landstar’s employees. However, there is nothing in the record to indicate that Mr. Kirkland or Hulett & Associates were employees of Landstar, Inc. Hence, while a contractor may file a lien for the amount he pays his employees for the work, that is not the circumstance here. Mr. Poland apparently alleges he is the lienor who provided the service of hiring the surveyor, increased the value of the succession and managed or paid some water and electrical bills. We observe that these circumstances, such as hiring a surveyor, arranging for electrical and water services, and other things, are simply not the kind of services protected by the Private Works Act. See Gauguin, Inc. v. Addison, 288 So.2d 893 (La.App. 1 Cir.), writ denied, 293 So.2d 167 (La.1973), where similar services provided by a real estate agent did not fall under the | inPrivate Works Act.

Lien statutes are strictly construed and rigidly interpreted against lienors. Their purpose is to protect materialmen, laborers, and subcontractors. By simply hiring a surveyor to survey the boundaries of the property or by paying some bills, Mr. Poland did not step into the surveyor’s shoes so as to acquire the right to file a lien against the immovable property for the payment of the surveyor’s services or obtain a privilege against the immovable to recover debts he paid. This record indicates he unilaterally decided to have the property surveyed and paid the surveyor, anticipating that his mother would inherit. These actions make him neither a contractor or subcontractor under the Private Works Act. Accordingly, the judgment of the trial court cancelling the lien and ordering it erased from the public records is affirmed.

Appellant’s other argument is that the evidence was insufficient to make a determination of the prescription issue without holding an evidentiary hearing. Appellant was not prohibited from putting on evidence at the hearing on the rule. However, on its face, the claim appears to have prescribed both as a lien and as an open account. Counsel for appellant presented his argument and put evidence of the lien and the debt in the form of receipts in the record. He did not adduce any oral testimony to prove the alleged agreement between Zula Qualls and the appellant, or any evidence that Qualls acknowledged the debt so as to interrupt prescription, assuming that the debt was an open account. The district court concluded that the appellant failed to carry its evidentiary burden of proving that the claim had not prescribed.

In Finally, the appellant assigns as error the trial court’s failure to notice on its own motion that appellant’s counsel had a conflict of interest or apparent conflict of interest. Mr. Blake, who represented the appellant regarding the lien, had also represented the succession and Zula Qualls up until she was replaced as Administratrix of the succession. Accordingly, counsel for appellant asserts that there was a conflict of interest.

Inasmuch as the alleged conflict is not part of the judgment on appeal, there is nothing to review. Mr. Blake submitted a brief response to the charge of a conflict disputing fully the existence of any conflict. He states that his representation of Ms. Qualls and the succession ended before he wa's retained by Mr. Poland. Mr. Poland has not shown that he was prejudiced in any way by the alleged appearance of a conflict. Accordingly, this claim is without merit.

Conclusion

For the foregoing reasons, the judgment of the district court cancelling the lien and ordering it erased from the mortgage records of Bienville Parish is affirmed at appellant’s cost.

AFFIRMED.

      . The decedent Leola Lard, and her husband (predeceased) had a son, Arthur Lee Loyd, Sr., who predeceased his mother and father, but not before fathering children of his own. A third grandchild, Arthur Lee Loyd, Jr., now deceased, was later found to be a son and legal heir.

      . Following the trial on that motion to remove Ms. Qualls, the court rendered a judgment on May 25, 2005, finding that Dennis Lamar Loyd and George Lee Loyd are the natural children of Arthur Lee Loyd, Sr., a predeceased son of decedent, and therefore they were the grandchildren and legal heirs of Leola Peoples Lard. The court also acknowledged the birth of a third child, namely, Arthur Lee Loyd, Jr., and ordered that his rights or those of his heirs are reserved until his status as a legal heir is proven.

      . He contends that an evidentiary hearing would permit him to show there was an agreement between himself or Landstar, Inc. and the Administratrix, and that the Adminis-tratrix acknowledged the debt and interrupted prescription.

      . Although the trial court allowed these items to be proffered into evidence for purposes of an appeal, they are not present in the appellate record.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    Kevin PETERSON, Plaintiff-Appellee, v. Venetia MICHAEL, et al., Defendants-Appellants.
    No. 42,315-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Susan Wall Griffin, for Appellant Department of Public Safety and Corrections.
    Kevin Peterson, In Proper Person.
    Before STEWART, GASKINS and LOLLEY, JJ.
   GASKINS, J.

pThe Louisiana Department of Public Safety and Corrections (DPSC) appeals from a trial court judgment which prohibited it from placing the plaintiff inmate, Kevin Peterson, in strip tier housing without an adjudication that he had committed a new rule violation. The judgment also ordered the DPSC to review a prior disciplinary matter involving the inmate. We reverse and vacate the trial court judgment.

FACTS

In November 2006, Peterson, an inmate at David Wade Correctional Center (DWCC), filed an application seeking in-junctive relief. Named as defendants were the warden of the correctional center, a compound unit manager, and a classification officer, all of whom are employees of the DPSC. According to his petition, Peterson was subjected to “Policy # 53” conditions for 30 days for a September 2006 incident in which he threw feces at another inmate. He was then continued under Posted Policy # 53 for an additional period of time, supposedly because of his past disciplinary behavior. Apparently, Posted Policy # 53 involves housing an inmate without any items in his cell and requiring him to wear a paper gown; it is known as being placed in a strip cell or on a strip tier. Peterson asserted that he was being denied “basic human necessities” such as soap, towels, clothing, dental hygiene items, footwear, and bedding, in violation of the Eighth Amendment. He further alleged that deprivation of certain items, such as soap and toothpaste, had adversely affected his health. He requested compensatory damages of 12 $35,000 and punitive damages of $35,000, as well as injunc-tive relief to prevent prison officials from continuing him under Posted Policy # 53 conditions.

On November 16, 2006, Judge Jimmy Teat of the Second Judicial District Court (JDC) filed a screening judgment with assigned written reasons. The court allowed the filing of the instant suit and fixed for hearing his request for a preliminary injunction.

On November 30, 2006, Peterson filed an application for leave to file a petition for a writ of habeas corpus. An order was signed fixing a hearing on the application for December 7, 2006.

On December 1, 2006, the defendants filed a motion seeking dismissal of Peterson’s motion for a temporary restraining order. They asserted that Peterson was no longer housed on the strip tier, thus rendering the matter moot. Alternatively, they requested transfer to the 19th JDC, which they asserted had exclusive jurisdiction under the Corrections Administrative Remedy Procedure (CARP).

The matter was heard by Judge Jenifer Ward Clason on December 7, 2006. Peterson represented himself at the hearing. He argued that Posted Policy # 53 was illegal. According to Peterson, Posted Policy #53 provides for an inmate to be placed on strip cell status for 24 hours for. a first transgression and for 30 days on a second transgression or if he demonstrates a documented pattern of misconduct. Since he had a prior ^transgression, Peterson was given 30 days for the September 2006 incident. He asserted that he was maintained on strip cell status after the end of 30 days, not for a new transgression, but because the prison authorities decided at that point that he had a documented pattern of behavior. He also contended that the policy should- be promulgated under the Administrative Procedure Act (APA). The defendants argued that in September 2006, Peterson was adjudicated through the disciplinary board court of throwing feces at another inmate and that he had notice that this was unacceptable conduct. They asserted that Posted Policy # 53 is a posted policy which does not have to be promulgated like a regulation. The defendants also contended that placement on the strip tier is considered a housing classification.

' At the conclusion of the hearing, the trial court ruled that Posted Policy # 53 was not a regulation that required promulgation under the APA. However, the court also ordered that the prison could not place Peterson on the strip cell tier without a new infraction.

The trial judge noted that this case was allowed despite the automatic stay and successive claims provisions of La. R.S. 15:1186 and La. R.S. 15:1187 because of the allegations that the strip cell placement resulted in medical problems. However, the evidence presented at the hearing revealed that Peterson had complained and received medical treatment for these conditions.

| ¿During the hearing, there was a discussion about Peterson’s loss of 60 days of good time and his possible release in the near future. Peterson claimed that the good time was lost due to a jailer who allegedly falsified a report on him and was forced to resign for doing something similar to another inmate. The court requested that counsel for the DPSC look into that matter and determine if that complaint had any merit which would justify the restoration of the lost good time days.

On December 14, 2006, the trial court signed a judgment which prohibited the defendants from placing Peterson on the strip tier if he was not adjudicated as having committed a new rule violation. It also ordered the defendants to review disciplinary proceedings initiated by the fired correctional center employee and, if the employee’s statements were deemed to lack credibility, to give Peterson credit for the 60 days of good time lost due to that employee’s statements. In all other respects, the court rejected Peterson’s claims, and it ordered that court costs be assessed equally.

The defendants sought a suspensive appeal.

Peterson filed a motion for a copy of the judgment and the transcript of the hearing. On January 4, 2007, the court denied the motion for the transcript and noted that Peterson had been released from the correctional center. Peterson did not file a brief in this court.

STRIP CELL PLACEMENT

The legislature has delegated to the secretary of the DPSC broad authority to classify and discipline inmates within the jurisdiction of the department in order to maintain order and safety within Louisiana’s prison |Rsystem. La. R.S. 15:828; La. R.S. 15:829; Sanchez v. Hunt, 329 So.2d 691 (La.1976).

In order to help provide structure and organization for Louisiana prisons, the DPSC has established the Disciplinary Rules and Procedures for Adult Inmates. These rules provide a framework within which the inmate population can expect the disciplinary system to function. LAC 22:1.343. Pursuant to the requirements of the APA, these rules are promulgated in the Louisiana Register.

The actual disciplinary rules are found in § 365 of the Disciplinary Rules and Procedures for Adult Offenders. They include such Schedule B violations as defiance (which includes throwing any substance at an employee) and such Schedule A offenses as disobedience (failure to obey the posted policies for the facility in which an inmate is confined). LAC 22:1.365. The penalty schedule for these violations is found in § 359. Major violations are Schedule B offenses, and the penalties so reflect. See LAC 22:1.355 and LAC 22:1.359. According to § 355, which discusses sanctions, an inmate who has established “a documented pattern of behavior,” indicating that he is dangerous to himself or others, is a habitual offender who may receive Schedule B penalties for a Schedule A offense. This provision also states that an inmate who violates more than one rule or the same rule more than once during an incident may receive a permissible sanction for each violation. LAC 22:1.355.

In addition to the Disciplinary Rules, the various correctional facilities have posted policies. A posted policy is defined in § 345 of the [^Disciplinary Rules and Procedures for Adult Offenders as a policy memorandum “detailing what behavior is required or forbidden of inmates and generally reflects the individual needs of the facility.... Posted policies must be distributed and posted in such a manner that inmates are placed on notice as to what behavior is required or forbidden, and the actions that may be taken should the policy be violated.” LAC 22:1.345.

Peterson argued that Posted Policy # 53 was illegal and that it should have been promulgated under the APA. However, a posted policy for a particular facility, like DWCC’s Posted Policy # 53, does not have to be formally promulgated in the Louisiana Register.

Generally, prison officials are given broad discretion in administering prisons, and prisoners are seen to “retain only a narrow range of protected liberty interests.” Woods v. Edwards, 51 F.3d 577 (5th Cir.1995).

Absent a violation of some constitutional right of equal protection or due process, the courts may not interfere in the DPSC’s classification procedures. Prison authorities are responsible for maintaining internal order and discipline. These administrators must have a great deal of discretion in accomplishing their purpose within constitutionally refined parameters. Fulford v. Phelps, 365 So.2d 575 (La.App. 1st Cir.1978); Armstead v. Phelps, 449 So.2d 1049 (La.App. 1st Cir.1984).

^Furthermore, like the trial court, we conclude that Peterson failed to establish any constitutional violation or illegality as to the posted policy. At the time of the hearing, Peterson was no longer on strip cell tier, and counsel for the defendants agreed that he could not be placed back on it without a new infraction. There was no basis for the granting of injunctive relief in Peterson’s favor and consequently we reverse and vacate the injunction.

GOOD TIME

At the hearing, Peterson also raised the issue of his loss of 60 days of good time due to allegedly false statements by a former correctional center employee. At the conclusion of the hearing, the trial court merely requested that counsel for the defendants look into the matter. In its subsequent judgment, it ordered the defendants to review the disciplinary proceedings resulting in the loss of good time and credit Peterson for the 60 days of good time if the employee’s statements were deemed to lack credibility. However, La. R.S. 15:571.15 mandates that venue for actions contesting computation of sentence, discharge, parole, and good time dates shall be brought in the parish of East Baton Rouge. See State v. Robinson, 2001-1458 (La.App. 4th Cir.4/24/02), 818 So.2d 246, writ denied, 2002-2064 (La.6/20/03), 847 So.2d 1222; Stemley v. Goines, 2006-1556 (La.App. 4th Cir.4/11/07), 954 So.2d 403. We agree with the defendants that this matter was not properly before the 2nd JDC in Claiborne Parish in the instant proceedings.

Consequently, we reverse the trial court judgment insofar as it directed action on this issue.

CONCLUSION

The judgment of the trial court is reversed and vacated. Costs of this appeal are assessed against the appellee, Kevin Peterson.

REVERSED.

      . No copy of Posted Policy # 53 is found in the record.

      . During his incarceration, Peterson was an active pro se litigant. Since 2002, he has filed more than 20 applications in this court. Among his reported cases are Peterson v. Gildon, 40,328 (La.App.2d Cir.12/30/05), 917 So.2d 1284, writ denied, 2006-1098 (La.10/27/06), 939 So.2d 1277; Peterson v. May, 39,470 (La.App.2d Cir.4/13/05), 900 So.2d 297; Peterson v. Austin, 36,365 (La.App.2d Cir.12/11/02), 836 So.2d 235, writ denied, 2003-0510 (La.1/30/04), 865 So.2d 70.

      . The decision form states that he “[t]hrew human feces on inmate orderlies and nurse.”

      . Among Peterson's complaints pertaining to strip cell placement was deprivation of “basic human necessities.” However, the information presented at the hearing established that an inmate confined in a strip cell receives a toothbrush and toothpaste once a day and is afforded medical treatment as Peterson was. We also note that in an earlier case, Peterson sought to enjoin corrections officials from depriving him of a mattress while in disciplinary detention. However, it was demonstrated that inmates in disciplinary detention were only deprived of mattresses during the day. See Peterson v. Hanson, 2003-1448 (La.App. 1st Cir.9/17/04), 897 So.2d 32.


author: PEATROSS, J.

text:
    Carol Ann BAKER, Plaintiff-Appellant, v. Christopher BAKER, Defendant.
    No. 42,182-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Cook, Yancey, King & Galloway by Bernard S. Johnson, Michael K. Leachman, Shreveport, for Appellant.
    Downer, Hammond & Wilhite, L.L.C. by Kevin W. Hammond, Shreveport, for Ap-pellee/Intervenor, Gimme Sum of Louisiana, Inc.
    Before BROWN, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

hThe underlying action in this appeal was for executory process on a note and security agreement executed between mother, Carol Ann Baker, and son, Christopher Baker. Ms. Baker loaned Christopher funds to open and operate a restaurant franchise of Gimme Sum of Louisiana, Inc. (“Gimme Sum”) in Bossier City. When Christopher defaulted on the note, Ms. Baker filed a Petition for Executory Process and Gimme Sum intervened seeking to enjoin the seizure and sale of certain restaurant equipment, asserting ownership of the collateral and alleging that the Bakers’ loan documents were fraudulent. The petition for intervention and injunction was subsequently denied. Ms. Baker then sought an order for contempt and sanctions against Gimme Sum and three of its corporate representatives, which was subsequently denied by the court. Ms. Baker appeals from that adverse denial. For the reasons stated herein, we affirm.

FACTS

Ms. Baker loaned her son, Christopher, approximately $185,000 to help him open a Gimme Sum franchise restaurant in Bossier City. According to Ms. Baker, the funds were loaned during the period from September 2004 to November 2005. In December 2005, Christopher executed a promissory note calling for repayment of $122,173. A security agreement was also executed by Christopher, and signed by Ms. Baker as the secured party, specifically listing as collateral certain items of equipment located in the restaurant.

The franchise never opened with Christopher as owner. On February 24, 2006, during the construction of the premises, Gimme Sum |2evicted Christopher. Following the eviction, Gimme Sum assumed occupancy of the premises and used the equipment therein to open and operate the restaurant.

Ms. Baker had drafted the original note and security agreement, which, apparently, did not comply with the requirements for executory process in Louisiana. When Ms. Baker realized this problem, she had Christopher execute a “Reaffirmed Note” and “Reaffirmed Security Agreement” in order to comply with Louisiana law. Christopher ultimately defaulted on the note and, on April 10, 2006, Ms. Baker filed a Petition for Executory Process based on the reaffirmed instruments. That same day, the court issued a Writ of Seizure and Sale. Certain items were constructively seized on April 28, 2006, including items purchased by Christopher during construction of the restaurant.

Two weeks prior to the scheduled date of the sheriffs sale, on June 28, 2006, Gimme Sum filed a Petition of Intervention and Request for Preliminary Injunction to Arrest Seizure and Sale, alleging ownership of the equipment. It asserted that Christopher had removed certain items of equipment from the premises and that Gimme Sum had replaced the equipment. Gimme Sum further alleged that the loan documents between Ms. Baker and her son were fraudulent and a product of collusion. As a result of this filing, the sheriffs sale was upset.

At the hearing of the intervention proceeding, no evidence was taken and the trial court denied the relief sought in Gimme Sum’s petition on the basis that the law of executory process provided a remedy to Gimme Sum hand, therefore, intervention was not the appropriate procedure for Gimme Sum’s redress. The trial court opined that La. C.C.P. art. 2751 governed the case; and, if the seizure was later determined to be wrongful, Gimme Sum would be afforded the remedies provided by law for wrongful seizure. The sheriffs sale was rescheduled for August 9, 2006. No appeal was taken from the denial of the petition for injunction.

Ms. Baker then filed a motion for contempt and sanctions against Gimme Sum on the following grounds (verbatim):

1. Gimme Sum’s allegations in its petition of intervention and request for preliminary injunction were not “well grounded in fact” and were made without performing a reasonable inquiry in violation of La.Code Civ. P. Art. 863;
2. Gimme Sum produced falsified documents in response to discovery requests in violation of La.Code Civ. P. Art. 1420; and
3. Gimme Sum provided false testimony in its deposition in violation of La.Code Civ. P. Art. 1420.

Ms. Baker sought sanctions under articles 863(D) and 1420(D), including the entire cost of defending the intervention and proceeding with the motion for sanctions and contempt. She further sought to have the court find Gimme Sum’s Vice President of Operations, Alan Benjamini, and two of its representatives, John deVries and Ken Chaffee, in contempt under La. R.S.13:4611(l)(d). She alleged that the deposition testimony of these Gimme Sum representatives was false regarding the removal and | replacement of certain restaurant equipment. Ms. Baker further alleged that Gimme Sum produced false documents which Gimme Sum claimed supported its ownership of certain equipment. Finally, she emphasized that none of the representatives of Gimme Sum provided any testimony in support-of its allegation that the note and security agreement executed by her and Christopher were fraudulent or the product of collusion.

The trial court denied Ms. Baker’s motion for sanctions and contempt stating that it was not “convinced that the interve-nors knowingly offered false testimony or documents.” This appeal is from that ruling.

DISCUSSION

Applicable law

Ms. Baker relies on the following codal articles and statutes:

La. C.C.P. art. 863, Signing of pleadings, effect:
B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
* * *
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable 1 ¡^expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee.
La. C.C.P. art. 1420, Signing of discovery requests, responses, or objections:
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the request, response, or objection, including a reasonable attorney’s fee.
La. C.C.P. art. 224(4):
Any of the following acts constitutes a constructive contempt of court:
(4) Deceit or abuse of the process or procedure of the court by a party to an action or proceeding, or by his attorney.
La. R.S. 13:4611, Punishment for contempt of court:
Except as otherwise provided for by law:
(1) The supreme court, the courts of appeal, the district courts, family courts, juvenile courts and the city courts may punish a person adjudged guilty of a contempt of court therein, as follows:
(d) For any other contempt of court, including disobeying an order for the payment of child support or spousal support or an order for the right of custody or visitation, by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both.

1 fiStatutes which authorize the imposition of penalties or sanctions are penal in nature and are to be strictly construed. Consolidated Distributors, Inc. v. The United Group of National Paper Distributors, Inc., 32,431 (La.App.2d Cir.10/27/99), 743 So.2d 862, citing Hart v. Allstate Ins. Co., 437 So.2d 823 (La.1983). Appellate review of the decision to impose sanctions is under the manifest error/clearly wrong standard of review. Haulcy v. Saint Gobain Containers, 39,405 (La.App.2d Cir.3/9/05), 895 So.2d 803, citing Parker v. Progressive Ins. Co., 31,147 (La.App.2d Cir.10/28/98), 720 So.2d 408. Specifically, the standard of review of the trial court’s determination of whether an individual has violated rules concerning certification of documents under La. C.C.P. art. 1420. is the abuse of discretion, manifestly erroneous or clearly wrong criteria used in reviewing court’s factual findings. Murphy v. Boeing Petroleum Services, Inc., 600 So.2d 823 (La.App. 3d Cir.1992).

In order for a court to find a person guilty of constructive contempt, it is necessary to find that the person violated an order of the court intentionally, knowingly and purposefully and without justifiable excuse, Smith v. Smith, 35,378, 35,379 (La.App.2d Cir.9/26/01), 796 So.2d 726. The trial court’s decision as to whether a person is guilty of constructive contempt will only be reversed on appeal when the appellate court can discern abuse of discretion. Midyett v. Midyett, 32,208 (La.App.2d Cir.9/22/99) 744 So.2d 669.

The argument of Ms. Baker is based on her belief that the assertion of Gimme Sum that it owned the seized property was knowingly a false claim 17made by it. Specifically, she focuses on the deposition testimony of Mr. Benjamini and Mr. Chaffee who both testified that a large, expensive ice machine was taken from the premises by Christopher and a new one was purchased by Gimme Sum. Although there are no serial numbers on- the documentation presented to support the replacement purchase by Gimme Sum, Ms. Baker produced the. original invoice where Christopher bought the equipment. That invoice bore a serial number and an on-site inspection conducted-after the seizure revealed the presence of the ice machine bearing the same serial number as the one bought by Christopher. According to Ms. Baker, when Gimme Sum realized this, it took the position that perhaps the ice machine had been in storage and had not been installed in the restaurant at the time Christopher was evicted.

In addition, the president of the company that installed the ice machine in the restaurant in 2005, at the request of Christopher, testified on behalf of Ms. Baker. He confirmed the serial number on the machine, that it was installed at Christopher’s request and that he knew of no other ice machine being installed by his company in that location. Ms. Baker also produced an email authored by Mr. deV-ries prior to Christopher’s eviction by Gimme Sum, which stated that the ice machine in the restaurant was leaking and needed servicing. Ms. Baker urges that assertions of Gimme Sum are disingenuous and that Gimme Sum intentionally provided false testimony and documentation to prevent her from executing on the security agreement.

|sMs. Baker maintains that none of the Gimme Sum witnesses testified or produced any evidence negating the fact that she did loan the money to her son. They each testified that they had no facts to support the claim that the loan documents were fraudulent. In addition, Mr. deVries testified that he did not know whether an investigation was performed and he added that his company does not “spend any time or money on that.”

Ms. Baker asserts in brief that the determination of the trial court that Gimme Sum did not knowingly offer false testimony or documents is unreasonable and completely contradicted by the evidence in the record. She argues that sanctions are warranted because Gimme Sum presented no evidence that the loan documents between Ms. Baker and her son were fraudulent. Finally, Ms. Baker asserts that the proffering of false testimony and documents in response to discovery requests constitutes constructive contempt under La. C.C.P. art. 224(4).

Conversely, Gimme Sum asserts that its intervention is supported by La. C.C.P. art. 1092. Gimme Sum suggests that, by denying the petition for | ¡¡intervention, the trial court decided that Gimme Sum had sufficient recourse against Ms. Baker and no evidence was received from Gimme Sum in connection with the petition for intervention. Gimme Sum further asserts that the nature of an executory process is hurried and confusing and that discovery was conducted quickly. It maintains, however, that there was no term, amount to be repaid or consideration given for the revised note and security agreement. Moreover, Ms. Baker and her son admit that there has been no effort on the part of Ms. Baker to seize items in the possession of her son that he had removed from the premises. In addition, Christopher admitted that he did not even know what some of the listed seized items were. According to Gimme Sum, the court correctly concluded that there was not a knowing offer of false testimony on the part of Gimme Sum.

A review of the depositions and documents contained in this record reveals some conflicting testimony on both sides of this dispute and portrays a picture of an unsuccessful business venture that created animosity between the parties. Significantly, as Gimme Sum points out, no evidence was allowed in connection with Gimme Sum’s petition for intervention; therefore, the complained of, alleged false evidence was not presented to the trial court. In any event, based on our review of the record before us, we find no abuse of discretion or manifest error in the conclusion of the trial court that sanctions and/or contempt were not warranted in the case sub \wjudice. There is, therefore, a reasonable factual basis to support the decision of the trial court and it will not be disturbed on appeal.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed to Carol Ann Baker.

AFFIRMED.

      . La. C.C.P. art. 2751, Grounds for arresting seizure and sale; damages, provides:
      The defendant in the executory proceeding may arrest the seizure and sale of the property by injunction when the debt secured by the security interest, mortgage, or privilege is extinguished, or is legally unenforceable, or if the procedure required by law for an executory proceeding has not been followed.

      . La. C.C.P. art. 1092, Third person asserting ownership of, or mortgage or privilege on, seized property, provides:
      A third person claiming ownership of, or a mortgage or privilege on, property seized may assert his claim by intervention. If the third person asserts ownership of the seized property, the intervention may be filed at any time prior to the judicial sale of the seized property, and the court may grant him injunctive relief to prevent such sale before an adjudication of his claim of ownership.
      If the third person claims a mortgage or privilege on the entire property seized, whether superior or inferior to that of the seizing creditor, the intervention may be filed at any time prior to the distribution by the sheriff of the proceeds of the sale of the seized property, and the court shall order the sheriff to hold such proceeds subject to its further orders. When the intervener claims such a mortgage or privilege only on part of the property seized, and the intervention is filed prior to the judicial sale, the court may order the separate sale of the property on which the intervener claims a mortgage or privilege; or if a separate sale thereof is not feasible or necessary, or the intervener has no right thereto, the court may order the separate appraisement of the entire property seized and of the part thereof on which the intervener claims a mortgage or privilege.
      An intervener claiming the proceeds of a judicial sale does not thereby admit judicially the validity, nor is he estopped from asserting the invalidity, of the claim of the seizing creditor.


author: WILLIAMS, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Anthony D. GREEN, (and $12,780.00 in U.S. Currency), Defendant-Appellant.
    No. 42,253-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Jarvis M. Antwine, Baton Rouge, for Appellant.
    Iley H. Evans, District Attorney, Ashley P. Thomas, Assistant District Attorney, for Appellee.
    Before WILLIAMS, STEWART and MOORE, JJ.
   WILLIAMS, Judge.

hThe defendant, Anthony Green, appeals a judgment in favor of the State of Louisiana. The district court ordered the forfeiture of $12,780 in cash to the state. For the following reasons, we reverse and render.

FACTS

On February 28, 2006, the Caldwell Parish Sheriff’s Office received a complaint about possible illegal activity in an empty apartment at a public housing complex. When Deputies Jack McKeithen and Sed-ric Meredith responded to the scene they observed two individuals sitting in a parked 1997 Cadillac. Anthony Green was sitting in the front passenger seat with the passenger door open and Marvin Stanley was sitting in the rear passenger seat. Deputy Meredith recognized Stanley as a person with a drug conviction who had been banned from public housing. As Deputy McKeithen approached the vehicle, he saw Green place a clear plastic bag containing a green substance into the waistband of his pants. The deputy asked Green for his identification and observed him place what appeared to be a large roll of money into the glove compartment.

After instructing Green to step out of the car, Deputy McKeithen retrieved a bag of marijuana from Green’s waistband and removed $12,780 in cash from the glove compartment. Green stated that he had obtained the large amount of money from insurance proceeds, his sister and his girlfriend. A loaded .22 caliber handgun was found in the trunk of the auto. Green was arrested and later charged with possession of marijuana third offense and possession of a firearm by a convicted felon.

In April 2006, the state filed a notice of pending forfeiture. In 12response, the claimant, Anthony Green, and his sister, Cynthia Moran, filed claims alleging that the seized money was not subject to forfeiture. They also submitted affidavits stating thát claimant had been holding $5,500 for Moran, who planned to purchase a truck. Additionally, claimant submitted the affidavit of his girlfriend, Elaine Smith, who stated that she had issued a check of $5,520 to claimant as his share of insurance proceeds for damage to their trailer home. Subsequently, the state filed a petition for forfeiture in rem. The claimant filed an opposition and reconventional demand for return of the seized funds.

After a hearing, the district court issued reasons for judgment noting that under LSA-R.S. 40:2611(G), money found in proximity to contraband raises an inference that the money was the proceeds of conduct allowing forfeiture. The court found that claimant failed to prove by a preponderance of evidence that the money came from independent sources and that under all of the circumstances, the state could reasonably assume that the money was connected to illegal drug activity. The district court rendered judgment ordering the forfeiture of $12,780 in cash to the state. Claimant appeals the judgment.

DISCUSSION

The claimant contends the district court erred in ordering forfeiture of the money seized. In two assignments of error, claimant argues that the court incorrectly applied the burden of proof for forfeiture proceedings and that the state failed to present sufficient evidence of a connection between the property seized and illegal activity.

| ¡(Under the Forfeiture Act, LSA-R.S. 40:2601 et seq., conduct giving rise to forfeiture includes an act or omission punishable by confinement for more than one year under LSA-R.S. 40:961 et seq., and property used or intended to be used in any manner to facilitate such conduct is subject to forfeiture. LSA-R.S. 40:2603(1); LSA-R.S. 40:2604(2)(b).

In a civil forfeiture proceeding, wherein a claim is timely filed, the burden of proof required to forfeit the claimant’s property shall be a preponderance of the evidence. LSA-R.S. 40:2612(G). A contested in rem action under Section 2612(G) requires the state to prove by a preponderance of the evidence the criminal conduct giving rise to forfeiture and the connection between the property and such illegal activity. State v. $790 Cash, 36,107 (La.App.2d Cir.6/12/02), 821 So.2d 609. The state is not required to trace the money to a particular drug transaction. U.S. v. One 1987 Mercedes 560 SEL, 919 F.2d 327 (5th Cir.1990).

In the present case, the state filed a notice of pending forfeiture on April 10, 2006. The claimant and Cynthia Moran each filed notice of claims on April 21, 2006, alleging that the seized money was not subject to forfeiture. Thus, their claims were timely filed pursuant to LSA-R.S. 40:2610, which requires that an owner of seized property file a claim within 30 days after the state’s notice of pending forfeiture.

Under the original enactment of the Forfeiture Act, the state had the initial burden of showing the existence of probable cause for the forfeiture of property. The burden of proof for forfeiture was amended by Acts 1997, No. 1334, which changed the state’s burden from probable cause to [/‘preponderance of the evidence” in a forfeiture case where a claim has been timely filed. LSA-R.S. 40:2612(G); State v. $107,156 U.S. Currency Seized from Marlin Morton and Richard Woods, 41,090 (La.App.2d Cir.6/30/06), 935 So.2d 827, writ denied, 06-2271 (La.11/22/06), 942 So.2d 557. Proof by a preponderance of the evidence means that the evidence shows that the fact or cause to be proven is more probable than not. State v. $77,014 Dollars, 607 So.2d 576 (La.App. 3rd Cir.1992), writ denied, 612 So.2d 61 (La.1993).

Here, since claimant and Moran filed timely claims to the seized property, the state was required to prove forfeiture by a preponderance of evidence. However, in its written reasons for judgment, the trial court asserted that the state “must establish only probable cause (permissible inference) for the forfeiture under the circumstances.” In ordering that the money be forfeited, the court found that claimant failed to prove by a preponderance of evidence that the money came from independent sources. Thus, the trial court applied the incorrect burden of proof to the state and improperly placed the burden of proof on the claimant.

In its appellate brief, the state argues that even if the court misinterpreted the forfeiture statute, the totality of the circumstances supports a finding that the state met its burden of proving forfeiture by a preponderance of the evidence. To support its argument, the state contends the claimant gave authorities conflicting stories regarding the source of the cash and points to his criminal record and his possession of marijuana along with a large amount of cash.

IsAt the forfeiture hearing, Deputy Jack McKeithen testified that he found a bag of marijuana on claimant’s person and removed a large amount of cash from his vehicle. Deputy McKeithen stated that claimant initially said the money was from an insurance settlement after damage to his trailer home. Then, while still at the scene, claimant said some of the money belonged to his sister and some to another person. Deputy McKeithen testified that he did not have any reason to believe that the money was used for illegal drug transactions and he did not know whether the money was the proceeds of criminal activity. Deputy McKeithen stated that the amount of marijuana possessed by claimant was enough to make one or two marijuana cigarettes.

Deputy Sedric Meredith testified that at the time of the arrest, claimant said the money was from insurance proceeds for storm damage to his trailer. Deputy Meredith stated that the next day, claimant brought a letter to the sheriffs office from his sister stating that some of the cash was hers. Claimant also said some of the money belonged to his girlfriend. Deputy Meredith identified court minutes showing claimant’s two prior convictions for marijuana possession. Deputy Meredith acknowledged that he had no reason to believe that the money seized was connected to illegal drug activity. Deputy Meredith estimated that the marijuana recovered from the claimant was worth approximately $20.

Assistant Chief Deputy Beckie Ledbet-ter testified that at the scene of the arrest, Deputy McKeithen asked her to secure the cash seized from the claimant. Deputy Ledbetter stated that she asked claimant about the cash | fiand he said he had carried some of the cash since 2005, when he received insurance money for tornado damage to his trailer. Deputy Ledbetter testified the claimant added that he had cashed his girlfriend’s IRS refund check so that some of the money was hers and that he was holding money for his sister.

Contrary to the state’s contention, the foregoing testimony demonstrates that on the day of his arrest, the claimant gave consistent explanations concerning the source of the money to each of the deputies. In addition, the claimant’s explanation was consistent with the evidence produced at the forfeiture hearing.

The claimant’s sister, Cynthia Moran, testified that she gave $5,500 to claimant to hold for her while she looked for a truck to purchase. Moran explained that the source of her money was an income tax refund received in January 2006 and two social security checks. Moran identified a copy of her tax return indicating a refund of $4,106 and documents from Caldwell Bank verifying that she had received two social security checks in the amount of $779 each. Moran testified that she gave claimant the money to hold because he was helping her look for a truck and that sometimes the sale price was lower if paid in cash.

The claimant, Anthony Green, testified that after the trailer home he shared with Elaine Smith was destroyed in a tornado, they received insurance proceeds of approximately $21,000, from which the balance of the home loan was paid. Claimant stated that from the remaining proceeds, Smith issued a check for $5,520 to him in March 2005. He testified that he |7had been holding the money on his person since then while looking for a new house. Claimant explained that he did not deposit the cash in a bank account because the IRS had previously seized money from his account for unpaid taxes. The claimant testified that none of the money was obtained from criminal activity. He stated that he had been living with his sister since the tornado in November 2004 and that he was not employed at the time of his arrest because of a prior work injury.

In making a finding of probable cause for forfeiture, the court primarily relied on the statutory inference that money found in proximity to contraband was the proceeds of conduct giving rise to forfeiture. Aside from the testimony that the claimant held a relatively large amount of cash at the time he possessed marijuana, the state’s witnesses failed to make any other connection between the money and illegal drug activity.

Thus, the evidence presented by the state was inadequate to show that the seized currency was derived from or intended to be used in an illegal narcotics transaction. Additionally, the testimony and documentary evidence produced by the claimant adequately negated the statutory inference relied upon by the state and the trial court.

After reviewing the record in its entirety, we must conclude that the state failed to satisfy its statutory burden of proving by a preponderance of the evidence that a substantial connection existed between the property seized and the illegal drug activity. Consequently, the trial court erred in ordering that the $12,780 in currency be forfeited to the state under the Forfeiture Act.

^CONCLUSION

For the forgoing reasons, the trial court’s judgment ordering forfeiture is reversed. We hereby order that the $12,780 in currency be returned to the claimant, Anthony Green. Costs of this appeal are assessed to the State of Louisiana to the extent allowed by law.

REVERSED AND RENDERED.


text:
    CASE ATLANTIC COMPANY, Plaintiff-Respondent, v. BLOUNT BROTHERS CONSTRUCTION, INC., et al, Defendant-Applicants.
    No. 42,251-CW.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.

      Wray & Pierce, LLP by Russel W. Wray, Baton Rouge, The Pesnell Law Firm by Billy Pesnell, Shreveport, for Respondents St. Paul Fire & Marine and Blount Brothers.
    Office of General Counsel by Cheryl L. Duvieilh, for Applicant State of LA Dept, of Transportation & Dev.
    Hayter & Odom, L.L.C. by John 0. Hayter, III, Shreveport, for Respondent Case Atlantic Company.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   MOORE, J.

_JjThe State of Louisiana, Department of Transportation and Development (“DOTD”), seeks supervisory review of an interlocutory judgment that denied its dec-linatory exception of improper venue as to the cross-claim filed by Blount Brothers Construction. Finding that the forum selection clause incorporated into DOTD’s contract with Blount trumps the general venue provision of La. C.C.P. art. 1034, we grant the writ, make it peremptory, and order the cross-claim severed and transferred to the 19th Judicial District Court for East Baton Rouge Parish.

Procedural Background

In August 2002, DOTD awarded a contract to Blount to build “Twelve Mile Bayou Bridge and Approaches” in Caddo Parish for a total cost of approximately $5.1 million. The contract incorporated by reference the 2000 Standard Specifications for Roads and Bridges, which provided in § 107.01: “When the Department is the contracting agency, any litigation arising under or related to the contract or bidding or award thereof shall be instituted in the 19th Judicial District Court in and for the Parish of East Baton Rouge, State of Louisiana.”

Blount awarded a subcontract to Case Atlantic Co. to perform piling work on the project. This contract is not included in the record.

In early 2005, Case sent lien notices to DOTD, alleging that Blount had failed to pay Case for certain labor, materials and supplies. DOTD complied with the roads and bridges lien statute, La. R.S. 48:256.3 through 48:256.12, and withheld from Blount two payments totaling $153,337.77. Blount nevertheless completed the project and DOTD gave final acceptance pin November 2005.

In August 2006, Case filed the instant suit for concursus in Caddo Parish. It named as defendants Blount, DOTD and DOTD’s surety, St. Paul. Concursus is authorized by a special provision of the roads and bridges lien statute, R.S. 48:256.8 A:

If at the expiration of the forty-five days any filed and recorded claims are unpaid, the department shall file a petition in the proper court of the parish where the work was done, citing all claimants and the contractor, subcontractor, and surety on the bond and asserting whatever claims it has against any of them, and shall require the claimants to assert their claims. If the department fails to file the proceeding any claimant may do so.

Citing this statute, DOTD deposited the $153,337.77 into the court registry and prayed for judgment relieving it of any liability to the parties for that amount.

Blount then filed a cross-claim against DOTD, urging that DOTD had issued a stop order on the project in January 2003, delaying work until August and leading to cost overruns. Blount contended that DOTD wrongly withheld the payments now in the court registry, and sought damages for increased costs.

DOTD responded with the exception of improper venue, citing § 107.01 of the Standard Specifications. In support, it cited jurisprudence upholding forum selection clauses. It prayed for judgment dismissing the cross-claim.

Blount opposed the exception, raising the factual argument that its refusal to pay Case was fully justified as Case had performed defective work. Blount’s legal position with respect to venue was La. C.C.P. art. |a1034, which provides in part, “[A]n objection of improper venue may not be urged if the principal action has been instituted in the proper venue.” Blount contended that venue for the concursus suit in Caddo was mandated by R.S. 48:256.8, so the cross-claim also had to proceed there.

By subsequent pleadings, DOTD asserted that Blount and St. Paul were not “claimants” under the roads and bridges lien statute, as they are “not any person to whom money is due pursuant to a contract with the owner.” La. R.S. 48:256.5 A. Blount countered that it was indeed a claimant, as it was still due money under the contract, and it was entitled to rely on the mandatory venue of R.S. 48:256.8.

After a brief hearing in January 2007, the district court found that R.S. 48:256.8 was controlling, and Blount’s right to bring an incidental action was not affected by the general contract. The court therefore overruled the exception.

This court granted DOTD’s writ on February 15, 2007.

The Parties’ Contentions

DOTD raises two assignments of error. First it contends the district court erred in finding that Blount was a “claimant” and required to litigate its cross-claim for breach of contract in the concursus action. Blount was a “contractor,” not a claimant; moreover, it never filed any notice of lien as required by R.S. 48:256.5 B. DOTD explains that it raised no objection to the concursus because this required it only to deposit the contested amount (actually 125% of the stated value of the subeontractor’s claims) to avoid any further liability. The breach of contract claim, however, is totally ^different and invokes § 107.01’s selection of East Baton Rouge. Second, DOTD contends the court erred in disregarding the legally binding effect of the forum selection clause. It shows that forum selection clauses are generally upheld. Luffey v. Fredericksburg Properties of Texas, 37,591 (La.App. 2 Cir. 12/10/03), 862 So.2d 403; Piqué-Weinstein-Piqué Architects Inc. v. New Orleans Aviation Bd., 99-1231 (La.App. 5 Cir. 4/25/00), 762 So.2d 76, writ denied, 2000-1483 (La.6/30/00), 767 So.2d 41. Finally, it shows that forum selection clauses are held to supersede the general venue provisions of the Code of Civil Procedure. Town of Homer v. United Healthcare of La. Inc., 41,512 (La.App. 2 Cir. 1/31/07), 948 So.2d 1163.

Case has filed a brief aligning itself with DOTD. It submits that the legislature never intended the expedited concursus procedure to encompass “protracted construction litigation between owner and general contractor.”

Blount urges the district court was legally correct on three grounds. First, the special lien statute, R.S. 48:256.8 A, requires DOTD or any claimant to file con-cursus in the parish where the work was done. Also, the general concursus statute, La. C.C.P. art. 4653 B, fixes venue for “any sale, lease, or other transaction affecting or pertaining to immovable property or any character of interest therein” in the parish where the immovable is situated. This point, Blount contends, distinguishes the case from Luffey, United Healthcare of La., and other cases which did not involve immovable property. Second, C.C.P. art. 1034 requires any incidental action to be tried in the same venue as the principal demand; Blount counters Case’s position by urging that the legislature never intended to require two trials | swhen one will suffice. Third, the general contractor is indeed a claimant under R.S. 48:256.8, since it has alleged that it is due money under its contract with DOTD; also, the general contractor is not bound by the lien provisions of R.S. 48:256.5 B, as these apply only to subcontractors, who had no privity with DOTD.

Discussion

Forum selection clauses are legal and binding; anyone seeking to set one aside bears a heavy burden of proof. Digital Enterprises Inc. v. Arch Telecom Inc., 95-30 (La.App. 5 Cir. 6/28/95), 658 So.2d 20. Such clauses are prima facie valid and should be enforced unless the resisting party clearly proves that enforcement would be unreasonable and unjust, that the clause arises from fraud or overreaching, or that enforcement would contravene a strong public policy of the forum where the suit is brought. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972); Pitts Inc. v. Ark-La Resources L.P., 30,867 (La.App. 2 Cir. 8/19/98), 717 So.2d 268.

DOTD correctly shows that by entering the general contract, which incorporated § 107.01, Blount agreed to institute in East Baton Rouge Parish “any litigation arising under or related to the contract.” The instant cross-claim, alleging breach of contract, is plainly regulated by § 107.01. To avoid the selection of East Baton Rouge Parish, Blount must show one of the exceptions mentioned above.

The public policy of Louisiana is expressed in its statutes and codes. Blount argues that under R.S. 48:256.8 A, DOTD (or any claimant) is ^required to file a concursus proceeding in the parish where the work was done, and under C.C.P. art. 4653 B, the action for concur-sus arising from any transaction affecting immovable property must be filed in the parish where the property is located. However, Blount’s cross-claim is not a con-cursus but a breach of contract claim. Requiring Blount to bring this claim in East Baton Rouge, pursuant to § 107.01, does not offend any strong public policy pertaining to eoncursus actions.

We have closely considered the application of La. C.C.P. art. 1034, under which “an objection of improper venue may not be urged if the principal action has been instituted in the proper venue.” This is a general code provision that conflicts with § 107.01. The issue is analogous to that presented in Town of Homer v. United Healthcare of La., supra. There, the Town of Homer, which operates Homer Memorial Hospital, entered a participation agreement with United Healthcare, an HMO, for the latter to provide healthcare to the hospital’s employees. The agreement included a clause providing that “proper venue for any legal action shall be in the Parish of East Baton Rouge.” Later, the town claimed that United Healthcare breached the agreement by failing to pay claims timely. It filed suit in Claiborne Parish, urging that venue was proper under La. C.C.P. art. 76, which provides that an action on a health and accident insurance policy may be brought in the parish where the insured is domiciled or in the parish where the accident or illness occurred. United Healthcare filed an exception of improper venue, relying on its forum selection clause. The district court denied the exception.

[7This court reversed and sustained the exception. We found that the forum selection clause was valid and mandatory, thus placing a heavy burden of proof on the town to show an exception. Id., at 6, 948 So.2d at 1167. In the absence of fraud, overreaching or unreasonableness, the only issue was whether the public policy expressed in Art. 76 overrode the forum selection. We found it did not: “[A]ll damage claims asserted by the hospital (whether labeled ‘breach of contract’ or allegedly based on assignments of benefits) arise under the Participation Agreement and are, therefore, subject to the forum selection clause.” Id., at 7, 948 So.2d at 1168. The same reasoning applies here. The mandatory terms of § 107.01 plainly supersede the general provisions of C.C.P. arts. 1034 and 4653 B, and of R.S. 48:256.8 A.

In so holding, we are cognizant of the competing policy interests. Blount correctly argues that the law disfavors a multiplicity of actions and piecemeal litigation. Blount is surely inconvenienced by having to participate in a eoncursus in Caddo Parish while simultaneously pursuing a contract claim in East Baton Rouge, both arising from the same project. However, § 107.01 is part of the contract, and Blount was fully aware of it from the outset. The fact that this later appears to be a “bad deal” for a party is no grounds to undermine the contract. Bonomo Builders Inc. v. Aztec Paving & Heavy Const., 38,236 (La.App. 2 Cir. 3/3/04), 867 So.2d 935, and citations therein. Equally, Case would be inconvenienced by the delays sure to result from converting its eoncursus action, a summary proceeding, into a contract claim, an ordinary action. The special eoncursus statute, R.S. |s48:256.8 A, is not designed to accommodate breach of contract claims between the general contractor and DOTD. Finally, we recognize the enormous benefit accruing to Blount from contracting with DOTD; this dwarfs the potential inconvenience of having to file breach of contract claims in East Baton Rouge.

In short, we do not find that § 107.01 resulted from fraud or overreaching, that enforcing it would be unreasonable or unjust, or that enforcement would contravene a strong public policy. The district court was legally wrong to deny DOTD’s exception of improper venue.

With this finding, we pretermit any consideration of whether Blount was a “claimant” or a “contractor” for purposes of R.S. 48:256.5 B. Regardless of its status, it cannot bring a breach of contract action, either as a principal or an incidental claim, against DOTD in Caddo Parish.

When an action is brought in a court of improper venue, an appellate court has the discretion to dismiss the action or, in the interest of justice, transfer it to a court of proper venue. La. C.C.P. art. 121; Town of Homer v. United Healthcare of La., supra. In the interest of justice, we direct Blount’s cross-claim to be severed from the principal action and transferred to the 19th Judicial District Court, East Baton Rouge Parish.

Conclusion

For the reasons expressed, we grant the writ and make it executory. We grant DOTD’s exception of improper venue as to Blount Brothers’ cross-claim, and order the cross-claim severed from the principal action and transferred to the 19th Judicial District Court, East Baton Rouge Parish. laAll costs are to be paid by the respondent, Blount Brothers Construction.

WRIT GRANTED AND MADE PEREMPTORY; EXCEPTION OF IMPROPER VENUE GRANTED; CROSS-CLAIM SEVERED AND TRANSFERRED TO 19th JUDICIAL DISTRICT COURT, EAST BATON ROUGE PARISH.


text:
    Larry G. CULP, Plaintiff-Appellant, v. Tonya Courson CULP, Defendant-Appellee.
    No. 42,239-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 20, 2007.
    Rehearing Denied Aug. 9, 2007.

      Sockrider, Bolin, Anglin, & Batte by D. Rex Anglin, Shreveport, Kenneth L. Harper, for Appellant.
    Hammonds & Sills by Linda K. Ewbank, Jon Guice, Baton Rouge, for Appellee.
    Before WILLIAMS, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

|! Defendant Larry G. Culp appeals the trial court’s grant of a protective order against him on the petition of his ex-wife, Tonya Courson (“Plaintiff’), on her behalf and on behalf of their minor child. According to Plaintiff, Defendant harassed her repeatedly culminating when Defendant “flung” his belt at both her and the child. After hearing testimony from both parties, the trial court granted several provisions of Plaintiffs requested protective order, denied others and, notably, did not alter Defendant’s visitation rights. From this judgment, Defendant appeals. For the reasons set forth below, we reverse.

FACTS

The parties divorced in 2001 and have one minor child. According to their court-ordered custody arrangement, the child lives with Plaintiff and Defendant has visitation rights. The parties have had strained and contentious interactions with each other. The main incident that preceded the petition for protective order was on October 14, 2006, when Defendant fetched a belt from his car and allegedly directed it at Plaintiff and then the child (“the belt incident”). Both parties gave different versions of this incident at the protective order hearing.

Defendant submitted that he arrived at Plaintiffs residence to pick up the six-year old child for his scheduled visitation on Friday, October 13, 2006. The child was in Plaintiffs car when Defendant pulled up. Plaintiff informed Defendant that the child did not wish to go with him for the 12visitation, at which point Defendant got the belt from his truck and “showed” it to the child from 20 feet away. According to Defendant, he then proceeded to put the belt on. He denied whipping it at either Plaintiff or the child. He asserts that, in fact, the child “died laughing” because Defendant had never whipped the child. After picking up the child and taking him to his car, Defendant testified that the child told him Plaintiff had promised to take the child to the store for a tape. Defendant claims this was a further attempt by Plaintiff to alienate him from his child and was the true reason the child was upset with leaving his mother’s residence.

Plaintiff submits a different version of the belt incident. She asserts that, when Defendant arrived at her home to pick up the child, she and the child were still in her car after having just arrived home. The child was reluctant to go with his father and bolted from her car to hide in the back yard. Defendant, in reaction, took a belt from Ms car and flung it at Plaintiff and then the child. She maintains they were closer than 20 feet. The trial court concluded that Defendant was 14 feet from Plaintiff during the belt incident.

As a result of this incident, on the following Tuesday, October 17, 2006, Plaintiff filed her petition seeking a protective order for both her and the child. She alleged that Defendant stalked them, threatened them with bodily harm, and threatened them with a weapon. She also included a lengthy description of the belt incident and other harassment she experienced. She sought a temporary restraining order prohibiting Defendant from abusing, harassing, stalking, following, or threatening her Rand her child; prohibiting him from any contact with her and the child; prohibiting him from going within 100 yards of her residence except to drive to his residence in the same subdivision; and ordering him not to damage any property of hers. In addition, she sought temporary custody of the child and a prohibition on Defendant interfering with that custody. She also requested that, if the protective order is granted, Defendant be ordered to seek professional counseling and to pay costs of court, attorney fees, evaluation fees, expert witness fees and any medical cost for her and the- child associated with the alleged abuse. Finally, she requested that Defendant undergo blood tests for steroids.

The hearing officer immediately issued a temporary restraining order (TRO) granting all of Plaintiffs requested prohibitions against Defendant. The hearing on whether the TRO should be converted to a protective order was scheduled for November 2, 2006. The hearing officer granted Plaintiffs motion for continuance, but reinstated Defendant’s visitation under the supervision of Defendant’s in-laws. The TRO remained in effect until the trial court issued its final order on November 9, 2006, after taMng testimony and evidence. Defendant had filed a motion seeking to dissolve the TRO, which was not heard until the . actual trial.

At the trial on the petition, the trial court confirmed that the hearing would not extend to a custody hearing of the child. At trial, over counsel for Defendant’s objection as irrelevant, the trial court allowed testimony from Leigh Anne Murry, Defendant’s former girlfriend. Ms. Murry denied that Defendant ever physically abused her or abused steroids. During her 1 ¿testimony, Plaintiff played a tape of a conversation between Ms. Murry and Plaintiff, which Plaintiff had secretly taped. In the excerpts played at the hearing, Ms. Murry told Plaintiff that Defendant used steroids, repeatedly called her, would lose his temper and had threatened one of her male friends. In her testimony, however, Ms. Murry minimized her comments stating that she exaggerated them because she had been mad at Defendant because he had recently broken up with her and that she had herself engaged in similar behavior directed at him. She also testified that Defendant had never threatened or hit her and had never seen him strike the child. She also testified that she had discovered that what she suspected were steroids were actually a different legal substance.

Plaintiff also played a taped phone conversation between the child and Plaintiff in which the child was “negotiating” between his parents. Defendant was demanding, through the child, that Plaintiff apologize for some undisclosed offense and agree that Defendant could pick up the child from school in return for Plaintiff being able to pick up the child that night. The child was with Defendant for visitation, including staying the night. Plaintiff secretly taped the phone call. Defendant’s counsel objected to both tapes as irrelevant and outside the scope of the pleadings.

The trial court gave extensive oral reasons for judgment in which it stressed that it was not altering the civil custody arrangement and that it would go back into effect the next day. It did not discuss the testimony or taped conversations of Ms. Murry. It further found that the belt incident did not constitute either a battery or an assault. The trial court did find, ^however, that the evidence supported a finding of harassment on the part of Defendant toward Plaintiff and the child. Particularly stressed by the trial court was the phone conversation in which the child was given the phone to negotiate for his father’s visitation. As a result, the trial court found that the statute entitled Plaintiff to a protective order. It carefully denied, however, all those requests for relief that affected custody or visitation matters and all those it found unsupported by the record.

The trial court, therefore, on the Louisiana Uniform Abuse Prevention Order, a standard form, granted a narrow range of prohibitions. The resulting protective order ordered Defendant not to abuse, harass, stalk, follow or threaten Plaintiff or the child. It ordered Defendant not to contact Plaintiff or the child with the handwritten notation “for purposes of harassment.” It further ordered Defendant not to go within 100 yards of Plaintiffs home, with the handwritten provision, “except to go by to and from his home or to exercise visitation rights by picking the child up and dropping him off.” The court ordered Defendant to pay court costs and $1,500 in attorney fees. From this judgment, Defendant appeals.

DISCUSSION

The trial court issued the TRO and final protective order under the Domestic Abuse Assistance Laws (D.A.A.) contained in both La. R.S. 46:2131, et seq., and Louisiana Children’s Code article 1564, et seq. At issue in the case sub judice is whether the record supports the finding of domestic abuse as defined by both statutes. While worded slightly differently, the source of the definition of domestic abuse in La. Ch. C. |fiart. 1565 is taken directly from La. R.S. 46:2131. Comments to La. Ch. C. Art. 1565. We, therefore, discuss the two sources of authority for the TRO and protective order together.

We review domestic protective orders for abuse of discretion. Rouyea v. Rouyea, 00-2613 (La.App. 1st Cir.3/28/01), 808 So.2d 558. La. R.S. 46:2131, et seq., provides protection in the form of TROs and protective orders for persons subject to domestic abuse. Domestic abuse is further defined by La. R.S. 46:2132(3), in pertinent part, as:

includes, but is not limited to physical or sexual abuse, and any offense against the person as defined in the Criminal Code of Louisiana, except negligent injury and defamation committed by one family or household member against another.

Family arguments that do not rise to the threshold of physical or sexual abuse of violations of the criminal code are not in the ambit of the Domestic Abuse Assistance Law. Rouyea, supra; Harper v. Harper, 537 So.2d 282 (La.App. 4th Cir.1988).

Plaintiff emphasizes that the definition uses the phrase “includes, but is not limited to” and argues that this language expands the scope of domestic abuse to include general harassment. We disagree. We are mindful that the courts could quickly be overwhelmed if every unpleasant child custody exchange or contentious relationship between former spouses warranted a TRO or protective order. The kind of parent bickering and child manipulation that the record reflects occurring between the parents in |7the case sub ju-dice is simply beyond the scope of this statute. La. R.S. 46:2131 emphasizes that the purpose of the statute is to equalize the treatment of crimes between family members and those between strangers. It further emphasizes the need to protect victims from violent behavior. Those purposes reflect that the D.A.A. has a limited reach. We cannot agree, therefore, that the statute embodies Plaintiffs claims of general harassment by Defendant, nor do the Defendant’s actions as contained in the record constitute an offense against a person as defined by the Criminal Code.

The only incident complained of that arguably falls within the scope of the D.A.A. is the belt incident discussed above. The trial court found that the belt incident constituted neither battery nor assault. We cannot say the trial court abused its discretion in so finding. Accordingly, we find that the record contains insufficient evidence of domestic abuse under the D.A.A. and, therefore, that the trial court abused its discretion in ordering a TRO and protective order against Defendant. We decline to award Defendant attorney fees under La. C.C.P. art. 3608.

CONCLUSION

For the reasons set forth above, the protective order issued against Defendant, Larry G. Culp, is reversed. The request of Defendant for attorney fees is denied. Costs of this appeal are assessed to Plaintiff.

REVERSED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, CARAWAY, PEATROSS and DREW, JJ.

Rehearing denied.

DREW, J., would grant rehearing.

      . The docket is styled under the name "Tonya Courson Culp” because the protective order proceedings were filed into the parties’ divorce proceedings styled “Culp v. Culp." In her briefing, however, Plaintiff goes by Tonya Courson.

      . Article 1565(1) of the Children’s Code defines domestic abuse as, "includes but is not limited to physical or sexual abuse and any offense against the person as defined in Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950, except negligent injury and defamation, committed by one family or household member against another.”