source: Caselaw Access Project

author: THIBODEAUX, Chief Judge. CHATELAIN, Judge,

license: Public Domain

text:
    Aleashia CLARKSTON v. Ike FUNDERBURK
    16-681
    Court of Appeal of Louisiana, Third Circuit.
    02/01/2017

      J. Arthur Smith, III, Smith Law Firm, 830 North Street, Baton Rouge, LA 70802, Telephone: (225) 383-7716, COUNSEL FOR: Plaintiff/Appellant—Aleashia Clark-ston
    James H. Gibson, Allen & Gooch, P. 0. Box 81129, Lafayette, LA 70598-1129, Telephone: (337) 291-1300, COUNSEL FOR: Defendant/Appellee—Ike Funder-burk
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and David E. Chatelain , Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   THIBODEAUX, Chief Judge.

|/The plaintiff-appellant, Aleashia Clark-ston, appeals the trial court’s judgment dismissing her legal malpractice suit against the defendant-appellee, Ike Fun-derburk, for failure to post bond as security for costs. Finding no abuse of discretion in the trial court’s judgment, we affirm.

I.

ISSUES

We must decide:

(1) whether the trial court abused its discretion in requiring the plaintiff to post bond as security for costs in this case; and
(2) whether the trial court erred in dismissing the defendant when the plaintiff failed to post the bond.

II.

FACTS AND PROCEDURAL HISTORY

Ms. Clarkston was a teacher with the Iberia Parish School Board. She had been on a medical leave of absence since September 2012, when, in April 2013, she was terminated by the school board on the basis of abuse of leave policy. Ms. Clark-ston asserts that she was wrongfully terminated, denied due process as a tenured employee, and publicly defamed. Attorney Ike Funderburk was contracted through the Louisiana Association of Educators (LAE) to represent Ms. Clarkston in her case against the school board. Approximately fourteen months later, Mr. Funder-burk informed Ms. Clarkston that he was no longer affiliated with LAE and, thus, no longer representing her in her case against Iberia Parish School Board.

| ¡.LAE assigned another attorney to the case. Ms. Clarkston learned that a suit had never been filed on her behalf against Iberia Parish School Board and that her claims against the school board had prescribed in April 2014. Filing as a pro se plaintiff, Ms. Clarkston filed a legal malpractice suit against Mr. Funderburk for his failure to file suit on her behalf against the school board.

Mr. Funderburk responded with a motion to set bond as security for his litigation costs, pursuant to La.R.S. 13:4522. He then answered the suit asserting that Ms. Clarkston’s rights had been waived before he became involved in her representation. He further asserted that he informed Ms. Clarkston of the waiver and that nothing could be done for her.

Following an October 26, 2015 hearing on the motion to fix bond, the trial court entered judgment setting the security bond for the requested amount of $10,000.00, to be paid within forty-five days from the October 26 hearing date. Ms. Clarkston did not file an opposition to the motion to fix bond or challenge the necessity for the bond. By ex-parte motion, Ms. Clarkston sought a thirty-day extension of time to post the bond, due to financial hardship. The trial court granted the extension. In January 2016, Mr. Fun-derburk filed a motion to dismiss the suit against him due to the plaintiffs failure to post the bond set by the court.

Following a February 22, 2016 hearing on the motion to dismiss, the trial court entered judgment in favor of Mr. Funder-burk, dismissing Ms. Clarkston’s suit due to her failure to post the required bond.

Ms. Clarkston enrolled new counsel, who filed a motion for devolutive appeal from the February judgment dismissing her suit.

IsCounsel for Ms. Clarkston filed an ex parte motion to proceed on appeal in for-ma pauperis. The motion on behalf of Ms. Clarkston sought “to exercise the privilege granted pursuant to La.C.C.P. art. 5181.”

On appeal, Ms. Clarkston asserts that the trial court erred in requiring her to post the bond, and in dismissing her suit for failure to post the bond. She argues that the dismissal should be vacated because she was “subsequently permitted to proceed in forma pauperis.” She further raises the issue that requiring her, as a pauper, to post bond, “has and will deny her access to the courts in violation of her due process rights and her rights guaranteed by La.Const. art. I, § 22.” For the following reasons, we affirm the judgment of the trial court.

III.

STANDARDS OF REVIEW

The trial court has the discretion to determine both the necessity for posting a bond to secure the cost of litigation and for fixing the amount of the bond for costs. Whitson v. American Ice Co., 164 La. 283, 113 So. 849 (1927). Accordingly, those matters are reviewed under an abuse of discretion standard of review. Questions of law, such as the proper interpretation of a statute, are reviewed by the appellate court under the de novo standard of review. Land v. Vidrine, 10-1342 (La. 3/15/11), 62 So.3d 36 (citations omitted). Thus, in this case, we apply the de novo standard of review to the trial court’s dismissal of the plaintiffs case under the governing statute.

Ji.IV.

LAW AND DISCUSSION

La.R.S. 13:4522 and Security For Costs

The governing statute in this case is La.R.S. 13:4522. It is found in Louisiana Revised Statutes, under Title Thirteen, “Courts and Judicial Procedure,” and Chapter Twenty-Eight, “Costs.” Louisiana Revised Statutes 13:4522 is entitled, “Defendant may demand security for costs,” and it states as follows (emphasis added):

The defendant before pleading in all cases may by motion demand and require the plaintiff or intervenor to give security for the cost in such case, and on failure to do so within the time fixed by the court such suit or intervention, as the case may be, shall be dismissed without prejudice. This section shall not apply to the Parish of Orleans and to cases brought in forma pauperis, nor to the state or any political subdivision thereof.

While the appellant argues that the statute does not apply to paupers, the operative word in the statute is that it does not apply to cases “brought” in forma pauper-is. Throughout two hearings and the passage of several months, Ms. Clarkston never sought to apply for pauper status. She did not file for pauper status until four months after her suit was dismissed, and that filing was for purposes of her appeal. Louisiana Revised Statutes 13:4533 states: “The costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.” The advance posting of a bond, “secures the payment of those expenses incurred by the defendant in defense of the suit which may be taxed as court costs and which the plaintiff may finally be condemned to pay. Among these costs are ... the fees of | .^expert witnesses and the costs of taking their depositions, when necessary.” Carter v. Phillips, 337 So.2d 187 (La.1976) (citing Whitson, 164 La. 283, 113 So. 849).

In this case, the defendant’s motion for bond was filed and timestamped by the clerk of court a few minutes before the filing of the defendant’s answer to the suit. At oral argument, the question arose as to whether this almost contemporaneous filing of the motion for bond, along with the answer, satisfied the first sentence of La. R.S. 13:4522, which states that “before pleading” the defendant may require the plaintiff to post bond for costs. In response, the defendant points out, and the record confirms, that (1) the timeliness of the filing was never objected to in the trial court; and (2) the issue of timing was not raised in the appeal nor assigned as error in the appellant’s brief. Pursuant to Uniform Rules, Courts of Appeal, Rule 1-3, if the issue is not raised in the trial court and assigned as error and briefed on appeal, we are not required to address it on appeal. Notwithstanding, under the same Uniform Rule, we may consider such issue if justice clearly requires it. In this case, we do not find that justice requires the invocation of the exception over the general precept of Rule 1-3 where timeliness was not raised at trial, nor in the appellate brief.

| rrNecessity for Bond

It has been well-settled since Whit-son, 164 La. 283, 113 So. 849, that the defendant bears the burden under the statute of showing how large a bond is necessary to protect him. Ms. Clarkston contends on appeal that the trial court erred in ordering her to post a bond for costs because Mr. Funderburk did not meet his burden of showing the necessity for a bond in this case. Mr. Funderburk points out that Ms. Clarkston did not challenge the necessity for the bond in the trial court. This is true. However, where Ms. Clarkston was appearing pro se, and where she now raises a fundamental issue on the burden of proof, and where justice to both parties will be served by this review, we will address the issue. The record here reveals that Mr. Funderburk did support his motion requesting bond by showing multiple, specific reasons that a bond was needed in this case. Mr. Funderburk’s motion stated:

In the instant matter, Plaintiffs causes of action and damages prove the need for a legal expert to establish the standard of care required of Funderburk as well as causation, an expert in teacher tenure and wrongful discharge of tenured educators, and potentially an economist for evaluation of damages. A conservative estimate for the cost of a legal expert alone ranges from $10,000 to $15,000 through discovery and trial.
Moreover, retaining the experts is only the tip of the proverbial litigation iceberg. Once the experts are retained and opinions secured, discovery and/or trial depositions will be taken. The experts will testify at trial. Given this Honorable Court’s extensive experience in taxing costs of litigation, a conservative estimate of the costs of the expert retention and discovery alone exceeds $10,000. Thus, Funderburk respectfully requests that Plaintiff be required to post a $10,000 bond.

17Mr. Funderburk supported his motion and memorandum in the trial court with a citation to MB Industries, LLC v. CNA Ins. Co., 11-303 (La. 10/25/11), 74 So.3d 1173, which states:

In order to establish a valid legal malpractice claim, MBI must show evidence sufficient to convince a reasonable trier of fact of (1) the existence of an attorney-client relationship; (2) negligent representation by the attorney; and (3) loss caused by that negligence. Teague v. St. Paul Fire and Marine Ins. Co., 07-1384 (La. 2/1/08), 974 So.2d 1266, 1272. MBI has the burden of proving the defendant failed to “exercise at least that degree of care, skill, and diligence which is exercised by prudent practicing attorneys in his locality.” Ramp v. St. Paul Fire and Marine Ins. Co., 263 La. 774, 269 So.2d 239, 244 (1972). Typically, a plaintiff will retain an expert witness both to establish the standard of care for prudent attorneys in the relevant locality and to show the defendant’s actions fell below the standard of care. See Sunset Ins. Co. v. Gomila, 02-633 (La.App. 5 Cir. 12/30/02), 834 So.2d 654, 657; Morgan v. Campbell, Campbell & Johnson, 561 So.2d 926, 929 (La.App. 2 Cir.1990).

Id. at 1184.

The MB court explained that, “because MBI did not introduce any competent expert witness testimony or affidavit, summary judgment for the defendants is proper unless the undisputed facts establish malpractice which was so obvious that a lay person would recognize it as falling beneath the necessary standard of care.” Id. at 1185. Such was not the ease in MB, nor is it the case in the matter before us. In assessing the need for an expert, the MB court stated that vague allegations were not sufficient to prove malpractice:

MBI makes no attempt to explain how this alleged additional testimony or evidence could have changed the outcome of the case. And again, this is precisely the kind of allegation which requires expert testimony to establish whether Durio’s actions fell beneath the applicable standard of care. Without the assistance of an expert, a lay jury would have no basis for deciding whether the | «decision to call a particular witness or introduce a certain document was within the standard of care for a reasonably competent attorney in the Lafayette area.

Id. at 1186 (footnote omitted).

In discussing the loss of a box of documents without making copies as one act by the attorney that was “negligent under any standard,” the MB court then underscored the third element of proof in legal malpractice cases, an unfavorable outcome “caused” by the negligence. This means proving not just negligence, but also proving that the ultimate outcome would have been in favor of, rather than against, the plaintiff but for the negligent act or omission by the plaintiffs attorney:

[I]t is not enough to simply show Durio acted negligently. MBI must also introduce evidence of causation. Although this Court disavowed the “case within a case” doctrine in Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So.2d 1109, 1110 (La.1982), we reiterated that causation “is an essential element of any tort claim.” At the very least, MBI must establish some causal connection between the alleged negligence and the eventual unfavorable outcome of the litigation. Id. It has not done so.

MB, 74 So.3d at 1187.

In the present case, at the hearing on the motion to set bond, Mr. Funderburk’s attorney explained to the court that by the time Ms. Clarkston’s case reached Mr. Funderburk, her rights had already been waived by two events that occurred with the school board. He further explained that her case arose during a time that the laws changed limiting the lights of teachers to challenge the actions of the school board. This was a reference to tenure law. Mr. Funderburk’s counsel also informed the court that the applicable law involved constitutional issues as well. In brief, Mr. Funderburk cited the necessity for a legal malpractice expert, a Rtenure law expert, and possibly an economist to assess the loss of income. At the hearing he argued that the amount of $10,000.00 for opinions, depositions, and testimony from pre-trial through trial was on the low side. Ms. Clarkston had not filed an opposition to the motion. Thus, the trial court specifically asked Ms. Clarkston whether she understood what was being asked for, why it was being requested, under what authority it was requested, and whether she had anything further to tell the court. This colloquy followed:

THE COURT: I don’t mean to interrupt you. But, for today, did you get a copy of Mr. Gibson’s memorandum?
MS. CLARKSTON: Yes, I did.
THE COURT: All right. And he’s asking for a bond to be set. You understand that?
MS. CLARKSTON: Yes
THE COURT: And there is a codal article that is cited. Did you read that?
MS. CLARKSTON: Yes, I did.
THE COURT: All right. And you understand that they have by law and under that code, codal article, to ask for the bond that he’s requesting, ten thousand dollars ($10,000.00), to be set by this Court in order to proceed with litigation. Do you understand that?
MS. CLARKSTON: Yes.
THE COURT: Do you have any questions in regards to that?
MS. CLARKSTON: No, I don’t.
THE COURT: Do you have anything further that you want the Court to know at this time.
MS. CLARKSTON: No. I just feel ten thousand dollars ($10,000.00) is a substantial amount of monies for me to have to come up with to work—just to hear my case, have it litigated.

|inBased upon the motion to fix bond, supporting memoranda, and oral arguments at the hearing, and upon finding that the bond request was reasonable, the trial court granted Mr. Funderburk’s motion and set the deadline for posting the bond at forty-five days. Ms. Clarkston, an educator, stated that she had read the statute which clearly states that the bond requirement did not apply to those bringing suit as a pauper. Yet, she failed to apply for pauper status and did nothing during the six weeks given for posting the bond, or during the thirty additional days that she received on her request for an extension, to improve her position.

Regarding the showing of necessity for posting bond, the supreme court in Carter agreed that it was “within the discretion of the trial judge to determine whether the showing required may be made by the allegations in the motion, supporting affidavits, the arguments of counsel at the hearing, introduction of evidence, or in any other manner which the trial judge deems appropriate.” Id. at 189. In Carter, the court found an abuse of discretion where the trial court had granted a doctor’s request for bond to cover the depositions of five medical experts. Such is not the case here, where Mr. Funderburk reasonably requested a bond to cover possibly three experts from three different disciplines: legal standard of care, teacher tenure and wrongful discharge, and possibly an economist to evaluate loss of earnings.

Ms. Clarkston has cited various cases including Watkins v. Sheppard, 278 So.2d 890 (La.App. 1 Cir. 1973), where the courts found that no expert was |nrequired for litigating “obvious” acts of negligence. Here, however, the issues are more complex, as our brethren of the fourth circuit comprehensively stated almost thirty years ago:

The [plaintiffs] argue that the trial court is familiar with standards of care by attorneys in the local community and, therefore, expert testimony is not necessary in this case. We do not agree. The Supreme Court, in dicta, has indicated that it would find legal malpractice in the absence of expert testimony when an attorney ignores an “obvious” legal problem. See Ramp, 269 So.2d at 244. The First Circuit also has indicated that there may be some cases in which the trial court’s own knowledge of the standards of care by an attorney in the local community may substitute for expert testimony. See Watkins v. Sheppard, 278 So.2d 890, 892 (La.App. 1st Cir.1973) and Muse v. St Paul Fire and Marine Ins. Co., 328 So.2d 698, 702 (La.App. 1st Cir.1976) (following Watkins). However, neither Ramp, Watkins, nor Muse supports the proposition that expert testimony is never required in any legal malpractice case. With the complexity and diversity of contemporary law, litigation, and legal practice, it should not be surprising to find legal malpractice cases in which expert testimony as to the standard of care is essential. This is such a case.

Houillon v. Powers and Nass, 530 So.2d 680, 682 (La.App. 4 Cir. 1988). The cases cited in Houillon above are among those cited by Ms. Clarkston here.

We find no abuse of discretion in the trial court’s granting of the defendant’s motion for the posting of bond.

Governing Statutes and Their Applicability to Paupers

Citing La.Code Civ.P. art. 5181, Ms. Clarkston further argues that La.R.S. 13:4522 does not require the advance posting of bond in the case of paupers. Article 5181, entitled “Privilege of litigating without prior payment of costs,” states that “an individual who is unable to pay the costs of court because of his poverty and lack of means may prosecute or defend a judicial proceeding in|12any trial or appellate court without paying the costs in advance or as they accrue or furnishing security therefor.” However, as pointed out by Mr. Fun-derburk, this exception for pauper status is a privilege, not a right, and it must be applied for. We must agree, as the title itself to La.Code Civ.P. art. 5181 states that it is a privilege. Likewise, the plaintiffs own petition for pauper status sought “to exercise the privilege granted pursuant to La.C.C.P. art. 5181.”

Here, we find that the most factually and legally analogous case is Harrison v. Minardi, 07-514 (La.App. 3 Cir. 10/31/07), 968 So.2d 1221. There, like Ms. Clarkston in this case, the plaintiff-appellant did not seek pauper status until after the deadline for posting bond had passed. Consequently, a panel of this court found no error in the trial court’s dismissal of the defendant physician in that medical malpractice case. Id. In Harrison, the court stated as follows:

The Code of Civil Procedure provides a procedure for one who cannot afford to pay court costs to prosecute litigation without paying court costs in advance. La. Code Civ.P. arts. 5181-5188. This is a privilege, not a right, and one seeking to take advantage of this privilege must apply for permission to do so and must submit specific documentation. La.Code Civ.P. art. 5183. The request to exercise this privilege can be made in the applicant’s first pleading or later in an ex parte motion. Id. The grant of this privilege is within the trial court’s discretion, and denial of the privilege can be reversed only if the trial court abused its discretion.

Id. at 1224.

Here, as in Harrison, Ms. Clarkston did not apply for pauper status until after dismissal of her suit, and the grant of pauper status does not operate retroactively under such facts. Had she applied before the bond was set and given Mr. Fun-derburk the opportunity to traverse her proof of poverty, pursuant to |iaLa.Code Civ.P. art. 5184, the trial court would have had the discretion to grant her request at that time. In this case, Ms, Clarkston failed to make the application even while asserting to the trial court that she had read and understood La.R.S. 13:4522, which states in the last, sentence that it does not apply to suits brought under pauper status. The trial court subsequently granted Ms. Clarkston pauper status when she applied for it on the appeal, but nothing in the statute provides for retroactive effect of a status not previously sought or documented.

When Ms. Clarkston failed to post the bond pursuant to the order setting the forty-five-day deadline, Mr. Funderburk moved for a dismissal. In February 2016, four months after the order to post bond in October 2015, a hearing was held on the motion to dismiss. At the February 2016 hearing, Ms. Clarkston stated that she had filed for an extension of time on the bond, which the court located in the record. The request for a thirty-day extension had been granted in December 2015; but, as the court pointed out, they were now in February 2016, and no bond had been posted. Stating that the law was dear, the trial court then granted the motion to dismiss.

Louisiana Revised Statutes 13:4522 provides that upon a plaintiffs failure to give security for costs within the time fixed by the court, the suit “shall lube dismissed without prejudice.” Thus, while the trial court has discretion in determining whether a bond is necessary, and in fixing the amount of the bond, once the order to post bond is issued and the amount is set, and no bond is forthcoming, the trial court is required under the statute to dismiss the plaintiffs action. In reviewing this legal question de novo, we find no error on the part of the trial court which followed the statute’s mandate and dismissed Ms. Clarkston’s suit.

Constitutionality Issue

In the alternative, Ms. Clarkston argues for the first time on appeal that because she was a pauper, requiring her to post bond denied her access to the courts in violation of due process rights guaranteed by La.Const. art. 1, § 22. However, she did not raise the issue of constitutionality in the trial court, and we cannot address it now. “The uneonstitutionality of a statute is not properly before an appellate court unless it was specifically pled in the trial court, and the grounds for the claim were particularized.” Harrison, 968 So.2d at 1224 (citing M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-450 (La. 4/27/07), 956 So.2d 573). At oral argument, the plaintiffs attorney contended that his argument of uneonstitutionality of La.R.S. 13:4522 was on an “as applied” basis, not upon the uneonstitutionality of the statute itself. However, this does not change the requirement that the issue be raised in the court below.

The Louisiana Supreme Court addressed this issue in State v. Overstreet, 12-1854 (La. 3/19/13), 111 So.3d 308. There, the trial court’s judgment, declaring two criminal statutes “unconstitutional as applied to a | ^defendant judged not guilty by reason of insanity,” was reversed. Id. at 317. The court stated as follows:

The state in the present case contends that respondent has not sufficiently particularized the grounds of his claim that the statutory provision requiring sex offender registration is unconstitutional. The state’s contention has merit. This Court has expressed the challenger’s burden as a three-step process. First, a party must raise the uneonstitutionality in the trial court; second, the unconstitutionality of a statute must be specially pleaded; and third, the grounds outlining the basis of uneonstitutionality must be particularized. Further, a district court may not sua sponte rule that a statute is unconstitutional, nor can it declare a statute unconstitutional on grounds other than those asserted by a movant.
At best, respondent merely claimed the law was “arbitrary, capricious and makes no sense” because he was not convicted of a crime, but instead pled not guilty by reason of insanity. He seemed to be claiming an equal protection violation, but never explained the basis of that claimed violation. As a result of this lack of particularization, the state was afforded insufficient opportunity to brief and argue in response.

Overstreet, 111 So.3d at 316-17. See also State v. Heard, 15-873 (La.App. 3 Cir. 4/6/16), — So.3d —, 2016 WL 1358289. Accordingly, in this case as well, the due process issue is not properly before us, even on an “as applied” basis.

V.

CONCLUSION

Based upon the foregoing, we affirm the judgment of the trial court dismissing Ms. Clarkston’s suit. Under “Cross References” La.R.S. 13:4531 states that an “appellate court may tax costs as deemed equitable, see C.C.P. art. 2164.” Because we are affirming the trial court’s dismissal in favor of the defendant-appellee, Ike Funderburk, all costs of this appeal are assessed to the plaintiffH ^appellant, Aleas-hia Clarkston. Because Ms. Clarkston finally obtained pauper status for this appeal, relieving her from having to post bond for costs in advance, that does not relieve her from the requirement to pay all costs which are taxed against her. See Ardoin v. Swint, 315 So.2d 839 (La.App. 3 Cir. 1975).

AFFIRMED.

CHATELAIN, J., concurs and assigns additional reasons.

CHATELAIN, Judge,

concurring for additional reasons.

11Although at the end of the day I concur in the opinion of the court, I nevertheless write separately to discuss self-representation and its effect on the requisite impartiality of the trial court.

It appears that the self-represented litigant is a growing concern in Louisiana. Initially, I note the Louisiana District Judges Association Self-Represented Litigation Subcommittee proposed changes to Louisiana Judicial Canon 3(A)(4), the adjudicative responsibilities of the trial judge. Effective March 18, 2013, the Louisiana Supreme Court approved amendments to Canon 3(A)(4) to provide, in pertinent part, “A judge may make reasonable efforts, consistent with the law and court rules, to facilitate the abilities of all litigants, including self-represented litigants, to be fairly heard, provided, however, that in so doing, a judge 1 {.should not give self-represented litigants an unfair advantage or create an appearance of partiality to the reasonable person.”

More importantly, in an attempt to address the challenges the self-represented litigant presents to the trial court, Canon 3(A)(4) now has a commentary which states:

Steps judges may consider in facilitating the right of self-represented litigants to be heard, and which (they might find) are consistent with these principles include, but are not limited to:
(1) making referrals to any resources available to assist the litigant in preparation of the case;
(2) providing brief information about the proceeding and evidentiary and foundational requirements;
(3) asking neutral questions to elicit or clarify information;
(4) attempting to make legal concepts understandable by minimizing use of legal jargon; and
(5) explaining the basis for a ruling.

Nevertheless, as in so many other instances, it is in the application of these standards that difficulties arise. From the outset, as evident in this case, the legislature has incorporated legal jargon in La. R.S. 13:4522. In particular, the statute is made inapplicable “to cases brought in for-ma pauperis.” Although “in forma pauper-is” may be a term of art easily understandable within the legal community, the same may not be [ ¡¡true among the general populace. Alone this may be problematic. However, when read in conjunction with Canon 3 it becomes even more so for the trial judge who is required to be impartial, but who is permitted “to facilitate the abilities of all litigants, including self-represented litigants.” The facts of the present case highlight that problem.

As the opinion of this court shows, the trial judge questioned the self-represented litigant during the hearing on the defendant’s demand for security for costs. The trial judge asked the self-represented litigant: (1) if she’d received the defendant’s memorandum; (2) if she understood that the defendant was asking that a bond for cost be set; (3) if she’d read the codal article cited in support of the bond for cost; (4) if she understood that she was being asked to post a $10,000.00 bond in order to proceed with the litigation. Although she responded “yes” to the trial judge’s questions, she opined the bond amount was substantial for her to provide.

Under the facts of the case now before us, see n. 1, supra, I respectfully suggest that to require the trial judge in the present case to have explained the term “in forma pauperis” and all that entailed, would have caused the trial judge to suggest a defense to the defendant’s motion. Such a position, in my view, would have placed the trial judge in an untenable position, one that Canon 3 guards against.

|4I suggest there are avenues available to ameliorate this seemingly growing concern. At the heart of this solution are means that provide a buffer between the trial judge and the self-represented litigant. Two such examples include: (1) the Pro Se Manual of this court which is intended to assist non-attorneys in the appellate and supervisory writ process; and (2) self-help guides such as that the 9th Judicial District Court developed on its web site to refer self-represented individuals to resources that may assist them. However, to have these resources available is but the first step. Notwithstanding the availability of these resources, it seems crucial that the dissemination of such information to the self-represented litigant from the very inception of litigation is essential to further the search for justice and foster the impartiality of the trial judge. To do otherwise keeps valuable information hidden from the self-represented litigant, thwarts justice, and places an undue burden on trial judges.

For these reasons, I respectfully concur.

      . Uniform Rules, Courts of Appeal, Rule 1-3, entitled “Scope of Review,” states:
      The scope of review in all cases within the appellate and supervisory jurisdiction of the Courts of Appeal shall be as provided by LSA-Const. Art. 5, § 10(B), and as otherwise provided by law. The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.

      . Ms. Clarkston cited an auto accident, health problems, and injuries to her daughter as intervening events affecting her situation. At the hearing on the motion to fix bond, she argued that Mr. Funderburk was working on her case for a year before he withdrew, but failed to file her case during that time. Mr. Funderburk’s attorney briefly responded that they took issue with most of her assertions, then stated, "■—I knew she was going to talk. I mean, with the school board, she was on a reality show, Super Nanny, and that’s why it all started way before Ike got involved.”

      . A. An adverse party or the clerk of the court in which the litigation is pending may traverse the facts alleged in the affidavits of poverty, and the right of the applicant to exercise the privilege granted in this Chapter, by a pile against him to show cause why the order of court permitting him to litigate, or to continue the litigation, without paying the costs in advance, or as they accrue, or furnishing security therefor, should not be rescinded. However, only one rule to traverse the affidavit of poverty shall be allowed, whether the rule is filed by an adverse party or the clerk of court,
      B, The court shall rescind its order if, on the trial of the rule to traverse, it finds that the litigant is not entitled to exercise the privilege granted in this Chapter.
      La.Code Civ.P. art. 5184.

      . The record shows this self-represented litigant is educated; she is in fact an educator; she was legally astute enough to enter a preliminary default in this matter; she also filed a motion for an extension of time within which to post her bond for costs; and she shows some familiarity with legalese for at one point she filed a pleading "pro se.”

      . As later described infra, there exists a large variety of resources in Louisiana to aid the self-represented litigants. To me this speaks volumes to the existence of this growing class of litigants.

      .Courts have held pro-se litigants assume responsibility for their lack of knowledge of the law. Food Perfect, Inc. v. United Fire & Cas. Co., 2012-2492 (La. 1/18/13), 106 So.3d 107, 108. See also Ledbetter v. Wheeler, 31,357 (La.App. 2 Cir. 12/9/98), 722 So.2d 382, 384 ("[a]lthough we concede that Ledbetter, as a layperson, was representing himself, a prose litigant assumes all responsibility for his own inadequacies and lack of knowledge of procedural and substantive law.”)

      . Among those resources enumerated are: (1) a brochure "Representing Yourself in Court” produced by the LSBA Access to Justice Pro Se Subcommittee; (2) Resources for Self-Represented Litigants developed by the Law Library of Louisiana; (3) legal information and assistance via telephone provided by the Louisiana Civil Justice Center; and (4) online legal information gathered at Louisiana La-wHelp.


author: AMY, Judge.

text:
    STATE of Louisiana v. Alex HAYES
    16-783
    16-784
    Court of Appeal of Louisiana, Third Circuit.
    02/01/2017
    Adrienne E. Aucoin, Department of Public Safety and Corrections, Office of State Police, Post Office Box 66614, Baton Rouge, LA 70896-6614, (225) 925-6177, COUNSEL FOR APPELLANT: State of Louisiana
    Alex Hayes, 5106 Westwood Pines Drive, Katy, TX 77449, IN PROPER PERSON
    Court composed of Marc T. Amy, D. Kent Savoie, and Van Hardin Kyzar, Judges.
   AMY, Judge.

|TThe State of Louisiana, Department of Public Safety and Corrections, objected after the movant sought to expunge the records of two separate arrests and convictions. Following a hearing, the trial court rejected the State’s contention that La. Code Crim.P. art. 978(D) permits the ex-pungement of only one record of arrest and conviction. The trial court thereafter ordered the expungements as requested by the mover. The State appeals. For the following reasons, and in each of the consolidated matters, we reverse the order of expungement, reverse the overruling of the State’s objection to the motion for expungement, and remand for further proceedings.

Factual and Procedural Background

In April 2016, Alex Hayes filed a Motion for Expungement, seeking to expunge the record of his arrest and conviction for illegal possession of stolen things, a violation of La.R.S. 14:69. Mr. Hayes represented therein that the arrest occurred in 1989, that the arrest resulted in a felony conviction, and that “[m]ore than 10 years have passed since completion] of sentence.” See La.Code Crim.P. art. 978(A)(2) .

| ¡.Mr. Hayes further filed a separate Motion for Expungement, seeking to expunge the record of his arrest and conviction for possession of cocaine, a violation of La.R.S. 40:967. As in the companion filing, Mr. Hayes indicated that he was convicted of the charged offense, and again that more than 10 years had passed since the completion of the sentence for that conviction.

In support of each motion, Mr. Hayes provided documentation from the District Attorney of the Twelfth Judicial District representing that he had “not had any other criminal case” with that office other than the two arrest dates. Mr. Hayes also filed an Affidavit of Response, whereby the District Attorney and the Avoyelles Parish Sheriffs Office indicated “No Opposition. Respondent respectfully consents to waiver of the contradictory hearing.”

Thereafter, the trial court granted both motions for expungement, doing so by separate orders. However, the State of Louisiana, through the Department of Public Safety and Corrections, Public Safety Services, Office of State Police, Bureau of Criminal Identification and Information, filed a Motion to Vacate Order to Expunge and Objection to Motion for Expungement in response to each matter. By those motions, the State noted that it was not served with the motions for expungement and, in turn, did not file an Affidavit of No Opposition. See La.Code Crim.P. art. 979. Thus, the State requested that the orders of expungement be vacated.

IsThe State additionally objected to the motions, noting that La.Code Crim.P. art. 978(D) provides that: “Expungement of a record of arrest and conviction of a felony offense shall occur only once with respect to any person during a fifteen-year period.” The State maintained that, per this wording, Mr. Hayes “is not eligible to have the record of his felony arrest and conviction in both Docket No. 65,554 and 70,689 expunged as his convictions in those matters arose from separate dates of arrest and are separate felony convictions.” The State suggested that, in the event that the motion for expungement “be granted in Docket No. 70,689 [pertaining to the arrest and felony conviction for possession of cocaine],” it would object to expungement of the record of the arrest and felony conviction in “Docket No. 65,554 [pertaining to illegal possession of stolen things.]” In particular, it noted that “fifteen years would not have elapsed since the granting of the expungement in Docket No. 70,689.” The State filed a similar, but converse opposition in the companion case.

The transcript of the resulting hearing, conducted on both docket numbers, indicates that the trial court reported that “by consent the previous order of expungement will be vacated” before the parties addressed the State’s objection to the motions for expungement. The State repeated the argument lodged in its brief, reiterating its assertion that La.Code Crim.P. art. 978(D) allows a person to “only receive an expungement once every fifteen years for a record of a felony arrest and conviction” and that “Mr. Hayes was arrested on two separate dates and he [was] found guilty or pled guilty to both Possession of Cocaine and Possession of Illegal Things on two separate dates.” It continued that: “These are two separate records of arrest and conviction, and he is only eligible by law to one.” The State asserted Lthat the records of the remaining arrest and conviction would not be eligible for expungement until fifteen years after the signing of the first order.

In response, counsel for Mr. Hayes remarked upon La.Code Crim.P. art. 978’s August 2014 enactment. Counsel suggested that, because an expungement does not result in destruction of the actual record, but rather allows its removal from public access, the State had no interest in “preventing an expungement of two minor felonies that are over 25 years old, using a law that says you’ve got to wait fifteen years in between and do one at a time[.]” Counsel for Mr. Hayes further referenced the legislative findings included within Louisiana Code of Criminal Procedure Title XXXIV, addressed below, and suggested that the intent of the enactment was to assist individuals in obtaining gainful employment. He remarked that he “fail[ed] to see how any purpose is served by saying if you’ve got two little felonies that are over twenty-five years old we’re going to let you expunge one of them now and wait fifteen years and you can do the other one.” Before taking the matter under submission, the trial court stated that: “Clearly the intent was you have a felony, you get it expunged and if you get another felony in the next fifteen years though, you can’t get it expunged till fifteen more years. I don’t think they anticipated this situation of two old, old felonies.”

Ultimately, the trial court entered a “Judgment to Vacate, Order Expungement, and to Consolidate^]” In addition to vacating the initial orders of expungement, the trial court overruled the State’s objections and ultimately granted the motions for expungement “regarding an arrest and conviction for Illegal Possession of Stolen Things in Docket No. 65,554 “A,” and an arrest and | sconviction for Possession of Cocaine in Docket No. 70,689[.]” The trial court further ordered that the two matters be “consolidated for the purpose of any appeal(s) of the order(s) to expunge granted herein.”

| nThe State appealed and, by brief to this court, presents the following assignments of error:

The State of Louisiana, through the Department of Public Safety and Corrections, Public Safety Services, Office of State Police, Bureau of Criminal Identification and Information, alleges as error the trial court’s finding that the legislative findings in Code of Criminal Procedure Article 971 are controlling in determining whether Hayes is eligible to expunge the record of two separate felony convictions at one time despite the clear language of Code of Criminal Procedure Article 978(D) that provides that a defendant is only entitled to expunge the record of one felony arrest and conviction every fifteen years.
The State of Louisiana, through the Department of Public Safety and Corrections, Public Safety Services, Office of State Police, Bureau of Criminal Identification and Information, alleges as error the trial court’s determination that Alex Hayes is entitled to an ex-pungement of the record of two separate records of a felony arrest and conviction at one time.

Discussion

The State first argues that the trial court erred in referencing the legislature’s findings in its 2014 enactment of Louisiana Code of Criminal Procedure Title XXXIV, entitled “Expungement of Records.” See 2014 La. Acts No. 145, § 1. Title XXXIV, includes La.Code Crim.P. arts. 971-995, with La.Code Crim.P. art. 971 reflecting the legislature’s findings in enacting the provisions. In its reasons |7for ruling, the trial court specifically referenced La,Code Crim.P. art. 971(6), which provides that “this Title will provide opportunities to break the cycle of criminal recidivism, increase public safety, and assist the growing population of criminal offenders reentering the community to establish a self-sustaining life through opportunities in employment.” However, the State contends that resort to this intent was contrary to rules of statutory interpretation as the wording of La.Code Crim.P. art. 978(D) is clear and unambiguous. The State writes in its brief that: “The language of La.C.Cr.P. Article 978(D) could not be any more clear and unambiguous— during a fifteen year period, only one record of a felony arrest and conviction can be expunged.”

The State further argues that application of the language of the provision does not lead to absurd consequences and, in fact, permits a defendant with the opportunity (after fifteen years) to obtain the ex-pungement of the record of a second felony arrest and conviction. It contends that this possibility, contained |swithin the 2014 enactment of Title XXXIV, was not available under the previous expungement provision of La.R.S. 44:9. With this in mind, the State asserts that the trial court erred by considering legislative findings in light of the particular circumstances of Mr. Hayes’ background in determining whether expungement was available for the records of the two separate arrests and convictions.

Certainly, the State identifies the appropriate starting point for a matter of statutory interpretation. While this matter requires interpretation of a criminal provision, the supreme court, in State v. Griffin, 14-1214 (La. 10/14/15), 180 So.3d 1262, 1267 n.2 (citing State v. Bennett, 610 So.2d 120 (La.1992), explained that: “Basic Civil Code concepts regarding interpretation of statutes are applicable to interpreting the Criminal Code.” Thus, and before turning to consideration of the wording of Louisiana Code of Criminal Procedures articles at issue in Griffin, the supreme court referenced the fundamental principle of La. Civ.Code. art. 9, which provides that: “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” The Rsupreme court further explained that: “The starting point for interpretation of any statute is the language of the statute itself.” Griffin, 180 So.3d at 1267. Applying that framework, the court determined in the case before it that:

[T]he court of appeal inadequately applied these maxims and failed to analyze the provisions at issue in accordance with our civilian tradition. Rather than starting with an analysis of whether the law is “clear and unambiguous” and therefore “shall be applied as written,” La. C.C. art. 9, the court of appeal instead dove directly into analyzing the relevant provisions along with other, unrelated provisions. [See State v. Griffin,] 48-580, pp. 5-6 [ (La.App. 2 Cir. 5/14/14) ], 139 So.3d [14] at 18-19. We now begin, as we must, with the language of the relevant articles.

Id. at 1267 (footnotes omitted).

Here, the trial court found the language of La.Code Crim.P. art. 978(D) clear and unambiguous, stating that: “A literal reading of this provision of law clearly indicates that Alex Hayes may only have one of the two felonies expunged[.]” Seemingly upon a finding that its application would render an absurd result in light of the temporal distance of the two separate convictions, the trial court turned to consideration of the legislative findings underlying the enactment of Title XXXIV.

On review, we find no error in the trial court’s determination that the language of La.Code Crim.P. art. 978(D) is clear and unambiguous and, under the facts of this case, indicates that Mr. Hayes may seek the expungement of the record of arrest and conviction for only one of the felony offenses. However, given this finding, we find error in the trial court’s further decision to order both of the expungements as requested by the mover. See Griffin, 180 So.3d 1262. Specifically, the legislature’s use of limiting language and the narrow remedy 1^selected for expungement of felony convictions prevents multiple expunge-ments in this instance.

Rather, La.Code Crim.P. art. 978(D) specifically provides for the “[efcpungement of a record of arrest and conviction of a felony offense[.]” (Emphasis added.) It further provides that such an expungement “shall occur only owe” per fifteen-year period. Id. (Emphasis added.) In addition to the clarity of that language, reference to the other Articles contained within Title XXXIV suggests that the legislature specifically tailored the motion for ex-pungement form to require that all subject arrests, charges, and convictions (misdemeanor or felony) stem from a single, common event of arrest. Specifically, La.Code Crim.P. art. 986(A) instructs that “[o]nly the forms” provided in successive articles “shall be used for filing motions ... for the expungement of a record of arrest and conviction of a misdemeanor or felony offense .... ”

Yet, La.Code Crim.P. art. 989, which provides the motion for expungement form, permits the mover to report only a single date of arrest, a single “arresting agency!,]” and a single “arrest number[.]”[] Thereafter, and within that portion of the form containing specific information as to the overall event of arrest, the form indicates that: “Mover was booked and/or charged with the following offenses: (List each offense booked and charged separately. Attach a supplemental sheet,[] if necessary.)!.]” It thereafter permits the reporting of multiple “arrests that did not result in conviction!,]” “misdemeanor convictions!,]” and “felony convictions!.]”

| uIn this final, pertinent regard, the form permits the mover to report felony convictions as follows:

However, those multiple, reportable events flow from a common date of arrest, arresting agency, and arrest number as reflected on the form as prescribed by La.Code Crim.P. art. 989.

Of course, Mr. Hayes filed two such motions, one reflecting a 1989 arrest date and one reflecting a 1991 arrest date. While La. Code Crim.P. art. 978 does not speak to the filing of separate motions, Paragraph D, again, provides that: “Ex-pungement of a record of arrest and conviction of a felony offense shall occur |12only once with respect to any person during a fifteen-year period.” Too, La. Code Crim.P. art. 992, which contains the form for the order of expungement of arrest/conviction, indicates that it is rendered after “Considering the Motion for Expungement” and repeats reference to a single arrest date, arresting agency, and arrest number. Thus, entry of separate orders in response to separate motions for expungement, as the trial court initially rendered in this matter, violates La.Code Crim.P. art. 978(D).

Accordingly, finding this matter resolved by consideration of the wording of La. Code Crim.P. art. 978 and by reference to surrounding articles on the same subject matter, we find that the trial court erred in resolving the issue as it did. See Griffin, 180 So.3d 1262. We further find merit in the State’s objection to Mr. Hayes’ request for the entry of separate expunge-ments. Accordingly, we reverse the trial court’s order indicating that “each of the two Motions for Expungement” filed by the defendant were granted. We further reverse the trial court’s overruling of the State’s objection to Mr. Hayes’ request. In light of the fact that this ruling maintains Mr. Hayes’ separate pending motions for expungement, we do not render judgment further, but instead remand for further proceedings consistent with this opinion.

_[jDECREE

For the foregoing reasons, the trial court’s order of expungement as granted in trial court Docket Number 65,554 is reversed. The trial court judgment is further reversed to the extent it overruled the Objection to Motion for Expungement, as filed by the appellant, the State of Louisiana, through the Department of Public Safety and Corrections, Public Safety Services, Office of State Police, Bureau of Criminal Identification and Information. This matter is remanded for further proceedings consistent with this opinion.

ORDER OF EXPUNGEMENT REVERSED. JUDGMENT OVERRULING OBJECTION TO MOTION FOR EX-PUNGEMENT REVERSED. REMANDED FOR FURTHER PROCEEDINGS.

      . Louisiana Code of Criminal Procedure Article 978 provides, in part: A. Except as provided in Paragraph B of this Article, a person may file a motion to expunge his record of arrest and conviction of a felony offense if either of the following apply:

      (2) More than ten years have elapsed since the person completed any sentence, deferred adjudication, or period of probation or parole based on the felony conviction, and the person has not been convicted of any other criminal offense during the ten-year period, and has no criminal charge pending against him. The motion filed pursuant to this Subpara-graph shall include a certification obtained from the district attorney which verifies that, to his knowledge, the applicant has no convictions during the ten-year period and no pending charges under a bill of information or indictment.

      . Entitled “Service of motion to expunge a record[,]” La.Code Crim.P. art. 979 provides that:
      A. The clerk of court shall serve notice of the motion of expungement by United States mail or electronically upon the following entities:
      (1) The district attorney of the parish of conviction.
      (2) The Louisiana Bureau of Criminal Identification and Information.
      (3) The arresting law enforcement agency.

      . In reasons for ruling, the trial court quoted La.Code Crim.P. art. 978(D) before determining that:
      A literal reading of this provision of law clearly indicates that Alex Hayes may only have one of the two felonies expunged, however, Hayes contends the peculiar facts and circumstances of his cases, (that being that approximately twenty-five years have elapsed since his last felony conviction) allows both records to be expunged.
      This Court has reviewed in detail Act No. 145 of the Regular Session of 2014, identified as House Bill No. 55. It is clear that the Legislature was of the opinion that the inability to obtain an expungement can prevent certain individuals from obtaining gainful employment. CCrP (Article 971(4)).
      Part 5 of Article 971 provides that the need for employment must be balanced appropriately against the desire for public safety. Paragraph 6 provides that it is the intention of the Legislature that this Title will provide opportunities to break the cycle of criminal recidivism, increase public safety, and assist the growing population of criminal offenders re-entering the community to establish a self-sustaining life through opportunities in employment.
      While this Legislative intent indicates that each proceeding should be reviewed on its individual facts and circumstances, the Legislature went on to enact Article 978 which included provision D that provides “ex-pungement of a record of arrest and conviction of a felony offense shall occur only once with respect to any person during a fifteen year period.” This language clearly indicates that expungement can happen for an individual only one time during a fifteen year period. However, in the case at bar fundamental fairness and justice certainly is not served by telling an individual who has been crime free for more than twenty-five years that he can have one conviction expunged and must wait fifteen years to have the other conviction expunged.
      This Court specifically finds that the Legislative findings are controlling in this case. The Legislature clearly indicated that the inability to obtain an expungement can prevent certain individuals from obtaining gainful employment and that the need for employment must be balanced appropriately against the desire for public safety. In the case at bar there is no showing that public safety is in danger by the Ordering of an Expungement of a 1989 AND 1991 conviction. With the intention of the Legislature being "this Title will provide opportunities to break the cycle of criminal recidivism, increase public safety, and assist the growing population of criminal offenders re-entering the community to establish a self-sustaining life through opportunities of employment," this Court finds that justice would be served by granting the Motion to Expunge.
      Accordingly, this Court orders that the Objection to Motion for Expungement filed by the Office of State Police be in and is hereby OVERRULED and that the Motion to Expunge filed by Alex Hayes in each docket be and is hereby GRANTED.

      . In light of that consolidation, we address the matters collectively. The decree of the present captioned case, State of Louisiana v. Alex Hayes, 16-783 (La.App. 3 Cir. —/—/17), 210 So.3d 820, references the proceeding in trial court docket number 65,554. The companion case, State of Louisiana v. Alex Hayes, 16-784 (La.App. 3 Cir. —/—/17), 210 So.3d 820, includes the decree referencing the proceeding in trial court docket number, 70,689.

      . Louisiana Code of Criminal Procedure Article 971 provides:
      The legislature hereby finds and declares the following:

        (1) Louisiana law provides for the ex-pungement of certain arrest and conviction records under limited circumstances. Obtaining an expungement, of these records allows for the removal of a record from public access but does not result in the destruction of the record.
      (2) An expunged record is confidential, but remains available for use by law enforcement agencies, criminal justice agencies, and other statutorily defined agencies.
      (3) Following the passage of the Maritime Transportation Security Act of 2002, all individuals who wish to work at ports or on vessels regulated by this Act are required to obtain a Transportation Worker Identification Credential (TWIC). Obtaining a TWIC card requires a criminal history check and clearance which cannot be obtained without either a clean record or an expunged record with respect to certain offenses.
      (4) The inability to obtain an expungement can prevent certain individuals from obtaining gainful employment.
      (5) The need for employment must be balanced appropriately against the desire for public safety. Nothing in this Title shall be construed to limit or impair in any way the subsequent use of any expunged record of arrest or conviction in any lawful manner by law enforcement, law enforcement agencies, prosecutors, or judges, including its use as a predicate offense or for the provisions of the Habitual Offender Law,
      (6) It is the intention of the legislature that this Title will provide opportunities to break the cycle of criminal recidivism, increase public safety, and assist the growing population of criminal offenders reentering the community to establish a self-sustaining life through opportunities in employment.
      (7) In balancing the legitimate needs of law enforcement agencies and the desire to afford employment opportunities to all Louisiana citizens, tire Louisiana Legislature enacts the provisions of this Title within the Code of Criminal Procedure.

      . Repealed by 2014 La.Acts. No. 145, § 3, La.R.S. 44:9 previously provided, in part:
      [ (E)(1) ](d) Notwithstanding the provisions of Code of Criminal Procedure Article 893 or any other provision of law to the contrary regarding the set aside of a conviction or the dismissal of a prosecution, an expungement of a felony conviction shall occur only once with respect to any person during a lifetime.

      . Additionally, and specific to the context of the Louisiana Criminal Code, La.R.S. 14:3 provides that:
      The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.

        See also La.R.S. 1:4 ("When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.”); La.R.S. 1:3 (“Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. ... The word ‘shall’ is mandatory and the word ‘may’ is permissive.”).

      . That same information is to be included on the prescribed order form. See La.Code Crim.P. art. 992.

      . See La.Code Crim.P. art. 993 (providing the form for the “Supplemental Sheet”). Again, that form does not make provision for separate dates of arrest, arresting agency, or arrest number.

      . As point of clarification, however, and in order to pretermit confusion, we reject the State’s characterization of La.Code Crim.P. art. 978(D) as clearly and unambiguously providing that "during a fifteen year period, only one record of a felony arrest and conviction can be expunged.” That restatement of Paragraph D provides that it is the "expungement” that "shall occur only once within a fifteen-year periodf.]” (Emphasis added.) Reference to the form provided by La.Code Crim.P. art. 989 undermines the State’s phraseology as the form anticipates that multiple arrests and felony convictions may flow from a single, overall date of arrest.

      . We are mindful that the legislature specifically included its findings within Title XXXIV and that La. Civ. Code art. 13 indicates that “[flaws on the same subject matter must be interpreted in reference to each other.” Again, however, the purposes of enacting Title XXXIV as evidenced by La.Code Crim.P. art. 971(6) may be viewed as assisting Mr. Hayes and his "opportunities in employment!,]” albeit not in as full of a measure as sought in the present case. Limitations as to the availability of expungement are seen throughout Title XXXIV, whether due to the type of conviction or to its timing.


author: Judge Roland L. Belsome

text:
    Thomas H. HAYDEN and Jacqueline S. Hayden v. 3M COMPANY, et al.
    NO. 2016-C-1030
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 3, 2017
    Mickey P. Landry, Frank J. Swarr, Philip C. Hoffman, Matthew C. Clark, LANDRY & SWARR, L.L.C., 1010 Common Street, Suite 2050, New Orleans, LA 70112 AND Charles W. Branham, III, Pro Hac Vice, Lisa W. Shirley, DEAN OMAR BRANHAM, LLP, 3900 Elm Street, Dallas, TX, 75229, COUNSEL FOR PLAINTIFFS/RELATORS
    Deborah D. Kuchler, Monique M. Weiner, Janika D. Polk, Lee B. Ziffer, Amber B. Barlow, KUCHLER POLK SCHELL WEINER & RICHARDSON, LLC, 1615 Poydras Street, Suite 1300, New Orleans, LA, 70112 COUNSEL FOR DEFENDANT/RESPONDENT/FORD MOTOR COMPANY
    Patrick J. O’Cain, Deidre C. McGlin-chey, Jose L. Barro, MCGLINCHEY STAFFORD, PLLC, 601 Poydras Street, 12th Floor New Orleans, LA 70130 COUNSEL FOR DEFENDANT/RESPONDENT/CNH AMERICA LLC
    Robert E. Barkley, Jr., Mark P. Seyler, Thomas E. Schwab, BARKLEY & THOMPSON, L.C., 1515 Poydras Street, Suite 2230, New Orleans, LA, 70112, COUNSEL FOR DEFENDANT/RESON-DENT/EATON CORPORATION
    Kay B. Baxter, Forrest Ren Wilkes, Georgia Noble Ainsworth, Ashley Armour Edwards, Margaret Adams Casey, M. James Dempsey, COSMICH SIMMONS & BROWN, PLLC, 650 Poydras Street, Suite 1530 New Orleans, LA, 70130 COUNSEL FOR DEFENDANT/RESPONDENT/NAVISTAR, INC.
    William C. Harrison, Jennifer E. Adams, A. Wendell Stout, III, Barbara B. Ormsby, Jason P. Franco, DEUTSCH KERRI-GAN, L.L.P., 755 Magazine Street, New Orleans, LA, 70130 AND Richard M. Wyner, Pro Hac Vice, David S. Norris, Pro Hac Vice, GOODWIN PROCTER LLP, 901 New York Avenue, NW #9, Washington, DC, 20001, COUNSEL FOR DEFENDANT/RESPONDENT/DANA COMPANIES, LLC
    Eric Shuman, Sarah E. McMillan, MCGLINCHEY STAFFORD, PLLC, 601 Poydras Street, 12th Floor, New Orleans, LA, 70130 AND Jack R. Reiter, Pro Hac Vice, GRAY ROBINSON, P.A., 338 SE 2nd Avenue, Suite 3200, Miami, FL, 33131, COUNSEL FOR DEFENDANT/RESPONDENT/HONEYWELL INTERNATIONAL, INC.
    John J. Hainkel, III, Angela M. Bowlin, James H. Brown, Jr., Magali A. Puente-Martin, Peter R. Tafaro, Kelsey A. Eagan, Kelly L. Long, FRILOT L.L.C., 3700 En-gery Centre, 1100 Poydras Street, New Orleans, LA 70163, COUNSEL FOR DEFENDANT RESPONDENT/FOSTER WHEELER LLC
    (Court composed of Judge Dennis R. Bagneris, Sr., Judge Roland L. Belsome, Judge Marion F. Edwards, Pro Tempore)
   Judge Roland L. Belsome

hln preparation for trial on this meso-thelioma case, the plaintiff served trial subpoenas on numerous defendant corporations for the in-court appearance of a corporate representative at trial. The defendant corporations filed motions to quash the subpoenas. The trial court granted the motions to quash as to the corporations that were not domiciled in Louisiana. The plaintiff filed an application for supervisory writs to this Court, which was denied in a 2-1 decision. Thereafter, the plaintiff filed a writ application in the Louisiana Supreme Court. Subsequently, the Louisiana Supreme Court issued orders remanding the matter to this Court for briefing, oral argument, and full opinion.

On remand, the sole issue to be determined is whether Louisiana subpoena power extends to nonresident parties participating in litigation in Louisiana courts.

The limitations on subpoena power are set forth in La. C.C.P. art. 1352, which reads:

A witness, whether a party or not, who resides or is employed in this state may be subpoenaed to attend a trial or hearing wherever held in this |astate. No subpoena shall issue to compel the attendance of such a witness who resides and is employed outside the parish and more than twenty-five miles from the courthouse where the trial or hearing is to be held, unless the provisions of R.S. 13:3661 are complied with.

The defendants maintain that the plain language of Article 1352 clearly provides that anyone who resides or is employed in Louisiana is subject to the subpoena authority of Louisiana courts. In turn, nonresidents that are not employed in Louisiana are exempt from being compelled to appear in the state for discovery or to attend trial. Therefore, given the defendants’ status as non-domiciliary corporations they maintain that they cannot be compelled to appear at trial. In support of that argument the defendants cite to Cat tle Farms, Inc. v. Abercrombie. In Cattle Farms, this court declared that the right to examine an adverse party as set forth in La.C.C.P. art. 1634 was subject to the subpoena restrictions provided for in Article 1352. Accordingly, an adverse party that resided in another state and was not employed in Louisiana could not be compelled to attend trial in Louisiana.

Although the Cattle Farms decision has not been overruled, the jurisprudence since the 1962 opinion has indicated that such a rigid application of the statute is incorrect. For example, this Court in Hohner v. Travelers Ins. Co., held that a plaintiff that did not reside or work in Louisiana was subject to being |acompelled to appear in the state for a discovery deposition. The plaintiffs, Sherry and Kenneth Hohner moved to Anchorage, Alaska after filing a personal injury lawsuit in the Civil District Court for the Parish of Orleans. The defendants served a notice on plaintiffs’ attorney for Sherry Hohner’s deposition. The trial court ordered her to appear in New Orleans for the deposition and writs were taken to this Court.

In Hohner, the defendants argued and this Court agreed that a nonresident witness was distinguishable from a nonresident litigant when determining the Court’s subpoena authority. However, the Court relying on La. C.C.P. art. 1452, reversed the trial court’s order compelling Mrs. Hohner to appear in New Orleans for the discovery deposition. The Court reasoned that the expense for her to travel to New Orleans was substantial and the defendants could obtain the information through other means of discovery.

Following Hohner, this Court in Broda v. Jack Sutton Co., Inc., revisited the issue of whether a nonresident plaintiff that filed suit in a Louisiana court was compelled to appear in state for a discovery deposition. Citing to Hohner, the Court weighed the cost of travel, the simplicity of the case, and the potential recovery to determine that the court could not require the nonresident plaintiff to travel to Louisiana.

Hohner and Broda did not find a prohibition on subpoenaing a nonresident plaintiff, but rather the Court used a discretionary approach to the issue. Likewise, in O’Rourke v. Hilton Hotels Corporation, this Court determined that a nonresident Lplaintiff was subject to the court’s subpoena power to appear for a discovery deposition. However, once the court applied the factors considered in Hohner and Broda, this Court declined to compel the plaintiff’s appearance at the discovery deposition because the case was not complex, and the expense of travel compared to the potential low recovery was substantial.

Additionally, the Second Circuit has also considered the scope of a Louisiana court’s subpoena power in Transworld Financial Services Corp. v. Briscoe. The Trans-world plaintiffs were nonresident assignees to a foreign judgment against a Louisiana resident. The assignees filed suit in Louisiana to make the judgment executo-ry. The Louisiana defendant sought to have the assignees appear for trial, and the trial court quashed the subpoenas.

On a review of that ruling the court of appeals found that the assignees were parties subject to the court’s subpoena power. The opinion specifically stated that “a nonresident plaintiff who invokes the jurisdiction of the Louisiana court should be subject to the subpoena power of the court.. .” The Court further found that the limitations in article 1352 are not present in the statutes that govern the court’s power to subpoena a party. The Trans-world court further disagreed with the Cattle Farms holding that La.C.C.P. art. 1634 is subject to the restrictions of article 1352. But, like the cases from this circuit, Transworld acknowledged that the subpoena power should not be exercised unrestrained, and the court should ^consider the nonresident party’s inconvenience, expense, or other hardship created by distance.

Since the 1962 Cattle Farms opinion, the jurisprudence has been consistent with respect to the state having subpoena power over nonresident plaintiffs. Similarly, in Phillips Petroleum Co. v. OKC Ltd. Partnership, the Louisiana Supreme Court discussed the prospect of applying that same principle to a nonresident defendant. The issue presented in Phillips was whether a nonresident nonparty corporation qualified to do business in the state could be compelled to appear in the state for a deposition. Although the court found that as a nonresident nonparty witness the deposition of the corporation would be governed by the state in which the witness resides as directed by La.C.C.P. art. 1435, the court noted that “if the nonresident were a defendant party, thus subject to the personal jurisdiction of a Louisiana court, he probably would be compelled to come to the state to give his deposition.”

Subsequent to the Phillips opinion, this Court addressed the issue of a nonresident party defendant in In re Medical Review Panel of Hughes. In that ease, the plaintiff filed a claim requesting to convene a medical review panel to determine whether his former physician had committed malpractice. At that same time, the former patient filed a petition for discovery in the district court. The plaintiff then sought to compel the physician to appear for a deposition and the | (¡physician moved to quash the subpoena. That motion was denied and the physician applied for supervisory writs.

In determining for the first time whether a nonresident party defendant could be required to appear in the state under any circumstances, this Court cited to the language in Phillips regarding the probability of a nonresident defendant party being compelled to appear in Louisiana. This Court acknowledged the statement as dicta, but nonetheless found it persuasive. Taking that pronouncement by the Supreme Court together with Hohner, Broda and O’Rourke, this Court found that, like a nonresident party plaintiff, a nonresident party defendant is subject to a Louisiana court’s subpoena authority. However, that authority, as with nonresident party plaintiffs, is not unlimited. Accordingly, this Court found that out of fundamental fairness the court must consider the same factors that are relevant to compelling nonresident party plaintiffs to appear in Louisiana: travel costs, complexity of the case, the potential recovery, and whether other methods of discovery have been attempted.

Clearly, the case law regarding Louisiana’s subpoena power has evolved since Cattle Farms. In the same way that Louisiana exercises personal jurisdiction over parties participating in litigation in the state, those parties may, upon the discretion of the court, be compelled to appear in Louisiana for discovery depositions, hearings, and/or trial. For these reasons we reverse the trial court’s quashing of the subpoenas served through the attorneys of record for the |7non-domiciliary corporations. We remand the matter for further consideration by the trial court consistent with the findings of this opinion.

REVERSED AND REMANDED.

      . 2016-C-1030 (La. App. 4 Cir. 10/7/16), Bonin, J. dissenting.

      . Hayden v. 3M Company, 2016-CC-1986, 211 So.3d 392, 2016 WL 7636025 (La. 12/16/16).

      . Although defendants complain of some irregularities with the substance of the subpoenas, those issues can be cured on remand.

      . La. C.C.P.art. 1342.

      . La. R.S. 13:3661 provides for witnesses to receive travel expenses when they live in state but outside of the parish or more than twenty-five miles from the courthouse.

      . 146 So.2d 689 (La. Ct. App. 1962), rev'd on other grounds, 244 La. 969, 155 So.2d 426 (1963).

      . La. C.C.P. art. 1634 provided drat "[a]ny party or his representative may be called as a witness and cross examined by an adverse party without the latter vouching for his credibility, or being precluded from impeaching his testimony.”

      . Cattle Farms, 146 So.2d at 691.

      . 246 So.2d 727 (La.App. 4 Cir. 1971).

      . Id.

      . Id. at 728.

      . Hohner, 246 So.2d at 728-29.

      . 488 So.2d 226 (La.App. 4th Cir. 1986).

      . Id. at 227-28.

      . 560 So.2d 76 (La.App. 4th Cir. 1990).

      . Id. at 80.

      . 459 So.2d 100 (La.App. 2nd Cir. 1984).

      . Id. at 104.

      . Id. at 103.

      . Id.

      . 634 So.2d 1186 (1994).

      . Id. at 1188-89.

      . Phillips, 634 So.2d at 1188, fn. 3.

      . 01-2313 (La.App. 4 Cir. 1/23/02), 807 So.2d 1074.

      . Id.

      . The record on the application for supervisory writ did not contain sufficient evidence to analyze those factors so the matter was remanded for the trial court to determine whether the nonresident defendant would be compelled to appear in Louisiana for a discovery deposition.