text:
    STATE of Louisiana v. Robert IOVENITI
    NO. 2017-KA-0823
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 7, 2018
   Leon Cannizzaro, District Attorney, Donna Andrieu, Chief of Appeals, Kyle Daly,Assistant District Attorney, ORLEANS PARISH DISTRICT ATTORNEY'S OFFICE, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLANT/ STATE OF LOUISIANA

John Hall Thomas, 639 Loyola Avenue, Suite 1820, New Orleans, LA 70113, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Paula A. Brown )

Judge Rosemary Ledet In this criminal appeal, the State seeks review of the district court's judgment granting the motion to quash filed by the defendant, Robert Ioveniti. We affirm in part; reverse in part; and remand.

STATEMENT OF THE FACTS AND CASE

On August 4, 2013, Mr. Ioveniti returned to New Orleans, Louisiana from a cruise to Belize. While disembarking the cruise ship, a drug-sniffing canine alerted to Mr. Ioveniti's crotch. Customs officers searched Mr. Ioveniti's person and discovered 498 pills of Hydrocodone, 85 pills of Alprazolam, 9 pills of Clonazepam, 23 pills of Diazepam, 25 pills of Sildenafil, and 1.9 grams of marijuana. As a result, New Orleans Police Department officers arrested Mr. Ioveniti for violating the Uniform Controlled Dangerous Substances Law, La. R.S. 40:961, et seq. (the "UCDSL").

On September 17, 2013, the State filed a bill of information charging Mr. Ioveniti as follows:

Count 1: Possession with the intent to distribute Hydrocodone, a felony violation of La. R.S. 40:967(A)(1) ;
Count 2: Possession with the intent to distribute Alprazolam (also known as "Xanax"), a felony violation of La. R.S. 40:969(A)(1) ;
Count 3: Possession of marijuana, a misdemeanor violation of La. R.S. 40:966(E)(1) ;
Count 4: Possession of Clonazepam, a felony violation of La. R.S. 40:969(C)(2) ;
Count 5: Possession of Diazepam (also known as "Valium"), a felony violation of La. R.S. 40:969(C)(2) ;
Count 6: Possession of a Sildenafil (also known as "Viagra"), a felony violation of La. R.S. 40:1238.1.

On February 11, 2014, Mr. Ioveniti moved to quash Counts 1, 2, and 6, alleging that he had valid prescriptions for Hydrocodone, Alprazolam, and Sildenafil. The State filed a written opposition, arguing that Mr. Ioveniti had produced no admissible evidence to support his motion. Following a hearing, the district court granted the motion and issued a written judgment. The State appealed.

On the State's prior appeal, this court reasoned as follows:

The record fails to show that a contradictory hearing was held on Mr. Ioveniti's motion to quash. La. C.Cr.P. art. 537 mandates that "[a]ll issues, whether of law or fact, that arise on a motion to quash shall be tried by the court without a jury." (emphasis added). Louisiana jurisprudence has previously held that La. C.Cr.P. art. 537 mandates a contradictory hearing on motions to quash. State in Interest of M.J. , 14-0622, p. 15, fn. 10 (La. App. 4 Cir. 2/4/15), 160 So.3d 1040, 1049 (noting trial court erred in failing to hold a hearing on the merits of a motion to quash); State v. Nguyen , 14-639, p. 17 (La. App. 3 Cir. 11/5/14), 150 So.3d 562, 572 (granting a motion to quash without a hearing was improper); State v. Sensat , 07-425, p. 4 (La. App. 3 Cir. 11/7/07), 969 So.2d 1274, 1276 (State was entitled to a contradictory hearing on motion to quash); State v. Stewart , 02-0196 (La. App. 3 Cir. 10/2/02), 827 So.2d 1277, 1281-82 ( art. 537 implicitly mandates a hearing); State v. Lowry , 00-107, p. 6 (La. App. 5 Cir. 6/27/00), 762 So.2d 1275, 1278 (citing art. 537 and remanding for hearing on motion to quash).
In this case, the trial court accepted the filing of Mr. Ioveniti's motion to quash as well as the State's brief in opposition to the motion. However, the October 9, 2015 proceeding does not constitute a contradictory hearing pursuant to La. C.Cr.P. art. 537. The State was not afforded an opportunity to address the merits or present argument
relating to Mr. Ioveniti's motion to quash. Thus, the record fails to show that a contradictory hearing was held on the merits of the motion to quash. For this reason, we find the trial court erred.

State v. Iovenitti , 15-1356, pp. 2-3 (La. App. 4 Cir. 4/20/16), 194 So.3d 1144, 1145-46 (" Iovenitti I "). We therefore "order[ed] that the case be remanded for a contradictory hearing on the motion to quash pursuant to La. C.Cr.P. art. 537." Id. , 15-1356 at p. 3, 194 So.3d at 1146.

At the contradictory hearing on remand, which took place on March 28, 2017, Mr. Ioveniti called no witnesses; instead, he offered the following exhibits:

• Defense Exhibit 1, consisting of:
• a one-page document purporting to be a copy of a prescription for Kodone (presumably, Hydrocodone ) and Viagra and a prescription for Valium and Xanax, both allegedly written for Mr. Ioveniti by an unidentified physician (the "Prescriptions");
• a two-page document, entitled "Affidavit of Pharmacist Authenticating Records of Prescription Medications He Dispensed," purporting to have been signed by Raul Acevedo, allegedly a pharmacist with Free-Town Drug Store in Belize City, Belize, and purporting to authenticate the Prescriptions (the "Affidavit"); and
• Defense Exhibit 2: a one-page document, undated, purporting to be a letter from Mr. Acevedo to the district court setting forth the circumstances under which Mr. Acevedo allegedly dispensed a four-month supply of Kodone to Mr. Ioveniti on August 1, 2013, pursuant to "a prescription issued by a doctor [that Mr. Ioveniti] saw at K.H.M.H.[,] our local public hospital (the "Letter").

The State offered the following exhibits:

• State's Exhibit 1: a page from the Belize Drug Formulary and Therapeutics Manual, purporting to set forth the formal requirements of a prescription in Belize; and
• State's Exhibit 2: a World Health Organization publication, entitled "Management of Drugs at Health Center Level," purporting to set forth the formal requirements of prescriptions in foreign countries.

At the conclusion of the hearing, the district court granted Mr. Ioveniti's motion, stating as follows:

The Court sees no difference in the information previously provided by the State [sic], that led to this Court's ruling on October 13, 2015. So, by that very nature the Court is ruling in the same manner in which it ruled on October 13, 2015.

The district court then read its previous written judgment into the record. Subsequently, the district court issued another written judgment, again granting the motion to quash. This appeal followed.

On January 11, 2018, this court, on its own motion, ordered the district court to "supplement the record on appeal with all exhibits entered into evidence at the March 28, 2017 hearing on Mr. Ioveniti's motion to quash." In response, the district court provided this court with copies of the following documents:

• the Affidavit, marked for identification as "Exhibit 'A,' 2 pages";
• two pages of hand-written invoices, marked for identification as "Exhibit 'B,' 2 pages"; and
• a one-page document, not marked for identification, purporting to be a prescription for "Hidrocodone," Xanax, and Valium.

The district court provided no documents marked for identification as Defense Exhibits 1 or 2; nor did the district court provide either of the State's exhibits.

DISCUSSION

The existence of a valid prescription is an affirmative defense to prosecution for certain violations of the UCDSL. See La. R.S. 40:967(C) ; La. R.S. 40:968(C) ; La. R.S. 40:969(C) ; La. R.S. 40:970(C). The affirmative defense must be asserted before trial in a motion to quash. See La. R.S. 40:991(C) ; La. C.Cr.P. 532(10). The motion presents a mixed question of law and fact. See State v. Tran , 12-1219, p. 2, n. 3 (La. App. 4 Cir. 4/24/13), 115 So.3d 672, 673. Thus, the motion requires a contradictory hearing. La. C.Cr.P. art. 537 ; Iovenit t i I , 15-1356 at pp. 2-3, 194 So.3d at 1146 (observing that " La. C.Cr.P. art. 537 mandates a contradictory hearing on motions to quash" and collecting cases).

At such a hearing, the defendant bears the burden of producing evidence sufficient to prove the factual allegation in his motion-the existence of a valid prescription. See La. R.S. 40:991 (providing that "[a]n individual who claims possession of a valid prescription for any controlled dangerous substance as a defense to a violation of the provisions of the [UCDSL] shall have the obligation to produce sufficient proof of a valid prescription to the appropriate prosecuting office."). The Code of Evidence is fully applicable at the hearing; and the defendant's evidence, to be considered, must be admissible. State v. Rainey , 14-0523, p. 5 (La. App. 4 Cir. 9/17/14), 150 So.3d 370, 373 (observing that "rulings on motions to quash based on La. Code Crim. Proc. art. 532(10), which require factual determinations by the trial court, also require application of the rules of evidence").

A district court's ruling on a motion to quash under La. C.Cr.P. art. 532(10) is reviewed under an abuse of discretion standard. State v. Rainey , 14-0523, p. 1 (La. App. 4 Cir. 9/17/14), 150 So.3d 370, 371 (citing State v. Tran , 12-1219, p. 2 (La. App. 4 Cir. 4/24/13), 115 So.3d 672, 673 ; State v. Williams , 12-0110, p. 2 (La. App. 4 Cir. 10/10/12), 101 So.3d 533, 534 ).

For the reasons separately assigned, a majority of the panel affirms as to Count 6; a majority of the panel reverses the judgment of the district court as to Counts 1 and 2 and remands.

DECREE

The judgment of the district court granting Mr. Ioveniti's motion to quash as to Count 6 is affirmed; the judgment of the district court granting Mr. Ioveniti's motion to quash as to Counts 1 and 2 is reversed; and the case is remanded.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED

LOMBARD, J., DISSENTS; LEDET, J., CONCURS IN PART AND DISSENTS IN PART WITH REASONS; BROWN, J., DISSENTS IN PART AND CONCURS IN PART WITH REASONS

LOMBARD, J. DISSENTS WITH REASONS,

For differing reasons, the majority of this panel reverses the district court judgment granting the defendant's motion to quash on two counts: Count 1: possession with intent to distribute Hydrocodone in violation of La. Rev. Stat. 40:967(A)(1) ; Count 2: possession with intent to distribute Alprazolam (Xanax) in violation of La. Rev. Stat. 40:967(A)(1). For the reasons that follow, I respectfully dissent.

Pursuant to La. Rev. Stat. 40:991, an individual who "claims possession of a valid prescription for any controlled dangerous substance as a defense to a violation of the provisions of the Uniform Controlled Dangerous Substances Law" must only produce "sufficient evidence of a valid prescription." La. Rev. State. 40:991(A). Although the statute provides an example of what constitutes sufficient evidence: "an original prescription bottle with the defendant's name, the pharmacist's name, and prescription number, it does not confine a district court's consideration only to those elements, leaving the determination of whether sufficient evidence of a valid prescription has been produced to the discretion of the district court.

In this case, the district court found that the defendant presented sufficient evidence that his "prescriptions were filled pursuant to a lawful order of a practitioner" and granted the defendant's motion to quash, observing further that the State presented no evidence that the prescriptions (or quantity of pharmaceutical drugs) at issue were inconsistent with personal use or of intent to distribute.

The record before this court, as clarified by the district court's submission of all exhibits entered into evidence at the March 28, 2017, to supplement the record, supports this finding. Specifically, according to the district court, the defense exhibits introduced into evidence at the hearing consist of Defense Exhibit A, a notarized "Affidavit of Pharmacists Authenticating Records of Prescription Medications He Dispensed" signed by Raul Acevedo stating that he is a licensed professional pharmacist in Belize operating the Free-Town Drug Store in Belize and that in the course of his profession pharmacy practice he filled the prescriptions (for the pharmaceutical drugs at issue in this matter) which were prescribed for the defendant by a licensed medical practitioner for the defendant. The affiant also declared that "he hereby certifies that the copy of the prescriptions attached [to his affidavit] is a true and authentic copy of the original prescription records maintained by the undersigned affiant in the scope of his professional pharmacy practice." The affidavit is witnessed and notarized with an attached Apostille. Defense Exhibit B, as transmitted by the district court, is a copy of the prescription for hydrocodone and Free-town Drug Store invoices for hydrocodone,

Viagra, Xanax, and Valium. There are no State exhibits in the record before this court.

Inexplicably, with regard to the evidence introduced at trial, the writing judge misrepresents the record as it exists before this court, relying on a summary of exhibits derived from a minute entry and transcript (including a summary of State exhibits that do not appear anywhere in the record before this court) that conflicts with the actual record submitted to this court. Because, as originally transmitted to this court, the exhibits introduced into evidence were missing, this court ordered the district court to supplement the record with the exhibits introduced into evidence at the hearing. The district court complied, transmitting the Defense Exhibit A and Exhibit B with a cover letter stating that these were all the documents admitted into evidence at the hearing in this matter. To the extent that there is a conflict between the exhibits that actually appear in the record before this court and characterizations of those exhibits derived from a minute entry and transcript, we are a court of record and therefore the evidence in the record before this court must take precedence, particularly in a case such as this where the district court has, in effect, personally certified and transmitted the exhibits submitted into evidence upon which its decision is based.

The writing judge also asserts that the district court erred in considering "the Letter" because it was inadmissible, apparently referencing a letter from the pharmacist found in the record following the State's Opposition to the Defendant's Motion to Quash, filed on August 11, 2015. The letter is an explanation by the pharmacist as to why he dispensed the prescriptions, including the refills, to the defendant who was hurt while travelling in Belize and presented prescriptions with supporting medical records from a local medical doctor. There is, however, nothing in the record which suggests that it was offered into evidence by the defense or that (as the writer concedes) the district court referenced the letter in either its oral or written ruling. As such, the gratuitous finding that "the Letter" was inadmissible (and that the district court abused its discretion in considering it) is a red herring.

Moreover, the district court did not err in in admitting the notarized affidavit and attached documents into evidence. La. Code Evid. art. 902 clearly states that extrinsic evidence of authenticity is not required with respect to the admissibility of "documents executed in a jurisdiction other than Louisiana accompanied by a certificate of acknowledgment executed in the manner provided by the law of that jurisdiction by a notary public or other officer authorized by law to take acknowledgments." La. Code Evid. art. 902(8)(b). There is no dispute in the record before the court that the affidavit submitted into evidence by the defendant was executed in the manner provided for by the law in Belize. As such, the affidavit was clearly admissible into evidence whether or not the district court incorrectly referenced La. Code Evid. art. 902(3) pertaining to foreign public documents. A district court's reasons for judgment (written or oral), while defining and elucidating the principles upon which the case is being decided, forms no part of the official judgment from which an appeal is taken. Hamilton v. Hamilton, 97-2090 (La. App. 4 Cir. 6/24/98), 716 So.2d 412, 415 (1998) (citation omitted). In other words, erroneous reasons for judgment are not part of the judgment and, therefore, not grounds for reversal where other reasons may be found to support the judgment. Id.

In addition, whether the district court erred in interpreting La. Code Evid. art. 902(3) to be applicable in this case is not clear error. The plain language of the statute-a document purported to be "executed or attested by a person authorized by the laws of a foreign country to make the execution or attestation"-appears to encompass a licensed pharmacist attesting to the dispensation of pharmaceutical drugs in accordance with the laws of his country. As the writing judge concedes, a "public document" is not defined in the provision itself. Rather, the writing judge argues that the district court erred because the commentary to Article 902(3) indicates that the drafters intended the provision to relate only to government-generated documents. Although the drafters may have intended the term to be defined restrictively, that intention is not reflected in the provision itself nor has such definition been adopted jurisprudentially. Moreover, as a practical matter, the comment indicating that the drafters intended the provision to be more narrowly interpreted than its actual language conveys does not appear in the standard desk copy (West's Louisiana Statutory Criminal Law and Procedure) relied upon by most attorneys. As such, without specific authority restricting the provision to the drafter's intent rather than the actual language, to claim that the district court abused its discretion in relying upon the plain language of the provision is problematic. In any event, as previously stated, the notarized affidavit with its attachments is admissible under La. Code Evid. art. 902(8)(b) and, therefore, whether or not the district court erred in referring to La. Code Evid. art. 902(3) is irrelevant.

Finally, the concurring judge errs in reversing the judgment of the district court based on a conclusion that a defendant with a valid prescription may, nonetheless, be charged for possession with intent to distribute. Notably, this statement of law is one of first impression, made without being fully briefed, argued, and decided in the district court below. Independent research reveals no statutory or jurisprudential authority to support this position.

Possession is the lesser included offense of possession with intent: Section A of La. Rev. Stat. 40:967 provides that it is illegal to possess with intent to distribute a controlled dangerous substance; Section C of the same statute provides that it is illegal to possess a controlled dangerous substance "unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner" pursuant to La. Rev. Stat. 40:978. In addition, possession is specifically included as a responsive verdict to the charge of possession with intent to distribute. La. Code Crim. Proc. art. 814(47). As such, unlawful possession of a controlled dangerous substance is an inherent element of possession with intent to distribute a controlled substance which, in turn, means that a person who cannot be charged with the lesser offense cannot be charged with the greater offense.

The concern that lawfully obtained drugs are subject to abuse is well-founded but also one shared by the state legislature as evidenced by the statutory schemes which address the problem. It is clearly illegal to dispense or distribute any controlled dangerous substance without a license, La. Rev. Stat. 40:972, whether or not the drugs are lawfully possessed. Thus, to the extent that the defendant in this case possesses the drugs lawfully, it remains illegal for him to dispense or distribute them to anyone else. Likewise, the "Pain Management Clinic Drug Abuse and Overdose Prevention Act" makes it illegal for a person to fraudulently obtain a controlled dangerous substance or for a physician to assist a person fraudulently obtain prescription drugs, La. Rev. Stat. art. 971.2; La. Rev. Stat 40:1060.15. Thus, to the extent that someone obtains a prescriptions for controlled dangerous substances with the intention of selling them, the state legislature has foreseen this possibility and responded legislatively. Similarly, the Prescription Monitoring Program, La. Rev. Stat. 40:1001 et seq. , provides statutory authority for the State to monitor and inhibit diversion of legally obtained controlled substances and prescription drugs. Accordingly, it is not only beyond the scope of our authority to judicially expand La. Rev. Stat. 40:961 to create an antidote to the problem of prescription drug abuse, it is unnecessary.

The role of this court is not to substitute its own factual determinations for that of the district court, i.e., the fact-finder, but, rather, to review that decision under the abuse of discretion standard. Therefore, the issue is not whether we, individually, would have made a different decision but whether the record supports the discretionary decision of the district court. In this case, there is evidence in the record to support the district court judgment and, to the extent the majority reaches outside the record and jurisprudential authority to reach a different conclusion from the district court, I respectfully disagree. Accordingly, I would affirm the district court judgment on all counts.

LEDET, J., CONCURS IN PART AND DISSENTS IN PART WITH REASONS

At the contradictory hearing, Mr. Ioveniti offered two exhibits, together consisting of three documents: Defense Exhibit 1, consisting of the Affidavit and the Prescriptions; and Defense Exhibit 2, consisting of the Letter. The State contends that neither of these exhibits was properly authenticated. I agree.

In State v. Rainey , we emphasized that the Code of Evidence is fully application to contradictory hearings on motions to quash pursuant to La. C.Cr.P. art. 532(10). 2014-0523, pp. 5-6 (La. App. 4 Cir. 9/17/14), 150 So.3d 370, 373 (observing that "because a hearing on a motion to quash is a formal judicial examination, the Louisiana Code of Evidence applies" and that "rulings on motions to quash based on La.Code Crim. Proc. art. 532(10), which require factual determinations by the trial court, also require application of the rules of evidence"). In my view, principled application of the Code of Evidence compels the conclusion that Mr. Ioveniti's evidence was not admissible.

For evidence to be admissible at a hearing on a motion to quash pursuant to La. C.E. art. 532(10), it must first be authenticated-that is, the proponent of the evidence must produce "evidence sufficient to support a finding that the matter in question is what its proponent claims." La. C.E. art. 901(A). Thus, evidence must either be authenticated, as provided in La. C.E. art. 901 ; or self-authenticating, as provided in La. C.E. art. 902. State v. Gray , 16-1195, p. 22 (La. App. 4 Cir. 6/28/17), ___ So.3d ___, ___, 2017 WL 3426021, *11. Generally, a district court's ruling on the authentication of evidence is reviewed for abuse of discretion. Gray , 16-1195 at pp. 21-22, ___ So.3d. at ___, 2017 WL 3426021 at *11 (citing State v. Wright , 11-0141, pp. 10-11 (La. 12/6/11), 79 So.3d 309, 316 ; State v. Cosey , 97-2020 (La. 11/28/00), 779 So.2d 675, 684 )). Nevertheless, when a district court's ruling is based upon an error of law, the ruling is no longer entitled to deference by the reviewing court because "[a] district court by definition abuses its discretion when it makes an error of law." State v. Lee , 11-0398, p. 6 (La. App. 4 Cir. 1/30/12), 83 So.3d 1191, 1196 (quoting Koon v. United States , 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (internal quotation marks omitted)).

The district court did not reference the Letter in either its oral ruling or its subsequent written judgment on the motion to quash. It is thus unclear whether, or on what basis, the district court may have found the Letter to be authentic. In any event, because Mr. Ioveniti called no witness to authenticate it, and because the Letter is not self-authenticating under La. C.E. art. 902, the Letter was not properly authenticated and was thus inadmissible. To the extent the district court found otherwise, I would find that the district court abused its discretion.

The district court did find, however, in its written judgment, that the Affidavit and the Prescriptions were self-authenticating as foreign public documents under La. C.E. art. 902(3). Under La. C.E. art. 902(3), a "foreign public document" is:

A document purporting to be executed or attested in his official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (a) of the executing or attesting person, or (b) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States.

Neither the Affidavit nor the Prescriptions meet this definition for two reasons.

First, neither document is a public document. Although the term "public document" is not defined by La. C.E. art. 902(3), the comments to Article 902(3) make clear that the term "refers to documents that reflect the acts of government and the official activities of its officers, agents, and employees ...." La. C.E. art. 902(3), cmt. (b). The Affidavit is not a public document. The Affidavit makes no reference to the acts of the Belizean government or to the official activities of its officers, agents, and employees. To the contrary, the Affidavit represents that Mr. Acevedo is a pharmacist who operates the Free Town Drug Store; and the district court expressly found as much in its written judgment. Nor are the Prescriptions public documents. To the contrary, prescriptions-being health-care-related-are private documents.

Second, neither document bears a "final certification"-that is, a certification made by "a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States." La. C.E. art. 902(3). While the Affidavit purports to have been executed before and signed by a notary public, and sealed and certified by a Belizean Deputy Registrar General; neither of those officials is a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. And the Prescriptions themselves bear no certification of any kind. Thus, as a matter of law, neither the Prescriptions nor the Affidavit is a self-authenticating foreign public document under La. C.E. art 902(3). Accord Albitar v. Albitar , 16-167 (La. App. 5 Cir. 6/30/16), 197 So.3d 332, 343. The Affidavit and the Prescriptions were thus inadmissible.

Because the district court's judgment is supported by no admissible evidence, I would find that the district court abused its discretion in granting the motion to quash. Accordingly, I concur in the result as to Counts 1 and 2 and dissent from the result as to Count 6.

BROWN, J., DISSENTS IN PART AND CONCURS IN PART WITH REASONS:

I respectfully dissent in the result reached in the writer's opinion that finds the district court abused its discretion in granting the motion to quash count six of the bill of information when it found Defendant proved the defense of a valid prescription pursuant to La. C.Cr.P. art. 532(10).

In State v. Tran , 12-1219 pp. 3-4 (La.App. 4 Cir. 4/24/13), 115 So.3d 672, 674, this court held in pertinent part:

"Production of the original prescription bottle with the defendant's name, the pharmacist's name, and prescription number shall be sufficient proof of a valid prescription as provided for in this Section." [ La.R.S. 40:991 ] Id. But, while such production by a defendant would be sufficient proof of a valid prescription, it is not-as we recently held-the exclusive means by which a defendant may prove possession of a valid prescription. See State v. Williams, 12-0110, p. 5, 101 So.3d [533] at 536 ("Therefore, pursuant to the rules of statutory construction, La. R.S. 40:991 should not be read to restrict the sources of evidence a defendant may use to establish that he possessed a validly issued prescription.")

In the case sub judice , the district court, in reaching its conclusion that Defendant proved he had a valid prescription, found the affidavit of the pharmacist, Raul Acevedo, was self-authenticating under La. C.E. art. 902. Article 902 provides in pertinent part:

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
....
(3) Foreign public documents. A document purporting to be executed or attested in his official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (a) of the executing or attesting person, or (b) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.
....
(8) Authentic acts, acknowledged acts, and other instruments attested by witnesses. (a) Authentic acts, acts under private signature duly acknowledged, and instruments attested by witnesses and accompanied by affidavits, as provided by Louisiana law, whether executed in Louisiana or elsewhere. (b) Documents executed in a jurisdiction other than Louisiana accompanied by a certificate of acknowledgment executed in the manner provided by the laws of that jurisdiction by a notary public or other officer authorized by law to take acknowledgments.

The district court concluded the pharmacist, in the affidavit, attested the copy of the prescription that was attached, was a true and authentic copy of the original prescription that he maintained in the course of his business. The affidavit was signed by the Mr. Acevedo in the presence of two witnesses and notarized by a notary public on April 8, 2015. Additionally, a stamp was affixed to the affidavit pronouncing, "Apostille, Convention de La Haye du 5 October 1961." The stamp indicated it was a public document signed by a Notary Public, and certified and signed by E.O. Pennil, a Deputy Registrar General of Belize, and imprinted with the seal of the Registrar General of Belize.

I find, as did the district court, that the affidavit was authenticated pursuant to La. C.E. art. 902. Accordingly, I would affirm the district court's ruling quashing count six of the bill of information-possession of Sildenafil.

As to counts one and two-distribution of Hydrocodone, and Alprazolam, I concur in the result. As the Court explained in State v. Franklin , 13-0488 p. 5 (La.App. 4 Cir. 10/9/13), 126 So.3d 663, 667, (quoting State v. Reaves, 376 So.2d 136, 137-138 (La.1979) ):

In making the determination of whether a given issue is appropriate to raise in a motion to quash, a court should determine whether 'it is a defense which, if successful, requires dismissal of the indictment [or bill of information] regardless of the merits of the charge ... and which by its nature must be available before trial.'

I find, in this case, whether Defendant had a valid prescription is not a defense which requires dismissal of counts one and two of the bill of information. Thus, a party can illegally distribute or have possession with intent to distribute a drug under the Uniform Controlled Dangerous Substances Law ("UCDSL") but have a valid prescription to lawfully possess the drug. To find otherwise will increase the potential for abusing the defense made available under La. C.Cr.P. art. 532(10), resulting in far-reaching consequences.

      The record contains several interations of the defendant's surname-"Ioveniti," "Iovenitti," "Ioveneti," and "Iovenetti." For ease of discussion, we refer to the defendant as "Mr. Ioveniti," the spelling in the caption.

      Apparently, Mr. Ioveniti was transporting these substances not in prescription bottles but instead taped to his person.

      Since the filing of the bill of information in this case, La. R.S. 40:966(E)(1) has been redesignated as La. R.S. 40:966(C)(2)(a)-(c).

      Since the filing of the bill of information in this case, La. R.S. 40:1238.1 has been redesignated as 40:1060.13.

      Upon offering this exhibit, defense counsel stated:
      To make sure the Record is absolutely clear this time, I want to offer, file, and introduce into evidence, first of all, the original prescription given to Mr. I[o]ven[iti] by the Pharmacist [sic] in Belize, and the affidavit of the Pharmacist, which we've submitted to the State, and which is already in the Court's Record. I'm offering, filing, and introducing those at this time.
      Record, Volume II, 3/28/17 Transcript, pp. 1-2; see also Record, Volume I, p. 26 (Minute Entry for March 28, 2017, reflecting that Mr. Ioveniti offered as Defense "Exhibit 1" a prescription and an affidavit of a pharmacist).

      Record, Volume I, p. 138 (the Prescriptions). After offering Defense Exhibit 1, defense counsel stated:
      I would ask the Court to Quash the Bill of Information as far as the four prescriptions that were listed, those being the prescriptions for Hydrocodone , Alprazolam , Diazepam , and [S]ildenafil , and ask that the Bill of Information be Quashed as to those charges.
      Record, Volume II, 3/28/17 Transcript, p. 4. Subsequently, the State argued:
      Your Honor, if we look at the first prescription, the first thing that is listed on there appears to be [K]odone , that correlates with the receipt. The later parts of the prescription lists Q-ID, times 2 over 12. Your Honor, State's Exhibit 2 explains what each of these things mean. And I did have the opportunity to speak with a pharmacist. It indicates that the individual should take one pill every six hours, or four times a day, times two over twelve, means for two months.
      * * *
      So, it's four pills a day, times thirty days, gives you one hundred and twenty pills. Then the two over twelve indicates two months, which would put us at two hundred and forty pills. Even if you assume that the repeat two times, that still doesn't put him at the limit of the number of pills that were found on his person. There's nothing to establish that this was a later fill, but only that it was actually filled on this one individual time.
      Your Honor, if you look at the other prescriptions, if you look at the Viagra that was tendered, the number fourteen indicates the number of pills that the prescription was for. Mr. loven[iti] received more than the fourteen pills listed on the prescription, rather he had twenty-five pills [i]n his possession.
      Turning to the second prescription for the Valium , he is in compliance with that, as the prescription indicates for thirty pills.
      For the Xanax , again, the explanation for the reading of the prescription would be two times a day. For two times a day for one month would be sixty pills, times two, would be seventy pills. The defendant was in possession of more than, I believe, eighty-five pills, which would put him over the limit for the prescription that he was in receipt of. So, Your Honor, even based off of the information provided by Defense Counsel, which the state objects to being admissible, he still was in excess of the prescription that was written for him, which the State still argues is invalid, based off of Belize's own standards.
      Record, Volume II, 3/28/17 Transcript, pp. 7-9.

      Record, Volume I, pp. 168-69 (the Affidavit); see also Record, Volume I, p. 26 (Minute Entry for March 28, 2017).

      Record, Volume I, pp. 196-97 (the Letter); Record, Volume I, p. 26 (Minute Entry for March 28, 2017, reflecting that Mr. Ioveniti offered the Letter as Defense "Exhibit 2"). Upon offering this exhibit, defense counsel stated:
      We'd offer to the Court, and this has previously been placed in the Record, I'll mark it Defense Exhibit 2, for Identification. This was a letter to the Court, from the Pharmacist, who described why he filled that prescription. He said that, Robert Ioven[iti] presented to him, on August 1, 2013, with a prescription from a doctor at the local Public Health Hospital, which [hospital, not doctor] he names, for a four month supply of Hydrocodone tablets to be taken every four to six hours. He had a diagnosis of injury with MRl's and medical records, which he saw a local doctor there for. And the Pharmacist said he made the decision to fill the entire prescription.
      Record, Volume II, 3/28/17 Transcript, p. 11; see also Record, Volume I, p. 72 (Minute Entry for May 20, 2015, stating that "[the] Defense provide[d] [the district] court with a copy of the letter from the pharmacist in Belize"); Record, Volume I, p. 194 (Defendant's Supplemental Memorandum in Support of Motion to Quash, filed May 20, 2015, stating that "defendant Robert Ioven[iti] attached [t]hereto a letter from the dispensing pharmacist explaining the quantity of the medication and the prescribed dosage").

      Upon offering this exhibit, the prosecutor stated:
      Your Honor, I've shown Defense Counsel, this morning, but at this time I'm going to ask to offer, file, and introduce State's Exhibit 1, being the Belize Drug Formulary and Therapeutics Manual, and ask to publish it to the Court.
      * * *
      Your Honor, this is the requirements, it's my understanding, from Belize, for their rational prescription writing, as relates to a prescription that's been presented, in this case, from Belize, and based on the information contained in this documentation, this is not a valid prescription in Belize.
      * * *
      Your Honor, I will just turn to, I believe it's page number 85, the requirements for the prescription indicate[ ] not only the doctor's signature, but also the name of the doctor.
      Record, Volume II, 3/28/17 Transcript, p. 5; see also Record, Volume I, p. 26 (Minute Entry for March 28, 2017).

      Upon offering this exhibit, the prosecutor stated:
      Your Honor, I've also provided Defense Counsel the requirements from the World Health Organization, the Management of Drugs at Health Center Level.
      * * *
      [T]o substantiate, not only my argument, I've researched the requirements for a prescription abroad, so, at this time the State will offer, file, and introduce State's Exhibit 2, to help the interpretation of the actual prescription, which has been presented by Defense Counsel as being valid.
      Record, Volume II, 3/28/17 Transcript, pp. 6-7; see also Record, Volume I, p. 26 (Minute Entry for March 28, 2017).

      See also Record, Volume I, pp. 162-63.

      See also Record, Volume I, pp. 164, 166, 192.

      See also Record, Volume I, pp. 167, 193.

      The concurring judge upholds the district court judgment quashing Count 6: possession of Sildenafil (Viagra-a "legend drug," not a "controlled substance") in violation of La. Rev. Stat. 40:1060.13.

      The transcript clearly indicates that defense counsel submitted an original notarized affidavit with attachments into evidence at the hearing without objection by the State or contradictory comment by the district court. Inexplicably, the document transmitted to this court appears to be a copy of the documents. Thus, it appears that the defense counsel submitted original documents into evidence and the district court found them to be so. Under these circumstances, any administrative error or misplacing of the actual documents which resulted in a copy rather than original notarized affidavit should not disadvantage the defendant who submitted the requisite original.

      The affiant declares that he dispensed the prescriptions at issue as prescribed by a licensed medical practitioner and attached copies of the prescription for Hydrocodone and Xanax. A copy of the prescription for Viagra does not appear in the exhibit so it must be presumed that the district court found the notarized statement by the pharmacist that the pharmaceutical drugs, including the Viagra, were dispensed pursuant to a prescription issued by a medical practitioner sufficient.

      The hearing transcript indicates that the State introduced as its Exhibit "1" a copy of the Belize Drug Formulary and Therapeutics Manual and, as its Exhibit "2" a document which the State declared was "to help the interpretation" of the prescriptions presented by the defense. Neither of these documents were included in the exhibits submitted to the record by the district court, nor do they appear anywhere else in the record before this court.

      As such, the letter appears in the record attached to an opposition brief filed by the State rather than being admitted into evidence by the district court.

      Those exhibits were, according to the March 28, 2017 minute entry, as follows:
      • "[Defense] Exhibit 1-Prescription and Affidavit from Pharmacist to Authenticate from Belize";
      • "[Defense] Exhibit 2-Letter to Court from Pharmacist";
      • "[State] Exhibit 1-Belize Manual (pg 85) What Said the Prescription Is Not Valid Because the Pharmacist Did Not Sign the Prescription"; and
      • "[State] Exhibit 2-"Requested from World Health Org for Valid Prescriptions from Abroad."

      La. C.E. art. 902(3) provides that a court may dispense with the requirement of final certification if two conditions are met: (1) that the proponent shows good cause why the final certification requirement is not satisfied; (2) that a reasonable opportunity has been given to all parties investigate the authenticity and accuracy of the official documents. In this case, because Mr. Ioveniti did not offer the Affidavit and the Prescriptions as foreign public documents (that was a post hoc theory of authentication advanced by the district court after the hearing), Mr. Ioveniti was never called upon to show good cause why none of his exhibits bears a final certification. More importantly, however, Mr. Ioveniti did not give the State a reasonable opportunity to investigate the authenticity and accuracy of the Prescriptions (or the representations set forth in the Affidavit) because-for the four-and-a-half years this case has been pending-Mr. Ioveniti has never disclosed the name of the physician he claims to have written the Prescriptions. Additionally, because the district court has provided this court only with copies of documents, rather than originals, it is unclear whether the defendant complied with La. C.E. art. 904.

      In State v. Franklin , 13-0488 (La. App. 4 Cir. 10/9/13), 126 So.3d 663, the ground raised by the defendant in his motion to quash was not one set forth in La. C.Cr.P. arts. 532 and 534. This Court, in reviewing the trial court's granting of the defendant's motion to quash, explained the lists set forth in arts. 532 and 534 were "merely illustrative, and motions not based on the grounds therein should not be automatically denied (citations omitted)." Id ., 13-488 at p. 5, 126 So.3d at 667. Although this case is not directly on point, the case law for which it is cited lends guidance for the issue before this Court.


source: Caselaw Access Project

author: LOBRANO, J., CONCURS IN THE RESULT

license: Public Domain

text:
    STATE of Louisiana v. Oliver LEWIS
    NO. 2017-KA-0255
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 7, 2018
    Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, ORLEANS PARISH, Scott G. Vincent, Assistant District Attorney, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE, STATE OF LOUISIANA
    Holli Herrle-Castillo, LOUISIANA APPELLATE PROJECT, P. O. Box 2333, Marrero, LA 70073-2333, COUNSEL FOR DEFENDANT/APPELLANT, OLIVER LEWIS
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge, Dennis R. Bagneris, Pro Tempore)
    Judge Terri F. Love Oliver Lewis was convicted of aggravated rape and unauthorized entry of an inhabited dwelling. On appeal, Mr. Lewis contends he cannot receive adequate appellate review without being able to review all of the jury challenges. After reviewing, we find that numerous challenges for cause were exercised off-the-record. To ensure Mr. Lewis meaningful appellate review, we remand the matter to determine whether any documentation created contemporaneous to the trial court's rulings excusing the jurors exists.
    FACTUAL BACKGROUND AND PROCEDURAL HISTORY
    The evidence underlying Mr. Lewis' convictions is not relevant to the present appeal.
    Following his indictment on charges of aggravated rape and aggravated burglary, Mr. Lewis entered not guilty pleas, but a jury found him guilty of aggravated rape and returned the responsive verdict of unauthorized entry of an inhabited dwelling on the burglary count. The trial court denied Mr. Lewis' ensuing motion for new trial and imposed consecutive terms of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence and six years imprisonment at hard labor. The trial court granted Mr. Lewis' motion for an out-of-time appeal.
    ERRORS PATENT
    Mr. Lewis filed a pro se, handwritten, motion for new trial, upon which the trial court failed to rule before imposing his sentence. However, before the trial court sentenced Mr. Lewis, it inquired whether there existed "any other motions outstanding" and Mr. Lewis' counsel responded in the negative. Mr. Lewis then interrupted and verbally protested his innocence, while making no reference to the pending motion. Under these circumstances, the technical failure to comply with La. C.Cr.P. art. 853 does not warrant intervention.
    There are no other errors patent.
    VOIR DIRE
    Mr. Lewis maintains that the absence of a transcript of portions of the voir dire , which occurred off-the-record, including multiple rulings excusing jurors, denied him meaningful appellate review and requires that this Court reverse his convictions and remand the case for a new trial.
    The instant case presents an issue similar to that encountered in State v. Handy , 16-1071 (La. App. 4 Cir. 9/13/17), 226 So.3d 1182, in which this Court reversed the defendant's convictions and sentences based on the incomplete record of voir dire. In Handy , this Court considered a case in which the court reporter could not provide a transcript of an in-chambers proceeding during which peremptory and cause challenges had been exercised because her computer had malfunctioned. The defendant's trial counsel certified that the defense had exhausted its peremptory challenges. The record reflected that the defense challenged potential juror 20 for cause and the trial court denied the cause challenge; in addition, the State challenged potential juror 21 for cause, which the trial court granted over defense objection.
    This Court reversed the conviction and remanded the case for a new trial, observing:
    that the discussions of the jury challenges are not available and the record does not contain any documentation, i.e., minute entries, jury strike sheet-from which it can be determined whether there was a basis for the challenge for cause that the defense brought and was improperly denied by the trial court, thereby causing the defense to exercise a peremptory challenge against a juror. The record does not contain enough information for defendant to effectively challenge the denial of his challenge for cause. Id. , 16-1071, p. 9, 226 So.3d at 1190.
    Following this Court's disposition in Handy , the State sought rehearing to supplement the record with the trial court's jury panel sheet, which was submitted with a per curiam after this Court's decision, and a full transcript of the voir dire conducted on May 19, 2011. This Court denied rehearing.
    However, the Supreme Court granted writs in Handy with the following order:
    This matter is remanded to the court of appeal for supplementation of the record with the full transcript of the voir dire proceedings, the per curiam of the district court and the juror strike sheets, and for briefing, argument and opinion on defendant's assignments of error regarding voir dire in light of the newly supplemented material.
    State v. Handy , 171823, p. 1 (La. 12/15/17), 231 So.3d 609, 609-10, 2017 WL 6422411, *1.
    Similar to Handy , the parties here do not dispute that Mr. Lewis exhausted his peremptory challenges and the present record does not include a basis for the trial court's rulings excusing eleven potential jurors. Although the State argues that the defense was required to lodge an on-the-record objection to any adverse rulings excusing a juror to preserve the issue for review, the off-the-record nature of the voir dire examination renders it impossible to ascertain whether the defense objected. The trial court questioned the jurors before excusing them. Thus, presumably they were not removed pursuant to a joint motion.
    Given these facts, the Supreme Court's recent holding in Handy , and to afford Mr. Lewis meaningful appellate review, we remand the matter to the trial court to determine whether any documentation created contemporaneous to the trial court's rulings excusing the jurors exists. Mr. Lewis' "assignments of error are preserved for future appellate review." State v. Mahogany , 15-0818, p. 8 (La. App. 4 Cir. 3/16/16), 191 So.3d 615, 620. See also
    State v. Burse , 16-0826 (La. App. 4 Cir. 10/11/17), --- So.3d ----, 2017 WL 4534216 ; State v. Hickerson , 17-0093, p. 2 (La. App. 4 Cir. 9/25/17), 228 So.3d 251, 252.
    DECREE
    Due to the lack of evidence in the record regarding eleven potential jurors who were dismissed for cause, Mr. Lewis' matter is remanded to the trial court for an evidentiary hearing to determine whether any documentation exists including the trial court's rulings excusing the potential jurors.
    REMANDED

      This Court set out the substantive law relating to incomplete records as follows in Handy :
      La. Const. art. I § 19 guarantees defendants a right of appeal "based upon a complete record of all evidence upon which the judgment is based." Additionally, La. C.Cr.P. art. 843 provides in pertinent part:
      In felony cases, [...] the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.
      Nonetheless, an incomplete record may be adequate for full appellate review. State v. Thomas , 92-1428, 93-2083 (La. App. 4 Cir. 5/26/94), 637 So.2d 1272, 1274.
      The Louisiana Supreme Court enunciated a three-part standard for reviewing incomplete record claims. State v. Frank , 99-0553, pp. 20-21 (La. 1/17/01), 803 So.2d 1, 19-20. First, "[m]aterial omissions from the transcript of the proceedings at trial bearing on the merits of an appeal will require reversal." id. , 99-0553, p. 20-21, 803 So.2d at 19-20 (citing State v. Robinson , 387 So.2d 1143 (La. 1980) (finding omissions material as substantial portions of the record were missing, including the testimony of four state witnesses, voir dire examination of prospective jurors, and the prosecutor's opening statements) ); See also State v. Diggs , 93-0324 (La. App. 4 Cir. 6/29/95), 657 So.2d 1104 (finding unavailability of witness testimony required a new trial because it could not be determined whether the missing testimony was substantial or inconsequential).
      Second, "inconsequential omissions or slight inaccuracies do not require reversal." Frank , 99-0553, p. 21, 803 So.2d at 20 (citing State v. Goodbier , 367 So.2d 356, 357 (La. 1979) (declining to reverse when record did not include voir dire examination transcript and the court reporter's affidavit indicated that no objections were made by the attorneys during voir dire ) ); See also State v. Lyons , 597 So.2d 593 (La. App. 4th Cir. 1992).
      Third, "a defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing portions of the transcripts." Frank , 99-0553, p. 21, 803 So.2d at 20 (citing State v. Castleberry , 98-1388, p. 29 (La. 4/13/99), 758 So.2d 749, 773 ). "Prejudice is presumed when a defendant's challenge for cause is erroneously denied by a trial court and that defendant exhausts his peremptory challenges." State v. Thomas , 14-0510, p. 17 (La. App. 4 Cir. 5/20/15), 171 So.3d 959, 971 (citing State v. Odenbaugh , 10-0268, p. 24 (La. 12/6/11), 82 So.3d 215, 237 ).

      "Prejudice is presumed when a defendant's challenge for cause is erroneously denied by a trial court and that defendant exhausts his peremptory challenges." State v. Thomas , 14-0510, p. 17 (La. App. 4 Cir. 5/20/15), 171 So.3d 959, 971.

      The court reporter certified "that all peremptory and cause challenges during voir dire, in Section 'A' for case number 522-142, STATE OF LOUISIANA vs. OLIVER LEWIS on June 2, 2015, were conducted in side bar or off the record with the Judge."

   LOBRANO, J., CONCURS IN THE RESULT


author: Judge Roland L. Belsome

text:
    GREENFIELD ADVISORS, LLC v. Camilo K. SALAS, III and Salas & Co., L.C.
    NO. 2017-CA-0637
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 21, 2018
    Michael A. Crawford, Vincent V. Tumminello, III, TAYLOR PORTER BROOKS & PHILLIPS, L.L.P., 450 Laurel Street, 8th Floor, Baton Rouge, LA 70801, COUNSEL FOR PLAINTIFF/APPELLEE
    Camilo K. Salas, III, SALAS & CO., L.C., 650 Poydras Street, Suite 2000, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew Woods )
   Judge Roland L. Belsome

This appeal challenges the ruling to give full faith and credit to two judgments rendered by the United States District Court for the Western District of Washington (Federal District Court). For the reasons that follow, we affirm.

The Appellee, Greenfield Advisors, LLC (Greenfield) is a Seattle-based company. The Appellants contracted with Greenfield to provide consulting services for various legal cases. Greenfield maintained that pursuant to the service contract entered into by the parties the fees owed for the consulting work was approximately $700,000.00. The Appellants only paid a portion of that amount and Greenfield filed suit in King County, Washington and the Appellants removed the case to the Federal District Court. Then, the Appellants filed a motion to dismiss, disputing jurisdiction and service. The motion was denied. At that time, the Appellants moved to compel arbitration pursuant to the arbitration clause in the service contract.

The arbitrator awarded Greenfield $331,316.48, plus pre-award interest of $163,514.79, and post-award interest at 18%. Greenfield filed a motion with the Federal District Court to confirm the award. The Appellants again raised a jurisdictional argument that was denied and the Federal District Court confirmed the award and rendered judgment. The Appellants have filed an appeal of those judgments in the United States Ninth Circuit Court of Appeal. No bond was posted to stay the enforcement of the judgments.

Next, Greenfield filed an Ex-Parte Petition to Make Foreign Judgments Executory in Civil District Court for the Parish of Orleans (State District Court) pursuant to the Uniform Enforcement of Foreign Judgments Act, La. R.S. 13:4241 et seq. In response to the Petition, the Appellants filed several exceptions and a motion requesting the State District Court to deny full faith and credit of the Federal District Court judgments. The State District Court held a hearing on the Appellants' exceptions, motion to deny full faith and credit, and Greenfield's petition to make the judgments executory. After hearing the arguments of the parties, the State District Court denied the exceptions, denied the Appellants' motion and granted full faith and credit to the judgments. This appeal followed.

On appeal, the Appellants argue that the State District Court erred in giving full faith and credit to the judgments rendered by the Federal District Court because the Federal District Court lacked subject matter and personal jurisdiction. The Appellants further maintain that the State District Court was required to address the merits of the jurisdictional argument prior to granting full faith and credit to the judgments. We disagree.

It is well settled that the Full Faith and Credit Clause, Article IV, Section 1, of the Constitution of the United States, mandates that judgments have the same credit, validity, and effect in every other state of the United States that it has in the state where it is pronounced. However, the Full Faith and Credit Clause further directs that full faith and credit only be afforded to judgments rendered by a court that had jurisdiction over the subject matter and the person. The Louisiana Supreme Court discussed this issue in Schultz v. Doyle. In Schultz, Gayle Shultz filed suit in a Texas court and secured a money judgment against Louisiana residents Mr. and Mrs. Doyle. Ms. Schultz then sought to have the judgment made executory in Louisiana. The Doyles opposed the judgment being given full faith and credit in Louisiana based on their contention that the Texas court lacked personal jurisdiction. However, the Doyles had hired an attorney to defend the Texas suit. That attorney filed a pleading to challenge jurisdiction but later withdrew that pleading and filed an answer to the suit. The court reasoned that through those actions the Doyles had waived their objection to personal jurisdiction and thus, the issue was res judicata to Louisiana courts. Therefore, the Texas judgment had to be accorded full faith and credit in Louisiana. In reaching its conclusion, the Court stated that the Doyles had the option to ignore the Texas proceeding, risk a default judgment, and then challenge the jurisdictional issue in Louisiana. But, once the Doyles submitted to the jurisdiction of the Texas court, the jurisdictional issue became res judicata in any further proceedings.

Although the Appellants insist that Schultz requires a hearing on the merits of the foreign court's jurisdiction or lack thereof, the inquiry that is required is merely a determination " 'that those questions [as to jurisdiction] have been fully and fairly litigated and finally decided in the court which rendered the original judgment." ' The record before the State District Court provided the procedural history in this case which indicated that the Appellants raised the jurisdictional issue in the Federal District Court on more than one occasion. In each challenge the Federal District Court rejected the Appellants' argument. The record also indicates that the Appellants have appealed the Federal District Court's ruling on the issue of jurisdiction. The State District Court, recognizing that the jurisdictional issue had been litigated and is presently on appeal, correctly found that those decisions are res judicata on the issue. For that reason, the State District Court's ruling that the judgments against the Appellants were entitled to full faith and credit in this state is affirmed.

AFFIRMED

      The Appellants are Camilo Salas, III and his law firm Salas & Co., L.C. Although Mr. Salas argues that he did not enter into any agreement with Greenfield in his individual capacity, he is named in the judgment.

      There was also a judgment entered for attorneys' fees in the amount of $12,000.00.

      Schultz v. Doyle, 00-926, p. 9 (La. 1/17/01), 776 So.2d 1158, 1164 (citing Hampton v. McConnel, 16 U.S. (3 Wheat.) 234, 4 L.Ed. 378 (1818).

      Schultz, p. 10, 776 So.2d at 1164.

      Schultz, supra

      The trial court and the court of appeal denied giving full faith and credit to the judgment. The Louisiana Supreme Court granted a writ of certiorari and reversed.

      Schultz, p. 10, 776 So.2d at 1164 (citing Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963) ).


text:
    Swenza Hienemann THOMAS v. Royal THOMAS, Jr.
    NO. 2017-CA-0760
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 21, 2018
    Theon A. Wilson, LAW OFFICES OF THEON A. WILSON, 1100 Poydras Street, Suite 2900, New Orleans, LA 70163-2900, COUNSEL FOR PLAINTIFF/APPELLEE, SWENZA HEINEMANN THOMAS
    Mark D. Plaisance, Attorney at Law, P. O. Box 796, Thibodaux, LA 70302-0796, COUNSEL FOR DEFENDANT/APPELLANT, ROYAL THOMAS, JR.
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Dennis R. Bagneris, Pro Tempore)
    Judge Terri F. Love This appeal arises from the trial court's judgment finding plaintiff free from fault in her divorce, as well as a victim of domestic violence, and awarding plaintiff final spousal support following a divorce from defendant. Defendant contends that the trial court erred by finding that plaintiff was free from fault and for awarding $1,280.00 in monthly spousal support.
    We find that the trial court did not err by concluding that plaintiff was free from fault in the divorce from her husband, as the record revealed a history of domestic violence. Further, we find that the trial court did not abuse its discretion by awarding plaintiff $1,280.00, as representative of only a portion of her monthly expenses and less than her previous interim spousal support award. Accordingly, the judgment of the trial court is affirmed.
    FACTUAL BACKGROUND AND PROCEDURAL HISTORY
    Swenja Heinemann Thomas and Royal Thomas, Jr. were married on December 22, 2011. On November 11, 2013, Ms. Thomas filed a Petition for Protection from Abuse against Mr. Thomas. A temporary restraining order was issued. Mr. Thomas then consented to a protective order. Subsequently,
    [o]n January 23, 2014, Mr. Thomas filed a petition for divorce. On May 6, 2014, Ms. Thomas filed a motion seeking permanent spousal support. After a hearing on August 12, 2014, the trial court signed a judgment on September 1, 2015 [sic] ordering Mr. Thomas to pay final periodic spousal support to Ms. Thomas in the sum of $1,280.00 per month. Mr. Thomas timely appealed the judgment.
    Thomas v. Thomas , 16-0570, p. 1 (La. App. 4 Cir. 3/15/17), 214 So.3d 97, 97-98. Mr. Thomas' appeal contended that Ms. Thomas was not free from fault in their divorce and that the trial court erroneously included improper expenses in the final spousal support award. On appeal, this Court found that the exhibits introduced at trial were missing from the record and were unable to be supplemented. Id. , 16-0570, p. 3, 214 So.3d at 98-99. Accordingly, this Court remanded the matter to the trial court for correction of the record. Id. The corrected record is now before us on appeal.
    STANDARD OF REVIEW
    "[T]he standard of review to be applied by this court is whether the trial judge is manifestly erroneous in his factual determinations." Flamm v. Flamm , 442 So.2d 1271, 1273 (La. App. 4th Cir. 1983). "Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong." Washington v. Washington , 02-2226, p. 9 (La. App. 4 Cir. 4/23/03), 846 So.2d 895, 900. "When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings." Id. "Where a fact finder's finding is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong." Id. "[B]efore a fact-finder's verdict may be reversed, we must find from the record that a reasonable factual basis does not exist for the verdict, and that the record establishes the verdict is manifestly wrong." Id.

      The caption misspells plaintiff's name as Swenza.

      Two children were born of this union. The eldest lives in Germany and was twenty three years old at the time of the trial. The youngest lives with Ms. Thomas in the United States and was seven at the time of trial.

      The record on appeal contains the temporary restraining order, but not the protective order. However, Mr. Thomas acknowledged consenting to the order during the trial.

   " 'The manifest error standard of review also applies to mixed questions of law and fact.' "

Gordon v. Gordon , 16-0008, p. 3 (La. App. 4 Cir. 6/8/16), 195 So.d 687, 689 (quoting A.S. v. D.S. , 14-1098, p. 10 (La. App. 4 Cir. 4/8/15), 165 So.3d 247, 254 ).

The de novo standard of review applies to legal issues. Id.

FAULT

Mr. Thomas contends that the trial court erred by finding that Ms. Thomas was free from fault in the divorce. He asserts that Ms. Thomas abandoned the family home.

Trial courts have the authority to award final periodic support to parties free from fault in a divorce. La. C.C. art. 111. Specifically, in regards to divorcing parties who are also the victims of domestic abuse,

[w]hen a spouse has not been at fault prior to the filing of a petition for divorce and the court determines that party was the victim of domestic abuse committed during the marriage by the other party, that spouse shall be awarded final periodic support or a lump sum award, at the discretion of the court, in accordance with Paragraph C of this Article.

La. C.C. art. 112(B). "Freedom from fault is thus a prerequisite to a former spouse's claim for final periodic spousal support." Schmitt v. Schmitt , 09-0415, p. 3 (La. App. 4 Cir. 12/16/09), 28 So.3d 537, 540. "The claimant spouse has the burden to 'affirmatively prove' his or her freedom from fault." Id. (quoting Wolff v. Wolff , 07-0332, p. 4 (La. App. 3 Cir. 10/3/07), 966 So.2d 1202, 1205 ). "To constitute 'legal fault' which would preclude permanent alimony at divorce, the misconduct must not only be of a serious nature, but must also be an independent contributory or proximate cause of the separation ...." Bowes v. Bowes , 00-1062, p. 4 (La. App. 4 Cir. 8/15/01), 798 So.2d 996, 999 (quoting Mayes v. Mayes , 98-2228 (La. App. 1 Cir. 11/5/99), 743 So.2d 1257, 1259 ).

This Court held that "habitual intemperance or excesses, cruel treatment or outrages, and abandonment" could constitute fault. Schmitt , 09-0415, p. 3, 28 So.3d at 540. "A spouse who petitions for final periodic support need not be totally blameless in the marital discord." Id. "[F]urther, permanent alimony will not be denied to a party if their actions were considered reasonable or a justifiable response to the other spouse's provocative acts." Bowes , 00-1062, p. 4, 798 So.2d at 999.

Ms. Thomas testified that she filed a petition for protection from physical abuse from Mr. Thomas in 2013. She stated that abuse caused the end of the marriage. Ms. Thomas described the night she decided to leave the family home:

And what happened was after a long, long time of financial abuse or emotional abuse, it was just that that night, I tried to go home. And I couldn't even enter our home because he had locked a lock, which he usually never-It has several locks, and one lock, I don't-I haven't had a key to, which he was quite aware of. So I couldn't-That was the reason why I couldn't enter, and so I was locked out.
So I went to my husband's family house because I didn't know where else to go, which is like a block away, and tried several times to get in contact with him. And he did not respond at all for hours.
At one point-And he had our son with him. And so at one point, it was then about 10 o'clock or 10:30. It's such a long time ago, and I'm not quite sure what time it was. I just decided, because it got so late, to just return home. My sister-in-law was there. She also tried to get in contact with him. I constantly tried to get in contact with him just to find out when I can come home.
And so when I finally come home, he was already home. The door-So I was able to enter. Our son was sleeping in our bed. And so I just went in my son's bedroom 'cause I didn't wanted [sic] to sleep in our bed just to get away, out of the confrontation, 'cause before I came home, I had to study.
I'm a licensed tour guide here in New Orleans, and I was studying for that license. And he had already called me several times: why I was with a friend of mine. She is my-She was my tutor, and she tried to prepare me for this license. And he was calling several times, and my sister-in-law was calling several times because he didn't want me to be there.
And he had threatened me already that he wouldn't take care our [sic] son anymore and all kinds of other threats. And so he was mad already. So I tried to get away, out of the confrontation and just went in our bedroom. And then he came in there when I was already laying down, and he tried to-He said-He tried to get my phone, and he tried to snatch my purse, which was standing in one corner, 'cause I always kept my purse already with me out of previous experience that he tried to take things away from me.
And I said-I-First I struggled, 'cause I didn't wanted [sic] him to take my phone away, and he was just-He was pushing me, and then he was holding me at my throat and holded [sic] me back like that. And it caused me to fall back on the bed. And he has-He stepped on my foot, and I was just-I let go then because I figured I would get just hurt more if I wouldn't.
So he took my phone. And I didn't really quite know what to do. I was just in shock. And then he came back, and he wanted to get the car keys as well. And that would completely disable me to do whatever. So I just tried to hold on to my car keys, and I was basically laying on my car keys so he cannot snatch them away from me as well.
And he was struggling against and hurting me again by doing that because he was just trying to get to what he wanted. And, and then he let go. And instead of, of taking the car keys from me, then I was-I was still in the bedroom, and he left and he was doing whatever. I don't know. I went in the bathroom just to check, 'cause it started to hurt when I was swallowing, and I was just looking at myself to find out-And he had the nerve to come there and say: Oh, are you hurt? Oh, is Swenja hurt?
And I just felt it was just, on top of everything, so disgusting, however. Then I just took my keys, and I said: I have to-I think I have to go now.
And he just stand [sic] in front of the door, and he said: I can't let you go.
And then I tried to be smart and go through the kitchen door. And he went to the kitchen door, and he said: No, I'm not letting you go. You can't go nowhere [sic].
And he called his sister, and he told them: Yeah, just make sure that somebody is available in case I need to call you guys.
And at that moment, it just struck me from the way he was saying it he probably means-thinks that I'm
going to the police and that somebody has-he has to be-somebody has to be available for him if I call the police.
So he didn't let me go. I went back to the front door, and he just didn't let me go. And in the end, he wind [sic] up leaving, but he took-He had-Both of cars were gone, so I had no chance of-I had no phone to call the police. I had no car to go wherever. So I was just there.
And then in the morning-He returned somewhere [sic] in the night. But, and in the morning, I had a tour-guiding job. And in this business, if you don't show up, it's a lot of dollars involved, and you just basically ruin your name. So I had this-I had the tour-guiding job, and then he left and left me with errands, and I had to take my son with me to the job. And we just called a streetcar 'cause we still had no car. And I had my purse, and I just-
Until that time, I was still so in shock and-But it was clear to me after I went there and I had done my tour with my son. I thought I cannot go back. So and I met my friend, which she's the tour guide too, and she has the connection to this travel agency we're working for. And she said, you know-And I told-She said: What's wrong with you?-'cause I was wearing a turtleneck and it was quite warm. And I just said: I think I can go home no more.

Ms. Thomas then testified that her friend brought her to the police. Ms. Thomas stated that this was not the first incidence of abuse, but was "the final thing, where I said I'm not safe here at all anymore, and I need to leave and I cannot go back." Afterwards, Ms. Thomas and her young son lived in a shelter.

Further, Ms. Thomas testified that Mr. Thomas "always gets so mad, and then he loses control." She stated that Mr. Thomas

was in a crazy mind frame that I-I'm not allowed to sleep. So he would pull me. Whenever I was laying down, he would pull me out of the bed, whatever he-It was mostly my ankles or my wrists or my upper arms. And he was doing that so rapidly that two days later or a day later, I was bruised up on my wrists and on my ankles and on my arms. And it's-My sister-in-law, I told her about it. She tried to talk to him, but it's worthless. It's not getting anywhere.

Ms. Thomas stated that Mr. Thomas had pulled her through their hallway by the hair when they lived in Germany.

According to Ms. Thomas, Mr. Thomas controlled everything, including the finances. She contended that Mr. Thomas would take away her debit card and keep track of all of her phone calls. Mr. Thomas also required receipts for all of her purchases.

Mr. Thomas testified that his marriage ended because Ms. Thomas' two adult kids lived with them, but wanted to stay home and not work. He stated that "[n]either of them wanted to do anything, and their mother was supporting them with it. Anything I did was wrong. I got to the point I stayed out of it completely." However, on cross-examination, Mr. Thomas admitted that he and Ms. Thomas were not married when the two adult kids were staying with them.

In regards to locking Ms. Thomas out of the family home, Mr. Thomas testified that he and his young son went to play laser tag until around 9:00 p.m. and he did not check his phone. Mr. Thomas stated that when they returned home, they ate, showered, and went to bed. According to Mr. Thomas, Ms. Thomas was screaming when she finally was able to return to the home. Mr. Thomas stated that he did not get physical with Ms. Thomas and that he did not control the finances.

On cross-examination Mr. Thomas admitted that Ms. Thomas was not allowed to authorize repairs to her vehicle. In fact, Ms. Thomas was in a vehicular accident within a few months of the hearing and he knew there was damage to her vehicle. However, he refused to authorize repairs to fix Ms. Thomas' vehicle. Further, counsel for Ms. Thomas admitted into evidence an e-mail from Mr. Thomas to Ms. Thomas wherein Mr. Thomas wrote the following:

Swenja, I want you know that I know I can't go on without you. I've never loved anyone as much as I love you. I've sat down over the last couple of days and realized just what you've been saying all the while. I should have been nicer to your family, and I will if given a chance. I should have been the man, bringing this family together not tear it apart; and I will if given a chance. I was stubborn and unaware of the damage I was causing, even with you telling me I was looking at things wrong; all will if given a chance. I DON'T WANT A DIVORCE, I JUST WANT MY FAMILY. Your [sic] the best thing that happened to me. I haven't been to sleep since you left. Please don't do this to me, if I never understood anything before in my life, trust me I do understand. I've failed my family, I can't live with that thought. Sister cried when she found out you were gone. I've cried everyday, I haven't worked, it's tearing me apart. My biggest mistake was neglecting you, and focusing strictly on Aaron. I'm sorry, and hopefully you give me a chance to prove it. Since you've been gone I see just how much you do around here. I could never praise you enough. I promise I'll treat you like the PRINCESS you are. You will always be able to hold your head up high, please give me a chance to redeem myself. I've said things I never should have said out of anger, I never meant it. You on the other hand never reverted to those type of tactics. Love you with all my heart
* * *
I promise to treat them all the same. None of them ever done me anything. I tried to enforce my way of life on
them, wrong again on my part. Had I listened to you, and let everyone be themselves, this family would be better. I owe this to them, if only I listened; and I will if given a chance. As a parent I must offer all of our kids the opportunity to succeed. I WILL IF GIVEN ONE MORE CHANCE.
SWENJA MAJA HEINEMANN-THOMAS I LOVE YOU
Your Husband Always
Royal Alvin Thomas Jr.

"The trial court is vested with vast discretion in the determination of fault because this issue turns largely on evaluations of witness credibility." Schmitt , 09-0415, p. 3, 28 So.3d at 540. "A trial court's factual findings regarding fault in the area of domestic relations are to be given great deference, and findings of fact on the issue of a spouse's fault for the purposes of determining final periodic support will not be disturbed on appeal unless found to be manifestly erroneous." Id.

After reviewing the testimony and evidence presented, the trial court found that Ms. Thomas was a victim of domestic violence and was free from fault for the breakup of the marriage. Indelibly, the trial court's decision was based upon an evaluation of the credibility of Mr. and Ms. Thomas. This finding precludes a finding of abandonment. Given Ms. Thomas' testimony regarding the alleged abuse she suffered at the hands of Mr. Thomas, we find that the trial court did not abuse its discretion by crediting Ms. Thomas' testimony or manifestly err by determining that Ms. Thomas was free from fault.

FINAL PERIODIC SUPPORT

Mr. Thomas asserts that the trial court erroneously included attorney's fees, child care, travel expenses, and immigration costs in the award for final periodic support, which he also cannot afford to pay.

As noted above, La. C.C. art. 112(B) provides that the trial court shall award final periodic support when the spouse suffered from domestic abuse. (Emphasis added).

La. C.C. art. 112(C) states that the trial court shall consider the following factors when "determining the amount and duration" of the final periodic support:

(1) The income and means of the parties, including the liquidity of such means.
(2) The financial obligations of the parties, including any interim allowance or final child support obligation.
(3) The earning capacity of the parties.
(4) The effect of custody of children upon a party's earning capacity.
(5) The time necessary for the claimant to acquire appropriate education, training, or employment.
(6) The health and age of the parties.
(7) The duration of the marriage.
(8) The tax consequences to either or both parties.
(9) The existence, effect, and duration of any act of domestic abuse committed by the other spouse upon the claimant, regardless of whether the other spouse was prosecuted for the act of domestic violence.

Once the trial court made a finding of domestic abuse, the amount of final periodic support awarded pursuant to La. C.C. art. 112(B), "may exceed one-third of the obligor's net income." La. C.C. art. 112(D).

"The trial court is vested with much discretion in determining awards of spousal support." Shaw v. Young , 15-0974, p. 15 (La. App. 4 Cir. 8/17/16), 199 So.3d 1180, 1189. " 'Such determinations will not be disturbed absent abuse of discretion.' " Id. , (quoting Molony v. Harris , 09-1529, p. 2 (La. App. 4 Cir. 10/14/10), 51 So.3d 752, 756 ).

"Permanent alimony may cover such expenses as food, clothing, shelter, reasonable and necessary expenses for transportation, medical care, medication, utilities, household maintenance, and income tax liability arising from the alimony payments." McCarty v. McCarty , 00-2212, p. 5 (La. App. 4 Cir. 9/19/01), 798 So.2d 195, 198. "However, this Court has held that permanent alimony should not cover such expenses as newspapers, gifts, recreation, vacations and church tithes." Id.

Ms. Thomas testified that she is the single mother of the minor child of the marriage. Ms. Thomas was a "government-certified optician" in Germany, but she would have to return to college in the United States to achieve equal status here. She stated that she does not have the financial wherewithal or time to do so. Therefore, Ms. Thomas works as an optician, which is "the closest it would come to my profession." Ms. Thomas testified that these limitations decreased her earning capacity. Ms. Thomas works a second job to "make enough money to live." Further, she stated that she "cannot work more than I do right now because I have nobody besides an agency that's a babysitter for" her minor child.

Ms. Thomas' net monthly income is $2,199.77. Her monthly expenses total $3,480, leaving a shortfall of $1,280.23. Ms. Thomas was examined and cross-examined regarding her list of expenses, as depicted on her income and expense list.

Counsel for Mr. Thomas did not object to any of Ms. Thomas' expenses. Ms. Thomas requested $1,280.00 a month in final periodic support, which was less than the amount she received for interim spousal support.

Mr. Thomas testified that he was working two jobs: one for the Department of Defense ("DoD") and one for Ochsner. He stated that he received a letter from the DoD allegedly informing him that he could no longer keep his job with Ochsner. Mr. Thomas stated that he resigned from his Ochsner job approximately one month prior to the hearing. However, Mr. Thomas' counsel failed to admit a certified business document into evidence reflecting same.

Mr. Thomas testified that his monthly retirement income is "about $1,990." His net monthly income is "[s]omething like" $1,557.57. Mr. Thomas pays $698 a month for the child support of their minor child. Mr. Thomas stated that his expenses exceed his income and that being ordered to pay spousal support would "cause me a problem." Mr. Thomas did not bring his 2014 tax return to the hearing because he "didn't think [he] needed it."

On cross-examination, Mr. Thomas did not dispute that he receives roughly $3,424 a month gross income from the DoD and, up until about a month before the hearing, was receiving roughly $2,998.66 a month gross income from Ochsner. When asked about his monthly total gross income, Mr. Thomas stated that it was $3,373, as listed on the Statement of Income and Expenses. When confronted that the total gross income listed on the form, $3,373, was less than the singular gross income from the DoD, $3,424, Mr. Thomas stated that he "added my grosses off of both of those statements" and could not explain the discrepancy.

When awarding periodic final support, the trial court stated: "The Court has considered all relevant factors in determining the amount of the spousal support. Based on the testimony and exhibits presented into evidence, the Court shall grant Ms. Thomas a final periodic support of $1,280 a month."

Firstly, Mr. Thomas contends that the trial court awarded "support for expenses not necessary for maintenance." We disagree. The trial court issued a blanket award of $1,280.00 a month. The trial court did not specify what expenses that award was for. Without any delineation within the $1,280.00 award, we cannot say that the trial court awarded the support for unnecessary expenses.

Secondly, Mr. Thomas asserts that the trial court's award is excessive based on his income. Mr. Thomas' Statement of Income and Expenses did not accurately reflect his gross monthly income. His testimony and the evidence revealed that he receives around $1,990 in gross retirement income, $3,424 gross income from the DoD, and was receiving roughly $2,998.66 from Ochsner, which equals $8,412.66 in gross monthly income. Without including Ochsner, that leaves $5,414 monthly gross income, which is greater than the $3,373.00 gross monthly income reported by Mr. Thomas. Further, La. C.C. art. 112(D) provides that "where support is awarded pursuant to Paragraph B of this Article," to a spouse without fault and a victim of domestic abuse, "the sum awarded may exceed one-third of the obligor's net income." Moreover, in regards to La. C.C. art. 112, the trial court stated that it "considered all relevant factors in determining the amount of the spousal support."

Ms. Thomas testified that her ability to earn a living was impacted by the couple's move to the United States because she would be required to return to school in order to secure a job equal to her occupation in Germany. Likewise, as the single parent to the minor child, the amount of hours Ms. Thomas is able to work is limited. The trial court weighed this testimony, as well as that of Mr. Thomas, and reviewed the documentation of their respective income and expenses. As the trial court is vested with vast discretion when determining the amount of spousal support, and based on the unique facts and circumstances of this case, we cannot say that the trial court abused its discretion by awarding Ms. Thomas $1,280.00 in final periodic spousal support.

DECREE

For the above-mentioned reasons, we find that the trial court did not err by finding that Ms. Thomas was free from fault and was a victim of domestic abuse. We further find that the trial court did not abuse its discretion when determining Ms. Thomas' award for final periodic spousal support. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED

LOBRANO, J., CONCURS IN THE RESULTS

      Mr. Thomas is the father of one of Ms. Thomas' adult children.

      Ms. Thomas' income and expense list includes the following expenses:
      Rent $650.00 Electricity/gas $130.00 Water $57.00 Phone $80.00 Food (groceries) $500.00 Restaurants $80.00 Uncovered medical, etc. $100.00 Mortgage note $200.00 Gasoline $140.00 Maintenance $30.00 Parking $5.00 Books $20.00 Supplies $20.00 Clothing $80.00 Laundry & cleaning $30.00 Personal & grooming $150.00 Household supplies $50.00 Life insurance $12.00 Auto insurance $147.00 Child care $50.00 Recreation $100.00 Immigration costs $49.00 Attorney fees $500.00 Gifts to children $50.00 Gifts to others/travel $250.00 ____________________________________ Total $3480.00

      The objection made by counsel for Mr. Thomas was in reference to a discussion of alleged child support arrearages.

      Counsel for Mr. Thomas offered into evidence a copy of the letter allegedly received by Mr. Thomas. However, the copy was not certified. The trial court sustained an objection made regarding the admittance of said letter.

      $1,557.57 was also listed as his net monthly income on his Statement of Income and Expenses.

      Mr. Thomas' Statement of Income and Expenses does not indicate what date Mr. Thomas completed the form, i.e., before or after he stopped working for Ochsner.


author: Judge Tiffany G. Chase

text:
    QUARTER HOLDINGS, LLC v. Royce D. BUFKIN, Jr.
    NO. 2017-CA-0671
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 21, 2018
    Fred L. Herman, Mayra L. Scheuermann, LAW OFFICES OF FRED L. HERMAN, 1010 Common Street Suite 3000, New Orleans, LA 70112, Thomas J. Barbera, BARBERA LAW FIRM, 1010 Common Street Suite 3000, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLEE
    Dominic N. Varrecchio, 300 Lafayette Street Suite 103, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Tiffany G. Chase )
   Judge Tiffany G. Chase

Royce D. Bufkin, Jr., (hereinafter "Bufkin") seeks review of the trial court's judgment granting lessee, Quarter Holdings, LLC's, (hereinafter "Quarter Holdings") partial motion for summary judgment and the trial court's order granting Bufkin 48 hours to vacate the premises. We find there exists a procedural issue which precludes resolution of this appeal and we dismiss Bufkin's appeal for the reasons set forth below.

FACTS AND PROCEDURAL HISTORY

On September 25, 2015, Quarter Holdings paid Bufkin a deposit, along with rent for May 2016, pursuant to a lease of property located at 808-810 Bourbon Street, in New Orleans. The lease was somewhat unconventional in that Bufkin would retain possession of the property for six months and rental payments would be suspended during that time. While access to the rear service quarters area was provided to Quarter Holdings, Bufkin failed to timely vacate the main building. Quarter Holdings maintains that the parties had a valid, written lease agreement dated September 25, 2015. It pointed out that the lease contained a five year term, beginning on November 1, 2015 and ending on October 31, 2020. Quarter Holdings argued Bufkin was in breach of the lease agreement.

On May 2, 2016, Quarter Holdings filed a petition for possession of the property and for specific performance against Bufkin. Specifically, Quarter Holdings sought possession of the property and also made a claim for damages for the time it was denied access to the premises. On June 24, 2016, Bufkin filed an answer to the petition along with a reconventional demand alleging the lease was an absolute nullity and seeking to evict Quarter Holdings.

On November 7, 2016, the trial court denied Bufkin's rule for eviction against Quarter Holdings. The judgment was signed on November 17, 2016. In the judgment, the trial court noted that Bufkin failed to prove any alleged breach of the lease and/or that written notice of any alleged breach was provided.

On November 29, 2016, Quarter Holdings moved for partial summary judgment on its possessory action, directing Bufkin to vacate the leased premises and deliver possession of the premises to Quarter Holdings. On May 15, 2017, the trial court granted Quarter Holdings' motion for partial summary judgment, ordering Bufkin to vacate the leased premises and deliver possession of the property to Quarter Holdings within 48 hours of notice of signing of judgment. Notice was faxed and emailed to Bufkin on that same date. The May 15, 2017 judgment granting partial summary judgment was not designated as a final judgment and Quarter Holdings' claims for damages and court costs remain before the trial court.

On May 17, 2017, the trial court signed Bufkin's notice of intent to file supervisory writs on the judgment granting Quarter Holdings' motion for partial summary judgment and ordering Bufkin to vacate the premises. On May 19, 2017, in Case No. 2017-C-0429 (unpublished), this Court denied Bufkin's request for supervisory writs. This Court's writ denial states: "Defendant/relator seeks review of the trial court's May 15, 2017 ruling granting the plaintiff's motion for partial summary judgment and ordering that the defendant/lessor vacate the premises leased by the plaintiff/lessee within forty-eight hours of the ruling. Finding no error on the part of the trial court, we deny the writ application."

On June 19, 2017, Bufkin filed a motion for suspensive appeal in the trial court. He sought an appeal of the May 15, 2017 judgment granting Quarter Holdings' partial summary judgment and ordering Bufkin to vacate the premises. On June 20, 2017, the trial court granted the motion for appeal but converted the suspensive appeal to a devolutive appeal, finding the request for a suspensive appeal was untimely.

LAW AND ANALYSIS

The May 15, 2017 judgment at issue granted Quarter Holdings' motion for partial summary judgment. La. C.C.P. art. 1915(B)(1) provides that:

When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.

A review of the record reveals that the trial court's judgment granting the partial summary judgment was not designated as a final and appealable judgment and did not certify "that no just reason for the delay of the appeal existed." Issues on the possessory action regarding damages and court costs potentially owed to

Quarter Holdings remain before the trial court. Thus, the May 15, 2017 judgment granting Quarter Holdings' motion for partial summary judgment and ordering him to vacate the premises is not a final judgment, thus not appealable. "An appeal can be dismissed at any time when 'there is no right to appeal.' " A determination on the merits of Bufkin's appeal of the May 15, 2017 judgment is necessarily deferred until the issue of damages is rendered by the trial court or until the trial court "certifies the judgment as final, appealable, and for which no just reason for the delay of the appeal exists."

In addition, a review of Bufkin's earlier application for a supervisory writ in Case No. 2017-C-0429 demonstrates he seeks an appeal on the exact same assignments of error raised in his supervisory writ. "The proper procedural vehicle to seek immediate review of ... an undesignated partial summary judgment rendered under Article 966 E is by application for supervisory relief."

CONCLUSION

Bufkin's appeal of the May 15, 2017 judgment is hereby dismissed and the case is remanded to the trial court for a final disposition of the remaining issues. This Court finds, pursuant to La. C.C.P. art. 1915(B)(1), the judgment complained of is a non-appealable judgment.

APPEAL DISMISSED; CASE REMANDED

      The record reflects that Bufkin vacated the premises in October 2017.

      Alden v. Lorning , 2002-1668, p.5 (La.App. 4 Cir. 3/5/03), 842 So.2d 428, 431.

      Ramirez v. Evonir, LLC , 2014-1095, p.3 (La.App. 4 Cir. 4/9/15), 165 So.3d 260, 262 (quoting La. C.C.P. art. 2162 ) ).

      Alden , 2002-1668, p.6, 842 So.2d at 431.

      Ramirez , 2014-1095, p.4, 165 So.3d at 263.