author: JOHNSON, J.

text:
    Ronnice Trainor PONSON v. Aaron PONSON, Sr.
    NO. 17-CA-469
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, RONNICE TRAINOR PONSON, Theon A. Wilson, New Orleans.
    COUNSEL FOR DEFENDANT/APPELLANT, AARON PONSON, SR., Hester R. Hilliard, Jefferson.
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Robert A. Chaisson
   JOHNSON, J.

In this domestic matter, Defendant appeals the trial court's judgment pertaining to the partition of community property and various reimbursement claims. For the reasons that follow, we affirm.

FACTS & PROCEDURAL HISTORY

The parties, Ronnice Trainor Ponson and Aaron Ponson, Sr., married in July 1997 and had two children. On May 31, 2012, Ronnice filed a petition for divorce seeking a joint custody order with her being named as the domiciliary parent, exclusive use and possession of the family home and a BMW automobile, and permission to sell a Mercedes Benz automobile owned by the community. She also sought child support and a temporary restraining order prohibiting Aaron from disposing of, alienating, concealing or encumbering any of the community property, which she sought to partition at a later date. Aaron answered the petition for divorce on July 6, 2012, and asserted a reconventional demand in which he sought to be designated the domiciliary parent, child support, exclusive use and possession of the family home, and an order prohibiting Ronnice from disposing of or encumbering community property.

The parties appeared before a hearing officer on July 10, 2012, at which time several preliminary matters were addressed. During the hearing officer conference (HOC), the parties stipulated that Aaron was to have interim use and occupancy of the family home located on Bellaire Street in Harvey. As such, Ronnice withdrew her motion for use of the family home. It was also stipulated that Ronnice was to maintain insurance on and have use of the BMW, and that Ronnice had authority to sell the Mercedes.

On the same day, at 12:52 p.m., Ronnice filed a motion for fair rental value for the use and occupancy of the family home by Aaron, which was set before the hearing officer on the same day at 11:30 a.m. The "Stipulations and/or Recommendations of Hearing Officer" form from the July 10, 2012 HOC shows that both the "R" for Recommendation and the "S" for Stipulation were circled regarding the issue of rental reimbursement, which stated "Rental Reimbursement should be reserved to/deferred as follows: to the partition of the community." Additionally, both the "R" and "S" were circled indicating Aaron should pay the mortgage payments for the family residence in the amount of $1,200/month. The form was signed by Ronnice, her counsel, and Aaron who was unrepresented at the time. The stipulations and recommendations were made the judgment of the court by signature of the district court judge on the same day.

Three days later, Aaron timely filed an objection to the hearing officer's recommendations and interim judgment, specifically objecting to the rental reimbursement issue. The matter was set to be heard by the district court judge on August 30, 2012, but according to the parties was continued because of Hurricane Isaac. The matter was re-set for November 14, 2012, but again continued to January 29, 2013. The minute entry on January 29, 2013 indicates the matter was continued and was to be reset per a status conference held in chambers with counsel for both parties. The record shows that Aaron's objection to the July 10, 2012 hearing officer's recommendations and interim judgment regarding rental reimbursement was never reset or heard by the district court.

A judgment of divorce was rendered on September 27, 2013. Thereafter, on July 14, 2014, Ronnice filed a petition to partition community property. The parties subsequently filed their respective descriptive lists of assets and liabilities and both parties filed motions to traverse the other's descriptive list. During a HOC on July 17, 2015, the parties stipulated that four immovable properties-Elizardi St., Bellaire St., Monroe St. and East Velvet Lane-and the contents of the Bellaire St. home were to be appraised by the appointed appraisers. At a later HOC on August 3, 2016, the hearing officer recommended that the community property partition proceed to trial before the district court judge because he had been unable to move the matter to resolution. The matter was set for trial on October 25, 2016.

Also at the August 3, 2016 HOC, the hearing officer recommended Aaron be sanctioned in the amount of $250.00 for failing to file a completed descriptive list. Aaron filed an objection to the hearing officer's recommendation for sanctions, which was set before the district court on October 6, 2016. A minute entry of that date indicates the parties, via a telephone conference, were ordered to another HOC prior to October 25, 2016, which was the trial date for the partition of community property. The parties were ordered to provide descriptive lists with values at the HOC. According to the parties, the district court judge ordered this HOC for one last attempt to resolve the community property partition prior to trial.

The parties appeared for one last HOC prior to trial on October 20, 2016, during which numerous stipulations were entered and several recommendations were made. The parties stipulated that "[t]he mortgage reimbursement claim of Mr. Ponson set against the rental value claim of Ms. Ponson results in an equalizing payment due Mr. Ponson by Ms. Ponson of $1,776.50." Additionally, the hearing officer recommended that all immovable property, except the Elizardi property, be sold and that Aaron owed Ronnice reimbursement for her payment of the timeshare loan and maintenance fee.

On October 24, 2016, Aaron filed an objection to the hearing officer's October 20, 2016 recommendations; specifically objecting to the hearing officer's recommendation that all real estate be sold and that he pay reimbursement associated with the timeshare loan. He fax-filed a second objection on October 25, 2016, the same day the community partition trial was held, followed by the filing of the original objection on October 31, 2016, objecting to the judgment signed by the district court on October 21, 2016, relating to the October 20, 2016 HOC; specifically objecting to the rental reimbursement claim in favor of Ronnice, asserting that he did not stipulate that his mortgage reimbursement claim offset Ronnice's rental reimbursement claim with an equalizing payment owed by Ronnice.

Trial on the community property partition was held on October 25, 2016. Both Aaron and Ronnice testified and offered various exhibits into evidence. At the conclusion of trial, the district court rendered judgment, which was reduced to writing and signed on November 7, 2016. Parts of that judgment which are at issue in this appeal include the district court's order that (1) the October 20, 2016 stipulations made by the parties at the HOC be made the judgment of the court; (2) Aaron's mortgage reimbursement claim offsets against Ronnice's rental value claim, resulting in an equalizing payment due by Ronnice to Aaron in the amount of $1,776.50; (3) the real estate located on Bellaire St., East Velvet Lane and Monroe St. be sold; (4) Aaron's reimbursement claims related to Bowden St. be denied; and (5) Aaron's reimbursement claim for the maintenance of Bellaire St. be denied. It is from this November 7, 2016 judgment that Aaron appeals.

ISSUES

Aaron first argues the district court erred in ordering the immovable property sold instead of distributing the assets between the parties as required by the procedures outlined in La. R.S. 9:2801(A)(4). Second, he alleges the district court erred in failing to follow pre-trial procedures for the partition of community property. Third, he challenges the district court's adoption of the alleged stipulation regarding Ronnice's claim for rental reimbursement. Fourth, Aaron asserts the district court erred in denying his claim for reimbursement for payments made on the Bowden property, which was Ronnice's separate property. Fifth, he contends the district court erred in denying his reimbursement claim for repairs he made to the Bellaire property. Finally, he avers the district court erred in holding the objection hearing to the October 20, 2016 HOC at the community partition trial on October 25, 2016.

DISCUSSION

Order to Sell Immovable Property

Aaron first argues the district court erred in ordering the immovable property belonging to the community be sold. He contends the district court failed to follow the procedure set forth in La. R.S. 9:2801(A)(4) ; specifically, Aaron avers the district court failed to determine and equally divide the assets and liabilities of the parties before resorting to an order that the property be sold. He asserts the evidence in the record is insufficient to ascertain the value of the assets and liabilities of the community and, therefore, the matter must be remanded for completion of the proceedings.

La. R.S. 9:2801 provides the specific procedure for the judicial partition of community property and the settlement of claims arising after the dissolution of the marriage. Vedros v. Vedros , 16-735 (La. App. 5 Cir. 10/25/17), 229 So.3d 677, 680. The trial court has broad discretion in adjudicating issues raised by divorce and partition of the community and is afforded great latitude in arriving at an equitable distribution of assets between spouses. The allocation or assignment of assets and liabilities in the partition of community property is reviewed under the abuse of discretion standard. Id. Factual findings and credibility determinations made in the course of valuing and allocating assets and liabilities in the partition of community property may not be set aside absent manifest error. Benoit v. Benoit , 11-376 (La. App. 1 Cir. 3/8/12), 91 So.3d 1015, 1019, writ denied , 12-1265 (La. 9/28/12), 98 So.3d 838.

Prior to trial on the community partition, the parties had entered into several stipulations regarding the partition of much of the community property. At the time of trial, only a few issues of partition remained. Among those issues was the partition of three immovable properties-Bellaire St., East Velvet Lane, and Monroe St. According to the parties' sworn detailed descriptive lists that were filed into the record, the parties valued each of the properties differently and disagreed on the mortgage owed for each. Aaron's descriptive list identified the mortgages on East Velvet Lane and Monroe St. as liabilities but did not list the value of the outstanding mortgages; however, Aaron specifically testified that he did not agree with the amount of the mortgages listed on Ronnice's descriptive list. Even though the parties agreed to have the properties appraised, the appraisal reports for each property were never introduced into evidence by either party, and with the exception of the appraised value for the Bellaire St. property, there was no evidence of the appraised values for the properties at issue.

Aaron maintains there was not enough evidence for the district court to ascertain the value of the assets and liabilities and, thus, the district court did not and could not follow La. R.S. 9:2801 in order to properly partition the property. As such, he contends the matter must be remanded for completion of the proceedings. We disagree.

The parties appeared on October 25, 2016 for a trial on the partition of community property. The purpose of a partition under La. R.S. 9:2801 is for the trial court to make an immediate and final apportionment of the assets and liabilities. Stewart v. Stewart , 585 So.2d 1250, 1253-54 (La. App. 4th Cir. 1991), writ denied , 590 So.2d 594 (La. 1992). It was incumbent upon the parties to present evidence at the partition trial regarding the valuation of the assets, as the trial court necessarily values the assets based on the evidence presented. The parties did not present any objective evidence regarding the value of the properties, but rather relied only on their sworn descriptive lists.

Under La. R.S. 9:2801(A)(4), the trial court is authorized to allocate to one party or the other a particular asset, and if this results in an unequal net distribution, the court is directed to order the payment of an equalizing sum of money. The court is also alternatively authorized to order the asset sold at a private sale. Kinchen v. Howes , 93-2366 (La. App. 4 Cir. 5/26/94), 637 So.2d 1282, 1288. Specifically, "[i]n the event that the allocation of an asset...would be inequitable to a party, the court...may order the private sale of the asset." La. R.S. 9:2801(A)(4)(e).

Under the circumstances of this case, we find no merit to Aaron's claim that the district court failed to follow La. R.S. 9:2801 in partitioning the community property. The record shows the trial judge carefully considered the evidence presented by the parties. Based on the minimal evidence and the lack of objective evidence offered by the parties regarding the value of each property and the outstanding mortgages, the trial judge implicitly found that the allocation of the property to one party or the other would be inequitable and ordered the properties sold. We cannot say that the district court's choice of one method of partition (i.e. sale of the property) over the other (i.e. allocation of the property to one party) was an abuse of discretion in this case. See Patin v. Patin , 462 So.2d 1356, 1358 (La. App. 3d Cir. 1985).

Failure to Follow Pre-Trial Procedures

Aaron next argues that the district court failed to follow certain pre-trial procedures required by the local rules for the district court for the partition of community property. Specifically, he maintains the hearing officer did not make a scheduling order, there was no meeting with the parties prior to a pre-trial conference with the district judge for the purpose of preparing a joint pre-trial order, and no pre-trial order was ever prepared or submitted to the court in violation of Rules of the Louisiana District Courts-Rule 30.2.

Under La. C.C.P. art. 193, "[a] court may adopt rules for the conduct of judicial business before it, including those governing matters of practice and procedure which are not contrary to the rules provided by law." The purpose of local rules is "to aid in the orderly and efficient conduct of litigation." Monroe Surgical Hosp., LLC v. St. Francis Medical Ctr., Inc. , 49,600 (La. App. 2 Cir. 8/21/14), 147 So.3d 1234, 1247-48, writs denied , 14-1991 (La. 11/21/14), 160 So.3d 975 and 15-216 (La. 2/6/15), 158 So.3d 824. It is within the trial court's great discretion to construe, interpret, apply or enforce its own rules. Id. Further, it is within the trial court's discretion to dispense with the strict application of local rules when they are unnecessary to the resolution of a dispute. Regions Bank v. Cabinet Works, LLC , 11-748 (La. App. 5 Cir. 4/10/12), 92 So.3d 945, 959.

Aaron cites no authority for the proposition that the failure of a court to set a scheduling order or the failure of the parties to file a pre-trial order is reversible error. The rule regarding pre-trial conferences and pre-trial orders itself expressly states that such matters are "[a]t the discretion of the district judge." Additionally, the rule places the obligation to prepare the pre-trial order on the parties and/or their counsel, not the court.

The record indicates that neither party objected to the lack of a scheduling order or the preparation of a pre-trial order; rather, Aaron is raising this issue for the first time on appeal. Appellate courts will not consider issues which were not pleaded in the court below and which the trial court has not addressed for the first time on appeal. Lepine v. Lepine , 17-45 (La. App. 5 Cir. 6/15/17), 223 So.3d 666, 673. Because Aaron did not present this issue to the district court for consideration, he is precluded from having this Court consider the merits of this issue.

Rental Reimbursement

Aaron raises several issues related to the stipulation regarding rental reimbursement. He first argues that he never stipulated to Ronnice's entitlement to rental reimbursement during the October 20, 2016 HOC and, thus, the district court erred in adopting the stipulation as the judgment of the court. He further asserts that Rules for Louisiana District Court-Rule 35.4 requires a HOC stipulation to contain an acknowledgement that no objection or appeal may be filed, but this acknowledgment language is missing from the alleged stipulation. Aaron also contends a separate and final consent judgment was never prepared as required by local practice.

A stipulation has the effect of a judicial admission or confession, which binds all parties and the court. R.J. D'Hemecourt Petroleum, Inc. v. McNamara , 444 So.2d 600, 601 (La. 1983), cert. denied , 469 U.S. 820, 105 S.Ct. 92, 83 L.Ed.2d 39 (1984). Stipulations between the parties are binding on the trial court when not in derogation of law. Id.

When former spouses agree to stipulations regarding issues of child support or community property, such stipulations constitute binding compromises. See Catalanotto v. Catalanotto , 14-708 (La. App. 1 Cir. 12/10/14), 168 So.3d 463, 466. A compromise is "a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship." La. C.C. art. 3071. It must be made in writing or recited in open court. La. C.C. art. 3072.

Aaron argues that he never entered into a stipulation. The record shows otherwise. The record shows that the parties entered into a written stipulation during the October 20, 2016 HOC, specifically stating that "[t]he mortgage reimbursement claim of Mr. Ponson set against the rental value claim of Ms. Ponson results in an equalizing payment due Mr. Ponson by Ms. Ponson of $1,776.50." The stipulation was signed on the same date by the hearing officer, Mr. Ponson, his counsel, Ms. Ponson, and her counsel, below language that stated, "[t]he parties agree to the recommendations marked as a stipulation(s)." The stipulation at issue was specifically referenced as such by the circling of "S" on the page on which the stipulation appeared. According to the key on the form, "S=Stipulation."

Although the form did not include an acknowledgement that no objection or appeal may be filed as required by Rules for Louisiana District Court-Rule 35.4, it clearly provided that the stipulations of the parties were to be made a consent judgment of the court in accordance with La. C.C. art. 3071, which sets forth the definition of a compromise. The next day, the district court judge signed that portion of the form immediately below the parties' signatures captioned, "Judgment," which provided that the stipulations were made the consent judgment of the court in accordance with La. C.C. art. 3071. Thereafter, on October 25, 2016, Aaron filed an objection to the stipulation.

A compromise precludes the parties from bringing a subsequent action based upon the matter that was compromised. La. C.C. art. 3080. Therefore, we find that Aaron's objection was improper, as he had previously compromised and stipulated that his mortgage reimbursement claim was offset by Ronnice's rental value claim. Accordingly, we find no error in the district court adopting the stipulation as a judgment of the court and refusing to entertain Aaron's objection on this stipulation.

Aaron also argues that Ronnice's claim for rental reimbursement was never properly before the court and should have been denied. He argues the hearing officer improperly made a recommendation on July 10, 2012 that the issue of rental reimbursement should be deferred to the partition of the community because the handwritten motion for fair rental value filed on the date of the hearing was not properly served on him. We find Aaron waived this objection when he subsequently entered into the stipulation regarding rental reimbursement at the October 20, 2016 HOC.

Reimbursement for Mortgage Payments on Separate Property (Bowden St.)

Aaron also argues that the district court erred in denying his claim for reimbursement for one-half the mortgage payments the community made on Ronnice's separate property on Bowden St. He claims he presented the mortgage statement for the Bowden St. property that showed the mortgage obligation was $829.77/month. He further asserts this mortgage obligation was paid by the community from the date of the marriage, July 26, 1997, until its termination on May 31, 2012.

"A separate obligation of a spouse is one incurred by that spouse prior to the establishment of a community property regime, or one incurred during the existence of a community property regime though not for the common interest of the spouses or for the interest of the other spouse." La. C.C. art. 2363. "If community property has been used during the existence of the community property regime or former community property has been used thereafter to satisfy a separate obligation of a spouse, the other spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used." La. C.C. art. 2364. Whether a reimbursement claim is allowed is a finding of fact which is reviewable under the manifest error standard. Vedros , 229 So.3d at 681.

The burden of proof is on the party making a reimbursement claim. Id. at 685. Aaron listed the Bowden St. property as a community asset and the mortgage on the property as a community liability on his sworn detailed descriptive list. Nevertheless, Ronnice's counsel indicated at trial that there did not appear to be any dispute that the Bowden St. property was Ronnice's separate property. However, Aaron's counsel declined to stipulate to that fact.

Aaron testified the Bowden St. property was purchased before the marriage with the intent that it would be the parties' matrimonial domicile. However, there was no testimony as to who purchased the property or whether the parties ever lived in the home during the marriage. Aaron further testified that he and Ronnice took out a mortgage on the property in February 2001 and refinanced it after Hurricane Katrina. He stated that he and Ronnice were both named on the mortgage. He offered a billing statement from June 2011 showing the mortgage note on the property was $827.77.

In denying Aaron's claim for reimbursement of the mortgage payments on the Bowden St. property, the district court found Aaron did not carry his burden of proof. We agree. Even if we were to assume the Bowden St. property was the separate property of Ronnice, it is unclear whether the property ever benefitted the community as the family home at any time during the marriage, which affects the amount of reimbursement to which Aaron would be entitled. More importantly, there was no evidence (such as testimony, canceled checks, or bank statements) regarding the total amount paid on the mortgage from the date of marriage through its termination or what funds were used to pay the mortgage. Thus, Aaron failed to prove his entitlement to reimbursement and the district court was not manifestly erroneous in denying his claim.

Reimbursement for Repairs to Bellaire Property

Aaron also argues the trial court erred in denying his claim for reimbursement for maintenance and repairs he made to the family home on Bellaire St. after he had been granted interim use and occupancy. He contends that his testimony and supporting invoices prove the repairs were made and, therefore, the trial court erred in refusing to award reimbursement. He cites no legal authority to support his two sentence argument.

At the trial on the partition of community property, Aaron testified that he performed maintenance and remodeling work on the family home after he had been awarded interim use and occupancy. Specifically, he stated that he had to replace a den wall in November 2012 because of termite damage, had roofing work performed in February 2013, and had air conditioning work done in October 2014 and June 2015. He offered four invoices as evidence he paid $6,300 for the work on the den, $6,200 for the roofing work, $2,300 for the October 2014 air conditioning work, and $1,123 for the June 2015 air conditioning work. The trial court denied these reimbursement claims after concluding Aaron failed to carry his burden of proof.

At the time Aaron made the repairs to the den wall and the roof in November 2012 and February 2013, the community property regime was still in existence. Under La. C.C. art. 2367,

[i]f separate property of a spouse has been used during the existence of the community property regime for the acquisition, use, improvement or benefit of community property, that spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used. The liability of the spouse who owes reimbursement is limited to the value of his share of all community property after deduction of all community obligations.

As previously noted, the party seeking reimbursement bears the burden of proving he is so entitled. Under Article 2367, Aaron had the burden of proving that he used his separate property to make the repairs. We agree with the trial court that Aaron failed to carry his burden of proof.

According to the invoices submitted by Aaron, the repair to the den wall and the roofing work was done by Frankie Taylor, who was Aaron's neighbor. Regarding the work on the den, Aaron testified that he paid the $6,300 invoice in cash. He stated he did not know "offhand" where he obtained the money to pay for the repairs but explained that he earned the money. However, when asked when or how he earned the money, he was unable to recall.

As to the roofing work, Aaron likewise testified that he paid the $6,200 invoice in cash. He stated that he obtained the cash from a safe at the home. He again explained that he earned the money from working, but refused to divulge the source of the money. When further questioned, Aaron testified that his sister gave him the money as a gift. He estimated that she gave him half of the money needed to pay the invoice. Aaron stated his sister put the money into his bank account but could not offer any documentation to corroborate his testimony.

Based on this evidence, we find Aaron failed to prove he paid for the roofing work and wall repair with his separate property as opposed to community funds.

Regarding the air conditioning work, the record shows the work was performed after the judgment of divorce. According to the 2009 Revision Comments to Article 2367, after termination of the community, "[t]he rights of the former spouses for expenses and works ... are governed by the rules of co-ownership in Articles 804 and 806." Under La. C.C. art. 806, a co-owner who has incurred necessary expenses or expenses for ordinary maintenance and repairs is entitled to reimbursement from the other co-owners in proportion to their shares.

Pursuant to La. C.C. art. 2369.3, between the termination of a community property regime and partition, the spouse in possession of former community property has a duty to preserve the property in the manner in which it was always kept. Subsection (f) of the official comments to Article 2369.3 states that "[a] spouse who incurs expenses in compliance with the obligation imposed by this Article is entitled to reimbursement for one-half the costs in accordance with general principles of the law of co-ownership. C.C. Art. 806."

The jurisprudence holds that expenses incurred between the termination of the community and partition of the community are awarded only when the party claiming reimbursement can prove that the work was necessary and that such work enhanced the value of the property. Knighten v. Knighten , 00-1662 (La. App. 1 Cir. 9/28/01), 809 So.2d 324, 328, writ denied , 01-2846 (La. 1/4/02), 805 So.2d 207 ; Norman v. Norman , 99-2750 (La. App. 4 Cir. 7/12/00), 775 So.2d 18, 25.

Again, Aaron bore the burden of proving his right to reimbursement for the air conditioning repairs. Aaron submitted two invoices from Henry's AC showing air conditioning repairs: one dated October 13, 2014 for the replacement of a condenser unit and one dated April 7, 2015 for the replacement of an evaporator coil, although Aaron testified that the work was actually done in June 2015. He testified that he paid both invoices in cash. Neither invoice indicates the location of where the work was performed, or that it was done at the Bellaire St. property.

In denying these reimbursement claims, the trial court specifically found that Aaron failed to prove that he paid the invoices. The trial judge clearly did not find Aaron credible based on the whole of his testimony. The trial judge had Aaron before him and could observe his demeanor while he testified; we only have a written transcript. The record shows Aaron to be less than forthcoming about the details surrounding the work and source of his payments. Absent corroborating evidence establishing payments of the invoices, the trial court was faced with a credibility choice and, based on our review of the record, we cannot say the trial judge's evaluation of Aaron's credibility was unreasonable or manifestly erroneous. See Fouchi v. Fouchi , 487 So.2d 496, 499 (La. App. 5th Cir. 1986), writ denied , 493 So.2d 636 (La. 1986).

Accordingly, we find the trial court did not abuse its discretion in denying Aaron's reimbursement claim for repairs made to the Bellaire St. property.

Hearing on Objection to October 20, 2016 HOC

Finally, Aaron argues that the district court erred when it held the hearing to his objection to the October 20, 2016 HOC on the same day as trial, October 25, 2016. He contends the local rules require the objection hearing be held not less than 30 days from the filing of the objection, and here it was held only five days from the HOC.

Aaron fails to indicate how he was prejudiced by the expeditious objection hearing. The parties were well aware that the partition trial was set for October 25th. The parties also knew the purpose of the October 20th HOC was for one last attempt to resolve any community property partition issues prior to trial. Thus, the same issues that were addressed at the HOC were already scheduled for trial before the district court judge. Additionally, as discussed supra , it is within the trial court's great discretion to construe, interpret, apply or enforce its own rules. Monroe , 147 So.3d at 1247-48. Accordingly, we find no merit to this issue.

DECREE

For the foregoing reasons, we affirm the November 7, 2016 judgment in its entirety. The costs of this appeal are assessed against Appellant, Aaron Ponson.

AFFIRMED

      Among the issues addressed were child custody and child support, neither of which are at issue in this appeal. Thus, no rulings pertaining to child custody or child support will be discussed in this opinion.

      It appears this motion, which was handwritten, was filed during the HOC after the parties stipulated to Aaron's use and occupancy of the family home and after Ronnice withdrew her request for use and occupancy of the home.

      The record shows that in addition to the rental reimbursement issue, Aaron objected to the July 10, 2012 hearing officer's recommendations regarding child custody and child support. Unlike the rental reimbursement issue, Aaron's objections to child custody and child support issues were ultimately heard by the district court.

      The Court later found Aaron's objection to the sanction untimely because the written objection was not timely filed into the record after being timely fax-filed.

      According to Aaron's trial testimony, the Bellaire St. property appraised for $122,000 and had a balance of $14,792.71 owed on the mortgage.

      There is no indication that either party used the appraised values in their sworn descriptive list.

      We note that a trial court is not required to accept at face value a party's valuation of assets, debts or claims against the community. Ellington v. Ellington , 36,943 (La. App. 2 Cir. 3/18/03), 842 So.2d 1160, 1166, writ denied , 03-1092 (La. 6/27/03), 847 So.2d 1269.

      We note that whenever mortgage payments are paid in connection with the marital home which constitutes the separate property of one spouse, the community is entitled to reimbursement for principal only. Payments for interest, taxes, and insurance are generally not considered as reimbursable expenses to the community because the community has had the benefit of using the house as the marital residence. Vedros , 229 So.3d at 682-82.


source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    In re: MEDICAL REVIEW PANEL PROCEEDINGS in the Matter of Meagan Boudoin and Sherie Boudoin v. OCHSNER CLINIC FOUNDATION, Olawale Sulaiman, M.D., Abbas El-Say Ed Abbas, M.D., Donald Gainer, M.D., Melissa Matte, M.D. and Christie Degrange, M.D.
    NO. 17-CA-488
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, MEAGAN BOUDOIN AND SHERIE BOUDOIN, DaShawn Hayes, New Orleans
    COUNSEL FOR DEFENDANT/APPELLEE, OCHSNER CLINIC FOUNDATION, ET AL, Raymond P. Ward, William K. Wright, IV, New Orleans
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson
   CHAISSON, J.

In this medical malpractice claim, plaintiffs appeal a judgment of the trial court that sustained defendants' exception of prescription. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On January 2, 2014, pursuant to the provisions of La. R.S. 40:1299.41 et seq. , Meagan Boudoin and Sherie Boudoin filed a Petition for Medical Review Panel with the Division of Administration, alleging damages as the result of various acts of medical negligence by defendants. In the petition, Meagan Boudoin brought a claim for medical malpractice for injuries that she sustained as a result of alleged negligent medical treatment that she received as a patient of defendants. Also in the petition, Meagan's mother, Sherie Boudoin, brought a wrongful death claim against defendants based upon the same alleged acts of medical negligence. The petition alleges that the medical negligence occurred during surgeries that Meagan underwent on January 5 and 6, 2011, which ultimately resulted in her death on January 6, 2011. The petition further alleges that Sherie Boudoin did not become aware that Meagan's death was the result of the surgical procedures and anesthesia until February 4, 2013.

In response to the Boudoins' petition, on August 6, 2014, defendants filed a Petition to Allot A Case Number and a Peremptory Exception of Prescription in the 24th Judicial District Court. This initial exception of prescription, which was filed based upon the facts as alleged in the Boudoins' petition, was overruled by the trial court. Subsequently, defendants took the deposition of Sherie Boudoin and thereafter filed a second exception of prescription relying upon the responses of Ms. Boudoin in her deposition. On February 13, 2017, the trial court sustained defendants' second exception of prescription. The Boudoins now appeal that judgment, arguing that it was error for the trial court to consider defendants' second exception of prescription when no new evidence was presented on the second exception, and further that the trial court erred in its application of the substantive law of prescription in sustaining the exception.

DISCUSSION

The Boudoins, contending that defendants have presented no new evidence in support of their re-urged exception of prescription, argue that the law of the case doctrine precludes the trial court from considering the re-urged exception.

La. C.C.P. art. 928(B) provides:

The peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision and may be filed with the declinatory exception or with the dilatory exception, or both.

La. C.C.P. art. 1152 provides, in pertinent part:

A defendant may amend his peremptory exception at any time and without leave of court, so as to either amplify an objection set forth or attempted to be set forth in the original exception, or to plead an objection not set forth therein.

In analyzing our jurisprudential application of the "law of the case" doctrine in light of these articles, this Court, in Lomont v. Myer-Bennett , 16-436 (La. App. 5 Cir. 12/14/16), 210 So.3d 435, 444, has previously stated:

The Louisiana Supreme Court has interpreted these articles to allow for the re-urging of a previously overruled peremptory exception under certain circumstances. It is apparent that interlocutory orders overruling this and similar peremptory exceptions cannot be binding upon the trial court when it timely-but later-determines error of judgment based upon the matter as submitted or upon subsequent disclosures in the record which require a contrary holding. Art. 928, C.C.P., Comment (c). In following this rule, appellate courts have recognized the right of a defendant to re-urge a peremptory exception, even after it has previously been overruled by an appellate decision. The ability of a defendant to re-urge a previously overruled peremptory exception is, however, not unrestricted, but rather is limited by the discretionary "law of the case" doctrine. (citations omitted)

The law of the case doctrine embodies the rule that an appellate court will not reconsider its own rulings of law in the same case. Herrera v. Gallegos , 14-935 (La. App. 5 10/28/15), 178 So.3d 164, 168. "[T]he 'law of the case' rule is merely a court practice usually applied at the appellate court level in regard to parties who have had the identical issue presented and decided previously by that appellate court in an earlier appellate proceeding in the same case." Babineaux v. Pernie-Bailey Drilling Co. , 261 La. 1080, 262 So.2d 328, 332 (1972). In this matter, there is no indication that either party sought appellate review of the trial court's denial of defendants' first exception of prescription.

"When the law of the case is applied to certain trial court rulings, it is for that court a discretionary guide. The law of the case rule cannot supplant the Code of Civil Procedure provision which clearly permits a reconsideration of the overruling of peremptory exceptions." Id. at 332-33. (citations omitted) This Court has specifically held that a party may re-urge a peremptory exception of prescription after the exception has initially been denied by the trial court. Herrera , 178 So.3d at 167. While our law does not countenance the re-urging of a previously denied exception where no new evidence or argument is presented for the trial court's consideration, our law clearly contemplates the right of a party to re-urge a peremptory exception where new evidence and/or argument is presented for the trial court's consideration. See Lomont , 210 So.3d at 444. In the case before us, in support of their re-urged exception of prescription, defendants presented the relevant deposition testimony of Sherie Boudoin, which was obtained subsequent to the trial court's ruling on the initial exception. Nothing precluded the trial court from considering the re-urged exception and the new evidence submitted in support of it, and we find no abuse of the trial court's discretion in considering the re-urged exception. This assignment of error is without merit.

We next address the Boudoins' argument that the trial court erred in sustaining defendants' re-urged exception of prescription on the merits.

Prescription on a claim of medical malpractice is governed by La. R.S. 9:5628(A), which provides, in pertinent part, that a medical malpractice claim must be brought "... within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect."

Under this statute, prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. Campo v. Correa , 01-2707 (La. 6/21/02), 828 So.2d 502, 510. A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Id. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Id. at 510-11. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Id. at 511. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start the running of prescription. Id.

Ordinarily, the party urging prescription bears the burden of proof at the trial of the exception; however, if the petition is prescribed on its face, the burden shifts to the plaintiff to show that the action has not prescribed. Palazola v. IMC Consulting Eng'rs, Inc. , 16-22 (La. App. 5 Cir. 6/30/16), 197 So.3d 782, 784. On the trial of a peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 931. Herrera v. Gallegos , 13-204 (La. App. 5 Cir. 10/9/13), 128 So.3d 306, 309. When evidence is introduced at a hearing on an exception of prescription, the trial court's findings of fact are reviewed under the manifest error standard. Id.

In the case before us, because the Boudoin's petition was filed more than a year after the date of the alleged malpractice, it is prescribed on its face and the burden is on the Boudoins to show that it is not prescribed. On the trial of defendants' re-urged exception of prescription, defendants submitted excerpts of the deposition testimony of Sherie Boudoin, in which she stated that shortly after Meagan's death, Meagan's father said "something was done wrong here, we need to figure out what happened." Sherie Boudoin further stated that approximately two months after Meagan's death, she was discussing Meagan's death with her own personal physician, Dr. Garcia. She testified that when she told Dr. Garcia that her understanding was that Meagan experienced a change in blood pressure during the surgical procedure and that it appeared she had a stroke, Dr. Garcia responded that she has "people walking around with that blood pressure every day." Sherie Boudoin then stated that "when Dr. Garcia first said what she said to me, of course a flag kind of went off."

This testimony appears to directly contradict the allegation in the petition that Sherie Boudoin had no knowledge of potential malpractice until February 4, 2013. When she was asked in her deposition about the date of February 4, 2013, she was unable to attach any significance to that date or to identify any information that she acquired on that date regarding Meagan's death. She did testify that an employee of Ochsner told her that something was done wrong regarding Meagan's treatment; however, she could not identify the employee or when the alleged statement was made, nor could she relate the substance of what the employee said to her. Although she did indicate that she might have been thinking about a conversation she had with Dr. DeGrange, which was discussed earlier in her deposition, that portion of her deposition was not introduced at the trial of the exception, and therefore neither the substance nor the date of that conversation is known to this Court.

In response to defendants' exception of prescription, Sherie Boudoin did not introduce any evidence to attempt to prove the allegation in her petition that she first learned of potential malpractice on February 4, 2013, or to establish any other date upon which she learned information that was enough to excite attention and call for inquiry into the circumstances of Meagan's death.

In sustaining defendants' re-urged exception of prescription, the trial court found that the "evidence establishes that a few months after Meagan Boudoin's death, Sherie Boudoin discovered facts that would enable plaintiff to reasonably conclude that her daughter was the victim of medical negligence. Consequently the one-year prescriptive period began to run at the time of discovery in approximately April 2011."

We find that the mere suspicion of Meagan's father that "something was done wrong here, we need to figure out what happened," is not sufficient constructive knowledge of any actual facts regarding Meagan's treatment that would commence the running of prescription. We also find it questionable as to whether the statement of Dr. Garcia, who was not involved in the treatment of Meagan and who presumably did not review any of Meagan's medical records, would be sufficient constructive knowledge, in and of itself, to commence the running of prescription. However, in response to Dr. Garcia's statement, Sherie Boudoin indicated that "of course a flag kind of went off," which is an acknowledgement that she believed that she was being given sufficient information to excite attention, put her on guard and call for inquiry. Furthermore, Sherie Boudoin introduced absolutely no evidence to support her self-serving allegation that she first learned of potential malpractice on February 4, 2013, or to establish any other date, within one year prior to the filing of her petition, upon which she first learned of potential malpractice. Under these circumstances, we are unable to say the trial court was manifestly erroneous in finding that Sherie Boudoin discovered facts within a few months of Meagan's death from which she could reasonably conclude that Meagan was the victim of medical negligence. Consequently, prescription on these medical malpractice claims had tolled at the latest one year later, in April of 2012. Plaintiffs' claims, filed on January 2, 2014, are clearly prescribed.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court which sustained defendants' exception of prescription and dismissed plaintiffs' claims with prejudice.

AFFIRMED

      Internally within plaintiffs' petition, Meagan Boudoin's first name is alternatively spelled "Meagan" and "Maegan." In this opinion, we use the spelling "Meagan," which is the spelling used in the caption of the petition.

      Meagan Boudoin died on January 6, 2011, three years prior to the filing of the petition. Because the petition purports to bring an individual claim by Meagan, rather than a proper survival action by her surviving heirs, and this error was not challenged by defendants, both the judgment below and the appeal record classify Meagan Boudoin as an individual plaintiff in this litigation. Since this error does not affect the analysis or resolution of defendants' exception of prescription, this opinion will likewise simply refer to Meagan Boudoin as an individual plaintiff.

      We assume that Dr. DeGrange referred to in the excerpt of Sherie Boudoin's deposition is Dr. Christie DeGrange, who was Meagan Boudoin's primary care physician and is a named defendant in this lawsuit.


author: CHEHARDY, C.J.

text:
    Abdullah MUHAMMAD a/k/a Kirk Spencer v. Ricky BABIN, District Attorney
    NO. 17-CA-548
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2018
    PLAINTIFF/APPELLANT, ABDULLAH MUHAMMAD A/K/A KIRK SPENCER, In Proper Person
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson
   CHEHARDY, C.J.

This appeal arises in the course of litigation instituted by plaintiff, Abdullah Muhammad a/k/a Kirk Spencer, to obtain records from the St. James Parish District Attorney's Office relating to his 1992 first degree murder conviction. For the reasons fully discussed herein, we reverse the district court's judgment as amended June 13, 2017, sustaining the State's exception of no right of action.

PROCEDURAL HISTORY

Plaintiff is serving a sentence of life imprisonment for his 1992 conviction of first degree murder. His conviction and sentence were affirmed by this Court on direct appeal, see State v. Spencer , 93-571 (La. App. 5 Cir. 1/25/94), 631 So.2d 1363, and became final in 1995 when the Louisiana Supreme Court declined certiorari review. See State v. Spencer , 94-488 (La. 2/3/95), 649 So.2d 400. Since then, plaintiff has continued to challenge his conviction and sentence. In 2004, he sent correspondence to the St. James Parish District Attorney's Office requesting copies of the District Attorney's files in Docket Numbers 1695 and 1696. On July 7, 2004, Assistant District Attorney Anthony T. Marshall ("A.D.A. Marshall") sent plaintiff a letter notifying him that the cost of copying his file was $182.00. On September 23, 2004, A.D.A. Marshall sent plaintiff a second letter which read, "Enclosed is the copy of the District Attorney's file as you requested."

On February 3, 2005, plaintiff filed a "Motion to Compel" production of the District Attorney's file in Docket No. 1695, alleging that he had paid the District Attorney for a copy of the files in Docket Nos. 1695 and 1696, but did not receive a copy of the file in Docket No. 1695. Plaintiff filed this motion to compel in the Twenty-Third Judicial District Court under Docket No. 1695. On February 3, 2005, the district court denied this motion without reasons. Plaintiff sought supervisory review of that denial, and on March 4, 2005, this Court denied plaintiff's writ "on the presentation." State of Louisiana ex rel. Abdullah Muhammad v. Burl Cain , 05-249 (La. App. 5 Cir. 3/4/05) (unpublished writ disposition).

Several years later, on or about May 22, 2013, plaintiff's counsel, Michael J. Rocks, sent a public records request via certified mail to Ricky Babin, District Attorney for the Twenty-Third Judicial District, requesting the opportunity to inspect and copy all of the District Attorney's records related to plaintiff's criminal case in Docket No. 1695. The return receipt indicates that Mr. Rocks' letter was received on May 31, 2013. On or about June 27, 2013, Mr. Rocks sent a second request via certified mail. The return receipt on the second certified letter indicates that the letter was unclaimed. On August 2, 2013, Mr. Rocks sent a third and final request via certified mail. The return receipt on this final letter reflects that it was received, though the date of receipt is illegible.

With no response forthcoming, on July 14, 2014, plaintiff filed a "Petition for Writ of Mandamus under the Louisiana Public Records Act," naming as defendants the Office of the District Attorney for the Parish of St. James and District Attorney Ricky Babin, in his official capacity as custodian of records (hereinafter referred to collectively as "the District Attorney"). In this petition, plaintiff alleged that he and his attorneys had repeatedly requested from the District Attorney copies of the case files from his first degree murder proceeding and that the District Attorney had failed to respond to the requests. Plaintiff's petition further alleged that, pursuant to the Public Records Law, the custodian of records bore the burden of establishing the current location of the requested records, the last known location of the requested records, or the efforts which had been made to attempt to locate the requested records, and that the District Attorney had given no such information to plaintiff. Accordingly, plaintiff requested that the district court issue a writ of mandamus ordering the District Attorney to provide the records to plaintiff and award attorney's fees and court costs incurred in obtaining the records, as well as other damages and penalties provided by the Public Records Law. Plaintiff attached to his petition the earlier record requests sent by his attorney via certified mail.

On August 18, 2014, the District Attorney filed an answer to plaintiff's petition, denying the allegations therein, and further asserting that, under La. R.S. 44:31.1, plaintiff was not a "person" entitled to the requested records because he is in custody after sentence following a felony conviction and has exhausted his appellate remedies. The District Attorney also alleged that plaintiff had already been provided with a copy of the records, citing the September 23, 2004 letter from A.D.A. Marshall, which preceded plaintiff's 2005 motion to compel.

At the September 24, 2014 hearing on plaintiff's petition, the district court, sua sponte , raised the issue of whether the February 3, 2005 denial of plaintiff's motion to compel precluded plaintiff's petition under the doctrine of res judicata, to which plaintiff's counsel responded in the negative. The District Attorney, without discussing the issue of res judicata, argued that plaintiff was not entitled to the records under La. R.S. 44:31.1, and further stated, "for argument sake, Judge, we don't know if the records still exist. They should have been shredded." At the conclusion of the hearing, the court ordered the District Attorney to produce the records within thirty days to allow the court to conduct an in camera inspection for privileged information, after which, if no privileged information was discovered, the court would give the records to plaintiff.

Instead of complying with this order and turning over the records to the district court, on October 17, 2014, the District Attorney filed a "Response to Court's Verbal Order of September 24, 2014," in which the District Attorney raised the exception of res judicata and repeated its argument that plaintiff was not entitled to the records under La. R.S. 44:31.1. The District Attorney further asserted that, pursuant to La. R.S. 44:36(E)(1) and the Records Retention Schedule of the District Attorney's Office, files of major felony criminal cases may be destroyed five years from the end of the calendar year in which a defendant's conviction and sentence become final, and that after a diligent search the District Attorney had been unable to locate any of plaintiff's requested records.

On November 26, 2014, plaintiff filed a "Rule for Contempt for Failure to Comply with Court Order, and Motion to Strike." In his rule for contempt, plaintiff alleged that the District Attorney failed to timely comply with the district court's order to produce the records, that the District Attorney failed to provide a definitive statement denying that the records were in its custody, and that the District Attorney failed to provide a "detailed, written certification ... stating the reason for the absence of the records from their custody," as required by La. R.S. 44:34. Wherefore, plaintiff urged the court to find the District Attorney guilty of contempt and order the District Attorney to produce the records in compliance with the district court's order.

The court minutes reflect that at the February 24, 2015 hearing on plaintiff's rule for contempt, the district court ordered the District Attorney to provide a certificate to the court within thirty days detailing where and when the records were destroyed. On April 7, 2015, plaintiff filed a "Motion to Reset Plaintiff's Rule for Contempt and Motion to Strike," wherein he alleged that the District Attorney failed to provide the district court with a certificate detailing the destruction of the records as ordered by the court and repeated his request that the court adjudge the District Attorney guilty of contempt and order production of the documents or production of the certificate detailing destruction of plaintiff's records. On April 15, 2015, the District Attorney filed a "Motion to Re-set Hearing," asserting that the court had not ruled on the exception of res judicata raised in the District Attorney's October 17, 2014 "Response to Court's Order," and requesting the court schedule a hearing on the exception.

The court scheduled a hearing on plaintiff's rule for contempt and the District Attorney's exception of res judicata for July 28, 2015, and, pursuant to the court's order, both parties filed memoranda in support of their positions regarding the exception of res judicata. In its supporting memorandum and at the hearing, the District Attorney argued that the denial of plaintiff's motion to compel in 2005 precluded plaintiff's mandamus action under the doctrine of res judicata, because the denial of the motion was a valid and final judgment, the parties to the two actions are the same, the cause of action asserted in plaintiff's public records request existed at the time plaintiff filed his motion to compel, and the cause of action asserted in plaintiff's public records request arose out of the transaction or occurrence that was the subject matter of the motion to compel.

In response, plaintiff argued that the parties to the two actions are not the same, because plaintiff's motion to compel named A.D.A. Marshall as a defendant, whereas, in the instant action, the District Attorney, in his capacity as custodian of records, and the Office of the District Attorney are named as defendants. Plaintiff further argued that the cause of action asserted in plaintiff's petition did not exist at the time of the earlier litigation, because plaintiff's motion to compel was provoked by A.D.A. Marshall's failure to provide plaintiff with the case files for which he had paid, whereas plaintiff's petition was filed as a result of the District Attorney's failure to respond to plaintiff's public records requests. Lastly, plaintiff argued that the transaction or occurrence that gave rise to plaintiff's petition is not the same as that which gave rise to plaintiff's motion to compel, because the request for copies of his case files made in 2004 was a different transaction than plaintiff's public records requests made in 2013.

After hearing arguments from both sides, the court took the matter under advisement. On September 14, 2015, the court issued a written judgment with incorporated reasons, granting the District Attorney's exception of res judicata and denying plaintiff access to the records under La. R.S. 44:31.1. This judgment did not discuss plaintiff's rule for contempt.

Plaintiff timely appealed, arguing that the District Attorney erred in refusing to provide the public records to plaintiff, and that the district court erred in refusing to enforce its order to produce the public records for an in camera inspection and its order to provide certification detailing the alleged destruction of the public records.

On appeal, this Court found that the district court erred in sustaining the District Attorney's exception of res judicata. See Muhammad v. Office of the DA for St. James , 16-9 (La. App. 5 Cir. 4/27/16), 191 So.3d 1149, 1155-56. Noting the four prerequisites for the application of res judicata-(1) the parties must be identical in both suits, or in privity; (2) the prior judgment must have been rendered by a court of competent jurisdiction; (3) there must be a final judgment on the merits; and (4) the same claim or cause of action must be involved in both cases-this Court determined that only the first and second prerequisites had been satisfied, not the third and fourth. Id. at 1156.

Regarding plaintiff's entitlement to records under the Public Records Law, this Court found that the district court erred in denying plaintiff access to public records under La. R.S. 44:31.1. See Muhammad , supra, at 1156-58. This Court determined that the District Attorney did not meet its burden of showing that plaintiff was not entitled to access the sought public records. Id. at 1158. And with respect to plaintiff's rule for contempt, this Court found that the district court failed to conduct a proper hearing on plaintiff's rule for contempt. Muhammad , supra, at 1158-60. The Court explained as follows.

At the February 24, 2015 hearing on plaintiff's rule for contempt, the court did not order the District Attorney to produce the public records nor did the court find the District Attorney guilty of contempt for failure to comply with the court's earlier September 24, 2014 order; instead, the court ordered the District Attorney to provide the court with a certificate detailing where and when plaintiff's records were destroyed within thirty days. Muhammad , supra .

The District Attorney failed to comply with this February 24, 2015 order, and plaintiff re-urged his rule for contempt, requesting the court order the District Attorney to either produce the records in compliance with the court's September 24, 2014 order or produce a certificate detailing the destruction of the records in compliance with the court's February 24, 2015 order. Muhammad , supra, at 1159. Plaintiff's second rule for contempt was scheduled for hearing on the same day as the District Attorney's exception of res judicata. Id. But, after that July 28, 2015 hearing, the court issued a written judgment in favor of the District Attorney without discussion of plaintiff's rule for contempt. Id.

Consequently, this Court found the district court "erred in failing to conduct a full hearing on plaintiffs' Rule for Contempt, including requiring the District Attorney to produce a written certificate providing specific, ample, and detailed information regarding the alleged destruction of plaintiff's requested public records, as per La. R.S. 44:34." Muhammad , supra, at 1160.

As a result, this Court vacated the district court's judgment granting the District Attorney's exception of res judicata, vacated its finding that plaintiff was not entitled to the requested public records under the Public Records Law, and remanded the matter to the district court "for further proceedings consistent with this opinion, including a full hearing on plaintiff's November 26, 2014 Rule for Contempt." Muhammad , supra .

The district court heard the matter on remand on January 26, 2017. At this hearing, Ricky Babin, the St. James Parish District Attorney, filed into the record a "Certification of Absent Record," in which he attested that plaintiff's case file could not be located in the District Attorney's files after a thorough and diligent search. In this Certification, Anthony Falterman, Mr. Babin's predecessor as the St. James Parish District Attorney, also attested that to the best of his knowledge and belief, plaintiff's case file-as a consequence of the 1996 recusal of the St. James Parish District Attorney's Office from plaintiff's criminal case-had been turned over to and was in the custody of the Louisiana Attorney General's Office. For this reason, the District Attorney also filed into the record at this hearing an exception of no right of action, arguing that because the District Attorney no longer had custody of the sought records, plaintiff had no right of action against it. Furthermore, counsel for the Attorney General's Office notified the court that the AG was in the process of searching for plaintiff's file, but that it was "very likely," in accordance with its record retention policy, that it no longer had possession of it. At the conclusion of the hearing, the court sustained the exception of no right of action and denied plaintiff's rule for contempt.

Relator sought supervisory review of these rulings. On April 13, 2017, this Court declined to consider the district court's ruling on the exception of no right of action, finding it a final and appealable judgment. Muhammad v. Office of the District Attorney for the Parish of St. James, et al. , 17-170 (La. App. 5 Cir. 4/13/17) (unpublished writ disposition). Consequently, this Court granted the writ application in part for the limited of purpose of remanding the matter to the district court with the instruction to consider relator's notice of intent as a motion for appeal. Id. As for the contempt ruling, this Court considered the merits and found no abuse of the district court's discretion in that ruling. Id.

On May 3, 2017, the district court issued its written judgment sustaining the District Attorney's "Exception of No Cause of Action." In its reasons for judgment, the court explained that it was construing the District Attorney's exception of no right of action as an exception of no cause of action. Plaintiff sought supervisory review of this judgment.

Finding this judgment deficient due to improper decretal language, this Court issued an order on June 5, 2017, instructing the district court to amend its May 3, 2017 judgment to contain the proper decretal language. The district court complied with this order, issuing an amended judgment on June 13, 2017 in which it sustained the District Attorney's "Exception of No Cause of Action" and dismissed plaintiff's petition for mandamus with prejudice. Thereafter, on June 29, 2017, this Court granted plaintiff's writ application for the limited purposed of transferring it to the district court with the instruction to consider it as a timely motion for appeal. Muhammad v. Office of the District Attorney for the Parish of St. James, et al. , 17-285 (La. App. 5 Cir. 6/29/17) (unpublished writ disposition).

ASSIGNMENTS OF ERROR

Plaintiff, who is proceeding in proper person, assigns the following errors on appeal:

(1) Petitioner was denied a Due Process hearing, under the Fourteenth Amendment of the United States Constitution, when Judge Stromberg abused discretion when she dismissed Petitioner's case, and granted District Attorney Ricky Babin, exception of no right of action, stating that Petitioner sought records from the wrong entities.
(2) Judge Stromberg violated Petitioner's Due Process Rights, under the United States Constitution, when she refused to order the District Attorney, Ricky Babin, to reimburse Petitioner's attorney fees, court cost, and one hundred dollars per day, in accordance with La. R.S. 44:35(A)(B)(C)(D)(E).
(3) Petitioner was denied a full hearing on Rule for Contempt, when Honorable Stromberg denied Petitioner the opportunity to call the head District Attorney, Ex-District Attorney, and three Assistant District Attorney's [sic] to the stand to testify under the penalty of perjury, concerning the alleged destruction of the District Attorney's files, or illegal transfer of the files.

DISCUSSION

Assignment of Error One

In his first assignment of error, plaintiff contends that he was denied due process of law at the January 26, 2017 hearing because the district court "turned the contempt hearing into a hearing on the District Attorney's exception of no right of action, without giving [plaintiff] time to file a response, or argue a defense to it." Plaintiff also appears to argue that the district court erred in sustaining the District Attorney's exception of no right of action.

Given the apparent confusion throughout these proceedings, below we set forth our appreciation of the pertinent procedural history of this case and its posture as it comes before us now.

On July 14, 2014, plaintiff filed his petition for mandamus. On September 24, 2014, the district court granted relief on this petition, issuing a writ of mandamus ordering the District Attorney to produce records to the court within thirty days for an in camera inspection. The District Attorney did not comply with this order, but instead raised an exception of res judicata. Due to the District Attorney's failure to comply with the court's order, plaintiff filed a rule for contempt on November 26, 2014. At the February 24, 2015 hearing on this rule for contempt, the court did not consider contempt, but granted further relief on plaintiff's petition for mandamus, issuing another writ of mandamus ordering the District Attorney to provide the court with a certificate detailing where and when plaintiff's records were destroyed within thirty days. Again, the District Attorney did not comply with this order, so plaintiff re-urged his rule for contempt. On September 14, 2015, the district court sustained the exception of res judicata, but the rule for contempt and the writs of mandamus remained unresolved.

On April 27, 2016, this Court vacated the ruling sustaining the exception of res judicata and remanded the matter. Thus, at the time of the hearing on remand on January 26, 2017, the two writs of mandamus and the rule for contempt were outstanding. The District Attorney satisfied these outstanding writs of mandamus by filing into the record a "Certification of Absent Record" at the January 26, 2017 hearing, explaining that it did not have custody of the records. For this reason, the District Attorney also filed an exception of no right of action, ostensibly in response to plaintiff's petition for mandamus. But since plaintiff had already obtained relief on his petition when the court issued writs to the District Attorney on September 24, 2014 and February 24, 2015, this exception was, at the time it was filed, misplaced and moot. And with the writs satisfied by the District Attorney's "Certification of Absent Record," the only outstanding issue, then, was plaintiff's rule for contempt. The district court considered and adjudicated this issue at the hearing, which this Court affirmed on supervisory review. See Muhammad v. Office of the District Attorney for the Parish of St. James, et al. , 17-170 (La. App. 5 Cir. 4/13/17) (unpublished writ disposition).

Now, in this appeal, plaintiff submits that he was denied due process of law at the January 26, 2017 hearing and seems to challenge the district court's ruling on the exception of no right of action.

Insofar as plaintiff seeks review of the district court's ruling sustaining the District Attorney's exception of no right of action, because we find the exception was moot at the time it was filed, it follows that the court should have overruled it as such. Accordingly, we must reverse that ruling, but note that because the exception was moot, the court's ruling thereupon was correspondingly without practical effect, and, as a result, our ruling herein likewise extends no meaningful relief to plaintiff on this issue. As was discussed at the hearing on January 26, 2017, the St. James Parish District Attorney's Office was recused from plaintiff's criminal case in 1996 and plaintiff must direct his requests for production of records in 23rd JDC Docket No. 1695 to the Louisiana Attorney General's Office.

Nevertheless, we recognize that, at this time, it seems probable this file no longer exists. However, at the time plaintiff initially requested it in 2004, it was more probable that it was obtainable, as the District Attorney's office was able to supply plaintiff with the file in companion case No. 1696. In our view, any reasonably organized filing system should have revealed in 2004 that the file in question had been turned over to the AG in 1996. The fact that it took thirteen years and extensive litigation to determine that a first degree murder file is no longer in the custody of the District Attorney, and now likely no longer exists, is not only an inefficient use of judicial resources, but also does not comport with the fundamental principles of fairness undergirding our system of justice.

With respect to plaintiff's due process claim, he argues that he was denied due process of law because the district court "turned the contempt hearing into a hearing on the District Attorney's exception of no right of action, without giving [plaintiff] time to file a response, or argue a defense to it."

"Very generally, due process requires some kind of hearing and notice thereof." Fields v. State ex rel. Dep't of Pub. Safety & Corr. , 714 So.2d 1244, 1250 (La. 1998). "The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge , 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976).

Upon our review of the transcript of the January 26, 2017 hearing, we cannot find that relator was denied an opportunity to be heard at a meaningful time and in a meaningful manner. The transcript reflects that relator was present at the January 26, 2017 hearing and offered argument in response to the State's exception. This argument is without merit.

Assignment of Error Two

In his second assignment of error, plaintiff argues that the district court erred in failing to award him attorney fees and costs under La. R.S. 44:35(D), which provides in pertinent part: "If a person seeking the right to inspect, copy, or reproduce a record or to receive or obtain a copy or reproduction of a public record prevails in such suit, he shall be awarded reasonable attorney fees and other costs of litigation."

Plaintiff's argument here is based upon his interpretation of this Court's opinion in Muhammad v. Office of the DA for St. James , 16-9 (La. App. 5 Cir. 4/27/16), 191 So.3d 1149 as standing for the proposition that he prevailed in his suit. He therefore submits that he is entitled to attorney fees and costs pursuant to La. R.S. 44:35(D).

We disagree. La. R.S. 44:35(D) permits recoupment of attorney fees and costs if a person prevails in a suit establishing that he has the "right to inspect, copy, or reproduce a record or to receive or obtain a copy or reproduction of a public record[.]" This Court's opinion in Muhammad v. Office of the DA for St. James , 16-9 (La. App. 5 Cir. 4/27/16), 191 So.3d 1149 did not establish that plaintiff has this right. Rather, this Court found that the District Attorney had failed to meet its burden of proving that plaintiff did not have the right to the public records. Muhammad , 191 So.3d at 1158. This Court vacated the district court's ruling denying plaintiff access, thereby leaving open for determination plaintiff's right to the public records. Until that is settled, it is premature to determine plaintiff's entitlement to attorney fees and costs under La. R.S. 44:35(D).

Assignment of Error Three

In his third assignment of error, plaintiff argues that he was denied a full hearing on the rule for contempt when the district court denied him the opportunity to call the head District Attorney, Ex-District Attorney, and three Assistant District Attorneys to testify.

The record reflects that, at plaintiff's request, subpoenas were issued to District Attorney Ricky Babin, Former District Attorney Anthony Falterman, Custodian of Records William Clark, A.D.A. Steven Tureau, and A.D.A. Bruce Mohon to testify at the January 26, 2017 hearing. Plaintiff's requests to subpoena his former counsel, Michael Rocks and Shawn Benoit, had been denied.

Our review of the transcript of the January 26, 2017 hearing reflects that plaintiff did not move to question the witnesses he had subpoenaed. We therefore find no merit to plaintiff's argument that the court denied him the opportunity to call his witnesses.

DECREE

For the foregoing reasons, we reverse the district court's May 3, 2017 judgment, as amended June 13, 2017, sustaining the District Attorney's exception of no right of action.

REVERSED

      Much of this procedural history is drawn from this Court's reported opinion in plaintiff's first appeal, Muhammad v. Office of the DA for St. James , 16-9 (La. App. 5 Cir. 4/27/16), 191 So.3d 1149.

      23rd JDC Docket No. 1695 corresponds to plaintiff's first degree murder conviction. 23d JDC Docket No. 1696 corresponds to plaintiff's conviction for armed robbery. Plaintiff's armed robbery conviction and sentence were affirmed by this Court on direct appeal. See State v. Spencer , 610 So.2d 289 (La. App. 5 Cir. 1992) (not designated for publication).

      The court's written judgments denying plaintiff's rule for contempt and sustaining the District Attorney's exception of no right action followed on January 30, 2017 and May 3, 2017, respectively.

      Although the district court construed and ruled upon the District Attorney's "Exception of No Right of Action," filed January 26, 2017, as an exception of no cause of action, for the sake of clarity, this opinion refers to the District Attorney's exception under the caption it was filed.

      The exception would have been properly filed prior to the issuance of these writs. "The peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision[.]" La. C.C.P. Art. 928(B). Here, the District Attorney pleaded the exception after the case (the mandamus issue) had been decided.