Opinion
NO. 2015 CA 1570
04-15-2016
STATE OF LOUISIANA v. ALFREDO L. CAPOTE, ET AL.
Michael P. Frugé Assistant District Attorney Port Allen, Louisiana Attorney for Plaintiff/Appellant, State of Louisiana Philip J. House Baton Rouge, Louisiana Attorney for Defendant/Appellee, Alfredo L. Capote
NOT DESIGNATED FOR PUBLICATION
On Appeal from The 18th Judicial District Court, Parish of West Baton Rouge, State of Louisiana
Trial Court No. 104,602
The Honorable Alvin J. Batiste, Jr., Judge Presiding Michael P. Frugé
Assistant District Attorney
Port Allen, Louisiana Attorney for Plaintiff/Appellant,
State of Louisiana Philip J. House
Baton Rouge, Louisiana Attorney for Defendant/Appellee,
Alfredo L. Capote BEFORE: PETTIGREW, HIGGINBOTHAM, AND CRAIN, JJ. CRAIN, J.
The State of Louisiana appeals a judgment sustaining an exception of no right of action and dismissing this forfeiture proceeding. We reverse and remand.
FACTS AND PROCEDURAL HISTORY
The state, appearing through an assistant district attorney for the Eighteenth Judicial District, filed a petition in rem seeking the forfeiture of certain assets pursuant to the Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989 (Forfeiture Act). See La. R.S. 40:2601-22. The state alleged that the West Baton Rouge Parish Sheriff's Office seized $12,721.00 in cash and other movable property in connection with the arrest of several individuals, including Alfredo L. Capote, for possession of marijuana and forgery.
Capote responded with exceptions of no cause of action and lack of procedural capacity, both asserting that the petition did not allege sufficient facts to invoke the Forfeiture Act. In his supporting memorandum, which referred to the exceptions as "No Right of Action and No Cause of Action," Capote argued that the alleged drug offense, simple possession of marijuana, was not punishable by imprisonment for more than one year and, therefore, did not trigger application of the Forfeiture Act. See La. R.S. 40:2603(1); La. R.S. 40:966E(l)(i). In response, the state maintained that the Forfeiture Act granted it the right to obtain the requested forfeiture and, further, that the charges against Capote included being a principal to forgery, which carries a maximum sentence of ten years imprisonment. See La. R.S. 40:2603(3); La. R.S. 14:72D.
The matter proceeded to a hearing where the trial court observed that the exception of no right of action was "the proper procedural vehicle to use" and granted the exception. The trial court signed a written judgment on July 16, 2015, reflecting that ruling and dismissing the state's petition. Although the trial court did not expressly address the exception of no cause of action at the hearing, the written judgment denied that exception. The state appeals and assigns as error the trial court's granting of the exception of no right of action.
We note that the July 16, 2015 Judgment also vacated an earlier order signed by the trial court on June 12, 2015, which purported to be in "accordance with the Court's ruling" on the exception, but the order only directed that the seized money be returned to Capote's attorney. Because the June 12, 2015 order did not contain the necessary decretal language dismissing the state's petition, it was not a final judgment and was subject to revision by the trial court. See VaSalle v. Wal-Mart Stores, Inc., 01-0462 (La. 11/28/01), 801 So. 2d 331, 334-35; Gros v. STMG Lapeyre, LLC, 14-0848, 2015WL2169680, p. 4 (La. App. 1 Cir. 5/6/15). The record also reflects that after the July 16, 2015 judgment was signed, the trial court signed the identical judgment again on August 12, 2015. The subsequent duplicate judgment was superfluous and unnecessary and, therefore, invalid. See St. Pierre v. St. Pierre, 08-2475 (La. App. 1 Cir. 2/12/10), 35 So. 3d 369, 370 n.1, writ not considered, 10-0587 (La. 3/17/10), 29 So. 3d 1243.
DISCUSSION
The function of an exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Reese v. State, Department of Public Safety and Corrections, 03-1615 (La. 2/20/04), 866 So. 2d 244, 246. The exception assumes that the petition states a valid cause of action for some person and tests whether the plaintiff has an interest in judicially enforcing the right asserted. Francis v. Francis, 11-2116 (La. App. 1 Cir. 6/13/12), 97 So. 3d 1091, 1093, writ denied, 12-1635 (La. 7/24/12), 93 So. 3d 582. The question is simply whether the plaintiff has a right to sue the defendant. Niemann v. Crosby Development Company, L.L.C, 11-1337 (La. App. 1 Cir. 5/3/12), 92 So. 3d 1039, 1046.
The party raising the exception of no right of action bears the burden of proof. OXY USA Inc. v. Quintana Production Company, 11-0047 (La. App. 1 Cir. 10/19/11), 79 So. 3d 366, 376, writ denied, 12-0024 (La. 3/2/12), 84 So. 3d 536. Evidence supporting or controverting an exception of no right of action is admissible; however, in the absence of evidence to the contrary, the averments of fact in the pleadings will be taken as true. JP Morgan Chase Bank, N.A. v. Boohaker, 14-0594 (La. App. 1 Cir. 11/20/14), 168 So. 3d 421, 426. Whether a plaintiff has a right of action is a question of law and is reviewed de novo on appeal. Eagle Pipe and Supply, Inc. v. Amerada Hess Corporation, 10-2267 (La. 10/25/11), 79 So. 3d 246, 256.
Through the Forfeiture Act, the Louisiana Legislature established a civil system of expressly delineated procedures that allow the state to seize and cause the forfeiture of property that is related to, is a proceed from, facilitates, or is itself a violation of the Uniform Controlled Dangerous Substances Law at Louisiana Revised Statutes 40:961-95. State v. 2003 Infiniti G35 VIN No. JNKCV51E93M024167, 09-1193 (La. 1/20/10), 27 So. 3d 824, 828. The action is a civil proceeding that is generally governed by the Louisiana Code of Civil Procedure. See La. R.S. 40:2611K; State v. $144,320.00, 12-0466 (La. 12/4/12), 105 So. 3d 694, 701.
This proceeding was filed by the state, through the district attorney's office, and seeks to obtain a forfeiture of assets pursuant to the Forfeiture Act. Assuming the petition states a valid cause of action, which we must do when considering the merits of an exception of no right of action, we must determine whether the state belongs to the class of persons to whom the law grants the cause of action asserted in the suit.
The Forfeiture Act contains several provisions identifying the party that is granted the right to obtain a forfeiture. According to Subsection 40:2613A(1):
A forfeiture may be ordered by a court on proceedings brought by the district attorney on behalf of the state in an in personam civil action alleging conduct giving rise to forfeiture if it is authorized by law. This action shall be in addition to or in lieu of in rem forfeiture procedures.Similarly, Subsection 40:2612B, provides:
An action in rem may be brought by the district attorney in addition to, or in lieu of, civil in personam forfeiture procedures. The state may serve the petition in the manner provided by Paragraph (3) of Section 2608 of this Chapter.In an in rem action, if no claims are filed by the owner of the property, "the district attorney may apply for an order of forfeiture," and if the application establishes compliance with the applicable statutory requirements, "the court shall order the property forfeited to the state." See La. R.S. 40:2615A. In a contested proceeding, after final disposition of all claims, "the court shall enter an order that the state has clear title to the forfeited property interest." La. R.S. 40:2615B.
Under the plain language of these provisions, the state, through the district attorney, explicitly belongs to the class of persons granted a cause of action by the Forfeiture Act. See La. R.S. 40:2612B, 40:2613A(1); State v. $4200.00 U.S. Currency (Antonio P. Martinez), 00-1469 (La. App. 1 Cir. 9/28/01), 809 So. 2d 302, 304, writ denied, 01-2832 (La. 1/4/02), 805 So. 2d 206. Capote's argument to the contrary relies on Section 40:2603, which sets forth the criminal charges necessary to invoke a forfeiture; however, the requirements of that section go to the existence of the cause of action, not the identity of the party to whom the cause of action is granted. For these reasons, the trial court erred in granting the exception of no right of action and dismissing the state's petition.
The trial court's denial of the exception of no cause of action was not appealed and is not subject to review herein. --------
CONCLUSION
The trial court's judgment granting the exception of no right of action and dismissing the state's petition is reversed, and this matter is remanded for further proceedings. All costs of this appeal are assessed to Alfredo L. Capote.
REVERSED AND REMANDED. PETTIGREW, J., CONCURS, AND ASSIGNS REASONS.
I agree with the majority that the trial court legally erred in granting the no right of action exception in favor of Capote.
However, I would not have ended the inquiry at that point. I would have addressed the trial court's denial of the exception raising the objection of no cause of action filed by Capote. Under La. Code of Civ. P. art. 927(B), the appellate court has the discretion and authority to raise this on its own motion. Based on the facts of this case, it is my humble opinion that the offense of simple possession of marijuana, a violation of La. R.S. 40:966, does not trigger application of the Forfeiture Act. See La. R.S. 40:2603(1); La. R.S. 40:966(E)(1)(i).
For this reason, I would have granted Capote's exception raising the objection of no cause of action and dismissed the State's petition, with prejudice.