ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT, PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA. NO. 65,257, DIVISION " A" . HONORABLE MADELINE JASMINE, JUDGE PRESIDING.
FRED SCHROEDER, II, CRAIG E. FROSCH, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.
RICHARD M. MILLET, ATTORNEY AT LAW, Laplace, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.
Panel composed of Judges Jude G. Gravois, Robert M. Murphy, and Stephen J. Windhorst.
ROBERT M. MURPHY,
[14-577 La.App. 5 Cir. 2] St. John the Baptist Sheriff Mike Tregre (the " Sheriff" ), appeals the trial court's award of attorney's fees to Crystal McDowell, the owner of a 2004 Jeep Cherokee, seized by the Sheriff after Ms. McDowell's son allegedly used her vehicle in illegal drug activity. The Sheriff argues that the trial court erred in making an award to Ms. McDowell for attorney's fees and costs under the La. Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989 (the " Forfeiture Act" ), La. R.S. 40: 2601, et seq., as the District Attorney released the vehicle to Ms. McDowell before he initiated forfeiture proceedings. The Sheriff claims in the alternative that the $6,000.00 award of attorney's fees was excessive. The Sheriff further argues that the trial court erred in awarding towing fees and car repair costs.
Ms. McDowell answered the appeal seeking additional attorney's fees at the trial court level, and legal interest thereon, and attorney's fees for this appeal.
[14-577 La.App. 5 Cir. 3] On finding that appellee, Ms. McDowell, has failed to state a cause of action under the Forfeiture Act, for the reasons
that follow, we reverse the trial court's award to Ms. McDowell in its entirety, dismiss her claims with prejudice, and deny the relief she seeks in her answer.
FACTS AND PROCEDURAL HISTORY
At 4:30 a.m. on July 4, 2013, Ms. McDowell completed her shift as a security guard at Allied Barton Security at the Valero site in Norco, Louisiana. At 4:45 a.m. she arrived at the LaPlace, Louisiana residence she shared with her husband. She drove herself to and from work in her 2004 Jeep Cherokee. Ms. McDowell had three grown sons who did not live with her. On the morning in question, Ms. McDowell did not know that one of her sons, Corey Gayle, age 33, was spending the night at her residence. Later that morning, she learned that Gayle was driving her vehicle when he and his passenger, DeChris Strong, were arrested down the street for various drug offenses: possession of marijuana, La. R.S. 40:966(E), possession with intent to distribute marijuana, La. R.S. 40:966(C), and operation of a vehicle with a suspended license, La. R.S. 32:415. Twenty-six packages of marijuana were found in the center console of Ms. McDowell's vehicle. She contended that she did not give Gayle permission to use her vehicle and that she did not know Strong.
On July 4, 2013, the Sheriff took possession of the vehicle and had it towed to the Sheriff's Office. On July 10, 2013, Sheriff's narcotics agent Detective Heather Cruse sought and obtained a warrant of seizure for forfeiture of the vehicle in connection with the criminal prosecution of Gayle. She gave Ms. McDowell a " written assertion" that the vehicle was seized for forfeiture, told her to file a verified claim for the return of her vehicle, and recommended that she hire a lawyer. Ms. McDowell retained Richard M. Millet, Esq., as her counsel at $250.00 [14-577 La.App. 5 Cir. 4] per hour at a minimum of 12 hours or $3,000.00. On July 23, 2013, Mr. Millet prepared and mailed by certified mail, Ms. McDowell's verified claim, executed on July 24, 2014, to Cruse in the Sheriff's Office and to the District Attorney, for the return of her vehicle under La. R.S. 40:2610. Assistant District Attorney William D. O'Regan, III testified that on August 2, 2013, he sent a letter to Ms. McDowell's counsel stating that he would not file a petition for forfeiture. He directed Mr. Millet to contact Major Walter Chappel, head of the Sheriff's narcotics division, to retrieve the McDowell vehicle. Mr. O'Regan further testified that on that same date, he faxed Chappel to release the vehicle and to have Ms. McDowell execute an " acknowledgement of return of seized property."  Cruse testified that she received the letter on August 2, 2013 and contacted Ms. McDowell to make arrangements for the return of the vehicle. Cruse required Ms. McDowell to pay the towing fee and bring the receipt to retrieve the vehicle. On August 2, 2013, Ms. McDowell executed the acknowledgement and retrieved her vehicle.
Mr. Millet testified that he received Mr. O'Regan's letter on August 6, 2013. The envelope and letter bear an office date stamp of August 6, 2013. Ms. McDowell did not speak with her attorney from the time she executed her ...