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State v. Kee Food, Inc.

Court of Appeals of Louisiana, First Circuit

September 21, 2017


         On Appeal from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana Trial Court No. 170, 587 Honorable David W. Arceneaux, Judge Presiding

          Mark D. Plaisance Thibodaux, LA Attorney for Defendants-Appellants, Kee Food, Inc., Kassim Nagi, Mohamed Nagi, and Southla, LLC.

          Joseph L. Waitz, Jr. District Attorney Ellen Daigle Doskey Assistant District Attorney Jason Paul Lyons Assistant District Attorney Houma, LA Attorneys for Plaintiff-Appellee, State of Louisiana.

          William F. Dodd Houma, LA Attorney for Plaintiff-Appellee, Terrebonne Parish Sheriffs Office.

          Justin R. Austin Baton Rouge, LA Attorney for Plaintiff-Appellee, Coastal Commerce Bank.


          HIGGINBOTHAM, J.

         In this forfeiture proceeding, the defendants assert that the trial court erred in granting summary judgment in favor of the State because service of the State's motion for summary judgment was insufficient. Additionally, the defendants assert that the trial court erred in not dismissing the State's petition for forfeiture due to the State's failure to timely request that the matter be set for hearing.


         Kassim Nagi and Tawfiq Ali Almansoob were arrested in June of 2013 as part of an investigation into the sale of synthetic cannabinoids on the premises of the convenience store, Kee Food, Inc. Subsequently, various funds were seized from multiple bank accounts related to Kee Food. A large amount of cash was also seized from inside the store premises and from a safe deposit box at Coastal Commerce Bank. Additionally, a constructive seizure of the premises was perfected by the State filing a lien in the Terrebonne Parish Public Records.

         The Seizure and Controlled Dangerous Substances Property Forfeiture Act, La. R.S. 40:2601, et seq., ("the act") allows law enforcement officials to seize illegal drugs and property constituting the proceeds of any drug-related conduct. Pursuant to the act on September 20, 2013, the State of Louisiana filed a petition for forfeiture in personam against Kee Food, Southla, LLC, the limited liability company that owned the premises from which Kee Food operated its store, Tawfiq, Kassim, and his father, Mohamed Nagi.[1] Additionally, the State named numerous defendants in rem. According to the State's petition, the in personam defendants, individually and through Kee Food, operated a convenience store located at 6957 West Park Avenue in Houma, Louisiana, and on numerous occasions distributed synthetic cannabinoids as part of its business operations. The proceeds from the sale of the synthetic cannabinoids were kept in the cash register for the business as well as various other locations and were co-mingled with proceeds of legitimate sales of merchandise. Prior to the filing of the State's forfeiture petition, Mohamed returned to his native country of Yemen, where he has since remained.

         In response to the State's petition, through counsel, Kee Food, Kassim, Mohamed, and Southla (hereinafter referred to collectively as the defendants) answered and asserted claims pursuant to La. R.S. 40:2610, seeking immediate release of the seized property and termination of any forfeiture proceedings. The defendants maintained that certain seized funds were from the sale of legitimate merchandise and were not derived from or connected to any illegal activity. In the claims submitted on behalf of Kee Food, Kassim acknowledged that he is the agent, manager, and part owner of Kee Food.[2] Kassim, through a power of attorney executed by Mohamed, asserted claims on behalf of Mohamed. Additionally, through the power of attorney by Mohamed and the resolution of Southla, Kassim was allowed to act on behalf of Southla as it relates to any funds and/or property seized by the State of Louisiana and/or Terrebonne Parish. Kassim asserted claims on behalf of Southla.

         On January 22, 2015, the defendants filed a motion to dismiss the civil forfeiture proceedings and for return of the seized property based on the State's failure to seek a hearing within sixty days of the service of the petition for forfeiture in accordance with La.R.S.40:2612(G) and La.R.S. 40:2613(F). On April 20, 2015, the trial court signed a judgment denying the defendants' motion to dismiss. On June 15, 2015, the State filed a motion and order to set a trial date. Subsequently, counsel for the defendants withdrew from the case.

         Prior to trial, the State filed a motion for summary judgment contending that the admissions, depositions, and records from the criminal matter proved that no genuine issue of material fact remained. On May 18, 2016, the State's motion for summary judgment was personally served on Kassim, individually and on behalf of Mohamed, Kee Food and Southla at the Terrebonne Parish Criminal Justice Complex where ...

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