FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 516-754,
SECTION "B" Honorable Tracey Flemings-Davillier,
F. Kreihs Attorney At Law COUNSEL FOR FINANCIAL CASUALTY
& SURETY, INC/APPELLANT
Cannizzaro District Attorney Scott G. Vincent Assistant
District Attorney William Dieters Assistant District Attorney
District Attorney's Office Orleans Parish COUNSEL FOR
STATE OF LOUISIANA/APPELLEE
composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge
Tiffany G. Chase
Tiffany G. Chase Judge
bond forfeiture proceeding Appellant, Financial Casualty
& Surety, Inc. (hereinafter "Financial"), seeks
review of the trial court's May 12, 2017 judgment
sustaining the State of Louisiana's (hereinafter
"State") exception of no cause of action. Financial
raises two assignments of error: (1) the trial court erred in
finding its petition failed to state a cause of action under
La. C.C.P. art. 2004; and (2) the trial court erred in
denying its request to amend the petition pursuant to La.
C.C.P. art. 934. After consideration of the record before
this Court and the applicable law, we affirm the trial
court's judgment granting the exception of no cause of
AND PROCEDURAL HISTORY
Cliborn Mosk was charged with possession of various
controlled substances; illicit possession of a firearm
(having been convicted of a prior felony); and resisting
arrest. On May 16, 2013, Financial posted appearance bonds in
Orleans Criminal District Court on behalf of the defendant in
the amount of $16, 000. Trial was scheduled for June 23,
2014, but was ultimately continued to March 30, 2015.
Neither the defendant nor his attorney appeared for trial.
The trial court issued a bench warrant for defendant's
arrest and signed judgments of bond forfeiture. On May 10,
2015, a notice of signing of judgment for bond forfeiture was
timely mailed to Financial, Troy's Bail Bonds
(Financial's agent), and the defendant. No appeal was
18, 2015, the defendant's attorney appeared in court to
address why neither he nor his client appeared for trial. The
trial court accepted the defendant's appearance through
his attorney, waived the defendant's presence and
recalled the bench warrant. However, the trial court did not
set aside the judgments of bond forfeiture. The defendant did
not personally appear in court until July 20, 2016.
August 5, 2016, the State sent a demand for payment to
Financial for numerous unpaid judgments of bond forfeiture,
including the bonds for the defendant. After Financial failed
to make payment, the State filed a motion for contempt. A
contradictory hearing was set for September 16, 2016, and
notice was given to Financial through the Secretary of State.
Financial failed to make an appearance at the hearing and the
Court ordered a fine of $500.00 with an additional $500.00
per day until paid.
September 28, 2016, Financial filed a petition for nullity of
judgments of bond forfeiture pursuant to La. C.C.P. art.
2004. In response, the State filed exceptions of no cause of
action; unauthorized use of summary proceedings;
insufficiency of citation; and service of process and
vagueness and ambiguity of the petition. The hearing on the
exceptions was held on May 12, 2017, wherein the trial court
granted the State's exception of no cause of action and
dismissed Financial's petition for nullity of judgments
of bond forfeiture with prejudice.This timely appeal followed.
of no cause of action present legal questions which are
reviewed using the de novo standard of review.
O'Dwyer v. Edwards, 2008-1492, p. 3 (La.App. 4
Cir. 6/10/09), 15 So.3d 308, 310. "The function of the
peremptory exception of no cause of action is to question
whether the law extends a remedy against the defendant to
anyone under the factual allegations of ...