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State v. Mosk

Court of Appeals of Louisiana, Fourth Circuit

September 26, 2018

STATE OF LOUISIANA
v.
CLAIBORN MOSK

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 516-754, SECTION "B" Honorable Tracey Flemings-Davillier, Judge

          James F. Kreihs Attorney At Law COUNSEL FOR FINANCIAL CASUALTY & SURETY, INC/APPELLANT

          Leon 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

          Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Tiffany G. Chase

          Tiffany G. Chase Judge

         In this 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 action.

         FACTS AND PROCEDURAL HISTORY

         Defendant, Cliborn Mosk[1] 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 taken.

         On May 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.

         On 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.

         On 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.[2]This timely appeal followed.

         DISCUSSION

         Exceptions 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 ...


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