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Date: 03-04-2022
Case Style:
Drake Landry v. Tabitha Landry
Case Number: 53,921-CA
Judge: James H. Boddie Jr.
Court:
COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
On appeal from The Fifth Judicial District Court for the
Parish of Franklin, Louisiana
Plaintiff's Attorney:
E. MICAH HOGGATT
Defendant's Attorney:
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Description:
Shreveport LA - Divorce lawyer represented Appellant with appealing a protective order.
Drake Landry filed a standard-form petition for protection from abuse
on June 25, 2020, on behalf of himself and the couple’s sons, ages 6 and
almost 4. He alleged that on June 20, Tabitha threatened that she and her
boyfriend would kill him (Drake) and take the kids away; she had been
doing meth, alcohol, and pills; she was “having men in my house in front of
the kids”; and she said she would put a “fake charge” on him to get him in
prison. In the space provided for service of process, he wrote that Tabitha
was currently in Covington Behavioral Health for “calling cops and saying
somebody cut up my kids and put them in trash can.” In support of his
petition, he attached two Franklin Parish Sheriff’s Office incident reports.1
The district court signed a standard-form temporary restraining order
the same day, June 25, with an order setting the matter for a hearing on July
10, “Via Zoom,” but with no instructions on how to connect. Personal
service of this order was effected July 1.
1 The first, dated June 17, was a domestic violence call to the couple’s house, in
which Drake told deputies that Tabitha had upended the furniture and sold the kids’ bunk
beds, but she was not present when deputies arrived; an hour later, she returned and said
she intended to move out. The second, from June 21, said Tabitha had called several
times to report a prowler, but all reports were unfounded; deputies found her standing
outside a gas storage facility talking erratically to herself, telling them that someone had
killed her kids and stuffed them in a trash can; deputies sent her to the hospital for
observation.
2
Apparently, no hearing occurred on July 10. However, an “Extract of
Minutes” contains an entry for July 17 before Hearing Officer Dhu
Thompson. This recites that on that date, Drake appeared with his attorney,
and that Tabitha’s attorney participated by phone, but that Tabitha herself
was not involved. Further, after “due hearing,” the hearing officer granted
the protective order, awarded Drake temporary custody with no visitation by
Tabitha, and ordered her to seek professional counseling. Finally, the
extract recited that Tabitha’s lawyer raised several objections and asked for a
continuance, but these were all denied.
The district court signed a standard-form order of protection on July
23, 2020, with the notation “Recommended by Hearing Officer.” This
directed Tabitha not to abuse, harass, stalk, or follow Drake or the kids, and
to keep 100 yards from them, the kids’ school, and his place of employment;
it denied her any visitation “at this time.” The sheriff’s return states that
deputies were “unable to locate” Tabitha, so the protective order was not
served on her.
On September 4, 2020, Tabitha filed a motion for devolutive appeal,
with counsel noting that the protective order had never been formally served.
After this court received the record from the Fifth JDC, we noticed
that there was no transcript of the July 17 hearing that resulted in the
protective order; we ordered the clerk of the district court to supplement the
record with a transcript or a narrative of facts. On January 21, 2021, the
clerk responded that it was not possible to supplement the record, as “no
3
such transcript exists. It is not the custom of the Fifth Judicial District to
record testimony in hearings concerning the issuance of a protective order.”2
TABITHA’S APPEAL
In brief, Tabitha relates various irregularities in the handling of her
case, such as setting a Zoom hearing with no information on how to connect,
changing the date of the hearing from July 10 to July 17 without notice,
making no service of the July 17 protective order, and taking no transcript of
the July 17 hearing. However, she designates only five assignments:
Assignment 1. The hearing officer and judge failed to preserve the
record by having the proceedings recorded and the record
preserved as mandated by U.R.D.C. 4.0.
Assignment 2. Tabitha was improperly denied a continuance of the
protective order hearing on July 17, 2020.
Assignment 3. Tabitha’s rights to due process were violated by
granting the protective order.
Assignment 4. There was insufficient factual basis to grant the
protective order.
Assignment 5. The hearing officer and judge failed to comply with La.
R.S. 46:236.5, which requires written recommendations of the
hearing officer prior to the grant of an order based on them.
Drake’s brief was due April 1, 2021, but none has been filed.
APPLICABLE LAW
Procedural rules exist for the sake of substantive law and to
implement substantive rights, not as an end in themselves. La. C.C.P. art.
5051; Unwired Telecom v. Parish of Calcasieu, 03-0732 (La. 1/19/05);
2 Later, the clerk of the Fifth JDC supplemented the record with the transcript of a
Zoom hearing held before Hearing Officer Thompson on October 4, 2020, over a month
after the district court granted this appeal. It addressed custody and community property
issues ancillary to Drake’s separate petition for Art. 103 divorce, and is obviously not
part of the instant record.
4
Rodgers v. Rodgers, 50,044 (La. App. 2 Cir. 6/10/15), 170 So. 3d 382. A
court may adopt local rules for the conduct of judicial business before it,
including those governing matters of practice and procedure which are not
contrary to the rules provided by law. La. C.C.P. art. 193. Local rules of
court cannot conflict with legislation. Rodrigue v. Rodrigue, 591 So. 2d
1171 (La. 1992); Rodgers v. Rodgers, supra.
Legislation prescribes that in an ex parte proceeding, the court may
enter a temporary restraining order, without bond, “as it deems necessary to
protect from abuse the petitioner, [or] any minor children[.]” La. R.S.
46:2135 A. The court may also issue a protective order, after “[r]easonable
notice and opportunity to be heard is given to the person against whom the
order is sought[.]” La. R.S. 46:2136 B(2).
Legislation also prescribes an expedited process for resolving certain
domestic matters through the use of hearing officers. La. R.S. 46:236.5 C.
The Fifth JDC has adopted the system of hearing officers and authorized
them to hear protective orders. Fifth JDC Local R. 32.0 A, B.
The hearing officer shall act as a finder of fact and shall make written
recommendations to the court concerning any domestic and family matters
set forth by local court rule. R.S. 46:236.5 C(3). In general, the hearing
officer is to hear and make recommendations on all protective orders filed in
accordance with R.S. 46:2131 et seq. R.S. 46:236.5 C(3)(k).
The statute places special emphasis on the hearing officer’s written
recommendations, under R.S. 46:236.5 C(5):
(5) The written recommendation of the hearing officer
shall contain all of the following:
(a) A statement of the pleadings.
5
(b) A statement as to the findings of fact by the hearing
officer.
(c) A statement as to the findings of law based on the
pleadings and facts, including his opinion thereon.
(d) A proposed judgment.
The failure of the hearing officer report to include any one of these
items is fatal to the proceedings and requires a remand. Crawford v.
Crawford, 2002-168 (La. App. 3 Cir. 11/13/02), 833 So. 2d 361.
No person shall be subjected to imprisonment or forfeiture of rights or
property without the right of judicial review “based upon a complete record
of all evidence upon which the judgment is based.” La. Const. art. 1, § 19;
Progressive Sec. Ins. Co. v. Foster, 97-2985 (La. 4/23/98), 711 So. 2d 675.
While most often arising in the context of criminal proceedings, this
protection is equally applicable to civil proceedings. Tingle v. American
Home Assur. Co., 2010-71 (La. App. 3 Cir. 6/2/10), 40 So. 3d 1169, writs
denied, 10-1580, -1578, -1564, -1563, -1562 (La. 10/29/10), 48 So. 3d 1095,
1096. The appellate court must at all times be “keenly aware” of and
“zealously protective of the rights of judicial review” granted by the
constitution. Id., citing Something Irish Co. v. Rack, 333 So. 2d 773 (La.
App. 1 Cir. 1976).
The statute states that the hearing officer may make a record of the
hearings authorized by this section. La. R.S. 46:236.5 C(4)(i). Under the
Uniform Rules of District Courts, the court “shall provide a method for
making a verbatim recording of all proceedings conducted in open court.”
URDC 4.0.
6
DISCUSSION
This record contains no written recommendations of the hearing
officer, even though the extract of minutes states that a hearing was held and
the protective order recites the judgment was “recommended by hearing
officer.” The total absence of written recommendations is obviously much
more serious than the small deficiencies that were fatal to the judgment in
Crawford v. Crawford, supra. As a result, this court cannot tell if Tabitha
received “reasonable notice and opportunity to be heard,” as is guaranteed
by R.S. 46:2136 B(2). The judgment must be reversed and the case
remanded.
The statute also requires that any protective order under the Protection
from Family Violence Act “shall be served on the person to whom the order
applies in open court at the close of the hearing, or in the same manner as a
writ of injunction.” La. R.S. 46:2136 E. However, the sheriff’s return states
that deputies were “unable to locate” Tabitha, and the motion for appeal
alleges that the protective order was never served. The denial of notice also
requires reversal. Branstetter v. Purohit, 06-1435 (La. App. 4 Cir. 5/2/07),
958 So. 2d 740.
We further note that pursuant to “custom” of the district court (though
not stated in the local rules), no transcript was made of the hearing officer
hearing. While a transcript is not mandated, only advisory under R.S.
46:236.5 C(4)(i), the absence of one is troubling when combined with the
absence of the mandated written recommendations and the use of a truncated
extract of minutes. The cumulative effect of these facts is that we have
absolutely nothing to review; we cannot tell if Tabitha’s statutory and due
process rights were observed. Rodgers v. Rodgers, supra. Ever mindful of
7
the rights of judicial review granted by the constitution, we find that the
protective order must be reversed and the case remanded for new
proceedings.
The reversal and remand moot Tabitha’s other assignments of error.
We are sensitive to the challenges that have arisen since the COVID-19
lockdown and mitigation measures, and we commend the court and hearing
officer for trying to accommodate the litigants. We would observe,
however, that COVID-19 restrictions cannot supersede due process
protections. In re DLD, 53,758 (La. App. 2 Cir. 1/13/21), 310 So. 3d 314.
On remand, the court, the hearing officer, and the parties are urged to renew
their commitment to due process and the requirements of Title 46, especially
now that COVID-19 restrictions are being eased.
Outcome: For the reasons expressed, the protective order is reversed and the
case remanded for further proceedings within the time limitation provided
by law. Costs are not assessed. La. C.C.P. art. 2164.
REVERSED AND REMANDED.
Plaintiff's Experts:
Defendant's Experts:
Comments: