State of Louisiana Versus Property Seized From Larry Junior

STATE OF LOUISIANA NO. 23-CA-212

VERSUS FIFTH CIRCUIT

PROPERTY SEIZED FROM LARRY JUNIOR COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 823-611, DIVISION "D"
HONORABLE SCOTT U. SCHLEGEL, JUDGE PRESIDING

January 31, 2024

TIMOTHY S. MARCEL
JUDGE

Panel composed of Judges Jude G. Gravois,
Stephen J. Windhorst, and Timothy S. Marcel

JUDGMENT VACATED;
MATTER REMANDED WITH INSTRUCTIONS
TSM
JGG
SJW

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Monique D. Nolan
Thomas J. Butler

COUNSEL FOR DEFENDANT/APPELLANT,
LARRY JUNIOR
H. Thomas Murphy

MARCEL, J.

In this in rem civil forfeiture proceeding filed pursuant to La. R.S. 40:2601

et seq., claimant Larry Junior appeals a March 9, 2023 judgment of the trial court

granting the State's Motion to Strike Claim, denying Mr. Junior's Motion to Amend

Pleadings and entering judgment in favor of the State against the property. For the

following reasons, we find that the trial court legally erred in denying claimant's

Motion to Amend. We therefore vacate the judgment of the trial court and remand

this case with instructions to the trial court to allow Mr. Junior the opportunity to

amend his claim within a reasonable amount of time.

BACKGROUND

Detectives with the Jefferson Parish Sheriff's Office on November 9, 2021

seized an orange 2010 Chevrolet Camaro registered to Larry Junior during the

course of an ongoing narcotics investigation. Mr. Junior was arrested that same

day and later charged with possession with intent to distribute marijuana.1 Also on

that same day, pursuant to La. R.S. 40:2608(4), the officers provided Mr. Junior

with personal service of the Notice of Pending Forfeiture.

On November 21, 2021, Mr. Junior, through his counsel, filed a Claim of

Ownership and Opposition to Forfeiture wherein he claimed ownership of the

Chevrolet Camaro. He stated further that the property was not subject to seizure

because it was not gained from or being used for illegal narcotics sales and that the

automobile had been purchased using funds Mr. Junior received from an

automobile accident. In support of this claim, Mr. Junior attached various

documents including copies of checks, bank statements, a bill of sale, letters from

the insurance company, and a receipt from a title transfer.

On December 14, 2021, the State instigated these in rem proceedings by

filing a Petition for Forfeiture pursuant to La. R.S. 40:2601, et seq. The petition

1
Subsequently, Mr. Junior pled guilty to an amended charge of simple possession of marijuana.

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included as attached exhibits copies of the Notice of Pending Forfeiture and the

Seizure Warrant.2 Nine months later, on September 29, 2022, the State filed a

"Motion to Strike Claim (Exception of No Right of Action)" in which it sought to

have Mr. Junior's claim deemed insufficient as a matter of law and struck because

the claim failed to comport with the requirements of La. R.S. 40:2610. In

response, on October 28, 2022, Mr. Junior filed a "Motion to Dismiss the State's

Motion to Strike Claim - Alternatively Motion to Amend Pleadings" in which he

argued that his Claim of Ownership and its attached exhibits did comport with the

requirements set forth in La. R.S. 40:2610, and requested, in the alternative, the

opportunity to amend his pleadings.

A hearing on the Motion to Strike, Motion to Amend, and the Petition for

Forfeiture was held on January 23, 2023, at which time the trial court denied Mr.

Junior's Motion to Amend upon finding that an amendment to any petition or

claims by the owner to be prohibited by law. The court then proceeded to

determine that Mr. Junior's Claim of Ownership was insufficient under La. R.S.

40:2610, granted the State's Motion to Strike, and rendered judgment on the

petition in favor of the State. Mr. Junior's timely appeal followed.

On appeal, Mr. Junior argues that the trial court erred when it denied his

Motion to Amend and in granting the State's Motion to Strike. We consider these

assignments of error in our discussion below.

DISCUSSION

Motion to Amend

We consider first whether the trial court erred in denying Mr. Junior's

Motion to Amend. As noted above, the trial court held as a matter of law that

owners are prohibited from amending their claims. Appellate review regarding

2
There is no evidence in the record indicating that Mr. Junior was ever served with a citation and certified
copy of the petition by the District Attorney as required under La. R.S. 40:2612(B) and La. R.S.
40:2608(3).

23-CA-212 2

questions of law is simply a review of whether the trial court was legally correct or

legally incorrect. Anderson v. Dean, 22-233, (La. App. 5 Cir. 7/25/22), 346 So.3d

356, 364. On legal issues, the appellate court gives no special weight to the

findings of the trial court, but reviews questions of law de novo. Id.

Forfeiture proceedings pursuant to the Seizure and Controlled Dangerous

Substances Property Forfeiture Act of 1989, La. R.S. 40:2601, et seq., are civil

proceedings governed by the Louisiana Code of Civil Procedure except as

otherwise provided by specific provisions of the Act. La. R.S. 40:2611(K); State v.

Marino, 15-723, (La. App. 5 Cir. 5/12/16), 193 So.3d 371, 374. In order for the

Act to function as intended, courts must ensure that both the State and the owner or

interest holder strictly follow each of the Act's detailed requirements for the

various stages in the process. State v. 2003 Infiniti G35 VIN No.

JNKCV51E93MO24167, 09-1193, (La. 1/20/10), 27 So.3d 824, 828.

The trial court's determination that Mr. Junior's amendment of his claim was

prohibited by law appears to have been based on arguments presented by the State

that amendments to Claims of Ownership are expressly prohibited by the language

of the Act, in the particular language in La. R.S. 40:2610(A) that stated:

A. Only an owner of or interest holder in property seized for forfeiture
may file a claim, and shall do so in the manner provided by this
Section. The claim shall be mailed to the seizing agency and to the
district attorney by certified mail, return receipt requested, within
thirty days after Notice of Pending Forfeiture. No extension of time
for the filing of a claim shall be granted.

(Emphasis supplied.)

The trial court interpreted this language concerning the prohibition on the

extension of time for the filing of a claim to prohibit amendment of timely filed

claims. In so doing, we find that the trial court committed legal error.

We observe that, at the time of the filing of the Motion to Amend in October

of 2022 and at the time of the hearing on the motion in January of 2023, the above-

23-CA-212 3

emphasized language had been removed by Legislative amendment and was not in

effect. The language of Section A of Section 2610 was amended by Acts 2022,

No. 698, § 1 which became effective August 1, 2022. The language denying an

extension of time for the filing of a claim was removed and replaced. The statute

now reads:

A. Only an owner of or interest holder in property seized for forfeiture
may file a claim, and shall do so in the manner provided by this
Section. The claim shall be mailed to the seizing agency and to the
district attorney by certified mail, return receipt requested, within
thirty days after Notice of Pending Forfeiture. The court may grant
an extension of time for the filing of a claim pursuant to this Section
for good cause shown. Incarceration of an owner or interest holder
during the original thirty-day period shall create a rebuttable
presumption of good cause as to the owner or interest holder. A
motion requesting an extension shall be filed within sixty days after
receipt of the Notice of Pending Forfeiture.

(Emphasis supplied.)

The language that is the trial court’s purported statutory basis for denying

claimant’s Motion to Amend is no longer part of the law.

We find that the trial court erred in applying La. R.S. 40:2610(A) to

claimant's Motion to Amend because, regardless of whether the old or new version

is considered, the plain language of the statute makes no express provision for or

reference to the amendment of claims. Instead, it refers only extensions of time for

filing a claim. When the law is clear and unambiguous and its application does not

lead to absurd consequences, then the law shall be applied as written. La. C.C. art.

9; Yount v. Handshoe, 14-919, (La. App. 5 Cir. 5/28/15), 171 So.3d 381, 386. To

apply La. R.S. 40:2010(A) to a motion to amend requires the court to not only

conflate these two legally distinct terms, amendment and extension, but also to

disregard the uncontested fact that Mr. Junior timely filed his Claim of Ownership

within the statutorily mandated timeline.

As correctly noted in the State's appellate brief, there is no basis under the

Act that allows for amendment of the Claim. However, as noted above, the Act

23-CA-212 4

itself specifically states that forfeiture proceedings are civil proceedings governed

by provisions of the Louisiana Code Civil Procedure unless otherwise provided in

the Act. La. R.S. 40:2611(K). In the absence of specific provisions of the Act

governing amendment of Claims of Ownership, the general rules of civil procedure

apply. Under La. C.C.P. art. 1154, amendment of pleadings should be liberally

allowed if the movant is acting in good faith, the amendment is not a delaying

tactic, the opponent is not unduly prejudiced, and the trial of the issues is not

unduly delayed. Mooers v. Sosa, 01-286, (La. App. 5 Cir. 9/25/01), 798 So.2d

200, 204. Under the general rules of civil procedure, Mr. Junior should have been

granted the opportunity to amend his claim.

Motion to Strike

Allowing for the claimant to amend his pleading in the in rem proceeding is

also consistent with La. C.C.P. art. 934, which provides that when the grounds of

an objection pleaded by peremptory exception may be removed by amendment to

the petition, the judgment sustaining the exception shall order such amendment

within the delay allowed by the court. The State filed a "Motion to Strike Claim

(Exception of No Right of Action)" perhaps in recognition that the Motion to

Strike is the incorrect caption for its motion. A motion to strike pursuant to La.

C.C.P. art. 964 is not an authorized or proper way to procure the dismissal of a

complaint or cause of action. Carr v. Abel, 10-835, (La. App. 5 Cir. 3/29/11), 64

So.3d 292, 296, writ denied, 11-0860 (La. 6/3/11), 63 So.3d 1016. A motion to

strike is only proper if it can be shown that the allegations being challenged are so

unrelated to a plaintiff's claims as to be unworthy of any consideration and that

their presence in the pleading would be prejudicial to the moving party. Id. Such a

showing has not been made here. Instead, the State's motion is more correctly

considered by its sub caption, a peremptory exception of no right of action under

La. C.C.P. art. 927. The peremptory exception of no right of action questions

23-CA-212 5

whether the party against whom it is asserted has an interest in judicially enforcing

the right alleged against the exceptor. Caceras v. Work, 12-1097, (La. App. 4 Cir.

2/27/13), 110 So.3d 275, 278; Jefferson Par. Sch. Bd. v. TimBrian LLC, 18-349,

(La. App. 5 Cir. 5/9/19), 273 So.3d 528, 534, writ denied, 19-00957 (La. 9/24/19),

278 So.3d 979, and writ denied, 19-00954 (La. 9/24/19), 279 So.3d 388, and writ

denied, 19-01010 (La. 9/24/19), 279 So.3d 933. To prevail on a peremptory

exception pleading the objection of no right of action, the mover must show that

the claimant does not have an interest in the subject matter of the suit or the legal

capacity to proceed with the suit. Strategic Med. All. II v. State, 22-0051, (La.

App. 1 Cir. 11/4/22), 355 So.3d 55. The question to be resolved on the State's

motion was whether Mr. Junior has a legitimate property interest in the 2010

Camaro such that he should be allowed to participate in the forfeiture proceeding.3

Because upon de novo review we find that the trial court legally erred in failing to

allow Mr. Junior the opportunity to amend his claim, we pretermit any further

discussion as to the merits of this second assignment of error relating to the State's

Motion to Strike, except to note, as stated above, that a motion to strike is not the

proper way to dismiss Mr. Junior's claim.

CONCLUSION

Accordingly, and for the foregoing reasons, we vacate the March 9, 2023

judgment of the trial court. Further, we order that this case be remanded to the trial

court to allow Mr. Junior within a reasonable amount of time from the finality of

this judgment the opportunity to amend his claim. If he fails to comply, the action

may be subject to dismissal by that court.

JUDGMENT VACATED; MATTER
REMANDED WITH INSTRUCTIONS
3
The State in its motion argues that the evidence is insufficient for Mr. Junior to establish a valid claim of
ownership or whether he has a right to the property subject to the forfeiture proceedings. Had the motion
been concerned only with whether the facts alleged by Mr. Junior in his Claim of Ownership application
were sufficient to meet the statutory requirements of La. R.S. 40:2510(B), such motion may be properly
considered a peremptory exception of no cause of action. See State v. Property Seized from Terrance
Martin, 09-1417 (La. App. 1 Cir. 3/30/10), 37 So.3d 1021.

23-CA-212 6

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JANUARY 31, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-CA-212
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. SCOTT U. SCHLEGEL (DISTRICT JUDGE)
HONORABLE JOSEPH A. MARINO, III (DISTRICT JUDGE)
MONIQUE D. NOLAN (APPELLEE) THOMAS J. BUTLER (APPELLEE)

MAILED
H. THOMAS MURPHY (APPELLANT) HONORABLE PAUL D. CONNICK, JR.
ATTORNEY AT LAW (APPELLEE)
1117 EVERGREEN DRIVE DISTRICT ATTORNEY
GRETNA, LA 70053 TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053