Jasmine Foster Versus Jytte Birden

JASMINE FOSTER NO. 24-CA-348

VERSUS FIFTH CIRCUIT

JYTTE BIRDEN COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 848-179, DIVISION "A"
HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING

December 30, 2024

JOHN J. MOLAISON, JR.
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
John J. Molaison, Jr., and Timothy S. Marcel

REVERSED
JJM
TSM

CONCURS WITH REASONS
FHW

COUNSEL FOR PLAINTIFF/APPELLANT,
JASMINE FOSTER
Bianca N. Moore

COUNSEL FOR DEFENDANT/APPELLEE,
JYTTE BIRDEN
William H. Daume

MOLAISON, J.

The appellant seeks review of the trial court’s judgment which imposed

sanctions for filing a frivolous pleading. We reverse for the following reasons.

FACTS AND PROCEDURAL HISTORY

On October 18, 2023, the appellant, Jasmine Foster, in proper person, filed a

Petition for Protection from Abuse at the Twenty-Fourth Judicial District Court on

behalf of her six minor children against Ms. Birden, who is the domestic partner of

Ms. Foster’s ex-husband. The petition alleged that on October 9, 2023, Ms.

Foster’s daughter, “E.S.,”1 told Ms. Foster during breakfast that her mouth hurt.

E.S. then allegedly told Ms. Foster that Ms. Birden had hit her in the mouth after

E.S. called Ms. Birden’s son a “bully.” The petition did not provide the date of the

alleged incident. Still, it did include a copy of a report from Ochsner Hospital

dated October 9, 2023, which indicated a doctor saw E.S. on that date for a

“contusion of [the] mouth.” Commissioner Patricia Joyce signed a temporary

restraining order in favor of Ms. Foster on October 18, 2023, and set the show

cause date for October 31, 2023, in front of Commissioner Ruben Bailey.

On October 31, 2023, Ms. Foster and Ms. Birden appeared before

Commissioner Ruben in proper person. The transcript from the hearing

demonstrates that the focus of the petition for protection was the alleged incident

where Ms. Birden hit E.S. in her mouth. Ms. Foster testified that Child Protective

Services had opened an investigation into the allegation against Ms. Birden.

Evidence accepted into evidence at the hearing included a photograph of E.S.’s

alleged injury. Commissioner Ruben declined to admit the doctor’s report from

Ochsner into evidence. For her part, Ms. Birden first denied being properly served

with notice of the proceeding but then waived her objection on the record. She

then denied all allegations contained in Ms. Foster’s petition. In his testimony, the

1
Initials are used throughout this opinion to protect the identities of the minors involved.

24-CA-348 1

father of Ms. Foster’s children, Mr. Sandifer, similarly contradicted the account

given in Ms. Foster’s petition for protection.

After the hearing, the following exchange took place between Commissioner

Ruben and Ms. Foster:

THE COURT:

At Children's Hospital at the Children's Advocacy Center.
They would record the interview of the child. That would be the ideal
thing. That recording could then be admitted into evidence and the
court could hear that tape and hear the child's own words. okay?

MS. FOSTER:

Yes. Will do.

THE COURT:

Right now, there is not enough evidence that the child has been
abused. I'm going to dismiss the petition. You have a right to object.
You know about objections because you've already been involved in an
objection.

After the October 31, 2023 hearing, Commissioner Bailey signed a Notice of

Dismissal that dismissed Ms. Foster’s petition with prejudice based on her “failure

to prove by the appropriate standard the allegations contained in the Petition.”

Ms. Foster formally objected to Commissioner Bailey’s order on October

31, 2023, and requested a hearing before the district court. The court set the

hearing for December 18, 2023. The record indicates that after filing her objection

on November 22, 2023, before the district court hearing, Ms. Foster brought her

three children, E.S., J.S., and K.S, for an interview at the Audrey Hepburn Care

Center at Children’s Hospital.2

2
In summary, the respective reports from Children’s Hospital contained the following
information and conclusions:
K.S., age 11, alleged in her interview that she is afraid of her father, who said to her that
if she told anyone about what happens while she is at his house then she will get a whipping or be
harmed by her father. K.S. said that she had seen her father hit her brother, J.S., with a plastic
bat. K.S. also described seeing her father beat her brother with a belt. The “Visit Diagnosis” for
the report confirmed “child physical abuse.”
E.S., age 7, gave an account of Ms. Birden hitting her in the mouth. E.S. also reported
that she had seen her father and Ms. Birden beat J.S. in their room. E.S. said that her dad
threatens to whip her or beat her again if she tells anyone what happens when she is at her dad's
house, he will. The “Visit Diagnosis” for the report confirmed “child physical abuse.”

24-CA-348 2

The district court hearing proceeded on December 18, 2023, and counsel

represented both parties. Counsel for Ms. Foster informed the court that she

intended to file exhibits into the record that were not introduced at the hearing

before Commissioner Bailey. Counsel for Ms. Birden objected to any evidence

involving K.S. and J.S. on the basis that “there was no abuse of either of those two

children alleged in any way, shape or form in the petition.” Judge Steib indicated

that he would only consider evidence presented to Commissioner Bailey:3

THE COURT:

And because [Commissioner Bailey] looked at the four
corners of the document. He can't go outside of that, so what I'm
looking at is whether or not his dismissal of this was correct. And
again, we're going to be limited to the four corners of the document.
So I mean, if they weren't alleged to have been abused in this petition,
maybe you file another petition that gives him all of the facts, but I'm
just looking at whether or not the commissioner's dismissal of this
petition was correct.

Ms. Foster went on to testify at the hearing and gave an account of the events

involving E.S. and the alleged injury to E.S.’s mouth. Ms. Foster stated that

Commissioner Bailey suggested that she have E.S. evaluated at Children’s

Hospital. After her testimony, Judge Steib made the following observation:

THE COURT:

Well, the bottom line is is [sic] that Commissioner Bailey] gave
[Ms. Foster] that information and, at the same time, dismissed the
petition for protection from abuse telling her that the allegations
contained in the petition were insufficient to sustain the petition for
protection.
What [Commissioner Bailey] was telling her [Ms. Foster] is
you go, you get more information, you come back and you may have
sufficient allegations to sustain a petition. That's what I'm getting at.
[Commissioner Bailey] told [Ms. Foster] what to do.

J.S., age 13, stated that he is afraid of his father, who whips the children and threatens to
cause harm to him, K.S., and E.S. if any of them tell anyone what happens when they are at their
dad's house. J.S. reported that he saw another child in the home, J.S., bear red marks after he was
beaten by his dad with a plastic bat in his father’s room. The “Visit Diagnosis” for the report
indicated “suspected” child physical abuse.
3
It does not appear from the record that the Children’s Hospital reports were entered into
evidence at the hearing before Judge Steib.

24-CA-348 3

Near the end of the proceeding, Judge Steib emphasized again that he would only

consider evidence presented within the four corners of Ms. Foster’s petition.

However, Judge Steib alluded to the possibility that Ms. Foster could file a new

petition raising different claims.

THE COURT:

. . .

So this is all stuff that doctor -- if she wants to go back and file
another petition for protection and put all of the allegations and stuff
in it, she may have something but if I'm looking at what's contained in
here, does it rise to the standard or not? You know, that's the issue.

After the hearing, Judge Steib commented:

THE COURT:

At this time, I think that if [Ms. Foster] wants to come in and
bring in all the stuff that she's saying happened after the date of this
petition, she can file another petition and do that. So I'm going to go
ahead and sustain Judge Bailey's commissioner Bailey's decision on
the dismissal of it.

The minute entry of December 18, 2023, indicates that the trial court “sustained”

Judge Bailey’s decision to dismiss Ms. Foster’s petition and did not assess costs.

Ms. Foster did not seek an appeal of this ruling.

On the same date that Judge Steib sustained Commissioner Bailey’s

dismissal of Ms. Foster’s petition, December 18, 2023, Ms. Foster, in proper

person, filed a second Louisiana Uniform Abuse Protection Order. Her

information on the pre-printed petition indicated she sought the protective order on

behalf of “others.” The respective reports for E.S, K.S., and J.S. from Children’s

Hospital are attached to the petition. (76). The court did not grant the temporary

restraining order and set the show cause hearing in front of Commissioner Bailey

for January 10, 2024. On that date, Commissioner Bailey signed a temporary

restraining order in favor of Ms. Foster and set a show cause hearing for February

6, 2024. On January 24, 2024, Ms. Birden filed an exception of res judicata and a

24-CA-348 4

motion for sanctions, alleging that the claims raised were both frivolous and

repetitive. In her reply to Ms. Birden’s exception and motion, Ms. Foster asked the

court to grant her voluntary motion for dismissal with prejudice.

At the February 6, 2024 hearing before Commissioner Bailey, counsel

represented Ms. Foster and Ms. Birden. Ms. Foster urged the dismissal with

prejudice of the pending motion; however, the court did not rule at the hearing.

The record shows that on February 6, 2024, Commissioner Bailey signed an Order

that dismissed Ms. Foster’s petition with prejudice and denied Ms. Birden’s

exception and request for sanctions. On that same date, Commissioner Bailey took

up the issue of sanctions against Ms. Foster. In connection with that motion, the

hearing transcript shows that Ms. Birden’s attorney presented Commissioner

Bailey with several inaccuracies. The first was that Judge Steib had considered

and rejected the reports for E.S, K.S., and J.S. from Children’s Hospital as part of

the December 18, 2023 ruling. As noted above, Judge Steib refused to review the

documents as they were not a part of Ms. Foster’s original petition. Next,

Commissioner Bailey was incorrectly informed that Ms. Foster had filed the same

petition for protection three times, which Ms. Foster had only filed two. Counsel

then incorrectly stated that Ms. Foster filed the first petition twice. The allegations

of abuse against K.S. and J.S. were new and not previously addressed by either

Commissioner Bailey or Judge Steib.

In response to Ms. Foster’s assertion that she brought E.S, K.S., and J.S. to

Children’s Hospital upon Commissioner Bailey’s instruction, he denied doing so.

He categorized Ms. Foster’s action as a misunderstanding. When Ms. Foster told

Commissioner Bailey that Judge Steib had suggested that she file a new petition to

set out new allegations of abuse not addressed in her first filing, counsel for Ms.

Birden pointed out that a transcript of the December 18, 2023 district court hearing

was not in the record to support Ms. Foster’s claim. As observed above, however,

24-CA-348 5

Judge Steib did suggest a new filing several times during the hearing.

Commissioner Bailey concluded that if Ms. Foster disagreed with Judge Steib’s

ruling, her remedy would be to seek an appeal.

Commissioner Bailey then found that Ms. Foster’s most recent filing was

frivolous before ordering her to pay court costs and attorney’s fees with no

evidence offered, filed, or introduced into the record. He further granted Ms.

Birden’s exception of res judicata. The record contains a judgment dated February

6, 2024, which consists mainly of a pre-printed form. There are two handwritten

notations on the Judgment of Dismissal under the section “WITH PREJUDICE.”

One says, “The Court finds that the petition is frivolous.” The second handwritten

sentence says, “Jasmine Foster is ordered to appear on June 6, 2024, to review

payment of court cost [sic].”

On February 9, 2024, Ms. Foster formally objected to Commissioner

Bailey’s order and requested a hearing before the district court. The hearing on

Ms. Foster’s objection occurred before Judge Steib on April 22, 2024. Ms. Foster

represented herself in proper person at the hearing, and counsel represented Ms.

Birden. Ms. Foster argued, in summary, that she took the advice of Commissioner

Bailey in obtaining the three interviews at Children’s Hospital and relied upon

Judge Steib’s assertion that she could file the new claims in a separate petition:

MS. FOSTER:

I wouldn't have filed constant motions if I was told I couldn't. I
got the new evidence. I filed the new evidence. I got the new
information. I filed it. I was told to refile. I did everything in the best
interest of my children.

During one point in the proceeding, Judge Steib addressed Ms. Foster’s claim as

follows:

24-CA-348 6

THE COURT:

. . .

Just because the Court says this might be a way to go ahead and
handle this, you have to think whether or not it's the absolute right
way. When you do something on your own, you're assumed to be
acting with the same knowledge that an attorney has even though
you're representing yourself and you can be held to the same
consequences…

At another point in the hearing, the following exchange took place:

MS. FOSTER:
. . .
. . .But here on the court transcript I was told four different times that I
could be able to file a new motion.

THE COURT:
Just because you can do something doesn't necessarily always mean
that you should do something.

Judge Steib ultimately agreed with counsel for Ms. Birden that Ms. Foster’s

second Petition for Protection from Abuse was no more than a refiling of the

original Petition for Protection from Abuse filed on October 18, 2023, and which

was dismissed by the Commissioner on October 31, 2023. The court also found

that the second filing was frivolous and that the award of sanctions was

appropriate.

Ms. Foster filed a motion for a suspensive appeal on May 22, 2024, and the

court granted the motion on June 17, 2024. The court granted Ms. Foster’s motion

to covert her suspensive appeal into a devolutive appeal on July 15, 2024. This

appeal followed.

ASSIGNMENTS OF ERROR

I. The District Court erred in upholding Commissioner Bailey’s finding that
Mrs. Foster’s Petition for Protection Against Abuse was frivolous.

II. The District Court erred in upholding Commissioner Bailey’s sanction
and order for Mrs. Foster to pay attorney’s fees and court costs for filing a Petition
for Protection Against Abuse against Defendant-Appellee.

24-CA-348 7

LAW AND ANALYSIS

As a preliminary matter, we must address issues related to the

Commissioner’s February 6, 2024 judgments.

There are two judgments dated February 6, 2024, in the record. One grants

Ms. Foster’s motion to withdraw her petition and denies sanctions. The other finds

her petition to be frivolous and awards sanctions.

The First Circuit, considering a similar issue in First NBC Bank v. River

Park Dev., LLC, 21-1210 (La. App. 1 Cir. 9/16/22), 353 So.3d 193, 196, held:

Where a trial court signs a second judgment that makes
substantive changes to its first judgment without following the proper
procedure for doing so, the second judgment is absolutely null and
without effect. See Matter of Succession of Buhler, 17- 0049, pp. 5-6
(La.App. 1 Cir. 2/22/18), 243 So.3d 39, 44-45, writ not considered,
18- 0478 (La. 5/11/18), 241 So.3d 1013. Because the two conflicting
judgments signed by the trial court in this matter were signed on the
same date, it is unclear which judgment is the second (absolutely null)
judgment. As such, we vacate both judgments and remand this matter
to the trial court for the rendition of a valid final judgment on River
Park's motion for new trial.

Next, even assuming that the Commissioner’s judgment, finding a frivolous filing

and awarding sanctions, represents the court’s intent, it is defective in form. In the

case of Input/Output Marine Sys., Inc. v. Wilson Greatbatch, Techs., Inc., 10-477

(La. App. 5 Cir. 10/29/10), 52 So.3d 909, 916, this Court named the elements

necessary to form a final appealable judgment:

A final appealable judgment must contain decretal language,
and it must name the party in favor of whom the ruling is ordered, the
party against whom the ruling is ordered, and the relief that is granted
or denied. Johnson, supra, 0337 at 3, 934 So.2d at 67. Accord: Blanke,
supra. The specific relief granted should be determinable from the
judgment without reference to an extrinsic source such as pleadings or
reasons for judgment. Vanderbrook v. Coachmen Industries, Inc., 01–
0809, pp. 11–12 (La. App. 1 Cir. 5/10/02), 818 So.2d 906, 913.

Here, the specific nature and amount of damages are not determinable from the

alleged “judgment” without reference to an extrinsic source. The judgment does

24-CA-348 8

not provide a precise amount of the court costs and attorney’s fees assessed against

Ms. Foster.

More importantly, no evidence was introduced at the hearing on Ms.

Birden’s motion for sanctions to demonstrate how the Commissioner could have

arrived at an amount for an award of sanctions. In Beard v. Beard, 01-1381 (La.

App. 5 Cir. 5/15/02), 821 So.2d 45, 52, we found reversible error when no

evidence was introduced to support a judgment of sanctions.

We also have the record before us from which we can determine the merits

of the appellant’s claims. Here, Ms. Foster, a layperson, both represented herself

and had the assistance of counsel at various points in the proceeding. As noted

above, there is evidence to support a conclusion that Ms. Foster acted in good faith

in filing the second petition. Even if we disregarded the comments of the presiding

judges, which could arguably be interpreted as guidance to file the second

pleading, the second pleading itself does present claims of abuse that were not

present in the first petition. This, too, would be a basis for reversing the trial

court’s judgment of sanctions. It is also significant that Ms. Foster ultimately filed

a motion to voluntarily dismiss her petition.

The appellate court shall render any judgment which is just, legal, and

proper upon the record on appeal. La. C.C.P. art. 2164. We will pretermit

consideration of the merits on the issue whether of Ms. Foster acted in good faith

in filing her second petition. Here, no evidence of the costs, which served as the

basis for sanctions, was introduced into evidence. Accordingly, we reverse the

February 6, 2024 and April 22, 2024 rulings below that awarded and confirmed

sanctions, attorney’s fees, and court costs to Ms. Birden.

REVERSED

24-CA-348 9

WICKER, J., CONCURS WITH REASONS

While I agree with both the analysis and the decision in this matter, I write

separately for the purpose of pointing out that, in ruling on an objection to a ruling

of a domestic commissioner, the trial judge’s review is not limited to the evidence

initially considered by the commissioner. La. R.S. 13:717(F)(4) provides that a party

who disagrees with a domestic commissioner’s ruling may file an objection which

“shall be heard by the judge of the [24th JDC] to whom the matter was originally

allotted” and that on review, “[t]he judge may decide the objection based on the

record of the proceedings before the commissioner or may receive further evidence

and rule based on that evidence, together with the prior evidence, or may recommit

the matter to the commissioner with instructions.”

A ruling/order of the domestic commissioner is “interim” until the deadline

passes for filing an objection. Where a party timely files an objection to the

ruling/order, the domestic commissioner’s interim order remains “interim,” and a

final judgment will be issued by the trial court. Further, admission of new evidence

at the trial court level is clearly contemplated by La. R.S. 13:717(F)(4)(c) and, if the

objecting party seeks to introduce new evidence in the trial court, a de novo review

is mandated.

In Dugue v. Dugue, 17-525 (La. App. 5 Cir 6/27/18), 250 So.3d 1174, 1177-

78, this Court held that because the appellant had timely objected to the hearing

officer’s recommendations, the recommendations did not become a final judgment

and that the appellant was entitled to a de novo review of the hearing officer’s

findings by the district court. We reiterated this holding in Fairbanks v. Beniate, 20-

206 (La. App. 5 Cir. 12/23/20), 308 So.3d 1222, 1236, writ denied, 21-250 (La.

3/23/21, 313 So.3d 272. See also, Ariatti v. Plaisance, 18-84 (La. App. 5 Cir.

9/13/18), 255 So.3d 1239, 1249, wherein we recognized a litigant’s right to a district

court’s de novo consideration of a domestic commissioner’s interim judgment.

24-CA-348 1

On remand, the trial court should be mindful of these principles.

24-CA-348 2

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
DECEMBER 30, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-CA-348
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. RAYMOND S. STEIB, JR. (DISTRICT JUDGE)
BIANCA N. MOORE (APPELLANT)

MAILED
WILLIAM H. DAUME (APPELLEE)
ATTORNEY AT LAW
929 4TH STREET
GRETNA, LA 70053