Drake Landry v. Tabitha Landry

Judgment rendered June 9, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,921-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

DRAKE LANDRY Plaintiff-Appellee

versus

TABITHA LANDRY Defendant-Appellant

*****

Appealed from the
Fifth Judicial District Court for the
Parish of Franklin, Louisiana
Trial Court No. 47,004

Honorable Will R. Barham, Judge

*****

PAUL A. LEMKE, III Counsel for Appellant

E. MICAH HOGGATT Counsel for Appellee

*****

Before GARRETT, COX, and BODDIE (Pro Tempore), JJ.

COX, J., concurs in the results with written reasons.

BODDIE, J. (Pro Tempore)

Tabitha Landry appeals a protective order, issued under the Protection

from Family Violence Act, La. R.S. 46:2136, that directed her to keep 100

yards away from her husband and two minor sons, and otherwise not to

abuse or harass them. For the reasons expressed, we reverse and remand.

PROCEDURAL HISTORY

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.

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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.

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

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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);

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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.
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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.

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(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.

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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
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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.

DECREE

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.

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COX, J., concurs in the results with written reasons.

COVID-19 has shaped our world and country in many ways. In this

situation, the court was faced with a terribly dangerous situation where a

mother appears to be a danger to herself and her children. The mother’s

attorney, from the reading of the record, was at the second hearing even

though the mother could not be found. Faced with horrible facts, the court

entered this order to protect the children and father. As such, I believe the

court was looking at the best interest of the children in this situation.

Although I believe that the court was attempting to do the best they could

under these horrible circumstances, the law requires certain procedures to be

followed. Due to the requirements imposed on the court, as stated in the

majority opinion, I must concur in the results and holding.

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