State of Louisiana v. Kee Food, Inc. ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 0795
STATE OF LOUISIANA
VERSUS
KEE FOOD, INC., KASSIM NAGI, TAWFIQ ALI ALMANSOOB,
MOHAMED NAGI, SOUTHLA, LLC
U
Judgment Rendered: MAY 1 12020
On Appeal from the
Thirty -Second Judicial District Court
In and for the Parish of Terrebonne
State of Louisiana
Trial Court No. 170, 587
The Honorable David W. Arceneaux, Judge Presiding
Marcus J. Plaisance Attorneys for Defendants/ Appellants,
Mark D. Plaisance Kee Food, Inc., Mohamed Nagi, and
Prairieville, Louisiana Southla, LLC
Joseph L. Waitz, Jr. Attorneys for Plaintiff/Appellee,
District Attorney State of Louisiana
Ellen Daigle Doskey
Assistant District Attorney
Houma, Louisiana
BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.
PENZATO, J.
Appellants, Kee Food, Inc. ( Kee Food), Mohamed Nagi, and Southla, LLC
Southla), appeal a trial court judgment granting Appellee, the State of Louisiana
State), the right of forfeiture against Appellants. For the reasons that follow, we
affirm.
FACTS AND PROCEDURAL HISTORY
The matter arises out of civil forfeiture proceedings instituted by the State
under La. R.S. 40: 2601, et seq. Kassim Nagi and Tawfiq Ali Almansoob were
arrested in June of 2013 as a result of an investigation into the sale of synthetic
cannabinoids on the premises of Kee Food, a convenience store.' The State
instituted forfeiture proceedings against Almansoob, Kassim, his father Mohamed
Nagi, and the two entities owned by them, Kee Food and Southla. The State
alleged that the assets sought to be seized were generated from the sale of illegal
substances and commingled with the proceeds of legitimate sales. The State seized
cash, banking accounts, and a piece of commercial real estate, all of which was
owned by either the Nagis or Almansoob or all three of them.
In response to the State' s petition, through counsel, Kee Food, Kassim,
Mohamed, and Southla ( hereinafter referred to collectively as the defendants)
answered and asserted claims pursuant to La. R.S. 40: 2610, seeking immediate
release of the seized property and termination of any forfeiture proceedings. The
defendants maintained that certain seized funds were from the sale of legitimate
merchandise and were not derived from or connected to any illegal activity.
Kassim appeared on behalf of Kee Food to assert its claims, and in doing so,
Kassim stated that he is the agent, manager, and part owner of Kee Food. Kassim,
Almansoob eventually entered into a release and consent judgment with the State. Kassim was
found guilty by a jury of violations of racketeering, money laundering, distribution of synthetic
cannabinoids, and possession with intent to distribute synthetic cannabinoids. His convictions
were affirmed by this court and the Louisiana Supreme Court. State v. Nagi, 2017- 1257 ( La.
App. 1st Cir. 4/ 9/ 18), 2018 WL 1704253, writ denied, 2018- 0739 ( La. 3/ 25/ 19), 267 So. 3d 602.
2
through a power of attorney executed by Mohamed, asserted individual claims on
behalf of Mohamed. Kassim also asserted claims on behalf of Southla, asserting
that he was the agent and attorney- in- fact for Southla pursuant to the power of
attorney executed by Mohamed and a resolution of Southla.
Prior to trial, the State filed a motion for summary judgment, contending that
the admissions, depositions, and records from the criminal matter proved that no
genuine issue of material fact remained. The trial court granted the motion for
summary judgment and ordered the seizure of all the assets. Defendants appealed
the judgment granting the motion for summary judgment. This court affirmed the
judgment as to Kassim, individually, but reversed the judgment as to Mohamed,
Kee Food, and Southla due to improper service of the petition on these parties.
State v. Kee Food, Inc., 2017- 0127 ( La. App. 1st Cir. 9/ 21/ 17), 232 So. 3d 29, 35,
writ denied, 2017- 1780 ( La. 12/ 5/ 17), 231 So. 3d 632.
The State subsequently moved to have the trial court appoint an attorney ad
hoc for Mohamed, Kee Food, and Southla. The trial court appointed Dustin
Pellegrin and set the trial for September 24, 2018. Prior to the trial, the State filed
a pleading entitled, " Motion and Order for Writ of Habeas Corpus Ad
Prosequendum" to have Kassim, who was in the custody of Raymond Laborde
Correctional Center, appear as a witness at the trial, which the trial court signed.
On the date of the trial when counsel was asked to make their appearances,
Kassim stood and asserted that he was there on behalf of himself, Kee Food,
Mohamed, and Southla. The trial court noted that Kassim had previously been a
party to the proceedings, but that the trial court had granted the State' s motion for
summary judgment as to Kassim, which was affirmed by this court. Abdul Nagi,
the brother of Kassim and son of Mohamed, also asserted that he was present as a
representative of Kee Food, Mohamed, and Southla. Counsel for Appellants
explained to the trial court that Abdul was attempting to stand in as agent for the
3
three parties on trial that were appointed ad hoc counsel. Counsel advised the trial
court that Abdul did not have any paperwork to reflect same. The record contains
no like request for Kassim to act as agent. The trial court noted that Abdul was not
a party to the proceedings and could not sit at counsel table, since Pellegrin was the
attorney ad hoc appointed to represent Kee Food, Mohamed, and Southla.
Two other attorneys present were Baron Whipple and Mark Plaisance.
Whipple informed the court that he had been retained to attempt to negotiate a
settlement between the State and Appellants. However, he was not appearing in a
representative capacity for Appellants at the civil forfeiture trial. Plaisance, who is
currently representing Appellants in this appeal, had previously represented
Appellants for the first appeal and was at the trial to preserve his motion for
attorney' s fees.
Subsequently, Kassim asked the trial court for a continuance to allow
Whipple to resolve the matter. The trial court explained to Kassim that he was
present as a witness and had no capacity to request a continuance. The trial court
further indicated that Kassim' s part of the civil trial was completed, and the current
matter involved the other entities, Mohamed, Kee Food, and Southla. Kassim then
asked if he could represent his father to request a continuance. The trial court
responded that since Kassim was not an attorney neither he nor Abdul could
represent their father in the proceedings. The colloquy between the trial court,
counsel, and Kassim evidences that the trial court denied Kassim the opportunity to
move for a continuance on behalf of Mohamed, as counsel had been appointed.
Pellegrin then moved for a continuance of the trial on behalf of Kee Food,
Mohamed, and Southla, which the trial court denied.
Thereafter, the trial court inquired of counsel as to the proper procedural
handling of the case and noted that Pellegrin was representing the three parties on
trial, Kee Food, Mohamed, and Southla. No request was made by Pellegrin for
4
Kassim to act as agent for the parties on trial. Counsel for the State asked the trial
court if Kassim should be removed from the courtroom for security reasons.
Initially, Pellegrin requested that the witnesses be sequestered, but he withdrew
that request, noting the relationship of the one potential witness for the State to the
parties.
Counsel for the State reiterated that he did not see any reason for Kassim
to stay in the courtroom. The trial court then determined that there was no reason
for Kassim to remain in the courtroom and that Kassim' s presence created a
security issue. Again, at this time, no request was made for Kassim to remain in
the courtroom to act as an agent of Appellants at the trial. Therefore, the trial court
ordered Kassim to be returned to jail until he was called as a witness. Pellegrin did
not object to Kassim' s removal. During the trial, the State called Kassim as a
witness, who invoked his Fifth Amendment right against self-incrimination after
initially requesting to speak with his criminal attorney. Following his testimony,
Kassim made no request to remain in the courtroom.
After considering all the evidence, the trial court concluded that all of the
Appellants knew that synthetic marijuana was
being distributed from the
convenience store. The trial court noted that all the claims in regard to Kassim had
previously been adjudicated. Therefore, it ordered that judgment be rendered
against Kee Food, Mohamed, and Southla forfeiting to the State all of the items of
property claimed in the civil forfeiture proceeding. The trial court signed a
judgment in accordance with its oral ruling on October 5, 2018, dismissing all
claims. It is from this judgment that Appellants appeal.
ASSIGNMENT OF ERROR
The only assignment of error by Appellants is that the trial court erred in
removing Kassim from the courtroom, claiming he has a constitutional right to be
present as the mandatary of Appellants in order to assist the ad hoc counsel,
Pellegrin, regardless of his status as a prisoner.
5
LAW AND DISCUSSION
Appellants argue that Kassim was conferred general power of attorney by
Mohamed with the specific authority to represent him in judicial proceedings. The
power of attorney names Mohamed as principal and Kassim as agent. The relevant
provisions of the power of attorney are as follows:
1. BUSINESS AND AFFAIRS. To conduct, manage, and transact
sic] business and personal financial matters of Principal, of
every nature and kind and without any exception whatsoever.
4. JUDICIAL PROCEEDINGS. To appear before all courts and
to prosecute, defend, or compromise and settle by agreement,
arbitration, or otherwise; to sign all pleadings and do all things
necessary to obtain writs of attachment, sequestration and
injunction[,] and to take appeals and, in any such instances, to furnish
the requisite security and bonds.
MSM
6. GENERAL. To do and perform each and every other act,
matter, or thing whatsoever as may be appropriate in Agent' s
discretion as if such act, matter or thing were or had been particularly
stated herein.
As we stated earlier, the State filed a " Motion and Order for Writ of Habeas
Corpus Ad Prosequendum" 2 to have Kassim transported from prison to the court
on the date of the trial to appear as a witness. Prior to the start of the trial, the trial
court indicated that Kassim was present only as a witness. In connection with a
discussion regarding whether the witnesses were going to be sequestered, which
request was subsequently withdrawn, the trial court determined there was no
reason for Kassim to remain in the courtroom due to security issues. Neither
Pellegrin nor Kassim requested that Kassim remain in the courtroom or assist in
2
A writ of habeas corpus ad prosequendum is defined as "[ a] writ which issues when it is
necessary to remove a prisoner in order to prosecute in the proper jurisdiction wherein the fact
was committed." State v. Terry, 458 So. 2d 97, 99 n.2 ( La. 1984) ( quoting Black' s Law
Dictionary 837 ( 4th ed. 1968) ( Emphasis in the original.)). A writ of habeas corpus ad
testificandum is the means for parties who are incarcerated to be present in court in civil
litigation. Ardoin v. Bourgeois, 2004- 1663 ( La. App. 3rd Cir. 11/ 2/ 05), 916 So. 2d 329, 332- 33.
Although the styling of the pleading filed by the State may be technically incorrect, Kassim was
transported to the courthouse and his appearance is not at issue in this appeal.
0
the defense as agent of the parties and there was no objection to his removal.
Kassim was returned to the jail until he was called to testify as a witness.
Appellants maintain that the trial court abused its discretion by removing Kassim
from the courtroom, which prevented him from assisting the attorney ad hoc,
Pellegrin.
The determination of whether a prisoner -party in a civil action should appear
personally in court for the trial of the action rests in the discretion of the trial court.
As explained in Wells v. Criminal Dist. Court of Orleans Par., 2016- 0181 ( La.
App. 4th Cir. 8/ 24/ 16), 198 So. 3d 283, 285,
A prisoner has a right of access to state and federal civil courts.
However, this right does not necessarily include the right to be
physically present at the trial of a civil suit. Generally, prisoners who
bring civil actions have no right to be personally present in court at
any stage of the action. Lawful incarceration brings about the
necessary withdrawal or limitation of many privileges and rights,
among which is the right of a prisoner to plead and manage his action
in court personally.
Wells, 198 So. 3d at 285- 86 ( quoting Leeper v. Leeper, 44, 777 ( La. App. 2nd Cir.
9/ 23/ 09), 21 So. 3d 1006, 1010 ( internal citations omitted)).
However, in the instant case, no request was made for Kassim. to remain in
the courtroom or to act as an agent for Appellants during the trial. Therefore,
Kassim did not assert any rights that may have been afforded under the power of
attorney. There was also no objection to the trial court' s order removing Kassim
from the courtroom for security reasons. Failure to object timely constitutes a
waiver of that objection, and an appellant may not raise the issue for the first time
on appeal. Travis v. Spitale' s Bar, Inc., 2012- 1366 ( La. App. 1st Cir. 8/ 14/ 13), 122
So. 3d 1118, 1134, writs denied, 2013- 2409, 2013- 2447 ( La. 1/ 10/ 14), 130 So. 3d
327, 329. Having failed to specifically object to the procedure utilized by the trial
court, Appellants are precluded from raising this issue for the first time on appeal.
See Haney v. Lewis, 2015- 1173 ( La. App. 1st Cir. 6/ 3/ 16), 2016 WL 3127254, at
9 ( unpublished), writs denied, 2016- 1252, 2016- 1254 ( La. 10/ 28/ 16), 208 So. 3d
888, 889 ( failing to object to jury selection process precluded raising issue for first
time on appeal); see also Kirsch v. Kirsch, 2015- 0281 ( La. App. 1st Cir. 7/ 29/ 15),
180 So. 3d 417, 421, writ denied, 2015- 1626 ( La. 9/ 18/ 15), 178 So. 3d 153 ( failing
to object to the qualifications of an expert precluded raising the issue on appeal).
As a general rule, appellate courts will not consider issues that were not raised in
the pleadings, were not addressed by the trial court, or are raised for the first time
on appeal. Johnson v. Montoya, 2013- 1951 ( La. App. 1 Cir. 5/ 2/ 14), 145 So. 3d
418, 422; see also Uniform Rules—Courts of Appeal, Rule 1- 3. We need not
determine if the trial court abused its discretion in having Kassim removed from
the courtroom, as no one objected to his removal during the trial. Therefore,
Appellants only assignment of error is without merit.
CONCLUSION
For the above and foregoing reasons, we affirm the trial court' s October 5,
2018 judgment ordering that certain assets and property be forfeited to the State of
Louisiana. All costs of this appeal are assessed to Kee Food, Inc., Mohamed Nagi,
and Southla, LLC.
AFFIRMED.
0