STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
AQUENTEYA Q. ROGERS
VERSUS
DARIOUS E. ROGERS
Judgment Rendered: SEP 2 7 2019
On Appeal from the Twenty -Second Judicial District Court In and for the Parish of Washington State of Louisiana Trial Court No. 110, 811
The Honorable William J. " Rusty" Knight, Judge Presiding
Sean S. Cassidy Attorney for Plaintiff/Appellant, Baton Rouge, Louisiana Aquenteya Q. Rogers
Darious Rogers In Proper Person/ Appellee Bogalusa, Louisiana
BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.
r0f iZ-, - moi c9 C. - r W ` !` a .
LA PENZATO, I
Appellant, Aquenteya Q. Rogers, appeals the portion of the trial court' s
judgment casting her with half the costs of the proceedings following denial of her
petition for protection from stalking or sexual assault against Appellee, Darious E.
Rogers. For the reasons that follow, we amend the trial court' s judgment to vacate
that portion of the judgment that assessed costs against Ms. Rogers.
FACTS AND PROCEDURAL HISTORY
This matter arises out of an incident that occurred on April 15, 2017,
whereby Ms. Rogers claimed that she was sexually assaulted by her second cousin,
Darious Rogers, and that she was subsequently stalked by him. Ms. Rogers filed a
petition for protection from stalking or sexual assault pursuant to La. R.S. 46: 2171
et seq. or La. R.S. 46: 2181 et seq. The Commissioner of the Twenty -Second
Judicial District Court determined that Ms. Rogers failed to prove the allegations
by a preponderance of the evidence. Ms. Rogers then filed an exception to the
Commissioner' s ruling denying her request for a protective order. The trial court
held a hearing on the exception on September 25, 2017, whereby both parties
presented testimony. The trial court orally noted that even after the conclusion of
the testimony, it was uncertain as to what occurred on the night in question.
Therefore, the trial court upheld the Commissioner' s finding that no protective
order was appropriate. The trial court also noted that it did not find Ms. Rogers' s
petition to be frivolous, but that it was not well- founded. The trial court divided
the costs equally between the parties both in its oral reasons for judgment and in its
October 17, 2017 signed judgment.
Ms. Rogers appealed the October 17, 2017 judgment, which this court
dismissed finding that the judgment was defective and not a final judgment for the
purpose of an appeal because it did not contain appropriate decretal language and
did not dismiss any claims or the petition. Rogers v. Rogers, 2018- 0239 ( La. App. N 1st Cir. 9/ 21/ 18), 2018 WL 4523930, * 2. Subsequent to this court' s dismissal of
the original appeal, the trial court signed another judgment dated October 22, 2018,
denying Ms. Rogers' s petition for protection, dismissing her petition with
prejudice, and casting both her and Darious Rogers equally with court costs. It is
from this judgment that Ms. Rogers appeals.
LAW AND DISCUSSION
Ms. Rogers only assigns as error that the trial court incorrectly cast her with
half the court costs, even though the trial court found that her petition was not
frivolous. The trial court in both oral reasons and in the October 22, 2018
judgment stated that it did not find the petition to be frivolous. Appellate courts
review domestic protective orders for abuse of discretion. Rouyea v. Rouyea,
2000- 2613 ( La. App. 1st Cir. 3/ 28/ 01), 808 So. 2d 558, 561.
Louisiana Revised Statute 46: 2136. 1 provides:
A. All court costs, attorney fees, costs of enforcement and
modifications proceedings, costs of appeals, evaluation fees, and expert witness fees incurred in maintaining or defending any proceeding concerning domestic abuse assistance in accordance with the provisions of this Part shall be paid by the perpetrator of the domestic violence, including all costs of medical and
psychological care for the abused adult, or for any of the children, necessitated by the domestic violence.
B. However, if the court determines the petition was frivolous, the court may order the nonprevailing party to pay all court costs and reasonable attorney fees of the other party.
Ms. Rogers claims the judgment casting her with half the costs violates La.
R.S. 46: 2136. 1. Absent a determination that a petition for protection for abuse is
frivolous, a trial court is not authorized to assess costs of the proceedings against
the petitioner. Koerner v. Monju, 2016- 487 ( La. App. 5th Cir. 2/ 8/ 17), 210 So. 3d
935, 936. Similar to the present facts, in Koerner, the petitioner was unable to
establish by a preponderance of the evidence that she was entitled to a protective
order, but the trial court cast her with costs of the proceeding. Koerner, 210 So. 3d
3 at 935- 36. The appellate court held that absent a determination that a petition for
protection from abuse is frivolous, a trial court is not authorized to assess costs of
the proceedings against the petitioner. The trial court made no determination that
Ms. Koerner' s petition was frivolous and gave no explanation as to why it was
assessing costs against her. Consequently, the trial court, absent that
determination, was without authority to assess costs against Ms. Koerner.
Accordingly, the appellate court amended the trial court' s judgment to vacate that
portion of the judgment that assessed costs against Ms. Koerner. Koerner, 210 So.
3d at 936.
Vallius v. Vallius, 2010- 0870 ( La. App. 4th Cir. 12/ 8/ 10), 53 So. 3d 655,
involved a similar situation. In Vallius, the trial court dismissed the petition for
protection from abuse for petitioner' s failure to prove the appropriate standard
regarding the allegations contained in the petition. The trial court cast the
petitioner with all costs of the proceeding and awarded attorney' s fees in the
amount of $500. 00 to the alleged perpetrator. The appellate court held that La.
R.S. 46: 2136. 1 allows the court to order the non -prevailing party to pay all court
costs and reasonable attorney' s fees of the other party if the court determines the
petition was frivolous. Vallius, 53 So. 3d at 658. The appellate court determined
that there was no evidence in the record to support a finding that the petition was
frivolous. Therefore, the appellate court found that the district court abused its
discretion in casting petitioner with all costs of the proceeding and the payment of
attorney' s fees. Vallius, 53 So. 3d at 658.
Furthermore, in O' Dowd v. O' Dowd, 2011- 0883 ( La. App. 1st Cir.
12/ 21/ 11), 2011 WL 6752553, * 3 ( unpublished), this court considered La. Ch. C.
art. 1570. 1( B), a statute that mirrors La. R.S. 46: 2136. 1, and concluded that the
trial court may assess court costs against a non -prevailing party only if the court
determines the petition was frivolous. As there was no evidence in the record to
4 support a finding that the petition was frivolous, this court held that the trial court
abused its discretion in assessing court costs against petitioner.
In the present case, there is no evidence in the record that the petition was
frivolous.
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STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
AQUENTEYA Q. ROGERS
VERSUS
DARIOUS E. ROGERS
Judgment Rendered: SEP 2 7 2019
On Appeal from the Twenty -Second Judicial District Court In and for the Parish of Washington State of Louisiana Trial Court No. 110, 811
The Honorable William J. " Rusty" Knight, Judge Presiding
Sean S. Cassidy Attorney for Plaintiff/Appellant, Baton Rouge, Louisiana Aquenteya Q. Rogers
Darious Rogers In Proper Person/ Appellee Bogalusa, Louisiana
BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.
r0f iZ-, - moi c9 C. - r W ` !` a .
LA PENZATO, I
Appellant, Aquenteya Q. Rogers, appeals the portion of the trial court' s
judgment casting her with half the costs of the proceedings following denial of her
petition for protection from stalking or sexual assault against Appellee, Darious E.
Rogers. For the reasons that follow, we amend the trial court' s judgment to vacate
that portion of the judgment that assessed costs against Ms. Rogers.
FACTS AND PROCEDURAL HISTORY
This matter arises out of an incident that occurred on April 15, 2017,
whereby Ms. Rogers claimed that she was sexually assaulted by her second cousin,
Darious Rogers, and that she was subsequently stalked by him. Ms. Rogers filed a
petition for protection from stalking or sexual assault pursuant to La. R.S. 46: 2171
et seq. or La. R.S. 46: 2181 et seq. The Commissioner of the Twenty -Second
Judicial District Court determined that Ms. Rogers failed to prove the allegations
by a preponderance of the evidence. Ms. Rogers then filed an exception to the
Commissioner' s ruling denying her request for a protective order. The trial court
held a hearing on the exception on September 25, 2017, whereby both parties
presented testimony. The trial court orally noted that even after the conclusion of
the testimony, it was uncertain as to what occurred on the night in question.
Therefore, the trial court upheld the Commissioner' s finding that no protective
order was appropriate. The trial court also noted that it did not find Ms. Rogers' s
petition to be frivolous, but that it was not well- founded. The trial court divided
the costs equally between the parties both in its oral reasons for judgment and in its
October 17, 2017 signed judgment.
Ms. Rogers appealed the October 17, 2017 judgment, which this court
dismissed finding that the judgment was defective and not a final judgment for the
purpose of an appeal because it did not contain appropriate decretal language and
did not dismiss any claims or the petition. Rogers v. Rogers, 2018- 0239 ( La. App. N 1st Cir. 9/ 21/ 18), 2018 WL 4523930, * 2. Subsequent to this court' s dismissal of
the original appeal, the trial court signed another judgment dated October 22, 2018,
denying Ms. Rogers' s petition for protection, dismissing her petition with
prejudice, and casting both her and Darious Rogers equally with court costs. It is
from this judgment that Ms. Rogers appeals.
LAW AND DISCUSSION
Ms. Rogers only assigns as error that the trial court incorrectly cast her with
half the court costs, even though the trial court found that her petition was not
frivolous. The trial court in both oral reasons and in the October 22, 2018
judgment stated that it did not find the petition to be frivolous. Appellate courts
review domestic protective orders for abuse of discretion. Rouyea v. Rouyea,
2000- 2613 ( La. App. 1st Cir. 3/ 28/ 01), 808 So. 2d 558, 561.
Louisiana Revised Statute 46: 2136. 1 provides:
A. All court costs, attorney fees, costs of enforcement and
modifications proceedings, costs of appeals, evaluation fees, and expert witness fees incurred in maintaining or defending any proceeding concerning domestic abuse assistance in accordance with the provisions of this Part shall be paid by the perpetrator of the domestic violence, including all costs of medical and
psychological care for the abused adult, or for any of the children, necessitated by the domestic violence.
B. However, if the court determines the petition was frivolous, the court may order the nonprevailing party to pay all court costs and reasonable attorney fees of the other party.
Ms. Rogers claims the judgment casting her with half the costs violates La.
R.S. 46: 2136. 1. Absent a determination that a petition for protection for abuse is
frivolous, a trial court is not authorized to assess costs of the proceedings against
the petitioner. Koerner v. Monju, 2016- 487 ( La. App. 5th Cir. 2/ 8/ 17), 210 So. 3d
935, 936. Similar to the present facts, in Koerner, the petitioner was unable to
establish by a preponderance of the evidence that she was entitled to a protective
order, but the trial court cast her with costs of the proceeding. Koerner, 210 So. 3d
3 at 935- 36. The appellate court held that absent a determination that a petition for
protection from abuse is frivolous, a trial court is not authorized to assess costs of
the proceedings against the petitioner. The trial court made no determination that
Ms. Koerner' s petition was frivolous and gave no explanation as to why it was
assessing costs against her. Consequently, the trial court, absent that
determination, was without authority to assess costs against Ms. Koerner.
Accordingly, the appellate court amended the trial court' s judgment to vacate that
portion of the judgment that assessed costs against Ms. Koerner. Koerner, 210 So.
3d at 936.
Vallius v. Vallius, 2010- 0870 ( La. App. 4th Cir. 12/ 8/ 10), 53 So. 3d 655,
involved a similar situation. In Vallius, the trial court dismissed the petition for
protection from abuse for petitioner' s failure to prove the appropriate standard
regarding the allegations contained in the petition. The trial court cast the
petitioner with all costs of the proceeding and awarded attorney' s fees in the
amount of $500. 00 to the alleged perpetrator. The appellate court held that La.
R.S. 46: 2136. 1 allows the court to order the non -prevailing party to pay all court
costs and reasonable attorney' s fees of the other party if the court determines the
petition was frivolous. Vallius, 53 So. 3d at 658. The appellate court determined
that there was no evidence in the record to support a finding that the petition was
frivolous. Therefore, the appellate court found that the district court abused its
discretion in casting petitioner with all costs of the proceeding and the payment of
attorney' s fees. Vallius, 53 So. 3d at 658.
Furthermore, in O' Dowd v. O' Dowd, 2011- 0883 ( La. App. 1st Cir.
12/ 21/ 11), 2011 WL 6752553, * 3 ( unpublished), this court considered La. Ch. C.
art. 1570. 1( B), a statute that mirrors La. R.S. 46: 2136. 1, and concluded that the
trial court may assess court costs against a non -prevailing party only if the court
determines the petition was frivolous. As there was no evidence in the record to
4 support a finding that the petition was frivolous, this court held that the trial court
abused its discretion in assessing court costs against petitioner.
In the present case, there is no evidence in the record that the petition was
frivolous. The trial court noted in oral reasons and in the October 22, 2018
judgment that the petition was not frivolous. Therefore, the trial court was without
authority to assess court costs against Ms. Rogers. Accordingly, we amend the
trial court' s judgment to vacate that portion of the October 22, 2018 judgment that
assessed court costs against Ms. Rogers. No appellate costs are assessed in this
pauper suit.
AMENDED, AND AS AMENDED, AFFIRMED.
5 AQUENTEYA Q. ROGERS 2019 CA 0143
VERSUS COURT OF APPEAL
DARIOUS E. ROGERS FIRST CIRCUIT
BEFORE: HIGGINBOTHAM, PENZATO AND LANIER, JJ.
LANIER, J., concurring. l/ I agree with the majority that the trial court' s judgment should be amended to
vacate the assessment of costs against the plaintiff; however, I believe the resulting
judgment would not meet the ends of equity as set forth in La. C. C. P. art 1920.
While I recognize that the defendant did not appeal the judgment in the instant case
and is not entitled to relief, the amended judgment would cast the defendant, the
prevailing party in this matter, with half the cost of the proceeding.
The prevailing party is not taxed with costs unless in some way he incurred
additional costs pointlessly or engaged in other conduct which justified an
assessment of costs against that litigant. Penton v. Schuster, 98- 1068 ( La. App. 5
Cir. 3/ 30/ 99), 732 So. 2d 597, 602, citing Laughlin v. Breaux, 515 So.2d 480, 485
La. App. 1 Cir. 1987). The record does not show that the defendant accumulated
unnecessary expenses in the instant case. I find no equitable basis or justification
for assessing costs against the defendant. See Penton at 603.
Rather than amending only the portion of the judgment affecting the plaintiff,
I would reverse and vacate the judgment in its entirety. Since the trial court found
the plaintiff's petition to not be frivolous, and the defendant ultimately prevailed in
the matter, it would be equitable and proper to assess no costs to either party.