Autin v. Voronkova

Decision Date21 October 2015
Docket NumberNo. 2015–CA–0407.,2015–CA–0407.
Parties Bobby Conrad AUTIN, II v. Nadeza VORONKOVA.
CourtCourt of Appeal of Louisiana — District of US

177 So.3d 1067

Bobby Conrad AUTIN, II

No. 2015–CA–0407.

Court of Appeal of Louisiana, Fourth Circuit.

Oct. 21, 2015.

177 So.3d 1068

Jeffrey M. Hoffman, Kim N. Nguyen, Lowe Stein Hoffman Allweiss & Hauver, L.L.P., New Orleans, LA, for Plaintiff/Appellee.

Richard G. Perque, Richard G. Perque, LLC, New Orleans, LA, for Defendant/Appellant.

(Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROSEMARY LEDET, Judge SANDRA C. JENKINS ).


This appeal arises out of a Petition for Protection from Abuse (the "Petition").1 Bobby Autin, II, filed the Petition against his former girlfriend, Nadeza Voronkova. Following a hearing at which Ms. Voronkova was absent, the trial court granted Mr. Autin's request for a final order of protection. In response, Ms. Voronkova filed a motion for new trial, which the trial court denied. From that ruling, Ms. Voronkova appeals. The narrow issue presented is whether Ms. Voronkova's due process rights were violated by the trial court's holding the hearing in her absence. Finding no violation, we affirm.


On January 9, 2015, Mr. Autin filed the Petition alleging, among other things, that on December 30, 2014, Ms. Voronkova committed a battery on him. He requested an order of protection prohibiting her from coming to his residence or work, coming within one hundred yards of him, or contacting him in any manner. On that same date, a temporary order of protection ("TRO") was issued; and a contradictory hearing was set for January 30, 2015, at 9:00 a.m., in Civil District Court in New Orleans, Louisiana ("CDC"). On January 10, 2015, Ms. Voronkova was personally served at her residence in Los Angeles, California, with a copy of the Petition and the TRO; she was served pursuant to the Louisiana Long Arm Statute, La. R.S. 13:3204 (the "LAS").

On January 30, 2015, the hearing was held on the Petition in CDC.2 Mr. Autin and his counsel were present; neither Ms. Voronkova nor anyone representing her was present. After Mr. Autin provided proof that Ms. Voronkova was served on January 10, 2015, pursuant to the LAS, the trial court decided to proceed in absentia and requested that Mr. Autin present his evidence. Mr. Autin testified regarding

177 So.3d 1069

the battery Ms. Voronkova committed on him on December 30, 2014. He further testified and presented proof regarding her violations of the TRO on the day before the hearing.

As to the TRO violations, Mr. Autin presented proof that on January 29, 2015, Ms. Voronkova sent him numerous text messages, commencing at 12:26 a.m. through 2:36 a.m. Her text messages included a text acknowledging that she knew she was violating the TRO—"Pls [please] ... Don't report this message ... Legally I can not [sic] ... contact you.... I'll go to jail." He also presented proof that Ms. Voronkova called his cell phone numerous times during that same time frame. Finally, he presented proof that she entered his apartment without permission early that morning. Particularly, he presented a photograph taken with his cellphone at 5:41 a.m. of Ms. Voronkova in his apartment. According to Mr. Autin, the photograph depicted Ms. Voronkova standing in his bedroom hovering over him. Later that day, Mr. Autin reported Ms. Voronkova's violations of the TRO to the New Orleans Police Department ("NOPD"). As noted elsewhere, Ms. Voronkova was arrested that day by the NOPD for violating the TRO; it is undisputed that at the time of the hearing she was incarcerated.

Based on the evidence presented at the hearing, the trial court found that, pursuant to La. R.S. 46:2135, Mr. Autin had proven by a preponderance of the evidence the allegations of abuse contained in the Petition. The trial court thus issued a final order of protection, valid for eighteen months (through July 30, 2016) against Ms. Voronkova.3 On February 6, 2015, Ms. Voronkova filed a motion for new trial, which the trial court summarily denied. This appeal followed.


On appeal, Ms. Voronkova asserts the following two assignments of error:

1. The Trial Court erred in not granting her a new trial.

2. The Trial Court erred in proceeding against her in absentia.

Although the issues raised by her assignments of error are interrelated, we separately address each issue.

1. Denial of motion for new trial

Under the Code of Civil Procedure, the grounds on which a motion for new trial may be granted are divided into two categories—peremptory and discretionary. The peremptory grounds are set forth in La. C.C.P. art.1972, which provides that the granting of a new trial is mandatory in the following three instances: (1) when the verdict or judgment appears clearly contrary to the law and evidence; (2) when the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial;4 and (3) when the jury was bribed or has behaved improperly so that impartial justice has not been done. The discretionary

177 So.3d 1070

grounds are set forth in La. C.C.P. art.1973, which provides that the trial court has discretionary authority to grant a new trial "in any case if there is good ground therefore, except as otherwise provided by law."

The applicable standard of review in ruling on a motion for new trial is whether the trial court abused its discretion.5 The abuse of discretion standard applies regardless which ground—peremptory or discretionary—the new trial motion is based upon.6 "The abuse of discretion standard is highly deferential, but a court necessarily abuses its discretion if its ruling is based on an erroneous view of the law."7

Although La. C.C.P. art.1976 refers to a hearing on a motion for new trial, the jurisprudence has recognized a well-settled exception under which a trial court may summarily deny a motion for new trial. The jurisprudential exception applies "in the absence of a clear showing in the motion of facts or law reasonably calculated to change the outcome or reasonably believed to have denied the applicant a fair trial."8 As a general rule, the trial court may summarily deny a motion for new trial if the motion simply reiterates issues thoroughly considered at trial.9 In this case, the trial court summarily denied Ms. Voronkova's motion for new trial. In so doing, it found that she "failed to raise any new issues for consideration" and that she "has not been denied a fair trial."

On appeal, Ms. Voronkova asserts, as she did in the trial court, that she is entitled to a new trial for on the following three grounds: (i) newly discovered evidence, (ii) the judgment will result in a miscarriage of justice, and (iii) the interest of fairness. As to the first ground, Ms. Voronkova fails to articulate what the newly discovered evidence entails. As to all the grounds, her argument is the same. She contends that her inability to appear at the hearing was due to Mr. Autin alleging a violation of the TRO on the eve of the hearing and having her arrested for the alleged violation. Because of her arrest and incarceration and because of Mr. Autin and his counsel's failure to inform the trial court of these facts, she contends that she was deprived of her due process rights to be heard and to defend the allegations of the Petition. To hold otherwise, she contends, would open a "Pandora's Box" and allow a plaintiff to merely allege a violation of a TRO and then proceed against the defendant in absentia. In support of her argument, Ms. Voronkova submits the following time line:

177 So.3d 1071
• On January 29, 2015, at 3:40 p.m., Mr. Autin contacted the NOPD, alleging that Ms. Voronkova had violated the TRO.

• On

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    • United States
    • Court of Appeal of Louisiana (US)
    • 12 Septiembre 2018
    ...ground—peremptory or discretionary—the new trial motion is based upon." Autin v. Voronkova , 15-0407, p. 4 (La. App. 4 Cir. 10/21/15), 177 So.3d 1067, 1070. MOTION FOR NEW TRIALMr. Edgefield contends that the trial court erred by ruling on his Motion for New Trial summarily and that the tri......
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    ...ground—peremptory or discretionary—the new trial motion is based upon." Autin v. Voronkova , 15-0407, p. 4 (La. App. 4 Cir. 10/21/15), 177 So.3d 1067, 1070 (citations omitted). For the same reasons expressed in analyzing the motion for summary judgment, we find no abuse of discretion in den......
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    ...the outcome or reasonably believed to have denied the applicant a fair trial. Autin v. Voronkova , 15-407 (La. App. 4 Cir. 10/21/15), 177 So.3d 1067, 1070 ; Lopez v. Wal-Mart Stores , 94-2059 (La. App. 4 Cir. 8/13/97), 700 So.2d 215, 220, writ denied , 97-2522 (La. 12/19/97), 706 So.2d 457 ......
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    ...its discretion if its ruling is based on an erroneous view of the law.'" Autin v. Voronkova, 2015-0407, p. 4 (La.App. 4 Cir. 10/21/15), 177 So.3d 1067, 1070 (quoting LCR-M Limited Partnership v. Jim Hotard Properties, L.L.C., 13-0483, p. 9 (La.App. 4 Cir. 10/9/13), 126 So.3d 668, 675). 5 I.......
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