author: EDWIN A. LOMBARD, Judge. MURRAY, J.,

text:
    Seymore SIMMONS, Individually and on Behalf of His Deceased Wife, Robin Simmons, Wayne Thomas, Jr., Individually and on Behalf of His Deceased Mother, Robin Simmons, Justin Thomas Individually and on Behalf of his Deceased Mother, Robin Simmons And Wayne Thomas, Sr., Natural Tutor, on Behalf of his Minor Child Jirus Thomas, Individually and on Behalf of his Deceased Mother, Robin Simmons v. BAUMER FOODS, INC., Task Force Staffing Services, Inc., Zurich Insurance Company, and National Union Fire-Pittsburgh Insurance Company.
    No. 2009-CA-1739.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 2010.
    Writ Denied Jan. 14, 2011.

      Ron A. Austin, Margaret “Maggie” Mad-ere, Austin & Associates, L.L.C., Harvey, LA, for Plaintiffs/Appellants.
    Robert J. David, Jr., Sue Nations, Juneau David, APLC, Lafayette, LA, for National Union Fire Insurance Company of Pittsburgh, PA.
    Charles M. Lanier, Oscar M. Gwin IV, Christovich & Kearney, LLP, New Orleans, LA, for Task Force Staffing Services, Inc.
    Thomas L. Gaudry, Jr., Michael D. Pey-tavin, Gaudry Ranson Higgins & Gremil-lion, L.L.C., Gretna, LA, for American Zurich Insurance Company.
    Robert I. Siegel, Margaret L. Sunkel, Emily E. Eagan, Gieger Laborde & La-perouse, LLC, New Orleans, LA, for Bau-mer Foods, Inc.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

| iThis appeal is from a judgment granting the exception of res judicata, filed on behalf of defendants American Zurich Insurance Company (American Zurich), National Union Fire Insurance Company (National Union), Task Force Staffing Services, Inc. (Task Force), and Baumer Foods, Inc. (Baumer). After review of the record in light of the applicable law and arguments of the parties, we affirm in part and reverse in part and remand the matter back to the trial court.

Relevant Facts and Procedural History

The decedent, Robin Simmons, died of a heart attack in May 2005. Specifically, on May 4, 2005, Ms. Simmons, working the afternoon shift at the Baumer plant, began having chest pains and sweating profusely. Ricardo Vasquez, the shift supervisor, took her to the plant manager’s office. After a series of phone calls to Task Force, it was determined that neither Task Force nor Baumer Foods would assume responsibility for expenses if an ambulance was called. Accordingly, Ms. Simmons was moved to a different office while Mr. Vasquez returned to his duties as shift supervisor. Eventually, Mr. Vasquez returned to Ms. Simmons, put her in his car, transported her to Charity Hospital, placed her inj^a wheelchair in the ambulance bay and returned to the Baumer plant. Ms. Simmons died in the Charity Hospital waiting area at 6:06 p.m. before her husband, Sey-more Simmons, who was also employed at the Baumer plant and only notified of his wife’s illness as she was being transported to the hospital, could reach her on his bicycle.

On July 15, 2005, Ms. Simmons’ heirs filed suit against Ricardo Vasquez, Bau-mer, and its insurer, American Zurich, alleging that the defendants were negligent in failing to properly train, educate, and instruct its employees on methods in assisting someone who is ill, failing to monitor and oversee the actions and practices of its employees, failing to call 911 and/or emergency medical personnel to assist an ill person on its premises, failing to have trained emergency medical personnel available for treatment of those who become ill on its premises, permitting an employee to drive someone to the hospital, and other acts and omissions falling below the applicable standards of care. In their petition, the plaintiffs alleged that Ms. Simmons was an employee of Task Force assigned to Baumer as an independent contractor.

On motion for summary judgment, Bau-mer argued that the decedent was a borrowed employee pursuant to the Louisiana workers’ compensation scheme and not, as alleged in the plaintiffs’ petition, an independent contractor. The trial court denied the motion, but pursuant to Baumer’s application for supervisory writ, this court determined on September 6, 2007, that the plaintiff was a borrowed employee and not an independent contractor and, accordingly, granted writ and ^reversed the judgment of the trial court. The Louisiana Supreme Court denied the plaintiffs’ application for writs of review. Simmons v. Baumer Foods, 2007-1987 (La.12/7/07), 969 So.2d 618.

Shortly thereafter, American Zurich filed a Motion for Summary Judgment, arguing that it was entitled to summary judgment because the decedent was a Bau-mer employee and its CGL policy excluded coverage for employees whose bodily injury arose out of and in the course of employment or while performing duties related to the conduct of Baumer’s business or for any obligations incurred by its insured under workers’ compensation, disability or similar laws. Baumer, Task Force, and National Union filed separate Exceptions of No Cause of Action alleging that the plaintiffs’ claims were barred by the exclusivity provisions of the Louisiana Workers’ Compensation Act. On March 6, 2008, the trial judge issued a judgment sustaining the exceptions and granting the motion for summary judgment.

On April 4, 2008, rather than appealing the trial court judgment of March 6, 2008, the plaintiffs filed a workers’ compensation claim. Baumer, Task Force, and their respective workers’ compensation insurers quickly moved for summary | ¿judgment, arguing that the decedent’s heart attack was a pre-existing heart-related injury and, thus, not an injury producing accident that occurred -within the scope and course of employment pursuant to La.Rev.Stat. 28:1021 and La.Rev.Stat. 23:1031. Finding that although the decedent was an employee the plaintiffs’ action did not fall within the scope of the Workers’ Compensation Act, the workers’ compensation judge granted summary judgment. On August 13, 2009, the plaintiffs refiled their tort action. Each of the defendants, Baumer, Task Force, National Union, and American Zurich, filed exceptions of res judicata, arguing that the plaintiffs’ claims were previously litigated to a final judgment on the merits. The trial court granted the exceptions of res judicata and dismissed the plaintiffs’ claims with prejudice on November 12, 2009 and this timely appeal followed.

Standard of Review

The standard of review of a peremptory exception of res judicata requires an appellate court to determine if the trial court’s decision is legally correct or incorrect. Ins. Co. of North America v. Louisiana Power & Light, 2008-1315, p. 5 (La. App. 4 Cir. 3/4/09), 10 So.3d 264, 267; Sutter v. Dane Investments, Inc. 07-1268, p. 3 (La.App. 4 Cir. 6/04/08), 985 So.2d 1263, 1265. Louisiana courts recognize that “a final judgment has the authority of res judicata only as to those issues presented in the pleading and conclusively adjudicated by the court.” Ins. Co. of North America, 2008-1315 at 6, 10 So.3d at 268. Moreover, the doctrine of 15res judicata is stricti juris and, accordingly, any doubt concerning the applicability of the principle must be resolved against its application. Id. at 7; Kelty v. Brumfield, 93-1142, p. 7 (La.2/25/94), 633 So.2d 1210, 1215.

Notably, there is statutory recognition that application of the doctrine of res judi-cata in all circumstances would be unfair. Specifically, La.Rev.Stat. 13:4232(A)(1) provides that a judgment does not bar another action by the plaintiff “[w]hen exceptional circumstances justify relief from the res judicata effect of the judgment.” Moreover, the comments accompanying La.Rev.Stat. 13:4232 make clear that his court has the authority under the statute to exercise its equitable discretion to balance the principle of res judicata with the interests of justice, although clearly “this discretion must be exercised on a case by case basis and such relief should be granted only in truly exceptional cases.... ”

Assignment of Error

The plaintiffs argue on appeal that the trial court erred in finding that their claims were barred by res judicata because they pursued a tort claim until instructed by the court that their claim resounded under the Workers’ Compensation Act and then pursued their claim in that venue until it was conclusively determined that their claim does not resound under the Workers’ Compensation Act. Accordingly, the plaintiffs assert that to dismiss their claims under these circumstances without ever allowing them the opportunity to litigate the negligence issues constitutes a travesty of justice. In response, the defendants argue that dismissal is appropriate because it was legally determined that the | (¡plaintiffs’ exclusive remedy falls under the Workers’ Compensation Act but that their claims do not merit recovery under the Act.

Discussion

Under the workers’ compensation scheme, an employer is responsible for compensation benefits to an employee who “receives personal injury by accident arising out of [the employment] and in the course of his employment. La.Rev.Stat. 23:1031(A). Notably, the Legislature has the authority to limit remedies, as with workers’ compensation, but it can never completely deprive citizens of the right to seek a remedy either under the Workers’ Compensation Act or under our general law. O’Regan v. Preferred Enterprises, Inc., 98-1602, p. 14 (La.3/17/00), 758 So.2d 124, 134; see also La. Const. art. I, § 22 (“every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to his person, property, reputation, or other rights.”) Thus, workers’ compensation benefits are available when “an employee not otherwise eliminated from the benefits of this Chapter receives personal injury arising out of an in the course of [her] employment, La. Rev.Stat. 23:1031(A), and it is “[o]nly in such instances are workers’ compensation benefits the employee’s exclusive remedy against his employer.” O’Regan, 98-1602, p. 10, 758 So.2d at 131-132 (emphasis added). Accordingly, “[w]hen an employee fails to demonstrate that the injury arose out of and occurred in the course of employment the Act has no applicability and he may proceed in tort.” O’Regan, 1998-11602 at P. 13, 758 So.2d at 133 (citation omitted).

_JjHeart-related disease is specifically excluded from inclusion in the classification of occupational diseases, La.Rev.Stat. 23:1031.1(A), and can only be categorized as the requisite personal injury by accident arising out of employment when the plaintiff demonstrates by clear and convincing evidence that the physical work was extraordinary and unusual and that it was the physical work stress or exertion, not a pre-existing condition, that was the predominant and major cause of the heart-related injury or death. La.Rev.Stat. 23:1021(7)(e). By imposing a high burden of proof and identifying heart-disease as a risk which falls outside the occupational disease protection of the Workers’ Compensation Act, the Legislature has clearly created a category of employees who are “otherwise eliminated from the benefits of this Chapter,” La.Rev.Stat. 23:1031(A). Thus, the Workers’ Compensation Act does not provide exclusive coverage for an employee, nor does it protect an employer from all liability in any action taken with regard to an employee:

The Act does not and cannot foreclose all types of civil actions between employers and employees. Rather the exclusivity provisions of the Act preclude only those civil tort actions premised upon the fault of the employer vis-a-vis the employee for workplace injuries com-pensable under the Act. A compensable injury under the Act is one contracted in the course of and arising out of the employment and for which the injured employee is entitled to receive compensation. La. Rev.Stat. 23:1031.(D).

O’Regan, 98-1602 at p. 14-15, 758 So.2d at 134. In other words, the Act was not intended to give the employer a windfall and relieve him of all responsibility towards injured employees. O’Regan, 98-1602 at 18, 758 So.2d at 18 (it is a fundamental principle that the employee must have the possibility of recovery 18under the Act for the scope of immunity from tort liability granted by the exclusivity provisions to be operative).

The circumstances of this case are clearly exceptional. It has been judicially determined that the decedent was a borrowed employee but that her claims do not fall under the Workers’ Compensation Act. The plaintiffs initially filed a tort action in civil district court but were diverted into the workers’ compensation system. Now that it has been decisively determined that decedent was an employee and that the plaintiffs’ claims do not fall under the Workers’ Compensation Act, the defendants argue that the doctrine of res judi-cata should be applied to deny the plaintiffs them day in court. Notably, the plaintiffs have vigorously pursued their claims but the substance of them tort claims and the issue of whether those claims fall beyond the scope of the Workers’ Compensation Act have yet to be addressed. Rather, their pursuit of justice has been derailed by the procedural determinations as to whether their action should be heard in civil district court or workers’ compensation court. Accordingly, now that it has been definitively determined that the plaintiffs’ action is properly brought in civil district court, it would be unjust to bar them from an opportunity to litigate the substantive issues. Under the exceptional circumstance of this case, we find that relief from the res judicata effect of the prior judgments sustaining the Exceptions of No Cause of Action filed by Baumer, Task Force, and National Union (alleging that the plaintiffs’ claims were barred by the exclusivity provisions of the Louisiana Workers’ Compensation Act) is justified. With regard to the plaintiffs’ 1 nclaims against American Zurich, there appears to be no dispute that the plaintiffs’ claims against Baumer do not fall within the terms of American Zurich’s CGL policy with Baumer and, accordingly, we affirm the summary judgment rendered in favor of American Zurich.

Conclusion

The judgment of the trial court is reversed in part and affirmed in part and the matter is remanded for further proceedings.

REVERSED IN PART; AFFIRMED IN PART; REMANDED.

MURRAY, J., Concurs In Part With Reasons.

MURRAY, J.,

Concurs In Part With Reasons.

|,As the majority finds, the exception to res judicata codified in La. R.S. 13:4232(A) must be applicable to this case, which is exceptional both procedurally and substantively.

Substantively, the civil remedy the plaintiffs are seeking to pursue is a unique one. Indeed, a commentator has labeled the remedy as a “comptort” — the remedy available for injuries arising out of a workplace setting that are not covered by the Workers’ Compensation Act because of either legislative or judicial narrowing of the compensation remedy. H. Alston Johnson, Developments in the Law 1993-1991: A Faculty Symposium, Workers’ Compensation, 55 La. L.Rev. 665, 675, n. 63 (1995); see also Thomas C. Galligan, Jr., A Primer on the Patterns \ yof Louisiana Workplace ToHs, 55 La. L.Rev. 71, 93, n. 83 (1994). In this case, the narrowing that gave rise to the comptort the plaintiffs seek to pursue was the Legislature’s enactment of an elevated burden of proof for heart-related or perivascular injuries. La. R.S. 23:1021(8)(e). Alluding to the existence of a comptort in this setting, the Louisiana Supreme Court in Charles v. Travelers Ins. Co., 627 So.2d 1366, 1372, n. 17 (La.1993), commented that the Legislature’s action in increasing the plaintiffs’ burden of proving a compensation claim for heart attacks and strokes “may have the result, albeit unintended, of exposing some employers, in those cases where the plaintiff can prove the elements of his claim, to the more financially harsh tort liability for those heart attacks and strokes now excluded from compensation coverage.” Id.

In O’Regan v. Preferred Enterprises, Inc., 98-1602 (La.3/17/00), 758 So.2d 124, the Supreme Court addressed a similar issue. In that case, the plaintiff was a laundry worker who contracted an occupational disease. Because the plaintiff was employed for only four months (less than twelve months), she was statutorily presumed to have a nonoccupational disease and subject to a higher burden of proof. La. R.S. 23:1031.1(D). Relying solely on the presumption that a short-term employee’s disease is nonoccupational, the majority found the plaintiff was entitled to pursue a tort claim. The majority opinion in O’Regan, as Baumer Foods points out in its brief, expressly declined to address the issue noted in footnote 17 in Charles, supra., and distinguished a presumption that eliminates certain employees from workers’ compensation benefits, La. R.S. 23:1031.1(D), from a statutory provision that imposes a higher burden of proof, such as La. R.S. 23:1021(8)(e). In contrast, the concurring opinion in ORegan, by former Justice Lemmon, focused on the Legislature’s imposition of a heightened burden of proof as the basis for finding the laundry worker had a tort claim; Justice Lemmon explained:

IsThe thing that makes this case different is the higher burden of proof (especially when combined with the presumption of non-causation). An employee who can prove employment-rooted causation of a covered occupational disease by a preponderance of the evidence, but cannot prove that causation by clear and convincing evidence (the interpretation of “an overwhelming preponderance of the evidence” by the court of appeal in this case), has been denied a remedy under the Act because the Legislature has eliminated that employee’s compensation remedy by raising the burden of proof. Such an employee therefore is entitled to a remedy in tort.

O'Regan, 758 So.2d at 141 (Lemmon, J., concurring). He thus concluded that “[sjince the Legislature never gave this employee a chance to prove causation by a simple preponderance of the evidence, she has been denied a remedy under the Workers’ Compensation Act, and the tort remedy is therefore available to her if she can prove causation (and negligence) by a preponderance of the evidence.” Id.

By analogy, the plaintiffs in this case do not have a compensation claim against Baumer Foods and Task Force because they cannot satisfy the heightened burden of proof by clear and convincing evidence that Mrs. Simmons’ heart attack was com-pensable under La. R.S. 23:1021(8)(e). Because the Legislature has eliminated the plaintiffs’ compensation remedy by raising the burden of proof, they are entitled to a remedy in tort.

Procedurally, until the WCJ found the plaintiffs could not satisfy the heightened burden of proof for a compensation claim, they were barred by the workers’ compensation exclusivity rule from pursuing a tort claim. Due to the limited jurisdiction of the respective forums (CDC and OWC), the plaintiffs were precluded from cumulating their tort and workers’ compensation claims. See O'Regan, 758 So.2d at 141 n. 4 (Lemmon, J., concurring)(observing that “[ujnder the present jurisdiction rules, these [tort and workers’ compensation benefits] demands could not be cumu-lated in the present action.”) The plaintiffs were required to bring each claim in a different forum. Although the plaintiffs have done so, they have had their claim dismissed in both forums. Neither forum [4reached the merits of the plaintiffs’ claim that the employer was negligent in failing to administer first aid and failing to call for emergency help. The plaintiffs thus have not had the opportunity to litigate their claim in any forum.

      . Task Force and their insurer, National Union, were added as defendants by supplemental and amending petition in January 2007. Task Force filed a Peremptory Exception of No Cause of Action, alleging that the plaintiffs’ claims were barred by the exclusivity provisions of the Louisiana Workers' Compensation Act. The trial judge granted the exception, but allowed the plaintiffs the opportunity to amend their suit to cure the objection raised by Task Force's exception. Shortly thereafter, on May 29, 2007, the plaintiffs filed an amending and supplemental petition adding claims for a cause of action under La.Rev.Stat. 23:13 for failing to call 911 and a cause of action for failing to follow company policies and procedures.

      . Notably, this ruling was made after this court reversed the trial court, finding that the decedent was a "borrowed employee” and stating in dicta that the plaintiffs’ exclusive remedy was under the Workers' Compensation Act. Clearly, to the extent that the defendants have construed this court's determination that the decedent was a borrowed employee to suggest that employers are entitled to a windfall if someone in their employ is injured by negligent actions that do not fall within the scope of workers' compensation coverage, such construction is clear error. See O'Regan, infra.

      . The judgment of the workers’compensation court was subsequently affirmed by this court. Simmons v. Task Force Staffing Services, Inc./Baumer Foods, Inc. 2009-1384 (La.App. 4 Cir. 1/13/10), 30 So.3d 223.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Kim Colvin BIRCH, Plaintiff-Appellee & Defendant-In-Reconvention v. Gilford Raymond BIRCH, Defendant-Appellant & Plaintiff-In-Reconvention.
    No. 45,702-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.

      William A. Jones, Jr., for Appellant.
    Gary A. Bowers, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   MOORE, J.

|! Gilford Raymond Birch (“Gil”) appeals a judgment that rejected his claim for the return of separate funds given to or taken by his former wife, Kim Colvin Birch (“Kim”), during their marriage and under a matrimonial agreement that established a separate property regime. Kim answers the appeal, contesting the portion of the judgment that denied her exceptions of prescription and no right of action. We affirm in part, reverse in part and remand.

The Matrimonial Agreement

Gil and Kim got married on October 26, 1991. Gil was a pharmacist who owned The Corner Drug Store in Ruston, and Kim was an employee there. One day before the wedding, they executed a Matrimonial Agreement Before Marriage (“the agreement”) which rejected the community property regime established a separate property regime. In pertinent part, the agreement stated:

1.
All property now owned by either of said appearers shall remain the separate property of that one of the appearers to whom such property belongs, and all revenues, fruits and increases arising from such respective properties shall also be considered, and remain, the separate property of the respective appear-er[.] * * *
2.
The provisions of the preceding paragraph shall apply regardless of which of the appearers shall administer or manage the revenues, fruits, increases, property or proceeds in question; that is to say, the question as to which appearer administered or managed * * ⅜ the revenues, fruits, increases, property or proceeds of any property, shall in no way affect or modify the provisions of the preceding paragraph, and in no way create a community interest there; the fact that either appearer may assist the other in the administration or management of the | ¡.property of the other shall not create the presumption of a claim for remuneration in favor of that appearer assisting the other, but all such services shall be considered and held as gratuitously rendered to each other.
3.
More particularly but not by way of limitation, all accretions or increases in the value of separate property during the marriage, however same shall occur, shall be the separate property of the appearer to whom the separate property that has increased belongs and no claim for remuneration or reimbursement should exist in favor of the appearer to whom the property does not belong.
4.
Any increases or improvement of the separate property of either appearer, as separate property is set forth in this agreement, arising or made during the marriage of the appearers through the result of the common labor, expense, or industry of the appearers, shall not create any right to a reward in favor of that appearer * * * to whom the property which has been increased or improved does not belong. * * *
6.
All property acquired or wages earned by either appearer following their marriage, shall be considered separate property.

Procedural Background

The parties separated in late December 2002. In February 2003, Kim filed for an Art. 102 divorce; Gil reconvened for an Art. 103 divorce. Final judgment of divorce was rendered in February 2004.

Gil filed a reconventional demand in February 2004, seeking to settle claims arising from the separate property regime. This was not immediately addressed, however, as the parties litigated custody and support issues that are not before the court on appeal. It transpired that because of his own [¡¡drug abuse and irregularities in the handling of controlled dangerous substances at The Corner Drug Store, Gil’s pharmacy license was suspended indefinitely in 2008 and the store’s pharmacy permit placed on five years’ probation.

Gil filed a second supplemental recon-ventional demand in March 2009, demanding “recovery of Gil’s separate funds used by Kim, and * * ⅜ the recovery of the fruits of Gil’s separate funds.” He alleged that during the marriage, he ran the drugstore and made plenty of money, all of which went into the couple’s joint checking account, which Kim balanced and managed. Kim earned a small amount of money from running a gift shop called “Kim’s Corner” in, or connected with, the drugstore, but always placed her wages in one of her separate accounts. Kim also bought three pieces of real estate in her own name: (1) in 1995, she bought the office adjacent to the drugstore (“the South Trenton Street property”), for $65,000, and rented this to the drugstore for $800 a month; (2) in September 1995, she bought a house (“the Hilly property”) for $242,000, renovated it for $30,000, and this became the couple’s home; (3) in August 1999, she bought a store on North Bonner Street (“the Townsend House”) for $93,500, renovated it for $28,000, and this became her free-standing gift shop. Gil alleged that the vast majority of money to buy and maintain these properties came from the parties’ joint checking account, which contained only his wages and was thus his separate property. He itemized these funds and demanded a total of $778,692.05.

14Kim’s answer consisted of general denials, but she also raised several exceptions. By an exception of no right of action, she argued that “many or most” of the claims involved money paid not by Gil but by his corporation, Cupp Drug Store Inc. d/b/a The Corner Drug Store, and hence only the corporation could assert them. By an exception of prescription, she argued that Gil’s claims were essentially for conversion and hence subject to the one-year limitation for torts.

Overview of Trial Testimony

At trial in August 2009, three witnesses testified. Gil confirmed the facts outlined above, identifying one-by-one many of the checks drawn on the couple’s joint account and signed by Kim, to pay for the mortgages, renovations, property tax, inventory for her gift shop, and other expenses arising from her separate property. He also testified that when they got married, Kim had a net worth of about $100,000; during the marriage, working at the drugstore or running the gift shop, she never made more than $3,000 a month; now her net worth is about $900,000. He felt that this simply could not have occurred without the infusion of enormous amounts of his separate property, which he now wanted returned.

Gil’s CPA, James D. Johnson, testified that he had handled the drugstore’s taxes since 1989. He confirmed that several of the checks drawn on the couple’s joint account, and signed by Kim, covered payroll, property taxes and renovations to her separate property.

On cross-examination, Kim conceded much of Gil’s testimony, including that Gil always put his wages in the couple’s joint checking | .^account, which she used to pay the mortgages on her separate property. However, she would not agree that the drugstore was Gil’s separate property and was unable to recall whether her wages ever exceeded $3,000 a month. When asked if she “did not always deposit” her own salary checks into the joint account, she replied, “Not always. No.” She did not dispute that the mortgages, taxes, inventory and other expenses vastly exceeded her income, but insisted that she built up a large reserve because “you save, you save, you save.”

Gil also offered the deposition of a forensic CPA, Susan Whitelaw, who testified that even though Kim never provided all her financial information, the available records showed that from 1996 to 2004, she reported total income of $124,000, but at the end of the same period she had a net worth of $970,000.

Kim presented no testimony except her cross-examination of Gil and of Mr. Johnson.

Neither of Gil’s experts, Mr. Johnson nor Ms. Whitelaw, summarized all his claims, but by post trial brief he itemized the financial records into (1) separate funds used to buy real estate, (2) separate funds paid by the drugstore to Kim or for her benefit, (3) gift shop funds diverted into Kim’s separate account, and (4) rent paid by the drugstore to Kim. These items totaled $793,722.

Kim reiterated her exceptions, and then contested each item on Gil’s list. She asserted that he failed to prove that the money from the couple’s joint account was truly his separate funds; because certain records were | ¿missing, he failed to prove the source of various transfers; because he never objected to paying the mortgage notes from the joint account, he is now estopped from contesting it; and the parties were actually co-owners of the Hilly property.

Action of the District Court

The district court rendered oral reasons, first rejecting Kim’s peremptory exceptions. The court held that a claim for reimbursement is subject to 10-year prescription, so Gil’s claim was timely, and that as the sole proprietor of the corporation, Gil had the right to pursue the claim.

On the merits, the court noted that the financial records were complex, but found sua sponte that the agreement itself waived either party’s right to seek reimbursement. The court cited ¶ 2 (“the fact that either appearer may assist the other in the administration or management of the property of the other shall not create the presumption of a claim for remuneration”), ¶ 3 (“all accretions or increases in the value of the separate property during the marriage, however same shall occur, shall be the separate property of the ap-pearer * * * and no claim for remuneration or reimbursement should exist”), and ¶ 4 (“any increases or improvements of the separate property of either appearer * * * through the result of common labor, expense, or industry of the appearers, shall not create any right to a reward in favor of that appearer”) as disallowing Gil’s claims. Finally, the court rejected the theory of unjust enrichment as inapplicable when the claims are properly resolved by contract.

|7The court rendered judgment denying Kim’s exceptions, rejecting Gil’s claims, and assessing costs one-half to each. Gil has appealed and Kim has answered the appeal.

Discussion: Peremptory Exceptions

By answer to appeal, Kim urges the district court erred in denying her peremptory exception of prescription. Because Gil alleged that she “took from his separate estate” substantial sums, she argues the claim is for conversion, a tort subject to one-year prescription, regardless of how Gil labeled it. Northern Assur. Co. v. Waguespack, 304 So.2d 865 (La.App. 4 Cir.1974). Gil responds that because the claim is based on an agreement, it is subject to the 10-year prescriptive period of La. C.C. art. 3499.

The 10-year liberative prescription period applicable to personal actions under Art. 3499 applies to a claim for reimbursement of property used to enhance the other spouse’s separate estate. LeBlanc v. LeBlanc, 2005-212 (La.App. 3 Cir. 11/2/05), 915 So.2d 966, and citations therein. By contrast, the tort of conversion is “an act in derogation of a plaintiffs possessory rights, and any wrongful exercise or assumption of authority over another’s goods, depriving him of the possession, permanently or for an indefinite time”; lack of consent by the owner is a prerequisite. Quealy v. Paine, Webber, Jackson & Curtis Inc., 475 So.2d 756 (La.1985); Fuller v. XTO Energy Inc., 43,454 (La.App. 2 Cir. 8/13/08), 989 So.2d 298, writ denied, 2008-2227 (La.11/21/08), 996 So.2d 1107. As Kim’s “taking” was obviously with Gil’s consent, the claim is not one for conversion but, as the district court found, one for reimbursement. This assignment lacks merit.

|sKim also contends that the court erred in denying her exception of no right of action. She argues that many of the transfers of cash came directly from the corporation, not from Gil, ergo only the corporation can sue to recover. Wall v. First National Bank of Shreveport, 482 So.2d 865 (La.App. 2 Cir.1986). Gil responds that ¶ 1 of the agreement defined all revenues from the parties’ separate property as separate property, and the corporation was admittedly his separate property; hence he was entitled to recover corporate revenues paid to Kim.

The exception of no right of action tests whether the plaintiff has a legal interest in judicially enforcing the right asserted. La. C.C.P. art. 927 A(6); Skannal v. Bamburg, 44,820 (La.App. 2 Cir. 1/27/10), 33 So.3d 227, writ denied, 2010-0707 (La.5/28/10), 36 So.3d 254. The personality of a corporation is distinct from that of its members, even if the member is a sole shareholder. La. C.C. art. 24; Skannal v. Bamburg, supra, and citations therein. The district court was technically wrong when it said that Gil could pursue the claim “as the sole proprietor of the corporation.” Nevertheless, ¶ 1 of the agreement expressly defines “all revenues, fruits and increases” from each party’s separate property as separate property. The parties plainly intended to treat corporate revenue as Gil’s separate property. For purposes of his reimbursement claims, Gil is the proper party to assert those claims. This assignment of error lacks merit.

Interpretation of Agreement

By seven assignments of error, Gil urges that the district court erred in reading the agreement as barring all claims for reimbursement between 19the parties. He suggests that the court misread the agreement in an effort to skirt the harsh result, but that the provisions waiving reimbursement are limited to narrow situations simply not present in this case. He also argues that the court’s reading, which denied any and all forms of reimbursement, completely negated the purpose of the agreement, which was to preserve the parties’ respective estates. Finally, he submits that the court fashioned a “novel theory” that neither party advanced and does not withstand minimal scrutiny.

Kim does not directly address the district court’s reasons for judgment, but states in passing that the conclusion was correct. She mainly asserts failure of proof and factual issues unrelated to the interpretation of the agreement.

In interpreting contracts, courts are guided by the general rules stated in La. C.C. arts. 2045-2057. The cardinal rule is that the interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045; Amend v. McCabe, 95-0316 (La.12/1/95), 664 So.2d 1183. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. The words of a contract must be given their generally prevailing meaning; however, words of art and technical terms must be given their technical meaning when the contract involves a technical matter. La. C.C. art. 2047; Amend v. McCabe, supra; Hollenshead Oil & Gas LLC v. Gemini Explorations Inc., 45,389 (La.App. 2 Cir. 7/21/10), 44 So.3d 809. Each provision in a contract must be interpreted 110in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050; Hollenshead Oil & Gas v. Gemini Explorations, supra. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. La. C.C. art. 2053; Campbell v. Melton, 2001-2578 (La.5/14/02), 817 So.2d 69.

In the absence of specific contractual terms, a separate property agreement preserves the parties’ right to be reimbursed for separate property that was used to improve the other party’s separate property. Lee v. Lee, 2003-1483 (La.App. 3 Cir. 3/17/04), 868 So.2d 316; Katherine S. Spaht & W. Lee Hargrave, 16 La. Civ. Law Treatise, Matrimonial Regimes, § 7.17 (3d ed.2007). A matrimonial agreement may establish a separate property regime and waive all rights of reimbursement. In Sharpe v. Sharpe, 536 So.2d 434 (La.App. 4 Cir.), writ denied, 540 So.2d 332 (1989), the contract provided as to the “intended husband and wife, that neither shall have any economic claim upon the other[.]” The court found that this waived not only reimbursement of loans to the wife, but also tort claims for damages to the husband’s separate property.

A plain reading of Gil and Kim’s agreement shows, by contrast, that reimbursement is waived only for certain claims. Specifically, ¶ 2 states that “administration or management of the property of the other shall not create a claim for remuneration” and “all such services shall be considered and held as gratuitously rendered[J” This waiver obviously applies only to Inthe value of administration and management services.

Next, ¶ 3 refers to “all accretions or increases in the value of separate property” and states that “no claim for remuneration or reimbursement should exist[.]” Accretion means gradual and imperceptible addition to riparian land by water to which the land is contiguous. La. C.C. art. 499; Walker Lands Inc. v. East Caoroll Parish Police Jury, 38,376 (La.App. 2 Cir. 4/14/04), 871 So.2d 1258. This case does not involve either riparian accretion or its analog, the incremental growth of an asset by interest, dividends or stock splits.

Similar to ¶ 3’s “increases in the value of separate property” is ¶ 4’s “increases or improvement of the separate property of either appearer[.]” The phrase “increases in the value of separate property” echoes La. C.C. art. 2368, which allows reimbursement when separate property increases in value “as a result of the uncompensated labor or industry of the spouses,” as by changed market conditions or inflation. See, e.g., St. Marie v. Roy, 09-953 (La. App. 3 Cir. 2/3/10), 29 So.3d 708, writ denied, 2010-0517 (La.4/30/10), 34 So.3d 291. The thrust of these provisions is to waive reimbursement for increases which Art. 2368 would allow.

On close examination, we find that the fairly narrow waivers stated in these provisions do not express a general waiver of all claims. By their own terms, they apply only to management fees, accretions, inflationary growth and market fluctuations. Nothing in the agreement waives reimbursement, upon termination of the marriage, of one spouse’s separate funds which were used to improve the other spouse’s separate property. Moreover, a [ ,2general waiver would utterly defeat the purpose of the agreement, which is to preserve each party’s separate estate.

This court is cognizant of the recent case of Barber v. Barber, 2009-0780 (La.App. 1 Cir. 5/7/10), 38 So.3d 1046, which held that a contract provision virtually identical to ¶ 4 effected a waiver of the wife’s right of reimbursement. However, that opinion mainly addressed the wife’s attempt to nullify the matrimonial agreement for vices of consent; it did not state the basis of her reimbursement claim. On the limited facts presented, we cannot read Barber v. Barber as authorizing a blanket waiver of reimbursement.

The district court committed legal error in finding a general waiver. Gil did not waive his right to seek reimbursement of capital. The judgment will be reversed.

Order of Relief

By his final assignment of error, Gil argues that this court should either enter judgment for him on the record or remand the matter to the district court for a determination of the amount of reimbursement.

The appellate court should conduct an independent de novo review only when one or more trial court legal errors interdict the fact-finding process and the appellate record is otherwise complete. S.J. v. Lafayette Parish School Bd., 2009-2195 (La.7/6/10), 41 So.3d 1119, 259 Ed. L. Rep. 353; RJAM Inc. v. Miletello, 45,176 (La. App. 2 Cir. 4/14/10), 44 So.3d 283. The district court committed legal error in ruling that the agreement waived all reimbursement claims; however, this did not completely interdict the court’s fact-finding process. In the face of conflicting testimony and 11ssketchy documentation, the court found that Kim “often deposited her check into her separate account,” implying that she sometimes deposited her separate funds into the joint account; the court also found that Gil never objected to Kim’s paying the mortgage on the Hilly property from the joint account. While these findings barely scratch the surface of this complex case, they underscore the crucial role of credibility determinations in any possible resolution. The district court is in the superior position to make those credibility calls and complete the fact-finding task it has begun.

We therefore remand the case to the district court for such proceedings as that court may deem appropriate to determine the proper amount of reimbursement. On remand, the parties and court are reminded that Ms. Whitelaw’s methodology was uneontradicted by any other expert evidence, but her calculations must reflect any missing check stubs or deposit slips which might possibly prove how much of Kim’s separate funds were applied to her separate property. Also, as to the Hilly property, the claim is subject to La. C.C. art. 2373, in that each spouse must contribute to the expenses of the marriage; in the absence of a specific provision, “each spouse contributes in proportion to his means.” Bergeon v. Bergeon, 02-158 (La. App. 5 Cir. 5/29/02), 817 So.2d 1280, writ denied, 2002-2083 (La.11/1/02), 828 So.2d 574. Gil is not entitled to reimbursement of this expense of the marriage which the law requires him to pay.

Conclusion

For the reasons expressed, the judgment is affirmed insofar as it denied the exceptions of prescription and no cause of action; it is reversed | ^insofar as it found the agreement waived all reimbursement claims between the parties. The case is remanded for further proceedings in accordance with this opinion and the law. Trial and appellate costs are to be paid by the appellee, Kim Colvin Birch.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

      . The couple had two daughters, born in April 1993 and in September 1996.


author: GASKINS, J.

text:
    BENEFICIAL LOUISIANA, INC., Plaintiff-Appellee v. Robert NASH, Defendant-Appellant.
    No. 45,686-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.

      Robert Nash, In Proper Person.
    Eaton Group Attorneys, Baton Rouge, LA by Paul E. Pendley, Stacey L. Greaud, Gregory M. Eaton, for Appellee.
    Before GASKINS, CARAWAY and DREW, JJ.
   GASKINS, J.

hln this suit to recover on a delinquent loan account, the defendant appeals claiming that the account number listed in the suit is incorrect. For the reasons assigned below, we reverse the judgment in favor of the plaintiff and remand the matter for further proceedings.

FACTS

On July 29, 2009, Beneficial Louisiana, Inc., filed suit in Shreveport City Court against Robert Nash, asserting that he was indebted to it in the amount of $13,962.19, together with accrued interest of $3,598 and additional interest of 18 percent from May 21, 2009, as well as attorney fees in the amount of 25 percent of both principal and interest, and all costs. It stated that this outstanding balance was due on Nash’s loan note account, which bore the number #46621000204115; that he defaulted on the loan; and that the balance remained after amicable demand on June 2, 2009. The plaintiff also filed a request for admission of fact as to the outstanding balance, attorney fees, and his application for the loan note at issue.

The defendant filed a general denial in proper person and responded to the request for admissions. He denied having the loan note account described or owing the money.

On September 21, 2009, the plaintiff filed a motion for summary judgment. In support of its motion, the plaintiff submitted an affidavit of correctness of account, a supplemental affidavit of correctness, and an affidavit of lost note. The affidavit of correctness of account describes the loan note account as ending in “204115.” The supplemental affidavit of correctness identified it as “# 46621000204115.” The accompanying | documents include a “personal credit line account agreement” between the plaintiff and the defendant for a credit limit of $14,000 and dated May 16, 2007; the loan number on it is “466210-13-125348.” It provided for a credit limit of $14,000 and an annual percentage rate of 21.000 percent. A revolving loan voucher for loan number “466210-13-125348” showed disbursement of $13,950.00 in cash or check to the borrower and a $50.00 membership fee, or a total of $14,000.00. A document from a delinquency service showed an account number of “4662-1000-2041-15”; the loan date given on this document is May 16, 2007, and the principal is given as $13,962.19. The address given in all of these documents matches the one the defendant gave as his own in his answer.

The matter came before the court on February 3, 2010. The defendant was sworn and testified that he had no knowledge of the debt. Finding that the evidence supported the debt, the court granted judgment as prayed for. Judgment was signed the same day; it specifically refers to the “evidence being in favor of the plaintiff regarding LOAN NOTE bearing # 46621000204115....”

The defendant appealed.

LAW

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. A motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits show that there exists no genuine Isissue as to any material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966; Sears, Roebuck and Co. v. Richardson, 32,951 (La. App.2d Cir.4/5/00), 759 So.2d 190. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matter stated therein. Sears, Roebuck and Co. v. Richardson, supra.

Once the mover has made a prima facie showing that the motion should be granted, the burden shifts to the adverse party to present evidence demonstrating that material factual issues remain. To satisfy his burden of proof the nonmoving party must not rely on the mere allegations or denials of his pleadings, but his response must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967. Once the motion for summary judgment has been properly supported by the moving party, the failure of the adverse party to produce evidence of a material factual dispute mandates the granting of the motion. Sears, Roebuck and Co. v. Richardson, supra.

DISCUSSION

The plaintiff failed to make a prima facie showing that the defendant owed the debt at issue. Review of the documents submitted by the plaintiff show that a line of credit was issued to a person with the same name and address as the defendant. The number on these documents for this loan transaction is “466210-13-125348.” However, the loan number given in the plaintiffs affidavits of correctness is either “#46621000204115” or “ending |4in 204115.” While the loan date in all of the documents is the same and the amount owed is within the parameters of the amount originally loaned, we cannot automatically assume that all of these documents involve the same transaction. The judgment refers only to the “LOAN NOTE bearing # 46621000204115.” In its appellate brief, the plaintiff attempts to explain the discrepancy in the account numbers by stating that a new number (4662-1000-2041-15) was given to the loan account (466210-13-125348) when it was charged off. However, we find no evidence in the record that establishes this assertion.

Upon this record, summary judgment is inappropriate. We reverse the city court judgment in favor of the plaintiff and remand the matter for further proceedings.

CONCLUSION

The judgment of the city court is reversed and the matter is remanded to the lower court for further proceedings. Costs of this appeal are assessed to the plaintiff, Beneficial Louisiana, Inc.

REVERSED AND REMANDED.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Joseph M. BREAUX, Appellant.
    No. 45,676-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.

      Mark 0. Foster, for Appellant.
    Robert W. Levy, District Attorney, Laurie L. Whitten, Cary T. Brown, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   WILLIAMS, J.

h The defendant, Joseph M. Breaux, was charged by a grand jury indictment with armed robbery, a violation of LSA-R.S. 14:64, and conspiracy to commit armed robbery, a violation of LSA-R.S. 14:26. Following a jury trial, he was convicted as charged. He was adjudicated a fourth felony offender and was sentenced to serve life in prison, without benefit of probation, parole or suspension of sentence on both charges. The sentences were ordered to be served concurrently. For the following reasons, we affirm.

FACTS

On April 19, 2008, at approximately 11:33 p.m., Officer T.J. Bryant, of the Ru-ston Police Department, responded to a report of a single-vehicle accident in the 800 block of South Maple Drive. Officer Bryant arrived on the scene and observed a 2001 Kia Rio in a ditch, overturned on its roof. The driver of the vehicle, Uchenna Ezike, was lying in a pool of blood inside the vehicle. Ezike was airlifted to Louisiana Health Sciences Center in Shreveport, Louisiana, where he subsequently died.

Lieutenant Stephen Beard, also of the Ruston Police Department, was called to the scene to investigate the accident. Lt. Beard examined the vehicle and noticed blood inside the vehicle, running in a downward direction from the top of the vehicle to the bottom of the vehicle. Considering that the vehicle was in an overturned position, the blood 12pattern indicated to Lt. Beard that Ezike had been injured prior to the accident. He suspected that the injuries to the back of Ezike’s head were not consistent with injuries sustained in a low-impact car accident. Subsequently, Lt. Beard examined the vehicle more closely to determine what may have caused Ezike’s injuries. There were no signs of gunshots, and no weapons were found in or around the vehicle.

Lt. Beard’s suspicions were further heightened when he did not find any of Ezike’s personal effects, such as a wallet, credit cards or cellular phone. On April 24, 2008, Lt. Beard accompanied Ezike’s brother to Chase Bank and recovered Ez-ike’s bank records. The bank records revealed that four credit/debit card transactions were made at a Circle K store on April 20, 2008, one day after the accident.

Further investigation led police officers to two suspects: Laterica Hardy (“Hardy”) and Adrianna Gipson (“Gipson”). Hardy and Gipson both gave statements to the police, denying any involvement in the crime. Subsequently, both admitted that they, along with the defendant, had robbed Ezike. The testimony revealed that on the day of Ezike’s accident, Hardy, Gipson and the defendant attended a barbeque at the home of the defendant’s girlfriend, Nicole Gipson (“Nicole”). Looking to make some quick money, Gipson suggested that they “hit a lick” (find someone to rob). During the discussion, Hardy suggested someone she knew, Ezike, as the target.

IsHardy called Ezike and enticed him to meet her in a park by offering to have sex with him. The defendant armed himself with a stick, and he, Hardy and Gipson left Nicole’s house together. Hardy drove the defendant and Gipson to a local park and left them there. Hardy soon returned with Ezike trailing her in his vehicle. Hardy and Ezike sat in Ezike’s vehicle talking. The defendant approached Hardy and asked if she had a cigarette. Feeling uncomfortable, Ezike requested that they leave the park. As Ezike exited his vehicle to accompany Hardy back to her car, the defendant approached Ezike and began hitting him in the head with the stick. Ezike fell to the ground, and the defendant continued to strike him. The defendant took Ezike’s wallet, two cell phones and “a little money” from his pockets. The defendant and Gipson then ran away. Hardy testified that she waited until Ezike got up and into his vehicle before she left the scene.

Hardy, Gipson and the defendant returned to Nicole’s house and divided the proceeds from the robbery. Soon thereafter, the defendant went to a Circle K store on Farmerville Highway and used Ezike’s credit/debit card to purchase gas and cigarettes. A short time later, the defendant, Hardy and Gipson returned to the store, and Gipson used one of Ezike’s credit/debit cards to purchase additional items.

On May 19, 2008, the defendant, Hardy and Gipson were charged with one count of armed robbery and one count of conspiracy to commit |4armed robbery. Following a jury trial, the defendant was convicted as charged. He was adjudicated a fourth felony offender and was sentenced to serve life in prison, without benefit of probation, parole or suspension of sentence on both charges. The sentences were ordered to be served concurrently. The defendant appeals.

DISCUSSION

Reverse-Batson

The defendant contends the trial court erred in sustaining the state’s “reverse-Batson ” challenge. The defendant argues that the state made a “bare-bones” reverse-Batson claim, “without complying with the procedural requirements of Bat-son.” According to the defendant, the state failed to meet its burden of showing that the defendant’s use of strike backs, to strike certain potential jurors, was racially motivated.

The accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of challenges shall be fixed by law. La. Const. Art. 1, § 17. In trials of offenses punishable by death or necessarily by imprisonment at hard labor, each defendant shall have twelve peremptory challenges, and the state twelve for each defendant. LSA-C.Cr.P. art. 799. LSA-C.Cr.P. art. 799.1 refers to the practice of “Strike backs” and provides:

Notwithstanding any other provision of law to the contrary, and specifically notwithstanding the provisions of Article 788 [], in the jury selection process, the state Land the defendant may exercise all peremptory challenges available to each side, respectively, prior to the full complement of jurors being seated and before being sworn in by the court, and the state or the defendant may exercise any remaining peremptory challenge to one or more of the jurors previously accepted. No juror shall be sworn in until both parties agree on the jury composition or have exercised all challenges available to them, unless otherwise agreed to by the parties.

It is well settled that the use of peremptory challenges based solely on a juror’s race is prohibited. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Batson decision is codified in LSA-C.Cr.P. art. 795, which provides, in pertinent part:

C. No peremptory challenge made by the state or the defendant shall be based solely upon the race or gender of the juror. If an objection is made that the state or defense has excluded a juror solely on the basis of race or gender, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory race or gender neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror. Such demand and disclosure, if required by the court, shall be made outside of the hearing of any juror or prospective juror.
D. The court shall allow to stand each peremptory challenge exercised for a race or gender neutral reason either apparent from the examination or disclosed by counsel when required by the court. The provisions of Paragraph C and this Paragraph shall not apply when both the state and the defense have exercised a challenge | nagainst the same juror.
E. The court shall allow to stand each peremptory challenge for which a satisfactory racially neutral or gender neutral reason is given. Those jurors who have been peremptorily challenged and for whom no satisfactory racially neutral or gender neutral reason is apparent or given may be ordered returned to the panel, or the court may take such other corrective action as it deems appropriate under the circumstances. The court shall make specific findings regarding each such challenge.

The “reverse-Batson ” rule states that the defendant is also prohibited from engaging in racial discrimination in the use of peremptory challenges. Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); State v. Knox, 609 So.2d 803 (La.1992).

In State v. Draughn, 2005-1825 (La.1/17/07), 950 So.2d 583, the proper reviewing process for a Batson claim, as recently described by the supreme court, was set forth as follows:

A defendant’s Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, ‘[t]he second step of this process does not demand an explanation that is persuasive, or even plausible’; so long as the reason is not inherently discriminatory, it suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating ‘the persuasiveness of the justification’ proffered by the prosecutor, but ‘the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.’

Id. at 600 (internal citations omitted).

To establish a prima facie showing for a Batson challenge: (1) the |7objecting party must demonstrate that the challenge was directed at a member of a cognizable group; (2) the objecting party must then show the challenge was peremptory rather than for cause; and (3) finally, the objecting party must show circumstances sufficient to raise an inference that the challenging party struck the venire person on account of being a member of that cognizable group. State v. Givens, 99-3518 (La.1/17/01), 776 So.2d 443; Price v. Cain, 560 F.3d 284 (5th Cir.2009).

Establishing a prima facie showing is the first step of the Batson analysis and it is satisfied by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. The objecting party does not have to show that “more likely than not” the peremptory challenge was based on impermissible group bias. Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005). The burden upon the objecting party is therefore a “light burden,” for purposes of establishing a prima facie case. Price, supra.

The trial court plays a unique role in the dynamics of a voir dire, for it is the court that observes firsthand the demeanor of the attorneys and venire persons, the nuances of questions asked, the racial composition of the venire, and the general atmosphere of the voir dire that simply cannot be replicated from a cold transcript. State v. Juniors, 2003-2425 (La.6/29/05), 915 So.2d 291, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006); State v. Myers, 99-1803 (La.4/11/00), 761 So.2d 498. A reviewing court owes the district judge’s evaluations of discriminatory intent great deference and should not reverse them unless they are clearly |Rerroneous. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); Batson, 476 U.S. at 98, n. 21, 106 S.Ct. 1712.

In the instant case, three panels of 15 potential jurors, for a total of 45 potential jurors, were questioned. Once 12 potential jurors were tentatively accepted, both the defense and the State exercised “strike backs.” When the defense exercised a strike back against tentative juror, Staci Woodard, the state lodged a reverse-Batson challenge, stating that the defense had used eight strike backs, all against potential jurors who were Caucasian. The colloquy was as follows:

[State]: Your Honor, according to my notes, and please correct me if they’re in error, I do notice that there have been eight strike backs offered by the defendant^ ] All of those have been against jurors who are Caucasians. There has been no challenge at all, either a cause for peremptory or any strike back issues by the defendant against any of the African-American jurors.
The Court: All right. I have not been asking for reasons for strike backs but since there is the Batson, I will allow that.
The Court: [The state] has filed a — or lodged a Batson objection, subsequent to the request — or peremptory challenge of the defendant on Ms. Woodard, which was the most recent one that he challenged. That would be number eight. We can have a hearing and it may necessarily — it may be necessary to do so. Or what I can do, [defense counsel], is ask — probably go in reverse order so that your memory’s more clear, if you’d like, and let you give me the reasons for exercising peremptories and I can make a decision based on that. Anybody have any objection to that?
Instate]: No, sir.
[Defense]: I don’t have any objection to it, your Honor.

The defense proceeded to state the following reasons for exercising the strike backs:

Staci Woodard — Defense counsel stated that he “represented the defendants who broke into her house and caused she and her entire family great grief, and she’s going to realize any minute now. And I don’t want to be the defense lawyer when she realizes that I was the one that represented those guys.... ”
James Glass — Defense counsel noted that Mr. Glass was a juror on a federal jury trial in which [the prosecutor’s] husband presided; in that case, Mr. Glass found the defendant guilty. Defense counsel stated “I will testify that it had nothing to with the fact that Mr. Glass is a Caucasian if, in fact, he is such.”
Graham Kozar — Defense counsel argued that Mr. Kozar stated that he knew Mr. Brown, one of the assistant district attorneys, and he would rather have a juror who did not know any of the assistant district attorneys.
James Lord — Defense counsel stated that Mr. Lord performed unsatisfactory plumbing work in his house, and the two did not part on cordial terms.
Jeffrey Mitcham — Defense counsel stated that “Mr. Mitcham knew too many police officers for my liking. And I don’t remember the other specifics.”
Beverly Richmond — Defense counsel stated, “I don’t know that I need to give an argument for striking a white woman.... I didn’t strike her because she was white.” When asked by the Court, “Why did you?” Defense counsel responded, “I’ve got numbers here and I just don’t remember ... Body language — I really don’t’ remember, Judge[.]”
John Colvin Allen — Defense counsel stated that he did not think Mr. Allen had a proper understanding of presumptions of innocence and reasonable doubt. Counsel also stated, “I was not impressed with his ability 1 into render a fair, impartial jury verdict, although he testified that he could.” Counsel further stated that “[Allen is] a big, large, burly guy that if I had my druthers, I’d rather have somebody else....”
Charles Vernon Smith — Defense counsel stated that “he’s a DA’s investigator and I — am partial against DA investigators.” Patsy Boles — Defense counsel noted that Ms. Boles went to school and church with [the prosecutor], and that she has been a victim of a crime. Counsel further stated “and it didn’t have anything to do with the fact that she was a white lady if, in fact, she was.”

Following arguments, the trial court ruled that the defense had provided race and gender neutral reasons for striking seven of the nine tentative jurors. With regard to Allen and Richmond, the court allowed the defense another opportunity to prove race and gender neutral reasons for exercising back strikes. The defense counsel responded as follows:

I would reiterate that my excusing Ms. Richmond and Mr. Allen had nothing to do with their race. That I was willing to accept them until I determined that because of the way both sides were exercising their challenges for cause, as well as their peremptory challenges, it appeared highly probable that more — the jurors that I would be more satisfied with were coming up in the pool. And it appeared that the jury would be made up in such a fashion regardless of race, color, creed, or national origin that it would be more beneficial to the defense, and for that reason I excused Ms. Richmond and the same for Mr. Allen.

The court ruled that the defense had not offered race and gender neutral reasons for excusing Richmond and Allen, stating that it felt “like race and gender were playing a role in the defendant’s exercise of peremptory challenges.” As a consequence for its finding of a Batson violation, the court stated that the defense was required to articulate race | nand gender neutral reasons for any additional strike backs. Following the Batson inquiry, the defense peremptorily struck two additional jurors, and the court granted both challenges. Richmond and Allen were not seated on the jury, despite the court’s finding of a Batson violation.

We have reviewed this record, and we find that the trial court followed the proper Batson three-step analysis. We find no error in the trial court’s initial finding that the state had established a prima facie showing of a Batson violation. The first step of the Batson analysis, a prima facie showing, is satisfied by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. See, Johnson v. California, supra; Price v. Cain, supra.

As noted above, after the defense exercised its ninth peremptory challenge, the state argued that the defense had exercised all strikes against Caucasians, but had neither challenged for cause nor exercised a peremptory challenge for any potential juror who was African-American. The court accepted the state’s argument as a prima facie showing that the strike backs were based on race. Accordingly, the court ordered the defense to provide race and gender neutral reasons for the strike backs, to which the court accepted seven of the nine reasons. The court considered the defense’s proffered explanations and accepted seven of the explanations. However, the court rejected the explanations with regard to two potential jurors, expressing that it “felt like race and gender were playing a role in the defense’s exercise of peremptory challenges.” In light of the Batson violation concerning those two potential jurors, the court ordered that any [^further strike backs had to be accompanied with race and gender neutral reasons. However, the court did not order those two potential jurors to be reseated.

The record reveals that the trial court’s ruling on the Batson issue was carefully considered. The record does not support the defendant’s assertion that the trial court did not comply with “procedural requirements of Batson.” The trial court found no discriminatory intent in all but two of the defendant’s peremptory challenges. With regard to the remaining two strike backs, defense counsel was unable to articulate a race neutral reason for exercising the challenges; therefore, the court found a discriminatory intent. Again, we note that the two potential jurors were not reseated on the jury; thus, the defendant was not prejudiced by the court’s ruling. This assignment lacks merit.

Secret Ballot

The defendant also contends the trial court erred in denying the jury’s request for “paper slips” to enable the jury to vote by secret ballot. The defendant argues that the trial court improperly interfered with the jury’s deliberations “by telling the jury that it could not vote the way it wanted to vote.” Without citing any relevant law, the defendant further argues that the trial court’s denial of the paper slips “affected [his] constitutional right to fair and untainted jury deliberations.”

LSA-C.Cr.P. art. 802 provides:

The court shall charge the jury:
(1) As to the law applicable to the case;
(2) That the jury is the judge of the law and of | iSthe facts on the question of guilt or innocence, but that it has the duty to accept and to apply the law as given by the court; and
(8) That the jury alone shall determine the weight and credibility of the evidence.

The court shall not charge the jury concerning facts of the case and shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted. LSA-C.Cr. P. art. 806.

We can find no basis in the law to support the defendant’s argument that the trial court’s denial of the jury’s request to vote by “secret ballot” constituted a violation of the defendant’s right to a fair trial. The only legal mandate for a jury’s use of “slips of paper” that we could find is set forth in LSA-C.Cr.P. art. 812, which pertains to the polling of a jury, after a verdict has been delivered. That article provides, in pertinent part:

(2) The procedure for the written polling of the jury shall require that the clerk hand to each juror a separate piece of paper containing the name of the juror and the words “Is this your verdict?” Each juror shall write on the slip of paper the words “Yes” or “No” along with his signature. The clerk shall collect the slips of paper, make them available for inspection by the court and counsel, and record the results. If a sufficient number of jurors as required by law to reach a verdict answer “yes” the clerk shall so inform the court. Upon verification of the results, the court shall order the clerk to record the verdict and order the jury discharged. If an insufficient number required to find a verdict answer “Yes,” the court may remand the jury for further deliberation, or the court may declare a mistrial in accordance with Article 775.

The defendant’s argument that the jury’s deliberations were tainted is |i4not supported by the record. The record reveals that prior to giving instructions to the jury, the trial court stated:

Once we have [read the instructions], the principal jurors will go to the jury room and begin their deliberations and be sequestered until they reached [sic] a verdict. You will leave everything else out here, your cell phones; any communication devices will not be taken with you. I will give you a writing implement to take with you.

The court then proceeded to instruct the jury with regard to, inter alia, the presumption of innocence, the standard of proof, credibility of witnesses, the relevant law and the responsive verdicts to the crimes charged. The court then stated:

There are no limitations on your deliberations, except you are confined to the evidence in the case and the law given you by the Court. When it comes time for you to decide on a verdict, each juror must arrive at his own individual and separate conclusion and must vote his separate and individual conscience.
Before you retire, the Court, I, will hand you two verdict forms on one page. Each form contains the responsive verdicts that I have mentioned. Each form is for each count.
Ten of you must agree on the same verdict per form, and it must and can only be one of those listed on each form handed to you. When you have reached your verdicts, and at least ten of you have agreed on each verdict, your foreman shall write that verdict as those words appear on the front of the form.

The jury then retired to the jury room for deliberations. Prior to returning a verdict, the jury sent a communication to the trial court, requesting “paper slips in order to take secret ballots.” Outside of the presence of the jury, the court stated:

Jurors do not have the right, as I am understanding — able | lsto understand it, to vote in secret. There might be a technical argument that they could initially vote that way but that’s a slim, technical argument.
Their deliberations are between and among themselves. It’s private within there, but I don’t know that they can do secret ballot. I don’t think they have that luxury. And certainly their — even their individual decisions aren’t secret when they come back into the courtroom with their verdict.

When the jury returned to the courtroom, the court stated, “As concerns communication number two, request paper slips in order to take secret ballots: The answer to that is no.”

The trial court made no comments designed to influence or “taint” the jury’s deliberations in any way. The court did not instruct the jury how to vote, nor did it comment upon evidence or give an opinion. Additionally, prior to deliberations, the court specifically instructed the jury that, “there are no limitations on your deliberations except you are confined to .the evidence in the case and the law given by the court.” Within those parameters, the jury had free rein on how to deliberate. The denial of paper slips did not alter or taint this freedom.

Furthermore, the jury was properly instructed to vote their own conscience. The court’s denial of the jury’s request for paper slips did not interfere with the jury’s deliberations; the court did not comment on the facts or evidence nor did the court give its opinion when it denied the request. Furthermore, the defendant cites no authority for the proposition that the jurors must be allowed to vote by secret ballot. We find that the record does not reflect any interference and/or influence, by the trial court with the jury deliberations. This assignment of error is without merit.

^CONCLUSION

For the reasons set forth herein, the defendant’s convictions and sentences are affirmed.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED.

      . Lt. Beard testified that he is called to the scene of any accident involving a fatality or serious injuries.

      . Lt. Beard also found blood on the B-pillar on the driver’s side of the vehicle. The B-pillar is a piece of metal between the front door and back door that supports the roof of the vehicle.

      . A subsequent autopsy revealed that Ezike died from a hemorrhage caused by a fractured skull. The medical examiner determined that the skull fracture was not caused by the automobile accident.

      . Witnesses described the weapon differently. During the testimony, the weapon was described as a "broken shovel handle or broomstick,” a "bat” and a "thick stick” similar to a cane.

      . The footage from the store’s security cameras reflects that the defendant used Ezike’s debit/credit card at Circle K on two separate occasions. He was accompanied by Hardy and Gipson on only one occasion.

      . Hardy and Gipson pled guilty to armed robbery.

      . LSA-C.Cr.P. art. 788 provides, in pertinent part:
      A. After the examination provided by Article 786, a prospective juror may be tendered first to the state, which shall accept or challenge him. If the state accepts the prospective juror, he shall be tendered to the defendant, who shall accept or challenge him. When a prospective juror is accepted by the state and the defendant, he shall be sworn immediately as a juror. This Article is subject to the provisions of Articles 795 and 796.

      . The defendant is African-American; the victim was Nigerian.

      . Woodard was actually the defendant's ninth strike back. Defense previously exercised strike backs on James Glass, Graham Kozar, James Lord, Jeffrey Mitcham, Beverly Richmond, John Colvin Allen, Charles Vernon Smith and Patsy Boles.