author: PETTIGREW, J.

text:
    STATE of Louisiana v. Deborah D. BLACK.
    No. 2013 CA 1148.
    Court of Appeal of Louisiana, First Circuit.
    March 25, 2014.

      John C. Henry, Covington, LA, for Ap-pellees, Gallinghouse and Associates, Inc. and G & A Publishing, Inc.
    Willard (Trey) O. Lape, III, Covington, LA, for Appellant, William M. Black.
    Before PETTIGREW, McDONALD, and HIGGINBOTHAM, JJ.
   PETTIGREW, J.

| Jn this case, appellant challenges an executory judgment of the trial court, which subjected appellant’s Thrift Savings Plan (“TSP”) to seizure for restitution of his ex-wife’s criminal theft from her previous employer. For the reasons that follow, we annul and set aside the trial court’s supplemental and amended judgments and reinstate the trial court’s original executory judgment.

FACTS AND PROCEDURAL HISTORY

The named defendant in this matter, Deborah D. Black, is the ex-wife of appellant, William M. Black, who was a co-defendant in the underlying criminal case. At the conclusion of the criminal proceedings below, Mrs. Black was found guilty of two counts of felony theft over $500.00 pursuant to La. R.S. 14:67 for embezzlement from her former employer, Galling-house and Associates, Inc. and G & A Publishing, Inc. (“Gallinghouse”). Mr. Black was found not guilty on all charges. On September 22, 2011, the trial court sentenced Mrs. Black to serve six years at hard labor on each count, concurrently, and ordered that restitution be considered by the Parole Board prior to any release from custody. With regard to restitution, the trial court stated:

The Court is going to recommend to the Parole Board that restitution in the amount of $154,154.20 and $206,565.51 be ordered upon Mrs. Black’s release form the Department of Corrections.
The Court will provide notice today to the defense that the Court intends to sign a civil judgment pursuant to the provisions of Article 886.1 of the Code of Criminal Procedure in that amount against Mrs. Black upon presentation, pursuant to the statute, or may be presented to the Court by the State sixty (60) days after sentencing, as provided by the statute.[]

On November 18, 2011, Gallinghouse filed a motion to execute and make execu-tory the judgment of restitution against Mrs. Black. The matter proceeded to a | shearing on February 23, 2012, and the trial court signed an “Executory Judgment” on March 15, 2012, that provided, in pertinent part, as follows:

The Court after reviewing the record, pleadings and accepting the parties’ stipulations 1.) that Deborah D. Black dismisses her appeal; 2) there is no pending appeal; and 3) there is nonpayment of restitution to Gallinghouse and Associates, Inc., and G & A Publishing, Inc., •within sixty days after sentence, issues the following decrees.
IT IS ORDERED that judgment is hereby entered over and against Deborah D. Black in the amounts of $154,154.20 and $206,565.51 (total $360,-719.71) respectively, plus judicial interest thereon beginning November 18th, 2011, plus all costs of the criminal proceeding and subsequent proceedings necessary to enforce this judgment in either civil or criminal court or both.
IT IS ORDERED that this judgment is hereby made immediately executory.

On January 16, 2013, Gallinghouse filed a motion to amend the March 15, 2012 executory judgment to allow for satisfaction of the judgment through the garnishment of the TSP held in the name of Mr. Black. Gallinghouse argued that because the TSP was community property, it could be used to satisfy Mrs. Black’s restitution obligation. Gallinghouse further asserted that all elements of the trial court’s execu-tory judgment fell within the federal sentencing provisions set forth in 18 U.S.C.A. § 3663A (“Mandatory restitution to victims of certain crimes”).

In response to the motion to amend, Mr. Black filed peremptory exceptions raising the objections of no cause of action, res judicata, and no right of action. With regard to the no cause of action exception, Mr. Black argued that La.Code Civ. P. art.1951 did not afford Gallinghouse the remedy it sought, i.e., to significantly alter the substance of the trial court’s executory judgment In urging res . judicata, Mr. Black alleged that the issue of whether his TSP should be included in Mrs. Black’s restitution sentence had already been litigated by the parties. Finally, Mr. Black maintained that Gallinghouse had no right of action against him as Mrs. Black’s restitution obligation was a separate obligation.

14At a hearing on April 25, 2013, the trial court considered the motion to amend filed by Gallinghouse, as well as the exceptions filed by Mr. Black. On May 14, 2013, the trial court signed a “Supplemental Execu-tory Judgment Of Restitution And Garnishment Of A TSP Account,” providing, as follows:

WHEREAS, this Court previously issued an EXECUTORY JUDGMENT on March 15, 2012 in the above-referenced matter ordering restitution to Galling-house and Associates Inc. and G & A Publishing, Inc. to be paid by Deborah D. Black in the amount now totaling $384,201.08 including interest accrued through the signing of this judgment on or about May 8, 2013;
WHEREAS, the court finds that Gall-inghouse and Associates Inc., G & A Publishing, Inc. are victims of the crimes for which Deborah D. Black has been convicted consistent with 18 U.S.C.A. § 3663A as they are identifiable victims who have suffered pecuniary loss pursuant to subsection 18 U.S.C.A. § 3663A(c)(Z )(B)[;]
WHEREAS, the Thrift Savings Plan in the name of William M. Black ... is an asset of the community which existed at the time when the crimes were committed and is therefore subject to collection for the separate or community debt of Deborah D. Black;
IT IS ORDERED ADJUDGED AND DECREED that the exceptions of William Black are denied;
IS FURTHER ORDERED that costs of collection of the restitution order currently total $218.78, bring the total now due to $384,419.86[;]
IT IS FURTHER ORDERED the civilian participant Thrift Savings Plan (TSP) held in the name of William M. Black ... pay to the order of Galling-house and Associates, Inc. and G & A Publishing, Inc., ... the amount of $384,419.86 to satisfy the restitution obligations. Payment of funds held in the participant thrift savings plan shall not include contributions made to the plan on or after November 23, 2011 or any earnings that may have accrued on those contributions that were made after March 23,2011.[]

It is from this judgment that Mr. Black has appealed, assigning the following specifications of error:

1. The trial court erred by granting [Gallinghouse’s] Motion to Amend and subjecting [Mr. Black’s] TSP retirement account to seizure for purposes of restitution for his ex-wife’s separate obligation. This aspect of the judgment also constitutes legal error because the trial court expressly found that federal law applied to the seizure of the retirement account and ignored the unequivocal provision of Louisiana Rev, Stat. 13:3881 that such retirement accounts are protected from seizure: “[T]he following shall be exempt from all liability for any debt except alimony and | r,child support: all pensions, all tax deferred arrangements, annuity contracts, and all proceeds of and payments under all tax-deferred arrangements and annuity contracts .... ” The trial court’s application of federal law to supersede the applicable Louisiana law was legal error and must be reversed.
2. The trial court erred by denying [Mr. Black’s] peremptory exception of no cause of action where Louisiana Code of Civil Procedure article 1951 governing amendments to final judgments expressly provides that no substantive alterations may be made and the trial court’s action of amending the original judgment to include [Mr. Black’s] TSP in the amended judgment constitutes a substantive alteration to the original judgment. Such is a legal error due to the trial court’s misapplication or misinterpretation of Article 1951 that allows amendments to final judgments only “to alter the phraseology of the judgment, but not the substance,” or “to correct errors of calculation.”
3. The trial court erred by denying [Mr. Black’s] peremptory exception of res judicata where the issue of whether [Mr. Black’s] TSP would be subject to the restitution required by his wife was fully and actually litigated previously, which resulted in the original judgment. The Motion to Amend, therefore, was an impermissible attempt to re-litigate that which had already been litigated; hence, the res judicata exception should have been maintained.
4. The trial court erred by denying [Mr. Black’s] peremptory exception of no right of action where Louisiana Civil Code article 2368 expressly defines Deborah D. Black’s criminal act as a separate obligation: An obligation incurred during the community, but not for the common interest of both spouses is a separate obligation and an obligation “resulting from an intentional wrong ... is likewise a separate obligation to the extent that it does not benefit both spouses, the family, or the other spouse.” There was no determination that [Mr. Black] benefitted in the least from the embezzlement, in fact, just the opposite evidence was presented. Thus, [Gallinghouse] had no right of action against [Mrs. Black’s] former husband, [Mr. Black], to seize his TSP to pay his former wife’s restitution — a separate obligation. The trial court’s denial of this exception was legal error due to a misapplication or misinterpretation of Article 2363.

STANDARD OF REVIEW

DISCUSSION

Louisiana Code of Civil Procedure article 1951 provides, as follows, with regard to amendment of a judgment:

On motion of the court or any party, a final judgment may be amended at any time to alter the phraseology of the judgment, but not its substance, or to correct errors of calculation. The judgment may be amended only after a hearing with notice to all parties, except that a hearing is not required if all parties consent or if the court or the party submitting the amended judgment certifies that it was provided to all parties at least five days before the amendment and that no opposition has been received.

In other words, a judgment may be amended by the court where the resulting judgment takes nothing from or adds nothing to the original judgment. Villaume v. Villaume, 363 So.2d 448, 450 (La.1978). However, where an amendment to a judgment adds to, subtracts from, or in any way affects the substance of the judgment, such judgment may not be amended under Article 1951. Starnes v. Asplundh Tree Expert Co., 94-1647, p. 5 (La.App. 1 Cir. 10/6/95), 670 So.2d 1242, 1246. Substantive amendments to judgments can be made only after a party has successfully litigated a timely application for new trial, an action for nullity, or a timely appeal. Creel v. Bogalusa Community Medical Center, 580 So.2d 551, 552 (La.App. 1 Cir.), writ denied, 585 So.2d 567 (La.1991). The Louisiana Supreme Court has also recognized that, on its own motion, and with consent of the parties, the trial court may amend a judgment substantively. Frisard v. Autin, 98-2637, p. 7 (La.App. 1 Cir. 12/28/99), 747 So.2d 813, 818, writ denied, 2000-0126 (La.3/17/00), 756 So.2d 1145 (citing Villaume, 363 So.2d at 451).

|7On appeal, Mr. Black maintains that the “proper procedural vehicle for ... Gallinghouse’s attempt to modify the original judgment would have been to file a motion for new trial to advance their argument that [Mr. Black’s] TSP should be seized to pay restitution for [Mrs.] Black.”. In response, Gallinghouse asserts that the amendment of the restitution order to conform with the requirements of the Code of Federal Regulations for disbursement of the TSP fund was well within the authority of the trial court. Citing Tate v. Tate, 2008-1968, pp. 4-6 (La.App. 1 Cir. 3/27/09), 9 So.3d 1010, 1012-1013, as support for its position, Gallinghouse argues that it moved for the amendment of the restitution order because the phraseology needed alteration to allow for processing by the TSP administrator.

We find Tate easily distinguishable from the case before us now. In Tate, Mrs. Tate filed a petition for partition of community property, including her former husband’s retirement account with the Louisiana State Employees’ Retirement System (“LASERS”). The trial court rendered judgment, awarding Mrs. Tate her proportionate share of the retirement fund. Mrs. Tate subsequently filed a rule to amend, alleging that the original judgment needed to be modified because that portion of the judgment partitioning the community’s interest in the retirement fund was not drafted correctly such that LASERS could divide the benefit. The trial court amended the judgment accordingly, finding that the amendment was no more than an alteration of phraseology. On appeal, this court affirmed, finding no manifest error. Tate, 2008-1968 at 4-6, 9 So.3d at 1012-1013.

Unlike in Tate, the original March 15, 2012 judgment in this case made no mention of Mr. Black’s TSP or whether it was subject to seizure for satisfaction of Mrs. Black’s restitution obligation. Moreover, the original judgment was void of any reference to the federal sentencing provisions set forth in 18 U.S.C.A. § 3663A. Thus, the amendment of the March 15, 2012 executory judgment by the trial court was certainly substantive, as it not only identifies Gallinghouse as “identifiable victims who have suffered pecuniary loss pursuant to subsection 18 U.S.C.A. § 3663A(c)(i )(B),” but it also finds that Mr. Black’s TSP is a community asset subject to seizure for satisfaction of Mrs. IsBIack’s restitution obligation. Further, there is no evidence in the record that the parties consented to this substantive amendment. This substantive alteration is in violation of the prohibition contained in Article 1951.

When a trial court substantively amends a judgment without recourse to the proper procedure, the amended judgment is an absolute nullity. Frisará, 98-2687 at 8, 747 So.2d at 819. The usual remedy applied by an appellate court that finds an amendment made of substance in a judgment is to annul and set aside the amending judgment and reinstate the original judgment. Hebert v. Blue’s Auto and Truck Parts, 2000-2154, p. 5 (La.App. 1 Cir. 12/28/01), 804 So.2d 958, 956, writ denied, 2002-0272 (La.3/28/02), 812 So.2d 635, Accordingly, we annul and set aside the judgments of May 14, 2013, and June 24, 2013, and reinstate the March 15, 2012 judgment.

DECREE

For the above reasons, we annul and set aside the May 14, 2013 and June 24, 2013 judgments of the trial court and reinstate the March 15, 2012 judgment of the trial court. Costs of the appeal are assessed against Gallinghouse and Associates, Inc. and G & A Publishing, Inc.

MAY 14, 2013 AND JUNE 24/2013 JUDGMENTS ANNULLED AND SET ASIDE; MARCH 15, 2012 JUDGMENT REINSTATED.

      . Louisiana Code of Criminal Procedure article 886.1 provides, in pertinent part, as follows:
      If a civil judgment is signed in accordance with Article 886, the judgment shall be executory upon rendition by the court provided the defendant was notified at the time of sentencing of the possible rendition of a civil judgment in the event of his failure to pay the fine and costs.

      . According to the record, Mr. Black filed a petition for divorce on November 23, 2011, resulting in a judgment of divorce on July 10, 2012. As of 2013, Mr. Black was residing in Madisonville, Louisiana, and raising his only child, a teenage daughter born of his marriage to Mrs. Black.

      . As discussed in more detail below, we find the trial court’s amendment of its original judgment was substantive and there is no evidence in the record that the parties agreed or consented to said amendment. Thus, we do not reach the issue of whether Mr. Black's TSP would be subject to seizure for purposes of Mrs. Black’s restitution obligation.

      . In a second supplemental judgment signed on June 24, 2013, the trial court corrected a typographical error, changing "March 23, 2011” in the final paragraph of the judgment to "November 23, 2011.”

      . We also note a change in the amount of restitution ordered against Mrs. Black from $360,719.71 in the original March 15, 2012 executory judgment to $384,419.86 in the amended executory judgments, a difference that the trial court noted represented accrued interest and costs. An amendment that changes the amount due has been held to be an alteration of the judgment's substance and not a correction of errors of calculation. Tex

        as Bank of Beaumont v. Bozorg, 496 So.2d 1215, 1217 (La.App. 5 Cir.1986). See also Lovell v. Lovell, 545 So.2d 1314, 1316 (La. App. 1 Cir. 1989); Pringle Associated Mortg. Corp. v. Cox, 234 So.2d 854, 857 (La.App. 1 Cir. 1970), affirmed, 258 La. 499, 246 So.2d 841 (1971).


source: Caselaw Access Project

author: DRAKE, J.

license: Public Domain

text:
    INTERDICTION OF Harold Otis WRIGHT.
    No. 2013 CA 0862.
    Court of Appeal of Louisiana, First Circuit.
    March 27, 2014.

      James F. Willeford, Reagan L. Toleda-no, Shane D. Pendley, New Orleans, Louisiana, Charles M. Reid, Amite, Louisiana, for Plaintiff/Appellant, Harold Asher.
    A. Shelby Easterly, III, Denham Springs, Louisiana, Tom S. Easterly, Edward D. Hughes, Fredrick R. Tulley, Baton Rouge, Louisiana Rick A. Singer, Hammond, Louisiana, Edward J. Deano, Jr., J. Ronald Ward, Jr., Mandeville, Louisiana, for Defendant/Appellee, A.G. Edwards and Sons, Inc.
    Before PARRO, GUIDRY, and DRAKE, JJ.
   DRAKE, J.

|gThe plaintiff/appellant, Harold Asher, in his capacity as succession representative of the Estate of Harold Otis Wright, appeals a final judgment of the district court, which granted a motion for summary judgment and sustained a peremptory exception of compromise and a peremptory exception of acceptance of arbitration award in favor of the defendant/appellee, A.G. Edwards and Sons, Inc. (“A.G. Edwards”), and dismissed the plaintiffs claims, with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In the prior appeal in this matter, the facts of this case were previously set forth by our supreme court in In re Interdiction of Wright, 10-1826 (La.10/25/11), 75 So.3d 893. Harold Otis Wright was paralyzed and incapacitated by a medical accident in 1973. He received damages totaling approximately $1.7 million as a result of the ensuing litigation. See Wright v. United States, 507 F.Supp. 147 (E.D.La.1981). Thereafter, his wife, Audrey Wright, filed a petition for interdiction in the Twenty-First Judicial District Court. The court declared Mr. Wright an interdict and appointed Mrs. Wright as his curatrix. In conjunction with the interdiction proceeding, the court issued an order (“1982 Order”), which allowed Mrs. Wright to invest the money from the judgment in long-term bonds. Additionally, the court ordered all interest income be deposited and channeled through a Custodian Account, with the provision “that no portion of the Interdict’s capital estate be withdrawn from any of the said long-range investment accounts, without further and specific orders of this Court.” With the permission of the court, Mrs. Wright established an account with A.G. Edwards through one of its investment brokers, Edwin Reardon.

In 2002, Mrs. Wright filed a petition for damages in the Twenty-First Judicial District Court against several defendants, including Mr. Reardon and A.G. |3Edwards, alleging breach of fiduciary and contractual duties, including violations of securities law. Particularly, Mrs. Wright argued that Mr. Reardon had misappropriated the entire $1.7 million and disbursed the principal from the account, without court approval, from February 1994 to December 2002, thereby violating the 1982 Order. Additionally, Mrs. Wright alleged further violation of the court’s order when Mr. Reardon left A.G. Edwards, went to work for Morgan Stanley Dean Witter, Inc. (“Morgan Stanley”), and took the remaining principal of the account ($700,000) with him to Morgan Stanley. Also, Mrs. Wright contended that A.G. Edwards had failed to supervise Mr. Reardon’s management of the account.

In response, A.G. Edwards filed an exception of prematurity based on the account agreements signed by Mrs. Wright, which called for binding arbitration prior to any judicial action. The parties consented to a stay of all further proceedings in this action pending the completion of arbitration. Mrs. Wright also consented to arbitration of the claim through a National Association of Securities Dealers (“NASD”) Arbitration Uniform Submission Agreement. Thereafter, the district court issued a judgment on the parties’ consent motion to stay the action pending arbitration before the NASD. While the arbitration was pending, Mr. Wright died, thereby terminating the interdiction proceeding. Harold Asher was appointed as the decedent’s succession representative and was substituted for Mrs. Wright in the arbitration.

On November 28, 2005, in a stipulated judgment, the district court rendered judgment against Mr. Reardon in the amount of $100,000, which was to be paid to the plaintiff. The plaintiff also settled with Morgan Stanley on the loss of 14$699,280.75 of trust funds that A.G. Edwards had transferred to Morgan Stanley. The arbiters were advised of the judgment against Mr. Reardon, as well as the amount of the Morgan Stanley settlement. See In re Interdiction of Wright, 75 So.3d at 895. On July 31, 2006, the NASD arbitration panel issued an award in favor of the succession representative against A.G. Edwards, who was “liable and shall pay [to the plaintiff] compensatory damages in the amount of $150,000.00, plus interest at the Louisiana legal rate of interest accruing from December 31, 2003 until the date of payment of the Award.” On August 22, 2006, in compliance with the arbitration ruling, A.G. Edwards forwarded a check to plaintiffs counsel, made payable to the plaintiff in the amount of $180,735.30, representing the amount of the arbitration award, plus judicial interest. Accompanying the check was an A.G. Edwards cover letter, which stated, in pertinent part:

Enclosed please find A.G. Edwards & Sons, Inc.’s check in the amount of $180,735.30 in satisfaction of the award in the above-referenced matter. Pursuant to NASD directives, the award is paid to the Claimants and their attorneys, and A.G. Edwards is required to notify the NASD that the award has been satisfied and complied with.

The plaintiff accepted the check.

In 2008, Mr. Asher filed a motion for contempt of court against A.G. Edwards under Louisiana Code of Civil Procedure article 3611 for alleged ^violations of the 1982 Order. In response, A.G. Edwards filed several exceptions, including an exception of res judicata, wherein it contended the NASD arbitration proceeding was between the same parties, based on the same alleged wrongful conduct, and awarded the same damages sought in the motion for contempt of court. The district court denied the exception of res judicata. The First Circuit granted a writ application, reversing the district court’s ruling and dismissing the plaintiffs claims as res ju-dicata. See Interdiction of Harold Wright, 10-0449 (LaApp. 1 Cir. 7/21/10) (unpublished writ action). Particularly, this court stated:

The trial court erred in denying A.G. Edwards and Sons, Ine.’s Exception of Res Judicata The arbitration proceeding was between the same parties, based on the same alleged wrongful conduct, and awarded the same damages sought in Harold Asher’s Motion for Contempt (which we find to be a misnamed petition for damages, given that there was no injunction issued). Therefore, the arbitration award, albeit unconfirmed, is res judicata and precludes Mr. Asher’s suit. See Aucoin v. Gauthier [09-1245 (LaApp. 1 Cir. 2/12/10), 35 So.3d 326, writ granted, 10-0585 (La.6/18/10), 38 So.3d 312.]. Accordingly, the exception is hereby granted, dismissing the claims of Harold Asher against A.G. Edwards and Sons, Inc.

While A.G. Edwards’s writ on the res judicata issue was pending, A.G. Edwards filed a motion for summary judgment on July 13, 2010, arguing that it was entitled to summary judgment, dismissing all claims against it contained in the plaintiffs motion for contempt, because the district court never issued an injunction in this case, and that the compensatory damages sought are unavailable to the plaintiff as a matter of law.

In 2011, our supreme court reversed the decision of the First Circuit on the -res judicata issue, holding that an unconfirmed arbitration award does not have a 1 fipreclusive effect. See In re Interdiction of Wright, 75 So.Sd 898. Following the decision of the supreme court, the plaintiff re-asserted the claims previously set forth in the 2002 petition for damages. In response, A.G. Edwards filed peremptory exceptions pleading the objections of compromise and acceptance of arbitration award.

Following a hearing, the district court granted the motion for summary judgment previously filed by A.G. Edwards, ruling that no genuine issues of material fact existed, and dismissed the plaintiff’s claim for compensatory damages arising from the motion for contempt filed by the plaintiff, with prejudice. The district court also sustained A.G. Edwards’s peremptory exceptions of compromise and acceptance of arbitration award. The plaintiff now appeals the February 27, 2013 final judgment of the district court, which granted A.G. Edwards’s motion for summary judgment and sustained its peremptory exceptions of compromise and acceptance of arbitration award.

LAW AND DISCUSSION

AG. Edwards’s Motion for Summary Judgment

The plaintiff filed his motion for contempt (first in 2005, and re-urged in 2008), in which he sought to recover damages under Louisiana Code of Civil Procedure article 3611 for A.G. Edwards’s violation of a court order issued in an interdiction proceeding prohibiting the disbursement of an interdict’s funds, in addition to the relief sought in the 2002 petition for damages. In response, A.G. Edwards filed a motion for summary judgment, arguing that the plaintiff could not recover damages pursuant to Article 3611 because the district court never issued a |7temporary restraining order, preliminary injunction, or permanent injunction in this case. In his sixth assignment of error, the plaintiff contends that the district court erred in ruling that the 1982 Order issued within Mr. Wright’s interdiction proceeding, which prohibited a broker’s disbursement of the interdict’s trust funds, was not an injunction, subject to the plaintiffs recovery of damages pursuant to Article 3611.

Injunction proceedings are governed by Louisiana Code of Civil Procedure articles 3601-3613. An injunction is an ordinary proceeding in which the plaintiff seeks a permanent injunction compelling the defendant to do an act or barring him from acting. An injunction also includes summary proceedings — the temporary restraining order (“TRO”) and the preliminary injunction — to compel or bar the disputed act, pending a determination on the merits of the ordinary proceeding. La. C.C.P. arts. 3601(C), 3602, and 3603(A). Thus, the TRO and the preliminary injunction may only be obtained as adjuncts to a suit for permanent injunction. See La. C.C.P. art. 3601; Louisiana Livestock Sanitary Bd. v. Johnson, 372 So.2d 585, 591 (La.App. 3 Cir.), writ denied sub nom., 373 So.2d 967 (La.1979). An application for injunctive relief shall be by petition. La. C.C.P. art. 3601(D).

Injunctive relief may be granted in cases where irreparable injury, loss, or damage may otherwise result to the applicant, and in other cases specifically provided by law. La. C.C.P. art. 3601; Green-berg v. De Salvo, 254 La. 1019, 1026, 229 So.2d 83, 86 (1969), cert, denied, 397 U.S. 1075, 90 S.Ct. 1521, 25 L.Ed.2d 809 (1970). Irreparable injury is a loss that cannot be adequately compensated in money damages or is not susceptible of measurement by pecuniary standards. Shaw v. Mingle, 94-1579 (La.1/17/95), 648 So.2d 903, 905.

When injunctive relief is granted, the order or judgment must describe “in reasonable detail ... the act or acts sought to be restrained.” La. C.C.P. art. 3605. The proscribed conduct must be ascertainable from the “four corners” of the |sinjunctive order or judgment, and not by the mere reference to the petition or other documents. La. C.C.P. art. 3605. Violation of an injunctive order may be punished by contempt, by an action for damages, or by compelling the actor to undo any act performed in violation of the injunctive order. Louisiana Code of Civil Procedure article 3611 provides:

Disobedience of or resistance to a temporary restraining order or preliminary or final injunction is punishable as a contempt of court. The court may cause to be undone or destroyed whatever may be done in violation of an injunction, and the person aggrieved thereby may recover the damages sustained as a result of the violation.

Article 3611 emphasizes the availability of punishment for contempt as a method of enforcing an injunctive order, as opposed to the general provisions on contempt. La. C.C.P. art. 3611, comment (a); see La. C.C.P. arts. 221-227. A contempt of court is defined as any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court, or respect for its authority. Contempts of court are of two kinds, direct and constructive. La. C.C.P. art. 221. Direct contempts of court are those committed in open court and of which it has personal knowledge, while a constructive contempt of court is any contempt other than a direct one. La. C.C.P. arts. 222 and 224. The willful violation of a court order, such as the 1982 Order at issue here, constitutes a constructive contempt of court. See La. C.C.P. art. 224. The punishment that a court may impose upon a person adjudged guilty of contempt of | flcourt is provided in Louisiana Revised Statutes 13:4611. Compensatory damages are not part of the punishment that is available for contempt of court under the general codal provisions on contempt or Louisiana Revised Statutes 13:4611. The law is clear that contempt of court is punishable by jail time and a fine of up to $500.

The plaintiff argues that the 1982 Order, as well as other orders issued during the interdiction proceedings, which prohibited the disbursement of principal from Mr. Wright’s estate, are functionally identical to injunctions. The 1982 Order clearly prohibits the disbursement of Mr. Wright’s funds. Although the word “injunction” does not appear in the court’s order, the plaintiff avers that the order’s meaning and purpose are beyond doubt. The plaintiff also argues that there is no authority requiring that injunctions be expressly labeled. Thus, the plaintiff alleges that because the 1982 Order prohibits the disbursement of funds, it is an injunction, and therefore, the plaintiff is entitled to injunctive relief in the form of compensatory damages pursuant to Article 3611. A.G. Edwards argues in its motion for summary judgment that it was entitled to summary judgment because 110the district court never issued an injunction in this case and the compensatory damages sought under Article 3611 are unavailable to the plaintiff as a matter of law.

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. All Crane Rental of Georgia^ Inc. v. Vincent, 10-0116 (La. App. 1 Cir. 9/10/10), 47 So.3d 1024, 1027, writ denied, 10-2227 (La.11/19/10), 49 So.3d 387. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the movant is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(B)(2).

The burden of proof on a motion for summary judgment remains with the mov-ant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

| nOnce the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. See La. C.C.P. art. 967(B); Pugh v. St. Tammany Parish School Board, 07-1856 (La.App. 1 Cir. 8/21/08), 994 So.2d 95, 97 (on rehearing), writ denied, 08-2316 . (La.11/21/08), 996 So.2d 1113. When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967(B).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1035, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Christakis v. Clipper Construction, L.L.C., 12-1638 (LaApp. 1 Cir. 4/26/13), 117 So.3d 168, 170, writ denied, 13-1913 (La.11/8/13), 125 So.3d 454.

A.G. Edwards filed six exhibits in support of its motion for summary judgment, including miscellaneous judicial admissions made by the plaintiff, the plaintiffs 2002 petition for damages, the plaintiffs motion for contempt, the interdiction proceeding orders, including the 1982 Order, the plaintiffs 2003 arbitration “Statement of Claim,” and the arbitration award. In granting A.G. Edwards’s motion for summary judgment, the district court held that the 1982 |12Order was not an order for injunctive relief and adopted the reasons set forth in A.G. Edwards’s memorandum in support of its motion for summary judgment.

Based on our de novo' review of the record, we find that the district court properly granted summary judgment in favor of A.G. Edwards. Pursuant to Louisiana Code of Civil Procedure article 3611 and the general contempt provisions in the Code of Civil Procedure, the law is clear that compensatory damages are not available in a contempt proceeding absent an injunction. Here, no injunctive relief in the form of a temporary restraining order, a preliminary injunction, or a permanent injunction has ever been issued by the district court in this case. Furthermore, the 1982 Order was issued by the district court during Mr. Wright’s interdiction pro-. ceedings and addressed the investment and handling of the proceeds of Mr. Wright’s $1.7 million damages award. At the time the 1982 Order was issued, A.G. Edwards was not a party to the interdiction proceeding, and at no time during the interdiction proceeding did the plaintiff ever seek injunctive relief. Absent an injunction, compensatory damages are not available in a contempt proceeding. The requirements of Louisiana Code of Civil Procedure articles 3601-3613 have not been met; thus, the plaintiff is not entitled to compensatory damages pursuant to Article 3611. This assignment of error is without merit.

A.G. Edwards’s Peremptory Exceptions of Compromise and Acceptance of Arbitration Award

In his petition for damages, the plaintiff sought to recover roughly $1.7 million dollars in damages caused by A.G. Edwards’s breach of contract and breach of fiduciary duty. A.G. Edwards filed peremptory exceptions of compromise and acceptance of arbitration award against the plaintiffs petition for damages, contending that the dispute has been compromised by virtue of the |13parties having signed a pre-dispute arbitration agreement, submitted to arbitration, and exchanged a check in the amount of the arbitration award.

In his first five assignments of error, the plaintiff argues that the district court erred in sustaining A.G. Edwards’s exceptions and dismissing the case on the basis that the parties compromised this dispute. First, the plaintiff contends that the law-of-the-case doctrine precluded the district court from ruling again on the compromise issue. Second, the plaintiff alleges that the district court erred in ruling that the curatrix compromised this dispute because the curatrix lacked the legal capacity to enter into a compromise without court approval. Similarly, third, the plaintiff alleges that the district court erred in ruling that the succession representative compromised this dispute because the succession representative also lacked the legal capacity to enter into a compromise without court approval. Fourth, the plaintiff argues the curatrix did not compromise the dispute by executing a pre-dispute arbitration agreement and/or submission agreement. Fifth, the plaintiff avers the succession representative did not compromise this action by accepting a check from A.G. Edwards because the check was not tendered with the express written condition indicating that acceptance would result in a compromise. See La. C.C. art. 3079.

A settlement or compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship. La. C.C. art. 3071, Cutrer v. Open Range RV Co., 12-2046 (La.App. 1 Cir. 8/13/13), 122 So.3d 1102, 1104. Like any contract, a compromise agreement is formed by the consent of the parties through offer and acceptance. See La. C.C. art. 1927. An acceptance not in accordance with the terms of the offer is deemed to be a counteroffer. La. C.C. art. 1943. A compromise is valid only if there is a meeting of the minds between the parties as to exactly what they intended when the compromise was reached. | uSceroler v. Rancher, 99-2859 (La.App. 1 Cir. 2/15/02), 808 So.2d 803, 809, writ denied, 02-0811 (La.5/24/02), 816 So.2d 849. A compromise shall be made in writing or recited in open court. La. C.C. art. 3072. A compromise is also made when the claimant of a disputed or unliquidated claim, regardless of the extent of his claim, accepts a payment that the other party tenders with the clearly expressed written condition that acceptance of the payment will extinguish the obligation. La. C.C. art. 3079. A peremptory exception is the proper method by which to assert the legal defense of compromise. The preclusive effect of a compromise can be raised in a peremptory exception, under Louisiana Code of Civil Procedure article 927. La. C.C. art. 3080, comment (a).

The plaintiff argues that A.G. Edwards’s compromise argument has already been litigated and rejected by the supreme court. See In re Interdiction of Wright, 75 So.3d 893. However, A.G. Edwards argues that in Wright, the supreme court did not reject the contention that the parties in this matter entered into a compromise because the supreme court did not even take up the issue of whether or not the arbitration award constituted a compromise, such that the parties settled the dispute. We agree.

The supreme court’s opinion represents a narrow holding on the issue of res judicata, as applied to an unconfirmed arbitration award, where the plaintiff brought an action for contempt. The supreme court ruled that an unconfirmed arbitration award is not a “judgment” and was not “rendered by a court.” As such, |1Bit does not qualify as a “valid and final judgment” under the statute and has no res judicata effect. In re Interdiction of Wright, 75 So.3d at 897. Thus, an unconfirmed arbitration award has no preclusive effect and cannot bar suit in a subsequent action between the same parties, based on the same conduct, and awarding the same damages. However, if the submission to arbitration, arbitration award, and acceptance of the arbitration award amount in this matter are viewed in light of the Louisiana Civil Code and Code of Civil Procedure articles on compromise, there is no need to confirm an arbitration award and obtain a final judgment to give preclusive effect to the arbitration award. The result of the arbitration proceeding can have pre-clusive effect if it is effectively a valid compromise, as recognized by Justice Weimer in his dissent. See In re Interdiction of Wright, 75 So.3d at 900-01. Thus, the issue before us is whether or not the parties entered into a compromise.

Here, Mrs. Wright’s account agreement with A.G. Edwards called for binding arbitration prior to any judicial action. Mrs. Wright also consented to arbitration by signing a NASD Arbitration Uniform Submission Agreement, in which she agreed to be bound by the decision of the arbitrators. Following the decision of the arbitration panel, A.G. Edwards sent plaintiffs counsel a cover 11filetter, which stated that the enclosed check in the amount of $180,735.30 was “in satisfaction of the award.” The cover letter also indicated that A.G. Edwards was “required to notify the NASD that the award has been satisfied and complied with.” The remittance invoice with the check designated the check as a “SETTLEMENT.” Upon receipt of the cover letter and cheek, the plaintiff accepted the proceeds of the arbitration award.

The parties consented to arbitrate their claim in order to settle their dispute. Furthermore, the parties consented to a stay of all proceedings in this case, pending the resolution of the claims through arbitration. As demonstrated through the written agreements to arbitrate (the account documents and the NASD Arbitration Uniform Submission Agreement), the parties’ request of the district court for a stay pending arbitration, the decision of the NASD panel, the cover letter and invoice with attached check from A.G. Edwards (indicating “SETTLEMENT”), which represented the arbitration award, it is clear that there was a meeting of the minds in this matter. These documents leave no doubt that the arbitration proceeding was the means by which the Wright estate settled its claims against A.G. Edwards.

As the plaintiff argues, it remains that the defendants could have done more to formalize the arbitration award, such as obtaining a judgment memorializing the award, filing a motion to dismiss the case, or filing a satisfaction and accord and executing a receipt and release. However, it is enough that the parties agreed to arbitrate their claims. Through the consent to arbitrate and acceptance of the arbitration award, the plaintiff compromised his claim against A.G. Edwards, and that compromise may be awarded preclusive effect in this instance. Therefore, in viewing the submission of the claim and acceptance of the arbitration award as a compromise between the parties in this matter, there was no need for a confirmation of the arbitration award in order to give preclu-sive effect to the compromise. These assignments of error are without merit.

117A.6r. Edwards’s Answer to Appeal

Finally, A.G. Edwards answered the plaintiffs appeal to raise several interlocutory rulings, which it claims provide alternate bases for dismissal of the plaintiffs claims should this court reverse the ruling of the district court on A.G. Edwards’s motion for summary judgment and the peremptory exceptions of compromise and acceptance of arbitration award. See La. C.C.P. art. 2133. Based on the foregoing opinion, the arguments contained in A.G. Edwards’s answer to appeal are moot.

DECREE

For the foregoing reasons, the February 27, 2013 final judgment of the district court which granted A.G. Edwards’s motion for summary judgment and sustained its peremptory exception of compromise and peremptory exception of acceptance of arbitration award, is hereby affirmed. All costs of this appeal are cast to the plaintiff/appellant, Harold Asher, in his capacity as succession representative of the Succession of Harold Otis Wright.

AFFIRMED.

      . The original amount of the judgment rendered against Mr. Reardon was $1,078,217, plus judicial interest; however, the amount was reduced to $100,000 on stipulation of the parties and the plaintiff's agreement, based upon the sworn testimony of Mr. Reardon that he was unable to pay the amount of the judgment.

      . On December 29, 2005, the NASD arbitration panel entered an order dismissing, with prejudice, all claims against Morgan Stanley.

      . La. C.C.P. art. 3611 provides:
      Disobedience of or resistance to a temporary restraining order or preliminary or final injunction is punishable as a contempt of court. The court may cause to be undone or destroyed whatever may be done in violation of an injunction, and the person aggrieved thereby may recover the damages sustained as a result of the violation.

      . Mr. Asher previously had filed a motion for contempt of court while arbitration was pending (on November 17, 2005). A.G. Edwards removed the matter to federal court. There, the plaintiff filed, in 2006, a motion to modify arbitration award and a renewed motion for contempt of court against A.G. Edwards. The federal district court denied the plaintiffs motion to modify the award. The plaintiff then filed a motion-to remand to state court, where the order was initially issued. The federal district court denied the motion to remand; however, on appeal, the United States Court of Appeals for the Fifth Circuit remanded the matter to the state court, specifically the contempt portion of the plaintiff's motion to modify arbitration award and renewed motion for contempt. See Asher v. A.G. Edwards & Sons, Inc., 272 Fed.Appx. 357 (5th Cir.2008). Following remand, in 2008, Mr. Asher re-urged the motion for contempt of court, which is at issue in the instant litigation. See In re Interdiction of Wright, 75 So.3d at 895.

      . In that same judgment, the district court also denied A.G. Edwards’s motion for new trial and rehearing on exception of prematurity, exception of venue, and motion to compel arbitration by A.G. Edwards with incorporated memorandum. The district court denied, as moot, A.G. Edwards's motion to recognize execution of arbitration award or, alternatively, motion to confirm arbitration award and motion to recognize waiver of any objection to confirmation of arbitration award. The district court also denied, as moot, the plaintiff’s motion for contempt of court against A.G. Edwards and Sons, Inc.

      . Louisiana Revised Statutes 13:4611 provides, in pertinent part:
      Except as otherwise provided for by law:
      (1) The supreme court, the courts of appeal, the district courts, family courts, juvenile courts and the city courts may punish a person adjudged guilty of a contempt of court therein, as follows:
      (a) For a direct contempt of court committed by an attorney at law, by a fine of not more than one hundred dollars, or by imprisonment for not more than twenty-four hours, or both; and, for any subsequent contempt of the same court by the same offender, by a fine of not more than two hundred dollars, or by imprisonment for not more than ten days, or both;
      (b) For disobeying or resisting a lawful restraining order, or preliminary or permanent injunction, by a fine of not more than one thousand dollars, or by imprisonment for not more than six months, or both.
      (c) For a deliberate refusal to perform an act which is yet within the power of the offender to perform, by imprisonment until he performs the act; and
      (d) For any other contempt of court, including disobeying an order for the payment of child support or spousal support or an order for the right of custody or visitation, by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both.

      . Louisiana Code of Civil Procedure article 966 was recently amended by La. Acts 2013, No. 391, § 1, to provide for submission of, and objections to, evidence for motions for summary judgment. These procedural amendments to Article 966 are not implicated in the issues presented on appeal.

      . Louisiana Revised Statutes 13:4231 provides:
      Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
      (1)If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
      (2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
      (3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.


author: CRAIN, J.

text:
    STATE of Louisiana v. John COBB.
    No. 2013 KA 1593.
    Court of Appeal of Louisiana, First Circuit.
    March 27, 2014.
    Rehearing Denied June 3, 2014.

      Samuel C. D’Aquilla, District Attorney, Stewart B. Hughes, Special Assistant District Attorney, St. Franeisville, LA, for Plaintiff/Appellee, State of Louisiana.
    W. Robert Gill, Yigal Bander, André Bélanger, Baton Rouge, LA, for Defendant/Appellant, John Cobb.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   CRAIN, J.

|?The defendant, John Cobb, was charged by grand jury indictment with three counts of theft of over $500, violations of Louisiana Revised Statute 14:67(B)(1). He pled not guilty and, following a jury trial, was found guilty on all counts. On each count, the trial court imposed a suspended sentence of five years imprisonment at hard labor, and placed the defendant on supervised probation for a period of five years, which time was ordered to run concurrent. A $1,000 fine was imposed on each count, with the fines ordered to run consecutive. On count one, the defendant was additionally sentenced to perform 180 days of public service and to make restitution to a maximum indemnity of $15,000. Finally the defendant was ordered to pay court costs as to each count. The defendant now appeals, arguing the insufficiency of the evidence to convict and ineffective assistance of counsel. We affirm the convictions and sentences imposed on counts one and two. We reverse the conviction and sentence imposed on count three.

FACTS

In 2006, the members of Union Bethel Family Church, located in West Feliciana Parish, undertook construction of a new sanctuary. The church could not afford to hire a contractor; therefore, the members determined they would perform much of the work themselves. The church members agreed to designate the defendant, who was both a church member and a member of the church’s Board of Directors, as the church’s “subcontractor.” A document memorializing that agreement was signed by the church’s pastor, a representative of the Board of Directors, and the church’s Deacon Chairman, which specified that the defendant’s services were to be rendered at no cost to the church. The defendant was solely in | ^charge of the construction project.

In 2009, a church member was notified that the church’s bank account was overdrawn. After receiving copies of checks drawn on the church’s account, the church member became convinced that the church’s finances were not being handled appropriately and notified law enforcement. Sergeant Lance Kennedy with the Louisiana State Police began investigating the matter. During the course of his investigation, Sergeant Kennedy subpoenaed records, interviewed witnesses, including the defendant, and discerned that the defendant entered into the following schemes to enrich himself:

$80,000.00 Donation

In December of 2008, a check in the amount of $80,000 was issued to the church by Feliciana’s Enrichment Center, Inc. The defendant presented the check to Highlands Bank in St. Francisville, and received a cashier’s check in the amount of $15,000 payable to E.C. Construction, and a cashier’s check in the amount of $65,000 payable to the church. The $15,000 cashier’s check was endorsed by both “E.C. Construction” and “J.C. Construction,” with $13,000 deposited into the defendant’s personal bank account and $1,265.30 used to make a payment on a loan owed by the defendant. The $65,000 cashier’s check was deposited into the church’s account at Bank of St. Francisville. At the same time, two checks, each in the amount of $25,000, were drawn on the church’s account. The first was payable to John B. Perry and included the notation “Contra[c]tor Services” and the second was payable to David Deloach and included the notation “Sub-Contra[c]tor.” Checks drawn on the bank’s account required two authorized signatures. Both of the $25,000 checks were signed by authorized signatories Carol Cobb (the defendant’s wife who was also the church’s secretary) and Louisa Jones (Carol Cobb’s mother who was also the church’s under-secretary).

|4The investigation revealed that the above described transactions were a scheme to pass insurance money received by the Enrichment Center through the church and into the hands of the Enrichment Center’s president, Oliver Wingfield, and vice-president, George Veal. Of the $80,000 donated by the Enrichment Center to the church, the church ultimately kept $15,000, Wingfield received approximately $23,500 from Deloach, and Veal received money from Perry. The balance of the donation, represented by the $15,000 cashier’s check payable to E.C. Construction, was negotiated by the defendant, with a portion deposited into his personal account and a portion used to make a personal loan payment.

Payment for Steeple Construction

The church issued a check dated May 27, 2009, to the defendant in the amount of $5,120.83 with the notation “Steeple (Mtrl & Labor).” The check was signed by Carol Cobb and Louisa Jones. On May 28, 2009, the defendant presented that check to Bank of St. Francisville, received $1,570.83 in cash, and deposited the $3,550 balance into his personal checking account. Sergeant Kennedy’s investigation revealed that the defendant paid laborers only $4,000 to build the church’s steeple in early 2010.

Payments to Jerome Gray

During the course of the construction project, the church began paying some individuals for their labor. Checks were issued to Jerome Gray for his work at the church, which Gray asked the defendant to cash. The investigation revealed eleven checks payable to Gray. Four of those checks bear the names of both Gray and the defendant as endorsers. During the investigation, Gray denied signing those checks or receiving the money payable by them. The total amount of those checks | r,exceeded $500.

The defendant maintains that he did not misappropriate any church funds. On appeal the defendant argues that the evidence was insufficient to support the three convictions and that his trial counsel was so ineffective as to undermine confidence in the jury’s verdicts.

SUFFICIENCY OF THE EVIDENCE

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See La.Code Crim. Pro. art. 821(B); State v. Ordodi, 06-0207 (La.11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, Louisiana Revised Statute 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patomo, 01-2585 (La.App. 1 Cir. 6/21/02), 822 So.2d 141,144.

Louisiana Revised Statute 14:67A provides:

Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

To support a conviction of theft, the State must prove that the defendant | ^misappropriated or took a thing of value that belonged to another, without the consent of the owner, with the intent to permanently deprive the owner of that which was misappropriated or taken. State v. Richey, 13-228 (La.App. 5 Cir. 10/30/13), 128 So.3d 1143,1150. The State must also prove the value of the stolen thing because the thing’s value is determinative of both the severity of the offense and the degree of punishment upon conviction. State v. Ramsdell, 06-644 (La.App. 5 Cir. 12/27/06), 949 So.2d 508, 511; see also La. R.S. 14:67B. Here, the defendant was charged and convicted of three counts of theft of over $500.

Counts 1 and 2

($80,000 Donation and Payment for Steeple Construction)

It was established at trial that Feli-ciana’s Enrichment Center agreed to donate $80,000 to the church from fire insurance proceeds. The Enrichment Center’s president, Wingfield, vice-president, Veal, and the defendant agreed that the Enrichment Center would donate $80,000 to the church, with the understanding that $50,000 would be returned to Wingfield and Veal. The defendant characterized the $50,000 as money that was “donated back.” The defendant presented the $80,000 donation check payable to the church to the bank in exchange for a $65,000 cashier’s check payable to the church and a $15,000 cashier’s check payable to E.C. Construction.

The defendant deposited ■ the ' $65,000 cashier’s check into the church’s account, which covered two checks drawn on the church’s account in the amounts of $25,000, payable to Perry and Deloach, respectively. Upon receipt, Perry and Deloach forwarded money to Wingfield and Veal, accomplishing the “donation back.” After the investigation of the defendant commenced, Wingfield, Veal, and the defendant met and agreed that they would tell the police that Deloach was paid as a consultant. At trial Wingfield read a portion of his transcribed interview with police, in which he stated that his son-in-law, Deloach, had not done any consulting 17work. Deloach also testified that he had never done any work for the church.

The $15,000 cashier’s check made out to “E.C. Construction” was ostensibly for Earl Comena, a carpenter who worked on the construction project. Comena testified that he “was just going to donate some help, but they still gave me something,” though it was not “a whole lot.” Comena explained that the defendant primarily paid him in cash, but in one situation, the defendant called him from the bank and Comena authorized the defendant to endorse a check for him and bring him cash. Comena stated he only authorized the defendant to endorse the one check, and was sure it was for an amount less than $2,500. However, Comena admitted that he may have authorized the defendant to endorse the $15,000 check.

The $15,000 cashier’s check was endorsed with both “E.C. Construction” and “J.C. Construction.” The defendant has no construction company and is neither a licensed nor bonded contractor. Of the $15,000, $13,000 was deposited into the defendant’s bank account, and $1,265.30 was used to make a monthly payment the defendant owed on a loan -with Feliciana Federal Credit Union. The defendant testified that he deposited the $15,000 cashier’s check into his personal account and used it “as [he] saw fit to advance the church.” The defendant testified that Comena was paid for his work, but not out of the $15,000 cashier’s check.

As to the payment for the steeple construction, the State introduced into evidence a check in the amount of $5,120.83, payable to the defendant, and drawn on the church’s account. The reference line includes the notation “Steeple (Mtrl & Labor).” The defendant deposited that check into his bank account on May 28, 2009, and received $1,570.83 in cash. David Hall, Sr., testified that he and his son constructed the church’s new steeple in January or February of 2010, and were paid as work was completed. An affidavit dated May 14, 2010, with Hall as the purported affi-ant, was introduced into evidence at trial, which stated that Hall |sreceived $5,000 to build the steeple and was paid in May and June of 2009 for the work. It further stated that construction was delayed because of problems with the church. However, Hall testified that, while his signature was on the affidavit, he had never seen the affidavit and did not sign it. Rather, Hall recollected receiving cash payments in early 2010 that totaled approximately $4,000.

The defendant contends that the church’s Board of Directors appointed him as contractor for construction of a new church and that bank representatives who testified did not indicate that he conducted any unauthorized or illegal transactions. He contends that the State failed to prove lack of consent or fraud with regard to each of the three counts. Regarding the $80,000 donation, the defendant argues:

[The defendant] did not promise the church it would get all of the $80,000. He told the church they were going to have to basically serve as a conduit for most of that, and the church agreed. There was no fraud against the church. It may have been an unusual scheme, and it may have contravened IRS regulations. But it was not theft.

Regarding the payment for the steeple, the defendant contends that he paid to have the steeple built and it was built.

The jury, having heard the testimony and viewed the evidence, and notwithstanding any inconsistencies, found the defendant guilty on these counts. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact’s determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfin-der’s determination of guilt. State v. Taylor, 97-2261 (La.App. 1 Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases. | qState v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La.App. 1 Cir.1985).

When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La.1984). The defendant maintains that there was no theft because the church approved his actions and the steeple was built. In finding the defendant guilty, the jury apparently rejected the defense’s theories of innocence.

Regardless of whether some portion of the $15,000 check that was deposited into the defendant’s account was used to pay Comena or to make authorized payments, it is undisputed that $1,265.30 of that money was used by the defendant to make a personal loan payment. The taking of $1,265.30 alone, which was clearly designated for the church, was enough to satisfy the elements of theft over $500 as to count one. Further, accepting Hall’s testimony as true, only $4,000 was used to construct the steeple. The jury could have reasonably concluded that the defendant took or misappropriated the balance of the church funds designated for payment of the new steeple. This evidence was sufficient to satisfy the elements of theft of over $500 as to count two. The guilty verdicts reflect the reasonable conclusion that the defendant misappropriated church funds by means of fraudulent conduct and, in using that money for his personal benefit, permanently deprived the church of its money, and further that the defendant enriched himself with church money while at the same time having the steeple built.

After a thorough review of the record, we find that the evidence supports the | miur/s verdicts. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of these counts of theft of over $500.

Count 3

(Payments to Jerome Gray)

As to the payments to Jerome Gray, the State introduced into evidence multiple cheeks drawn on the church’s account payable to Jerome Gray, who worked as a laborer on the construction project. The checks were endorsed with the names of both Jerome Gray and the defendant. Gray testified that he had the defendant cash his checks and that he always received his money. Gray denied that there were any cheeks that the defendant cashed but did not give him the money. The State then questioned Gray about his taped interview with police in which Gray stated that he did not receive money for some checks that the defendant endorsed. Gray then recanted the prior statement and testified that he had been threatened and made to make the statement. Noting that Gray’s trial testimony directly contradicted his prior statement to police, the State offered and the trial court accepted into evidence the audiotape of Gray’s interview with police. The audio-taped interview was played for the jury.

During the audiotaped interview, Gray reviewed checks drawn on the church’s account that were payable to him and endorsed with both his name and the defendant’s. Gray denied receiving funds for four checks and marked copies of those checks with his initials. After the interview was played for the jury, the State introduced into evidence the initialed copies of those checks. The State then questioned Gray about that evidence. Gray identified his initials and explained that he marked the checks with his initials because his signature is not on the checks, but stated that he had given the defendant permission to sign his name. He further Intestified that he received all of the money, which he may have forgotten at the time of his interview. The State concluded its questioning by asking Gray, “You didn’t get some of the money that were [sic] reflected on these checks, right?” To which Gray answered, “I can’t remember.”

In response to questioning by defense counsel Gray, further explained that he was paid for his labor by check, and sometimes the defendant gave him cash from the defendant’s pocket since he had no way to cash his checks. Gray testified that he was unable to cash his checks, so when he received them he asked the defendant to cash them. Gray testified that at all times, he authorized the defendant to cash his checks and that the defendant paid him for the work he did on the church. Gray further testified that he was paid for all of the checks that the defendant signed with Gray’s name, pursuant to Gray’s authority. Gray denied that the defendant stole any money from him from checks received from the church.

Gray’s statement to police that he did not receive money for four checks, the total of which exceeded $500, which the defendant endorsed with Gray’s name and the defendant’s name, is the sole evidence presented by the State as to count three to establish that the defendant violated Louisiana Revised Statute 14:67A. Thus, the State relied on the prior inconsistent out-of-court statement by Gray to prove the truth of the matter asserted — that the defendant cashed the checks payable to Gray and took the money, which totaled more than $500.

Hearsay is a statement, other than one made by the declarant while testifying, offered into evidence to prove the truth of the matter asserted. La.Code Evid. art. 801C. Gray’s prior audiotaped interview meets this definition. While a witness’s prior inconsistent statement can be used to attack the credibility of that witness, until the 2004 amendment to Louisiana Code of Evidence article 801D, it could not be used as substantive evidence of a defendant’s guilt. See La.Code 112Evid. art. 607D(2); State v. Cousin, 96-2973 (La.4/14/98), 710 So.2d 1065, 1069; State v. Allien, 366 So.2d 1308, 1311 (La.1978); State v. Ray, 259 La. 105, 249 So.2d 540, 542 (La.1971).

D. Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(a) In a criminal case, inconsistent with his testimony, provided that the proponent has first fairly directed the witness’ attention to the statement and the witness has been given the opportunity to admit the fact and where there exists any additional evidence to corroborate the matter asserted by the prior inconsistent statement [ ]

[Emphasis added.] Thus, Article 801D(l)(a) now provides that a prior inconsistent statement is not hearsay and can be considered for the truth of the matter asserted, if the statement is corroborated. State v. Harper, 07-0299 (La.App. 1 Cir. 9/5/07), 970 So.2d 592, 601, writ denied, 07-1921 (La.2/15/08), 976 So.2d 173.

The State presented no evidence to corroborate Gray’s audiotaped interview in which he stated that he did not receive money payable to him by checks drawn on the church’s account that were cashed by the defendant. Although the checks endorsed with the names of Gray and the defendant were introduced as evidence, those checks alone do not establish that the defendant took the amounts represented, without the consent of the owner, and with the intent to permanently deprive the owner of that which was taken, as required for a conviction of theft. See La. R.S. 14:67A. Without additional corroborating evidence, Gray’s prior inconsistent statement cannot be used as substantive evidence of the defendant’s guilt.

Defense counsel did not object to Gray’s audiotaped interview being introduced into evidence and played for the jury. Ordinarily, hearsay evidence that | isis not objected to constitutes substantive evidence and may be considered by the trier of fact to the extent of any probative or persuasive powers that it might have. Allien, 366 So.2d at 1311; State v. Harris, 444 So.2d 257, 262 (La.App. 1 Cir.1983), unit denied, 445 So.2d 1234 (La.1984). However, the Louisiana Supreme Court has recognized that uncorroborated hearsay evidence in the form of an out-of-court statement by a witness who later denies its truth, is not alone sufficient to sustain a criminal conviction. Allien, 366 So.2d at 1311; see also State v. Laprime, 437 So.2d 1124, 1128 (La.1983) (Lemmon, J., concurring).

Gray’s audiotaped interview with the police was made out of court, was not made under oath, and was denied by Gray at trial as being untruthful. In reviewing the sufficiency of the evidence to sustain the conviction on count three, we must consider that the statement is not non-hearsay under Article 801D(l)(a) and, without additional corroborating evidence, is insufficient evidence to support a conviction. Al-lien, 366 So.2d at 1311; see also State v. Jones, 48,624, 48,625 (La.App. 2 Cir. 1/22/14), 132 So.3d 505, 511. Because the audiotaped interview was the sole evidence of defendant’s guilt relative to count three, we reverse the defendant’s conviction and sentence for theft of over $500 on count three.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his second assignment of error, the defendant argues that his trial counsel was so ineffective as to undermine confidence in the jury’s guilty verdict.

A defendant is entitled to effective assistance of counsel under the Sixth Amend-, ment to the United States Constitution and Article I, Section 18 of the Louisiana Constitution. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that (1) his attorney’s performance was deficient, and (2) the deficiency prejudiced him, Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The error is | ^prejudicial if it was so serious as to deprive the defendant of a fair trial or “a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In order to show prejudice, the defendant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; State v. Thomas, 12-1410 (La.9/4/13), 124 So.3d 1049,1053.

A claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the district court where a full evidentiary hearing may be conducted, rather than on appeal. However, where the record discloses sufficient evidence to decide the issue of ineffective assistance of counsel when raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Bishop, 10-1840 (LaApp. 1 Cir. 6/10/11), 68 So.3d 1197, 1207, writ denied, 11-1530 (La.12/16/11), 76 So.3d 1203.

The defendant contends that defense counsel’s assistance was deficient because defense counsel failed to urge a Batson objection, object to leading questions, object to hearsay, and introduce defense exhibits into evidence in a coherent manner. After reviewing the record before us and the arguments raised, we find that the only deficiencies alleged by the defendant that are subject to appellate review are that defense counsel should have objected to the State’s hearsay evidence and to leading questions.

The defendant contends that the testimony of the State’s most damaging witness, Sergeant Kennedy, was “full of accounts of what other people told him in the course of his investigation.” The defendant asserts that most of the testimony was hearsay and had defense counsel objected when the hearsay testimony began, instead of waiting twenty pages into the testimony, “the court would probably have | ^sustained the objection ... [a]nd [Sergeant] Kennedy wouldn’t have been able to put on the smooth show he did.”

The defendant does not identify any specific instances of hearsay to which defense counsel should have objected. However, after reviewing Sergeant Kennedy’s testimony, we find that any potentially objectionable hearsay was harmless beyond a reasonable doubt because it was cumulative and corroborative of other testimony and demonstrative evidence that established the defendant’s guilt. See La.Code Crim. Pro. art. 921; State v. Spell, 399 So.2d 551, 556 (La.1981). This argument is without merit.

The defendant additionally argues that defense counsel should have objected to leading questions directed to State’s witnesses. The defendant argues that the few objections to leading questions urged by defense counsel were almost invariably sustained, and had defense counsel objected every time they should have, “almost all of their objections would have been sustained, and the [State] would not have been able to make witnesses say what [it] wanted them to say.”

A leading question is one that suggests the answer the witness is expected to give, and, in general, should not be used on the direct examination of a witness. See La.Code Evid. art. 611C; State v. Odom, 03-1772 (La.App. 1 Cir. 4/2/04), 878 So.2d 582, 592, unit denied, 04-1105 (La.10/8/04), 883 So.2d 1026. “Generally, a leading question is forgiven if it is directed to relieve a confused or nervous witness, or to clarify or substantiate a witness’s prior response. A question is not leading if it merely directs the witness to the subject matter, or the identity of the evidence.” State v. Moore, 575 So.2d 928, 932 (La.App. 2 Cir.1991) (citing La.Code Evid. art. 611C). The use of leading questions is largely within the discretion [ 1Bof trial court and only a clear abuse of discretion that prejudices the defendant’s rights will justify reversal of a conviction. Odom, 878 So.2d at 592.

Many of the allegedly leading questions cited by the defendant do not suggest an answer and are therefore not leading questions. Other questions that the defendant claims that defense counsel should have objected to were clearly offered to clarify or substantiate the witness’s prior response. After reviewing all of the questions that the defendant contends are leading and that defense counsel should have objected to, we conclude that the defendant has not shown that defense counsel’s performance was deficient and that the deficiency was so serious as to deprive the defendant of a fair trial or a trial whose result is reliable. This argument is also without merit.

The record before us does not disclose sufficient evidence for us to evaluate the remaining ineffective assistance of counsel allegations, namely that defense counsel was ineffective based on the failure to make a Batson objection and to introduce vital evidence. The record is silent as to the race of the members of the jury venire and, since the defense did not make a Batson objection, there has been no pri-ma facie showing that the State exercised peremptory challenges on the basis of race, and the burden never shifted to the State to articulate race-neutral reasons for striking jurors. This claim is more properly raised by application for postconviction relief where, if necessary, a full evi-dentiary hearing may be conducted by the district court.

[ 17SimiIarly, with regard to the defendant’s claim that defense counsel was ineffective for failing to introduce vital evidence, there is nothing in the record to indicate that there was documentary evidence other than what was introduced into evidence at trial. The claim is more properly raised by application for postconviction relief, where, if necessary, a full evi-dentiary hearing may be conducted.

Considering the foregoing, we find no merit to the defendant’s argument that defense counsel’s failure to object to hearsay testimony or to leading questions rendered his assistance so ineffective as to undermine confidence in the jury’s guilty verdict. Moreover, after considering the totality of the evidence before the jury, we do not find a reasonable probability exists that, absent the alleged errors of defense counsel, the jury would have had a reasonable doubt as to the defendant’s guilt. See State v. Hilton, 99-1239 (La.App. 1 Cir. 3/31/00), 764 So.2d 1027, 1036, writ denied, 00-0958 (La.3/9/01), 786 So.2d 113. The remainder of the defendant’s allegations cannot be reviewed on appeal.

CONCLUSION

For the foregoing reasons, the defendant’s convictions on counts of one and two of theft of over $500 are affirmed. The sentences imposed on counts one and two are also affirmed. The defendant’s conviction and sentence on count three of theft of over $500 are reversed.

CONVICTIONS AND SENTENCES ON COUNTS ONE AND TWO AFFIRMED; CONVICTION AND SENTENCE ON COUNT THREE REVERSED.

      . All references to Section 14:67 are to the version in effect prior to its 2010 amendment unless otherwise noted.

      . The church is also known as the "Church of Weyanoke.”

      . Wingfield admitted that he entered "a plea of nolo contendré or guilty in connection with a scheme” between the Enrichment Center and the church. Deloach and Perry similarly testified that they pled guilty to charges related to the scheme.

      . Part of A of Section 14:67 was unchanged by Louisiana Acts 2010, Number 585, Section.

      . The defendant does not argue on appeal that defense counsel was ineffective for failing to object to the introduction of Gray’s audio-taped interview with the police, which we have determined is hearsay and inadmissible as evidence of guilt. Nevertheless, that issue is rendered moot by our reversal of his conviction on count three.

      . In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court adopted a three-step analysis for evaluating claims that the State’s use of peremptory challenges violated constitutional rights. First, the defendant must make a pri-ma facie showing that the State exercised peremptory challenges on the basis of race. Second, if the requisite showing is made, the burden shifts to the State to articulate a race-neutral explanation for striking the jurors in question. Third, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. See Miller-El v. Cockrell, 537 U.S. 322, 328-29, 123 S.Ct. 1029, 1035, 154 L.Ed.2d 931 (2003).

      . The defendant would have to satisfy the requirements of Louisiana Code of Criminal Procedure articles 924, et seq., in order to receive such a hearing.