author: AMY, Judge.

text:
    Robert DUNCAN, et al. v. MORENO ENERGY, INC., et al.
    No. 13-668.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.
    Rehearing Denied Jan. 30, 2014.
    Edward P. Landry, Landry Watkins Re-paske & Breaux, New Iberia, LA, for Plaintiff/Appellant: Robert Duncan.
    Randy P. Angelle, Boyer, Hebert, Abels & Angelle, Breaux Bridge, LA, for Defendants/Appellees: William Rucks, IV, Ray Flores.
    Donald L. Beckner, Baton Rouge, LA, for Plaintiff/Appellant: Robert Duncan.
    Claude F. Reynaud, Jr., Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, for Defendant/Appellee: Moreno Energy, Inc.
    David M. Thorguson, Bourgeois Thorgu-son, L.L.C., Morgan City, LA, for Defendants/Appellee: Carolyn Blanchard, Michel B. Moreno.
    Mark J. Mansfield, Dutel & Tranchina, LLC, Covington, LA, for PlaintiffAppel-lee: Charles Hodges.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

hThe plaintiff, a minority shareholder in a corporation, alleges that the majority shareholder, and others, breached fiduciary duties he alleges were owed to him as a shareholder. In particular, he contends that those actions resulted in the devaluation of his initial ownership interest in the corporation. The plaintiff additionally advanced causes of action in fraud and breach of contract. Following a bench trial, the trial court granted motions for involuntary dismissal in favor of the defendants. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

This matter involves a series of corporate actions involving three distinct corporate entities. The plaintiff, Robert Duncan, was initially the majority shareholder in 3-D Directional Drilling, Inc. Charlie Hodges and Michel Moreno were also significant shareholders in the corporation.

In late 1997 and early 1998, Mr. Moreno sought to merge his company Moreno & Associates, Inc., along with 3-D Directional Drilling and Dynamic Industries, Inc., into one entity, Moreno Energy Services, Inc. (MES). MES distributed stock reflective of each shareholder’s contribution to the newly formed corporation, whether through ownership interest in one of the predecessor companies, or by capital contribution. As pertinent to this matter, MES issued 875,000 shares of common stock to Mr. Moreno and 50,000 shares to Williams Rucks, IV (in exchange for a capital contribution). MES further issued Series B Preferred Stock, assigning that stock a $100 par value. Mr. Duncan received 18,000 shares of the Series B Preferred Stock and Mr. Hodges received 6,000 [¡.shares of that stock. Ray Flores, a shareholder in the predecessor company, Moreno & Associates, Inc., also received Series B Preferred Stock, as did others.

As a component of the merger, Mr. Duncan and Mr. Hodges executed employment agreements with MES to continue in their work functions in its directional drilling division. The employment agreements included salary provisions as well as non-competition provisions.

Following the 1998 merger, Mr. Moreno served as the Chief Executive Officer and President of the newly formed MES. He further performed the day-to-day operations of the corporation and, per the terms of his employment agreement, was “responsible for the development and execution of short-term and long-term plans and goals in all functional areas of the Company!,]” among other duties. The employment agreement further required that his actions were “reviewable by requisite action of the Board and shareholders of the Company in accordance with the Articles of Incorporation, the By-Laws of the Company, and applicable law[.]”

Testimony and documentary evidence indicate that, following the roll-up merger, MES faced financial difficulties during the subsequent two-year period, including those faced by the 3-D Directional Drilling division. In attempting to relieve MES of the liabilities associated with 3-D Directional Drilling, negotiations commenced for the assets and liabilities of that division to be carved from the company and sold to 3-D Acquisition Company, LLC. In pursuit of that transaction, both Mr. Duncan and Mr. Hodges signed a September 1999 agreement whereby they were released from non-competition agreements cited above. In return, Mr. Duncan and Mr. Hodges agreed for MES to have the right to convert their shares of Series B Preferred Stock into MES common stock. As seen below, |3the question of whether MES abided by the terms of that agreement, with regard to conversion, is at issue herein.

In October 1999, as reflected in an Asset Purchase Agreement entered into evidence, the operations of the former 3-D Directional Drilling were terminated and all assets sold to 3-D Acquisition. A contemporaneously confected Amendment to Employment and Stock Purchase Agreement terminated Mr. Duncan’s and Mr. Hodges’ employment with MES so that the two could begin employment with 3-D Acquisition. The amended agreement formally terminated the non-competition agreement, as well as other restrictions. After that point, neither Mr. Duncan nor Mr. Hodges performed further services for MES. Both, however, retained their shares of Series B Preferred Stock in the company.

Testimony reflects that MES continued in financial difficulty through the subsequent period and was unable to meet certain obligations with its lenders. Mr. Moreno testified that he did not draw a salary for several years. However, the Directors of MES issued stock bonuses to Mr. Moreno on four occasions (August 31, 2001, August 31, 2002, January 31, 2004, and August 18, 2004) to reflect his ongoing efforts to reduce MES’s indebtedness and turn it toward profitability.

The record reveals that MES took certain steps to convert Mr. Duncan’s and Mr. Hodges’ Series B Preferred Stock to MES common stock. By August 2001 letter, MES counsel informed the former shareholders of the ongoing financial difficulties and management’s desire to have the MES balance sheet “cleaned up” in order keep the company viable and attractive to investors. The letter explained that Mr. Moreno would like “to retire the Series B Preferred Stock ($100 par value) |4in MES[.]” The letter requested that the men submit an offer to sell their shares to MES. Both men testified that they did not respond to the letter’s requests.

In November 2001, Mr. Moreno again requested by letter that Mr. Duncan and Mr. Hodges sell their stock to MES. He opined that the stock was “worth little, if anything” and that it could “remain on the books forever without any payments unless there is a public offering, which, as you are aware, is highly unlikely in the foreseeable future.” However, Mr. Moreno requested to purchase the stock in order to simplify the MES balance sheet, making the business more attractive for potential investors. Mr. Moreno proposed to buy Mr. Duncan’s 1 ¿18,000 shares for $20,000 and to forgive his “verbal commitment to reimburse the $40,000” that Mr. Moreno had “originally invested in 3-D[.]” Mr. Moreno proposed to purchase Mr. Hodges’ 6,000 shares for $20,000. He further noted that, if they rejected the offer, MES’s primary lender asked all shareholders to complete financial statements. Again, neither Mr. Duncan nor Mr. Hodges complied with Mr. Moreno’s requests.

Subsequently, in December 2003, MES amended its Articles of Incorporation to allow for, among other things, conversion of Series B Preferred Stock to common stock. MES notified Mr. Duncan and Mr. Hodges of its intent to exercise its right to convert their respective shares into common stock. Thereafter, both Mr. Duncan and Mr. Hodges signed an “Agreement to Accept Common Shares in Exchange for Series B Preferred Shares” dated January 5, 2004. By that agreement, Mr. Duncan “agree[d] to accept 60,000 shares of common stock of [MES] in exchange for the 18,000 shares of Series B Preferred Stock” held by him. Mr. Hodges accepted 20,000 shares of MES common stock in exchange for his 6,000 shares of Series B Preferred Stock.

Ultimately, in July 2005, and pursuant to the short form merger provisions of La.R.S. 12:112(G), MES merged into a newly formed corporation, Moreno Energy Services, Inc. (MEI). By resolution, the MEI board of directors approved the merger of MES into MEI and the cessation of MES. That resolution set forth certain terms and provisions, including the cancellation of the common stock of MES and the determination that “shareholder common stock in MES (other than the Corporation) shall be paid cash consideration of seventy cents ($.70) for each share of common stock held[.]” Mr. Duncan and Mr. Hodges were thereafter | ^offered compensation of $42,000 and $14,000, respectively, for their MES stock. They were excluded from further shareholder status in MEI.

Mr. Duncan and Mr. Hodges instituted this matter by a 2006 petition alleging, among other things, breach of fiduciary duty, breach of contract, and fraud. The petition also sought to set aside the short-form merger of MES and MEI. MEI, Mr. Moreno (as a director and shareholder of MEI), and Carolyn Blanchard (as a director and shareholder of MEI) were named as defendants in that initial petition. The matter evolved during the subsequent years, with certain claims dismissed and various defendants named and, in some instances, dismissed. In large part, however, the plaintiffs consistently alleged that various actions/inaction by the defendants damaged the value of their ownership interest in MES. The plaintiffs have largely contended that their interest should have been valued at par value for their respective ownership of Series B Preferred Stock in MES rather than the figure tendered for their common stock in MES.

The trial court considered the merits of the remaining claims in May 2012. At that time, Mr. Duncan and Mr. Hodges advanced breach of contract, breach of fiduciary duty, and fraud claims against MEI (as successor to MES), Mr. Moreno, and Ms. Blanchard. Additionally, the plaintiffs named Williams Rucks, IV, (an |7MES director, shareholder, and signatory to a Shareholders’ Agreement), and, Ray Flores, (an MES shareholder and signatory to a Shareholders’ Agreement) as defendants. During the course of the multiple-day trial, Mr. Hodges settled and dismissed his claim against all defendants. Mr. Duncan continued in the proceeding. Ultimately, the trial court granted the defendants’ motions for involuntary dismissal pursuant to La.Code Civ.P. art. 1672(B).

Mr. Duncah appeals, presenting the following issues for review:

1. Did the Trial Court make errors of law when it ruled that the burden of proof is on the plaintiff, who is owed a fiduciary duty, to prove that defendant, who owed the fiduciary duty, breached that duty?
2. Did any of the acts committed by Moreno and/or Rucks, IV set out herein constitute a breach of the fiduciary duty Moreno and/or Rucks IV owed to Duncan?
3. Did the acts of Moreno and MES breach the contract between the parties and Duncan?
4. Did acts of Moreno constitute fraud pursuant to Civil Code Article 1953?

Discussion

Breach of Fiduciary Duty

Central to Mr. Duncan’s claim is his contention that the defendants breached fiduciary duties owed to him as an MES shareholder. In particular, he questions actions taken after MES’s 1999 sale of the assets of 3-D Directional Drilling. Notably, he asserts that he was not provided with information regarding the MES | ¡¡stock bonuses awarded to Mr. Moreno. This lack of information, Mr. Duncan contends, led him to believe that, when he agreed to transfer his Series B Preferred Stock into common stock, he was doing so for like value. Yet, he suggests that he was left only with stock that had been devalued by the issuance of those stock bonuses. Mr. Duncan also questions the propriety of the issuance of the stock bonuses, themselves.

Entitled “Relation of directors and officers to corporation and shareholders,” La. R.S. 12:91 provides the burden of proof applicable to a breach of fiduciary claim as follows:

A.Officers and directors shall be deemed to stand in a fiduciary relation to the corporation and its shareholders, and shall discharge the duties of their respective positions in good faith, and with that diligence, care, judgment, and skill which ordinary prudent men would exercise under similar circumstances in like positions; however, a director or officer shall not be held personally liable to the corporation or the shareholders thereof for monetary damages unless the director or officer acted in a grossly negligent manner as defined in Subsection B of this Section, or engaged in conduct which demonstrates a greater disregard of the duty of care than gross negligence, including but not limited to intentional tortious conduct or intentional breach of his duty of loyalty. Nothing herein contained shall derogate from any indemnification authorized by R.S. 12:83.
B. As used in this Section, “gross negligence” shall be defined as a reckless disregard of or a carelessness amounting to indifference to the best interests of the corporation or the shareholders thereof.
C. A director or officer who makes a business judgment in good faith fulfills the duty of diligence, care, judgment, and skill under Subsection A of this Section if the director or officer:
(1) Does not have a conflict of interest with respect to the subject of the business judgment.
(2) Is informed with respect to the subject of the business judgment to the extent the director or officer reasonably believes to be appropriate under the circumstances.
(3) Rationally believes that the business judgment is in the best interests of the corporation and its shareholders.
|flD. In fulfilling his duties under this Section, a director or officer is entitled to rely upon records and other materials and persons as specified in R.S. 12:92(E).
E. A person alleging a breach of the duty of diligence, care, judgment, and skill owed by an officer or director under Subsection A shall have the burden of proving the alleged breach of duty, including the inapplicability of the provisions as to the fulfillment of the duty under Subsections C and D and, in a damage action, the burden of proving that the breach was the legal cause of damage suffered by the corporation.
F. The provisions of this Section shall apply to all business organizations, whether incorporated or unincorporated, formed under Louisiana law.

Before granting the motion for involuntary dismissal on Mr. Duncan’s breach of fiduciary duty claim, the trial court initially resolved Mr. Duncan’s contention that the transaction at issue breached duties owed under the 1999 “Agreement” wherein Mr. Duncan (as well as Mr. Hodges) granted MES the prospective right to convert the Series B Preferred Stock into common stock. The trial court concluded that Mr. Duncan could not complain of the ultimate conversion of the stocks, thereunder, due to the February 2004 “Agreement to Accept Common Shares in Exchange for Series B Preferred Shares[.]” The court explained:

[A]s I understand this argument, is that there was a violation of the agreement because the Plaintiffs claim that they were entitled to more shares, a greater number of shares, of common stock in Moreno Energy Services, Inc. I mean that [sic] are various reasons why it should be more; but when it was converted, the number of shares they received, based on the September 3, 1999 Agreement, they should have received more shares than they did receive— more common shares.
By [counsel for Mr. Duncan]:
Yes, sir.
By the Court:
Well, on February 2nd, 2004 Robert Duncan signed an agreement accepting the common shares in exchange for his Series B shares, acknowledging receipt of the shares evidencing such shares of 11ftcommon stock and agreed to accept six thousand shares (6,000) shares of common stock in Moreno Energy [Services], Inc. in exchange for eighteen thousand (18,000) shares of Series B stock of the company held by him, the company being Moreno Services, Inc.
On April 23rd, 2004, Mr. Hodges signed an agreement and says that, by signing below, he agrees to accept twenty thousand (20,000) shares of common stock in Moreno Energy Services, Inc. in exchange for six thousand (6,000) shares of Series B preferred stock of the company.
So they accepted the exchange. They cannot now complain that they were shorted.

On appellate review, a trial court’s ruling on a motion for involuntary dismissal is reviewed for manifest error. Having reviewed the record, we find no such error in the trial court’s determination. See Kramer v. Petroleum Helicopters, Inc., 08-133 (La.App. 3 Cir. 11/26/08), 999 So.2d 101, writ denied, 09-0402 (La.5/1/09), 6 So.3d 811.

Rather, testimony established that, in 1999, the 3-D Directional Drilling division of MES was in a period of financial difficulty. Mr. Hodges confirmed at trial that Mr. Duncan informed him that MES would be closing 3-D Directional Drilling due to lack of profit. In order to enable the acquisition of 3-D Directional Drilling by 3-D Acquisition, the September 1999 “Agreement” entered into by MES, Mr. Duncan, and Mr. Hodges was completed. That Agreement, referenced by the trial court, released the two men from the non-competition agreements and further provided that:

Section 2. In exchange for granting a release of the noncompetition agreements that affect Duncan and Hodges, Duncan and Hodges agree that Moreno shall have the right, upon fifteen (15) days written notice to Duncan and Hodges, to require that any and all of Duncan’s and Hodges’ Series B Preferred Stock ($100 par value) in Moreno be converted into Moreno common stock. Upon conversion, Duncan and Hodges shall be entitled to receive the number of common shares equal to the par value of the aggregate number of shares of Series B Preferred Stock to be converted, divided by thirty [ n($30) dollars (the “Conversion Rate”). The Conversion Rate shall be automatically adjusted, from time to time, to take into effect any stock split, stock dividend or other type of dividend (a “Conversion Adjustment Event”) paid on or distributed with respect to the Moreno common stock such that, upon conversion, Hodges and Duncan would receive that number of shares or other property that they would have received if their conversion had occurred immediately prior to any Conversion Adjustment Event(s). When required for a complete conversion of the Series B Preferred Stock, Moreno shall issue fractional shares, script or other certificates evidencing such fractional shares, calculated to the nearest one-tenth (1/10) of a share; provided, however, that fractional shares shall have no voting rights.

Unquestionably, Mr. Duncan acquiesced in the conversion of his Series B Preferred Stock to common stock and, in exchange, received a release from the non-competition agreement. He explained that he then began working for 3-D Acquisition. However, as he did at trial, Mr. Duncan asserts that the defendants breached a fiduciary duty when they failed to adequately compensate him for his Series B Preferred Stock per Section 2 of the 1999 Agreement.

Yet, and as recognized by the trial court, Mr. Duncan, in 2004, entered into an “Agreement to Accept Common Shares in Exchange for Series B Preferred Shares.” That agreement plainly provided that:

By signing below, Robert H. Duncan (the “Shareholder”) agrees to accept 60,-000 shares of common stock of Moreno Energy Services, Inc. (the “Company”) in exchange for the 18,000 shares of Series B Preferred Stock of the Company held by him, acknowledges receipt of the common stock certificate No. 16 evidencing such shares of common stock, and agrees to promptly return or destroy the 18,000 shares of Series B Preferred Stock of the Company to be held by him, which in any event as of January 5, 2004 shall be cancelled and deemed no longer outstanding.

As the trial court observed, Mr. Duncan accepted that exchange and may not now contest that conversion. Rather, an offer was made for a distinct number of common shares and he accepted that offer. He did so without an apparent contest in accepting that conversion rate. While Mr. Duncan claims that he was wrongly [12Ied to believe that he was trading his Series B Preferred Stock for “like value” common stock, he has not pointed to a specific obligation, whether by governing corporate articles or by agreement, to provide him with the financial details of MES he claims were due. A large part of the financial information Mr. Duncan claims he was entitled to pertains to the MES Board’s issuance of stock bonuses to Mr. Moreno, the propriety of which is discussed below. Again, however, Mr. Duncan does not refer to any particular obligation owed to him to disclose those bonuses prior to his acceptance of a defined number of common stock shares. In short, the record reveals no evidence indicating that the trial court erred in dismissing the breach of fiduciary duty claim on the basis that he was misled into accepting lesser valued stock.

In a related argument, and one that pertains to the fraud argument below, Mr. Duncan questions the MES Board’s motivation in issuing the stock bonuses to Mr. Moreno. Mr. Duncan notes in brief that Mr. Moreno’s Service and Employment Agreement sets forth certain duties required of Mr. Moreno in exchange for the compensation described therein. Mr. Duncan asserts that the justification for the stock bonuses included duties required of Mr. Moreno by that agreement as a foundational matter and, thus, no valid basis for the bonus existed.

In rejecting Mr. Duncan’s argument in this regard, the trial court focused on the stock bonuses of January 31, 2004 and August 18, 2004, stating:

According to the Minutes of the Board and the testimony of the Board members, they testified those bonuses were granted ... because of exceptional work of Mr. Moreno. Nobody could testify why they picked that number or why they picked the value that they put on that number of shares; but they all testified he had done exceptional work during that period.
There has been no evidence as to what the value of that work was, no evidence of how they came up with the numbers to award.
h3It is also noted at the time they were awarded, the Plaintiffs were common shareholders and had already given up their right to place a member on the Board as preferred shareholders. So the Board was authorized to grant the bonuses.
A common shareholder is not entitled to notice of Board Meetings. They are entitled to information regarding the fi-nancials of the corporation and what goes on in Board Meetings if they request it. They never requested that information. They were, at that point, not entitled to Notice of Board Meetings.
There is no evidence that this action was taken specifically for the purpose of diluting the interest of other shareholders. All the evidence is that the Board wished to reward Mr. Moreno for a job well-done, but did not have the cash to do so; so they gave him stock.
The evidence was also that all his efforts were to keep the corporation going in hard times. The last few years things were getting better and he was rewarded for that. There is no evidence that it was done to harm the position of the minority shareholders. It had some effect on their position in the corporation, but there is not evidence that that was the intention of the Board in doing that.

Again, the trial court’s ruling is supported by the record. Testimony indicated that MES struggled financially for a multi-year period after its formation. In fact, Mr. Moreno testified that he did not receive a salary for a period of three years, but that he continued to work in an effort to make the company lucrative. He and Board members testified at length regarding efforts to improve MES’s position with its creditors during that difficult period.

Additionally, and although Mr. Moreno’s job description was expansive, each of the MES Board’s decisions to issue the stock bonuses recognized that the compensation was provided for particularized efforts. For example, the January 31, 2004 bonus, evidenced by an “Action by Unanimous Written Consent of the Directors in Lieu of Meeting of Moreno Energy Services, Inc.” set forth a resolution that:

1,900,000 shares of common stock of Moreno Energy Services, Inc., having a value of $9,500.00, be issued to Michel B. Moreno for his [14efforts in completing the acquisition of the Construction DMsion assets of Production Management Industries, L.L.C., from Superior Energy Services, the value of which exceeds the value of the stock being issued; and that the proper officers of this corporation are authorized and directed to issue a certificate of stock of this corporation evidencing this action upon obtaining any consents required by any contract, loan agreement, shareholder agreement or other obligation of this corporation.

Similarly, the minutes of the August 18, 2004 MES Board of Directors meeting included a resolution that: “1,900,000 shares of common stock be issued to Michel B. Moreno as a result of his work in acquiring the assets of Advanced Offshore Services, the value of which exceeds the value of the stock being issued[.]”

Given the evidence of the Board’s recognition of Mr. Moreno’s service during a period of financial difficulty, we find no manifest error in the trial court’s rejection of the contention that there was no basis for the stock bonuses. Instead, the record supports the trial court’s finding that the Board sought to reward Mr. Moreno during a period of poor cash flow.

Burden of Proof — Breach of Fiduciary Duty

With regard to the breach of fiduciary duty claim, Mr. Duncan asserts that the trial court erred in requiring him to satisfy the burden of proof enunciated in La.R.S. 12:91(E) on certain breach of fiduciary duty claims involving transactions in which Mr. Moreno received a benefit, e.g., MES stock. Rather, citing Noe v. Roussel, 310 So.2d 806 (La.1975), Mr. Duncan contends that the defendants were required to prove that Mr. Moreno acquired those assets in good faith and that the transactions were entered into at arm’s length. He suggests that the defendants did not establish good faith in light of the benefit received by Mr. Moreno to the detriment of the stock of the common shareholders.

11fiCertainly, La.R.S. 12:91(E) places the burden of proof in a breach of fiduciary duty claim on the person seeking to establish that claim. Additionally, however, La. R.S. 12:84 sets forth certain standards by which an interested director may enter into a transaction beneficial to himself or herself. In this regard, a panel of this court has explained that “[a]n interested director bears the burden of proving his good faith in entering into the contract as well as the inherent fairness of the contract from the standpoint of the corporation. This requires the director to prove that the contract was essentially an arm’s length transaction.” Church Point Wholesale Beverage Co., Inc. v. Voitier, 97-650, p. 9 (La.App. 3 Cir. 1/14/98), 706 So.2d 1015, 1019-20 (citing Noe, 310 So.2d 806; Woodstock Enter., Inc. v. Inter. Moorings & Marine, Inc., 524 So.2d 1313 (La.App. 3 Cir.1988)), writ denied, 98-0379 (La.4/9/98), 717 So.2d 1145.

1 ^Recall that this case was dismissed at the close of Mr. Duncan’s evidence. Even without the defendants’ presentation' of their own evidence, the trial court’s ruling reflects its determinations that the transactions complained of by Mr. Duncan were justifiable and were not made with an intent to devalue Mr. Duncan’s shareholder status in the company. As explained above, we find that the trial court’s ruling in this regard is supported by the record.

The plaintiffs argument regarding breach of fiduciary duty lacks merit.

Fraud

Furthermore, and generally referencing the events and transactions discussed above, Mr. Duncan argues that the trial court erred in dismissing his claim for fraud. However, as excerpted above, the trial court specifically determined that the defendants did not withhold notice to which Mr. Duncan was entitled nor did the defendants take any action for the specific purpose of devaluing Mr. Duncan’s stock. Rather, the defendants acted within the confines of the notice requirements, as they pertained to Mr. Duncan, and without an intention to specifically devalue his position in the company. Those determinations are supported by the record.

Breach of Contract

Finally, Mr. Duncan also questions the trial court’s dismissal of his breach of contract claim. In this regard, he claims that he was treated differently from other minority shareholders in the corporation and that this constituted a violation of the co-sale and drag along rights provisions of the 1998 Shareholders Agreement for MES. Section 6.1 of that Agreement provides that:

|17If any Common Shareholder proposes to transfer all or any portion of its Stock (for purposes of this section, a Sale) to a third party (for purposes of this section, a Purchaser), and the remaining Common Shareholders do not exercise their first refusal rights pursuant to Article 3, then all of the Common Shareholders, as the case may be, shall have the right, exercisable by written notice to the Corporation and the Purchaser as of the expiration of its first refusal period pursuant to Article 3 (the Election Date) to require the Purchaser to purchase, on a pro rata basis (assuming all Warrants of [First Commerce Capital, Inc.] have been exercised), Shares of the Common Shareholders or their transferees, as the case may be, for the same price and on the same terms and conditions as those of the Sale....

Mr. Duncan argues that this provision required that “[w]hen MEI acquired Moreno’s common stock in MES [at the time of the short form merger], MEI was required to purchase the common stock of MES held by Duncan.”

However, in rejecting this claim, the trial court noted that the Shareholder Agreement provides, in a preceding paragraph, that:

3.1 No Securities in this Corporation shall be transferred, sold, assigned, pledged, encumbered, or in any manner alienated, unless the Securities shall first have been offered for sale to the Corporation, and if the Corporation elects not to purchase the Securities, then to each remaining Common Shareholder of the Corporation in proportion to such remaining Common Shareholder’s stock ownership in the Corporation. The Corporation or each remaining Common Shareholder shall have an option to purchase the stock to be transferred at the same price and on the same terms and conditions as the offeree shall have been offered by a third person at arm’s — length, acting in good faith.

Further, Paragraph 3.3 states that:

3.3 For the purpose of this Article 3 the restrictions on transfer and the right of first refusal do not apply to a sale, assignment, gift, or exchange by a Shareholder to or with any person whose ownership of such shares of stock would be attributed to the selling Shareholder under § 318 of the Internal Revenue Code of 1954, as amended, or by any transfer of Warrants by FCC.

In this instance, the trial court noted that no rights of first refusal existed with regard to the transfer of Mr. Moreno’s stock to MEI pursuant to Paragraph 3.1 and 3.3. Rather, the transaction was a transfer of Mr. Moreno’s stock into a [ ^corporation that he owned, MEI, and was, thus, merely attributable to him for taxation purposes. Accordingly, Paragraph 6.1, relied upon by Mr. Duncan, is inapplicable. We find no error in that determination. Rather, the transaction complained of did not involve a third party so as to implicate Paragraphs 3 and 6 of the Shareholder Agreement.

This argument lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assigned to the appellant, Robert Duncan.

AFFIRMED.

      . Mr. Moreno’s name is referred to as both "Michel” and "Michael” in the record. We adopt the former usage as reflected in the corporate documentation and counsel’s brief to this court.

      . The August 21, 2001 letter explained, in part that:
      Currently, MES is in default of its loan agreement with Bank One, and has been in default for some time. MES’s president, Mike Moreno, has been working diligently to renegotiate the financial obligations of MES and to attract an investor into the company. There is no guarantee that the bank will continue to work with the company. Indeed, the bank only recently, and reluctantly, agreed to a 30-day extension of the line of credit facility. Also, there is no guarantee that an infusion of capital from an investor will be made.
      In order to keep MES viable and to position MES to have an investor make a capital infusion, Mr. Moreno would like to try to get the balance sheet cleaned up. To that end, he would like to retire the Series B Preferred Stock ($100 par value) in MES, of which you currently are record owner of 6,000 shares. This letter follows up on the conversation you had with Mr. Moreno, in which it was discussed that you make an offer to sell your Series B Preferred Stock. We would like to receive your offer as soon as possible, preferably by the end of this week.
      Management is considering different options on how to treat the Series B Preferred Stock in any reorganization or restructuring involving a new investor. The first option is simply to leave the Series B Preferred Stock outstanding indefinitely, since it does not mature or carry a dividend. Under its current capital structure, the company has the ability to issue $10 million of Series A Preferred Stock that would be senior to Series B Preferred Stock, and would have such terms and conditions as set by the Board of Directors. Another option would be to convert all or a portion of your Series B Preferred Stock to common stock. This would result in you receiving the number of common shares equal to die par value of the aggregate number of shares of Series B Preferred Stock divided by $30. A third option is simply to purchase the Series B Preferred Stock at a mutually agreed upon price.
      At any rate, management needs to reach a decision soon on exactly what, if anything, to do with the Series B Preferred Stock. The preference is to clean up the balance sheet by buying up the Series B Preferred Stock. This option would have certain advantages to all of the parties. We would like to work with you to accomplish this objective.

      . Included in this matter's procedural history are two decisions by this court. In Duncan v. Moreno Energy, Inc., 08-786 (La.App. 3 Cir. 12/23/08), 1 So.3d 778, writ denied, 09-0470 (La.4/17/09), 6 So.3d 793, a panel of this court concluded that the plaintiffs failed to comply with the dictates of La.R.S. 12:131 and, therefore, could not attempt to invalidate the merger between MES and MEI. Neither could the plaintiffs contest the value assigned to their MES stocks. However, the panel explained the ruling did not have a "bearing on Plaintiffs' claims for monetary damages from Defendants via breach of fiduciary duties or fraud.” Id. at 788.
      Subsequently, in Duncan v. Moreno Energy, Inc., 09-1033 (La.App. 3 Cir. 3/10/10), 32 So.3d 1099, writ denied, 10-0806 (La.6/4/10), 38 So.3d 308, this court reviewed the trial court’s determination, on motion for summary judgment, that the plaintiffs' damages, if any, for the alleged loss of value of their stock would be measured before the merger of MES into MEI. That determination was affirmed. Id.

      . Louisiana Code of Civil Procedure Article 1672 provides, in part:
      B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

      . Louisiana Revised Statutes 12:84 provides that:
      A. No contract or transaction between a corporation and one or more of its directors or officers, or between a corporation and any other business, nonprofit or foreign corporation, partnership, or other organization in which one or more of its directors or officers are directors or officers or have a financial interest, shall be void or voidable solely for this reason, or solely because the common or interested director or officer was present at or participated in the meeting of the board or committee thereof which authorized the contract or transaction, or solely because his or their votes were counted for such purpose, if:
      (1)The material facts as to his interest and as to the contract or transaction were disclosed or known to the board of directors or the committee, and the board or committee in good faith authorized the contract or transaction by a vote sufficient for such purpose without counting the vote of the interested director or directors; or
      (2) The material facts as to his interest and as to the contract or transaction were disclosed or known to the shareholders entitled to vote thereon, and the contract or transaction was approved in good faith by vote of the shareholders; or
      (3) The contract or transaction was fair as to the corporation as of the time it was authorized, approved or ratified by the board of directors, committee, or shareholders.
      B. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the board of directors or of a committee which authorized the contract or transaction.

      . Louisiana Civil Code Article 1953 defines fraud as "a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.”


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Justin Robert SIZEMORE.
    Nos. 13-529, 13-530.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 18, 2013.

      Asa A. Skinner, District Attorney, Drew W. Mason, Assistant District Attorney, Terry W. Lambright, Assistant District Attorney, Leesville, LA, for Appellee State of Louisiana.
    Douglas Lee Harville, Louisiana Appellate Project, Shreveport, LA, for Defen-dani/Appellant, Justin Sizemore.
    Justin Sizemore, Angola, LA, In Proper Person.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

It The defendant was charged with second degree murder and conspiracy to commit second degree murder. Ultimately, a jury found the defendant guilty of both charges. For the defendant’s conviction for second degree murder, the trial court sentenced the defendant to life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence. For the defendant’s conviction for conspiracy to commit second degree murder, the trial court sentenced the defendant to twenty-five years at hard labor, to be served consecutively to any other sentence. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

On the morning of June 14, 2010, a passerby found the body of Christopher Hoffpauir in a ditch on the side of Garwood Busby Road. According to the State, the defendant, Justin Robert Size-more, along with Kristyn Hoffpauir, conspired to murder Christopher, who was Kristyn’s estranged husband.

The defendant was charged with second degree murder, a violation of La.R.S. 14:30.1, and conspiracy to commit second degree murder, a violation of La.R.S. 14:26 and La.R.S. 14:3o.!. The defendant’s first trial ended in a hung jury. During the defendant’s second trial, the defense made a motion for a mistrial on the basis that the State failed to provide the defense with Brady material. Although it is unclear from the record to what extent the State agreed with the defense on that issue, the record indicates that, at minimum, the State did not object to a mistrial. The trial court granted the motion for a mistrial. After the defendant’s third trial, the jury returned guilty verdicts as to both charges.

| {.Thereafter, for the defendant’s conviction for second degree murder, the trial court imposed a sentence of life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence. For the defendant’s conviction for conspiracy to commit second degree murder, the trial court imposed a sentence of twenty-five years at hard labor, to be served consecutively to any other sentence.

The defendant appeals, asserting as error that:

1. There was insufficient evidence to prove that Justin Robert Sizemore was guilty beyond a reasonable doubt of the offenses of second degree murder or conspiracy to commit second degree murder.
2. The loss of exculpatory evidence denied Justin Robert Sizemore his constitutional right of confrontation and due process.
3. Justin Robert Sizemore’s Double Jeopardy Clause rights were violated when he was tried after being forced to seek a mistrial by prosecutorial misconduct that required a mistrial to be declared.
4. The Trial Court erred by imposing an unconstitutionally harsh and excessive sentence.

The defendant has also filed a pro se brief, assigning as error therein that the evidence is insufficient to support his convictions; that the State lost exculpatory evidence which interfered with his rights to confrontation and due process; that his double jeopardy rights were violated; that there was improper contact with a juror by persons associated with the prosecution; and that Louisiana’s rales concerning non-unanimous juries are unconstitutional.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all criminal appeals are reviewed for errors patent on the face of the record. We find no errors patent which require correction.

\ ¡¡Double Jeopardy

The defendant asserts, in both his counseled and pro se briefs, that his convictions violate the constitutional prohibitions on double jeopardy due to the mistrial granted in his second trial. The constitutional protections contained in the United States and Louisiana constitutions protect criminal defendants from repeated prosecutions for the same offense. U.S. Const, amend. V; La. Const, art. 1 § 15. The standard concerning the application of the double jeopardy doctrine to cases involving mistrials was addressed in Oregon v. Kennedy, 456 U.S. 667, 675-76, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982), wherein the United States Supreme Court stated that:

Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.... Only where the governmental conduct in question is intended to “goad” the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.

Here, the record reflects that, after the defendant’s first trial but before his second trial, one of the Vernon Parish detectives interviewed Jody Thibeaux. During that interview, Mr. Thibeaux told the detective that he had heard that a loaded gun had been found in Kristyn’s bedroom at least three years before Christopher’s murder. However, the detective failed to put that information in his report, and the record indicates that it was not provided to the defendant. On the eighth day of the second trial, the defense learned that the State had information concerning Kristyn’s previous possession of a handgun. Based on the State’s failure to disclose what it contended was clearly Brady material, the defense Lmoved for a mistrial. Although it is unclear from the record to what extent the State conceded that there was a Brady violation, it appears that, at minimum, the State did not object to the trial court’s grant of the mistrial.

Before the defendant’s third trial, the defense filed a motion to quash on the basis that the State intentionally provoked a mistrial and that the prosecution was now barred by double jeopardy. The defendant argued that the State was in bad faith in failing to provide the Brady material and that the State engaged in a “continuing course of conduct” by repeatedly failing to provide Brady material. After a hearing, the trial court found that the evidence did not support a conclusion that the State intended to provoke a mistrial or that the defendant had suffered any prejudice as a result of the grant. Accordingly, the trial court denied the defendant’s motion.

Even if the State’s actions could be construed as overreaching or harassment, the defendant still had to prove that the State intended to provoke the mistrial. Our review of the record reveals that the defendant failed to do so. Thus, we find no manifest error in the trial court’s factual determination that there was insufficient evidence to prove that the State intended to provoke a mistrial and that the defendant did not suffer any prejudice as a result of the mistrial. See State v. Williams, 478 So.2d 983 (La.App. 4 Cir.1985), writs denied, 483 So.2d 1019 (La.1986), and 488 So.2d 1029 (La.1986), compare with State v. Elzey, 05-562 (La.App. 4 Cir. 1/11/06), 923 So.2d 182, writ denied, 06-395 (La.9/15/06), 936 So.2d 1253.

|¡;Thus, we find no merit to the defendant’s arguments in this regard.

Sufficiency of the Evidence

In both his counseled and pro se briefs, the defendant contends that the evidence was insufficient to support his convictions.

It is well-settled that the evidence is sufficient to support the conviction when any rational trier of fact, in viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact-finder to weigh the respective credibilities of the witnesses, and this court will not second-guess the credibility determinations of the trier of fact beyond our sufficiency evaluations under the Jackson standard of review. See State v. Richardson, 425 So.2d 1228 (La.1983).

State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983). Further, the reviewing court should give great deference to the jury’s decision to accept or reject a witness’ testimony, in whole or in part. State v. Grace, 10-1222 (La.App. 3 Cir. 4/6/11), 61 So.3d 812, writ denied, 11-961 (La.10/21/11), 73 So.3d 382.

As relevant herein, second degree murder is defined as “the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm[.]” La.R.S. 14:30.1(A). Conspiracy is defined in La.R.S. 14:26(A) as:

the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.

| ^Additionally, we note that La.R.S. 14:26(B) specifically permits prosecution for both conspiracy and the completed underlying crime. See also State v. Alexander, 43,796 (La.App. 2 Cir. 1/14/09), 2 So.3d 1168, writ denied, 09-368 (La.11/6/09), 21 So.3d 299.

The State’s primary witness was Kristyn Hoffpauir. Kristyn testified that, in the late hours of June 13, 2010, she had arranged to meet Christopher at his parents’ house. She and the defendant travelled from Rapides Parish together, and, according to her testimony, the defendant put a gun in the car before they left. On the way, the defendant struck an ice chest in the middle of the road. Kristyn testified that, after the defendant checked the damage to the front end of the car, she and the defendant continued on to Garwood Busby Road in Vernon Parish, where they discussed whether the defendant would come with her to pick up Christopher. According to Kristyn, they eventually decided that the defendant would wait on Garwood Busby Road and that Kristyn would get Christopher and return to Garwood Busby Road.

Kristyn stated that, when she came back with Christopher, they both got out of the car. The defendant then emerged from his hiding place and shot Christopher repeatedly. The forensic pathologist’s testimony indicated that at least two of Christopher’s wounds would have been fatal, and one of them likely caused instantaneous death. According to Kristyn, the defendant retrieved as many spent shell casings as he could find, but he later stated that he had not gotten all of them. Leaving Christopher’s body behind, the pair returned to Rapides Parish, stopping for drinks at a drive-thru. Further, Kristyn testified that the defendant disposed of the gun that he had used to shoot Christopher and of the clothes they were wearing when the murder occurred. Other testimony indicated that, although Kristyn led | investigators to the creek where the defendant disposed of the gun, investigators were unable to locate the murder weapon.

Kristyn denied that she knew that the defendant was going to kill Christopher. However, she admitted that she had pled guilty to manslaughter, conspiracy to commit manslaughter, and obstruction of justice in connection with Christopher’s murder. Additionally, Shayna LeBlanc testified that on the evening of Christopher’s death, Kristyn had begged her to babysit for Kristyn’s young son and to keep her cell phone. Ms. LeBlanc testified that Kristyn told her that “they” were going to “beat up Chris.”

However, there was also evidence indicating that there were inconsistencies in Kristyn’s testimony and that Kristyn had previously offered several versions of the events surrounding Christopher’s murder. She originally denied being involved. Later, she stated that the defendant had hidden in the trunk of the car and had gotten out through the back seat. One of the investigators testified that, because of the car’s design, it was physically impossible for the defendant to exit the trunk through the back seat. For some time, Kristyn maintained that the defendant hid in the trunk and got out of the trunk once they arrived at Garwood Busby Road.

Further, Kristyn denied that she knew about Christopher’s $400,000.00 life insurance policy which named her as the beneficiary. However, Jody Thibeaux testified that Kristyn had told him that she was the beneficiary of a large life insurance policy on Christopher. Mr. Thibeaux also testified that on June 14, |R2010, Kristyn told him that she had killed Christopher but that he thought it was a he. Additionally, the defense offered evidence that, several years before Christopher’s murder, family members found a loaded gun in Kristyn’s bedroom.

Additional testimony and evidence corroborated portions of Kristyn’s testimony. Investigators testified that they retrieved a red convertible from the defendant’s father’s garage. The investigators testified that the ear had front end damage, including broken lights, and that the car appeared to have been “wiped down.” However, they were able to identify what they considered to be possible blood spatter on the car, and some of those samples tested positive for “mammal blood.” Further, they located the damaged ice chest on the highway, as well as pieces that appeared to match the convertible’s broken turn signal and fog light.

The defendant chose to testify. The defendant denied conspiring with Kristyn to murder Christopher and denied that he was present at the murder scene. The defendant claimed that Kristyn lied to him about the purpose of their late-night trip to Vernon Parish. His version of the events of June 13-14, 2010, was substantially similar to Kristyn’s, until the point at which their car struck the ice chest. The defendant claimed that when he got out to check the damage and to attempt to speak with the driver of another vehicle that had stopped, Kristyn got into the driver’s seat of the car and drove off, leaving him stranded on the side of the road with no phone and no wallet. According to the defendant, Kristyn returned approximately thirty minutes later, and he noticed nothing odd about her appearance or behavior thereafter.

In State v. Hollins, 08-1033, p. 4 (La.6/26/09), 15 So.3d 69, 71-72 (footnotes and citations omitted), the supreme court addressed convictions based on accomplice testimony, stating:

| ¡¡In Louisiana, as a general principle of law, a conviction may be sustained on the uncorroborated testimony of a purported accomplice, although the jury should be instructed to treat such testimony with great caution. However, where there is material corroboration of the accomplice’s testimony, the cautionary accomplice instruction is not required.

After reviewing the evidence in the light most favorable to the prosecution, we conclude that the jury could have found the essential elements of both second degree murder and conspiracy to commit second degree murder beyond a reasonable doubt. With regard to the second degree murder charge, the evidence, most notably Kristyn’s testimony, was sufficient to support a conclusion that the defendant shot Christopher Hoffpauir multiple times, causing his death. We note that “the act of aiming a lethal weapon and discharging it in the direction of the victim supports a finding by the trier of fact that the defendant acted with specific intent to kill.” State v. Lawson, 08-123, p. 10 (La.App. 5 Cir. 11/12/08), 1 So.3d 516, 524.

With regard to the conspiracy charge, although Kristyn denied that she had any knowledge that the defendant was going to shoot Christopher, we note that it is within the jury’s fact-finding authority to accept or reject a witness’ testimony in whole or in part. Knowing that Kristyn was still awaiting sentencing, the jury could have rejected Kristyn’s denial of her involvement as an attempt to downplay her culpability for Christopher’s death. Further, there is additional evidence which is sufficient to support a conclusion that Kristyn and the defendant agreed to murder Christopher and took steps to execute their plan, including testimony concerning Kristyn’s previous knowledge of the life insurance policy, testimony concerning Kristyn’s statement that “they” were going to “beat up” Christopher, testimony concerning Kristyn and the defendant’s agreement that the defendant |inwould wait for Kristyn to bring Christopher back to an isolated rural road in the middle of the night, and testimony that the defendant procured a gun immediately before he and Kristyn drove to Vernon Parish.

Accordingly, we find no merit to the defendant’s arguments concerning the sufficiency of the evidence.

Spoliation of Exculpatory Evidence

The defendant also alleges that his constitutional due process protections were violated by the State’s failure to preserve allegedly exculpatory evidence in the form of text messages contained on Kristyn’s cell phone.

The record indicates that on July 16, 2010, Kristyn was arrested by Vernon Parish Sheriffs deputies. Her cell phone was taken into evidence at that time. Detective Steven Moss testified that when he examined the phone on that date, there were approximately ten text messages on the phone, none of which appeared pertinent to the investigation or to have any evidentiary value. According to Detective Moss, everything before June 14, 2010, was deleted. He declined to speculate who had deleted the messages “other than possibly Kristyn herself prior to her arrest.” At some later date, when the investigators attempted to examine the phone and its contents again, the texts were no longer on the phone. Detective Moss testified that he later learned that Kristyn had activated a setting on her phone which purged her text messages after 30 days and that after doing some research, he concluded that he would be unable to retrieve them. Although the State concedes that a certain number of text messages were lost, it is unclear from the record exactly how many were deleted.

“Spoliation of the evidence” is a term used to refer to intentional destruction of evidence for the purpose of preventing an opposing party from using the | nevidence. State v. Crossley, 48,149 (La.App. 2 Cir. 6/26/13), 117 So.3d 585. If spoliation is established, there is a presumption that the evidence would have been detrimental to the destroying party’s case. Id. However, if the destruction is adequately explained, the presumption does not apply. Id. “In criminal cases, an appellant is not deprived of his due process rights based on the state’s failure to preserve potentially exculpatory evidentiary material unless bad faith is demonstrated.” State v. Goosby, 47,772, pp. 13-14 (La.App. 2 Cir. 3/6/13), 111 So.3d 494, 503, writ denied, 13-760 (La.11/1/13), 125 So.3d 418. See also Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).

Here, the evidence supports the trial court’s conclusion that there was no evidence of bad faith on the part of the officers and that the defendant was therefore not deprived of his due process rights. The testimony was that some of the text messages at issue had already been deleted when the investigators took Kristyn’s cell phone into evidence. Further, Detective Moss testified that the few text messages that were on the cell phone were lost because the investigators were unaware that the phone had an “auto-delete” setting engaged.

Thus, we find no merit to the defendant’s arguments in this regard.

Excessive Sentence

In his counseled brief, the defendant alleges that his sentences were unconstitutionally excessive. He contends that the trial court failed to adequately consider the mitigating factors, including the defendant’s age, work history, disability, and military service.

The sentence for second degree murder is life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. La.R.S. 14:30.1(B). Mandatory sentences are presumed to be constitutional. State v. Richards, 12-1354 (La.App. 3 Cir. 6/5/13), 114 So.3d 639 (citing State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672). In order for a departure from the mandatory sentence to be warranted, the defendant must show that he is somehow exceptional; i.e., that his unusual circumstances result in a sentence that is not “meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” Id. at 642 (quoting State v. Boutte, 10-928 (La.App. 3 Cir. 3/9/11), 58 So.3d 624, writ denied, 11-689 (La.10/07/11), 71 So.3d 314). Further, where the sentence is mandatory, the trial court need not justify its sentence using the factors iterated in La.Code Crim.P. art. 894.1. Id.

Here, the defendant was sentenced to life imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence. Having offered no evidence that he is exceptional for the purposes of sentencing, we find no merit to his excessive sentence claim with regard to his conviction for second degree murder.

With regard to the conspiracy conviction, the sentencing provisions of La. R.S. 14:26 state:

Whoever is a party to a criminal conspiracy to commit any crime shall be fined or imprisoned, or both, in the same manner as for the offense contemplated by the conspirators; provided, however, whoever is a party to a criminal conspiracy to commit a crime punishable by death or life imprisonment shall be imprisoned at hard labor for not more than thirty years.

The appellate review of excessive sentence claims was discussed by a panel of this court in State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331. The panel stated that:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an |13excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

Further, an appellate court should take several factors into account when reviewing excessive sentence claims. A panel of this court addressed those factors in State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061, stating:

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/81/96); 674 So.2d 957, 958.

Because the second degree murder charge carries a mandatory life sentence, the maximum sentence for the defendant’s conspiracy to commit second degree murder conviction was thirty years. See La. R.S. 14:26. The defendant was sentenced to twenty-five years at hard labor to be served consecutively to any other sentence.

| uThe record reveals that the defendant’s crimes were serious and violent. According to the testimony and evidence, the defendant, in concert with his accomplice, conspired to lure the victim to a remote location where the defendant shot the victim multiple times.

In addressing the circumstances of the offender, we observe that the trial court adequately considered the sentencing factors contained in La.Code Crim.P. art. 894.1. The trial court found that the defendant was twenty-five years old, had worked but was then unemployed, was not married and had no children, and was in the Marine Corps for a short period of time. The record indicates that the defendant was discharged from the Marine Corps for medical reasons. Further, although the defendant characterizes himself as “disabled,” the trial court found that he was in excellent health. The trial court also noted that the defendant had no history of drug or alcohol abuse and had a prior misdemeanor conviction.

Finally, with regard to sentences in comparable cases, in State v. Texada, 99-1009 (La.App. 3 Cir. 2/2/00), 756 So.2d 463, writ denied, 00-2751 (La.6/29/01), 794 So.2d 824, a panel of this court upheld a thirty-year sentence for conspiracy to commit first degree murder. We note that the defendant in that case was charged with multiple other felonies and had a prior criminal record. Additionally, the defendant in Texada ordered his associates to carry out the shooting that resulted in charges. See also State v. Leger, 04-1467 (La.App. 3 Cir. 6/1/05), 907 So.2d 739, writ denied, 05-2263 (La.4/17/06), 926 So.2d 509, cert. denied, 549 U.S. 910, 127 S.Ct. 245, 166 L.Ed.2d 193 (2006). Here, although the defendant’s criminal record was much less significant than the defendant in Texada’s, the record indicates that the defendant did more than direct his co-conspirators to carry out the murder and that he actually fired the shots.

|i5Our review of the record indicates that the defendant’s twenty-five year sentence neither shocks our sense of justice nor fails to make a meaningful contribution to acceptable penal goals. Accordingly, we conclude that the trial court did not abuse its discretion in imposing the defendant’s sentence for conspiracy to commit second degree murder. The defendant’s arguments regarding the excessiveness of his sentences are without merit.

Jury Tampering Allegations

In his pro se brief, the defendant contends that unknown persons spoke with members of the jury while his trial was in recess. The defendant speculates that these people were friends or members of the victim’s family and that they improperly influenced the jury. The defendant also contends that the Vernon Parish Sheriffs deputy who was accompanying the jurors should have reported the improper contact to the trial court.

This issue was not presented to the trial court, and the appellate record contains no evidence concerning this alleged incident. There is not sufficient evidence in the record for this court to address the defendant’s claims. Thus, this issue would be more properly considered in an application for post-conviction relief where an eviden-tiary hearing can be conducted. See State v. Stringer, 06-800 (La.App. 8 Cir. 12/6/06), 949 So.2d 464, writ denied, 07-04 (La.9/14/07), 963 So.2d 996.

11 iNon-unanimous Jury Verdicts

Finally, the defendant asserts that La. Code Crim.P. art. 782, which permits non-unanimous jury verdicts, is unconstitutional. The record indicates that the defendant filed a motion to this effect, which was denied by the trial court.

We observe that the Louisiana supreme court rejected this contention in State v. Bertrand, 08-2215, 08-2311 (La.3/17/09), 6 So.3d 738. Therein, the Louisiana Supreme Court addressed the United States Supreme Court’s holding in Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), which found that non-unanimous jury verdicts were permissible in noncapital cases. Finding Apodaca to be “well-settled law[,]” the Louisiana supreme court reiterated that La.Code Crim.P. art. 782 withstands constitutional scrutiny. Bertrand, 6 So.3d at 742.

Applying the supreme court’s holding in Bertrand, 6 So.3d 738, we find no error in the trial court’s rejection of the defendant’s motion in this regard. Additionally, we observe that the record indicates that the jury verdict in this matter was unanimous.

Accordingly, we find no merit to the defendant’s argument in this regard.

DECREE

The convictions and sentences of the defendant, Justin Robert Sizemore, for one count of second degree murder and one count of conspiracy to commit second degree murder are affirmed.

AFFIRMED.

      . The defendant’s charges were filed under separate docket numbers. However, the record indicates that the charges were consolidated for trial. The defendant’s cases were also consolidated on appeal.

      . Mr. Thibeaux's last name is also spelled as "Thibodeaux” in the record.

      . According to the record, the State did not object to the defendant's motion for mistrial. Subsequently, at the hearing on the motion to quash, the State disagreed with the defendant's assertion that the State had previously conceded that the failure to provide the defense with the information constituted a Brady violation.

      . We note that the legislature amended La. R.S. 14:26 in 2013 to renumber its subsections. However, the amendment does not change the substance of La.R.S. 14:26. See 2013 La. Acts 220, effective June 11, 2013.

      . Kristyn was sentenced on those charges after the defendant’s trial. Her convictions and sentences were affirmed in State v. Hoffpauir, 12-862 (La.App. 3 Cir. 2/6/13), 107 So.3d 146, and State v. Hoffpauir, 12-865 (La.App. 3 Cir. 2/6/13), 107 So.3d 146.

      . The defendant submitted an affidavit from James Bear concerning the alleged incident. However, we note that this affidavit was not submitted into the record, and the appellate court cannot review evidence that is not in the record on appeal or receive new evidence. See Reese v. Dresser Valve Indus., 10-241 (La.App. 3 Cir. 10/6/10), 48 So.3d 406.

      . We acknowledge that the jury verdict sheet has notations that may support a conclusion that the verdict was not unanimous. However, according to the trial transcript, the jurors, when polled, indicated that their verdict was unanimous.


author: COOKS, Judge.

text:
    Barry GIGLIO and Marla Giglio v. STATE of Louisiana, DEPARTMENT CHILD AND FAMILY SERVICES, et al.
    No. 13-551.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 18, 2013.

      Chris Villemarette, Lafayette, LA, for Plaintiffs/Appellants, Barry Giglio and Marla Giglio.
    Frank X. Neuner, Jr., Jennie P. Pelleg-rin, NeunerPate, Lafayette, LA, for Defendant/Appellee, State of Louisiana, through the Department of Children and Family Services.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   COOKS, Judge.

| ¡.FACTS AND PROCEDURAL HISTORY

Plaintiffs, Marla and Barry Giglio, filed a lawsuit on May 17, 2012 naming five Defendants: (1) Mindy Venable; (2) Dwayne Venable; (3) the State of Louisiana, through the Department of Children and Family Services (hereafter DCFS); (4) the State of Louisiana, through the Department of Public Safety, Division of State Police; and (5) Pam McGee. The lawsuit arose from an investigation concerning accusations of sexual molestation made by three minor children against the Plaintiffs. These acts were alleged to have taken place on October 1, 2010.

The children reported the alleged crime to their foster parents, Mindy and Dwayne Venable, who then called DCFS concerning the allegations. DCFS then reported the allegations to several law enforcement agencies. Eventually, the allegations were presented to the Louisiana State Police. After an investigation, the State Police submitted an affidavit containing the children’s allegations to a district court judge in St. Landry Parish, who issued an arrest warrant for Plaintiffs. Pursuant to that warrant, Plaintiffs were arrested and transported to jail where they remained incarcerated for approximately two weeks until bond was posted.

Eventually the St. Landry Parish district attorney presented the charges to a grand jury, which returned a no true bill. Plaintiffs contend despite the grand jury refusing to indict them, the damage to them was done and “their lives were forever changed.”

The instant lawsuit was filed by Plaintiffs alleging they were wrongfully arrested after the culmination of a cursory investigation into the allegations made by the three minor children. Plaintiffs alleged DCFS and the State Police negligently investigated the claims made by the minor children against them and/or knew or should have known the accusations were false.

lain response to Plaintiffs’ petition, DCFS filed several exceptions: (1) an exception of improper venue; (2) insufficiency of citation and/or service of citation; (3) nonconformity of the petition to the requirements of La.Code Civ.P. art. 891; (4) vagueness or ambiguity of the petition; (5) no cause of action; and (6) prescription.

A hearing on the exceptions was held, after which the trial court granted the exceptions of improper venue and prescription in favor of DCFS. The trial court found the cause of action asserted by Plaintiffs did not arise from acts that occurred in St. Landry Parish, and as a result venue was improper in St. Landry Parish. The exception of prescription was granted because the prescriptive period for filing the suit was not interrupted by service of suit in the proper venue. The remaining exceptions filed by DCFS were rendered moot.

Plaintiffs have appealed the trial court’s judgment, asserting the following assignments of error:

1. The trial court erred in granting DCFS’s exception of improper venue when the operative facts which support Plaintiffs’ entitlement to recovery took place in St. Landry Parish.
2. The trial court erred in granting the exception of prescription.

ANALYSIS

Initially, we emphasize the granting of the exceptions in question here applies only to DCFS and not to any other of the named defendants. When an appeal involves a ruling on an exception with contested issues of fact, the standard of review is the manifest error-clearly wrong standard. Guitreau v. Kucharchuk, 99-2570 (La.5/16/00), 763 So.2d 575; Chesne v. Mayeaux, 03-570 (La.App. 3 Cir. 11/5/03), 865 So.2d 766. However, in a case in which there are no contested issues of fact and the only issue is the application of the law to the undisputed facts, the proper standard of review is whether or not there has been legal error. Hatten v. Schwerman Trucking Co., 04-1005 (La.App. 3 Cir. 12/8/04), 889 So.2d 448 (citing Cleland v. City of Lake Charles, 02-805, 01-1463 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writs denied, 03-1380, 03-1385 (La.9/19/03), 853 So.2d 644, 645), writ denied, 05-76 (La.3/18/05), 896 So.2d 1009.

Louisiana Revised Statutes 13:5104 is the mandatory general venue statute which applies in suits against a State agency (such as DCFS), unless other more specific venue provisions apply in suits against particular agencies. Colvin v. Louisiana Patient’s Comp. Fund Oversight Bd., 06-1104 (La.1/17/07), 947 So.2d 15. The statute reads in pertinent part:

A. All suits filed against the state of Louisiana or any state agency or against an officer or employee of the state or state agency for conduct arising out of the discharge of his official duties or within the course and scope of his employment shall be instituted before the district court of the judicial district in which the state capítol is located or in the district court having jurisdiction in the parish in which the cause of action arises.

La.R.S. 13:5104. Thus, under the statute an action against a state agency “shall be instituted” in East Baton Rouge Parish or “in the parish in which the cause of action arises.” The place where the operative facts occurred which support the plaintiffs entitlement to recovery is where the cause of action arises. Colvin, 947 So.2d 15.

Plaintiffs filed suit in St. Landry Parish because they believed the cause of action against DCFS arose there. However, DCFS contended, under the facts and theories of liability set forth in Plaintiffs’ Petition for Damages, all of the operative facts giving rise to the claim against DCFS occurred outside of St. Landry Parish. The trial court agreed.

The Plaintiffs argue venue as to DCFS is proper in St. Landry Parish because: (1) false allegations of abuse purportedly were published to “the authorities in St. Landry Parish” in order to secure arrest warrants for them; and (2) the Plaintiffs were jailed by the St. Landry Parish Sheriff and were brought before |Ba grand jury in St. Landry Parish. However, DCFS argued, and the trial court found, those facts are not “operative facts” regarding the Plaintiffs’ claims against DCFS.

The record established the minor children were surrendered by their mother to DCFS in Evangeline Parish. Carla Bol-lich, the DCFS Child Welfare Specialist who was assigned to the minor children, worked in the DCFS office in Evangeline Parish. The performance of Ms. Bollich’s duties involving the minor children occurred outside St. Landry Parish. All of the meetings with the minor children occurred at the DCFS office in Evangeline Parish. All meetings with the foster parents were either at the DCFS office in Evangeline Parish or at the foster parents’ home in Acadia Parish. All court proceedings pertaining to the minor children’s custody and/or case plan created and managed by DCFS occurred in Evangeline Parish. Lastly, pursuant to its mandatory reporting requirements, DCFS reported the minor children’s allegations of sexual abuse to the Evangeline Parish Sheriffs Office.

The trial court dismissed Plaintiffs’ argument that venue is proper in St. Landry Parish because false allegations of abuse were published to “the authorities in St. Landry Parish” and Plaintiffs were jailed and brought before a grand jury in St. Landry Parish. We find no error in the trial court’s conclusion that those facts are not “operative facts” relating to the Plaintiffs’ claims against DCFS. The record establishes DCFS did not “publish” false allegations against the Plaintiffs, but simply reported the minor children’s accusations of sexual abuse to law enforcement officials pursuant to DCFS’s statutory obligation to do so. At that point DCFS could not control whether any dissemination of the information it relayed to law enforcement officials would be transmitted to St. Landry Parish. Moreover, as DCFS notes it did not arrest the Plaintiffs, bring criminal charges or proceedings against the Plaintiffs, nor have the ability to direct law enforcement | r,agencies to pursue charges against the Plaintiffs based upon the allegations by the minor children. Having no police power and/or prosecutorial power, DCFS likewise had no control over the parish in which criminal charges were filed against the Plaintiffs. Thus, we find the trial court did not err in finding St. Landry Parish was not a parish of proper venue for the Plaintiffs’ claims against DCFS under La.R.S. 13:5104(A).

We likewise find no error in the trial court’s grant of the exception of prescription. Plaintiffs’ argument that the exception of prescription was in error is based solely on the argument that venue was proper in St. Landry Parish. Having found that venue was not proper in St. Landry Parish as to DCFS, the trial court did not err in granting the exception of prescription.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Plaintiffs-Appellants.

AFFIRMED.


author: THIBODEAUX, Chief Judge. SAUNDERS, J.,

text:
    Andrew KIDDER v. STATEWIDE TRANSPORT, INC., et al.
    No. 13-594.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 18, 2013.

      Julian Louis Gibbens, III, Lafayette, LA, for Plaintiff/Appellee-Andrew Kidder.
    Roger Anthony Javier, The Javier Law Firm, New Orleans, LA. for Defendant/Appellee-Transport Leasing/Contract, Inc.
    Jason E. Fontenot, Jason E. Fontenot, APLC, Lafayette, LA, for Plaintiff/Appel-lee-Andrew Kidder.
    Chris Broadwater, Gashe, Coudrain & Sandage, Hammond, LA, for Defendant/Appellant-Statewide Transport, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   THIBODEAUX, Chief Judge.

hA delivery driver filed suit against his former employer for unpaid overtime wages under the Federal Fair Labor Standards Act (FLSA), 29 U.S.C.A. § 207, and La.R.S 23:632. After the employer failed to timely answer the petition, the trial court confirmed a default judgment, awarding the driver overtime wages, liquidated damages, penalties, and attorney fees under both the FLSA and La.R.S. 23:632. Considering the FLSA preempts state law recovery for unpaid overtime compensation for employees engaged in interstate commerce and the driver failed to present sufficient evidence at the confirmation hearing regarding his status as an employee engaged in either interstate or intrastate commerce, we reverse the trial court’s confirmation of the default judgment and remand the case for further proceedings.

I.

ISSUE

We shall consider whether sufficient evidence was presented to confirm a default judgment awarding a former driver of a delivery company unpaid overtime wages, liquidated damages, penalties, and attorney fees under both the FLSA and La.R.S. 23:632. As part of this review, we shall consider the res nova issues in this circuit regarding whether the FLSA preempts state law recovery for unpaid overtime wages and whether the language of La. R.S. 23:631-32 allows for such a recovery.

J2.IL

FACTS AND PROCEDURAL HISTORY

Andrew Kidder worked as a delivery driver for Statewide Transport, Inc. for varying periods of time since 2008. Specifically, Mr. Kidder worked as a van driver from June 12, 2008 to June 17, 2008 and again from September 14, 2009 to November 5, 2009. He also worked as a truck driver from December 2, 2008 to March 27, 2009 and from August 17, 2011 to September 21, 2011.

Mr. Kidder sued Statewide for unpaid overtime wages, liquidated damages, penalties, and attorney fees under the FLSA and La.R.S. 23:632. Along with his petition, Mr. Kidder filed interrogatories and requests for production of documents. Statewide filed answers to the interrogatories and production requests but failed to file a formal answer to Mr. Kidder’s petition. Given Statewide’s failure to answer, the trial court granted Mr, Kidder’s motion for preliminary default. A confirmation hearing was held where Mr. Kidder presented his own testimony and evidence that he worked for Statewide as a truck driver in Louisiana and was never paid overtime wages. The trial court confirmed the default judgment and awarded Mr. Kidder $1,726.65 in overtime compensation and $1,726.65 in liquidated damages under the FLSA. The court also awarded Mr. Kidder $7,200.00 in penalty wages under La.R.S. 28:632 and $7,100.00 in attorney fees.

III.

STANDARD OF REVIEW

We restrict our review of default judgments to a consideration of the sufficiency of the evidence offered to support the judgment: Being a question of 13fact, this appeal is subject to a manifest error standard of review. Wagner v. Alford, 09-1338 (La.App. 3 Cir. 4/7/10), 34 So.3d 1018; Bordelon v. Sayer, 01-717 (La.App. 3 Cir. 3/13/02), 811 So.2d 1232, writ denied, 02-1009 (La.6/21/02), 819 So.2d 340.

IV.

LAW AND DISCUSSION

Confirmation of a default judgment requires admissible evidence sufficient to establish a prima facie case. La.Code Civ.P. art. 1702(A). “[T]he plaintiff must present competent evidence that convinces the court that it is probable he would prevail at trial on the merits.” Wagner, 34 So.3d at 1021. Furthermore, the plaintiff “must prove both the existence and the validity of his claim.” Id.

In our review of the evidence, we find that Mr. Kidder failed to establish a prima facie case that he was entitled to default judgment under federal law. 29 U.S.C.A. § 207(a)(1) establishes the overtime wage requirements under the FLSA:

Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

The FLSA further provides that overtime wages under § 207 do not apply to “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions |4of section 31502 of Title 49.” 29 U.S.C.A § 213(b)(1). While at one time this overtime wage exemption applied to all employees of motor carriers and private motor carriers under 49 U.S.C.A § 31502, Congress amended the FLSA in 2008, allowing § 207 to “apply to a covered employee notwithstanding [29 U.S.C.A. § 213(b)(1) ].” SAFETEA-LU Technical Corrections Act of 2008, Pub.L. 110-244, § 306(a), 122 Stat 1572 (2008). The Congressional amendment defined a covered employee as follows:

(c) COVERED EMPLOYEE DEFINED. — In this section, the term “covered employee” means an individual—
(1) who is employed by a motor carrier or motor private carrier (as such terms are defined by section 13102 of title 49, United States Code, as amended by section 305);
(2) whose work, in whole or in part, is defined—
(A) as that of a driver, driver’s helper, loader, or mechanic; and
(B) as affecting the safety of operation of motor vehicles weighing 10,-000 pounds or less in transportation on public highways in interstate or foreign commerce, except vehicles—
(i) designed or used to transport more than 8 passengers (including the driver) for compensation;
(ii) designed or used to transport more than 15 passengers (including the driver) and not used to transport passengers for compensation; or
(iii) used in transporting material found by the Secretary of Transportation to be hazardous under section 5108 of title 49, United States Code, and transported in a quantity requiring placarding under regulations | r,prescribed by the Secretary under section 5103 of title 49, United States Code; and
(3) who performs duties on motor vehicles weighing 10,000 pounds or less.

Id. at § 306(c).

Through this amendment, drivers employed by motor carriers may only recover overtime wages under the FLSA if the driver is operating a motor vehicle that is engaged in interstate commerce and weighs 10,000 pounds or less.

While Mr. Kidder presented evidence and testimony at the confirmation hearing that he was never paid overtime wages during his employment with Statewide, he failed to present any evidence regarding the weights of the vans and trucks he drove. Furthermore, Mr. Kidder testified that he only drove within the state of Louisiana. While 29 C.F.R. § 782.7(b)(1) states that “[transportation within a single State is in interstate commerce within the meaning of the Fair Labor Standards Act where it forms a part of a ‘practical continuity of movement’ across State lines from the point of origin to the point of destination,” Mr. Kidder did not present any evidence to indicate the materials he transported for Statewide actually crossed state lines to become part of this practical continuity of interstate commerce. Considering these are essential elements to overtime compensation recovery under the amendments to the FLSA, Mr. Kidder did not provide sufficient evidence to sustain a prima facie case.

Statewide also contends that the trial court improperly granted default judgment in favor of Mr. Kidder under La.R.S. 23:632 since the FLSA preempts any recovery under Louisiana law for unpaid overtime wages. Federal preemption is an affirmative defense that must be raised in the pleadings. Shrader v. Life Gen. Sec. Ins. Co., 588 So.2d 1309 (La.App. 2 Cir.1991), writ denied, 592 So.2d 1317 (La.1992). “[A] defendant against whom a default judgment is confirmed may not assert an affirmative defense on appeal.” Hall v. Folger Coffee Co., 02-920, p. 13 (La.App. 4 Cir. 10/1/03), 857 So.2d 1234, 1244-45, writ denied, 03-1756 (La.10/17/03), 855 So.2d 762. While Statewide cannot technically raise the federal preemption argument for the first time on appeal, our standard of review demands that we consider this issue and the scope of the state law since there can never be sufficient evidence to support a default judgment for overtime wages under state law if such recovery is preempted.

In Odom v. Respiratory Care, Inc., 98-263, p. 4 (La.App. 1 Cir. 2/19/99), 754 So.2d 252, 256, the first circuit held that the FLSA overtime provisions preempt Louisiana state law, reasoning that La.R.S. 23:631-32 “did not apply under these circumstances because there is a distinction between an employer timely paying earned wages for all hours worked, and an employer refusing to pay the extra wages an employee claims are due on the hours he worked in excess of the statutory maximum.” While we are cognizant of the first circuit’s opinion, we are not bound by this statutory interpretation and respectfully disagree. See Thompson Tree & Spraying Service, Inc. v. White-Spunner Const., Inc., 10-1187 (La.App. 3 Cir. 6/1/11), 68 So.3d 1142, writ denied, 11-1417 (La.9/30/11), 71 So.3d 290; Albert Tate, Jr., Civilian Methodology in Louisiana, 44 Tul. L.Rev. 673 (1970). Rather, we conclude that the FLSA overtime provisions preempt Louisiana state law only for employees engaged in interstate commerce; employees engaged in intrastate commerce may still recover for unpaid overtime under La.R.S. 23:631-32.

|7The enactment of the FLSA represents a valid exercise of Congress’ exclusive power to regulate interstate commerce under U.S. Const, art. I, § 8, cl. 3. Opp Cotton Mills v. Adm’r of Wage and Hour Div. of Dep’t of Labor, 111 F.2d 23 (5th Cir.1940), aff'd, 312 U.S. 126, 61 S.Ct. 524, 85 L.Ed. 624. “It is well established that, when Congress acts under this power, its legislation primes and supersedes state legislation.” Paul Klopstock & Co. v. United Fruit Co., 171 La. 296, 131 So. 25, 26 (1930). The reasoning behind this field preemption is clear:

Even though the penalties of both the state and federal statutes could be imposed without there being a direct conflict, we believe the penalty provision of the Federal act, when invoked, becomes exclusive and the penalty provisions of the state statute may not be applied. There may be no exact conflict in actual application of the two penalties, but, nevertheless, they conflict in essence because of duplicity.

Divine v. Levy, 36 F.Supp. 55, 58 (W.D.La.1940).

Considering the FLSA explicitly provides penalties for failure to pay overtime wages under 29 U.S.C.A. § 216, any similar penalties under Louisiana law must be preempted by the FLSA for employees engaged in interstate commerce.

While the FLSA may preempt state law recovery for employees engaged in interstate commerce, employees engaged solely in intrastate commerce can recover for overtime compensation under state law. Louisiana Revised Statutes 23:632 allows for recovery of penalty wages and reasonable attorney fees for failure to comply with the provisions of 23:631. In pertinent part, La.R.S. 23:631(A)(l)(a) states:

Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, |swhether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.

Notably, the statutory language in La.R.S. 23:631(A)(l)(a) does not distinguish between regularly earned wages and overtime compensation as the first circuit in Odom implies. Rather, the statute mandates through more encompassing language that the employer pay “the amount then due under the terms of employment.” It is presumed in Louisiana that “every word, sentence, or provision in a law [is] intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions [are] employed.” Colvin v. Louisiana Patient’s Compensation Fund Oversight Bd., 06-1104, p. 6 (La.1/17/07), 947 So.2d 15, 19. If the legislature intended La.R.S. 28:681 to only apply to regularly earned wages, it would have explicitly stated so in the statute. However, the language is unambiguously broad in scope; it mandates that an employer pay any amount that an employee justifiably earns under the terms of his employment. There is nothing to suggest that such payment does not • include overtime wages. “When a law is clear and unambiguous and its application does not lead to absurd circumstances, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La.Civ.Code art. 9. In order to give proper effect to these words and avoid an overly narrow interpretation of the statute, we apply the law as written and hold that La.R.S. 23:631 requires payment of overtime compensation to employees engaged exclusively in intrastate commerce.

Applying these principles to Mr. Kidder’s case, confirmation of a default judgment under La.R.S. 23:632 must include evidence indicating that he | ¡¡engaged solely in intrastate commerce. Here, as discussed above, while Mr. Kidder testified he only drove in Louisiana, he failed to provide sufficient evidence regarding what was transported to determine whether he worked in interstate or intrastate commerce. As such, he failed to present sufficient evidence to establish a prima facie case.

We reverse the trial court’s default judgment. The case is remanded to the trial court to allow Mr. Kidder to establish, if possible, his claims under either the FLSA or La.R.S. 23:632 depending on his status as an employee-engaged in either interstate or intrastate commerce. Statewide is reserved the right to file an answer to these claims. See Dundee Tailoring Co. v. Jefferson Davis Parish Sch. Bd., 264 So.2d 316 (La.App. 3 Cir.1972).

V.

CONCLUSION

For the foregoing reasons, we reverse the default judgment and remand this case to the trial court for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

SAUNDERS, J.,

agrees, in part, and concurs, in part with written reasons.

hi agree with the majority opinion that Mr. Kidder failed to provide the proper evidence to prove entitlement to confirmation of his preliminary default judgment under federal law. While I agree with the result of the majority opinion regarding Mr. Kidder’s state law action, I disagree with how it adjudicates Mr. Kidder’s confirmation of his preliminary default judgment regarding state law.

The majority opinion states that in order to prove entitlement to his preliminary default judgment under state law, Mr. Kidder “must include evidence indicating that [he] engaged solely in intrastate commerce.” Further, the majority opines that Mr. Kidder failed to do so because he “failed to provide sufficient evidence regarding what was transported to determine whether he worked in interstate or intrastate commerce.” I feel these two statements merit more discussion.

I feel that the majority opinion overstates what evidence was necessary to have been provided by Mr. Kidder in order for him to recover under state law. Louisiana Revised Statutes 23:631 and 632 only require that Mr. Kidder provide evidence that he was not properly paid under the terms of his employment with Statewide. To me, the majority opinion’s statements cited above can be read to place a burden on Mr. Kidder to show that he was not working in interstate 13commerce. This is clearly not the case, as asserting that Mr. Kidder was engaged in interstate commerce, and thus ineligible to recover under state law, would be an affirmative defense against an action based in state law. Such affirmative defenses are the defendant’s burden to assert and prove, and would not properly be required of a plaintiff such as Mr. Kidder.

In my view, both judicial efficiency and proper appellate methodology would best be served by reversing the award given under federal law and affirming the award given under state law instead of reversing that award and remanding the case. This being stated, I must concede that the ends of justice might best be achieved by remanding the case for further proceedings as dictated by the majority opinion. Accordingly, I concur, in part.