author: ROBERT M. MURPHY, Judge.

text:
    Geraldine RICHARDS v. CHOICE HOTELS INTERNATIONAL, INC. d/b/a Sleep Inn New Orleans Airport.
    No. 13-CA-973.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 21, 2014.

      Anthony L. Glorioso, Attorney at Law, Metairie, LA, for PlaintiffiAppellant.
    Alan D. Ezkovich, Aaron J. Weidenhaft, Attorneys at Law, Ezkovich & Co., LLC, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges ROBERT M. MURPHY, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   ROBERT M. MURPHY, Judge.

12Plaintiff-appellant, Geraldine Richards, appeals the trial court’s judgment sustaining defendant-appellee, TAMS of Kenner, Inc.’s exception of prescription, dismissing Richards’ petition -with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 11, 2012, Richards filed a petition for damages in the Twenty-Fourth Judicial District Court against Choice Hotels International, Inc. d/b/a Sleep Inn New Orleans Airport (“Choice Hotels”) to recover for injuries she allegedly sustained on May 13, 2011, when she fell in a shower while staying at the Sleep Inn in Kenner, Louisiana. In her petition, Richards alleged that Choice Hotels owned, operated and managed the Sleep Inn at the time of her injury. On June 18, 2012, Richards amended her petition to allege that defendant-appellee, TAMS of Kenner, Inc. (“TAMS”), also owned the Sleep Inn, and that TAMS was jointly, severally and soli-darily liable for her claimed injuries.

|aOn that same day, Choice Hotels filed a Notice of Removal in the United States Eastern District Court of Louisiana. On July 17, 2012, Choice Hotels filed a Rule 12(b)(6) motion to dismiss Richards’ claims against it based upon the affidavit of Choice Hotels’ senior counsel, attesting that Choice Hotels is merely the franchisor of the Sleep Inn and that Alnoor Gillani, President of TAMS, is the franchisee. See F.R.C.P. 12(b)(6). Therefore, Choice Hotels alleged that it never owned the Sleep Inn, or exercised any control over the maintenance or operation of the Sleep Inn. However, before ruling on Choice Hotels’ motion to dismiss, the federal district court remanded the case to state court for lack of subject matter jurisdiction after Richards stipulated that her damages were less than the $75,000 jurisdictional amount required for federal diversity jurisdiction.

After the case was remanded to the Twenty-Fourth Judicial District Court, Choice Hotels filed a motion for summary judgment based upon the same grounds asserted in its previously-filed Rule 12(b)(6) motion to dismiss. On November 28, 2012, the trial court granted Choice Hotels’ motion for summary judgment, through a consent judgment, finding that Choice Hotels’ motion was well-founded and dismissing Richards’ claims against Choice Hotels with prejudice.

On March 21, 2013, TAMS filed an exception of prescription, alleging that Richards’ claims against TAMS were prescribed because she filed her amended petition naming TAMS as a defendant on June 18, 2012, which was more than one year after the date of her alleged injury on May 13, 2011. TAMS further alleged that Richards’ timely filed petition against Choice Hotels was not sufficient to interrupt prescription as to TAMS under a theory of solidary liability. Specifically, TAMS alleged there was no solidary liability between TAMS and Choice Hotels because Choice Hotels was found to have no liability for Richards’ injuries on summary judgment and accordingly was dismissed from the case.

RRichards filed an opposition to TAMS’ exception, alleging that contra non valen-tum applied to suspend the running of prescription as to her claims against TAMS. Specifically, Richards alleged that Choice Hotels and TAMS concealed the identity of TAMS as the true owner of the Sleep Inn based upon documents given to her at the hotel, which provided the phrase, “By Choice Hotels” under the Sleep Inn logo. Alternatively, Richards argued that the exception should be denied because Choice Hotels and TAMS were solidary obligors, despite the fact that Choice Hotels did not own or operate the Sleep Inn, because Choice Hotels held itself out to be the owner.

On June 13, 2013, the court held a hearing on TAMS’ exception, and granted the exception on that same day. The trial court signed a written judgment on June 27, 2013, sustaining TAMS’ exception of prescription. Richards now appeals.

LAW AND DISCUSSION

In her sole assignment of error, Richards contends that the trial court erred in sustaining TAMS’ exception of prescription because the court should have applied the doctrine of contra non valentum to interrupt the running of prescription as to Richards’ claims against TAMS. Alternatively, Richards argues that the trial court erred in its ruling because Choice Hotels and TAMS are solidary obligors, and therefore, prescription was suspended as to her claims against TAMS.

In reviewing an exception of prescription, an appellate court will review the entire record to determine whether the trial court’s finding of fact was manifestly erroneous. In re Brennan’s House of Printing, Inc., 10-428 (La.App. 5 Cir. 4/26/11), 65 So.3d 165, 168, writ denied, 11-1422 (La.9/30/11), 71 So.3d 290. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception of prescription. Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d |,1261, 1267. However, it is well settled that when the petition itself evidences the fact that the action is prescribed on its face, the plaintiff bears the burden of showing why prescription has not run. Id.

Under La. C.C. art. 3492, delictual actions prescribe within one year of the day of injury. In this case, there is no dispute that Richards filed her petition asserting tort claims against TAMS more than one year after the day of her injury, in violation of the one year prescriptive period under La. C.C. art. 3492. Accordingly, Richards has urged that the doctrine of contra non valentum applies to interrupt prescription against TAMS in this case.

The doctrine of contra non va-lentum was created as an exception to the general rules of prescription. Watters v. Dep’t of Soc. Servs., 11-1174 (La.App. 4 Cir. 3/14/12), 102 So.3d 118, 131, writ denied, 12-1146 (La.9/14/12), 99 So.3d 32. There are four situations in which the doctrine of contra non valentum can be applied to suspend the running of prescription:

(1) where there was some legal cause which prevented courts or their officers from taking cognizance of or acting on plaintiffs action;
(2) where there was some condition coupled with contract or connected with proceedings which prevented creditor from suing or acting;
(3) where defendant himself has done some act effectually to prevent plaintiff from availing himself of his cause of action; and
(4) where some cause of action is not known or reasonably knowable by plaintiff, even though his ignorance is not induced by defendant.

Standard Fire Ins. Co. v. Safeguard Storage Properties, L.L.C., 04-794 (La.App. 5 Cir. 1/25/05), 894 So.2d 502, 507-08. However, contra non valentum only applies in “exceptional circumstances,” and must be strictly construed. Id. In fact, when the Louisiana Supreme Court first officially recognized the fourth situation where contra non valentum applies, the Court specifically clarified that “[t]his principle | fiwill not exempt the plaintiffs claim from the running of prescription if his ignorance is attributable to his own willfulness or neglect; that is, a plaintiff will be deemed to know what he could by reasonable diligence have learned.” Renfroe v. State ex rel. Dep’t of Transp. & Dev., 01-1646 (La.2/26/02), 809 So.2d 947, 953-54 (citing Corsey v. State of Louisiana, Through the Department of Corrections, 375 So.2d 1319, 1322 (La.1979)); Standard Fire Ins. Co., 894 So.2d at 508.

In Standard Fire Ins. Co. v. Safeguard Storage Properties, L.L.C., supra, the plaintiff argued that contra non valentum applied to interrupt the prescriptive period against an untimely sued defendant, Safeguard Fifteen LLC. The plaintiff alleged that it failed to timely sue the true owner of the storage facility subject to the action, Safeguard Fifteen, because Safeguard Fifteen sent a letter to the plaintiff on the letterhead of a different company, Safeguard Storage. On appeal, this Court held that even if a letter written on a different letterhead than that of the actual owner could be construed as misleading, “reliance on misinformation, standing alone, does not satisfy the reasonable diligence requirement.” Standard Fire Ins. Co., supra at 508 (citing Drake v. Sarpy Properties, Inc., 01-1323 (La.App. 5 Cir. 4/10/02), 817 So.2d 209, 213, writ denied, 02-1339 (La.9/13/02), 824 So.2d 1170). Because the plaintiff failed to show that it exercised reasonable diligence in ascertaining the identity of the owner of the property, this Court affirmed the trial court’s grant of Safeguard Fifteen’s exception of prescription, finding that contra non valentum was not applicable.

Here, we find that Richards has not shown that she exercised reasonable diligence in ascertaining the identity of TAMS as the owner of the Sleep Inn. She claims that TAMS concealed its identity as the owner of the hotel based upon documents provided to her at the hotel, which contained, “By Choice Hotels” under the Sleep Inn logo, and failed to mention TAMS as the owner. As in^Standard Fire Ins. Co., we find that even if the documents provided to Richards could be construed as misleading, reliance on misinformation alone does not satisfy the reasonable diligence requirement of contra non valentum. Contra non valentum does not apply where a plaintiffs ignorance is attributable to her own willfulness or neglect. Our review of the record shows that Richards waited until a matter of days before the expiration of the one year prescriptive period before contacting an attorney to file suit for injuries that she allegedly sustained almost one year prior. Furthermore, TAMS has shown that its identity as the owner of the Sleep Inn was readily available through multiple sources, including a simple public records search. Because a plaintiff will be deemed to know that which she could have learned from reasonable diligence, we find that the trial court did not err in granting TAMS’ exception of prescription and refusing to apply the doctrine of contra non valentum.

We further find no merit to Richards’ contention that her claims against TAMS are not prescribed because Choice Hotels and TAMS are solidary obligors. The interruption of prescription by suit against one solidary obligor is effective as to all solidary obligors. La. C.C. arts. 1799 and 3503. However, a suit timely filed against one defendant does not interrupt prescription as against other defendants not timely sued, where the timely sued defendant is ultimately found not liable to plaintiffs, since no joint or solidary obligation would exist. Renfroe v. State ex rel. Dep’t of Transp. & Dev., 01-1646 (La.2/26/02), 809 So.2d 947, 950. Because the timely sued defendant in this case, Choice Hotels, was dismissed from the action on summary judgment, prescription against TAMS is not interrupted and Richards’ claims against TAMS have prescribed. Therefore, we find this claim to be without merit.

[^CONCLUSION

For the foregoing reasons, the judgment of the trial court sustaining TAMS’ exception of prescription is affirmed. Each party is to bear her/its own costs for this appeal.

AFFIRMED.


source: Caselaw Access Project

author: ROBERT A. CHAISSON, Judge.

license: Public Domain

text:
    Omar ARGUELLO v. BRAND ENERGY SOLUTIONS, LLC.
    No. 13-CA-990.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 21, 2014.
    Miguel A. Elias, Attorney at Law, Ken-ner, Louisiana, for Plaintiff/Appellant.
    Stephen M. Whitlow, Attorney at Law, Baton Rouge, Louisiana, for Defendant/Appellee.
    Panel composed of Judges FREDERICKS HOMBERG WICKER, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   ROBERT A. CHAISSON, Judge.

12Omar Arguello appeals from a judgment denying his claim for workers’ compensation benefits on grounds that he willfully made false statements in order to obtain those benefits, in violation of La. R.S. 23:1208. For the following reasons, we affirm that judgment.

FACTS AND PROCEDURAL HISTORY

On November 24, 2012, while employed as a lead carpenter for Brand Energy Solutions, LLC (“Brand”), Mr. Arguello had a work-related accident when a piece of 2 x 4 lumber fell from above and struck him on the head. That day he was taken to Pelican Clinic and then transferred to East Jefferson Hospital Emergency Department for treatment. He subsequently treated with Dr. Michael Haydel and Dr. Samuel Greenburg.

After Brand denied Mr. Arguello workers’ compensation benefits, he filed a Disputed Claim for Compensation with the Office of Workers’ Compensation. The parties stipulated that Mr. Arguello was injured on November 24, 2012, while in the course and scope of his employment with Brand. After the trial of the |amatter, the trial judge ruled that Mr. Arguello had violated the provisions of La. R.S. 28:1208 by making false statements for the purpose of obtaining workers’ compensation benefits, and thus had forfeited his right to those benefits. Mr. Arguello appeals that judgment and alleges that the trial judge committed manifest error by finding that Mr. Arguello forfeited his right to benefits by violating § 1208, without first finding that his statements were willfully made. He additionally alleges that the trial judge erred in failing to impose penalties and attorney fees on Brand for its failure to reasonably controvert his claim.

DISCUSSION

La. R.S. 23:1208, in pertinent part, provides:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
B. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

The determination of whether or not a workers’ compensation claimant has forfeited his right to benefits by making a false statement or representation for the purpose of obtaining benefits involves inherently factual determinations and thus, appellate review of the workers’ compensation judge’s findings is governed by the manifest error standard. Porter v. Pellerin Construction Company, 06-949 (La.App. 5 Cir. 04/11/07), 958 So.2d 7, 11, writ denied, 07-1076 (La.08/31/07), 962 So.2d 438. Factual findings in workers’ compensation cases may not be set aside by an appellate court unless they are manifestly erroneous or clearly wrong. When factual findings are based on determinations of credibility of the witnesses, the trier of fact’s findings are entitled to great deference, because only the fact finder can be 14aware of the variations in demeanor and tone of voice that bear heavily on the listener’s understanding and belief in what is said. Id.

In the case before us, the trial judge found three instances in which Mr. Arguel-lo made false representations for the purpose of obtaining benefits. First, she found that he denied any prior neck pains and any prior treatment for neck pains. She found that these statements were directly contradicted by medical records from East Jefferson General Hospital that showed that he presented to the emergency room on November 22, 2005, with complaints of pain to the back of the neck extending to the mid-back after a motor vehicle accident, and that he underwent a cervical MRI on July 25, 2008. She found that this misrepresentation involved the neck, which is also at issue in the instant claim. Second, she found that Mr. Arguel-lo specifically denied taking a physical exam before his re-employment at Safe-Zone, but that the records from SafeZone indicate that he passed a March 20, 2013 functional abilities evaluation with flying colors. She concluded that he denied having such an evaluation because evidence of a passing evaluation would jeopardize his pending claim for benefits against Brand. And lastly, she found that Mr. Arguello exaggerated the extent of any injury to his thumb by displaying a rigidly stiff thumb at trial, and denying that he could relax it when requested to do so by the trial judge. In her reasons for judgment, the trial judge noted that “throughout the remainder of the trial when distracted by questioning, the court noted Mr. Arguello freely moving and bending the same thumb without a hint of the rigidity previously displayed to the court.”

In his first assignment of error, Mr. Arguello alleges that the trial judge found a § 1208 violation without finding that his statements were willfully made. We disagree. In her reasons for judgment, the trial judge specifically stated that a finding of fraud pursuant to La. R.S. 23:1208 is appropriate when there is a false |fistatement or representation that is willfully made for the purpose of obtaining or defeating benefits under the Act. Furthermore, she stated that “the court is left to conclude that Mr. Arguello’s theatrics were a willful attempt to further his claim for benefits.” (Emphasis added). The trial judge was clearly aware that the false statements must be willfully made before there can be a finding of fraud pursuant to § 1208. We conclude that the trial judge found that the false statements were willfully made.

Mr. Arguello further complains that it was improper for the trial judge to consider her observations regarding his thumb in her determination of whether there was a § 1208 violation. Specifically, Mr. Arguello argues that the trial judge “did not possess the explicit, implicit, or inherent powers to make such a crucial medical decision as to the condition of the claimant’s thumb for the purpose of a 1208 violation.” Again we disagree. The trial judge did not attempt to make a medical diagnosis of Mr. Arguello’s thumb; rather, she simply noted her observations regarding a physical characteristic of his thumb, apparent to any layman, which directly contradicted his testimony regarding the condition of his thumb. We do not find this in-court observation to be improper for the trial judge to consider when assessing Mr. Arguello’s credibility.

After a thorough review of the entire record, we are unable to conclude that the trial judge was manifestly erroneous or clearly wrong in finding that Mr. Arguello willfully made false statements for the purpose of obtaining benefits. We therefore affirm the finding that he forfeited his right to benefits pursuant to La. R.S. 23:1208.

Having concluded that the trial judge was not manifestly erroneous in finding that Mr. Arguello has forfeited his right to workers’ compensation benefits, it is unnecessary for us to address whether the trial judge erred in failing to impose | (¡penalties and attorney fees on Brand for its failure to reasonably controvert his claim.

CONCLUSION

For the foregoing reasons, we affirm the judgment dismissing Mr. Arguello’s claim for workers’ compensation benefits with prejudice.

AFFIRMED.


text:
    Nadia SHAHEEN v. Najmi Shamim KHAN.
    No. 13-CA-998.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 21, 2014.

      Marc D. Winsberg, Robin Penzato Arnold, Jonathan D. Gamble, Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Appellee.
    Naomi Kim, April Davenport, Attorneys at Law, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT A. CHAISSON, and ROBERT M. MURPHY.
   ROBERT M. MURPHY, Judge.

[^Appellant, Najmi Shamim Khan (“Dr. Khan”), appeals the trial court’s April 30, 2013 judgment following a partition trial of the parties’ community property. The issues include whether the parties, who were married in their native India and became domiciled in Louisiana at different times, had a community property regime, whether the wife Nadia Shaheen (“Ms. Sha-heen”) was entitled to the return of two sets of jewelry, whether the community was entitled to reimbursement against Dr. Khan for funds provided to his family in India during his marriage, and whether Dr. Khan was entitled to reimbursement against Ms. Shaheen for her graduate MBA education at the University of New Orleans including her living expenses. For the reasons that follow, we affirm as amended.

FACTS AND PROCEDURAL HISTORY

On February 19, 2003, the parties were wed in a Muslim ceremony in Pat-ma, India, after which Dr. Khan, a medical doctor, became domiciled in Louisiana in advance of his wife. In January 2006, approximately two years and eleven months later, Ms. Shaheen, with the equivalent of a master’s degree in | ^computer programming in India, became domiciled in Louisiana to be with her husband.

In 2007, Ms. Shaheen began her graduate studies at UNO and graduated with a Masters Degree in Business Administration in 2009. She contends her husband would not permit her to work and forced her to obtain an MBA.

The parties separated in 2010. On December 20, 2010, Ms. Shaheen filed for a La. C.C. art. 102 divorce. On December 9, 2011, the trial court granted the divorce. Each party filed a sworn descriptive list. Dr. Khan filed a motion to traverse. On February 6, 2013, after hearing arguments on the Islamic marriage contract, the hearing officer recommended that Ms. Sha-heen’s list be used for the partition. He found that the parties did have community property, specifically finding that “at no time after moving to Louisiana from India did the parties execute a renunciation of community.” On February 8, 2013, appel-lee filed an amended sworn detailed descriptive list of her assets and liabilities. On March 18, 2013, appellant filed his “alternative” sworn descriptive list, to be considered if the trial court were to find that a community regime existed. Both parties filed objections to the hearing officer’s recommendations which were heard by the trial court on March 21, 2013.

On April 30, 2013, the trial court rendered a judgment and assigned detailed reasons declaring that a community property regime existed pursuant to La. C.C. art. 2334. The trial court granted Ms. Shaheen’s reimbursement claim for the Lunreturned community funds provided to Dr. Khan’s family and denied Dr. Khan’s reimbursement claim for payment of Ms. Shaheen’s graduate school tuition along with her living expenses. The trial court further ordered Dr. Khan to return jewelry. Dr. Khan’s appeal followed.

ASSIGNMENTS OF ERROR

1. The trial court erroneously determined that the parties entered into a community property regime.
2. The trial court erroneously determined that the donations to family members were not a usual and customary gift of value commensurate with the economic position of the parties.
3. The trial court erroneously determined that Ms. Shaheen did not concur in the donation made to family members.
4. The trial court erroneously denied Dr. Khan’s claim for the direct financial contribution to Ms. Sha-heen’s education and training.
5. The trial court erroneously ordered that Dr. Khan return jewelry belonging to Ms. Shaheen.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). The Louisiana Supreme Court established a two-part test for the reversal of a fact-finder’s determinations:

1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court; and
2) The appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

LAW AND DISCUSSION

In assignment of error number one, the appellant contends that the trial court erroneously determined that the parties entered into a community property regime. | ^Appellant contends the parties entered into a marriage contract that excluded the legal regime of acquets and gains, and thus the couple owned no community property.

Dr. Khan argues that in India, there is no regime of community property. The appellant also contends that the parties, both Muslim, entered into a marriage contract with a separate property regime. Dr. Khan contends that it is typical in Muslim marriages for the parties to enter a secular marriage contract. Dr. Khan relies on the “mahr” provision in the contract, which sets the price to be paid by the husband to the wife in the event of a divorce. Dr. Khan contends that it was the intent of the parties to hold property in their separate names and to pay Ms. Shaheen the specified sum in the mahr provision in the contract in the event of divorce.

Appellant cites cases involving the mahr provision. In Chaudry v. Chaudry, 159 N.J.Super. 566, 388 A.2d 1000, 1002 (1978), cert. denied, 78 N.J. 335, 395 A.2d 204 (1978), the appellate court gave comity to a Pakistani judgment of divorce. It held that the wife waived her rights to any future property obtained during the marriage by signing the marriage contract and by agreeing on the price of the mahr. Appellant further cites Aziz v. Aziz, 127 Misc.2d 1013, 488 N.Y.S.2d 123, 124 (N.Y.Sup.Ct.1985), in enforcing the mahr provision as a sum certain by applying ordinary contract law. In Zawahiri v. Alwattar, No. 07AP-925, 2008 WL 2698679, at p. 1 (Ohio Ct.App. July 10, 2008), the Ohio Court similarly applied ordinary contract law, finding that the contract was not void as Islamic or foreign, but rather was unenforceable as it was entered into under duress.

The appellee first objects to the admission of the translation of the marriage contract as inadmissible hearsay, as the expert/translator provided only an attached affidavit and did not qualify as required under La. C.E. art. 604. Appellee | ficontends that appellant relies on cases that are inapposite to the instant facts. None of the cited cases from New Jersey, New York, and Ohio were adjudicated in community property states or involved the division of community property. Appellee seeks straightforward application of the domicile test of La. C.C. art. 2334 which requires application of the legal regime of the community of acquets and gains to those “spouses domiciled in this state, regardless of their domicile at the time of marriage or the place of celebration of the marriage.”

The trial court found that the legal regime of acquets and gains applied to the parties pursuant to La. C.C. art. 2334. The trial court found no evidence that the parties ever sought to remove themselves from the community property regime according to La. C.C. art. 2328, nor did they file any document evidencing any wish to deviate from the regime via exclusion or modification according to La. C.C. art. 2329.

We find Louisiana law applicable as to the distribution of movables acquired in Louisiana by Dr. Khan. La. C.C. art. 3523. The issue of admissibility of the translation is of no moment. Even if the contract’s translation to English were properly admitted, it contains no provision renouncing the community property regime, as required under La. C.C. art. 2328, for couples domiciled here desiring to establish a separate property regime. It further contains no contractual exclusions or modifications to constitute a matrimonial agreement under La. C.C. art. 2328. Additionally, there is no evidence of an authentic act or act under private signature duly acknowledged by the spouses stating that the document should be considered]^ matrimonial agreement. If the couple wished to exclude or modify the matrimonial regime, they could have done so without court approval “during the first year after moving into and acquiring a domicile in this state.” La. C.C. art. 2329.

We find that the trial court was not manifestly erroneous in its finding that the parties did not execute a matrimonial agreement terminating the community property regime. We conclude that on January 22, 2006 when Ms. Shaheen joined her husband in Louisiana and both spouses established domicile here, the parties were thereafter subject to the community property regime. La. C.C. art. 2334; Hand v. Hand, 01-0714 (La.11/28/01), 802 So.2d 560 (holding that when parties are married elsewhere, both spouses must be domiciled in Louisiana to create a community property regime).

Assignment of error number one lacks merit in part. Per the Louisiana Supreme Court’s holding in Hand, the community of acquets and gains was established when the second spouse became domiciled with her husband in Louisiana.

In assignment of error number two, appellant contends that the trial court erroneously determined that the donations to family members were not a usual and customary gift of a value commensurate with the economic position of the parties. Dr. Khan donated $54,850 from the checking account to his family over six years. With $15,000 returned by Dr. Khan’s brother, Ms. Shaheen contends the amount at issue is $39,850, of which no donations were made to her family members. La. C.C. art. 2349 provides:

The donation of community property to a third person requires the concurrence of the spouses, but a spouse acting alone may make a usual or customary gift of value commensurate with the economic position of the spouses at the time of the donation.

| sAppellant contends the donations to family members were a usual or customary gift of a value commensurate with the economic position of the spouses at the time of the donation. He also argues that several of the checks were for Ms. Shaheen’s benefit while she was still in India, for a family member’s bone transplant, and for his mother to give to the poor. Appellant cites Schindler v. Schindler, 13-361 (La.App. 5 Cir. 12/19/13), 131 So.3d 439, in which this Court upheld that donations of $102,000 for a house and two cheeks totaling $9,000.00 to his caretaker, were of a usual and ’ customary amount given the economic position of the husband and wife, and thus the wife’s consent was not required. The Fifth Circuit stated that the amount of the donations “were quite in line with, and were in fact less than, the very generous donations that the Schindlers made to others who were not family members, and/or who provided or did not provide care to them.” Id. Appellant cites In re Succession of Wagner, 08-212 (La.App. 1 Cir. 8/8/08), 993 So.2d 709, 721, in which the First Circuit rejected the classification of the gift of $450,000 of gold coins to be a usual and customary gift, determining that the value was larger than the customary gifts to their children and grandchildren, more typically in the range of $10,000 to $20,000.

Appellant here contends that making monetary donations to his family members in India is a custom engrained in a communal Indian culture and upbringing and the trial court erred by not considering the particular cultural context of these gifts. Appellant notes that both parties were raised in India and only left India during their adult years. Appellant stresses that the gifts totaling less than $60,000 were small and spread out over the course of six years as compared to his annual income in the range of $165,000 to $200,000. He argues that the gifts are warranted without her approval. He further contends that his wife consented as she knew how much and to whom the money was going.

13Appellee seeks reimbursement of one-half of community funds donated to his family without her consent. She contends that his gifts to family members were not usual or customary gifts of a value commensurate with the economic position of the spouses at the time of the donation. In response to this contention that the funds were for her benefit while in India, she contends that she never received any such funds. As for the fact that she did fill in the blanks on some of the checks, she responds that she was forced to do so and did not approve.

Despite appellant’s argument supporting remittances to his mother and two brothers, as to any payments made after the community was established on January 22, 2006, we are unable to find that the trial court manifestly erred in finding the gifts exceeded what is usual or customary; Ms. Shaheen is therefore entitled to one-half of the community funds donated after January 22, 2006.

The trial court found that Ms. Shaheen was entitled to reimbursement of one-half of community funds sent to Dr. Khan’s family. The trial court rejected the argument that pursuant to La. C.C. art. 2349 he was permitted to make those gifts because they were usual or customary gifts of a value commensurate with their economic position. The trial court found that La. C.C. art. 2349 generally applies to birthday and wedding gifts rather than to the substantial cash payments here.

The trial court calculated the donated community assets at $39,850 and awarded Ms. Shaheen one-half, or $19,925. As to the amount of reimbursement, we find that the trial court manifestly erred in calculating the amount of reimbursement to the community in light of the holding in Hand, supra. The calculation of her share of the community includes all amounts sent to his family after the establishment of the community on January 22, 2006. It is clear from the | inrecord that the following three payments were made to Dr. Khan’s oldest brother before January 22, 2006:

310 5/4/05 Zaidi Khan $1,500

340 6/4/05 Zaidi Khan 500

349 7/14/05 Zaidi Khan 20,000

TOTAL, Pre-1/22/06 $22,000

This $22,000 amount therefore represents Dr. Khan’s separate movable property. Dr. Khan’s 19 payments to his three family members totaling $32,850 after January 22, 2006, the date the community was established, therefore constitute community assets, of which Ms. Shaheen’s one-half share is $16,425.

Assignment of error number two has merit, and we amend the trial court’s judgment accordingly. She is entitled to one-half of the community funds transferred between Dr. Khan and his family members after the community was established, or $16,425.

In assignment of error number three, the appellant contends that the trial court erroneously determined that Ms. Shaheen did not concur in the donation made to family members.

| nThe appellant contends that the donations had Ms. Shaheen’s concurrence under La. C.C. art. 2349. He relies on the physical evidence that she handwrote all the blank fields on the checks except for the signature line. He reiterates that arranged marriages and remittances, as here, are deeply rooted in Indian culture and that she willingly participated in the transfer of these funds.

Contrariwise, the appellee contends that she was forced to complete the checks. She notes that she is a victim of domestic physical and emotional abuse. She states that appellant hit her on numerous ocea-sions and that she was unable to refuse his demands.

The trial court found that Ms. Shaheen did not concur in the donation of community funds to members of the Khan family.

On the record presented, including protection from abuse, we find that the trial court did not manifestly err in finding that Ms. Shaheen did not concur in the donation of community funds, with or without the arranged marriage or her consent on other issues.

Assignment of error number three lacks merit.

In assignment of error number four, the appellant contends that the trial court erroneously denied Dr. Khan’s claim for his direct financial contribution to Ms. Shaheen’s education and training, via UNO tuition expenses and living expenses. He claims that he contributed approximately $26,000 in tuition and $3,000 per month in living expenses.

Dr. Khan seeks reimbursement under La. C.C. art. 121 which provides the trial judge with discretion to award a sum for his financial contribution made during the marriage to the education of his spouse. La. C.C. art. 121 provides:

In a proceeding for divorce or thereafter, the court may award a party a sum for his financial contributions made during the marriage to education 112or training of his spouse that increased the spouse’s earning power, to the extent that the claimant did not benefit during the marriage from the increased earning power.
The sum awarded may be in addition to a sum for support and to property received in the partition of community property. (Emphasis added).

The appellant contends that the court should consider the husband’s financial contribution made to the wife’s education. He contends that he merely encouraged her to go to school and emphasizes the importance of higher education in Indian and Asian cultures. He argues that benefits from a higher degree accrue in different ways, even if your current job may not require you to have an advanced degree. He argues that Ms. Shaheen has never contributed back to the household.

Appellant cites McConathy v. McConathy, 632 So.2d 1200 (La.App. 2 Cir.1994), writ denied, 637 So.2d 1052 (La.1994), in which the Second Circuit found that the wife was entitled to an award under La. C.C. art. 121, when the husband returned to college to complete his degree and she worked full-time and provided the primary financial support for the family.

Appellee contends that the trial court correctly denied Dr. Khan’s claim for financial contribution to her education. Dr. Khan forced her to attend school by not permitting her to work. She contends she had no interest in continuing her studies as she had just received a Master’s Degree in computer programming in India. She notes that she is currently working as a business analyst, a position she contends does not require an MBA; she contends that this recent degree, which she was forced to obtain, does not benefit her.

The trial court found that “the court can’t at this point, discern any benefit that Ms. Shaheen has obtained from obtaining an MBA in that she is not working in a field which apparently requires an MBA nor has she obtained any employment 113for which an MBA would be necessary.” Here, Ms. Shaheen did not work for three years when she first came to Louisiana from India. It was during this time that she attended UNO to obtain her MBA.

The trial court has great discretion in determining whether the contributing spouse is entitled to reimbursement that increases his spouse’s earning power. Barrow v. Barrow, 27,714 (La.App. 2 Cir. 2/28/96), 669 So.2d 622, writ denied, 96-1057, 96-1072 (La.6/21/96), 675 So.2d 1080, superseded by statute on other grounds, Talbot v. Talbot, 03-0814, p. 9 (La.12/12/03), 864 So.2d 590, 598. The Barrow Court considered three factors, all of which support the denial of Dr. Khan’s request for an Article 121 contribution: (1) his expectation of shared benefit when the contributions were made; (2) degree of detriment suffered by the claimant in making the contribution; and (3) magnitude of the benefit received by the other spouse. Id. Considering the argument that Dr. Khan originally did not want his wife to work, his own significant income, and her lack of benefit from having the additional degree, we find that the trial court was not manifestly erroneous in denying Dr. Khan’s claim for reimbursement.

Assignment of error number four lacks merit.

In assignment of error number five, the appellant contends that the trial court erroneously ordered that he return jewelry belonging to Ms. Shaheen as her separate property.

Appellant contends Ms. Shaheen has not offered any credible evidence to corroborate her allegations, including any description, value, or location of the jewelry, any entry into customs declarations, or any mention of the jewelry since moving to the United States in 2006. Appellant contends that she has not offered any support that Dr. Khan is in possession of this jewelry and that he should not be ordered to return something that has not been proven to be in his possession.

114The trial court ordered that the jewelry be returned to her as her separate property. Specifically the trial court ordered that two (2) wedding sets composed of a necklace, bracelet, ring and earrings be returned. We find that the trial court did not manifestly err in ordering Dr. Khan to return the jewelry to Ms. Shaheen as her separate property.

Assignment of error number five lacks merit.

DECREE

For the reasons above, we affirm the judgment of the trial court insofar as the denial of reimbursement of educational and living expenses and ordering the return of the two jewelry sets. We amend the amount Ms. Shaheen is entitled to from community funds from $19,925 to $16,425, reflecting her share of the transferred community property to his family members after the community was established.

AFFIRMED AS AMENDED.

      . Ms. Shaheen testified that she became domiciled in Louisiana either on January 21 or 22, 2006.

      . Initial filings include Ms. Shaheen's December 1, 2010 petition from domestic abuse, Dr. Khan’s answer that he wished to reconcile and that her allegations were an expression of Ms. Shaheen’s general dissatisfaction with the arranged marriage, and the TRO granted on January 11, 2011.

      . Dr. Khan initially contested service of the La. C.C. art. 102 petition. This Court found that Dr. Khan waived the exception of insufficiency of service by entering into a January 31, 2011 Consent Judgment. Khan v. Shaheen, 11-770 (La.App. 5 Cir. 9/16/11) (unpublished writ disposition).

      .La. C.C. art. 2334 provides:
      The legal regime of community of acquets and gains applies to spouses [plural] domiciled in this state, regardless of their domicile at the time of marriage or the place of celebration of the marriage. (Emphasis added).

      . The same April 30, 2013 judgment also deemed as community property funds in Chase Bank checking and savings accounts, Valic and United Life Insurance retirement accounts, UNO balance of account, and a 2002 Honda Accord. These issues are not the subject of this appeal.

      . La. C.C. art. 3523 provides:
      Except as otherwise provided in this Title [General Provisions of Conflict of Laws], the rights and obligations of spouses with regard to movables, wherever situated, acquired by either spouse during marriage are governed by the law of the domicile of the acquiring spouse at the time of acquisition.

      . La. C.C. art. 2328 provides:
      A matrimonial agreement is a contract establishing a regime of separation of property or modifying or terminating the legal regime. Spouses are free to establish by matrimonial agreement a regime of separation of property or modify the legal regime as provided by law. The provisions of the legal regime that have not been excluded or modified by agreement retain their force and effect.

      . Dr. Khan's post-January 22, 2006 payments to his family members constituting community assets:

      446 7/31/06 Zaidi Khan $6,400
      477 12/17/06 Zaidi Khan 2,000
      481 1/8/06 Forhan Khan 1,500
      491 6/26/07 [Dr. Khan’s mother] 1,000
      410 11/14/07 Craity Ana Kosy 2,700
      670 5/29/08 Zaidi Khan 500
      588 12/31/08 [Dr. Khan’s mother] 2,000
      589 1/20/09 [Dr. Khan’s mother] 1,300
      678 5/14/09 Zaidi Khan 600
      592 9/10/09 Zaidi Khan 800
      717 2/3/10 Zaidi Khan 1,500
      719 4/19/10 Zaidi Khan 2,000
      741 5/9/10 Zaidi Khan 3,000
      748 6/26/10 Zaidi Khan 500
      761 7/22/10 Zaidi Khan 325
      765 8/25/10 Forhan Khan 1,500
      766 8/25/10 Forhan Khan 3,750
      767 8/25/10 Zaidi Khan 200
      763 8/25/10 Zaidi Khan 1,275
      TOTAL, Post-1/22/06 Transfer $32,850


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Spence ADAMS.
    No. 13-KA-992.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 21, 2014.

      Thomas F. Daley, District Attorney, Or-enthal Jasmin, Assistant District Attorney, Laplace, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and HANS J. LILJEBERG.
   FREDERICKA HOMBERG WICKER, Judge.

|Jn this criminal appeal, defendant claims that the trial judge erred in denying his motion for a mistrial and motion for a new trial on the ground that the prosecuting attorney improperly questioned a state witness regarding defendant’s post-arrest silence during trial in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). For the following reasons, we find that the prosecutor’s reference to defendant’s post-arrest silence was clearly improper and that the trial court clearly erred in ruling that the prosecutor could query the investigating officer regarding defendant’s exercise of his Fifth Amendment privilege against self-incrimination. However, in the context of this trial, these errors do not warrant reversal. Accordingly, we affirm defendant’s conviction and sentence.

J^STATEMENT OF THE CASE

On February 13, 2012, a St. John the Baptist Parish Grand Jury indicted defendant, Spence Adams, with the second degree murder of Eric LaBranche in violation of La. R.S. 14:30.1. The trial court subsequently granted the state’s motion to amend the indictment to charge defendant with the manslaughter of Eric LaBranche in violation of La. R.S. 14:3o. Defendant was arraigned and pled not guilty.

The matter proceeded to trial by jury on January 15, 2013. On the second day of trial, defendant moved for a mistrial on the ground that a state witness improperly referenced defendant’s post-arrest silence during trial. The trial judge denied the motion for mistrial and on, January 17, 2013, the jury found defendant guilty as charged. Defendant subsequently filed a motion for a new trial on the same ground, which the trial court denied. After a pre-sentence investigation, the trial judge sentenced defendant to thirty-two years imprisonment with the Department of Corrections. This timely appeal follows.

FACTUAL BACKGROUND

The defense and state stipulated to the following facts: (1) defendant used a nine millimeter Smith and Wesson semi-automatic pistol to kill the victim, Eric La-Branche; (2) the bullet recovered from the victim’s body came from the nine millimeter Smith and Wesson pistol used by defendant to kill the victim; and (3) the gun used to kill the victim was recovered in a nearby trash can by officers immediately after the shooting.

14At trial, the defense presented the theory that, during an argument between the victim and defendant, the victim threatened defendant with a gun — which the victim’s cousin, Lionel LaBranche, hid before the police arrived — and that defendant killed the victim in self-defense. The following testimony and evidence was presented at trial:

Sehrone LaBranche, the aunt of the victim, resides at 8880 Houma Blvd. with her daughter, Alexis LaBranche, and her son, Lionel LaBranche. Sehrone LaBranche testified that, on January 22, 2012, she observed defendant and the victim outside of her home arguing over a car radio that defendant allegedly stole from the victim the night before. Alexis LaBranche testified that defendant and the victim were underneath the carport outside her home when she overheard defendant attempting to sell to the victim a car radio in a black bag. She testified that the victim recognized the car radio as his own radio that was stolen the night before. Sehrone and Alexis LaBranche both testified that defendant and the victim then stood near the street arguing and “tusseled” over the black bag containing the car radio. They tried to break up the argument between defendant and the victim and, after Sehrone LaBranche told defendant to go away and told the victim to go back to his car, defendant walked away. As defendant walked away, he turned around and told the victim, “Ah-ha ... I still got your radio. Bitch, you wanna fight?” At that point, the victim turned around and started walking toward defendant. Sehrone LaBranche testified that defendant then pulled a gun out of his pants and shot the victim at close range. Defendant fled the scene. Everyone 15else, including Sehrone LaBranche’s son, Lionel LaBranche, also ran from the scene.

Sehrone and Alexis LaBranche testified that defendant did not appear afraid during the argument and that the victim did not have any type of weapon in his possession. They further testified that the victim never punched or physically hurt defendant and that defendant never gave the victim a verbal warning prior to shooting him.

A neighbor, Karen Ellis, also witnessed the shooting. She testified that she saw defendant and the victim arguing on the sidewalk near the street. Ms. Ellis testified that it appeared defendant was walking away and then for some reason he and the victim started arguing again. She stated that the victim took three or four steps towards defendant, and defendant then backed up and shot the victim. She did not hear defendant give the victim any verbal warning and did not see any physical altercation between the victim and defendant before the shooting. She also testified that she did not see any weapon in the victim’s hand during the argument.

Another neighbor, Zelvin Taylor, did not witness the shooting but testified that she saw defendant, who she recognized from the neighborhood, in her backyard immediately following the shooting. She testified that defendant paced back and forth in her backyard while on his cell phone with his mother, saying, “I had to do what I had to do. I took the gun out and I shot him. I had to do what I had to do momma.” She further testified that she was afraid after hearing defendant in her backyard; she stated that defendant appeared to be bragging and did not appear to be afraid. Ms. Taylor contacted 9-1-1 to report the incident.

Sergeant Lawrence Sylvan, a patrol officer with the St. John the Baptist Parish Sheriffs Office, testified that he responded to a 9-1-1 call in reference to a | ^shooting at 8880 Houma Blvd. Sergeant Sylvan secured the crime scene and interviewed witnesses, Schrone LaBranche and Karen Ellis. Deputy Michael Pugh with the St. John the Baptist Parish Sheriffs Office testified that he collected, packaged, and secured the evidence at the crime scene. Deputy Pugh recovered a spent nine millimeter casing round from the roadway near 8880 Houma Drive and a firearm in a nearby garbage can with a magazine containing unspent rounds. Deputy Pugh testified that no other weapon was recovered from the scene.

Deputy Will Stelly of the Criminal Investigation Division of the St. John the Baptist Parish Sheriffs Office testified that he investigated the homicide of the victim and that his investigation ultimately resulted in defendant’s arrest. In his initial investigation at the scene, he identified and obtained recorded statements from witnesses Karen Ellis, Schrone La-Branche , and Alexis LaBranche. Detective Stelly testified that no witness accounts in his initial investigation led him to believe that a self-defense investigation was necessary.

Detective Stelly testified that, the morning following the shooting, defendant’s mother contacted the sheriffs office and advised that she would bring defendant to headquarters to turn him in. Detective Stelly testified that, upon defendant’s arrival to headquarters, he placed defendant under arrest. He advised defendant of his Miranda rights, and defendant executed with him a waiver of rights form. Detective Stelly testified that defendant did not provide any statement to police after his arrest.

In July of 2012, Detective Stelly learned of another possible witness, Ms. Eriyon Sheppard. Detective Stelly located Ms. Sheppard on Houma Drive and 17scheduled her to come into headquarters to provide a recorded statement; however, Ms. Sheppard never came to headquarters to give a statement. He testified that, in his initial contact with Ms. Sheppard, she did not provide any information to lead him to believe that he needed to investigate self-defense in this case. Detective Stelly testified to his opinion that he investigated this matter fully and that only one weapon of any kind was recovered from the scene.

After the state rested its case, the defense presented the testimony of Eriyon Sheppard. Ms. Sheppard testified that she resides at 8879 Houma Drive. She testified that, on the date of the shooting, she heard a shot fired, looked outside of her bedroom window, and saw the victim lying on the ground. She further testified that she saw Lionel LaBranche, Schrone LaBranche’s son, run from the scene and across the street to her house, carrying a gun underneath his arm. She saw Lionel LaBranche run under her carport with a gun and subsequently saw him run back into the street without a gun under his arm.

Ms. Sheppard' testified that, on the date of the shooting, she informed the investigating officers of what she witnessed and gave them a key to her backyard to search for a gun. However, she testified that the officers informed her they did not locate any gun in her backyard. Ms. Sheppard stated that she never provided a formal statement to police because the officers questioned the certainty of what she said she witnessed and appeared to not believe her story. Ms. Sheppard acknowledged at trial that she attended school with defendant, that she has a close relationship to defendant’s mother, and that she has spoken to defendant on the phone since he has been incarcerated.

[ ^DISCUSSION

In his sole assignment of error, defendant claims that the trial court erred in denying his motion for mistrial and motion for a new trial on the ground that the state’s witness, Detective Stelly, improperly referenced defendant’s post-arrest silence at trial. During Detective Stelly’s direct examination, the following took place:

Q... .And at that time, did you advise the defendant of his rights per Miranda?
A. Yes, ma’am, I did.
Q. Okay. And in advising him of his rights, did you execute a rights form?
A. Yes, ma’am, I did.
Q. And do you know — can you tell the jury whether or not the defendant elected to talk to the police—
Defense Counsel: Objection, Your Hon- or.
(At which point, an off-the-record bench conference took place)

The trial judge then overruled defendant’s objection and allowed the state to question Detective Stelly as to whether defendant provided a statement to police after his arrest:

Q. As part of your investigation, did you obtain a statement from the defendant?
A. No, ma’am, I did not.
Q. Why not?
A. When I advised him of his rights, he stated that he did not want to speak to me without his attorney present.
Q. In your investigation after you interviewed everybody—
A. Yes, ma’am.
Q. —your initial investigation in January in talking to the witnesses was there anything that they said or anything that happened in this ease, including the crime scene evidence, evidence that was collected at the scene that made you feel like you had to investigate a self-defense issue with regards to the crime?
A. No, ma’am.

At the next recess, defense counsel orally moved for a mistrial, arguing that it was improper for the state to question Detective Stelly regarding defendant’s exercise of his Fifth Amendment privilege to remain silent after his arrest. In response, the state argued that the purpose of Detective Stelly’s testimony was simply to let the jury know that he advised defendant of his rights and that no inappropriate police conduct occurred in this case. Defense counsel replied that because there are no allegations of police misconduct or abuse in this case, the state’s questioning was improper and warrants a mistrial. The trial judge found that the state’s questioning was proper and denied defendant’s motion for mistrial. Nevertheless, at the conclusion of trial, the trial judge provided the following instruction to the jury prior to deliberations:

Upon arrest, the defendant was advised of his right to remain silent. No presumption of any kind may be raised and no inferences of any kind may be drawn from the fact that the defendant chose to exercise their [sic] constitutional rights to remain silent.

Following trial, defendant filed a motion for a new trial on the same ground — that the trial judge erred in overruling defense counsel’s objections to the [^state’s questions to Detective Stelly as to defendant’s post-arrest silence. After a hearing on the motion, the trial judge denied the motion finding that defendant failed to show any injustice as a result of Detective Stelly’s testimony regarding defendant’s post-arrest silence. The trial judge found that the state’s questions to Detective Stelly were “aimed at showing the circumstances of the defendant’s arrest and the extent of the investigation, not to exploit the defendant’s failure to claim his innocence after arrest or attack his defense.”

In this appeal, defendant assigns as error the trial judge’s denial of his motion for mistrial and motion for a new trial. For the following reasons, we find the trial judge did not abuse his discretion in his ruling on the motion for mistrial and motion for a new trial and we affirm defendant’s conviction and sentence.

Standard of Review

Motion for Mistrial

La.C.Cr.P. art. 775 provides for a mistrial if prejudicial conduct inside or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized under La.C.Cr.P. arts. 770 or 771. A mistrial under La.C.Cr.P. art. 775 is discretionary and is warranted only when trial error results in substantial prejudice to the defendant depriving him of a reasonable expectation of a fair trial. State v. Davis, 07-544 (La.App. 5 Cir. 12/27/07), 975 So.2d 60, 68, writ denied, 08-380 (La.9/19/08), 992 So.2d 952.

Under La.C.Cr.P. art. 771, a mistrial is discretionary when a witness makes an irrelevant remark that might prejudice the defendant. Article 771 gives the trial court the option to either admonish the jury, upon motion of the defendant, or, if an | n admonition does not appear sufficient, to declare a mistrial. State v. Johnson, 10-209 (La.App. 5 Cir. 10/12/10), 52 So.3d 110, 124, writ denied, 10-2546 (La.4/1/11), 60 So.3d 1248. A mistrial should be granted under Article 771 only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. State v. Thomas, 08-390 (La.App. 5 Cir. 1/27/09), 8 So.3d 80, 86-87, writ denied, 09-626 (La.11/25/09), 22 So.3d 170; State v. Pierce, 11-320 (La.App. 5 Cir. 12/29/11), 80 So.3d 1267,1271-72.

A mistrial is a drastic remedy and is warranted only when trial error results in substantial prejudice to a defendant that deprives him of a reasonable expectation of a fair trial. Whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed absent an abuse of .discretion. State v. Lagarde, 07-123 (La.App. 5 Cir. 5/29/07), 960 So.2d 1105, 1113-14, writ denied, 07-1650 (La.5/9/08), 980 So.2d 684.

Motion for a New Trial

Defendant also filed a motion for a new trial on the same ground that the trial judge erred in overruling defense counsel’s objections to the state’s questioning of Detective Stelly, referencing defendant’s post-arrest silence, and that the trial judge’s error warrants a new trial under the facts of this case.

Under La.C.Cr.P. art. 851(2), the trial court shall grant a new trial whenever “[t]he court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error.” According to La.C.Cr.P. art 851, a new 112trial motion “is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.”

The denial of a motion for a new trial is not subject to appellate review except for an error of law. La.C.Cr.P. art. 858. Further, the ruling on a motion for a new trial is committed to the sound discretion of the trial judge and will not be disturbed on appeal absent a clear showing of abuse of that discretion. State v. Bibbins, 13-875 (La.App. 5 Cir. 4/9/14); State v. Gerard, 96-366 (La.App. 5 Cir. 11/14/96), 685 So.2d 253, 260. The merits of a motion for a new trial must be viewed with extreme caution in the interest of preserving the finality of judgments. Id.; see also State v. Rodriguez, 02-334 (La.App. 5 Cir. 1/14/03), 839 So.2d 106, 133, writ denied, 03-0482 (La.5/30/03), 845 So.2d 1061, cert. denied, 540 U.S. 972, 124 S.Ct. 444,157 L.Ed.2d 321 (2003).

Analysis

In Doyle v. Ohio , the United States Supreme Court held that reference to a defendant’s silence at the time of his arrest for impeachment purposes violates his due process rights. It is well settled that, even in cases where a defendant does not testify in his own defense, it is improper to reference the fact that an accused exercised his right to remain silent, after he had been advised of that right, solely to ascribe a guilty meaning to his silence or to undermine, by inference, an exculpatory version of events related by the accused, for the first time at trial. State v. Pierce, 11-320 (La.App. 5 Cir. 12/29/11), 80 So.3d 1267, 1272; State v. Montoya, 340 So.2d 557 (La.1976).

113In State v. George, the Louisiana Supreme Court explained:

This court has expressed its disapproval of placing before the jury evidence that the police advised the defendant of his Miranda rights at the time of his arrest when the testimony does not establish a predicate for admitting a subsequent oral or written inculpatory statement and thereby invites jurors to consider the defendant’s post-arrest silence as an impeachment of an exculpatory account later offered at trial. State v. Mosley, 390 So.2d 1302 (La.1980); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

State v. George, 95-0110 (La.10/16/95), 661 So.2d 975, 979.

Clearly, in this case, the prosecutor’s line of questions to the investigating officer regarding defendant’s exercise of his Fifth Amendment privilege against self-incrimination was improper and impermissible. Likewise, the trial judge’s ruling overruling defense counsel’s objection to this impermissible line of questions was also in error. See State v. Kersey, 406 So.2d 555, 560 (La.1981); State v. Smith, 336 So.2d 867, 868 (La.1976); State v. Montoya, 340 So.2d at 560.

In this case, defendant’s conviction stands only because: (1) the trial as a whole was fairly conducted; (2) the proof of guilt was strong; and (3) the prosecutor did not return to the topic of defendant’s post-arrest silence a second time in her direct or redirect and did not refer to this point in closing argument. See State v. Pierce, 80 So.3d at 1272; State v. Campbell, 97-369 (La.App. 5 Cir. 11/25/97), 703 So.2d 1358, 1361; State v. Smith, 336 So.2d at 869.

In this case, where the line of questioning objected to was argued before the judge out of the presence of the jury before the questions were asked, we cannot say that the prosecutor unwittingly fell into pursuing an unconstitutional line of questioning. While a brief reference to a defendant’s post-arrest silence does not in every case require reversal, nor is it permissible for the prosecutor to intentionally thread the needle by impermissibly laying before the jury a | ^defendant’s post-arrest silence and then carefully moving away to another line of questioning.

Nevertheless, this Court has consistently held that “a brief reference to post-Miranda silence does not mandate a mistrial or reversal where the trial as a whole was fairly conducted, the proof of guilt is strong, and the state made no use of the silence for impeachment purposes.” Pierce, supra, State v. Campbell, supra-, See also State v. Smith, 336 So.2d 867 (La.1976). (Compare to cases in which post-arrest silence was stressed or emphasized at trial (State v. Grant, 99-1065 (La. App. 5 Cir. 1/25/00), 761 So.2d 10, 12-14 (wherein the defendant was repeatedly asked at trial why he didn't "talk to anybody else ... when you [the defendant] first got arrested") and State v. Montoya, 340 So.2d at 562 (wherein the prosecutor implicitly referenced the defendant's failure to testify at trial, argued at trial that the defendant had to "explain his possession [of stolen property]," and where additional errors further compounded a state witness' reference to the defendant's post-arrest silence).

In this case, the record reflects that the prosecutor did not emphasize or stress defendant's post-arrest silence. After questioning Detective Stelly about whether defendant made a statement to police after his arrest, the prosecutor moved on to question the detective about the other witness accounts, including defense witness Ms. Sheppard, to demonstrate that he completed a thorough investigation that did not involve any indication to investigate self-defense in this case.

J~Additionally, at the conclusion of trial, the trial judge provided an instruction to the jury that no presumption or inference could be drawn from defendant's post-arrest silence.'

We reiterate the Louisiana Supreme Court's disapproval of "placing before the jury evidence that the police advised the defendant of his Miranda rights at the time of his arrest when the testimony does not establish a predicate for admitting a subsequent oral or written inculpatory statement and thereby invites jurors to consider the defendant's post-arrest silence as an impeachment of an exculpatory account later offered at trial." State v. Mosley, 390 So.2d 1302, 1305-06 (La.1980). However, while we clearly do not condone this improper line of questioning designed to elicit inadmissible evidence, we do not find the error warrants reversal nor a new trial under the facts of this case, where the trial as a whole was conducted fairly and the proof of defendant's guilt was overwhelmingly strong. See State v. Pierce, 80 So.3d at 1272; State v. Campbel4 97-369 (La.App. 5 Cir. 11/25/97), 703 So.2d 1358, 1361; State v. Smith, 336 So.2d at 869.

ERRORS PATENT REVIEW

We have reviewed the record for errors patent in conformity with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

The record reflects that the trial court failed to adequately advise defendant of the time period for seeking post-conviction relief as required by La.C.Cr.P. art. 930.8. Accordingly, we hereby advise defendant that, pursuant to La.C.Cr.P. art. 930.8, no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the J~judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. art. 914 or 922. See State v. Ramsey, 10-333 (La.App. 5 Cir. 1/25/11), 60 So.3d 36, 42.

CONCLUSION

Accordingly, for the foregoing reasons, we affirm defendant's conviction and sentence.

AFFIRMED.

      . The state moved to amend the indictment in response to defendant’s motion to quash the indictment. On June 28, 2012, defendant filed a motion to quash the indictment, asserting that defendant was seventeen at the time of the alleged offense and that, pursuant to the United States Supreme Court’s decision in Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), defendant cannot, if convicted, be sentenced to Louisiana's legislatively mandated life-sentence under La. R.S. 14:30.1. At the hearing on defendant’s motion to quash, the state made an oral motion to amend the indictment to charge defendant with manslaughter in violation of La. R.S. 14:30, which does not mandate a life-sentence. Defense counsel agreed that the amendment of the indictment would render the motion to quash moot. The trial court granted the state’s oral motion to amend the indictment on August 13, 2012, and signed a written order granting the state's motion on August 21, 2012.

      . Defendant filed a motion to reconsider sentence, which the trial court denied.

      . According to Sehrone LaBranche, the victim (who was thirty-two years old) told defendant (who was seventeen years old) that he was not going to do anything to defendant because defendant was “a little boy.” On cross-examination, defense counsel alluded to the fact that Sehrone LaBranche’s recorded statement indicates that, prior to the shooting, the victim told defendant, "I'll knock your ... ass out.” Sehrone LaBranche testified that she did not recall stating that to officers. The recorded statement was not introduced into evidence at trial.

      . The defense stipulated that the projectile recovered from the victim’s body matched the gun recovered from the nearby trash can at 1507 Grant Dr.

      . Ms. Ellis provided a recorded statement on the day of the shooting. She further identified defendant by photographic lineup as the person who shot the victim.

      . Ms. LaBranche also gave a recorded statement and identified defendant in a photographic lineup as the individual who shot the victim.

      . Alexis LaBranche also provided a statement to officers on July 31, 2012.

      . Ms. Sheppard further testified that a few weeks after the shooting, she noticed the man-made pond in her backyard began to fill with water after it rained, which is not typical, and discussed the possibility that Lionel LaBranche hid the gun underneath the backyard pond.

      . La.C.Cr.P. art. 770 provides the grounds for a mandatory mistrial and is inapplicable in this case. It provides that a mistrial shall be granted, upon motion of the defendant, when a remark or comment is made within the hearing of the jury by the judge, district attorney, or a court official during trial or in argument and that remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible or the failure of the defendant to testify in his defense.

      . La.C.Cr.P. art. 851, in pertinent part, provides:
      The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
      The court, on motion of the defendant, shall grant a new trial whenever:

      (2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error[J

      . 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

      . The Supreme Court explained, "every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested_[I]t would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Doyle v. Ohio, 426 U.S. at 617-18, 96 S.Ct. at 2244-45.

      . In his judgment on defendant's motion for a new trial, the trial judge states that this instruction was drawn from State v. Joseph, 10-1090 (La.App. 4 Cir. 8/12/11), 71 So.3d 549, in which the trial court provided a similar instruction.


author: SUSAN M. CHEHARDY, Chief Judge.

text:
    STATE of Louisiana v. Jamone A. WILSON.
    No. 13-KA-996.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 21, 2014.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Jody Fortunato, Jennifer Z. Rosen-bach, Assistant District Attorneys, Gretna, Louisiana, for Appellee, The State of Louisiana.
    Bruce G. Whittaker, Attorney at Law, New Orleans, Louisiana, for Appellant, Jamone A. Wilson.
    Jamone A. Wilson, Franklin Parish Detention Center, Winnsboro, Louisiana, Appellant, In Proper Person.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAYOIS, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Chief Judge.

|2On appeal, defendant challenges the trial court’s denial of his motion for new trial. For the following reasons, we affirm defendant’s conviction and sentence.

Procedural History

On June 11, 2013, the Jefferson Parish District Attorney filed a bill of information charging defendant, Jamone A. Wilson, with failing to maintain his registration as a convicted sex offender, in violation of La. R.S. 15:542. On September 10, 2013, the matter was tried before a twelve-person jury, which found defendant guilty as charged.

On September 19, 2013, defendant filed post-trial motions, including a Motion for New Trial, which were all denied by the trial court that day. Immediately after defendant waived statutory sentencing delays, the trial court sentenced defendant to serve two years in the custody of the Department of Corrections, without benefit of probation, parole, or suspension of sentence. Thereafter, defendant filed a Motion for Appeal, which was granted by the trial court.

1 JFacts

The record is undisputed that defendant pled guilty to the crime of felony carnal knowledge of a juvenile on September 11, 2002. Pursuant to La. R.S. 15:541 et seq., defendant, once convicted, was required to register as a sex offender.

Lieutenant Luis Munguia, Commander of the Bureau of Identification Division at the Jefferson Parish Sheriffs Office, is in charge of maintaining accurate sex offender registration records. Lieutenant Munguia maintained a record on defendant, who pled guilty on September 11, 2002, to felony carnal knowledge of a juvenile, which required him to register as a sex offender. Lieutenant Munguia explained that, as part of defendant’s legal obligation to register as a sex offender, he was required to register annually in person with his office.

On December 5, 2011, defendant executed a Jefferson Parish Sheriffs Office Sex Offender Registration contract, acknowledging that he was obligated to return to re-register on December 5, 2012. Defendant did not appear, however, to update his registration on that date.

Initially, Lieutenant Munguia attempted to contact defendant to no avail. Lieutenant Munguia also checked the State registry to ascertain whether defendant had registered in another parish, which he had not. Finally, Lieutenant Munguia reported the failure to register to the Jefferson Parish Sheriffs Office, which obtained a warrant for his arrest. On May 31, 2013, over five months past his annual registration deadline, defendant came to the Bureau of Identification to update his registration. That day, after he updated his registration, he was arrested pursuant to the outstanding warrant.

14At trial, Sergeant Joel O’Lear, of the Jefferson Parish Sheriffs Office Crime Laboratory Division, was accepted as an expert in the field of latent fingerprint identification. Sergeant O’Lear explained that he compared four sets of fingerprints in this case. First, he obtained fingerprints from defendant in court on the day before trial. Next, he obtained the card containing defendant’s fingerprints attached to the arrest register included in the certified conviction packet for defendant’s conviction for carnal knowledge of a juvenile. Sergeant O’Lear concluded that the fingerprints attached to the conviction packet for defendant’s felony carnal knowledge of a juvenile conviction matched defendant’s fingerprints taken the day before trial.

Third, Sergeant O’Lear identified defendant’s thumbprint on the Jefferson Parish Sheriffs Office Sex Offender Registration contract dated December 5, 2011, which was signed by defendant. Finally, Sergeant O’Lear testified that defendant’s fingerprints taken the day before trial matched those on the arrest register for the instant offense of failure to register as a sex offender.

After hearing the testimony and evidence, the twelve-person jury found, by a vote of 10-2, that defendant was guilty of failing to maintain his registration as a sex offender. The instant appeal follows.

Law and Argument

On appeal, defendant raises one counseled and two pro se assignments of error. In his counseled and first pro se assignment of error, defendant argues that the trial judge erred in denying his Motion for New Trial in the interest of justice because the behavior for which he was convicted— carnal knowledge of a juvenile — would no longer be a felony requiring registration.

Defendant further maintains that the sex offender registration requirements set forth under La. R.S. 15:542 were amended to allow for an offender convicted of Rfelony carnal knowledge of a juvenile under the former law to petition the court to be relieved of the reporting requirements. Although defendant admits he did not avail himself of the “reporting requirements dispensation,” he maintains that a new trial was warranted to serve the ends of justice.

Additionally, in his pro se brief, defendant argues that the age difference between himself and the victim of his underlying carnal knowledge of a juvenile conviction exempts him from registration because the charge should have been “misdemeanor carnal knowledge.”

In response, the State argues the trial court did not abuse its discretion in refusing to supplant the authority of the Louisiana Legislature and the purview of the finder of fact at trial. The State maintains that defendant had an obligation to register as a sex offender but failed to do so on December 5, 2012. The State further asserts that defendant failed to petition the court to be relieved of the registration obligation as allowed in La. R.S. 15:542, so his failure was not excusable.

Prior to sentencing, on September 19, 2013, defendant filed a Motion for New Trial, alleging that the interest of justice demanded a new trial. As argued on appeal, defendant asserted that, in 2008, when La. R.S. 14:80 was amended, his behavior was “decriminalized,” so he should not be required to register as a sex offender. After hearing defendant’s arguments in support of his motion for new trial, the trial court denied defendant’s motion, stating, in pertinent part:

And in any event, ... the Court did make the ruling at the time of trial that the underlying facts — the facts of the underlying charge were irrelevant as he had already had an opportunity to defend himself against those fact [sic]. The only relevant issue was whether or not he abided by the registration requirements. The Court felt that any information regarding the underlying facts, or the facts of the underlying charge, would serve no other purpose than to confuse the jury. And as such, again the Court’s motion — or the defense motion for new trial is denied:

| s(Emphasis added).

The grant of a new trial pursuant to La.C.Cr.P. art. 851(5) does not involve questions of fact, but a determination by the trial court that the ends of justice would be served by a new trial even though the defendant may not be entitled to one as a matter of strict legal right. State v. Guillory, 10-1231 (La.10/8/10), 45 So.3d 612, 615. The trial court’s ruling on a motion for a new trial will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Bazley, 09-358 (La.App. 5 Cir. 1/11/11), 60 So.3d 7, 19, writ denied, 11-0282 (La.6/17/11), 63 So.3d 1039. “The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.” La.C.Cr.P. art. 851.

The inquiry is not whether defendant’s actions were later “decriminalized,” but rather whether his legal obligation to register as a sex offender was terminated. Initially, we note that, on September 11, 2002, defendant pled guilty to felony carnal knowledge of a juvenile, which he was advised would require him to register as a sex offender. Further, we agree that there was a change in the law. At the operative time for defendant’s underlying conviction, La. R.S. 14:80(A)(1) prohibited:

A person over the age of seventeen [from having] sexual intercourse, with consent, with any person of the age of twelve years or more, but under the age of seventeen years, when there is an age difference of greater than two years between the two persons and the victim is not the spouse of the offender; ...

(Emphasis added).

However, the Louisiana Legislature, by Acts 2008, No. 331, § 1, amended La. R.S. 14:80(A)(1) to prohibit:

|VA person who is seventeen years of age or older [from having] sexual intercourse, with consent, with a person who is thirteen years of age or older but less than seventeen years of age, when the victim is not the spouse of the offender and when the difference between the age of the victim and the age of the offender is four years or greater; ...

(Emphasis added).

We disagree, however, that the amendment to La. R.S. 14:80 vacated an offender’s legal obligation to register as a sex offender under La. R.S. 15:542. In the same legislative session that produced the amendment to La. R.S. 14:80, the Legislature, by Acts 2008, No. 814, § 1, also amended La. R.S. 15:542(F) as follows:

(1) Except as provided in Paragraphs (2) and (3) of this Subsection, the sex offender registration and notification requirements required by this Chapter are mandatory and shall not be waived or suspended by any court. Any order waiving or suspending sex offender registration and notification requirements shall be null, void, and of no effect. Any order waiving or suspending registration and notification requirements shall not be construed to invalidate an otherwise valid conviction.
(2) Upon joint written motion by the district attorney and the petitioner, the court of conviction may waive sex offender registration and notification requirements imposed by the provisions of this Chapter for a person convicted of felony carnal knowledge of a juvenile (R.S. 14:80) on, before, or after January 1, 2008, when the victim is at least thirteen years of age and the offender was not more than four years older than the victim at the time of the commission of the offense. Relief shall not be granted unless the motion is accompanied by supporting documentary proof of the aye of the victim and the age of the perpetrator at the time of commission of the offense. If the court of conviction was not a Louisiana district court, this joint motion may be brought in the district court of the parish of the offender’s residence after the bureau has made the determination, pursuant to the provisions of R.S. 15:542.1.3, on the grounds that the elements of the offense of conviction are equivalent to the elements of R.S. 14:80. The court may grant the motion upon clear and convincing evidence that the ages of the victim and offender at the time of commission of the offense were within the limitations provided in this Section.

(Emphasis added).

IsClearly, the Legislature did not intend to repeal the registration requirements, but rather instituted a procedure for an offender to seek relief from the mandatory registration requirements. Here, defendant concedes that he did not follow the legal procedure to relieve himself of his registration obligation. Thus, defendant, who admittedly failed to comply with the law of registration, was in violation of La. R.S. 15:542. Based on the foregoing, we find that the trial court did not abuse its discretion in denying defendant’s motion for new trial. These assignments lack merit.

In his second pro se assignment of error, defendant argues that the Legislature’s extension of the time period for which an offender must register from ten years to fifteen years is a violation of the ex post facto clause of the United States Constitution.

In his pro se brief, defendant argues that he was unaware that the Legislature had extended the period of registration for convicted sex offenders from ten years to fifteen years. He asserts that he was never re-sentenced after the ten-year registration period expired so, he should not be required to register for an additional five years.

First, this issue has been abandoned because defendant did not brief his assignment with argument or citation of authority to support his assertion. Restating an assigned error in brief without argument or citation of authority does not constitute briefing. State v. Lauff, 06-717 (La.App. 5 Cir. 2/13/07), 953 So.2d 813, 819; State v. Fernandez, 03-987, p. 9 (La.App. 5 Cir. 12/30/03), 864 So.2d 764, 770. Under U.R.C.A. 2-12.4(B)(4), this Court may consider as abandoned any assignment of error that has not been briefed. State v. Tranchant, 10-459 (La.App. 5 Cir. 11/23/10), 54 So.3d 730, writ denied, 10-2821 (La.4/29/11), 62 So.3 108. Because defendant has failed to brief this assigned error, we consider it abandoned.

Furthermore, even if it had not been abandoned, it had not been properly preserved for review since defendant failed to raise this ex post facto argument in the trial court. Both this Court and the Louisiana Supreme Court have recognized that a new basis for an objection may not be raised for the first time on appeal. State v. Cooks, 97-0999 (La.9/9/98), 720 So.2d 637, 644, cert. denied, 526 U.S. 1042, 119 S.Ct. 1342, 143 L.Ed.2d 505 (1999); State v. Burdgess, 434 So.2d 1062, 1067 (La.1983); State v. Winfrey, 97-427 (La.App. 5 Cir.10/28/97), 703 So.2d 63, 77, writ denied, 98-0264 (La.6/19/98), 719 So.2d 481. This issue, which was raised for the first time on appeal, had not been preserved for appellate review. Consequently, this assignment will not be considered.

Error Patent Discussion

Pursuant to La.C.Cr.P. art. 920, we have reviewed the record for errors patent. We note that, although the commitment reflects that defendant was properly advised of the time period for seeking post conviction relief as required by La.C.Cr.P. art. 930.8, the sentencing transcript indicates that the trial court failed to give such an advisal. When there is a discrepancy between the commitment and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

If a trial court fails to advise, or provides an incomplete advisal, pursuant to La.C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post conviction relief by means of its opinion. State v. Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d 608, writ denied, 12-2478 (La.4/19/13), 111 So.3d 1030; State v. Taylor, 12-25 (La.App. 5 Cir. 6/28/12), 97 So.3d 522, 538; State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, writ denied, 11-1753 (La.2/10/12), 80 So.3d 468; State v. Neely, 08-707 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09), 21 So.3d 272; State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473.

Accordingly, we advise defendant, by way of this opinion, that no application for post-conviction relief, including an application which seeks an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. arts. 914 or 922. In all other respects, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The legislature is presumed to have enacted each statute with deliberation and with full knowledge of all existing laws on the same subject. State v. Borden, 07-396 (La.App. 5 Cir. 5/27/08), 986 So.2d 158, writ denied, 08-1528 (La.3/4/09), 3 So.3d 470.


author: STEPHEN J. WINDHORST, Judge.

text:
    Riaz HUSSAIN v. Abdul Rahman KHAN, Hafiz Tayyab Siddiqui, Abdul Sattar Khan, Dr. Mohammad A. Naeem, A. Baqi Khan, Syed Zubair Ahmed and XYZ Insurance Company.
    No. 14-CA-65.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 21, 2014.
    John-Michael Lawrence, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARC E. JOHNSON, ROBERT M. MURPHY and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

^Defendants, Abdul Rahman Khan, Hafiz Tayyab Siddiqui, Abdul Sattar Khan, Dr. Mohammad A. Naeem, A. Baqi Khan, and Syed Zubair Ahmed, appeal from a judgment of the trial court awarding damages for breach of a settlement agreement in the amount of $3,500.00. We affirm the judgment of the trial court.

Plaintiff, Riaz Hussain, instituted this proceeding by filing a petition for damages for defamation, alleging that Defendants had distributed a letter which contained defamatory comments. Defendants answered and filed a reconventional demand for damages and for a temporary restraining order, claiming that Hussain had committed acts of slander and libel.

Thereafter, the parties entered into a settlement agreement which provided that Hussain would pay Defendants $3,500.00 in damages. Each party would | ..¡refrain from distributing material about the other party and Hussain would refrain from disruptive behavior at activities over which Defendants presided or attended. The agreement further provided that, should Hussain violate the settlement agreement, Defendants would be entitled to liquidated damages of $8,000.00, plus attorney’s fees and costs. The agreement provided that the suit was dismissed in its entirety, with each party to bear their own costs.

When Hussain failed to sign the settlement agreement, Defendants filed a motion to enforce. The trial court granted the motion, and ordered that the settlement agreement be made the judgment of the court. Hussain filed two separate motions to vacate the settlement agreement, which were both denied by the trial court.

Approximately four months after the trial court signed the judgment containing the settlement agreement, Defendants filed a rule seeking payment for breaches of the settlement agreement. Defendants alleged that Hussain violated paragraph 2 of the settlement agreement on four separate occasions, by making false accusations, creating public outbursts and disruptions, and engaging in verbal altercations. Thereafter, Defendants filed a supplemental rule, alleging a fifth violation of the settlement agreement.

|4After a hearing, the trial court found Hussain to be in breach of the agreement and it awarded Defendants $3,500.00 in damages. Defendants appealed from the award of damages, assigning as error the following: “The district court erred in awarding only $3,500.00 in damages rather than the amount stipulated by the Consent Judgment, which is $40,000.00 plus interest from date of judgment.”

La. C.C. Art. 3071 provides:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing. This contract must be either reduced to writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.

The compromise instrument is governed by the same general rules of construction applicable to contracts. Brown v. Drillers, Inc., 630 So.2d 741, 748 (La.1994).

Under Louisiana law, parties to a contract may stipulate the damages to be recovered where there is a nonperformance, defective performance, or delay in performance of an obligation. La. C.C. art. 2005. A stipulated damages clause is designed to fix the measure of damages in advance and to help ease the burden of proving loss with certainty, and therefore no showing of pecuniary or other actual damage is required to enforce the clause. Henderson v. Ayo, 2011-1605 (La.App. 4 Cir. 6/13/12), 96 So.3d 641, 646.

Our review is governed by the manifest error/clearly wrong standard. It provides that the factual findings made by the trier of fact are entitled to great weight on appellate review, and will not be set aside in the absence of “manifest | r,error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The standard of review for a damage award for breach of contract is whether the trial court abused its discretion. Henderson v. Ayo, supra at 644.

Although the trial court did not give reasons for judgment, it is clear from the judgment that the court found that Hus-sain failed to pay the original sum negotiated in the settlement agreement, which is supported by the evidence, and therefore awarded that sum to Defendants. In refusing to award the sum for the liquidated damages, the trial court apparently found that the evidence presented by Defendants failed to prove that Hussain had breached the settlement agreement in the subsequent events.

Defendants presented the testimony of two persons who were present during the times in question who testified that Hus-sain was disruptive, loud, argumentative and defamatory. However, the witnesses could not remember what was actually said. Hussain also testified and denied the alleged disruptive behavior. Based on the record before us, we do not find that the trial court committed manifest error or was clearly wrong in not awarding liquidated damages. We find no merit to Defendants’ assignment of error.

For the above discussed reasons, the judgment of the trial court is affirmed. All costs are assessed against appellants.

AFFIRMED.

      . Paragraph 2 of the settlement agreement provides that:
      Together with the other benefits provided herein, Plaintiff enters into this Agreement for and in consideration of Defendants' and Re-conventional Plaintiffs’ payment of Thirty Five Hundred ($3,500.00) Dollars and no/100 to RIAZ HUSSAIN, payable within 15 days of the execution of this agreement, and in exchange for the mutual restraining order, which states as follows:
      a. All parties agree to refrain from writing, publishing, passing out, distributing, or causing to be written, passed out, distributed or disseminated any letters, leaflets, or any written material whatsoever about the other party, whether believed to be true, or not.
      b. Riaz Hussain agrees to refrain from disrupting, shouting at or interrupting any meetings, gatherings, prayer services, conventions, conferences or activities of any kind presided over, or the responsibility of any of the defendants and plaintiffs in reconvention, or attended by both parties, wherever said meetings may be held.
      c. Riaz Hussain further agrees to refrain from any and all behavior complained of in defendants’ and plaintiffs’ in reconvention answers and complaints, original and amended, and, although defendants and plaintiffs in re-convention have never participated in such behavior, defendants and plaintiffs in recon-vention agree to refrain from any such behavior.

      . Paragraph 11 of the settlement agreement provides that:
      The parties agree that they I) will keep the nature and particulars of this Agreement confidential and pledge not to release any information concerning same to any person at any time except: as required by law, to secure advice from a legal or tax advisor, or in a legal action to enforce the terms of this Agreement; and ii) will not engage in any expressions or communications of any sort or any actions, either directly or through any other person or entity, which disparage (or tend to disparage), harass or intimidate (or tend to harass or intimidate) any Released Party either as statements of opinion or of fact or as actions. In this regard, Plaintiff agrees to pay Defendants the sum of EIGHT THOUSAND DOLLARS ($8,000.00) should he breach any of the obligations established in this agreement and agree that this sum represents reasonable stipulated damages for such a breach. It is expressly agreed and understood that the provisions of this paragraph are material terms of this Agreement. It is understood that the provisions of this paragraph do not preclude truthful responses by Plaintiff to inquiries which he is required to answer as a matter of law.

      . A certified letter of filing of appeal was sent to Hussain, however it was returned unclaimed. Hussain did not file a brief in this matter.

      . The correctness of this award was not challenged by either Defendants or Hussain, and is not addressed in this appeal. URCA 1-3.