author: GARRETT, J.

text:
    MONSANTO COMPANY, Plaintiff-Appellee v. KT FARMS PARTNERSHIP THROUGH Partners, Kyle AYMOND, Thad Herron & KT-One Farms and Thad Kyle Investments, Defendants-Appellants
    No. 51,740-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 15, 2017
    MICHAEL E. KRAMER, Winnsboro, Counsel for Appellants
    LEVIN LAW OFFICES By: Richard B. Levin, Metairie, J. Brint Marks, Counsel for Appellee
    Before BROWN, GARRETT, and COX, JJ.
   GARRETT, J.

The defendants, KT Farms Partnership ("KT Farms"), Kyle Aymond, Thad Herron, KT-One Farms, LLC ("KT-One") & Thad Kyle Investments, LLC ("TKI"), appeal from a trial court judgment finding them all liable in solido to the plaintiff, Monsanto Company ("Monsanto"), in the amount of $671,041.60 for seed and products, plus interest and court costs, as well as attorney fees of $50,000. For the following reasons, we amend in part, and as amended, affirm the trial court judgment.

FACTS

Aymond and Herron were farmers in Tensas and Franklin Parishes, and they, along with KT-One, were partners in KT Farms. Aymond and Herron formed KT-One and TKI. In February 2011, KT Farms submitted an interest-free seed financing application to Monsanto, requesting a credit limit of $245,000. This document was signed by Aymond. In addition, he signed an "Interest Free Seed Financing" agreement with Monsanto that is the subject of this case. The dealer who was to supply the Monsanto products under this agreement was Tensas Farm Service ("Tensas").

Also in 2011, TKI executed a guaranty agreement to cover the obligations of KT Farms to Monsanto. Aymond signed the guaranty on behalf of TKI. All purchases made by KT Farms from Monsanto in 2011 were paid for.

In 2013, Aymond and Herron, on behalf of KT Farms, signed one page of an incomplete document reflecting that the local dealer had been changed to Helena Chemical Company ("Helena"). According to Monsanto, in 2013, KT Farms purchased a total of $671,041.60 in seed and other products and did not pay for the goods. Demand for payment was made by certified letters mailed in February 2014 to Aymond and Herron as partners of KT Farms. The letters were unclaimed and were marked "return to sender."

In July 2014, Monsanto filed a petition to collect under the 2011 financing agreement, naming as defendants KT Farms, through its partners, Aymond, Herron, and KT-One, and TKI as guarantor of KT Farms. Attached to the petition was a blurred and partially illegible copy of the financing agreement signed by Aymond in 2011; a copy of a page from an unidentified document changing the dealer to Helena, which was signed in 2013 by Aymond and Herron on behalf of KT Farms as customer; a copy of the guaranty signed by Aymond on behalf of TKI in 2011; and copies of the demand letters to KT Farms through Aymond and Herron. Monsanto alleged that, under the terms of the agreement, the defendants were liable for the debt, as well as 18% interest per year on the debt from December 31, 2013, until paid, plus 25% attorney fees.

The defendants filed an answer alleging that the copy of the 2011 agreement attached to the petition was not legible, making it impossible to determine the terms and conditions of the alleged agreement. The defendants urged that there was no information to support the claims of purchase of product, and that 25% attorney fees were excessive. They also disputed the balance owed. A pleading in the record indicates that in October 2015, KT Farms filed for bankruptcy, which was dismissed in April 2016, and the bankruptcy stay was lifted.

The matter was tried on November 30, 2016. Sharon Hernandez, the collection manager for Monsanto from Missouri, testified that KT Farms applied to Monsanto for credit through an interest-free credit financing agreement in February 2011. The agreement was to cover any purchases made from Monsanto until cancelled. Aymond, on behalf of TKI, signed a guaranty agreement to cover the debt of KT Farms to Monsanto. Copies of the credit application, the 2011 agreement, and the guaranty agreement were filed into evidence. However, the copy of the 2011 agreement filed into evidence was not entirely legible and was introduced over an objection by the defendants. As explained in one of the briefs on appeal, the original document was electronically stored. The resulting copy was only partially legible. Monsanto produced neither the original agreement signed by Aymond nor a legible copy.

Hernandez identified a blank agreement submitted by Monsanto that purported to supply the missing language in the original agreement. It also provided a copy of a document signed by Aymond and Herron on behalf of KT Farms in 2013, when the Monsanto dealer was changed to Helena. Monsanto did not argue that KT Farms executed a new financing agreement in 2013. Hernandez stated that the only change to the 2011 agreement was that Helena became the dealer instead of Tensas. These documents were admitted into evidence, subject to the defendants' objection that they were not complete.

Credit memos and delivery tickets were admitted into evidence to prove that KT Farms made the alleged purchases from Monsanto. Hernandez testified that these documents corroborated the Monsanto statement of account, dated February 18, 2014, which was also admitted into evidence. She stated that Monsanto had not received payment for any of the charges, even though formal demand for payment had been made on the defendants. According to Hernandez, the goods were supplied by Helena, but the debt was owed to Monsanto.

On cross-examination, Hernandez acknowledged that the 2011 agreement had a credit limit of $245,000; she opined that KT Farms asked for and received a higher credit limit. She stated she did not know if any purchases were made in 2012, or what the credit limit was in 2013.

Mike Willis, a credit manager for Helena from Tennessee, identified documents connected with the sale of the Monsanto goods to KT Farms in 2013. He said that, once executed, a financing agreement remained in effect and the only paperwork that would have to be resubmitted to Monsanto would be acknowledgement of a change of dealer. This would allow the new dealer to receive payments from Monsanto. Willis identified the invoices and delivery tickets sent from Helena to Monsanto for payment. When Monsanto paid Helena, Helena assigned all rights for payment on the invoices to Monsanto. Willis identified credit memos from Monsanto to Helena for the invoices submitted for payment.

Willis said that customers often called in orders which Helena delivered to the farms after purchase. Sometimes they were signed for and sometimes they were not. He was asked how Helena verified that the person placing the order was the person who received the delivery. He stated that their locations were very familiar with their customers and recognized their voices on the telephone. They also knew the locations where the products were to be delivered. He said sometimes a customer will pick up an order. Willis testified that he did not know of any complaints that orders placed for KT Farms were not legitimate or were not delivered.

Aymond testified that he and Herron handled all orders placed with Helena. Sometimes they would call the store and sometimes they went to the store to place orders. Products were then delivered to them. Aymond examined the delivery tickets and invoices and observed that some of them were difficult to read. He claimed the tickets were not signed by people connected with KT Farms and said he had no way to know if he received the seed and supplies represented by the tickets.

On cross-examination, Aymond acknowledged signing the financing agreement with Monsanto in 2011, with a $245,000 credit limit, but said the signature on the document supplied by Monsanto did not look like his. He also denied ever signing a personal guaranty agreement or entering into a financing agreement with Helena as the supplier in 2013.

Herron was called by Monsanto on cross-examination. He acknowledged that, in 2011, KT Farms applied to Monsanto for interest-free financing. He examined the 2011 financing agreement and said the signature on the document looked like Aymond's. Herron acknowledged that KT Farms made purchases from Helena in 2013. He said he was a partner in TKI, but did not remember the company signing a guaranty agreement with Monsanto in 2011. Herron first testified that KT Farms did not file for bankruptcy in 2015. He later said that Aymond filed the paperwork, but KT Farms did not go through with the bankruptcy. He did not know if the $671,041.60 debt at issue in this case was listed as a debt in the bankruptcy filings or if he signed the bankruptcy papers.

The trial court took the matter under advisement and issued written reasons and a judgment in favor of Monsanto. In the reasons for judgment, the trial court found that, in 2011, KT Farms entered into the "Interest Free Seed Financing Agreement" with Monsanto. The court found that TKI, "Kyle Aymond and Thad Herron guaranteed the obligations of KT Farms." In 2013, the dealer was changed from Tensas to Helena. The court stated that, from April to June 2013, KT Farms used the credit extended in the financing agreement to obtain products totaling $671,041.60. No payments were made and no response was made to Monsanto's demand for payment. The court noted that, at trial, Aymond and Herron claimed that the goods were not delivered to KT Farms.

The court found that Monsanto carried its burden of proof on the amount owed and noted that the agreement called for 18% interest per year, from December 31, 2013, until paid, along with reasonable attorney fees. According to the court, Monsanto sought 26% attorney fees, which would amount to $175,000, but the trial court found this was unconscionably excessive. The trial court considered the hours worked, the expertise of the attorney, and the fact that the attorney took the case on a 15% contingency fee agreement. The court noted that the matter required more skill than a regular open account case. The trial court awarded attorney fees in the amount of $50,000. The trial court signed a judgment in favor of Monsanto and against KT Farms, Aymond, Herron, KT-One, and TKI, in solido, for $671,041.60, plus 18% interest per year on the unpaid balance from December 31, 2013, until paid, together with court costs and $50,000 in attorney fees. The defendants appealed.

RIGHT TO RECOVER ON DEBT, INTEREST, AND ATTORNEY FEES

The defendants argue that the trial court erred in granting judgment in favor of Monsanto based upon the provisions of the 2011 and 2013 "Interest Free Seed Financing" agreements. They maintain that the 2011 agreement filed into evidence was illegible, making it impossible to determine its terms and provisions. They assert that the first three pages of the 2013 agreement were blank. Therefore, according to the defendants, there are no applicable provisions in either agreement which would render them liable to Monsanto.

The defendants also argue that the trial court erred in awarding Monsanto $50,000 in attorney fees. They contend that the 2011 and 2013 agreements did not provide for the award of attorney fees. In the alternative, the defendants argue that, if attorney fees are due, Monsanto is limited to an award of reasonable attorney fees. Based upon the affidavit of Monsanto's attorney regarding the amount of work done in this matter, Monsanto should only recover $15,000, not $50,000 as awarded by the trial court.

As will be discussed below, we find that the trial court properly awarded Monsanto the money due for items purchased by KT Farms, but erred in basing that decision entirely on the 2011 agreement. Also, the trial court erred in awarding interest and attorney fees based solely upon the 2011 contract and erred in the amounts awarded. The trial court further erred in finding that Aymond and Herron personally guaranteed the debts of KT Farms, in addition to the guaranty executed by TKI, and erred in finding all the defendants liable to Monsanto in solido.

2011 Agreement

While the trial court properly awarded Monsanto $671,041.60 for charges made by KT Farms, it erred in basing that decision solely upon the terms of the 2011 financing agreement. The copy of the 2011 contract filed into evidence does not contain any legible provisions setting an 18% per year interest rate or entitling Monsanto to recover attorney fees. The legible portion of the 2011 agreement provided:

FarmFlex 2010-2011
Interest Free Financing Agreement
[Illegible] below ("Customer") agrees to pay Monsanto Company ("Monsanto") for the purchase of Monsanto seed products that Customer has [Illegible] Dealer listed below and that the Dealer has assigned to Monsanto pursuant to the terms of Monsanto's current FarmFlex Financing [Illegible] of Customer's purchases that the Dealer may assign to Monsanto is limited to the Customer's credit limit approved in relation to this [Illegible] may change or withdraw that credit limit at anytime [sic], except to the extent seed that has already been delivered to Customer within the [Illegible] credit limit. Customer will provide Monsanto financial information whenever Monsanto requests it.
[Illegible] pay Monsanto according to the terms of Monsanto's FarmFlex Program for the applicable year. If Customer has not received a copy of [Illegible] FarmFlex Program or needs an additional copy, Customer may obtain a copy of the current year terms from the Dealer or by calling [Illegible]5-2676 option 5.
[Illegible] Customer will pay the "Total Due" on the Delivery Receipt, on the Invoice the Dealer assigns to Monsanto, or on the amount of Customer's [Illegible ] electronically by the Dealer to Monsanto, plus interest to the date of payment in full, which shall not be later than the Scheduled Due [Illegible] current Monsanto FarmFlex Program.
[Illegible] DISCOUNT: If Customer pays for an assigned order in part or in full on or before early cash discount program deadline for the current [Illegible] that has been paid by that date it (i) will be removed from the FarmFlex Program, (ii) the amount paid will be recalculated using [Illegible] cash discount, if any.
[Illegible] GOVERNING LAW: If Monsanto sends Customer a notice that it has denied credit, Dealer may require Customer to pay the order in cash [Illegible] Monsanto will send Customer a statement of the transaction following credit approval and delivery of product. By signing below, [Illegible] to assignments of Customer's account with the Dealer including any assignments to Rabo Agrifinance, Inc., and agrees to send [Illegible] to the address specified by Monsanto. This agreement shall be governed by the laws of the State of Missouri.
[Illegible] fails to pay for an assigned order plus the applicable interest, if any, in full on or before the Scheduled Due Date, Customer shall pay [Illegible] Due" shown on the assigned Delivery Receipt, Invoice, or the electronic assignment plus the applicable interest, (ii) a default charge [Illegible] after the Scheduled Due Date at the rate published in the FarmFlex program on that "Total Due" plus the accrued interest, and (iii) [Illegible] fees, collection agency fees, and court costs incurred by Monsanto in the event it is necessary to obtain assistance in collecting.

The second paragraph of the agreement indicates that the terms of the agreement were contained in another document, a Farm Flex Program, which was not produced at trial.

The first page of the 2013 document is a blank credit application for that year. The next page of the document provides as follows:

INTEREST FREE FINANCING CUSTOMER LOAN AGREEMENT
This Customer Loan Agreement ("Agreement") is made by and between the Customer named on the signature page hereto ("Customer") and Monsanto Company ("Monsanto").
The parties desire to enter into an agreement enabling Customer to pay for the purchase of Eligible Products from the Dealer named on page 2 of this Agreement ("Dealer") through loans under Monsanto's Seed 0% Interest Free Financing Program. Monsanto and Customer hereby agree as follows:
1. Defined Terms. Terms defined in this Agreement shall have their specified meanings. Capitalized terms used in this agreement but not defined herein shall have the meanings specified in the summary of the Seed 0% Interest Free (0%) Financing Program, as may be amended, modified, restated, or replaced from time to time (the "Program"). Customer agrees to be bound by the terms of the Program and will comply with such terms to the extent such terms are applicable to it. Customer hereby acknowledges receipt of a copy of the Program in effect on the date hereof. Monsanto may revise the terms of the Program at any time. Subject to any restrictions that may be imposed by law, these revised terms will apply to any new Advance after the effective date of the revision.
2. Disbursement and Repayment of Advances.
(a) Upon receipt of a properly completed Advance request from Dealer and subject to the terms and conditions of the Program, Monsanto may, in its sole and absolute discretion, make Advances for the account of Customer to pay Dealer for the purchase of Eligible Products. Customer acknowledges that Dealer has agreed that the proceeds of each Advance shall be used to pay Dealer for the purchase of Eligible Products; provided that Customer acknowledges that Dealer has authorized and directed Monsanto to apply the proceeds of any Advance directly to any obligations due and owing to Monsanto by Dealer. If Monsanto delivers a notice to Customer that it has denied a request for an Advance, Customer shall pay Dealer directly.
(b) The parties agree that only those Eligible Products that Customer has purchased directly from Dealer will qualify for financing under the Program. No other products or services offered by Dealer to Customer shall be eligible for financing under the Program.
(c) Pursuant to the Program, upon receipt of Monsanto's approval of an Advance request, Dealer shall promptly credit Customer's account with Dealer for the amount of such Advance and Dealer shall not collect or attempt to collect from Customer any invoice that has been paid by Monsanto pursuant to an Advance. Customer acknowledges and agrees that any failure of Dealer to perform its obligations under the Program, including without limitation, Dealer's failure to properly credit Customer's account with Dealer, shall not relieve Customer of its obligation to repay Advances as required by this Agreement. Customer further agrees that Monsanto shall have no liability to Customer arising from any acts or omissions of Dealer in connection with the Program.
(d) The effective date of an Advance shall be the date recorded in Monsanto's records. Customer promises to pay to the order of Monsanto the principal sum of each Advance on or before the Maturity Date with respect to such Advance; provided however, that upon the occurrence of an Event of Default, Customer agrees to pay interest at the rate of eighteen percent (18%) per year (or, if lower, the maximum rate allowed by law) on the entire unpaid principal balance owed by Customer to Monsanto from the date of the Event of Default until paid. The amount of outstanding Advances shall be adjusted by Monsanto in the event of Customer's return of Eligible Products to Dealer prior to the Maturity Date in accordance with the terms and conditions of the Program.
3. Representations. To induce Monsanto to provide financing to Customer, Customer represents and warrants to Monsanto, as of the date of this Agreement and as of the date of each Advance that: (a) this Agreement does not conflict with any law, agreement or obligation by which Customer is bound; (b) this Agreement is the legal, valid and binding obligation of Customer, enforceable against Customer in accordance with its terms, and (c) the proceeds of each Advance shall be used solely for the purposes set forth above and shall not be used for any personal, family or household purpose.
4. Default. If any Event of Default shall occur and be continuing, then all amounts due or to become due to Monsanto under this Agreement shall, at the option of Monsanto and without notice or demand, accelerate and become immediately due and payable. Upon the occurrence of any Event of Default, Monsanto shall have the remedies provided by law or at equity. The failure or delay by Monsanto to exercise any right or to pursue a remedy, if any Event of Default should occur, shall not be considered a waiver of such default and shall not preclude Monsanto at any time from exercising any right or pursuing any remedy it may otherwise have. Upon the occurrence of any Event of Default, Customer agrees to pay, to the extent permitted by law, reasonable attorneys' fees if any unpaid balance is referred to any attorney for collection and said attorney is not the salaried employee of Monsanto and all costs of collection. Event of Default means (a) Customer's failure to pay any Advance when due or failure to perform any of the obligations of Customer under this Agreement; or (b) any representation made by Customer to Monsanto, or any financial statement or certificate furnished by Customer to Monsanto, shall be incorrect or incomplete in any material respect when made or furnished; or (c) dissolution or liquidation of Customer; or (d) Customer shall (i) suspend business or become insolvent, (ii) fail or be unable to pay its debts as they mature, (iii) commence or consent to the commencement of any bankruptcy, reorganization, arrangement, receivership or liquidation proceeding or any proceeding for the appointment of a custodian, receiver, liquidator, trustee, or other officer with similar powers over Customer or over any substantial part of Customer's property, or suffer the filing of a petition for any such proceeding which remains undismissed for more than thirty (30) days, or (iv) be adjudicated a bankrupt; or (e) any circumstance or event which results in the acceleration of any indebtedness of Customer to any party; or (f) any change in Customer's financial condition or means or ability to pay deemed by Monsanto to be adverse, or the occurrence of any other event as a result of which Monsanto deems itself insecure.

The final page of the 2013 document contained a fifth provision, setting forth miscellaneous matters and specifying that the dealer was Helena. KT Farms, as customer, through Aymond and Herron, signed this page to change the dealer. It is important to note that Monsanto did not argue that KT Farms entered into a new financing agreement in 2013, incorporating the terms set forth above. The company contends only that the document changed the dealer.

When compared to the partially legible copy of the 2011 agreement, the 2013 document is clearly not the same and supplies terms and conditions that simply were not contained in the original agreement. No legible portion of the 2011 agreement provides for the payment of interest at the rate of 18% per year or attorney fees in the event of a default. Therefore, the trial court erred in basing Monsanto's right to recover solely upon the 2011 agreement, finding that Monsanto proved that KT Farms, through Aymond and Kyle, was liable to Monsanto for 18% interest per year on the debt until paid, and awarding attorney fees based on the agreement.

Open Account

However, under the facts of this case, Monsanto is not without recourse. Appeals lie from judgments, not reasons for judgment. Retail Merchants Ass'n, Inc. v. Forrester , 47,936 (La. App. 2 Cir. 5/15/13), 114 So.3d 1175, writ not cons. , 2013-1455 (La. 9/27/13), 123 So.3d 179. The appellate court shall render any judgment that is just, legal, and proper upon the record on appeal. La. C.C.P. art. 2164. Louisiana is a fact pleading state and no technical forms of pleading are required. La. C.C.P. art. 854 ; Gulfstream Servs., Inc. v. Hot Energy Servs., Inc. , 2004-1223 (La. App. 1 Cir. 3/24/05), 907 So.2d 96, writ denied , 2005-1064 (La. 6/17/05), 904 So.2d 706.

Monsanto carried its burden of proof regarding the debt owed by KT Farms under the open account law contained in La. R.S. 9:2781. That statute provides in pertinent part:

A. When any person fails to pay an open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Citation and service of a petition shall be deemed written demand for the purpose of this Section. If the claimant and his attorney have expressly agreed that the debtor shall be liable for the claimant's attorney fees in a fixed or determinable amount, the claimant is entitled to that amount when judgment on the claim is rendered in favor of the claimant. Receipt of written demand by the person is not required.
B. If the demand is forwarded to the person by first class mail to his last known address, a copy of the demand shall be introduced as evidence of written demand on the debtor.
C. If the demand is made by citation and service of a petition, the person shall be entitled to pay the account without attorney fees by delivering payment to the claimant or the claimant's attorney within ten days after service of the petition in city courts and fifteen days after service of the petition in all other courts.
D. For the purposes of this Section and Code of Civil Procedure Articles 1702 and 4916, "open account" includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. "Open account" shall include debts incurred for professional services, including but not limited to legal and medical services. For the purposes of this Section only, attorney fees shall be paid on open accounts owed to the state.
E. As used in this Section the following terms shall have the following meanings:
(1) "Person" means natural and juridical persons.
(2) "Reasonable attorney fees" means attorney fees incurred before judgment and after judgment if the judgment creditor is required to enforce the judgment through a writ of fieri facias, writ of seizure and sale, judgment debtor examination, garnishment, or other post-judgment judicial process.

Any account which fits the definition of an open account fits within the ambit of the statute. Frey Plumbing Co., Inc. v. Foster , 2007-1091 (La. 2/26/08), 996 So.2d 969. An open account is analogous to a credit account. Ballard's Inc. v. North Am. Land Dev. Corp. , 28,437 (La. App. 2 Cir. 6/26/96), 677 So.2d 648. Inherent in the concept of an open account is that the amount is for services or goods rendered. Double-Eight Oil & Gas L.L.C. v. Caruthurs Producing Co., Inc. , 41,451 (La. App. 2 Cir. 11/20/06), 942 So.2d 1279.

The plaintiff in an action on an open account must prove his claim by a preponderance of the evidence. To prove his case, the plaintiff must show that a record of the account was kept in the course of business and introduce evidence supporting testimony of its accuracy. Once a prima facie case is made, the defendant must prove that the account is inaccurate or that he is entitled to certain credits. Retail Merchants Ass'n, Inc. v. Forrester , supra. See also Cole Oil & Tire Co., Inc. v. Davis , 567 So.2d 122 (La. App. 2 Cir. 1990) ; Bisso & Miller, LLC v. Marsala , 16-585 (La. App. 5 Cir. 3/15/17), 215 So.3d 469.

Attorney fees are not allowed except where authorized by statute or contract. The portion of La. R.S. 9:2781 allowing for attorney fees is penal in nature and is to be strictly construed. Akers v. Bernhard Mech. Contractors, Inc. , 48,871 (La. App. 2 Cir. 4/16/14), 137 So.3d 818, writs denied , 2014-1040 (La. 9/12/14), 148 So.3d 931, 2014-1100 (La. 9/12/14), 148 So.3d 934, 2014-1103 (La. 9/12/14), 148 So.3d 935 ; Capital Recovery Assistance, Inc. v. Nelson , 424 So.2d 357 (La. App. 2 Cir. 1982).

In this case, although Monsanto did not label its petition a suit on open account, it did seek to recover amounts due for products sold on credit to KT Farms. This fits the definition of an open account. In its pretrial statement, regarding the law applicable to this case, Monsanto included La. R.S. 9:2781 on open accounts and "all Louisiana articles, statutes, and case law regarding open accounts." In its reasons for judgment, the trial court, in awarding attorney fees, stated, "The case required more skill than that of a regular open account case[.]"

Monsanto properly made demand in accordance with the requirements of La. R.S. 9:2781 upon KT Farms through its partners, Aymond, Herron, and KT-One, and upon the guarantor, TKI. In addition to demand letters to Aymond and Herron, demand was made on all parties through citation and service of the petition, which set forth the correct amount of the debt.

At trial, Monsanto proved that KT Farms entered into a financing agreement in 2011, although, as discussed above, not all the terms of the agreement were legible or provided to the trial court. In 2013, KT Farms made purchases totaling $671,041.60, and made no payment on the debt. In proof of its claim, Monsanto filed into evidence credit memos from Monsanto and Helena based upon purchases made by KT Farms, along with invoices from Helena to KT Farms for the charges. Monsanto also filed into evidence the delivery tickets from Helena to KT Farms for the goods purchased, as well as its statement of account to KT Farms covering the period from January 1, 2013, to February 18, 2014, showing that the amount due was $671,041.60. Monsanto also filed into evidence the guaranty agreement between TKI and Monsanto.

Monsanto satisfied its burden of proving by a preponderance of the evidence a prima facie case that the debt was owed by KT Farms. The burden then shifted to the defendants to prove the inaccuracy of the account or to prove that KT Farms was entitled to credits on the account. Both Aymond and Herron admitted that KT Farms entered into the 2011 agreement with Monsanto. Aymond and Herron said that KT Farms made purchases from Helena in 2013. Herron acknowledged that the signature on the guaranty between TKI and Monsanto was Aymond's.

At trial, Aymond questioned the proof of the debt, claiming the delivery tickets were not signed by representatives or employees of KT Farms. However, Willis testified that sometimes deliveries were signed for and sometimes they were not. Where the record shows that the plaintiff's business records and books were kept in the normal course of business and indicate that the merchandise was sold and delivered, the plaintiff need not prove actual delivery of each and every individual item. See Helena Chem. Co. v. Nichols , 96-856 (La. App. 3 Cir. 12/26/96), 695 So.2d 990, amended on reh'g , 96-856 (La. App. 3 Cir. 1/29/97), 695 So.2d 1000.

The defendants offered only the self-serving testimony of Aymond questioning the accuracy of the delivery tickets. The trial court obviously did not find that testimony to be credible, and we do not find that its determination was manifestly erroneous or clearly wrong. Where there is a conflict in the testimony, the trier of fact's reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Rosell v. ESCO , 549 So.2d 840 (La. 1989) ; Murco, Inc. v. Streeter Serv. Elec., Inc. , 41,599 (La. App. 2 Cir. 11/1/06), 942 So.2d 690. Therefore, the defendants failed to satisfy their burden of proving that the account was inaccurate or that KT Farms was entitled to credits on the account.

Interest

While there was sufficient proof of the debt on open account, the trial court erred in finding that the plaintiff was entitled to interest at the rate of 18% per year. This provision was simply not contained in any legible portion of the 2011 agreement. The language from the 2013 agreement, supplied by Monsanto, clearly was not the same as the 2011 agreement. Monsanto never argued and the record contains no proof that the defendants executed the entire 2013 agreement, which contained the provision on interest that the trial court applied. However, the Louisiana Civil Code provides for the payment of legal interest on conventional obligations.

An obligor is liable for the damages caused by his failure to perform a conventional obligation. A failure to perform results from nonperformance, defective performance, or delay in performance. La. C.C. art. 1994. Damages are measured by the loss sustained by the obligee and the profit of which he has been deprived. La. C.C. art. 1995. When the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due, at the rate agreed by the parties or, in the absence of agreement, at the rate of legal interest as fixed by R.S. 9:3500. See La. C.C. art. 2000. Because Monsanto did not prove that KT Farms agreed to interest at the rate of 18% per year in the event of default, it is limited to the recovery of legal interest, from the date of judicial demand.

Attorney Fees

Further, because the 2011 agreement did not contain any legible provisions for the payment of attorney fees by a defaulting debtor, under the facts of this case, Monsanto is only entitled to attorney fees under the open account statute. As set forth above, La. R.S. 9:2781 provides for the recovery of reasonable attorney fees if the requirements of the statute are strictly complied with. Although the trial court based its recovery for attorney fees on the 2011 agreement, it found that the amount requested by Monsanto, 26% of the debt, was not reasonable. The trial court awarded a fee of $50,000, citing the time and skill involved and the experience of the attorney handling the matter. Monsanto maintains that the trial court did not abuse its discretion in setting the award and properly applied the factors in Saucier v. Hayes Dairy Products, Inc. , 373 So.2d 102, on reh'g (La. 1979), in making the award.

We find that the $50,000 attorney fee award in this case was not reasonable and was an abuse of discretion. This matter, although unnecessarily complicated by Monsanto's failure to preserve legible copies of important documents, was a simple open account case that required only a short trial. A small number of exhibits were introduced. The record on appeal is one small volume. The attorney fee awarded by the trial court was not consistent with the statement by Monsanto's own counsel regarding the amount of time expended on this matter.

Monsanto's attorney filed an affidavit with the trial court stating that the collection agency handling this matter charged 26%, including attorney fees. Monsanto's attorney took the case on a 15% contingency fee basis, plus costs, and did not keep records of the hours spent on the matter. The attorney estimated he spent 40-50 hours on the case, exclusive of travel time. He charges $200 per hour for office time, and $300 per hour for out-of-office time. Monsanto included no figures for travel time. Travel time would have been minimal, due to the fact that only one short court appearance was made. We find that, under the facts presented here, a more than reasonable attorney fee in this matter is $15,000. We amend the trial court judgment to award this amount.

Degree of Debtor Liability

We also find that the trial court erred in providing in its judgment that all the defendants were liable in solido in this matter. An obligation is solidary for the obligors when each obligor is liable for the whole performance. A performance rendered by one of the solidary obligors relieves the others of liability toward the obligee. La. C.C. art. 1794.

In its reasons for judgment, the trial court stated that, in addition to TKI's guaranty of the debts of KT Farms to Monsanto, Aymond and Herron also guaranteed the debt. This finding is simply not supported by the record. Aymond, Herron, and KT-One were partners in KT Farms. A partnership is a juridical person, distinct from its partners, created by a contract between two or more persons to combine their efforts or resources in determined proportions and to collaborate at mutual risk for their common profit or commercial benefit. La. C.C. art. 2801. A partnership as principal obligor is primarily liable for its debts. A partner is bound for his virile share of the debts of the partnership but may plead discussion of the assets of the partnership. La. C.C. art. 2817. The use of the term "virile share" to describe per head liability among the partners of a general partnership is well-established within Louisiana partnership jurisprudence. See Hibernia Nat. Bank v. Carner , 997 F.2d 94 (5th Cir. 1993), as clarified on denial of reh'g (Sept. 15, 1993).

A contract of guaranty is equivalent to a contract of suretyship and the two terms may be used interchangeably. Fleet Fuel, Inc. v. Mynex, Inc. , 40,683 (La. App. 2 Cir. 3/8/06), 924 So.2d 480, writ denied , 2006-0762 (La. 6/23/06), 930 So.2d 977. Suretyship is an accessory contract by which a person binds himself to a creditor to fulfill the obligation of another upon the failure of the latter to do so. La. C.C. art. 3035. One who ostensibly binds himself as a principal obligor to satisfy the present or future obligations of another is nonetheless considered a surety if the principal cause of the contract with the creditor is to guarantee performance of such obligations. A creditor in whose favor a surety and principal obligor are bound together as principal obligors in solido may presume they are equally concerned in the matter until he clearly knows of their true relationship. La. C.C. art. 3037. A surety, or each surety when there is more than one, is liable to the creditor in accordance with the provisions of this Chapter, for the full performance of the obligation of the principal obligor, without benefit of division or discussion, even in the absence of an express agreement of solidarity. La. C.C. art. 3045. A surety may not recover from the principal obligor more than he paid to secure a discharge, but he may recover by subrogation such attorney's fees and interest as are owed with respect to the principal obligation. La. C.C. art. 3052.

Under these principles, it is clear that, as partners in KT Farms, Aymond, Herron, and KT-One are liable only for their share of the debt. As a guarantor, TKI is liable in solido with KT Farms. Therefore, we amend the trial court judgment to provide that Aymond, Herron, and KT-One are liable only for their virile share of the debt. Only TKI is liable in solido with KT Farms for the debt owed to Monsanto.

CONCLUSION

For the reasons stated above, although for different reasons than those assigned by the trial court, we affirm the trial court judgment finding that the defendants, KT Farms Partnership, through its partners, Kyle Aymond, Thad Herron, and KT-One LLC, and Thad Kyle Investments LLC, are liable to Monsanto for the principal amount of the debt, $671,041.60. We affirm that portion of the trial court judgment finding that Thad Kyle Investments, LLC is liable in solido with KT Farms.

We amend that portion of the trial court judgment finding that Aymond, Herron, and KT-One are liable in solido with KT Farms to provide that they are liable only for their virile share of the debt.

We amend that portion of the trial court judgment finding that Monsanto is entitled to recover interest at the rate of 18% per year on the unpaid balance of the debt from December 31, 2013, until paid, to provide that Monsanto is entitled to recover legal interest on the debt from the date of judicial demand.

We amend that portion of the trial court judgment awarding Monsanto attorney fees in the amount of $50,000 to provide that Monsanto's attorney fee award is $15,000.

Costs in this court are assessed one-half to Monsanto and one-half to KT Farms Partnership, through its partners, Kyle Aymond, Thad Herron, and KT-One Farms LLC; and Thad Kyle Investments LLC. As amended, the trial court judgment is affirmed.

AFFIRMED IN PART; AMENDED IN PART; AFFIRMED AS AMENDED.

      In its petition, Monsanto stated that the charter of KT-One was revoked in May 2013.

      Willis stated that Helena also extended credit to KT Farms for the purchase of products not manufactured by Monsanto. Helena sued KT Farms in federal district court for amounts due on those goods and obtained a judgment.

      Monsanto's petition requests attorney fees of 25%. The affidavit from Monsanto's attorney, filed after trial in connection with attorney fees, specified that a collection agency called D & S Limited, which handled the matter for Monsanto, "charged 26% (including attorney fees) for this matter."

      On the same page, after Aymond's signature, was what appeared to be an agreement between Monsanto and Tensas, signed by a representative of Tensas. That portion of the document was also only partially legible and provided:
      [Illegible] will assign the right to receive payment for Monsanto seed products pursuant [sic] the FarmFlex Interest Free Financing Agreement to [Illegible] are effective only to the extent credit is available to Customer that is associated with Dealer and are effective when the Dealer [Illegible] Receipt to Monsanto by marking the appropriate place on the Delivery Receipt and delivering it to Monsanto, Dealer assigns an Invoice to [Illegible] an assignment to Monsanto or FarmFlex on the Invoice and delivering it to Monsanto, by assigning the Customer's transaction to [Illegible] the appropriate place in the SeedTrak or MyMonsanto computer program or any similar computer program sponsored by Monsanto. [Illegible] payments may further be assigned by Monsanto to Rabo Agrifinance, Inc. Dealer agrees that (i) this Agreement incorporates Monsanto's [Illegible] Operations Manual; is genuine and legally enforceable; (ii) the seed products and sales price described in the assignment to Monsanto have [Illegible] as agreed with Customer; (iii) Dealer will retain for three years and forward to Monsanto if requested, any Dealer Receipts signed or [Illegible] for this transaction; (iv) Dealer has made no warranties to Customer, except such as appear on the Delivery Receipt; and (v) to Dealer's [Illegible] related FarmFlex Financing Application contains no untrue statements or omissions that might influence Monsanto's credit decision.

      Saucier v. Hayes Dairy Products, Inc. , supra , provided that the factors to be considered as guides in determining the reasonableness of a fee include the following:
      (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
      (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
      (3) The fee customarily charged in the locality for similar legal services.
      (4) The amount involved and the results obtained.
      (5) The time limitations imposed by the client or by the circumstances.
      (6) The nature and length of the professional relationship with the client.
      (7) The experience, reputation and ability of the lawyer or lawyers performing the services.
      (8) Whether the fee is fixed or contingent.

      In their brief to the trial court, the defendants have posited that $15,000 would be a more reasonable amount.


source: Caselaw Access Project

author: PITMAN, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Demarcus S. PAYTON, Appellant
    No. 51,709-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 15, 2017
    LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Monroe, Counsel for Appellant
    DANIEL W. NEWELL, District Attorney, CARY T. BROWN, TERESA CULPEPPER CARROLL, Assistant District Attorneys, Counsel for Appellee
    Before MOORE, PITMAN, and DREW (Ad Hoc ), JJ.
   PITMAN, J.

Defendant Demarcus S. Payton was convicted of aggravated rape, unauthorized entry of an inhabited dwelling and simple escape. The trial court sentenced him to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence for the conviction of aggravated rape; six years at hard labor for the conviction of unauthorized entry of an inhabited dwelling; and five years at hard labor for the conviction of simple escape. The trial court ordered that the sentences for aggravated rape and unauthorized entry of an inhabited dwelling be served concurrently with each other and that the sentence for simple escape be served consecutively. For the following reasons, we affirm Defendant's convictions and sentences, but order the minute entry amended and remand for compliance with La. R.S. 15:543.

FACTS

On July 17, 2014, Defendant was indicted for aggravated rape, in violation of La. R.S. 14:42 ; unauthorized entry of an inhabited dwelling, in violation of La. R.S. 14:62.3 ; and simple escape, in violation of La. R.S. 14:110(A)(1). The indictment alleged that on or about June 16, 2014, Defendant committed the rape of C.C., made entry without authorization into the inhabited dwelling and home of C.C. and intentionally departed from a place of legal confinement and lawful custody of a law enforcement officer. On August 5, 2014, Defendant entered pleas of not guilty to the charges.

A jury trial commenced on February 29, 2016. During jury selection, the trial court denied four challenges for cause asserted by Defendant.

C.C. testified that in the early morning of June 16, 2014, a man approached her while she was sitting on her front porch. She stated that she had never seen this man before and identified him in open court as Defendant. She further stated that he made inappropriate sexual comments to her, which frightened her. She went inside her house, locked the exterior doors, grabbed a knife and called the Claiborne Parish Sheriff's Office. Chief Anthony Smith of the Haynesville Police Department responded to her home. After Chief Smith left in search of Defendant, C.C.'s ex-boyfriend came to her house. She stated that they observed Defendant standing in the street in front of her house; and, at 2:22 a.m., she informed Chief Smith by text. She noted that her ex-boyfriend left her house at approximately 5:00 a.m. and then she went to sleep on her couch.

C.C. testified that she was awakened by a man with his hand over her mouth and a knife to her throat. She feared for her life and the lives of her children, who were home and asleep at the time. She stated that the man forced her to perform oral sex on him, that he performed oral sex on her and that he raped her vaginally and anally. The man brandished a knife at her, struck her in the forehead and threatened to kill her and her children. She testified that the man stopped raping her and left her home when one of her children woke up at approximately 7:00 a.m.

C.C. further testified that she went to the hospital and underwent an examination. Morgan Matlock, a forensic nurse examiner and certified sexual assault nurse examiner, testified that she examined C.C. and collected swabs from her body and genitalia. Candace Jones, a forensic DNA analyst with the North Louisiana Criminalistics Laboratory, testified that DNA recovered on swabs from C.C. was consistent with a reference sample from Defendant or a male in his paternal lineage.

Officer Trent Crook of the Haynesville Police Department testified that he obtained a warrant for the arrest of Defendant on June 17, 2014. He stated that at 1:00 a.m. on June 18, 2014, he located Defendant, placed him under arrest, advised him of his rights and secured him in handcuffs. He then transported Defendant to the Haynesville Police Department. As he walked Defendant to another patrol unit to transfer him to the Claiborne Parish Detention Center, Defendant ran away. Officer Crook stated that he chased after Defendant, but was unable to catch him. Law enforcement later located Defendant at his sister's house, and he was taken into custody.

On March 3, 2016, the jury unanimously found Defendant guilty as charged on all three counts. On May 3, 2016, the trial court sentenced him to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence for the conviction of aggravated rape; six years at hard labor for the conviction of unauthorized entry of an inhabited dwelling; and five years at hard labor for the conviction of simple escape. It further ordered that the sentences for aggravated rape and unauthorized entry of an inhabited dwelling be served concurrently with each other and that the sentence for simple escape be served consecutively.

Defendant appeals.

DISCUSSION

In his sole assignment of error, Defendant argues that the trial court erred in denying challenges for cause made by Defendant, prejudicing his ability to have a fair and impartial trial. He asserts that it erroneously denied his challenges for cause as to potential jurors Patsy Ann Whitlow, Loretta Ford, Brian Edward Bogle and Robert James Heard. He contends that prejudice is presumed in this case because he exercised all 12 peremptory challenges.

The state argues that the trial court did not abuse its discretion in denying Defendant's challenges for cause. It contends that Defendant failed to assert facts to indicate that any of the contested jurors were unable to judge the case impartially based on the evidence adduced at trial.

Louisiana Constitution article I, section 17 (A), guarantees to a defendant the "right to full voir dire examination of prospective jurors and to challenge jurors peremptorily." The number of peremptory challenges granted to a defendant in a trial of an offense punishable by imprisonment at hard labor is fixed by law at 12. La. C. Cr. P. art. 799.

When a defendant uses all 12 of his peremptory challenges, an erroneous ruling of a trial court on a challenge for cause that results in depriving him of one of his peremptory challenges constitutes a substantial violation of his constitutional and statutory rights, requiring reversal of the conviction and sentence. State v. Juniors , 03-2425 (La. 6/29/05), 915 So.2d 291. Prejudice is presumed when a challenge for cause is erroneously denied by a trial court and a defendant has exhausted his peremptory challenges. Id. Therefore, where all peremptory challenges have been used, a defendant need only demonstrate the erroneous denial of a challenge for cause to establish reversible error warranting reversal of a conviction and sentence. State v. Dotson , 16-0473 (La. 10/18/17), 234 So.3d 34, 2017 WL 4681942 ; State v. Juniors , supra .

Challenges for cause are governed by La. C. Cr. P. art. 797, which states:

The state or the defendant may challenge a juror for cause on the ground that:
(1) The juror lacks a qualification required by law;
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
(4) The juror will not accept the law as given to him by the court; or
(5) The juror served on the grand jury that found the indictment, or on a petit jury that once tried the defendant for the same or any other offense.

Voir dire examination of prospective jurors is designed to discover bases for challenges for cause and to secure information for an intelligent exercise of peremptory challenges. State v. Drew , 360 So.2d 500 (La. 1978). The questions propounded are designed to determine any potential adverse influence on a juror's ability to render an impartial verdict. Id. A prospective juror's responses during voir dire cannot be considered in isolation. State v. Dotson , supra , citing State v. Frost , 97-1771 (La. 12/1/98), 727 So.2d 417. A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably inferred. State v. Clark , 12-0508 (La. 12/19/16), 220 So.3d 583 ; State v. Jones , 474 So.2d 919 (La. 1985). A challenge for cause is not warranted when a prospective juror volunteers an opinion seemingly prejudicial to the defense, but subsequently, after further inquiry or instruction (frequently called "rehabilitation"), has demonstrated an ability and willingness to decide the case impartially according to the law and evidence. State v. Robertson , 630 So.2d 1278 (La. 1994) ; State v. Brown , 46,669 (La. App. 2 Cir. 2/29/12), 86 So.3d 726, writ denied , 12-0724 (La. 9/14/12), 97 So.3d 1016.

A trial court is vested with broad discretion in ruling on challenges for cause, and its rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. State v. Tucker , 13-1631 (La. 9/1/15), 181 So.3d 590. A court's evaluation of the attributes required to qualify a prospective juror is entitled to great weight.

State v. Hampton , 50,561 (La. App. 2 Cir. 5/18/16), 195 So.3d 548, writ denied , 16-1181 (La. 5/26/17), 221 So.3d 854. Accordingly, the trial court's exercise of the wide discretion that determination requires will not be set aside unless it is arbitrary and unreasonable. Id. ,citing State v. Webb , 364 So.2d 984 (La. 1978).

In the case sub judice , Defendant states that he challenged Patsy Ann Whitlow for cause because she indicated that she had a family member who was the victim of a sexual assault, that she would be emotional in her reactions to this case and that she was not convinced she could be a fair and impartial juror. A review of voir dire shows that Ms. Whitlow disclosed that a family member was the victim of sexual assault seven years earlier and that an allegation of rape "clouds [her] judgment of whether someone is guilty or not." She stated that she is very emotional regarding allegations of rape, but would not hold the charges against Defendant in her deliberations. She agreed that Defendant was presumed innocent and stated that she would require the state to prove its case beyond a reasonable doubt. Ms. Whitlow was excused by a peremptory challenge by Defendant.

Defendant states that he challenged Loretta Ford for cause because she indicated that she would have difficulty being fair and impartial because of the nature of the charges against him and because she has a 25-year-old daughter and would project her into the case. A review of voir dire shows that Ms. Ford agreed that Defendant was entitled to a fair trial. When questioned by defense counsel about her ability to be fair, she stated that she might "get a little emotional," but that it would not affect her ability to serve on the jury. She explained that she would be thinking about those circumstances happening to her daughter. She agreed that even though she would have a difficult time, it would not prevent her from being fair and impartial given the allegations in this case. Ms. Ford was accepted as a juror.

Defendant states that he was never permitted to complete his argument challenging Brian Edward Bogle. He stated that the trial court believed that Mr. Bogle was trying to get out of jury service. A review of voir dire shows that Mr. Bogle indicated that he delivered mail to both families and was uncomfortable about the case. However, he then stated that he did not believe he would have to account to either family for the verdict. He also indicated that his mind would be on other things and that he would be distracted because his wife was to receive the results of cancer testing on the following Monday. He stated that he would not make any decision as to guilt or innocence until he heard every piece of evidence. Mr. Bogle was temporarily accepted as a juror, but he was later excused by a peremptory challenge by the state.

Defendant states that he challenged Robert James Heard for cause because he indicated that he did not know if he would be able to be fair and impartial because he has a 15-year-old daughter. A review of voir dire shows that Mr. Heard agreed that Defendant is entitled to a fair and impartial jury. He stated that he could be fair and impartial, could follow the law and would not make any decision as to guilt or innocence until he heard every piece of evidence. He stated that having a 15-year-old daughter gives him some pause about serving on this jury; however, he would like to think he could be impartial, but that there is a "little bit of doubt." Mr. Heard was excused by a peremptory challenge by Defendant.

A review of the voir dire record as a whole reveals no abuse of discretion by the trial court in its denial of Defendant's challenges for cause. It is undisputed that Defendant exercised all 12 of his peremptory challenges. Defendant used peremptory challenges on two of the four potential jurors at issue in this case. Mr. Bogle did not serve on the jury because of a peremptory challenge by the state. Following the trial court's denial of Defendant's challenge for cause as to Ms. Ford, he still had peremptory challenges available, but chose not to use one to excuse Ms. Ford.

Defendant has failed to show that the trial court erred in denying the four challenges for cause at issue. The totality of the prospective jurors' responses during voir dire demonstrates that they were able and willing to decide the case impartially according to the law and evidence. Although Ms. Whitlow initially expressed concern about her ability to serve as a juror because of her relative who was the victim of sexual assault, she was successfully rehabilitated. A prospective juror's relationship to a person who was the victim of a crime does not disqualify a prospective juror from serving. State v. Dotson , supra . Although Ms. Ford initially expressed concern with her ability to serve as a juror due to the nature of the charges, she was successfully rehabilitated and confirmed that the allegations against Defendant would not prevent her from being fair and impartial. Although Mr. Heard initially expressed concern about his ability to serve as a juror because he has a 15-year-old daughter, he was successfully rehabilitated and confirmed that he could be fair and impartial and could follow the law. Further, Defendant was not prejudiced by the trial court's denial of Defendant's challenge for cause as to Mr. Bogle because Mr. Bogle was excused by a peremptory challenge made by the state. The trial court was not arbitrary or unreasonable and therefore did not abuse its discretion when denying these challenges for cause.

Accordingly, this assignment of error lacks merit.

ERRORS PATENT

Minutes

An error patent review reveals a discrepancy between the transcript and the minute entry for the sentencing hearing. The sentencing transcript indicates that the trial court sentenced Defendant to "life imprisonment at hard labor without benefit of probation, parole or suspension of sentence" on the conviction for aggravated rape. However, the minutes do not reflect that the life sentence is to be served at hard labor.

La. C. Cr. P. art. 871(A) provides that a "[s]entence shall be pronounced orally in open court and recorded in the minutes of the court." When there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch , 441 So.2d 732 (La. 1983).

Accordingly, we order that the May 3, 2016 minute entry be amended to reflect that the sentence imposed for the conviction of aggravated rape be served "at hard labor."

Sex Offender Notification

An error patent review further reveals that the trial court did not provide Defendant with notice of his obligation to register as a sex offender.

Aggravated rape is a sex offense as defined by La. R.S. 15:541(24)(a), and La. R.S. 15:542 provides registration requirements for sex offenders. La. R.S. 15:543 requires the trial court to provide written notice of registration requirements to a defendant charged with a sex offense. The statute also requires that such notice be included on any guilty plea forms and judgment and sentence forms provided to the defendant and that an entry be made in the court minutes confirming the written notification.

Accordingly, we order that this matter be remanded to the trial court for the purpose of providing the appropriate written notice to Defendant of the sex offender registration requirements.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Defendant Demarcus S. Payton are affirmed. We order that the May 3, 2016 minute entry be amended to reflect that the sentence imposed for the conviction for aggravated rape be served "at hard labor." We further order that this matter be remanded to the trial court with instructions to provide Defendant with the appropriate notice regarding sex offender registration requirements.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.


author: MOORE, J.

text:
    Colleen Katherine Lynch HANSEN, et al., Plaintiff-Appellees v. RIVER CITIES DISPOSAL COMPANY, INC., Defendant-Appellant
    No. 51,700-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 15, 2017
    RICHIE, RICHIE & OBERLE, L.L.P., By: C. Vernon Richie, Margaret Richie Gaskins, Shreveport, KENNETH R. ANTEE, JR., Counsel for Appellant
    WIENER, WEISS & MADISON, By: Frank H. Spruiell, Jr., Roger Joseph Naus, Shreveport, Counsel for Appellees
    Before MOORE, GARRETT, and BLEICH (Pro Tempore ), JJ.
   MOORE, J.

River Cities Disposal Co. Inc. ("RCDC") appeals a declaratory judgment recognizing that the estate of its former consultant, Jim Lynch, had an ownership interest of 14½% of the net revenue from RCDC's marketing agreement with Browning-Ferris Industries ("BFI"). For the reasons expressed, we affirm.

FACTUAL BACKGROUND

In the 1980s, the City of Shreveport built the new Woolworth Road landfill. Local produce distributor Tony Pernici, his grandsons Scott and Rick Pernici, and other investors (John Caruthers, Taylor Moore, David Watkins, Al Otto) formed a startup company, River Cities Waste Inc. ("RCW"), in 1986, to haul solid waste to Woolworth Road. The Pernicis owned a lot of trucks, but had no experience in the field of solid waste, so they turned to several consultants, including Jim Lynch, previously the city's director of public works. RCW developed a small business, principally hauling for the Pernicis' established customers.

The city eventually solicited proposals from solid waste companies to operate Woolworth Road. RCW contacted BFI, an industry leader, and struck a deal. Shareholders of RCW formed a new corporation, RCDC, in March 1987, to execute a landfill marketing agreement ("the marketing agreement") with BFI. Under the marketing agreement, RCDC was to receive 10% of BFI's gate revenues at Woolworth Road. RCDC thus became the principal solid waste hauler for Shreveport.

Everyone recognized that Lynch's experience and connections in the industry were instrumental in the formation of RCW and in securing the contract with BFI. Rather than paying him up-front for his services, the shareholders agreed to pay Lynch a percentage of RCDC's net revenue under the marketing agreement. They wrote him the following letter ("the letter agreement"), on RCW letterhead, on October 12, 1987:

This letter will serve as evidence of your ownership of 14½% of our net revenues from our Shreveport landfill marketing agreement with BFI, Inc.

The letter agreement was signed by Scott Pernici, president, and John D. Caruthers Jr., secretary/treasurer, and RCDC began paying Lynch the 14½% monthly.

Lynch was, at the time, seriously ill with emphysema, as RCDC's shareholders were fully aware. He died in March 1989, having received about $24,000 from the letter agreement. RCDC continued making the monthly payments, to his widow, Carolyn Lynch; until her death, in 2012, she had received about $2 million from RCDC. Evidence at trial showed that RCDC treated these payments, for tax purposes, as commissions, management fees, consulting fees, or royalties to nonowners, all deductible as necessary and ordinary business expenses. Carolyn treated them as taxable income.

In 2008, Carolyn's CPA, George McGovern, noticed that the RCDC payments were the largest asset in her estate. With her consent, he emailed RCDC's attorney, Michael Wainwright, asking for documentation of her 14½% ownership "in the landfill." Wainwright replied that Lynch never owned "any interest in" RCDC, the 14½% payment was a "fee" to Lynch, after his death the shareholders "decided to voluntary [sic ] continue" making those payments to Carolyn, and RCDC intended to continue making the payment "during her lifetime[.]" McGovern replied by email, "You have resolved an issue we were having regarding her estate. * * * I believe she is very content with the current arrangement." Carolyn died in June 2012, and RCDC immediately stopped sending the money, which was by then about $12,000 a month.

PROCEDURAL HISTORY

Ms. Hansen, Carolyn's daughter and executrix, and the other children filed this suit for declaratory judgment in May 2013, seeking recognition of their ownership of 14½% interest. RCDC countered that all payments made to Lynch, and later to Carolyn, were donations, and lacked lawful cause; it filed a motion for summary judgment to this effect, which the district court granted.

On appeal, this court found genuine issues of material fact as to the "cause of the contract as it bears on the classification of the payments[.]" While noting that the district court found the letter agreement ambiguous, this court was "not as certain about the equivocality of the letter" but, if it was truly ambiguous, the court "erred in making its determination that there were no genuine issues of material fact." We reversed and remanded. Hansen v. River Cities Disposal Co. , 49,968 (La. App. 2 Cir. 8/12/15), 174 So.3d 1203, writ denied , 2015-1657 (La. 10/30/15), 180 So.3d 301.

The parties proceeded to trial over two days in September 2016. The plaintiffs called George McGovern, Carolyn's CPA. He testified that the "royalty payment" from RCDC was listed as an asset of Lynch's estate, and that in 2008 he asked RCDC's attorney, Wainwright, to confirm Carolyn's 14½% interest "in the landfill." McGovern did not agree that RCDC's payments to Carolyn were "voluntary," but testified that she was satisfied to hear that she would continue to receive them. Robert Busby, RCDC's CPA, testified that the corporation had treated payments to Carolyn as necessary and ordinary business expenses, and deducted them accordingly.

The plaintiffs called Scott Pernici on cross-examination; he gave a long account of the genesis of RCW and RCDC, describing Lynch's advice in the early days as "valuable." He testified that RCDC did not pay a salary to most of its consultants (although it made lucrative business deals with some), and was aware that it later started paying Lynch. Scott claimed he was totally unaware of the letter agreement, did not recall signing it, and saw it for the first time only when this litigation started, but he admitted the signature on it was his own. Scott's brother Rick, also called on cross-examination, similarly claimed to be totally unaware that the letter agreement existed.

The plaintiffs also called John Caruthers Jr., on cross-examination, an 87-year-old retired attorney who had invested in RCW back in 1986. He had been "most impressed" with Lynch's political skills and considered him a "valuable asset" to the business. In 1987, the shareholders wanted to compensate Lynch, but RCDC did not yet have a return on capital, so all agreed to reduce their shares of the net from the marketing agreement to give Lynch a share similar to their own, 14½%. Caruthers admitted signing the letter agreement and said he considered it valid for as long as RCDC was getting money under the marketing agreement. He was adamant that Lynch did not receive any actual ownership of the corporation, and was surprised that he (Lynch) told his CPA otherwise. He felt that the shareholders wanted to take care of Carolyn, and not her kids 25 years later.

RCDC called its attorney, Michael Wainwright, who testified that he had drafted all assignments and transfers of interest in the corporation. He insisted, however, that he did not draft the letter agreement, and was unaware of it until it turned up in discovery. He admitted, nevertheless, that RCDC had paid Lynch, and then Carolyn, a "consulting fee." He felt that the payments to Carolyn were voluntary, and he was opposed to continuing them, but the older shareholders wanted to "live up to" their agreement. He also testified that because of the response from McGovern in 2008, he advised RCDC to take no legal action regarding the status of the payments to her. Finally, he considered the letter agreement just a letter, not an agreement.

RCDC (as well as the plaintiffs) offered the deposition of David Watkins, one of the original shareholders of RCW and a current shareholder of RCDC. He was just a passive investor, but he considered Lynch a "valuable consultant" who taught them the business. He said the shareholders agreed to keep on paying the 14½% after Lynch's death, but did not discuss how long they would continue doing so. When shown the letter agreement, he said, "I thought we made a mistake there, but there was never any question about living with it." RCDC also offered the deposition of Julie Otto, the widow of another original shareholder, Al Otto. She was adamant that Lynch had no actual ownership interest in RCW or RCDC, and thought that after Carolyn died, "the rest would be split up and everyone would agree."

On direct examination, Scott Pernici reiterated that Lynch had made no capital investment in RCW or RCDC, but that the companies agreed to pay him for consulting services. Scott expected payments to end when Lynch died, but his grandfather and other older shareholders told him to continue paying Carolyn; he viewed this as a "second agreement," and not as a "heritable right." He testified he was "shocked" by McGovern's query in 2008, and would have filed suit to clarify Carolyn's interest, but refrained from taking any action when she told McGovern she was "satisfied" with the current arrangement. Finally, he said that Carolyn was now receiving more compensation than any shareholder.

ACTION OF THE DISTRICT COURT

The district court wrote a six-page ruling, finding that the letter agreement constituted an act under private signature, La. C.C. art. 1838 ; that no testimonial or other evidence was admissible to disprove it, La. C.C. art. 1848 ; that it clearly conveyed to Lynch, with no limitations, 14½% ownership of the revenue stream from BFI to RCDC; and that parol evidence suggesting that it meant anything else was inadmissible. The court cited RCDC's tax returns to reject the argument that the corporation made years of voluntary payments to Carolyn, and found no evidence that the parties ever modified the letter agreement, such as to limit it to Carolyn's lifetime. Finally, the court rejected the argument that McGovern's emails in 2008 constituted equitable estoppel, as RCDC did not prove a change in position, only a decision to take no action.

The court rendered judgment recognizing the estate's ownership in 14½% of the net revenue from the marketing agreement for as long as that agreement remains in existence, awarding a lump sum of $581,883 for amounts unpaid from July 2012 through September 2016, and ordering RCDC to make all future payments on the first of each month after the revenue is received.

RCDC has appealed suspensively, raising seven assignments of error.

DISCUSSION

Law of the Case

By its first assignment of error, RCDC urges the court erred in finding the intent of the parties solely in the text of the letter agreement, when the Second Circuit had "already ruled otherwise." RCDC cites a passage from this court's opinion ("Such a determination [the intent of the parties] can not be made on affidavits but can only be determined after trial") and argues that this constitutes law of the case, Day v. Campbell-Grosjean Roofing & Sheet Metal Corp. , 260 La. 325, 256 So.2d 105 (1971). It concludes that this court's prior ruling is binding on the parties and the district court, and obligated the district court to consider testimonial evidence.

The "law of the case" principle is a discretionary guide which relates to the binding force of a trial judge's ruling during the later stages of trial, to the conclusive effects of appellate rulings at trial on remand, and to the rule that an appellate court ordinarily will not reconsider its own rulings of law on a subsequent appeal in the same case. McElroy v. Continental Cas. Co. , 43,868 (La. App. 2 Cir. 6/24/09), 15 So.3d 377, and citations therein . It has no application when an appellate court reviews a ruling of the district court. Id. ; Landry v. Aetna Ins. Co. , 442 So.2d 440 (La. 1983). When a district court denies summary judgment, or an appellate reverses one, on grounds that there are still genuine issues of material fact, law of the case does not attach. McElroy v. Continental Cas. Co. , supra ; Edwards v. Larose Scrap & Salvage Inc. , 2011-1412 (La. App. 3 Cir. 4/4/12), 89 So.3d 1227, writ denied , 2012-1510 (La. 10/12/12), 98 So.3d 870 ; State v. National Union Fire Ins. Co. of La. , 2010-0689 (La. App. 1 Cir. 2/11/11), 56 So.3d 1236, writ denied , 2011-0849 (La. 6/3/11), 63 So.3d 1023.

This court reversed the summary judgment because we found genuine issues of material fact-specifically, if the letter was (as the district court found) ambiguous, how could it be clear enough to defeat the plaintiffs' claim, without the admission of extrinsic evidence? We added that "we are not as certain [as the district court] about the equivocality of the letter," but did not make a factual finding that it was (or was not) ambiguous. Our prior opinion provides no basis to apply the discretionary principle of law of the case. This assignment of error lacks merit.

Finding of Act Under Private Signature

By its second assignment of error, RCDC urges the court erred in finding the letter agreement was a contract in the form of an act under private signature. A contract must create, modify or extinguish an obligation, La. C.C. art. 1906, but the letter agreement was explicitly only "evidence of your ownership," and, according to RCDC, does not purport to be a contract. RCDC concedes that lawful cause need not be stated, La. C.C. art. 1969, but argues that the letter agreement's silence as to cause makes it not a contract, but, rather, "essentially, a receipt-evidence of a prior transaction between the parties." RCDC concludes that a receipt is not a contract and is not an act under private signature just because somebody signed it.

The act under private signature is not explicitly defined in the Civil Code, but its meaning is apparent from the context, Book III, Title III, Chap. 5, "Proof of Obligations." The law requires certain contracts to be in written form, La. C.C. art. 1832. The preferred written form is the authentic act-one executed before a notary public or other authorized officer, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed. La. C.C. art. 1833. An authentic act constitutes "full proof" of the agreement, and is also considered self-proving. La. C.C. art. 1835 ; C.C.P. art. 2636 ; Louisiana Nat'l Bank of Baton Rouge v. Heroman , 280 So.2d 362 (La. App. 1 Cir.), writ denied , 281 So.2d 755 (1973). However, an act that fails to be authentic because of lack of competence or capacity of the notary, or because of a defect of form, may still be valid as an act under private signature. La. C.C. art. 1834 ; 6126, LLC v. Strauss , 2013-0853 (La. App. 4 Cir. 12/4/13), 131 So.3d 92, writ denied , 2014-0001 (La. 2/28/14), 137 So.3d 15 ; Neck v. Neck , 169 So.2d 401 (La. App. 3 Cir. 1964). One court has even held that wooden stakes, bearing the handwritten inscription "In 1936 this Lot 4 sold to Silas Griffin by L. J. Pierce," and hammered into the four corners of the lot, constituted an act under private signature. Pierce v. Griffin , 95 So.2d 190 (La. App. 3 Cir.), writ denied , (1957, not reported).

An act under private signature is regarded "prima facie as the true and genuine act of a party executing it when his signature has been acknowledged, and the act shall be admitted in evidence without further proof." La. C.C. art. 1836. A party against whom an act under private signature is asserted must acknowledge his signature or deny that it is his. La. C.C. art. 1838. An act under private signature need not be written by the parties, but must be signed by them. La. C.C. art. 1837. For an assignment, there is no requirement of authentic form or that the assignee sign; it is sufficient for the assignor to sign, and acknowledge his signature, for the instrument to constitute an act under private signature duly acknowledged. Louisiana Mobile Imaging Inc. v. Ralph L. Abraham Jr. Inc. , 44,600 (La. App. 2 Cir. 10/14/09), 21 So.3d 1079 ; Meyer v. Ullo , 627 So.2d 226 (La. App. 4 Cir. 1993).

The letter agreement qualifies as an act under private signature because it reflects RCDC's assignment to Lynch of 14½% interest in the net revenues from the marketing agreement with BFI. It was signed by two corporate officers, Scott Pernici and John Caruthers, both of whom acknowledged their signatures. The district court did not commit manifest error in admitting it in evidence without further proof, under La. C.C. art. 1836. There is no merit in RCDC's argument that the document cannot qualify as an "act" because it does not contain language of conveyance, only "evidence of your ownership." The meaning is perfectly clear, and no special form or words are required to constitute a valid assignment. Aetna Life Ins. Co. v. Lama Trusts , 28,328 (La. App. 2 Cir. 5/8/96), 674 So.2d 1086, writ not cons. , 96-1502 (La. 9/13/96), 679 So.2d 100 ; Colonial Fin. Serv. v. Stewart , 481 So.2d 186 (La. App. 1 Cir. 1985). This assignment of error lacks merit.

Interpretation of the Letter Agreement

By its third assignment of error, RCDC urges the court erred in finding that the parties intended to convey from RCDC to Lynch a heritable 14½% ownership in the revenue from the BFI marketing agreement. Citing the testimony of Caruthers and the deposition of David Watkins, senior shareholders, RCDC argues that the only intent was to give Lynch a "stipend" for past, present and future consulting services. Citing these witnesses, and Scott Pernici and Julie Otto, RCDC further contends that, shortly before his death, Lynch approached the shareholders and asked them to continue payments to Carolyn after he died-a request that would have been unnecessary if the letter agreement had truly conveyed a heritable interest to him. The shareholders agreed to continue payments as a "favor" to Lynch, never dreaming they had given away a heritable interest in their vital revenue. By its fourth assignment, RCDC urges the court erred in requiring it to prove that the "original contract" was validly modified by a subsequent oral agreement.

The interpretation of contracts is the determination of the common intent of the parties. La. C.C. art. 2045 ; Olympia Minerals LLC v. HS Resources Inc. , 2013-2637 (La. 10/15/14), 171 So.3d 878 ; Kennedy v. Saheid , 51,044 (La. App. 2 Cir. 11/16/16), 209 So.3d 985, writ denied , 2016-2241 (La. 1/23/17), 215 So.3d 681. Courts give the contractual words their generally prevailing meaning unless the words have acquired a technical meaning. La. C.C. art. 2047. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the intent of the parties. La. C.C. art. 2046 ; Mack Energy Co. v. Expert Oil & Gas LLC , 2014-1127 (La. 1/28/15), 159 So.3d 437 ; Kennedy v. Saheid , supra . Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature; however, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent or that the written act was modified by a subsequent and valid oral agreement. La. C.C. art. 1848 ; McCarroll v. McCarroll , 96-2700 (La. 10/21/97), 701 So.2d 1280 ; Driver Pipeline Co. v. Cadeville Gas Storage LLC , 49,375 (La. App. 2 Cir. 10/1/14), 150 So.3d 492, writ denied , 2014-2304 (La. 1/23/15), 159 So.3d 1058. Although parol evidence is inadmissible to vary the terms of a written contract, when the terms thereof are susceptible to more than one interpretation, or there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language used, then parol evidence is admissible to clarify the ambiguity and show the true intent of the parties.

McCarroll v. McCarroll , supra ; Driver Pipeline Co. v. Cadeville Gas Storage , supra .

The case boils down to the interpretation of the one sentence that comprises the letter agreement: "This letter will serve as evidence of your ownership of 14½% of our net revenues from our Shreveport landfill marketing agreement with BFI, Inc." The word used is ownership , which means direct, immediate and exclusive authority over a thing. La. C.C. art. 477. There is no qualification that Lynch's right is actually a stipend, commission, management fee, consulting fee or royalty to a nonowner. It is not made subject to any resolutory condition or term, as it might have been under La. C.C. arts. 478 and 1777. Nothing in the words of the letter agreement indicates that when it was executed, the parties intended that RCDC would pay the 14½% only for the duration of Lynch's, or of his widow's, life. The district court did not err in its interpretation of the letter agreement. This assignment of error lacks merit.

Further, the district court correctly stated that the burden is on the party claiming the modification of a written agreement to show it, by a preponderance of the evidence. Balser v. Shreveport Oil Co. , 163 La. 1008, 113 So. 356 (1927) ; Autovest LLC v. Nash , 50,725 (La. App. 2 Cir. 6/22/16), 197 So.3d 258, writ denied , 2016-1644 (La. 11/18/16), 210 So.3d 292. RCDC argued principally that the letter agreement conferred only a stipend, and offered parol testimony to prove that the parties modified this to extend the stipend through the lifetime of Lynch's widow, Carolyn. However, the court found that the letter agreement actually assigned Lynch ownership of 14½% net revenue, and RCDC adduced not one scintilla to prove that the parties agreed to reduce this to some conditional or temporary right. This assignment of error lacks merit.

Admissibility of Certain Testimony

By its fifth assignment of error, RCDC urges the court erred in finding that testimony regarding the intent of the parties was inadmissible parol evidence. RCDC reiterates that the letter agreement was not an act under private signature, but merely evidence of a prior verbal agreement, and thus the only way to prove the entire agreement was by the use of parol evidence. In support, it cites United Investors Life Ins. Co. v. Alexander , 27,466 (La. App. 2 Cir. 11/1/95), 662 So.2d 831. By its sixth assignment, RCDC urges the court erred in finding that Scott Pernici's testimony regarding his conversations with Lynch was inadmissible hearsay. Scott conceded that he did not know how the shareholders reached the 14½% expressed in the letter agreement, but maintained he had a clear recollection of the overall agreement. RCDC contends that his testimony was admissible to prove the fact that the conversations took place, not for the truth of their content, citing Frank L. Maraist, Evidence & Proof , 2 ed., § 10.1 (19 La. Civ. L. Treatise, Thomson West ©2007).

These assignments are premised on the argument that the letter agreement was not, after all, an act under private signature. Since we have affirmed the district court's finding that it was, RCDC has no recourse to parol evidence. La. C.C. art. 1848 ; McCarroll v. McCarroll , supra ; DriverPipeline Co. v. Cadeville Gas Storage , supra . In United Investors Life Ins. Co. v. Alexander , supra , this court affirmed the use of testimony to show that the "written agreement is incomplete and not intended by the parties to exhibit the entire agreement." United Investors , however, involved an insurance policy that designated only contingent beneficiaries, but no primary beneficiary: this gaping absence could be closed only by extrinsic, testimonial evidence. There is no such ambiguity in the letter agreement. Finally, Scott's testimony about conversations with Lynch may have been relevant to prove that the conversations took place, but it was offered primarily to show that the parties really intended something other than the text of the letter agreement. In short, it was an attempt to prove the truth of the matter asserted, defined as hearsay in La. C.E. art. 801 C, and generally inadmissible as evidence, La. C.E. art. 802. It was also inadmissible to negate or vary the terms of the letter agreement, La. C.C. art. 1848. This assignment of error lacks merit.

Equitable Estoppel

By its final assignment of error, RCDC urges the plaintiffs' claims were barred by equitable estoppel. The elements of equitable estoppel are a representation by conduct or word, justifiable reliance, and a change in position to one's detriment because of such reliance. Wilkinson v. Wilkinson , 323 So.2d 120 (La. 1975). On behalf of RCDC, Wainwright wrote to Carolyn's CPA, McGovern, that he considered RCDC's payment to be purely voluntary, and McGovern, on behalf of Carolyn, replied that "she is very content with the current arrangement." RCDC contends that this representation induced it to take no action to clarify the true nature of the payments, to its detriment. RCDC concludes that the declaratory judgment should be reversed and the plaintiffs' claims dismissed.

The doctrine of equitable estoppel is designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations or silence. Luther v. IOM Co. LLC , 2013-0353 (La. 10/15/13), 130 So.3d 817. To prove detrimental reliance, a party must prove, by a preponderance of the evidence, a representation by conduct or word, justifiable reliance, and a change to one's detriment because of the reliance. Id. ; Wilkinson v. Wilkinson , supra . Estoppels are not favored in our law; therefore, a party cannot avail himself of that doctrine unless he proves all essential elements of the plea. Luther v. IOM Co. , supra ; Magee v. Worley , 49,653 (La. App. 2 Cir. 3/4/15), 163 So.3d 23. Proof of an actual change in position is required. A party may justifiably rely on another's conduct or representations, but if he makes no change in his own conduct, takes no action in response, he fails to prove equitable estoppel. Wilkinson v. Wilkinson , supra ; Magee v. Worley , supra ; Pierce v. Pierce , 397 So.2d 62 (La. App. 2 Cir. 1981) ; Ciolino v. First Guaranty Bank , 2012-2079 (La. App. 1 Cir. 10/30/13), 133 So.3d 686.

RCDC's attorney, Wainwright, testified that because of the response from McGovern in 2008, he recommended that RCDC take no legal action regarding the status of payments to Carolyn. Scott Pernici testified that although his reaction to the initial query was to file suit to clarify Carolyn's interest, McGovern's response led him to "refrain from doing that." RCDC made no change until it discontinued payments, in 2012, immediately after Carolyn's death. In short, RCDC did not prove any change in conduct or action in response to McGovern's email; on the contrary, it proved inaction. There is no basis to apply equitable estoppel. Wilkinson v. Wilkinson , supra ; Magee v. Worley , supra ; Pierce v. Pierce , supra ; Ciolino v. First Guaranty Bank , supra . This assignment lacks merit.

CONCLUSION

For the reasons expressed, the judgment is affirmed. All costs are to be paid by the appellant, River Cities Disposal Company Inc.

AFFIRMED .

      Scott also testified, by proffer, that shortly before his death, Lynch had pleaded with him to persuade the other shareholders to "pay Carolyn what we would have paid him just like if he was still alive."