author: GRAVOIS, J.

text:
    STATE of Louisiana v. Sean E. STOCK
    NO. 16-KA-552
    Court of Appeal of Louisiana, Fifth Circuit.
    February 22, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Gail D. Schlosser, Douglas E. Rushton, Andrew Decoste
    COUNSEL FOR DEFENDANT/APPELLANT, SEAN E. STOCK, Prentice L. White
    Panel composed of Jude G. Gravois, Robert M. Murphy, and Hans J. Liljeberg
   GRAVOIS, J.

| defendant, Sean E. Stock, appeals his convictions for simple burglary of an inhabited dwelling, in violation of La. R.S. 14:62.2 (count one), and for receiving stolen things having a value of over $1,500.00, in violation of La. R.S.. 14:69 (count two). On appeal, defendant argues that the evidence is insufficient to convict him of the burglary charge. He also argues that the trial court erred in accepting the victim’s testimony as to the value of the stolen things. Finally, he argues that the trial court’s use of a predicate conviction to charge him as a habitual offender was error because of defects in his guilty plea to the predicate offense.

Upon review, for the following reasons, we affirm defendant’s convictions. However, based on our errors patent review, we vacate defendant’s adjudication and sentence as a habitual offender, reinstate defendant’s original sentence on count one that was vacated, and remand the matter to the trial court to rule on defendant’s outstanding motion to reconsider his original sentences and for further proceedings as warranted.

PROCEDURAL HISTORY

On August 3, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant, Sean E. Stock, with simple burglary of an inhabited dwelling, in violation of La. R.S. 14:62.2. On August 4, 2015, defendant was arraigned and entered a plea of not guilty. Thereafter, on October 28, 2015, a superseding bill of information was filed against defendant, additionally charging him with receiving stolen things having a value of over $1,500.00, in violation of La. R.S. 14:69. On October 29, 2015, defendant was arraigned and entered a plea of not guilty to the superseding bill of information.

On March 21, 2016, defendant went to trial before a twelve-person jury, which on March 22, 2016 returned a verdict of guilty as charged as to both counts. ROn March 23, 2016 and March 31, 2016, defendant filed a motion for post-verdict judgment of acquittal and a motion for a new trial, respectively, which motions were denied on April 4, 2016. The trial court then sentenced defendant to ten years imprisonment at hard labor on each count to be served concurrently. Also on April 4, 2016, defendant filed a motion to reconsider his sentences.

On March 30, 2016, the State filed a habitual offender bill of information alleging that defendant was a second felony-offender based on a 2004 conviction for carjacking. On April 11, 2016, defendant filed a motion to quash and an objection to the habitual offender bill, therein denying the allegations. On April 28, 2016, defendant filed a pro se motion for an appeal of his convictions and original sentences, which was granted on May 16,2016.

On August 26, 2016, the trial court denied defendant’s motion to quash, and after a habitual offender bill hearing, adjudicated defendant as a second felony offender. The trial court then vacated defendant’s original sentence on count one and resentenced him under the habitual offender statute to ten years imprisonment at hard labor, to be served without the benefit of probation or suspension of sentence and concurrently with the previous sentence imposed on count two and any other sentence defendant was then serving. Defendant orally moved for reconsideration of his enhanced sentence, which was denied during the hearing. Defendant also filed a written motion for reconsideration of the sentence imposed on August 26, 2016, which the trial court denied on its face that same day. Defendant’s appeal follows.

FACTS

On Saturday, June 20, 2015, Jeannie La-mury, a widow, was living alone at her home on 47th Street off of Causeway Blvd. in Metairie, Louisiana. At around 8:00 a.m. that day, Ms. Lamury left her home to spend the day at her mother’s 13house. Ms. Lamury returned home that evening. When she sat down on the sofa to watch television, she noticed a grape juice bottle on a nearby bookshelf; she thought that was odd, since she had not had any juice that morning. She also noticed that a large bowl of change was missing. At approximately 7:30 p.m. that evening, Ms. Lamury called 9-1-1 to report that someone had been inside of her home. Once the police arrived, part of their investigation centered on how the burglar had entered the home. There were no broken windows and Ms. Lamury could not recall whether the side door, which entered into the den from the carport, had been locked. She stated that she kept a spare key in her shed, which was located not far from the side door. Ms. Lamury did not search for other missing items at that time.

Deputy Daniel Ordoyne with the Jefferson Parish Sheriffs Office responded to Ms. Lamury’s 9-1-1 call. While on the scene, Deputy Ordoyne spoke with Christopher Dickson, who lived across the street from Ms. Lamury. Mr. Dickson informed Deputy Ordoyne that sometime between noon and 2:00 p.m. that day, while he was inside of his home, he observed a white male with a slim build, about 5’8‘ or 5’9‘ in height, with short dark ham, in a black shirt and with a backpack, walking down the sidewalk towards the Lamury residence. About half an hour later, the man left the house with the backpack. Mr. Dickson stated that he had never seen this person on the street before and could not describe the man’s face.

Meanwhile, that same day, at approximately 4:00 p.m., Detective George Kister with the Jefferson Parish Project STAR Division was patrolling nearby in an unmarked vehicle when he observed an individual, later identified as defendant, traveling on a bicycle eastbound on Andover Street towards Causeway Boulevard. Familiar with the area, Detective Kister followed defendant and lost sight of him at one point as he navigated through the neighborhood on his bicycle. Detective |4Kister observed defendant re-emerge and followed him as he went around the side of a nearby church. Defendant spotted Detective Kister, dismounted his bicycle, and walked towards Detective Kister’s vehicle.

After exiting his vehicle and making contact with defendant, Detective Kister asked defendant if he could perform a weapons pat-down search, to which defendant consented. During his pat-down of defendant, Detective Kister felt a bulge in defendant’s right front leg pocket. Defendant informed Detective Kister that the bulge was jewelry and gave Detective Kis-ter consent to remove the bulge, which was a mix of men and women’s jewelry. Defendant informed Detective Kister that he had received the jewelry from a man named Perry, but he did not know where Perry got the jewelry from. Suspecting that the jewelry might be stolen property, Detective Kister asked defendant if he could have it; defendant agreed. Detective Kister brought the jewelry to the burglary division at the investigations bureau, took photographs of the jewelry, and logged it in as property, pending further investigations.

The following day, Sunday, June 21, 2015, Ms. Lamury attended a barbeque at her mother’s house for most of the day. When she returned home, she sat down on the sofa and turned her television on as she had done the previous day. Ms. Lamu-ry then looked over towards her desk in the den and noticed that her laptop was gone. She also noticed that another laptop was missing from the front living area of her house. Ms. Lamury again called 9-1-1 to report that for the second night in a row, someone had been in her home and that her computers were missing.

When the police arrived, Ms. Lamury told them that she had removed the spare key from her shed and had locked the door before she had left earlier in the | Rday. She then went into her bedroom and realized that some of her jewelry was missing from boxes on her shelf. She described that a wedding set, a Ramsey’s solitaire diamond engagement ring, and a 14-carat gold band were missing, as well as her husband’s 14-carat gold band and some costume jewelry. Before leaving the scene, Deputy Ordoyne notified the detective bureau of the burglary.

On Tuesday, June 23, 2015, Detective Manual Estrada with the burglary division of the Jefferson Parish Sheriffs Office came to Ms. Lamury’s home for a followup investigation and asked if she knew someone by the name of Sean. At first, Ms. Lamury did not recognize anyone by that name, but then remembered that she had previously hired someone to do yard work and painting. The detective showed Ms. Lamury a picture of defendant on his phone and Ms. Lamury recognized the person in the picture as the same person who had cut down a tree in her yard and painted her kitchen two or three years earlier. The detective also showed Ms. La-mury the photographs of the jewelry that had been taken by Detective Kister; she recognized the jewelry as hers.

Detective Estrada then notified Detective Kister that they were interested in defendant in regards to the jewelry that Detective Kister had brought in previously. After finding defendant sleeping under the overpass at Causeway Boulevard and Metairie Road, defendant willingly went with Detective Kister to the investigations bureau.

At the investigations bureau, defendant met with Detective Estrada and Detective Darrin Parent and was read his Miranda rights. Defendant executed a rights of ar-restee form and cooperated with the detectives. During the interview, defendant admitted that he had done work at a couple of houses on 47th Street a few years prior, though he never identified Ms. Lamury by name. At first, ^defendant stated that he did not know where the jewelry came from; he only admitted that on Saturday, he had seen Perry, whom he had only met a few times before. Defendant identified Perry in a photograph and complained that Perry had stolen fishing gear from him. Defendant reported that Perry had the jewelry and had given it to him on Saturday afternoon for him to sell. He stated he figured that it was stolen property.

Later, defendant changed his story and revealed that he told Perry that there were big jars of change in the third house from the end of the street, likely amounting to between one to two hundred dollars, and that he had planned to go to Winn Dixie to cash in the change. Defendant informed the detectives that he and Perry rode bikes there. He described Perry as wearing jeans and having a backpack on that Saturday. Defendant denied entering the home, but admitted that he waited near a nearby barroom for around thirty minutes. He denied knowing how Perry had entered into Ms. Lamury’s home. Defendant recalled that when Perry exited the home, he did not have any change, but he gave defendant the jewelry. Defendant said that he encountered Detective Kister within an hour or so of when he obtained the jewelry from Perry. Defendant denied knowing anything about Ms. Lamury’s home being broken into on Sunday or about the computers. Following his statements, defendant was placed under arrest for simple burglary and illegal-possession of stolen things.

ASSIGNMENT OF ERROR NUMBER ONE

Sufficiency of the evidence of burglary

In his first assignment of error, defendant argues that the evidence was insufficient ■ to support his- conviction of simple burglary of an inhabited dwelling. He argues that the State failed to prove beyond a reasonable doubt the essential elements of his identity or that he had specific intent to commit a felony or any 17theft inside the dwelling. Specifically as to identity, defendant contends that, the State’s primary eyewitness could not place him at Ms. Lamury’s residence, and there was no physical evidence at the scene linking him to the offense. He distinguishes the facts of this matter from State ex rel J.W., 14-292 (La.App. 4 Cir. 10/29/14), 157 So.3d 764, where a police officer observed the defendant exit the house, and from State v. Netter, 11-202 c/w 11-203 (La. App. 5 Cir. 11/29/11), 79 So.3d 478, writ denied, 12-32 (La. 8/22/12), 97 So.3d 357, where the victim provided a description of the perpetrator who matched the defendant. He argues that here, there was no evidence that he was near Ms. Lamury’s home or that he was seen leaving the home. The State responds that any trier of fact could reasonably conclude that defendant was guilty, at least as a principal, to simple burglary of an- inhabited dwelling. The State argues that defendant admitted he acted as a lookout for the crime.

The standard of review for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). When circumstantial evidence forms the basis of a conviction, La. R.S. 15:438 requires that the elements of the offense be proven so that every reasonable hypothesis of innocence is excluded. State v. Schnyder, 06-29 (La. App. 5 Cir. 6/28/06), 937 So.2d 396, 400; State v. Tran, 97-640 (La. App. 5 Cir. 3/11/98), 709 So.2d 311, 316. This is not a separate test from the reasonable doubt standard in Jackson, swpra, but rather provides a basis for a determination of the existence of reasonable doubt. All of the evidence, both direct and circumstantial, must be sufficient to satisfy a rational trier of fact that the defendant is guilty beyond a reasonable doubt. Id.

|sThe credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact. The trier of fact can accept or reject, in whole or in part, the testimony of any witness. State v. Schnyder, supra; State v. Baker, 01-1397 (La. App. 5 Cir. 4/30/02), 816 So.2d 363, 365. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. Id. Under the Jackson standard, a review of a criminal conviction record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Schnyder, supra; State v. Barnes, 98-932 (La. App. 5 Cir. 2/10/99), 729 So.2d 44, 46, writ denied, 99-1018 (La. 9/17/99), 747 So.2d 1099. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by a defendant offers an exculpatory explanation of events. State v. Mitchell, 09-996 (La. App. 5 Cir. 5/25/10), 40 So.3d 1122, 1127, writ denied, 10-1557 (La. 10/21/11), 73 So.3d 370. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id.

La. R.S. 14:24 provides that “all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly procure another to commit the crime, are principals.”

Simple burglary of an inhabited home is the unauthorized entry of any inhabited dwelling, house, apartment, or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein. La. R.S. 14:62.2. In order to convict an accused of simple | burglary of an inhabited dwelling, the State must prove: (1) there was an unauthorized entry; (2) .the structure was inhabited at the time of entry; and (3) the defendant had the specific intent to commit a felony or theft inside the structure. State v. Dibartolo, 14-691 (La. App. 5 Cir. 2/11/15), 168 So.3d 754, 758; State v. Barroso, 99-1297 (La. App. 5 Cir. 5/17/00), 762 So.2d 206, 213, writ denied, 00-1744 (La. 6/29/01), 794 So.2d 821.

Encompassed within proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. State v. Alexander, 16-84 (La. App. 5 Cir. 7/27/16), 197 So.3d 843, 849; State v. Ray, 12-684 (La. App. 5 Cir. 4/10/13), 115 So.3d 17, 20, writ denied, 13-1115 (La. 10/25/13), 124 So.3d 1096. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden. Id.

In State v. Blanks, 07-1292 (La. App. 1 Cir. 2/8/08), 977 So.2d 306, writ denied, 08-703 (La. 10/10/08), 993 So.2d 1282, the court found that the evidence was sufficient to support the defendant’s conviction of simple burglary of an inhabited dwelling when the defendant was found shortly after the burglary in possession of a large trash bag containing meat missing from the victim’s home, as well as a single earring taken from her residence, even though the victim never saw the defendant. The court looked to the circumstances surrounding the defendant’s actions on that date, notably his possession of the stolen property shortly after the burglary. Id.

Here, defendant argues that the evidence was insufficient to prove that he was the perpetrator who entered Ms. Lamury’s home. He points to Mr. Dickson’s failure to identify him as the person seen approaching Ms. Lamury’s residence. Although there were no eyewitnesses who observed defendant enter Ms. Lamury’s home or any physical evidence at the scene linking defendant to the offense, the |inState proved the element of identity through defendant’s own statements made to detectives at the investigations bureau and the circumstances surrounding defendant’s actions on that date. Defendant admitted that he informed Perry that Ms. Lamury had large jars of change inside her home, which he estimated amounted to one to two hundred dollars. Defendant informed the detectives that while Perry entered, he waited near a nearby barroom for approximately thirty minutes. See State v. Burns, 32,904 (La. App. 2 Cir. 2/1/00), 750 So.2d 505, 509 “([A] person does not have to be present or intimately involved in a crime to be considered a principal of the crime.”); State v. Mack, 30,832 (La. App. 2 Cir. 6/24/98), 715 So.2d 126, 129 (“A person who serves as a ‘lookout’ is a principal to a burglary.”). The evidence presented by the State and the testimony of Mr. Dickson reflect that the barroom was next door to Mr. Dickson’s house, where he was readily able to observe an individual walk “straight down into” Ms. Lamury’s home on that date. Although J.W., supra, and Netter, supra, involved specific identification of the defendants, the law does not require that the defendant be identified at the scene by an eyewitness to prove his identity as a principal to the crime of simple burglary of an inhabited dwelling.

Moreover, defendant was found in possession of Ms. Lamury’s jewelry within an hour or so of the time he estimated the burglary occurred and approximately 1.8 miles from Ms. Lamury’s home. Therefore, defendant’s assertion that he did not enter Ms. Lamury’s home is of no moment, because even if defendant did not physically enter Ms. Lamury’s home, the State proved beyond a reasonable doubt that defendant was a principal to the crime under the facts of this case, and thus, it proved the identity of defendant as a principal of simple burglary of an inhabited dwelling sufficient to convict him.

Specific intent is required for a conviction for simple burglary, and it may be inferred from the circumstances and actions of the accused. State v. Naquin, 10-11474 (La. App. 5 Cir. 2/15/11), 61 So.3d 67, 71. Specific criminal intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” Id. See also Dibartolo, supra, 168 So.2d 754 at 759.

Defendant asserts that the State failed to prove that he had the specific intent to commit a felony or theft inside of Ms. Lamury’s home, an element of La. R.S. 14:62.2. However, as defendant admitted, he informed Perry that Ms. Lamury had large jars of change inside her home. According to defendant, he and Perry rode bicycles to 37th Street, and defendant waited for approximately thirty minutes near the barroom near Ms. Lamury’s house for Perry after pointing out Ms. Lamury’s house. Defendant planned to cash the change in at Winn Dixie once he had it. He admitted that when Perry exited the residence, he asked about the change, and Perry gave him the jewelry instead. He was stopped approximately 1.8 miles from Ms. Lamury’s house in possession of her jewelry within an hour or so of the burglary, in his own estimation. Therefore, the State sufficiently proved that defendant had the specific intent to commit a felony or theft inside of Ms. Lamury’s home.

We find that under the Jackson standard, the State proved beyond a reasonable doubt that defendant was a principal to the crime of simple burglary of an inhabited dwelling and that he had the specific intent to commit a theft or felony therein. Considering the foregoing, we find that the evidence presented, when viewed in the light most favorable to the prosecution, was sufficient to sustain defendant’s conviction for simple burglary of an inhabited dwelling. This assignment of error is without merit.

| ^ASSIGNMENT OF ERROR NUMBER TWO

Value of the stolen things

Defendant next argues that it was error for the trial court to allow Ms. Lamury’s testimony to establish the value of the jewelry. He argues that her testimony was not corroborated by experts or receipts and that much of the jewelry in question was costume jewelry and not of significant value. Defendant argued in his motion for post-verdict judgment of acquittal that the value of the jewelry was less than $500. The State contends that the uncontradict-ed testimony of Ms. Lamury was sufficient to establish the value of the jewelry. It argues that defendant did not contradict Ms. Lamury’s valuations or show that she lacked knowledge of the items’ costs.

At trial, Ms. Lamury testified that after Hurricane Katrina, she had a part-time business selling costume jewelry on eBay. She stated that she would buy vintage jewelry at thrift stores and from online suppliers, and at one time, sold mainly sterling jewelry. As to the engagement and wedding band set, Ms. Lamury stated that she bought it from her daughter and that it had come from Ramsey’s Jewelers, a store in Metairie. Ms. Lamury testified that when documenting the items in the Jefferson Parish Sheriffs Office Property Report, she estimated the value of the items at the minimum value she would have sold them for on eBay. Ms. Lamury estimated the property at the minimum value of each item when completing the Property Report for the Sheriffs Office.

In order to support a conviction for illegal possession of stolen things valued at $1,500.00, or more, the State must prove beyond a reasonable doubt that the defendant: 1) intentionally possessed, procured, received, or concealed; 2) anything of value; 3) that was the subject of any robbery or theft; (4) where circumstances indicate that the defendant knew or had good reason to believe that the thing was the subject of one of these offenses; and (5) that the value of the | iastolen item was $1,500, or more. La. R.S. 14:69; State v. Warrick, 15-617 (La. App. 5 Cir. 2/24/16), 186 So.3d 1263, 1268.

The Property Report completed by Ms. Lamury was a two-page document that listed the stolen items and a total for each page. The second page correctly lists the amount of the combined items on that page as $77.00. However, the first page incorrectly calculates the total of the items on that page as $2,366.00; the total of the items on the first page actually equals $1,866.00. Therefore, the actual total amount of the items is $1,943.00. Despite this incorrect calculation, the State charged defendant with the correct grade of La. R.S. 14:69 since the total value of the items equals over $1,500.00. See also La. R.S. 14:69(B)(1).

In the present case, defendant only argues that the State failed to prove the value of the objects taken. When the degree of the crime is based on the value of the stolen property possessed, the testimony of the owner is sufficient to establish the value of the stolen property if it is clear and uncontradicted. State v. Richey, 13-228 (La. App. 5 Cir. 10/30/13), 128 So.3d 1143, 1150; State v. Ramsdell, 06-644 (La. App. 5 Cir. 12/27/06), 949 So.2d 508, 511-12. The owner does not need to be qualified as an expert in order to testify as to the value of the thing owned by him. State v. Dilworth, 358 So.2d 1254, 1256-1257 (La. 1978).

Here, Ms. Lamury, the owner and victim, testified as to the value of each item. Ms. Lamury’s estimate as to the value of the property was uncontradicted. Ms. La-mury had purchased the wedding band set from her daughter and had her own business for a few years selling costume jewelry on eBay. Thus, Ms. Lamury’s testimony was sufficient to establish that the value of the property exceeded $1,500.00. Therefore, under the Jackson standard, the State proved beyond a reasonable doubt that defendant illegally received stolen property having a value of $1,500.00 or more. This assignment of error is without merit.

luASSIGNMENT OF ERROR NUMBER THREE

Improper use of predicate offense as basis for habitual offender adjudication

In his third assignment of error, defendant argues that the predicate offense of carjacking used as the basis for the habitual offender bill of information was invalid because the trial court inadequately advised him of his right to confront and cross-examine witnesses when he entered his guilty plea to the predicate offense. Defendant argues that this was a violation of his due process rights. Defendant cites to Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), for the general assertion that a defendant’s rights to confront and cross-examine witnesses are fundamental. Based upon the certified copy of the predicate conviction, which included the transcript from the guilty plea colloquy, the State argues that it met its burden, and defendant was adequately advised of his rights to confrontation and cross-examination during the pri- or guilty plea,

In order to prove that a defendant is a habitual offender, the State must establish by competent evidence the defendant’s prior felony convictions and that defendant is the same person who was convicted of the prior felonies. State v. Woods, 09-399 (La. App. 5 Cir. 3/9/10), 38 So.3d 391, 398, writ denied, 10-784 (La. 10/29/10), 48 So.3d 1096. In addition, when a defendant’s habitual offender status is based on guilty pleas in the predicate convictions, the State has the burden of proving the defendant was represented by counsel when the guilty pleas were taken. Id. See also State v. Shelton, 621 So.2d 769, 779 (La. 1993).

If the State meets its burden of proof, then the burden shifts to the defendant to produce some affirmative evidence of an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant meets this burden, then it shifts back to the State to prove the constitutionality' of the plea by producing a perfect transcript, which shows that the defendant’s waiver of his Boykin rights was voluntary, informed, and express. If the State produces anything |15less than a perfect transcript, such as a guilty plea form, minute entry, or imperfect transcript, the trial judge must weigh the evidence to determine whether the defendant’s prior plea was both knowing and voluntary. Woods, supra. See also Shelton, supra.

In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 274 (1969), the United States Supreme Court emphasized three federal constitutional rights that are waived by a guilty plea: the privilege against self-incrimination, the right to a trial by jury, and the right to confront accusers. Because a plea of guilty waives these fundamental rights of an accused, due process requires that the plea be a voluntary and intelligent waiver of known rights in order to be valid. Id. The record of the plea must show that the defendant was informed of these three basic rights and then knowingly and voluntarily waived them. State v. Galliano, 396 So.2d 1288, 1290 (La. 1981).

The State proved by competent evidence that defendant had a prior conviction of carjacking and was represented by counsel. The burden then shifted to defendant to show affirmative evidence of an infringement of his rights dr a procedural irregularity in the taking of the plea, As he did below, defendant avers on- appeal that the Boykin transcript was defective as the trial court failed to advise him of his rights to confrontation, and cross-examination. The State provided the transcript of defendant’s prior guilty plea at the habitual bill hearing. According to the Boykin transcript of defendant’s guilty plea for the predicate conviction, the trial judge stated: “You’re giving up your right to force the district attorney to call witnesses who would testify against you at trial?” Defendant responded: “Yes sir.”

The State also presented the certified conviction packet for defendant’s predicate conviction of carjacking. The certified conviction packet contains a Waiver of Constitutional Rights Plea of Guilty form signed by defendant, his attorney, and the trial judge. The guilty plea form provides, in part, that defendant |1fiwas informed that by pleading guilty, he would be giving up the right to “forcé the District Attorney to call witnesses who, under oath, would have to testify against me at trial; and to have my attorney ask questions of each of those witnesses.” Defendant initialed “S.E.S.” next to this right and also signed the bottom of the plea form, as did his defense attorney and the trial judge. In State v. Mosley, 10-266 (La. App. 5 Cir. 11/9/10), 54 So.3d 692, 696, this Court found that guilty plea forms with the same language in this matter as to the defendant’s right to confront and cross-examine witnesses failed to contain affirmative evidence of an irregularity or infringement in the prior plea.

Based on the foregoing, defendant failed to meet his burden under Shelton, supra, to produce affirmative evidence of an infringement of his rights or a procedural irregularity in the taking of the plea. This assignment of error is without merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to 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). Two matters were found that merit discussion and attention.

Lack of a ruling on defendant’s motion to reconsider his sentences

First, as to defendant’s motion to reconsider his original sentences, defendant’s argument during the habitual bill hearing appears to pertain to his original sentence on count one, which was vacated. In giving reasons for denying the second motion to reconsider the habitual offender sentence, the trial judge stated that defendant had a prior conviction for carjacking and that defendant knew the victim. Thus, the trial court’s reasons indicate that it denied the oral motion to reconsider the habitual offender sentence made on that date, rather than the original motion to reconsider. The hard labor commitment from the habitual offender | shearing provides: “Motion to Reconsider Sentence filed in open court and DENIED.” La. C.Cr.P. art. 881.4 provides that if it is “necessary to an appropriate disposition of a motion to reconsider sentence, the appellate court may remand the case to the district court with instructions to supplement the record or to hold an evidentiaiy hearing.” Ordinarily, where an appellant alleges a sentencing error on appeal, along with one or more additional errors, and where the trial court has failed to rule on the appellant’s timely motion to reconsider sentence, this Court has ruled on the merits of the other assignments and remanded the matter for a ruling on the outstanding motion. Mosley, 54 So.3d at 697. On appeal, defendant does not assign any errors pertaining to his original sentences. Moreover, defendant’s sentence on count one was vacated at the time he was sentenced as a habitual offender. Nevertheless, defendant’s motion to reconsider his original sentences remains pending. Therefore, we remand the matter for the trial court to consider defendant’s motion to reconsider his original sentences.

Lack of proof of “cleansing period” in the habitual offender proceeding

Second, the Habitual Offender Law provides that it is inapplicable where more than ten years have elapsed between the date of the commission of the current offense and the expiration of the maximum sentence of the previous conviction. La. R.S. 15:529.1(C); State v. Mosley, 08-1319 (La. App. 5 Cir. 5/26/09), 16 So.3d 398. The State bears the burden of proving that the predicate convictions fall within the “cleansing period” prescribed by La. R.S. 15:529.1(C). State v. Mosley, 16 So.3d at 401; State v. Wise, 13-247 (La. App. 5 Cir. 11/19/13), 1828 So.3d 1220, 1226-27, writ denied, 14-253 (La. 9/12/14), 147 So.3d 703. This ten-year “cleansing period” begins to run from the date that a defendant is actually discharged from state custody and supervision. State v. Anderson, 349 So.2d 311, 314 (La. 1977); State v. Thomas, 04-1341 (La. App. 5 Cir. 5/31/05), 904 So.2d 896, 906, writ denied, 05-2002 (La. 2/17/06), 924 So.2d 1013. Thus, the commencement of the “cleansing period” is from the date of discharge from state supervision because the discharge can take place earlier than the theoretical date on which the sentence would have terminated due to pardon, commutation, or good time credit, or it could take place later because of parole revocation. State v. Humphrey, 96-838 (La. App. 5 Cir. 4/29/97), 694 So.2d 1082, 1088, writ denied, 97-1461 (La. 11/7/97), 703 So.2d 35. However, if less than the “cleansing period” has elapsed between a defendant’s conviction on a predicate felony and his commission of a subsequent predicate felony, the State need not prove the date of discharge on the earlier sentence in the habitual offender proceedings. State v. Wise, 128 So.3d at 1226-27.

The certified records of defendant’s carjacking conviction introduced into evidence (case number 04-6312) show that on September 21, 2004, the Jefferson Parish District Attorney filed a bill of information charging defendant with carjacking. On December 13, 2004, defendant entered a plea of guilty to the offense and was sentenced to five years at hard labor without the benefit of parole, probation, or suspension of sentence. The instant offenses were committed on June 20, 2015. Hence, more than ten years had elapsed between defendant’s predicate conviction for carjacking on December 13, 2004 and the commission of the instant offense on June 20, 2015. Thus, the State was required to prove that the underlying offense was committed within ten years of defendant’s release from state custody for the predicate conviction in case number 04-6312. During the habitual offender proceeding, the State provided the following argument:

lisln 2004—On December 13, 2004, while being represented by Tracy Glori-oso, the Defendant pled guilty as charged to carjacking. And that was in 2004. He received five years DOC.
This offense in this case was June 20th, 2015. That is less than six years past since the completion of the sentence. So therefore it’s within the ten-year range that is also required.

Upon review, we find that the record fails to include any other evidence or information concerning defendant’s actual discharge date from state custody on his sentence for his carjacking conviction. Therefore, the State failed to provide sufficient evidence to meet its burden of proving that the predicate conviction for carjacking fell within the ten-year “cleansing period” prescribed by La. R.S. 15:529.1(C). Accordingly, the trial court erred in finding defendant to be a second felony offender.,

Considering the foregoing, we vacate defendant’s adjudication and enhanced sentence as a second felony offender. See State v. Payne, 586 So.2d 652, 656 (La. App. 5 Cir. 1991), rehearing denied, 626 So.2d 913 (La. App. 5 Cir. 1993). We further reinstate defendant’s original sentence on count one that was vacated.

CONCLUSION

For the foregoing reasons, defendant’s convictions are affirmed, defendant’s adjudication and

sentence as a habitual offender are vacated, defendant’s original sentence on count one that was vacated is reinstated, and the matter is remanded to the trial court to rule on defendant’s outstanding motion to reconsider his original sentences and for further proceedings as warranted.

CONVICTIONS AFFIRMED; HABITUAL OFFENDER ADJUDICATION AND SENTENCE VACATED; ORIGINAL SENTENCE ON COUNT ONE REINSTATED; REMANDED WITH INSTRUCTIONS

      . See Errors Patent Review for discussion regarding the failure of the trial court to rule on defendant’s motion to reconsider his original sentences.

      . Detective Kister testified that members of "Project STAR” patrol predominately high drug activity areas in the parish.

      . At trial, Detective Kister identified the photographs of the jewelry in question as the objects that were removed from defendant’s pocket.

      . The testimony established that the location where Detective Kister spoke with defendant and found the jewelry was 1.8 miles from Ms. Lamury’s residence.

      .Ms. Lamury identified the wedding set, the gold band, the costume jewelry, two watches, and a jewelry box for the wedding set from photographs.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      , The interview was admitted into evidence and published to the jury.

      . The trial judge instructed the jury as to the law of principals.

      . It need not be shown that a person was present in the structure at the time of the burglary, only that someone was living in the housé at that time. See State v. Conn, 420 So.2d 1123 (La. 1982).

      . Although defendant’s original sentence on court one was vacated by the trial court as part of its sentencing of defendant as a habitual offender, because we have found an error in defendant’s habitual offender adjudication which necessitated our vacation of defendant’s habitual offender adjudication and sentence, we have reinstated defendant's original sentence on court one. See infra.

      . La. C.Cr.P. art. 916 provides, in pertinent part: "The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to: ... (3) Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence. ...”

      . In State v. Raymo, 419 So.2d 858, 861 (1982), the Supreme Court held that ”[b]e-cause the state’s case was devoid of evidence of an essential element of the charged offense ,.. defendant’s conviction and sentence must be set aside ... regardless of how the error is brought to the attention of the reviewing court." This Court has applied Raymo, supra, to habitual offender proceedings. Mosley, supra, 16 So.3d 398 at 401.

      . This Court reached the same conclusion under both similar facts and procedural posture in State v. Mosley, 16 So.3d at 404.

      . We further note that double jeopardy principles are inapplicable to sentence enhancement proceedings. State v. Dorthey, 623 So.2d 1276, 1279 (La. 1993). Accordingly, the State may retry defendant on the habitual offender bill of information if it is able to cure the noted defect, if it so desires. State v. Mosley, 16 So.3d at 404.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    MISTY FINCHUM AGENCY, LLC, et al. v. JAMIE THIBODEAUX AND ASSOCIATES, INC., et al.
    16-760
    Court of Appeal of Louisiana, Third Circuit.
    March 1, 2017
    Rehearing Denied April 19, 2017
    David Dwight, Dwight Law Firm, 1400 Ryan Street, Lake Charles, LA 70601, (337) 439-3138, COUNSEL FOR PLAINTIFFS/APPELLEES: Misty Finchum Agency, LLC, Misty Finchum
    Somer G. Brown, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFFS/APPEL-LEES: Misty Finchum Agency, LLC Misty Finchum
    Robert E. Landry, Scofield, Gerard, Po-horelsky, Gallauger & Landry, LLC, 901 Lakeshore Drive, Suite 900, Lake Charles, LA 70601, (337) 433-9436, COUNSEL FOR DEFENDANT/APPELLANT: Allstate Insurance Company
    Kristin L. Beckman, Barrasso Usdin Kupperman Freeman & Sarver, L.L.C., 909 Poydras Street, 24th Floor, New Orleans, LA 70112, (504) 589-9700, COUNSEL FOR DEFENDANT/APPELLANT: Allstate Insurance Company
    Peter J. Valeta, 123 N. Wacker Drive, Suite 1800, Chicago, IL 60606, (312) 474-7900, COUNSEL FOR DEFENDANT/APPELLANT: Allstate Insurance Company
    Timothy O’Dowd, 921 Ryan Street, Suite D, Lake Charles, LA 70601, (337) 310-2304, COUNSEL FOR DEFENDANTS/APPELLEES: Jamie Thibo-deaux and Associates, Inc., Jamie Thibo-deaux
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy and Phyllis M. Keaty, Judges.
   AMY, Judge.

| following the purchase of an insurance agency, the plaintiffs filed suit against both the insurer and the agency, including its owner, alleging the discovery of undisclosed problems with the agency’s book of business. The plaintiffs sought damages stemming from her discovery of those alleged problems. The insurer filed a cross claim against the agency owner, seeking indemnification. After a jury found in favor of the defendants, the trial court'granted the plaintiffs’ motion for new trial against the insurer. However, the trial court denied the plaintiffs’ motion for new trial against the agency and ultimately dismissed the agency and its owner from the proceeding. The insurer appeals, asserting that the trial court erred in dismissing its cross claim from the proceedings. For the following reasons, we reverse and remand with instructions.

Factual and Procedural Background

Misty Finchum filed this matter, individually, and as- Misty Finchum Agency, LLC, following the purchase of an Allstate Insurance agency in Calcasieu Parish for $500,000.00. The purchase was commemorated by a July 2011 Act of Sale confected between “Misty Finchum Agency, LLC” as “Buyer” and Jamie Thibodeaux, Marla Thibodeaux, and “Jamie Thibodeaux & Associates, Inc.[] d/b/a Jamie Thibodeaux Allstate Agency” as the “Seller.” Therein, Seller conveyed, among other things, “[a]ll insurance policies and brokerage income[.]” The Act of Sale further represented that “Seller approve[d] of the transfer of his current 1gAllstate insurance agency to Buyer and does hereby transfer any and all rights in said agency to Buyer.”

The plaintiffs alleged in the initial petition that, in the course of renewing previously issued policies, “it was determined that the premium as quoted by [Thibo-deaux and] Associates and [Mr.] Thibo-deaux would not be applicable upon renewal and the renewal premium would increase.” They further alleged that “[b]ased upon a review of the customer’s application when the initial policy was issued and through the renewal process, it was determined certain information had been falsified on the applications as submitted by [Thibodeaux and] Associates and [Mr.] Thibodeaux.” The plaintiffs suggested that numerous customers did not renew policies with the agency due to the resulting increase in premiums and that the business, therefore, sustained damages.

The plaintiffs named Mr. Thibodeaux, Thibodeaux and Associates, and Allstate Insurance Company as defendants. As for Allstate, the plaintiffs asserted that “defendant Allstate knew or should have known the applications submitted by defendant, [Thibodeaux and] Associates and [Mr.] Thibodeaux, were falsified and failed to disclose this information to petitioners.” The plaintiffs alleged in their petition that the Misty Finchum Agency “would never have purchased the business had it known about the falsified applications prior to the sale.”

The petition included a prayer for damages, including those for economic damages and for mental anguish. Additionally, and as to Mr. Thibodeaux and Thibodeaux and Associates, Ms. Finchum noted that the Act of Sale provided: “In |sthe event that any insurance policy is cancelled or not renewed because of non-compliance by Seller with any of Allstate Insurance Company’s rules and regulations, Buyer shall be entitled to liquidated damages in the amount of $2,500.00 per policy which is cancelled or not renewed.” By supplemental and amending petitions, Ms. Finchum not only increased the number of allegedly problematic policies, but she further asserted that Allstate was liable to her for damages for unfair trade practices pursuant to La.R.S. 51:1409.

In response, and included within its answer to the petition, Allstate asserted a cross claim against Mr. Thibodeaux seeking indemnification. It referenced the following portion of its “Exclusive Agency Agreement” executed by Mr. Thibo-deaux:

X. INDEMNIFICATION:

B. You will indemnify the Company against liability, including the cost of defense and settlements, imposed on the Company by law for damages sustained by any person and caused by your acts or omission, or those of any employees or other person working in connection with this Agreement, provided that the Company has not caused or contributed to cause such liability by its acts or omission.

Allstate further noted that it was not a party to the Act of Sale and that it “therefore owed no duties to Finchum with regard to that contract or any other transaction between Finchum and Thibodeaux.” It specifically denied the plaintiffs’ “allegations that that [sic] it made any misrepresentations in connection with her purchase of Thibodeaux’s book of business.” Allstate suggested that “[t]o the extent Finchum is awarded damages against Defendants, Allstate has not caused or contributed to cause any liability by its acts or omissions.”

| ¿Thereafter, the plaintiffs dismissed their “claims for damages against Jamie Thibodeaux, Individually” by an “Ex Parte Consent Judgment of Partial Dismissal^]” The plaintiffs further represented that they would “not pursue Jamie Thibodeaux, Individually, for any damage awards plaintiffs may obtain against Jamie Thibodeaux and Associates, Inc. d/b/a Jamie Thibo-deaux Allstate Agency.” The judgment included a “reservation of rights as to all other defendants[.]”

Further, and during the subsequent jury trial, the plaintiffs and Mr. Thibo-deaux, as well as Thibodeaux and Associates, entered into an additional “Ex Parte Consent Judgment of Partial Dismissal.” The judgment dismissed “Plaintiffs’ claims for liquidated damages under the Act of Sale entered into between Plaintiffs and the Thibodeaux Defendants on or about July 29, 2011.” However, the plaintiffs reserved their rights “to pursue other claims under the Act of Sale and Plaintiff expressly reserve[d] the right to assert such claims, including the breach of warranty claim[.]”

Following the multi-day trial, the jury returned a verdict in favor of the defendants. The jury responded “No” to questions as to whether Allstate violated the Unfair Trade Practices Act, whether Allstate committed fraud, or whether Ms. Finchum incurred damages as a result of Allstate’s actions. The jury also responded “No” when asked whether “Jamie Thibo-deaux Associates, Inc. d/b/a/ Jamie Thibo-deaux Allstate Agency” breached any warranty from the Act of Sale or whether Mr. Thibodeaux had a duty to indemnify Allstate for damages associated with the sale of the Allstate agency. Thereafter, the plaintiffs filed a motion for judgment notwithstanding the verdict or, alternatively, motion for new trial against both Thibo-deaux and Associates and Allstate.

RBy final, amended judgment, the trial court granted the plaintiffs’ motion for new trial as to Allstate for “good grounds and to prevent a miscarriage of justice” pursuant to La.Code Civ.P. art. 1973. It alternatively granted the motion for new trial “pursuant to Louisiana Code of Civil Procedure Article 1972(1), as the jury’s verdict is contrary to the law and the evidence.” However, the trial court denied |fithe motion as to “defendant Jamie Thibodeaux and Associates, Inc. d/b/a Jamie Thibo-deaux Allstate Agency, Jamie P. Thibo-deaux, Individually.”

Central to the present matter, the amended judgment further indicated that “defendant Jamie Thibodeaux and Associates, Inc. d/b/a Jamie Thibodeaux Allstate Agency, Jamie P. Thibodeaux, Individually is hereby released from further proceedings as it relates it this matter.”

Allstate appeals, assigning the following as error in its brief to this court:

The Trial Court improperly dismissed Allstate’s third-party indemnity claim against Thibodeaux when it granted a new trial as to Allstate but not Thibo-deaux.

|7Discussion

We first observe that Allstate does not challenge the trial court’s granting of the motion for new trial against it by this appeal. Rather, its focus on appeal is on the dismissal of Mr. Thibodeaux in light of its cross claim for indemnification against him, a ruling it contends was premature in light of the forthcoming new trial.

In response, Mr. Thibodeaux suggests that the trial court’s dismissal of the cross claim was appropriate in light of the denial of the motion for new trial as to Thibo-deaux and Associates. Specifically, he notes that the jury answered “No” to the following jury question:

5. Do you find that Jamie Thibo-deaux Associates, Inc. d/b/a Jamie Thibodeaux Allstate Agency breached any warranty in the act of sale?

He contends in his brief that the “same facts that would cause Thibodeaux to violate the warranty would also cause Allstate’s rights to become executable.” He additionally suggests that the trial court found a lack of evidence regarding the breach of warranty in its denial of the motion for new trial against Thibodeaux and | ^Associates. Mr. Thibodeaux further notes that the clause relied upon by Mí-state requires indemnification “provided that the Company has not caused or contributed to cause such liability by its acts or omission.” He contends that the trial court’s granting of the new trial as to Allstate, but denial as to Thibodeaux and Associates, reveals a determination that Allstate was the cause of injuries, if any.

After review, we conclude that the trial court did, in fact, err in its dismissal of Allstate’s cross claim against Mr. Thibo-deaux under the facts of this case. Importantly, the dismissal of the indemnity claim, and the argument of Mr. Thibo-deaux above, presupposes that Allstate caused or contributed to any liability by its own acts or omissions so as to render the indemnity clause ineffective.

However, and while the trial court remarked upon the evidence presented as to Allstate’s alleged actions in finding that a new trial was appropriate, it did not enter a finding in favor of the plaintiffs. Neither did it enter a finding against Allstate. Rather, it rejected the plaintiffs’ motion for JNOV in that regard. Such a finding would have at least arguably resolved the issue of whether Allstate “caused |3or contributed” to any liability as a matter of law. See Martin v. Heritage Manor South Nursing Home, 00-1023 (La. 4/3/01), 784 So.2d 627. The trial court instead granted the new trial as to Allstate, and, thus, did “not deprive the parties of their right to have all disputed issues resolved by a jury.” Id. at 631. The mechanism of the new trial returned the plaintiffs and Allstate “in the positions they occupied prior to trial.” Id. n.4 (quoting Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise, Civil Procedure, § 13.4 (1999)). In turn, Allstate’s liability and/or cause or contribution of any liability to the plaintiffs, if any, remains to be resolved and cannot at this point be construed as negating the subject indemnity clause as urged by Mr. Thibodeaux.

Neither is the reinstitution of the cross claim undermined by the fact that the trial court denied the motion for new trial against Thibodeaux and Associates. Mr. Thibodeaux points out that the jury indicated “NO” in response to the following question:

5. Do you find that Jamie Thibo-deaux Associates, Inc. d/b/a Jamie Thibodeaux Allstate Agency breached any warranty in the act of sale?

He contends that the determination of this fact, which the trial court did not disturb, precludes Allstate’s continued pursuit against him for indemnification. Recall, however, that the warranties referenced above were contained within the Act of Sale, confected exclusively between the plaintiffs and the Thibodeaux parties. Allstate was not a party to that transaction.

Neither is indemnification dependent upon a breach of warranty claim. Instead, Mr. Thibodeaux, individually, entered into the Agency Agreement, which broadly provided for indemnification to Allstate “for damages sustained by any person and caused by your acts or omission, or those of any employees or other | inperson working in connection with this Agreement[.]” That indemnification was not dependent upon an underlying breach of warranty. Additionally, as seen by reference to the question above, the jury indicated “NO” to a question asking whether “Jamie Thibo-deaux Associates, Inc. d/b/a Jamie Thibo-deaux Allstate Agency” breached any warranty.

By comparison, the subsequent question inquired as to the appropriateness of indemnification by Mr. Thibodeaux, individually, as follows:

7. Do you find that Jamie Thibo-deaux has a duty to indemnify Allstate for the damages associated with the sale of the Allstate agency?

The jury indicated “NO” in response to this inquiry as well.

In sum, while the plaintiffs’ underlying claims against Thibodeaux and Associates may have been resolved both by the jury and by the corresponding motion for new trial, Allstate’s claims were not similarly resolved by those factual determinations. Rather, the plaintiffs’ motions for new trial did not include any claim regarding Mr. Thibodeaux, individually, as he appeared in the case at that juncture only by inclusion as a defendant in Allstate’s cross claim. Simply, as explained above, the trial court returned the plaintiffs and Allstate to their pre-trial posture due to the granting of the motion for new trial against that sole defendant. That pre-trial posture included Allstate’s claim for indemnity against Mr. Thibodeaux. Accordingly, we find that the trial court erred in its dismissal of Mr. Thibodeaux, individually, insofar as he remained a defendant in the cross claim. We remand for the reinstitution of that claim.

DECREE

For the foregoing reasons, the trial court’s dismissal of Allstate Insurance Company’s cross claim against Jamie Thi-bodeaux, Individually, is reversed. This | umatter is remanded for reinstatement of appellant/defendant’s cross claim in that regard. Costs of this proceeding are assessed to the appellee, Jamie Thibodeaux. REVERSED AND REMANDED WITH INSTRUCTIONS.

      . The Thibodeaux agency appears variously throughout the record as "Jamie Thibodeaux and Associates, Inc.[,]” "Jamie Thibodeaux & Associates, Inc.[,]” and “Jamie Thibodeaux Associates!.]’’ Outside of quotations, this review references the entity as "Thibodeaux and Associates” for brevity and consistency.

      . Mr. Thibodeaux asserted at trial that he believed that he was transferring only policies from his independent book of business as he did not "own” the agency’s Allstate policies.

      . On this point, uncontroverted evidence developed at trial indicated that the impetus for ■the sale of the agency was Allstate’s termination of Mr. Thibodeaux’s affiliation with the company following an internal review and his admission that he supplied improper policy discounts to five policies. Ms. Finchum alleged at trial that she had subsequently discovered problems associated with hundreds of applications, an allegation disputed by the defendants.

      . Thibodeaux and Associates was not a party to the Agency Agreement. Neither did Allstate include Thibodeaux and Associates as a defendant to the cross claim.

      . In granting the motion for new trial as to Allstate, the trial court explained:
      So my struggle here is .... that no rational trier of fact could have found that Allstate didn't commit some kind of fraud or misrepresentation to induce Misty Finc-hum into buying this agency. I mean I think the evidence is very clear on that and I think the jurors—I mean the jurors believed that, but on the damages side of it there was a lot of discussion about the—I don’t remember the extent of all of it. I have some things I recall about what they said, but I remember they pointed out what Mr. O’Dowd said in his closing argument about the backup for that. Where were the witnesses? Where were the documents or policies to back up that spreadsheet? But, you know,—so what I'm struggling with is even though I do find that no rational trier of fact could’ve found that there was no fraud or misrepresentation on the part of Allstate—-and the thing is even though they checked his box on there, even though, you know, they actually—they shouldn’t have touched that box because once they answered no to those two questions they shouldn’t have gotten to the next question, which was do you find that there were damages or whatever the case may be, do you find that Misty Finchum—do you find that Misty Finchum incurred damages or losses as a result of Allstate’s actions and they put no, but they weren’t supposed to answer that question. If they put no they were supposed to go to five. If they put no to question two they were supposed to go to question five.
      So, you know, if they answered that question—I mean had they answered the first question, question two, as yes and then they would've put no on question number three then I wouldn’t be spending any time on this, but the fact that they said no to an obvious yes—you know, to a question that the obvious answer was yes and that they even believed it was yes, but whatever reason they just didn't put that on there because they focusing on the damages side of it, I don't know, that’s the struggle here, but I will say—well—but had they put yes and then they had put no and if we’re here talking about—you know, then we’d have to look at whether—you know, then I would be actually looking at whether thebe should—you know, then your motion would’ve been focused on whether there should be a JNOV on the damages with regard to, you know, her buying this— would she have bought this place, this agency, but for this misrepresentation made to her because, you know, we’re all different. Some people are more loose, like Dean Day. Hey, I’ll buy it, I don’t care what problems they’ve got, I'll buy it, it’s no big deal to me, where some people are more, you know, by the book and they don’t want to even—they don’t want to step across the line or spit on the sidewalk because they’re afraid they’re going to get a ticket or going to get arrested or whatever. I mean, you know, and Misty Finchum sounds like she may be one of those people that’s more— you know, that’s worried about doing anything wrong and if she knew there was a book, you know, a business had problems then she may not have bought the business. I don’t know. I mean that’s just what she said. She wouldn’t have bought it.

      So, anyway, I don't know why they did what they did because they all clearly—it's not like I'm even saying that they were irrational in what they thought because they thought the same thing that I did, which is that there was dishonesty and fraud involved, but they checked off the box because it was clear to me they were focusing more on damages than they were on answering the question correctly.
      Anyway. But look, I think that in this case with regard to Allstate under the circumstances because I do find that there’s no—I mean I'm going to grant a new trial on the—with regard to Allstate.

      . With regard to Thibodeaux and Associates, the trial court explained:
      Now I will say this. On the issue of Jamie Thibodeaux I do recall the evidence showed that Allstate had actually kept Jamie Thibo-deaux out of that business for several months and I think for Jamie Thibodeaux to have assumed that—I mean Jamie Thibo-deaux had no control over what happened in that business during those months he was locked out of it and I think he was, as I recall, I mean I think he was—I think the jury could’ve assumed that because he had no control over the business that Allstate would’ve fixed the problems during that time and that he felt like he was making a— and they felt like Allstate really treated him the same way that treated Misty Finchum potentially, you know, with trying to force him to kind of hide their—you know, what they were doing.
      So anyway I'm going to deny the JNOV and the Motion for New Trial as it relates to Jamie Thibodeaux because I do think the way the case was argued, the way the evidence was presented, et cetera, that I think the jury could’ve—I don’t think it was irrational for them to have made the finding they did with regard to Jamie Thibodeaux and his agency. So I’m going to deny it with regard to Jamie Thibodeaux and Jamie Thi-bodeaux Agency, but I’m going to grant a new trial as it relates to Allstate because I just don’t see any other way to handle that situation.

      . Allstate instead challenged the ruling regarding the motion for new trial by applications for supervisory writs. Following review, a panel of this court denied the applications finding "no abuse of discretion in the trial court’s ruling.” See Misty Finchum Agency, L.L.C. v. Jamie Thibodeaux and Associates, Inc. d/b/a Jamie Thibodeaux Allstate Agency, 16-378, 16-561 (La.App. 3 Cir. 7/20/16), writ denied, 16-1598 (La. 12/16/16), 211 So.3d 1167, 2016 WL 7638382.

      . The warranties at issue appear within the Act of Sale, which includes the following provision:
      "Property” shall mean all of Seller’s present and future rights, title and interest:
      A) All insurance policies and brokerage income bound or transacted after 12:01 a.m. July 1, 2011,

      G) Seller approves of the transfer of his current Allstate insurance agency to Buyer and does hereby transfer any and all rights to said agency to Buyer.

        Seller warrants that he has not made any material misrepresentations to Allstate Insurance Company in the issuance of these policies he is currently transferring to Buyer.

      (Emphasis added.) Additionally, the portion of the Act of Sale entitled "Obligations of Seller” includes:
      Warranties of Seller
      As a material inducement to the Buyer to execute this agreement and to perform or cause same to be performed the obligations of the Buyer hereunder, the Seller represents and warrants to the Buyer that:
      The business and operations of Jamie Thi-bodeaux & Associates, Inc. d/b/a Jamie Thi-bodeaux Allstate Agency has been and are being conducted in all material aspects in accordance with all applicable laws, rules and regulations of the state of Louisiana and Allstate Insurance Company.

      (Emphasis added.)


author: Judge Rosemary Ledet

text:
    John Brewster OHLE, III v. Hugh A. UHALT, et al.
    NO. 2016-CA-0569
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 1, 2017
    Rehearing Denied February 22, 2017

      John B. Ohle, III, 1940 Chestnut Avenue, Wilmette, IL 60091, PLAINTIFF/APPELLANT IN PROPER PERSON
    Stephen H. Kupperman, Joshua 0. Cox, BARRASSO USDIN KUPPERMAN FREEMAN & SARVER, LLC, 909 Poy-dras Street, Suite 1800, New Orleans, LA 70112, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Regina Bartholomew-Woods)
   Judge Rosemary Ledet

11 This is a damages suit, based on an alleged fraudulent scheme, against four defendants. From the trial court’s judgment granting all four defendants’ peremptory exceptions of prescription and one defendant’s declinatory exception of lack of personal jurisdiction, the plaintiff appeals. For the reasons that follow, we affirm the trial court’s judgment in all respects except for the granting of the peremptory exception of prescription as to one of the defendants. We remand with instructions to conduct an evidentiary hearing on the prescription exception as to that one defendant.

FACTUAL AND PROCEDURAL BACKGROUND

On December 29, 2014, the plaintiff, John Brewster Ohle, III, commenced this suit against the following four defendants:

1. The Ecetra N. Ames 1999 Charitable Remainder Unitrust (the “Ames Trust”)—a trust created in and administered under the laws of the State of Louisiana appearing through its current trustee, Steven O. Medo, Jr.;
\>2. Anthony Ames—a resident of Atlanta, Georgia; Eeetra Ames’ husband; and an income beneficiary of the Ames Trust;
3. Hugh Uhalt—Mrs. Ames’ son and the individual who purported to have a power of attorney for Mrs. Ames; and
4. John Wogan—the successor trustee of the Ames Trust following Mr. Ohle’s resignation as trustee.

In his petition, Mr. Ohle asserts the following three theories of liability: (i) fraud, (ii) conspiracy to defraud, and (iii) breach of contract. The gist of the allegations in his petition is that the defendants engaged in a fraudulent scheme to accomplish the following three results: [i] unlawfully remove millions of dollars from the Ames Trust; [ii] insert Mr. Wogan as successor trustee; and [iii] wrongfully recover monies through “unlawful forfeiture/restitution orders.” Mr. Ohle averred that “[t]he acts, omissions, misrepresentations and concealments of the defendants and [Mrs.] Cetie Ames caused and/or contributed to [Mr.] Ohle losing valuable property rights and to being wrongfully criminally charged, tried, convicted, imprisoned, fined, and defamed, both professional and personally.”

Although the alleged actions on which his claims were based occurred between 2002 and 2011, Mr. Ohle averred in his petition that he did not discover the fraudulent scheme until conducting discovery in other matters in 2014. He further averred that the alleged fraudulent scheme had continued and was aided and abetted by the United States Attorney for the Southern District of New York. Mr. Ohle still further averred that the defendants’ acts, omissions, and fraudulent scheme constituted a breach of contracts and agreements, including the confidentiality provisions of the Settlement Agreement among him, Mrs. Ames, [aMr. Ames, and the Ames Trust that was entered into on October 14, 2003. The gist of his breach of contract claim is that the defendants have discussed facts subject to the confidentiality provision of the Settlement Agreement with numerous third parties thereby breaching that provision.

In response to the petition, all four defendants filed a peremptory exception of prescription; Mr. Ames additionally filed a declinatory exception of lack of subject matter jurisdiction. The trial court, as noted, granted all four defendants’ peremptory exceptions of prescription and Mr. Ames’ declinatory exception of lack of personal jurisdiction. This appeal followed.

DISCUSSION

On appeal, Mr. Ohle asserts the following three assignments of error:

1. The district court erred in finding that the breach of contract claims had prescribed,
2. The district court erred in finding the breach of contract claims only applicable to two of the four defendants—Mr. Ames and the Ames Trust.
3. The district court erred in finding no personal jurisdiction as to Mr. Ames.

We divide our analysis into two parts: prescription and personal jurisdiction over Mr. Ames. We first address the personal jurisdiction issue.

Personal jurisdiction

When reviewing a trial court’s legal ruling on a declinatory exception of lack of personal jurisdiction, an appellate court applies a de novo standard. Winston v. Millaud, 05-0338, p. 5 (La.App. 4 Cir. 4/12/06), 930 So.2d 144, 149-50 (noting that “jurisdiction itself is a question of law subject to de novo review.”); Walker v. Super 8 Motels, Inc., 04-2206, p. 4 (La.App. 4 Cir. 12/7/05), 921 So.2d 983, 986. In de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103 (La. 1991), the Louisiana Supreme Court subdivided the method of proving an exception of lack of personal jurisdiction into two categories—with a contradictory hearing and without such a hearing. Explaining these categories, the Supreme Court stated the following:

If there had been a contradictory evi-dentiary hearing, plaintiff would have had to prove facts in support of her showing that jurisdiction was proper by a preponderance of the evidence. However, under constitutional and codal principles, when the trial court decides the jurisdictional issue without a contradictory evidentiary hearing, as it has done in the present case, the burden of the non-moving party is relatively slight and allegations of the complaint and all reasonable inferences from the record are to be drawn in favor of the non-moving party.

de Reyes, 586 So.2d at 109 (citing La. C.C.P. arts. 925, 930; and American Greetings Corp. v. Cohn, 839 F.2d 1164 (6th Cir. 1988)).

A contradictory hearing, for purposes of an exception of lack of personal jurisdiction, is defined based upon “the methods of proof set out in de Reyes and its progeny” as requiring live testimony be taken. Jacobsen v. Asbestos Corp. Ltd., 12-655, pp. 6-7 (La.App. 5 Cir. 5/30/13), 119 So.3d 770, 775-76 (noting that “a contradictory hearing is not considered to have taken place unless live testimony is taken.”). Thus, a contradictory hearing requires more than simply oral argument on the exception of lack of personal jurisdiction.

[^Louisiana courts routinely have decided exceptions of lack of personal jurisdiction without a contradictory hearing based solely on written documentation, including the petition and affidavits. In so doing, Louisiana courts have accepted the allegations in the petition as true “except as controverted by the defendant’s affidavit.” Lifecare Hospitals, Inc. v. B & W Quality Growers, Inc., 39,065, p. 8 (La.App. 2 Cir. 10/27/04), 887 So.2d 624, 630.

A state court’s authority to exercise personal jurisdiction over a non-resident defendant is governed by the Louisiana Long-Arm Statute, La. R.S. 13:3201 (the “LAS”). The limits of the LAS and constitutional due process are coextensive. Superior Supply Co. v. Associated Pipe and Supply Co., 515 So.2d 790, 792 (La. 1987); La. R.S. 13:3201(B)(allowing for Louisiana courts to exercise personal jurisdiction over nonresident defendants “on any basis consistent with the constitution of this state and the Constitution of the United States.”).

The exercise of personal jurisdiction over a non-resident defendant comports with due process when the following two prongs are satisfied: (i) the defendant has certain “minimum contacts” with the forum state; and (ii) as a result of those contacts, the maintenance of the suit would not offend traditional notions of fair play and substantial justice. Dahmes v. Champagne Elevators, Inc., 03-0807, 03-0983, pp. 4-5 (La.App. 4 Cir. 3/3/04), 869 So.2d 904, 908 (citing International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)); de Reyes, supra; see also J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 880, 131 S.Ct. 2780, 2787, 180 L.Ed.2d 765 (2011).

As to the “minimum contacts” prong, “[ojpinions in the wake of the path-marking International Shoe decision have differentiated between general or all-purpose jurisdiction, and specific or case-linked jurisdiction.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 2851, 180 L.Ed.2d 796 (2011) (citing Helicópteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, nn. 8, 9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). Explaining the difference, the Supreme Court noted:

|7A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so “continuous and systematic” as to render them essentially at home in the forum State. Specific jurisdiction, on the other hand, depends on an “affiliatio[n] between the forum and the underlying controversy,” principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation. In contrast to general, all-purpose jurisdiction, specific jurisdiction is confined to adjudication of “issues deriving from, or connected with, the very controversy that establishes jurisdiction.”

Goodyear, supra (internal citations omitted). Simply stated, “[a] state exercises general jurisdiction when the defendant’s contacts with the state are not related to the lawsuit. Specific jurisdiction, on the other hand, is exercised when the suit arises out of or is related to the defendant’s contacts with the forum.” Dahmes, 03-0807, 03-0983 at p. 5, 869 So.2d at 908.

The initial burden of proving sufficient minimal contacts to establish personal jurisdiction is imposed on the party that is asserting jurisdiction is proper, de Reyes, 586 So.2d at 107; Swoboda v. Hero Decks, 09-1303, p. 2 (La.App. 4 Cir. 3/31/10), 36 So.3d 994, 997 (noting that the party seeking to invoke personal jurisdiction bears the burden of establishing such jurisdiction exists.). Once sufficient minimum contacts have been established, a presumption of reasonableness of jurisdiction arises, de Reyes, supra. “The burden then shifts to the opposing party to prove the. assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the defendant’s minimum contacts with the forum.” Id.

|sIn the instant case, Mr. Ohle, in his petition, asserted personal jurisdiction over Mr. Ames, a resident of Georgia, through the LAS. In response, Mr. Ames filed an exception of lack of personal jurisdiction contending that Mr. Ohle failed to establish the minimum contacts prong by proving either general or specific jurisdiction. Mr. Ames argued that specific jurisdiction was lacking because none of the causes of action Mr. Ohle asserted in his petition alleged an act or omission by Mr. Ames in Louisiana. Mr. Ames argued that general jurisdiction likewise was lacking because he engaged in no course of conduct that subjected him to jurisdiction in this state. In support of his exception of lack of personal jurisdiction, Mr. Ames submitted his own affidavit, dated March 31, 2015, in which he attested to the following facts:

• He is a resident and domiciliary of Atlanta, Georgia;
• He is an architect, and his practice is based in Atlanta, Georgia;
• In his business, he has neither contracted nor sold goods or services in the State of Louisiana;
• He did not market or distribute goods in the State of Louisiana;
• He did not derive revenue from goods used or consumed or services rendered in Louisiana;
• He did not transact business in Louisiana;
• He never manufactured products in Louisiana;
• He has no place of business, mailing address, bank account, or telephone listing in the State of Louisiana;
• He does not own, use, or possess any real or personal property in the State of Louisiana;
[• He is not the creator or grantor of the Ames Trust; and
• He is not a trustee of and has no control or oversight over the Ames Trust, nor does he have any control or decision-making authority regarding the Ames Trust or any investment of the trust.

Although a hearing was held on the exceptions, the parties presented only oral argument; no witnesses testified, and no evidence was introduced. Thus, there was no contradictory hearing. Jacobsen, supra. Given a contradictory hearing was not held, Mr. Ohle needed to make only a prima fade showing of personal jurisdiction.

In granting Mr. Ames’ exception of lack of personal jurisdiction, the trial court, in its written reasons for judgment, stated that “[t]he evidence demonstrated that Mr. Ames did not have sufficient contacts with this state to find that the state had jurisdiction over him. While he was a party to the Settlement Agreement that was entered into in 2003, there was no evidence that he had engaged in a course of conduct since that time that would subject him to the jurisdiction of this court.” The trial court’s reference to the lack of a “course of conduct” evidences it found this case involved an allegation of general jurisdiction. “For an individual, the paradigm forum for the exercise of general jurisdiction is the individual’s domicile.” Goodyear Dunlop Tires Operations, 564 U.S. at 924, 131 S.Ct. at 2853. Here, Mr. Ames’ domicile was in Atlanta, Georgia. Mr. Ames’ affidavit, which Mr, Ohle failed to controvert, established his lack of a continuous course of conduct in this state. We thus find no error in the trial court’s finding that general jurisdiction is lacking.

On appeal, Mr. Ohle does not dispute the lack of general jurisdiction; rather, he focuses his argument on specific jurisdiction. He argues that the trial court erredJjjin failing to find that the State of Louisiana has specific jurisdiction over Mr. Ames pursuant to the LAS. In support, he cites the following three facts:

1. Mr. Ames was the beneficiary of the Ames Trust, which was established in Louisiana. The Ames Trust expressly provides it is governed by the laws of the State of Louisiana.
2. Mr. Ames filed a lawsuit related to the Ames Trust in the State of Louisiana and agreed to a consent judgment on the accounting of the Ames Trust and signed the Settlement Agreement out of which this suit arose.
3. On June 3, 2014, Mr. Ames voluntarily provided deposition testimony in another related matter, Uhalt v. J.P. Morgan Chase, et al., No. 11-440, Civil District Court for the Parish of Orleans (“CDC”). Mr. Ames breached the terms of the Settlement Agreement during that deposition, which was taken in the State of Louisiana.

We find none of these three facts sufficient to support a finding of specific jurisdiction. First, the fact that Mr. Ames was an income beneficiary of the Ames Trust is not a fact out of which this suit arises. Regardless, Mr. Ames attested in his un-controverted affidavit that he was not a trustee of, and had no control or oversight over, the Ames Trust. He further attested that he had no control or decision-making authority regarding either the Ames Trust or any investment of the trust.

Although this suit arises out of the alleged breach of the Settlement Agreement, there is no evidence in the record that the Settlement Agreement was entered into in the State of Louisiana. Regardless, “[a]n individual’s contract with an out-of-state party alone cannot establish minimum contacts in the home forum.” A & L Energy, Inc. v. Pegasus Group, 00-8255, p. 7 (La. 6/29/01), 791 So.2d 1266, 1272. We further note that the petition does not contain a specific allegation that |„ Mr. Ames breached the Settlement Agreement; rather, the petition alleges the following:

• “[M]r. Wogan and others intentionally breached these confidentiality provisions [of the Settlement Agreement] in the Southern District of New York and before the Louisiana CPA Board.
• “[Defendants, Cetie Ames and others acting on their behalf continue to breach the Settlement Agreement and the confidentiality provisions contained therein by publicizing false statements in the public records and to various licensing authorities (including without limitation [Mr.] Wogan’s appearance before the Louisiana Board of CPAs in August 2013).”
• The acts, omissions and concealments of the defendants described herein constitute a breach of the contracts and agreements (including the confidentiality provisions contained in the Settlement Agreement) between the plaintiff and Cetie Ames, Tony Ames and the Ames CRUT.”

As the above-quoted averments reflect, the petition generally alleges that the “defendants” breached the confidentiality provisions of the Settlement Agreement. A plaintiff “may not aggregate factual allegations concerning multiple defendants in order to demonstrate personal jurisdiction over any individual defendant.” National Community Reinvestment Coalition v. NovaStar Financial, Inc., 631 F.Supp.2d 1, 3 (D.D.C. 2009) (citing Rush v. Savchuk, 444 U.S. 320, 331-32, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980) (rejecting aggregation of co-defendants’ forum contacts in determining personal jurisdiction because “the requirements of International Shoe must be met as to each defendant over whom a ... court exercises jurisdiction”).

Nor does Mr. Ohle’s petition, as Mr. Ames points out, allege that Mr. Ames breached the Settlement Agreement while being deposed in the State of Louisiana on June 3, 2014. To the contrary, the petition cites Mr. Ames’ deposition testimony | ^as evidence supporting Mr. Ohle’s claim of the defendants’ fraudulent scheme. Thus, Mr. Ames’ deposition testimony was not alleged in the petition to constitute a breach of the Settlement Agreement. Regardless, as Mr. Ames points out, Mr. Ohle cites no case law supporting his position that “sitting for a deposition in another legal matter in this State is sufficient to subject Mr. Ames to jurisdiction in Louisiana.” Indeed, this proposition lacks legal support.

In sum, given the uncontroverted facts set forth in Mr. Ames’ affidavit coupled with the allegations of the petition, we find Mr. Ohle failed to establish the minimum contacts prong through proving either general or specific jurisdiction. We thus find no error in the trial court’s judgment granting Mr. Ames declinatory exception of lack of personal jurisdiction.

Prescription

Generally, the party raising a peremptory exception of prescription bears the burden of proof. Felix v. Safeway Ins. Co., 15-0701, p. 4 (La.App. 4 Cir. 12/16/15), 183 So.3d 627, 630. This general rule applies unless prescription is evident from the face of the pleadings; if the claim is prescribed on the face of the petition, the burden shifts to the plaintiff to show that the claim has not prescribed. Spott v. Otis Elevator Co., 601 So.2d 1355, 1361 (La. 1992). On the trial of a peremptory exception of prescription pleaded prior to trial on the merits, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 931.

| iaThe standard of review of a peremptory exception of prescription depends on whether evidence was presented. Miralda v. Gonzalez, 14-0888, pp. 17-18 (La. App. 4 Cir. 2/4/15), 160 So.3d 998, 1009. “In the absence of evidence, the exception of prescription must be decided on the facts alleged in the petition, which are accepted as true.” Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88; Felix, 15-0701 at p. 5, 183 So.3d at 631. Such is the case here.

On appeal, Mr. Ohle does not assign as error the trial court’s finding that his tort claims of fraud and conspiracy to defraud were prescribed; instead, he raises two assignments of error related solely to the breach of contract claims. As noted elsewhere, he claims the breach of contract claims are not prescribed and that the trial court erred in finding the breach of contract claim did not apply to Mr. Uhalt and Mr. Wogan.

Addressing Mr. Ohle’s breach of contract claims, the trial court, in its written reasons for judgment, stated as follows:

As for the breach of contract claims, this claim can only be asserted against defendants, Mr. Ames and the Ecetra N. Ames 1999 Charitable Remainder Uni-trust. Pursuant to C.C. article 3499, breach of contract claims are subject to a ten year prescriptive period. However, the Settlement Agreement that was alleged to have been breached was signed in 2003 which is over ten years prior to this suit being filed. Therefore, the court finds that these claims have also prescribed.

We first address Mr. Ohle’s argument that the trial court erred in limiting the parties to whom the breach of contract claim applies to the named defendants who were parties to the Settlement Agreement. He contends that the trial court ignored the following two facts in finding the contract claim did not apply to Mr. Uhalt and Mr. Wogan:

114.(1) Ecetra Ames was also a signatory to the Settlement Agreement and allegedly breached its terms within ten years prior to the filing of the lawsuit. However, because Ecetra Ames was interdicted by her son, Hugh Uhalt, Uhalt is a proper defendant in her stead for breaches of the contract that continue to this day.
(2) John Wogan was Ecetra Ames’ attorney responsible for drafting the Settlement Agreement and obtaining the Consent Judgment in the final trust accounting, and, if that were not enough, he became successor trustee to Ohle of the CRUT after execution of the Settlement Agreement and entering of the Consent Judgment.

According to Mr. Ohle’s petition, the parties to the Settlement Agreement are Mr. Ohle, Mrs. Ames, Mr. Ames, and the Ames Trust. Although the defendants argue that the Ames Trust likewise was not a party to the Settlement Agreement, the parties failed to introduce the Settlement Agreement at the hearing on the exceptions. The record thus does not include a copy of the Settlement Agreement.

Given no evidence was introduced at the hearing on the exceptions, we must accept as true allegations of the petition. Doing so, we conclude that only two of the four defendants—Mr. Ames and the Ames Trust—are parties to the Settlement Agreement. Dispositive of the first issue Mr. Ohle raises regarding the breach of contract claims is this court’s holding that “it is obvious that an individual cannot be liable for breach of a contract to which he is not a party.” B-G & G Inv’rs VI, L.L.C. v. Thibaut HG Corp., 08-0093, p. 6 (La. App. 4 Cir. 5/21/08), 985 So.2d 837, 842. Applying this principle, we find no error in the trial court’s ruling limiting Mr. Ohle’s breach of contract claims to the parties to the Settlement Agreement—Mr. Ames and the Ames Trust.

The second issue Mr. Ohle raises regarding the breach of contract claims is that the trial court erred in finding that prescription on these claims commenced to run from the date the Settlement Agreement was signed—October 14, 2003—as opposed to the date the contract was breached. See La. C.C. art. 3499 (providing lifithat “a personal action is subject to a liberative prescription of ten years.”). Stated otherwise, Mr. Ohle contends that prescription on a breach of contract claim runs from the date of the alleged breach, not the date the contract was signed. See Donald G. Lambert Contractor, Inc. v. Parish of Jefferson, 97-140, p. 7 (La.App. 5 Cir. 9/17/97), 700 So.2d 894, 897 (noting that “[i]t is well settled that the ten year prescriptive period for liberative prescription commences to run at the time of the breach or at the time the cause of action arises.”). Although the point Mr. Ohle raises is correct, it is well-settled that appellate courts review judgments not reasons for judgments. Wooley v. Lucksinger, 09-0571, 09-0584-86, p. 77 (La. 4/1/11, 61 So.3d 507, 572 (collecting cases and citing La. C.C.P. arts. 1918, 2082 and 2083). “Judgments are often upheld on appeal for reasons different than those assigned by the district judges.” Id.

The narrow issue before us is thus whether the trial court correctly held that the breach of contract claims against Mr. Ames and the Ames Trust are prescribed. As to Mr. Ames, our finding that the trial court correctly granted his declinatory exception of lack of personal jurisdiction is dispositive. As to the Ames Trust, a review of the relevant facts, as alleged in the petition, is necessary.

The petition reflects the following pertinent time line of events.

In December 1999, Ms. Ames, as settlor, established the Ames Trust; and Mr. Ohle was named trustee.

In 2001, both Mrs. Ames, individually, and Mr. Ohle, on behalf of the Ames Trust, invested in Société Generate warrants (“SocGen Warrants”)—also referred 11fito as Carpe Diem Dynamic Fund Linked Warrants. Mrs. Ames, individually, invested $5 million in the SocGen'Warrants. Mr. Ohle, on behalf of the Ames Trust, invested $2 million in the SocGen Warrants. A 5% commission was withheld from both transactions—$250,000 was withheld from Mrs. Ames’ $5 million personal investment; $100,000 was withheld from the Ames Trust’s $2 million investment. According to Mrs. Ames, she was unaware any fees would be charged for the purchase of the SocGen Warrant.

In 2002, both Mr. Ohle, on behalf of the Ames Trust, and Mrs. Ames, individually, redeemed their investments in the SocGen Warrants. Mr. Ohle avers in his petition that “[Mrs.] Ames directed Société Generate to transfer the proceeds from the liquidation of the SocGen Warrants into the Ames [Trust].” Mrs. Ames, however, strongly disputed Mr. Ohle’s position that she so directed him to transfer the proceeds—which were in the amount of $4,100,549.27—to the Ames Trust. Following this transaction, Mrs. Ames, represented by counsel (Mr. Wogan), demanded an accounting from Mr. Ohle of his actions as trustee.

In October 2003, Mr. and Mrs. Ames and the Ames Trust entered into the Settlement Agreement with Mr. Ohle. As part of the settlement, Mr. Ohle resigned as trustee of the Ames Trust in September 2003.

In March 2004, Mrs. Ames and the Ames Trust (through Mr. Wogan) filed with the Internal Revenue Service a Request for a Private Letter Ruling, In connection with that Request for a Private Letter Ruling, Mr. and Mrs. Ames and Mr. Wogan, as trustee of the Ames Trust, filed a verified Petition for Instructions in CDC in which the following allegations were made:

| 17The former Trustee [Mr. Ohle] did not inform the Settlor [Mrs. Ames] that the Redemption Notice directed that the Transferred Funds be deposited to the [Ames] Trust’s account, nor had Settlor told the former trustee that she wished to donate the transferred funds [$1.4 million roughly] to the Ames Trust. Set-tlor never intended to donate the transferred funds to the Ames Trust. Rather, she intended to temporarily deposit the funds in a money market account in her own name until she selected- a long-term investment.

In October 2009, Mrs. Ames filed suit against, among others, Mr. Ohle in federal court alleging claims under RICO as well as several state law claims. Ames v. Ohle, 2010 WL 5055893 (E.D. La. 2010). The federal court dismissed Ames’s RICO claims as untimely.

In January 2011, Mrs. Ames filed suit in CDC against, among others, Mr. Ohle. See Ames v. Ohle, 11-1540 (La.App. 4 Cir. 5/23/12), 97 So.3d 386. Also in January 2011, Ohle alleges that the defendants and Mrs. Ames “caused a fraudulent Victim Impact Statement to be filed in the U.S. District court the Southern District of New York and continue to fraudulently claim victim status through the present day.”

In May 2011, Mr. Ohle was tried and convicted by a jury in the Southern District of New York. His conviction was affirmed in United States v. Ohle, 441 Fed. Appx. 798 (2d Cir. 2011) (unpub.).

With that time line in mind, we address Mr. Ohle’s argument. He contends that his breach of contract claim against the Ames Trust is not prescribed because it was filed within ten years of the date of the breach of the Settlement Agreement. Defendants counter that the Ames Trust, among others, filed the Petition for 1 ^Instructions in CDC and served this petition on Mr. Ohle in November 2004. Shortly thereafter, Mr. Ohle submitted an affidavit in support of the Petition for Instructions, which established his actual knowledge of the alleged breach of the confidentiality provision of the Settlement Agreement and commenced the running of prescription, which was not interrupted or suspended. As noted elsewhere, defendants also contend that the Ames Trust is not a party to the Settlement Agreement.

The record on appeal contains neither the Settlement Agreement nor the Petition for Instructions and pleadings filed in that matter. Even the date of the filing of the Petition for Instructions is not asserted in the petition. Accepting the allegations of the petition as true, we cannot conclude the breach of contract claims against the Ames Trust are prescribed. See Taranto v. Louisiana Citizens Prop. Ins. Corp., 10-0105, p. 5 (La. 3/15/11), 62 So.3d 721, 726 (noting that the “jurisprudence provides that statutes involving prescription are strictly construed against prescription and in favor of the obligation sought to be extinguished.”). Indeed, the petition alleges a continuing breach by the defendants, including the Ames Trust, of the confidentiality provisions of the Settlement Agreement. Accordingly, we reverse the trial court’s judgment granting the exception of prescription as to the Ames Trust and remand for an evidentiary hearing on the exception as to that one defendant.

^JjgDECREE

For the foregoing reasons, the trial court’s judgment granting the peremptory exception of prescription as to the Ecetra N. Ames 1999 Charitable Remainder Uni-trust is reversed and this matter is remanded with instructions to conduct an evidentiary healing on that exception. In all other respects, the trial court’s judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS

      . The Ames Trust was executed in December 1999; Eeetra Ames was the settlor. Two income beneficiaries were named—Ms. Ames and her husband, Anthony Ames. Mr. Ohle was the initial trustee.

      . In May 2011, Mr. Ohle was tried by a jury in the Southern District of New York. He was convicted of conspiracy to defraud the Internal Revenue Service and two counts of attempted tax evasion, His conviction was affirmed in United States v. Ohle, 441 Fed.Appx. 798 (2d Cir. 2011) (unpub.),

      .Although all four defendants also filed peremptory exceptions of no cause of action and no right of action, the trial court did not expressly rule on these other exceptions.

      . In American Greetings, supra, the federal court noted that when the trial court fails to hold a contradictory hearing, the plaintiffs burden is "relatively slight,” and the trial court is required to consider the pleadings and affidavits in the plaintiffs favor. 839 F.2d at 1168 (quoting Welsh v. Gibbs, 631 F.2d 436, 439 (6th Cir. 1980)(quoting Poston v. American President Lines, Ltd., 452 F.Supp, 568, 571 (S.D. Fla. 1978)); Visual Sciences, Inc. v. Integrated Communications Inc., 660 F.2d 56, 58 (2d Cir. 1981)(“In the absence of a full-blown hearing on the merits, plaintiff need make only a prima facie showing that the court has jurisdiction under a long-arm statute,”)

      . See Ruckstuhl v. Owens Corning Fiberglas Corp., 98-1226, p. 2 (La. 4/13/99), 731 So.2d 881, 883 (noting the exception was "supported by an affidavit”); Superior Supply Co. v. Associated Pipe and Supply Co., 515 So.2d 790, 791 (La. 1987) (noting the personal jurisdiction exception was submitted on affidavits and briefs); see also 1 Frank L. Maraist, LOUISIANA CIVIL LAW TREATISE; CIVIL PROCEDURE § 6:5 (2d ed.) (citing Marchand v. Asbestos Defendants, 10-0476, 10-543, 10-766 (La.App. 4 Cir. 11/10/10), 52 So.3d 196, and noting that ”[a]n affidavit is proper evidence on an exception of lack of personal jurisdiction.”).

      . The LAS, La. R.S. 13:3201, provides as follows:
      A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
      (1) Transacting any business in this state.
      (2) Contracting to supply services or things in this state.
      (3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.
      (4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state.
      (5) Having an interest in, using or possessing a real right on immovable property in this state.
      (6) Non-support of a child, parent, or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the nonresident formerly resided in this state.
      (7) Parentage and support of a child who was conceived by the nonresident while he resided in or was in this state.
      (8) Manufacturing of a product or component thereof which caused damage or injury in this state, if at the time of placing the product into the stream of commerce, the manufacturer could have foreseen, realized, expected, or anticipated that the product may eventually be found in this state by reason of its nature and the manufacturer’s marketing practices.
      B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.

      . The second part of the due process test centers around the fairness of the assertion of jurisdiction. In determining this fundamental fairness issue, we must examine (1) the defendant’s burden; (2) the forum state's interest; (3) the plaintiff’s interest in convenient and effective relief; (4) the judicial system’s interest in efficient resolution of controversies; and (5) the state's shared interest in furthering fundamental social policies. Ruckstuhl, 98-1126 at p. 14, 731 So.2d at 890.

      . Mr. Ames points out that he and his wife signed that agreement in Nassau County, New York, and Mr. Ohle signed it in Wilmette, Illinois. Proof of this fact, however, is not in the record on appeal. Nor is a copy of the Settlement Agreement.

      . For example, the petition alleges that "the deposition of' Tony Ames taken on June 3, 2014 revealfe] that these statements were fraudulently made to further the scheme described herein” and that "[t]he allegations in the Petition for Instructions made under oath by [Mr.] Wogan as trustee of the Ames CRUT, Tony Ames, and Cetie Ames were contradicted by Tony Ames’ sworn deposition testimony on June 3, 2014.”

      . As Mr. Ohle alleges in his petition, “SocGen Warrants sought capital appreciation over the medium term, by allocating the optimal leval of assets to the Carpe Diem Multi-Strategy Fund” and "[t]he Carpe Die-um Dynamic Fund had a 16.84% compound historical annual return.”

      . As noted elsewhere in this opinion, neither the Petition for Instructions nor the pleadings filed in that matter, such as Mr. Ohle's affidavit, are in the record on appeal.