text:
    STATE of Louisiana v. Stanley M. HENRY, III.
    No. 08-KA-658.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Kenneth P. Bordelon Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, State of Louisiana, for Plaintiff/Appellee.
    John Hall Thomas, Karla M. Baker, Benjamin T. Sanders, Martin E. Regan, Jr. & Associates, P.L.C. New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   MARION F. EDWARDS, Judge.

[ gDefendant/appellant, Stanley M. Henry, III (“Henry”), was charged with possession with intent to distribute cocaine, a violation of LSA-R.S. 40:967(A). After a two-day trial, a twelve-member jury unanimously found Henry guilty as charged. His “Motion for New Trial and for Post-Verdict Judgment of Acquittal” was denied, and he was subsequently sentenced to twenty years at hard labor with the first two years to be served without benefit of probation, parole, or suspension of sentence. In addition, the trial judge ordered that Henry’s sentence run concurrently with his sentence for a first offense possession of marijuana, in another case. Henry was given credit for time served.

On the same day, the State filed a multiple bill. After admitting to the allegations in the multiple bill, Henry’s original sentence was vacated, and he was [Ssentenced to thirty years at hard labor without benefit of probation or suspension of sentence and with credit for time served. Henry appeals.

Detective Shane Klein (“Detective Klein”) with the Jefferson Parish Sheriffs Office Narcotics Division testified that he participated as the lead detective in an investigation of Henry at a Quality Inn, along with other officers, including Detective Harold Bourgeois (“Detective Bourgeois”). According to Detective Klein, he learned during the course of his investigation from a confidential informant, who the Jefferson Parish Sheriffs Office used successfully on a regular basis, that a tall black male of medium build with short hair, known on the street as “Shadow,” would be distributing illegal narcotics from his room at the motel. Later in his testimony, Detective Klein identified Henry in court as a “short hair, black individual.”

Detective Klein testified that, during surveillance at the motel, the officers were told by the confidential informant, who was also in the parking lot, that Shadow was standing at the rear exit door of the motel. Detective Klein testified that, after he observed someone matching the description of “Shadow,” he approached, identified himself as a police officer, and explained the nature of the investigation. Detective Klein testified that Henry identified himself by name, not by the street name known to Detective Klein. At that time, Henry was not doing anything suspicious or illegal. Detective Klein testified that Henry informed the officers during questioning that he was staying in room 815 at the motel.

According to Detective Klein, when asked if he would consent to a search of his room, Henry did not object. Henry also signed a written consent form allowing the search. According to Detective Klein, Henry informed them that his girlfriend, Robin Shipman (“Shipman”), was in the room. Detective Klein testified that he and Sergeant Todd Vignes entered Henry’s room with the key he provided, and |4found Shipman sleeping in a bed. After Shipman was informed about the investigation, she signed the same consent form as did Henry.

Detective Klein testified that, while in the motel room, he observed a marijuana cigar that subsequently was seized. According to Detective Klein, a K-9 dog was requested to aid in a search of the room. Detective Bourgeois with the Jefferson Parish Sheriffs Office Narcotics Division testified that he participated with Detective Eddie Greer (“Detective Greer”) and his K-9 partner in the investigation and search of Henry’s room with his consent. Detective Bourgeois testified that, during the search, the K-9 alerted to the ironing board that hung on the wall adjacent to the front door of the motel room. After searching the ironing board, a medium-sized black umbrella was found behind it, from which was retrieved a clear plastic bag containing a white powdery substance. Detective Klein testified that he subsequently performed a field test on the large bag of cocaine before turning it over to the evidence custodian on the case, Detective David Canas (“Detective Canas”).

The State and the defense stipulated that the cigar was marijuana and that the white substance was cocaine. Detective Klein also testified that he recovered and seized the following items from the night stand: a digital mail scale commonly used to weigh narcotics; sandwich bags with and without pre-cut corners that are used to package narcotics; a coffee strainer used to separate the loose cocaine and the chunks that need to be cut up; and a razor blade used to cut into fine powder hard pieces of cocaine, as well as a measuring spoon. Detective Klein opined that a digital mail scale is a “strong element” indicating that a suspect has possession with intent to distribute an illegal drug. According to Detective Klein, the combination of all drug paraphernalia seized from the nightstand was consistent with possession with intent to distribute, i.e., sale and distribution of illegal drugs.

| ¡¡Detective Klein testified that the cocaine seized from Henry’s room had a net weight of approximately 28 grams. According to him, 28 grams of cocaine is equal to exactly one ounce of cocaine, which had a street value of approximately $600 to $700 from August of 2007 until March of 2008. Detective Klein testified that someone in possession of one ounce of cocaine with intent to distribute would normally break it down into one-gram amounts. Detective Klein opined that, from August of 2007 until March of 2008, the 28 grams of cocaine had a street value of approximately $1960.

Detective Klein testified that, when Henry was asked about the drugs and the paraphernalia, he immediately explained that everything, including the drugs, belonged to him. Only Henry, the target of the investigation, was arrested because he admitted that he owned the drugs and the paraphernalia. According to Detectives Klein and Canas, Shipman, Henry’s girlfriend, never told him that she owned or possessed any of the items found in room 815. Detective Bourgeois testified that Shipman told him the drugs did not belong to her.

Detective Klein testified that he subsequently interviewed Henry after he was read his rights. In the search incident to arrest, Henry was found to be in possession of $1,040 in currency. Detective Klein opined that, since Henry stated during the interview that he was unemployed and could not explain where he got the money, the currency found on him was a secondary element that, along with the drug paraphernalia, was consistent with possession with intent to distribute.

Detective Bourgeois testified that he participated in the narcotics investigation and went with the other detectives to the hotel room. After Shipman was taken out of the room, Detective Bourgeois helped execute the search warrant with Detective Greer and the K-9. When the dog alerted to the ironing board, | ^Detective Bourgeois unfolded it and found the black umbrella with the cocaine inside. When he handcuffed Shipman, she told Bourgeois the drugs were not hers.

Shipman testified that, on the date of Henry’s arrest, she was staying in the room at the Quality Inn that Henry obtained for her because she was trying to escape an abusive relationship. According to Shipman, Henry only rented the room for her and did not give her drugs. Ship-man testified that, when Henry did not arrive to pick her up for work on the day of the incident, she awoke to the sound of police officers searching her room and yelling with their guns drawn on her. Ship-man testified that she told the police that the marijuana found next to her bed stand belonged to her. At trial, Shipman admitted that she had approximately 28 grams of cocaine in her brown and cheetah print umbrella hanging by the ironing board and that she was going to sell it. Shipman testified that she never told the police that the cocaine that was found belonged to her because they never asked her. Shipman testified that Henry did not know that there was cocaine in the room.

According to Shipman, she had an extremely bad drug habit and claimed that she could use 28 grams of cocaine in less than a week. Shipman testified that cocaine was easy to purchase on Bourbon Street where she danced under her nickname “Shadow,” which nickname she had since the fifth grade. Shipman claimed that Henry’s nickname is “Truck.” In addition to admitting ownership of the drugs, Shipman admitted that she owned the scale, the sifter, and the bags that she used to “bag it up,” as well as the razor, the little spoon, and the $1,040 in currency that Henry was holding for her. Shipman also admitted that she sold cocaine at work.

17Shipman testified that Henry was never in that hotel room, including on the day of his arrest, and that she never saw him on the date of the incident. According to Shipman, Henry was kept downstairs by the officers.

On appeal, Henry claims that the State presented insufficient evidence to prove that he was guilty and, therefore, the jury’s verdict is contrary to the law and evidence. He argues that the State’s case was based almost entirely on unsworn testimonial hearsay from an anonymous confidential informant. Henry claims that without the information received from the confidential informant the State could not prove that he used the name “Shadow.” He further suggests that the State failed to prove possession because he was not found in possession of or in close proximity to the cocaine. Henry claims that the reason that the State chose to charge him and not Shipman was because the confidential informant only accused Henry. He urges that he was not allowed to inquire about any motive, bias, or interest the confidential informant had in accusing only him because he was not allowed to cross-examine the confidential informant.

In order to support a conviction for possession with intent to distribute cocaine, the State must prove that the defendant knowingly and intentionally possessed the drug, and that he did so with the specific intent to distribute it. The evidence may be either direct or circumstantial. When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 provides that “assuming every fact to be proved that the [circumstantial] evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This is not a separate test from the Jackson standard but rather ^provides a helpful basis for determining the existence of reasonable doubt. Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt.

“Guilty knowledge is a state of mind and need not be proven as fact but rather may be inferred from the circumstances.” The element of possession may be proven by showing that the defendant exercised either actual or constructive possession of the cocaine. A person who is not in physical possession of a drug may have constructive possession when the drugs are under that person’s dominion or control. However, the mere presence of a defendant in the area where a controlled dangerous substance is found or mere association with the person found in possession of the controlled dangerous substance is insufficient to constitute constructive possession. A suspect can have constructive possession if he jointly possesses drugs with a companion, and if he willfully and knowingly shares with his companion the right to control the drugs.

The question of possession hinges on the particular facts of each case. Factors to be considered in determining whether the defendant exercised dominion and control sufficient to constitute constructive possession include: (1) the defendant’s knowledge that illegal drugs were in the area, (2) the defendant’s relations with the person found to be in actual possession, (3) the defendant’s access to the area where the drugs were found, (4) evidence of recent drug use by lathe defendant, (5) the existence of paraphernalia, and (6) evidence that the area was frequented by drug users.

In the present case, the jury found credible the testimonies of the State’s witnesses that Henry admitted to owning the large amount of crack cocaine found in his constructive possession, i.e., in his hotel room. Henry presented his hotel key to the detectives. Under the facts of this case, regardless of information given by the confidential informant, the jury could have reasonably found that Henry was in constructive possession of the cocaine.

Further, the State proved Henry’s specific intent to distribute the drugs. “Specific criminal intent is ‘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.’ ” LSA-R.S. 14:10(1). Specific intent is a legal conclusion to be determined by the trier of fact. Specific intent to distribute may be inferred from the circumstances of a transaction and from the actions of the defendant. A defendant’s intent to distribute may be established by proving circumstances surrounding the defendant’s possession, which gave rise to an inference of such intent. These circumstances include: (1) the defendant’s previous attempts to distribute; (2) whether the drugs are packaged in a form consistent with distribution; (3) the amount of the drugs seized; (4) expert testimony indicating the amount of the drugs recovered is not consistent with personal use; and (5) paraphernalia evidencing an intent to distribute, i.e., scales and plastic bags. Drug paraphernalia such as a scale indicates that the defendant possessed with intent to distribute. The defendant’s possession of large sums of |incash may also be considered circumstantial evidence of intent to distribute. In the absence of these circumstances from which an intent to distribute may be inferred, the mere possession of drugs does not evidence intent to distribute, unless the quantity is so large that no other inference is possible.

In the present case, Detective Klein testified that a large amount of seized drugs, i.e., a gross weight of 30 grams and a net weight of approximately 28 grams, as well as the combination of drug paraphernalia recovered and seized, was consistent with possession with intent to distribute, not a simple possession. Detective Klein opined that the 28 grams of powdered cocaine package for resale would have a street value of approximately $1,960.

In addition, in the search incident to arrest, Henry was found to be in possession of $1,040 in currency. Detective Klein testified that the currency found on Henry was a secondary element that, along with the drug paraphernalia, was consistent with possession with intent to distribute, especially since Henry was unemployed and could not explain where he got the money. Based on the evidence provided by the State, the jury could have reasonably found that the paraphernalia and amount of drugs found, as well as the currency found on Henry, were consistent with possession with intent to distribute, not with personal use as suggested by Shipman.

Stanley next urges that the trial court erred in denying his motion in limine to prevent the introduction of hearsay statements. He argues that he was denied his Sixth Amendment right to confront and cross-examine the confidential informant, claiming that the information provided by the confidential informant was not introduced, as suggested by the State, to explain the course of the police investigation.

|nOn the second day of trial, before the first witness was called, the defense made an oral motion in limine. The defense alleged that the tip received by the police, about a black male named “Shadow” selling drugs at the Quality Inn motel where he subsequently was arrested, was testimonial hearsay under Crawford v. Washington because it was being offered for the truth of the matter asserted. The State claimed that the information was res gestae and asserted that the information was being offered to explain the progress of the narcotics investigation and the reason that the police began their surveillance at the particular location and identified Henry as a suspect. The trial judge allowed the State to present the information for the purpose it asserted.

A law enforcement officer may testify about information provided by another individual without it constituting hearsay if it is offered to explain the course of the police investigation and the steps leading to the defendant’s arrest. A law enforcement officer’s testimony about statements made to him by other persons involved in the case in order to explain their actions are not hearsay. Instead, these statements often fall under the res gestae exception and are admissible, not to prove the truth of the statement being made, but rather to explain the sequence of events leading to the arrest of the defendant.

However, a law enforcement officer’s testimony may not be used to introduce the content of an informant’s tip because it violates the defendant’s right to confront and cross-examine his accusers. In addition, an officer cannot testify that he acted on information obtained during the investigation as an indirect |12method of introducing the substance of out-of-court assertions of the defendant’s guilt that would otherwise be barred by the hearsay rule.

Even when hearsay evidence has been erroneously admitted, the verdict will not be reversed if the reviewing court, assuming that the damaging potential of the improperly admitted evidence is fully realized, determines that the error was harmless beyond a reasonable doubt. Reversal is mandated only when there is a reasonable possibility that the evidence might have contributed to it. Confrontation errors are also subject to a harmless error analysis. A guilty verdict may also stand if the reviewing court determines that it is surely unattributable to the confrontation error. Factors to be considered in determining that the verdict was surely unattributable to the error include the importance of the evidence to the State’s case, whether the testimony was cumulative, the presence or absence of additional corroboration of the evidence, the extent of cross-examination permitted, and the overall strength of the State’s case.

In the present case, Detective Klein testified that the confidential informant described the individual, “Shadow,” his street name known to Detective Klein, as a tall black male of medium build with short hair. During his testimony, Detective Klein testified that “the plan was as soon as that [sic] we saw Shadow, we were going to approach him.” When asked, “And who was that individual? Do you see him court [sic]?” Detective Klein identified Henry in court, as a “short hair, black individual,” a description similar to that provided by the confidential informant. In the context of the instant trial, this testimony was used to show not only why the officers acted as they did, but also to bolster the State’s case, since this | ^information was not needed to explain the course of the investigation. However, the erroneous admission of this hearsay testimony, as well as any confrontation error was harmless because the State’s case was not based on the confidential informant’s statement and, therefore, it did not contribute to the guilty verdict. Rather, the State presented evidence that Henry constructively possessed cocaine with intent to distribute through witness testimony, i.e., that Henry consented to the search of his room, that he admitted ownership of the drugs and paraphernalia found in the motel room to which he had a key, and that the quantity of drugs found in the room and the unexplained money found on Henry was consistent with intent to distribute. This assignment of error is without merit.

In the next assignment of error, Henry claims that the trial court erred in not reading the entirety of LSA-R.S. 14:27 because he was entitled to have the jury instructed with the law pertaining to every aspect of the case arguably supported by the evidence. Specifically, he contends that the trial court erred in not reading subsection “B” of the statute, which contains an example of an attempt to commit a felony. Henry asserts that the example contained in the subsection would have aided the jury because the fact that Henry was found (allegedly) “lying in wait [in the rear parking lot of the motel] to possess cocaine with the intent to distribute” is analogous to the example given in subsection “B” of the statute in which “a person [lies] in wait with a dangerous weapon with the intent to commit a crime.”

“Attempted possession” is a responsive verdict to the statute under which Henry was charged. In its original instructions, the trial judge charged the jury with the law that was applicable to the responsive verdict of attempted possession with intent to distribute, tracking the language of LSA-R.S. 14:27(A) and part of subsection “B” of that statute, which states that “[m]ere preparation to commit a |14crime shall not be sufficient to constitute an attempt.” During the jury charge conference, after reviewing the jury instructions, the defense made no objection. Subsequently, during its deliberations, the jury made the following request of the trial court judge: “We need another definition of number two on the responsive verdicts, guilty of attempted possession with intent to distribute cocaine. Please give an example.”

The trial judge and both counsel initially agreed that the jury could not be given a factual example. The State requested that the same jury charge be read to the jury. Defense counsel requested that, in addition, the trial judge read subsection “C” of LSA-R.S. 14:27. Although the State noted that the defense request would give the jury more than what was requested, the trial judge determined that a reading of subsection “C” was appropriate. The trial judge stated, “I’ll tell you that in most of the charges on drug cases, [LSA-R.S. 14:27(C) ] is included in the charge. It was not included in this charge.”

When asked by the trial judge about reading the example given in LSA-R.S. 14:27(B), defense counsel stated that he had no objection, but the State claimed the example in LSA-R.S. 14:27(B) involving a dangerous weapon would be misleading as it had nothing to do with the facts presented in the case. The trial judge determined that he was not going to read the example because the jury might be confused.

The trial judge is required to charge the jury with the law that is applicable to the case. This requirement includes all other offenses for which the accused may be convicted by responsive verdict. The trial judge’s failure to give a requested jury instruction constitutes reversible error only when there is a 115miscarriage of justice, prejudice to the substantial rights of the accused, or substantial violation of a constitutional or statutory right. Erroneous jury instructions are subject to harmless error review.

LSA-R.S. 14:27(B) states:

(1) Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.
(2) Further, the placing of any combustible or explosive substance in or near any structure, watercraft, movable, or forestland, with the specific intent eventually to set fire to or to damage by explosive substance such structure, watercraft, movable, or forestland, shall be sufficient to constitute an attempt to commit the crime of arson as defined in R.S. 14:51 through 53.

In this case, the facts presented at trial did not include any reference to a dangerous weapon or arson. Therefore, the trial court correctly found that the entirety of subsection “B” of LSA-R.S. 14:27 was not applicable in the present case because the facts did not involve the use of a dangerous weapon or arson. We discern no injustice or prejudice to Henry in the present case.

Based on the previous assignments of error, Henry urges that the trial court erred in denying his motion for new trial and/or motion for post-verdict judgment of acquittal. A post-verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty. La. C.Cr.P. art. 821(B). In light of our disposition of these errors, we find the court did not err in denying the motions.

Henry further urges that the trial court abused its discretion in sentencing him to thirty years. He asserts that his thirty-year, second-felony offender sentence's excessive, even though it is within the statutory guidelines, because it imposes needless suffering upon him, arguing that the trial court neither considered any aggravating or mitigating factors nor gave reasons pursuant to LSA-C.Cr.P. art. 894.1 for the habitual offender sentence imposed.

In the present case, during the multiple offender sentencing hearing, the trial judge informed Henry of the sentencing range of fifteen to sixty years as well as of the thirty-year sentence that he would receive upon acceptance of his admission to being a second felony offender. Henry responded affirmatively that he understood both. The trial judge imposed the thirty-year sentence in conformity with the sentencing agreement. On the same day, Henry signed a “Waiver of Rights—Plea of Guilty Multiple Offender—La. R.S. 15:529.1” form and initialed next to the section in which he was informed of the sentencing range of fifteen to sixty years and of the thirty-year sentence that he would receive.

Under La.C.Cr.P. art. 881.2(A)(2), a defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. This Court has applied this provision to cases in which a defendant admits to the allegations in a habitual offender bill of information as part of a sentencing agreement. When a specific sentence has been agreed to as part of a plea agreement, that sentence, imposed within the agreed upon range, cannot be appealed as excessive and there is no need for the trial judge to give reasons for the sentence pursuant to LSA-C.Cr.P. art. 894.1.

Since Henry’s sentence was imposed in conformity with the sentencing agreement at the time of the habitual offender admission, and the imposed thirty-[year17 sentence was within the agreed upon range, Henry is barred from challenging his sentence as excessive.

The record was reviewed for errors patent. In the present case, the multiple offender commitment/minute entry and the multiple offender sentencing transcript are inconsistent. The multiple offender commitment/minute entry indicates that Henry was informed of his Boykin rights, rather than his habitual offender rights, pursuant to LSA-R.S. 15:529.1. However, the multiple offender hearing transcript, as well as the “Waiver of Rights-Plea of Guilty Multiple Offender— La. R.S. 15:529.1” form, reveal that Henry was properly informed of his habitual offender rights.

When there is a discrepancy between the transcript and the minutes, the transcript governs. Clerical errors in the commitment should be amended, even though they do not cause prejudice to a defendant’s rights and, therefore, merit reversal. Therefore, we remand this matter and order the trial court to correct the multiple offender commitment/minute entry to reflect that Henry was informed of his habitual offender rights before admitting to the allegations.

Additionally, in the present case, the law in effect at the time Henry committed the offense, LSA-R.S. 40:967(B)(4)(b), required that a defendant convicted of possession with intent to distribute cocaine be imprisoned “at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence .... ” Here the judge ordered that Henry’s habitual offender sentence be served without benefit of probation or suspension of sentence, as provided in La. R.S. 15:529.1(G), but did not impose the additional restriction of parole on the first |18two years of the sentence as prescribed by the underlying statute. Therefore, Henry’s sentence is illegally lenient. Neither Henry nor the State objected below, and the issue is not raised on appeal. However, an illegally lenient sentence can be noticed or recognized by the appellate court sua sponte without the issue being raised by the State in the trial court or on appeal.

Pursuant to La. R.S. 15:301.1, a statute’s requirement that a defendant be sentenced without benefit of parole, probation, or suspension of sentence is self-activating. Therefore, this error patent requires no corrective action to impose the restriction on Henry’s right to parole.

For the foregoing reasons, the conviction and sentence are affirmed. The matter is remanded to the trial court to amend the multiple offender commitment/minute entry as stated above.

AFFIRMED.

      . La. R.S. 40:967(A)(2); State v. Fisher, 03-326 (La.App. 5 Cir. 7/29/03), 852 So.2d 1075, 1079, writ denied, 03-2545 (La.5/14/04), 872 So.2d 510; State v. Robinson, 02-1253, p. 4 (La.App. 5 Cir. 4/8/03), 846 So.2d 76, 80, writ denied, 03-1361 (La.11/26/03), 860 So.2d 1131.

      . State v. Manson, 01-159 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 761, cert. denied, 01-2269 (La.9/20/02), 825 So.2d 1156.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

      . State v. Brown, 03-581, p. 10 (La.App. 5 Cir. 11/12/03), 861 So.2d 644, 651, writs denied, 03-3407 (La.4/2/04), 869 So.2d 875 and 04-49 (La.4/2/04), 869 So.2d 877.

      . State v. Flagg, 01-65 (La.App. 5 Cir. 7/30/01), 792 So.2d 133, 140, writ denied, 01-2534 (La.9/20/02), 825 So.2d 1159.

      . State v. Walker, 03-188 (La.App. 5 Cir. 7/29/03), 853 So.2d 61, 65, writ denied, 03-2343 (La.2/6/04), 865 So.2d 738.

      . Id.

      . Id. (citing State v. Gentras, 98-1095 (La. App. 5 Cir. 3/30/99), 733 So.2d 113, writ denied, 99-1302 (La.10/15/99), 748 So.2d 464).

      . State v. Hollingsworth, 07-691 (La.App. 5 Cir. 12/27/07), 975 So.2d 31.

      . State v. Lewis, 04-1074 (La.App. 5 Cir. 10/6/05), 916 So.2d 294, writ denied, 05-2382 (La.3/31/06), 925 So.2d 1257.

      . Id.

      . State v. Robinson, 02-1253 (4/8/03), 846 So.2d 76.

      . Id.

      . Id.

      . See, State v. Trahan, 425 So.2d 1222 (La.1983).

      . State ex rel. B.L., 02-923 (La.App. 5 Cir. 1/28/03), 839 So.2d 246.

      . Id.

      . 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

      . State v. Addison, 05-378 (La.App. 5 Cir. 12/27/05), 920 So.2d 884, writ denied, 06-1087 (La.11/9/06), 941 So.2d 36.

      . State v. Smothers, 05-781, p. 7 (La.App. 5 Cir. 3/28/06), 927 So.2d 484.

      . State v. Addison, supra.

      . Id.

      . Id.

      . Id.

      . Id.

      . Compare, State v. Smothers, 05-781 (La. App. 5 Cir. 3/38/06), 927 So.2d 484.

      . Compare, State v. Addison, supra.

      . La.C.Cr.P. art. 802(1); State v. Lawson, 08-123 (La.App. 5 Cir. 11/12/08), 1 So.3d 516, 527.

      . State v. Simmons, 01-293 (La.5/14/02), 817 So.2d 16 (citing State v. Wilson, 315 So.2d 646, 649 (La.1975)).

      . State v. Lawson, supra.

      . State v. Eskano, 00-101 (La.App. 5 Cir. 1/30/01), 779 So.2d 148.

      . State v. Bolton, 02-1034 (La.App. 5 Cir. 3/11/03), 844 So.2d 135, writ denied, 03-1159 (La. 11/14/03), 858 So.2d 417.

      . State v. Martin, 02-897 (La.App. 5 Cir. 1/28/03), 839 So.2d 256.

      . Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279 (1969).

      . State v. Delagardelle, 06-898 (La.App. 5 Cir. 4/11/07), 957 So.2d 825, writ denied, 07-1067 (La.11/21/07), 967 So.2d 1154.

      . See, State v. Converse, 03-711 (La.App. 5 Cir. 12/30/03), 864 So.2d 803, writ denied, 04-195 (La.6/4/04), 876 So.2d 74.


source: Caselaw Access Project

author: EDWARD A. DUFRESNE, JR., Chief Judge.

license: Public Domain

text:
    NORDIC KITCHENS & BATH, INC. v. Don and Stacy LUDLOW.
    No. 09-CA-258.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.
    Edward P. Gothard, Nowalsky, Bron-ston & Gothard, Attorney at Law, Metair-ie, LA, for Plaintiff/Appellee.
    Charles V. Cusimano, III, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   EDWARD A. DUFRESNE, JR., Chief Judge.

|2This is an appeal by Don and Stacy Ludlow, defendants-appellants, from a default judgment in favor of Nordic Kitchens & Baths, Inc, plaintiff-appellee, in this suit on open account. For the following reasons we remand the matter to First Parish Court for a hearing on the peremptory exception of prescription which was raised for the first time in this court.

The pertinent facts are these. Plaintiff sold to defendants a dishwasher and a stove cook top and hood. Invoices show that the sales were on March 19, 2004, and September 25, 2004, respectively. Plaintiff filed suit on open account on January 7, 2008, more than three years after the sales. A default judgment was entered on February 5, 2009. Defendants appealed this judgment and urged in this court a peremptory exception of prescription.

Article 3494(4) of the Civil Code provides that actions on open account prescribe in three years. It is further the law that although the exceptor bears the burden of proof on trial of the exception, where prescription is evident on the face of the pleading the burden shifts to the plaintiff to show that the action has not prescribed. Carter v. Haygood, 2004-0646 (La.1/19/05), 892 So.2d 1261. ^Finally, La. Code Civ. Pro. Art. 2163 provides that when an exception of prescription in urged for the first time in the appellate court, the plaintiff may demand that the matter be remanded for trial of the exception.

Here, the three year prescription is evident on the face of the pleadings. Plaintiff asserts in brief that prescription has not run, and has requested that the matter be remanded for trial of the exception. We hereby grant that request.

For the foregoing reasons the matter is remanded to First Parish Court for the Parish of Jefferson for trial of the exception of prescription.

REMANDED.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Michelle MARTORANA, Appellant.
    No. 44,863-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      Louisiana Appellate Project by W. Jarred Franklin, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Charles A. Smith, Edward C. Jacobs, Assistant District Attorneys, for Appellee.
    Before STEWART, PEATROSS and LOLLEY, JJ.
   STEWART, J.

|, Defendant, Michelle Martorana, seeks review of the sentence imposed for her conviction of attempted second degree murder pursuant to La. R.S. 14:27 and 14:30.1. The trial court imposed a sentence of 48 years at hard labor to be served without the benefit of parole, probation or suspension of sentence. Martorana now appeals, claiming that her sentence is excessive. Finding no error, we affirm the trial court’s decision.

FACTS

On September 15, 2007, Martorana called 911 to report that her 17-day-old infant daughter had choked on baby formula and was not breathing. When paramedics and sheriff deputies arrived, they found the infant not breathing and without a pulse. The child was transported to Christus Schumpert Sutton’s Children’s Hospital, where a further examination of the child revealed that she had suffered a fractured skull and two fractures to one of her forearms. While the infant was being kept alive on a ventilator, a neurologic test for brain activity reported that the child’s brain activity was consistent with brain death.

On September 17, 2007, deputies from the Bossier Sheriffs Office interviewed Martorana after advising her of her Miranda rights and after her waiver of those rights. During the interview, Martorana admitted that two days prior she had been home with her newborn daughter who would not stop crying. Claiming that she was unable to soothe the crying infant, Martorana got upset and frustrated with her child and threw her across the room onto a sofa bed. The baby bounced off of the sofa bed and onto the floor, hitting her head. Martorana, who stated that she was still angry, then | ¿jerked the child off the floor by one of her arms and felt the child’s arm break. She then tried to feed the infant and realized she was not breathing. She called 911 when her attempts to resuscitate the child failed. After the interview, Martorana was arrested on charges of second degree cruelty to a juvenile and second degree battery.

On September 19, 2007, Martorana’s infant daughter died while still on life support. Her body was transported to Little Rock, Arkansas for an autopsy the next day. The medical examiner, Dr. Peretti, contacted the Bossier Parish Sheriffs office and related that the baby had a massive skull fracture resulting from blunt force trauma and that her arm was broken in two places.

On October 16, 2007, the grand jury returned a bill of indictment charging the defendant with first degree murder. A sanity commission consisting of Dr. George Seiden and Dr. Mark Vigen was appointed at the request of Martorana. The commission unanimously reported that Martorana was competent to stand trial and that she would have been able to distinguish right from wrong at the time of the instant offense.

On December 19, 2008, Martorana pled guilty to the reduced charge of attempted second degree murder, a violation of La. R.S. 14:27 and 14:30.1, with the benefit of a pre-sentence investigation. After the court informed her of all the applicable constitutional rights and ensured that she knowingly and intelligently waived those rights, the state supplied the factual basis for the plea largely consisting of her confession as to her conduct. Additionally, the state added that Dr. Peretti opined that the [..¡massive skull fracture suffered by the child had to be the result of blunt force trauma such as being slammed against a solid object or stepping on the skull. Dr. Peretti did not believe the injuries could be explained by the events recounted by the defendant. When she was asked again whether she admitted to the described conduct, the defendant answered affirmatively, and responded “guilty” when asked how she wished to plead to the amended charge. The court then ordered a pre-sentence investigation.

On March 3, 2009, the court sentenced the defendant to 48 years at hard labor to be served without the benefit of parole, probation or suspension of sentence. No motion to reconsider sentence was filed. Defendant now appeals.

LAW AND DISCUSSION

In her sole assignment of error, Martorana argues that the sentence imposed by the trial court was excessive based on her social and criminal history and as it compares to the sentences of others for similar convictions. As we stated above, she failed to file a motion to reconsider sentence.

When a defendant fails to timely file a La. C. Cr. P. art. 881.1 motion to reconsider sentence, the appellate court’s review is limited to the bare claim that the sentence is constitutionally excessive. State v. Jones, 41,449 (La.App. 2d Cir.9/20/06), 940 So.2d 61; State v. Duncan, 30,453 (La.App. 2d Cir.2/25/98), 707 So.2d 164. The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. Kennedy, 42,850 (La.App. 2d Cir. 1/9/08), 974 So.2d 203. Constitutional review turns upon |4whether the sentence is illegal, grossly disproportionate to the severity of the offense, or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. Livingston, 39,390 (La.App. 2d Cir. 4/6/05), 899 So.2d 733.

A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980).

Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Montelbano, 44,405 (La.App. 2d Cir. 6/24/09), 15 So.3d 1227; State v. Germany, 43,239 (La.App. 2d Cir.4/30/08), 981 So.2d 792; State v. Black, 28,100 (La.App. 2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430.

Absent a showing of manifest abuse of discretion, this court will not set aside a sentence as excessive. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7. On review, the appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

The sentence for attempted second degree murder is imprisonment at hard labor for not less than 10 years, nor more than 50 years, without benefit | ¡¡of parole, probation or suspension of sentence. La. R.S. 14:30.1; La. R.S. 14:27(D)(l)(a).

In the instant case, the trial court considered both the PSI and Dr. Vigen’s report and its recounting of Martorana’s unstable upbringing. She had a volatile relationship with her infant daughter’s father who was a physically abusive drug user. The court also noted her long-term struggle with mental health issues, which included bipolar disorder, attention-deficit/hyperactive disorder (ADHD), borderline mental retardation, depression, and anxiety attacks. After determining that these factors, along with her nonexistent criminal history, were mitigating factors, the trial court nevertheless sentenced her to the near maximum sentence of 48 years at hard labor without the benefit of probation, parole, or suspension of sentence. The trial court explained that any lesser sentence would deprecate the seriousness of her offense, in which an infant was killed, and that she had received a substantial benefit in pleading to a lesser offense. We agree with the trial court’s sentence.

After reviewing the record to determine whether the sentence imposed is grossly out of proportion to the seriousness of the offense, we conclude that it is not. At the very least, the defendant inflicted skull fractures to her infant daughter by throwing her across a room onto a sofa and ultimately the floor before jerking her up and inflicting two fractures to her forearm. Dr. Peretti reported that the injury-causing trauma had to be more severe than that admitted to by the defendant. It is clear that Martorana’s conduct is not properly described by the offense of conviction.

|fiThe trial court properly advised Marto-rana of the minimum and maximum sentences that she could receive, the sentencing range under her plea agreement, and her constitutional rights. She was represented by counsel, clearly expressed her understanding, and voluntarily entered her plea. The offense originally charged carried at least a mandatory life sentence and, therefore, the defendant received a substantial benefit as the result of her plea. The sentence imposed is not constitutionally excessive.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: MARC E. JOHNSON, Judge.

text:
    LaROCCA'S AUTO SALES FLOORPLAN, INC. v. Greg SHELTON, Chanon Ingles, PC & T-105, L.L.C. d/b/a Performance Cars & Truck Company, Anita C. Tijerina, Theresa Walker, Erika Ruvalcaba, New Texas Auto Auction Services, L.P., d/b/a DFW Auto Auction and Kimberly Sayes.
    No. 09-CA-143.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 4, 2009.

      Robert G. Harvey, Sr., Justin A. Zitter, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Martin E. Landrieu, Phillip J. Antis, Jr., Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Brad J. Gegenheimer, Robert W. Grant, Attorneys at Law, Gretna, LA, for Defendant/Appellee.
    Jay M. Lonero, Scot P. Koloski, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

12The Plaintiff, LaRocca’s Auto Sales Floorplan, Inc., appeals a judgment granting an exception of lack of personal jurisdiction to New Texas Auto Auction Services, L.P., d/b/a DFW Auto Auction, Anita Tijerina, Theresa Walker, Erika Ruvalca-ba, and American National General Insurance Company (the Texas Defendants) in a suit involving car titles. We affirm.

In June of 2007, the Plaintiff filed suit against various Defendants alleging that they had engaged in a scheme that resulted in the Plaintiffs loss of security that Plaintiff provided for the purchase of automobiles in Louisiana and Texas. The suit named as Defendants: Greg Shelton, Chanon Ingles, PC & T-105, L.L.C. d/b/a Performance Cars and Truck Company, located in Monroe, Louisiana (Performance);Kimberly Sayes, a notary public in Ouachita Parish in Louisiana (Sayes); and New Texas Auto Auction Services, L.P., d/b/a DFW Auto Auction, |sAnita Tijerina, Theresa Walker, Erika Ruvalcaba, and American National General Insurance Company, residents of Texas (the “Texas Defendants”).

The petition asserts that, in 2004, Performance was engaged in selling used cars and recreational vehicles, and that the Plaintiff and Performance entered into an inventory vehicles agreement, known as a “floorplanning” agreement (the Agreement). Under the Agreement, the Plaintiff advanced money for vehicles that Per-formanee located and purchased. The Plan included vehicles obtained from the Dallas-Fort Worth Auto Auction in Texas. After the vehicles were acquired with the money provided by the Plaintiff, the Plaintiff held the titles as a security lien. Performance was also required to execute and file a UCC-A financing statement. After the vehicles were sold, Performance repaid the Plaintiff and the Plaintiff then returned the title on that vehicle.

The Plaintiff alleges that the program did well for eighteen months, but in June, July and August of 2006, checks issued by Performance were returned by the bank for insufficient funds (NSF). As a result, the Plaintiff allegedly performed an audit of the vehicle inventory, and discovered that many of the floorplanned vehicles were not accounted for, and were either hidden from the floorplanned property or sold. The Plaintiff contended that the owners of Performance refused to divulge the location of the missing vehicles.

The Plaintiff further alleged that after further investigation, it discovered that many consumers that had filed complaints asserting they had not received a title, but later received them. Further, some, if not all, of the vehicles that the Plaintiff was holding the titles on had been sold and new titles issued to Performance without any repayment to the Plaintiff. The Plaintiff asserts that those new titles were “cleaned” or fraudulently issued in a scheme to bypass the Agreement, and to deprive the Plaintiff of the money Performance owed to it.

14The Plaintiff named Sayes and the Texas Defendants in the lawsuit, alleging that they were in collusion with Performance by signing fraudulent affidavits that allowed repossessed vehicles to obtain clear titles.

The Plaintiff further asserts in the petition that the transactions between the Plaintiff and Performance took place at the Plaintiffs “Floorplan” office in Metairie, Louisiana, and that the transactions included the delivery of original Texas titles.

The Defendants filed various and separate exceptions. After a hearing in December of 2007, on December 19, 2007, the trial judge granted Performance’s exception of lis pendens, Sayes’ exception of improper venue, and the Texas Defendants’ exceptions of lack of personal jurisdiction. He subsequently transferred the action against Sayes to Ouachita Parish. All other exceptions were declared moot. The Plaintiff timely filed an appeal.

On appeal, the Plaintiff asserts that the trial judge erred in granting the exception of lack of personal jurisdiction filed by the Texas Defendants.

Due process requires that the defendant must have certain minimum contacts with the forum state in order to subject a nonresident defendant to a personal judgment, such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); A & L Energy, Inc. v. Pegasus Group, 00-3255, p. 4 (La.6/29/01), 791 So.2d 1266, 1270, cert. denied, 534 U.S. 1022, 122 S.Ct. 550, 151 L.Ed.2d 426 (2001); Ruppert v. George Kellett & Sons, Inc., 08-182, p. 8 (La.App. 5 Cir. 9/30/08), 996 So.2d 501, 506.

There are two parts to the due process test-“minimum contacts” and “traditional notions of fair play and substantial justice.” A & L Energy, Inc., 00-3255 at 4-5, 791 So.2d at 1270-71; Ruppert, 08-182 at 8, 996 So.2d at 506.

| r)The Courts have held that the minimum contacts prong is satisfied “by a single act or actions by which the defendant ‘purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.’ ” Southeast Wireless Network, Inc. v. U.S. Telemetry Corp., 06-1786, p. 4 (La.4/11/07), 954 So.2d 120, 125, citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985); Ruppert, 08-182 at 8, 996 So.2d at 506. “Purposeful availment” must be such that the defendant “should reasonably anticipate being haled into court” in the forum state. Southeast Wireless Network, Inc., 06-1736 at 5, 954 So.2d at 125, citing Ruckstuhl v. Owens Corning Fiberglas Corporation, 98-1126 (La.4/13/99), 731 So.2d 881, cert. denied, 528 U.S. 1019, 120 S.Ct. 526, 145 L.Ed.2d 407 (1999); Ruppert, 08-182 at 8, 996 So.2d at 506. “Purposeful availment” ensures that the moving party will not be haled into a jurisdiction solely as a result of a random, fortuitous or attenuated contact, or by the unilateral activity of another party or a third person. Southeast Wireless Network, Inc., 06-1736 at 5, 954 So.2d at 125. (Citations omitted); Ruppert, 08-182 at 8, 996 So.2d at 506.

The Southeast Wireless Network court explained:

If the defendant deliberately engages in significant activities within a state, or creates continuing obligations between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there. Because his activities are shielded by the benefits and protections of the forum’s laws, it is presumptively not unreasonable to require the defendant to submit to the burdens of litigation in that forum.

Southeast Wireless Network, Inc., 06-1736 at 5, 954 So.2d at 125, citing de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103, 106 (La.1991).

The foreseeability of causing an injury in another State is not a “sufficient benchmark” for exercising personal jurisdiction, Burger King Corp. v. Rudzewicz, 471 U.S. at 474, 105 S.Ct. at 2174; Ruppert, 08-182 at 8, 996 So.2d at 506. The foreseeability that is critical to due process analysis is whether the defendant’s conduct and connection with the forum State are such that he should reasonably | (¡anticipate being haled into court there. World-Wide Volkswagen Corp. v. Woodson, 444 U.S., 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980); Ruppert, 08-182 at 9, 996 So.2d at 507.

The second part of the due process test centers around the fairness of asserting jurisdiction over the defendant. Ruppert, 08-182 at 9, 996 So.2d at 507. Even when minimum contacts exist, the exercise of personal jurisdiction over a nonresident defendant will fail to satisfy due process requirements if the assertion of jurisdiction offends “traditional notions of fair play and substantial justice.” A & L Energy, supra, 00-3255 at 4, 791 So.2d at 1271, citing International Shoe, 326 U.S. at 316, 66 S.Ct. at 158; Ruppert, 08-182 at 9, 996 So.2d at 507.

There are two types of personal jurisdiction — “general” and “specific” jurisdiction. de Reyes, 586 So.2d at 105; Ruppert, 08-182 at 9, 996 So.2d at 507.

Specific jurisdiction is appropriate when that defendant has purposefully directed its activities at residents of the forum state and the litigation results from alleged injuries that arise out of or relate to those activities. A & L Energy, supra, 00-8255 at 5-6, 791 So.2d at 1271 citing Burger King, 471 U.S. at 473, 105 S.Ct. at 2182 n. 15; Ruppert, 08-182 at 9, 996 So.2d at 507.

General jurisdiction attaches where the nonresident defendant’s contacts with the forum state, although not related to the plaintiff’s cause of action, are continuous and systematic. A & L Energy, supra, 00-3255 at 5-6, 791 So.2d at 1271; Ruppert, 08-182 at 9, 996 So.2d at 507.

In the scenario alleged by the Plaintiff, Performance located and purchased vehicles from the Dallas-Fort Worth Auto Auction in Texas. After the vehicles were acquired, the Plaintiff would hold the titles until Performance paid the money that the Plaintiff had extended for the purchases. The Plaintiff contends that the Texas Defendants colluded with Performance to deprive the Plaintiff of its repayments by providing numerous buyers of the vehicles titles that were fraudulently “cleaned” by employees of the Texas Defendants, as well as by | ./Performance. The Plaintiff asserts that these actions constitute sufficient contacts to satisfy the due process requirements of minimum contacts. It additionally asserts that fairness dictates that the Texas Defendants be subject to the jurisdiction of the Louisiana courts.

In Smith Stag, L.L.C. v. Wilson & Meyer Custom Theater Interiors, L.L.C., 08-1251 (La.App.4 2/18/09), 6 So.3d 921, property owners brought an action against Lakeside, a Texas bank, under the doctrine of respondeat superior and negligent supervision of its employee who allegedly fraudulently diverted the property owners’ wire transfers. The wire transfers originated in Louisiana as payments to two of the defendants for their contractor and renovation work on various properties located in Louisiana and Florida. The Plaintiffs alleged that two of the defendants took their money but failed to provide the services for which the payments were intended. The Plaintiffs further alleged that, after the transfers were processed, an employee of the bank and another co-defendant diverted the money into an account controlled by the contractors/renovators. The bank had only one office in Texas.

After considering the bank’s exception of lack of personal jurisdiction, the court found no personal jurisdiction. The court stated:

The trial court properly found that plaintiffs did not and could not sustain their burden of establishing sufficient minimum contacts to exercise either specific or general personal jurisdiction over Lakeside. Lakeside has but one office, which is located in Texas. It does not do business in Louisiana, has no office in Louisiana, has no employees in Louisiana, and has no assets in Louisiana. Lakeside does not advertise in Louisiana and does not solicit customers in Louisiana. In short, Lakeside is a local, independent bank serving the citizens of Rockwall County, Texas with no connection to the state of Louisiana whatsoever.
Plaintiffs’ cause of action against Lakeside is based solely on the alleged actions of Melinda Wilson, a Lakeside employee. Melinda Wilson is a Texas domiciliary and resident and has no contacts with Louisiana. In this matter, her only alleged role was transferring funds in Texas, after plaintiffs voluntarily transferred funds from Louisiana to Texas, from the account of Wilson & Meyer, a Texas limited liability company, to the account of Michael Wilson, a domiciliary and resident of Texas. Plaintiffs do |snot allege that Lakeside or Melinda Wilson conducted any activities in Louisiana regarding the issues that form the basis of this lawsuit. Therefore, the alleged negligent acts for which plaintiffs seek to hold Lakeside responsible occurred in Texas, not Louisiana.

Smith Stag, L.L.C., 08-1251 at 3-4, 6 So.3d at 924, citing Drake v. Laboratory Corp. of America, 2007 WL 776818 (E.D.N.Y.Mar.13, 2007).

In Simmons v. Templeton, 684 So.2d 529, 536 (La.App. 4 Cir.1996), stock sellers brought suit against a buyer’s directors, law firm, and accounting firm, claiming fraud, misrepresentation, conspiracy and self-dealing. The district court judge granted an exception to personal jurisdiction in favor of the nonresident directors and law firm, and granted exception to venue in favor of accounting firm. On appeal, the Plaintiffs argued, inter alia, that the law firm was subject to personal jurisdiction because of a presumption that the law firm received substantial payments for those services. The court of appeal disagreed because the law firm had no connection to the transaction giving rise to the suit, and the petition did not contain any allegations showing any minimum contacts between the firm and Louisiana. The court found that personal jurisdiction over the law firm would not comport with constitutional concerns of fair play and substantial justice because it would be based on “random, fortuitous, or attenuated conduct,” or “the unilateral activity of another party or third person.” Simmons, 684 So.2d at 536.

In this case, the Texas Defendants did not act within the state of Louisiana, even though their alleged co-conspirators did. They did nothing to purposefully avail themselves of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. See, Burger King Corp. 471 U.S. at 475, 105 S.Ct. at 2183; Ruppert, 08-182 at 8; 996 So.2d at 506. Under these facts, the reasoning in Drake, Smith Stag, L.L.C. and Simmons applies. Thus, we find that there are insufficient minimum contacts for the Louisiana courts to obtain personal jurisdiction over the Texas Defendants. Accordingly, the trial judge did not err in sustaining the exception of lack of personal jurisdiction.

1 ^Accordingly, the judgment granting the exception of lack of personal jurisdiction is hereby affirmed. Costs of this appeal are to be paid by the Appellant.

AFFIRMED.

      . The Plaintiff settled its suit against Performance and against Kimberly Sayes while this appeal was pending.


author: GREMILLION, Judge.

text:
    Wilma Young BAKER, et al. v. John Burr BAKER, Jr., et al.
    No. CA 09-507.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.
    Writ Denied Feb. 12, 2010.

      John Charles Anderson, Anderson Law Firm, LLC, Baton Rouge, LA, Danielle M. Ross, Sessions, Fishman, Nathan & Israel, LLP, New Orleans, LA, for Defendants/Appellants: John Burr Baker, Jr., Alta Baker.
    Jude Christopher Bursavich, Breazeale, Sachse & Wilson, Baton Rouge, LA, for Plaintiffs/Appellees: Wilma Young Baker Succession of John Burr Baker, Sr.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

|]The defendants, John Burr Baker, Jr. (Johnny) and Alta Baker, appeal the judgment of the trial court in favor of the plaintiffs, Wilma Young Baker and the Succession of John Burr Baker, Sr. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2006, Wilma, the mother of Johnny, and the Succession of John, Sr. filed a petition for the return of $1,592,500 in loans made to her son and his wife, Alta, prior to her husband’s death in May 2003. Johnny and Alta vehemently deny that the monies were loans and instead claim that they were donations. Extensive litigation followed, including a petition filed by Johnny to have his mother disinherited. Shortly before the trial commenced, Johnny filed a renewed motion on peremptory exception of prescription and for directed verdict. A four-day trial was held over a time period from January 2008 through August 2008. In its January 2009 judgment, the trial court found that $1,492,500 were loans that had to be repaid by Johnny and Alta. The defendants filed various exceptions following the trial, and the plaintiffs filed a motion to strike testimony from the defendants’ post-trial memorandum which was ruled inadmissable at trial. The defendants’ exceptions were denied, and the plaintiffs’ motion to strike was granted. Johnny and Alta now appeal and assign as error:

1. The trial court’s findings that the monies given were loans as opposed to gifts or reimbursements.
2. The trial court’s finding that the total amount of money |2received was $1,492,500 because that number is an arithmetic error.
3. The trial court’s finding that the claims had not prescribed.
4. Alternatively, if all claims had not prescribed, the trial court’s finding that an acknowledgment only to one creditor interrupted prescription as to the claims of all creditors.
5. The trial court’s exclusion of defendants’ material witness and allowance of plaintiffs’ “surprise” material witness.
6. The trial court’s refusal to consider their defense that their alleged debts had been extinguished by specific written and notarized renunciations of those debts.

DISCUSSION

John, Sr. was a successful rice farmer prior to his death. In 1994, John, Sr. entered into a mineral lease in which he held a 20% royalty interest. Prior to the commencement of drilling of the well, he donated portions of his 20% royalty as follows: 5% to his wife, 3% to his son Dr. Tim Baker, 3% to his daughter Beryl Baker Wade, and 3% to the defendant, Johnny, Jr. Since 1994, the well has produced millions of dollars of mineral royalties for all members of the family. Beginning in October 1999, and continuing through March 2003, the deceased made over forty transfers of funds to the defendants totaling over 1.4 million dollars.

The four-day trial consisted of substantial testimony and documentary evidence. Brent Young, a tax lawyer from Shreveport, testified that Wilma is his aunt and John, Sr. was his uncle. He testified that he was very close with his aunt and uncle, socializing with them quite often and even traveling with them on occasion. He stated that he visited them at their home in Gueydan between eight and ten times per year. He testified that he discussed business and investment matters with John, Sr. routinely. Young went on to state that he had a close relationship with Beryl and IsTim, but not Johnny.

Young testified that he prepared tax returns and various legal instruments for many years for his aunt and uncle. He also began the succession proceedings upon John, Sr.’s death. Young next examined some checks that were admitted into evidence. Young said that the checks were issued by either John or Wilma to Johnny individually or Johnny and his wife. He said the total of the checks issued to Johnny and/or Alta was $1,592,500. Young testified that Wilma and John, Sr. indicated that the funds represented loans, and that this information was subsequently confirmed in conversations with Beryl, Tim, and Johnny. Young testified that he had multiple conversations over the years with John, Sr. and Wilma in which the loans were discussed. He even advised the Bakers to use a pad of hand notes in order to have some documentation of the loans.

Young then went on to describe situations in which Johnny acknowledged the nature of the loans. Young said that over lunch Johnny commented on how successful his businesses were and John, Sr. commented that they would not be without his “help.” Young said that Johnny stated that “he was going to care of it,” and would either pay Beryl and Tim directly to even them out or issue stock to them in his business ventures.

Young then discussed the handwritten ledger prepared by John, Sr. listing all of the individual loans made to Johnny and/or Alta. At the point in the ledger in which the total had reached $834,000, John, Sr. placed a handwritten notation stating, “I hope this is all.” Young testified that seven checks were missing from the ledger as they had been issued shortly before John, Sr.’s death. Young then discussed a document he prepared in January 2004 that he sent to Wilma, Johnny,' |4Tim, and Beryl following John, Sr.’s death. The document extensively discusses the tax implications involved in the “cash advances” and “loans” made to Johnny and/or Alta and various scenarios that could occur regarding repayment of the loans. The first scenario addresses “what the final distribution [of John, Sr.’s estate] will look like if Johnny and Beryl repay their loans in full.” The second, if neither repays their loans and the taxes are paid out of the assets of the estate, and the third, a partial repayment. The document addresses a separate loan made to Beryl in the amount of $500,000. Young then discusses the attached Estate Tax Return that he prepared for the federal government which lists the advances totaling $1,592,500 given to Johnny and Alta. Further, the loan made to Beryl was also listed as a “demand loan” or debt due to the decedent. Shortly thereafter, Young received notice that any correspondence should be sent to a CPA, Glenn Thibodeaux, rather than Johnny and Alta. In a letter to Young from Thibodeaux dated February 4, 2004, Thi-bodeaux stated, in reference to the letter Young sent to him:

The letter did not address the loans made to Beryl and Johnnie. Your recent letter INCORRECTLY refers to the interest accruing on those loans. Since no promissory notes exist, at best, these are non-interest bearing loans. The gift loan provisions are an IRS device only, and do not apply to the actual balance of the loans. The IRS rules impute the interest income as phantom income to the recipient and phantom expense to the payer. The resulting phantom gift to the payer is subject to gift tax, paid by the donor. Perhaps you need to also advise your clients about the unpaid gift taxes that are outstanding, and you should also reduce the value of the gross estate by the amount of interest you incorrectly claim is an asset of the estate.

Young testified that a letter that he composed and dated July 15, 2004, along with the succession proceedings, continued to refer to the indebtedness owed by Johnny and Beryl. He stated that he had not “learned anything from anyone” that would give | shim an indication that the monies were to be treated as gifts rather than loans. This document was forwarded to Johnny, requesting his signature so that the succession proceedings could be finalized. However, correspondence dated August 16, 2004 sent to Young from Donald A. Capretz, an attorney, indicated that Johnny did not agree that there is any indebtedness owed by him to his mother and father.

Young composed a letter to Capretz dated August 19, 2004, in which he related that he was “repeatedly and consistently” told by John, Sr. and Wilma that the advances to Johnny would be repaid and that he had “several conversations” with Johnny in which he acknowledged that the loans would be repaid.

Young went on to testify that if the monies advanced to Johnny had been gifts, the Bakers would have been required to pay gift taxes and file gift tax returns, but that this was not done because he was always informed that they were loans.

Wilma, who was eighty-six at the time of trial, testified that the monies given to Johnny were loans and that he promised to pay them back. Wilma said that she and John, Sr. expected Johnny to pay back the loans. She said that she and John, Sr. advised Young to treat the cash advances as loans, not gifts.

Beryl testified that Young has always been close with the family and has taken care of all of her parents’ accounting and legal needs. Beryl testified that there was “never a question” that the monies advanced to Johnny and Alta were loans, not gifts. She said that Johnny told her on several occasions after her father’s death that he would pay back the loans either by paying her and Tim directly or by issuing stock in his company. She said these conversations took place following John, Sr.’s death in May 2003 through November 2003, at which point Johnny and Alta abruptly stopped talking to the rest of the family. She said that Johnny and Alta talked about 16their business “nonstop” and how well it was doing financially and that they were going to pay back the loans. Beryl testified that her father discussed with her that the monies he gave Johnny were loans. She said that her father repeatedly requested that Johnny sign promissory notes, but that Johnny refused to sign the notes. Beryl further said that her mother has consistently acknowledged the monies given as loans, not gifts. She said that Young was present at some of the conversations in which the loans were discussed. Beryl went on to testify that her parents have paid for her children’s school tuition since they were in high school and gave her thirty acres of land twenty-five years ago. She described how she has been the primary caretaker of her parents and the various houses she and her husband have purchased to accommodate her parents. Beryl testified that her father was “very angry” with Johnny at the time he was in the hospital dying because Johnny was not paying back the money as he said he would. Beryl testified that, before Johnny and Alta abruptly stopped speaking to the rest of the family, she would have dinner at her house every night and it was common knowledge and commonly discussed among all the family members that Johnny was to repay the loans. She testified that “you couldn’t be around Johnny and Alta without them discussing their business ad nauseam and how they were going to make a lot of money and pay the money back. It happened all the time.”

Tim, an anesthesiologist, testified regarding conversations he had with his father regarding the money lent to Johnny. Tim testified that in 2001 or 2002, he informed his dad that he believed Johnny had “gotten himself in trouble” and that he needed to “loan him some more money.” He testified that the advances made to Johnny were “frequently” discussed amongst the family members and in Johnny and |7Alta’s presence. He said that both his mom and dad considered the advances loans. Tim further testified that he lent Johnny $50,000 and had to ask three times before the money was returned to him. Tim testified that in his family loans were made without promissory notes. He further testified that his dad was disappointed that Johnny could not live within his budget and that he was afraid Johnny would lose his home if his dad did not lend him some money. Tim testified that he preferred to stay out of this situation as much as possible, but that it was common knowledge amongst everyone that the monies advanced were loans, not gifts.

Johnny testified that prior to his father’s death he stayed at the hospital with him on two or three occasions. Johnny testified that his father was not angry with him and told him that he was giving him the money. Johnny testified that he would shop for his father buying things like diamond bracelets and Rolexes and that his father would issue him checks to reimburse him for the shopping trips. He further testified that his father never asked him to sign a promissory note. Johnny testified that only one of the checks was a loan and that was the one in which his father wrote “loan to Johnny and Alta” in the memo area of the check. Johnny denied ever sitting around the family table making promises to repay loans. He claimed he was out of the country for many months in the middle east performing classified governmental work of a nature he could not discuss. He testified that his father repeatedly told him that he was giving him the money and not to let “anyone shame him about it.”

When questioned about why his CPA, Capretz, referred to the monies as loans three times in his letter to Young, Johnny had no explanation. He further testified that he did not ask that an amended letter be sent out referring to the advances as gifts. He further claimed to have never seen Young’s response letter in | ¿which he stated that it was common knowledge that the advances were loans. Johnny admitted he had no documentation to support his claim that some of the monies were reimbursements, nor could he testify as to certain amounts being reimbursements. Johnny stated that he went to Beryl’s house on the day of the funeral and never returned. He denied regular visits up until late October 2003. Johnny testified that Wilma, Beryl, Tim, and Young were all lying.

Glenn Thibodeaux testified that his letter was not intended to acknowledge the advances as loans, but to point out an error in calculation if they were loans. He admits that his letter does not indicate that the advances might not be loans, but he stated that he was only addressing the tax implications of what was in the returns prepared by Young. Nevertheless, Thibo-deaux stated he did speak with his client, Johnny, before sending out the letter and that Johnny informed him the advances were not loans, but he did not mention that in the letter. Thibodeaux further testified that in January 2004, when he hand-delivered his letter to Beryl’s house, both Beryl and Wilma considered the advances loans. He admitted that Johnny and Alta have never disputed the receipt of the funds, just the nature of the funds as gifts rather than loans. Thibodeaux testified that Johnny hired Capretz as an expert to determine if the advances were loans or gifts, but that he never gave an opinion and was not present to testify at trial.

Alta testified that the monies were never a loan but were either a gift or to repay her and Johnny for different things. She stated that the money was always given by check and there was never an agreement to pay it back. She said the only exception was for the check that John, Sr. indicated was a loan and that John, Sr. told her the check was for something he asked Johnny to do. She stated that John, Sr. was 19a very generous man and would often give her and Johnny money to give to others. Alta relayed a story in which John, Sr. gifted substantial sums to a seminary student. She further testified that some of the checks were reimbursement for insurance expenses, farm equipment, construction, jewelry, and various personal services. However, Alta admitted she had no documentary evidence to support her reimbursement claims.

Alta claimed Wilma was present at the meeting in which John, Sr. told her that the money was a gift or reimbursement except for the check indicating “loan.” Alta was questioned about the ledger John, Sr. kept in which he wrote “dept” next to the sum owed by Johnny and Alta, which at the time amounted to $1,237,000. Alta said it was not referring to “debt” but “department” as John, Sr. liked to separate his money out into “departments.” She testified that “everything he did was departmentalized so that he knew where the money went[.]”

Rose Mouton, Johnny and Alta’s housekeeper, testified that she began working for them in 2000, and generally cleaned their home three to five times per week. She stated that she witnessed John, Sr. give a check to Johnny on one occasion and that he indicated it was a gift. However, on cross-examination she admitted that she did not remember John, Sr. indicating that it was a gift in her deposition taken in December 2007. In fact, she testified at that time that she was not privy to any conversations and that she “walked away” while the check was being handed over on two occasions.

Regan Wade, Beryl’s daughter, testified that she was a student at Centenary College studying elementary education. She testified that Johnny and Alta maintained contact with the family through the fall of 2003 and she saw them quite Irregularly usually two to three times per week.

The trial court, in its oral reasons, found:

The Court has listened to the testimony of these witnesses, very lengthy testimony, where [sic] that these advances were addressed as loans, and the discussion of how they were going to be paid were discussed among the whole family members over numerous times. This has been verified by the testimony of the family’s attorney, Mr. Young, concerning how these were going to be done, and— and what impresses the Court most is after the death of the decedent the discussion of how these advances were going to be dealt with were loans. At no time did the estate know or become aware that these advances were not loans until Mr. Capretz’ letter specifically stating that his client did not consider them loans.

DONATIONS OR LOANS

We will not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

Id. at 844.

Though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. “[Wjhere two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart v. State Through DOTD, 617 So.2d 880, 883 (La.1993). “[T]he issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Id. at 882.

|nThe issue of whether the monies advanced were a donation or loan is a factual one. A gift may be made to another person “by delivery of the thing to the donee without any other formality.” La. Civ.Code art. 1543. The donee bears the burden of proving, by strong and convincing evidence, that he was the recipient of a gift rather than a loan. See Funderburk v. Funderburk, 214 La. 717, 38 So.2d 502 (La.1949), Succession of Serio, 597 So.2d 91 (La.App. 4 Cir.), writ denied, 600 So.2d 677 (La.1992). We find no error in the trial court’s finding that Johnny and Alta failed to prove that the monies advanced were gifts rather than loans. There was substantial, nearly overwhelming evidence to the contrary. Apart from the testimony, the documentary evidence of the ledger of the decedent and the correspondence from Thibodeaux to Young confirm that everyone considered the advances loans. Johnny and Alta failed to prove that the advances made within three years of John, Sr.’s death were partially gifts and partially reimbursements for various performances by Johnny and Alta over a thirty-year period. Additionally, the testimony of Johnny’s own mother (with whom he maintained a very close relationship through the fall 2003) that the advances were well known amongst the family as loans, is telling. Accordingly, the trial court’s findings are not manifestly erroneous and this portion of the judgment is affirmed.

CALCULATION ERRORS

In this assignment of error, Johnny argues that it was erroneous for the trial court to conclude that the total amount of money received was $1,492,500 because that number is an arithmetic error and should be $1,452,500. Again, we find no error in the trial court’s finding. Young testified that John, Sr. specifically included the disputed $40,000 advance on three different ledgers. However, there is |l2no representative check in the documentary evidence for that amount. Clearly, the trial court found persuasive Young’s testimony that he believed this was a cash loan. Accordingly, this assignment of error is without merit.

PRESCRIPTION

In assignments of error three and four, Johnny argues that the plaintiffs’ claims have prescribed pursuant to La.Civ. Code art. 935. An action for the recovery of money lent is subject to a liberative prescriptive period of three years pursuant to La.Civ.Code art. 3494. The supreme court recently addressed prescription in Rando v. Anco Insulations, Inc., 08-1169, p. 10 (La.5/22/09), 16 So.3d 1065, 1082:

If prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Carter [v. Haygood, 04-0646 (La.1/19/05),]892 So.2d at 1267. If evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. Stobart v. State, through DOTD, 617 So.2d 880, 882 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id., 617 So.2d at 882-83.

“Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe.” La.Civ.Code art. 3464. Acknowledgment may be “oral or written, formal or informal, and express or tacit.” See Comment (e) to La.Civ.Code art. 3464 and Flowers v. United States Fidelity and Guaranty Co., 381 So.2d 378 (La.1980). The last check was issued to Johnny on March 14, 2003. Wilma filed suit on August 10, 2006. Thus, Johnny and Alta had to acknowledge the debt after August 10, 2003. Again, the trial court did not err in finding that prescription has been interrupted. Although the issue was hotly contested at trial, clearly the trial court found the testimony of multiple witnesses established that Johnny and Alta continued to have contact with the remainder of the family through 11RIate October or early November 2003, and continued to acknowledge that he and Alta would repay the loans. Johnny further argues that acknowledgment only interrupted prescription as to Beryl’s personal claim as a creditor. We find no merit in this argument. There was testimonial evidence by multiple family members that Johnny and Alta continued to visit the family. Clearly, the trial court chose not to believe Johnny’s testimony that he never spoke to another family member again following his father’s funeral. Accordingly, this assignment of error is without merit.

WITNESSES

Johnny argues he is entitled to a new trial because of material errors due to the allowance and exclusion of witnesses at trial. Pursuant to La.Code Civ.P. art. 1551, a trial court has discretion in the matters to be determined pre-trial including what witnesses will be allowed to testify at trial. In this matter the trial court issued a pre-trial order stating:

All parties are to exchange the name of any “may call” witnesses within thirty (30) days of the date of the Pre-Trial Order. Further, all parties are to exchange, and file into the record (in pleading form), the names of any and all “will call” witnesses no later than fifteen (15) working days prior to the trial date. A witness not so listed will not be permitted to testify.

At the end of the pre-trial order, it is again reiterated: “Failure to comply with any part of this Order will result in ... refusal to allow the offending party to present the evidence or witness not previously disclosed!.]” A trial court’s rulings in pretrial matters are given great deference in the absence of an abuse of discretion. Munster v. Bill Watson Ford, Inc., 07-0294 (La.App. 4 Cir. 10/24/07), 970 So.2d 36. It appears that, although the defendants forwarded a copy of the may-call and will-call lists to the plaintiffs, they failed to file a copy in the record. Moreover, the witness in question, Steven Seigler, was not listed on either the “may-call” or “will-call” lists. | u0n December 18, 2007, a few weeks before the start of trial, the defendants filed an amended witness list in the record which listed Seigler. The trial court sustained the plaintiffs’ objection to the introduction of the testimony as they had not had the opportunity to depose the witness. We find no abuse of discretion in that ruling. Simply, the defendants should have listed the witness on the original may and will-call lists and should have filed them in the record.

Next, the defendants complain the trial court abused its discretion in allowing the rebuttal testimony of Regan and Colin Wade. Considering that the defendants were present at the deposition of Colin Wade and did not request to depose Re-gan, and, moreover, did not file a contemporaneous objection to the introduction of this testimony, we find no merit in this argument.

Next the defendants complain it was error for the trial court to exclude testimony of Mouton in which she stated that she overheard Beryl telling Tim that Johnny would get nothing. As that testimony is classic hearsay, we find no abuse of discretion in the trial court’s refusal to allow such testimony.

RENUNCIATION

In this assignment of error, Johnny argues that Wilma, Beryl, and Tim renounced the debt that forms the basis of the lawsuit based on a package of documents that they signed at the request of Young. This argument is without merit.

As part of the package of documents that Young sent out in order to effectuate the closing of John, Sr.’s succession is a cover letter dated July 15, 2004. In that letter addressed to Wilma, Johnny, Tim and Beryl, Young states in part (emphasis added):

The Acts of Renunciation provide that no one will receive as part of their inheritance a debt due from either Johnny or Beryl. These also | ^relieve Johnny and Beryl of any liability for the portion of these advances which are included in the estate — effectively extinguishing that obligation. This also, therefore, passes their respective obligations to them as a portion of their inheritance.

The particular act signed by Wilma, Tim, and Beryl with respect to Johnny states:

That they, WILMA YOUNG BAKER, TIM YOUNG BAKER, and BERYL KATHERYNE BAKER WADE do hereby waive, relinquish, renounce, and disclaim any and all inheritance rights, of every nature whatsoever, including any usufructuary rights or rights as naked owners due them under the laws of the state of Louisiana or granted or confirmed under the Last Will and Testament of decedent, and to that portion of the succession or estate of JOHN BURR BAKER, SR., who died on May 17, 2003, domiciled in Vermillion Parish, Louisiana, more particularly described below:
COMMUNITY PROPERTY
DEBTS DUE DECEDENT
Demand loans to John B. Baker, Jr., October 28, 1999 through March 14, 2003, with principal of $1,592,500, accrued interest of $121,058.89 based on monthly Mid Term Applicable Federal Rate.

The Petition for Possession goes on to state in part (emphasis added):

5.
As will appear from the Acts of Partial Renunciation and Disclaimer filed herein, Petitioners have renounced usufructuary and naked ownership interests in certain debts due decedent from Petitioners JOHN B. BAKER, JR., and BERYL KATHERYNE BAKER WADE. Petitioners desire that these debts due decedent be allocated to the 11firespective debtor as a portion of their distributive share.

We note first that the Act of Renunciation was never signed by Johnny. Wilma, Beryl, and Tim did sign it. It is very clear from a simple reading of this document that the renunciation was a tool used so that both Johnny and Beryl’s inheritance would be reduced by the amount of debt each owed to the estate.

The trial court addressed the defendants’ desire, after the trial on the merits, to amend their answer to plead either the affirmative defense of renunciation or no right of action based on a voluntary admission. The trial court denied the introduction of the affirmative defense of renunciation stating:

I specifically addressed this issue at trial. It was raised as an affirmative defense, and I said it had not been specifically pled in the answer, and therefore, that it was waived.
Now, at this time, I am not going to allow the answer to be amended after the trial of the case to allow an affirmative defense to be bled. I’ve already ruled.
Now, to get to the peremptory exception of no cause of action or no right of action, I know that the cases that have been cited by Mr. Anderson deals with the extinguishment of debt, but if Look at the not cause of action, there’s been nothing presented to me on the no cause of action, and, therefore, I’m going to deny the no cause of action at this time.
As to the no right of action, the — the plaintiffs [sic] have decided not to put on any evidence, and, therefore, no witnesses will be called, and there is no evidence presented to me. Therefore, I’m going to deny the no right of action at this time.

We find no error in that ruling. Accordingly, this assignment of error is without merit.

CONCLUSION

The judgment of the trial court in favor of the plaintiffs, Wilma Young 117Baker and Succession of John Burr Baker, Sr., is affirmed. All costs of this appeal are assessed against the defendants-appellants, John Burr Baker, Jr. and Alta Baker.

AFFIRMED.

      . Throughout this opinion we refer to John Burr Baker, Jr. as "Johnny” as this is what he was referred to throughout the trial record.

      . On the third day of trial, the plaintiffs withdrew their claim for a $100,000 check numbered 841 from their claim against the defendants because it could not be determined if that particular check was deposited, hence, the $100,000 reduction in the judgment.

      . This was the second time Young sent out the documentation to be signed. The first time was seven months prior.

      . These terms are used interchangeably. We note that the issue was raised at trial at which time the plaintiffs objected because the affirmative defense was not in the defendants answer. The trial court found in favor of the defendants.