text:
    George R. BAGLEY, Jr., as Trustee of Michele Bagley Trust and Lydia Bagley Trust, Plaintiff-Appellee v. LAKE BRUIN LANDING AND MARINA, L.L.C., Ernest A. Gonzales, Defendant-Appellant
    No. 51,994-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 23, 2018
    LAW OFFICES OF BRIAN CRAWFORD, By: Brian Crawford, Monroe, Counsel for Appellant
    HAYES, HARKEY, SMITH & CASCIO, By: Thomas Moore Hayes, III, Monroe, Counsel for Appellee
    Before GARRETT, COX, AND STEPHENS, JJ.
   STEPHENS, J.

Defendant, Lake Bruin Landing and Marina, L.L.C., appeals a judgment by the Sixth Judicial District Court, Parish of Tensas, State of Louisiana, finding it was in violation of valid building restrictions imposed on its property and granting injunctive relief sought by Plaintiff, George Bagley, Jr., as trustee of the Michele Bagley Trust and the Lydia Bagley Trust. For the following reasons, we affirm.

FACTS

In September of 2014, Lake Bruin Landing and Marina, L.L.C. ("the LLC"), whose sole member and manager is Ernest A. Gonzalez, purchased Lot 3 of the Bagley Sunnyside Plantation Subdivision No. 2 located on Lake Bruin in Tensas Parish. Building restrictions were imposed on the property in 1974 when Barbara and George Bagley created the subdivision, consisting of three lots, and subsequently sold the lots to their children in three separate deeds: Lot 1 to Lydia Bagley, Lot 2 to Michele Bagley, and Lot 3 to George Bagley, Jr. Each deed imposed identical building restrictions on the vendees and his or her respective heirs, successors, and assigns. In 1998, those lots were transferred, respectively, to the Lydia Bagley Trust, the Michele Bagley Trust, and the George Bagley, Jr. Trust, with George Bagley, Jr. serving as trustee of all three trusts. In 2010, Lot 3 was foreclosed on and sold at a sheriff's sale, but George Bagley, Jr. ("Bagley") remained the trustee of the other two trusts, which currently still own Lots 1 and 2.

The restrictions imposed in the 1974 deeds to the Bagley children read as follows:

a. Neither the purchaser, his successors, lessees, or assigns, shall ever use or permit to be used any house, houses or structures erected or to be erected on said property hereinabove described, either directly or indirectly, for any commercial purpose, trade or business of any form, or for any other purpose other than that of a private residence, or private clubhouse or servants' quarter.
b. Only one main residence building may be erected on the hereinabove described property, provided that this restriction shall not apply to servants' quarters, boathouses, pier houses, storage sheds, garages, pump houses, or similar structures appurtenant to the main residence building; no temporary structures or trailers shall be used on said property at any time as a residence or camp, either temporarily or permanently, provided only that his restriction shall not apply to temporary guests or visitors who are not the owners or lessees of said property.
c. The residence to be constructed on said property shall be constructed of new materials, old brick exterior excluded, and construction shall be sufficient and adequate to meet all F.H.A. specifications and shall be not less than 1,600 square feet of living space, at ground level, excluding porches, patios, garage, or carport.

The LLC purchased Lot 3 with the intent to develop the property into three smaller lots with three custom-built cabins and three boathouses/piers. Gonzalez was unaware at the time of the purchase of any building restrictions on the property that would prohibit that development. He did not become aware of the building restrictions until April of 2015, when he received a letter from the attorney of adjacent lot owner, the Michele Bagley Trust, communicating that Lot 3 was subject to building restrictions and that violations of those restrictions had become apparent. By the time the LLC was informed of the restrictions, it had hired a surveyor to prepare a plat, "Division of Lot 3 of Bagley Sunnyside Plantation No. 2," and commenced development of the property and construction of the cabins and boathouses/piers. The cabins were to measure approximately 1,120 heated square feet. On May 30, 2015, Bagley, as trustee of the owners of Lots 1 and 2, the Lydia Bagley Trust and Michele Bagley Trust, respectively, filed suit against the LLC seeking a permanent injunction enjoining and prohibiting the LLC from the following:

1. subdividing Lot 3 of the subdivision;
2. marketing subdivided lots as residential lots;
3. constructing more than one permanent residence on Lot 3;
4. constructing a permanent residence that fails to meet all F.H.A. specifications and which is less than 1,600 square feet of living space, at ground level, excluding porches, patios, garage, or carport; and,
5. placing temporary structures or trailers on Lot 3, or using same in any commercial enterprise.

In its answer, the LLC asserted that the restrictions were not valid and enforceable because they were ambiguous and had been waived or abandoned. The LLC voluntarily terminated its development of Lot 3 pending litigation and filed a reconventional demand for the financial damages it incurred by halting its project, asserting that Bagley was negligent in filing suit to enforce building restrictions that were not valid.

Trial commenced on January 27, 2017. Evidence at trial established that while owning Lot 3, Bagley permitted three or four of his friends to place camper trailers on the lot during three or four summers from approximately Memorial Day to Labor Day, and Bagley did not charge them any rent for this use. At some time during those periods, Bagley's friends buried Romex cable to run from an existing pole and attached electrical outlets to provide power to their camper trailers. They also installed one or two septic tanks and ran PVC pipe from a nearby tap for water. Additionally, they built two patios, one of poured concrete and one of concrete pavers. Following trial and multiple post-trial memorandums submitted by both parties, the trial court took the matter under advisement. It ultimately ruled in favor of Bagley, rejecting and dismissing the LLC's reconventional demand, and issuing a thorough judgment. The trial court found the building restrictions were valid and enforceable and the LLC's development of Lot 3 was in violation of the restrictions. This appeal by the LLC ensued.

DISCUSSION

Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses and improvements. La. C.C. art. 775. Such restrictions are real rights running with the land and may be enforced by mandatory and prohibitory injunctions. La. C.C. art. 779. Once a building restriction has been properly imposed and recorded, the restrictions run with the land, even if they are later omitted in subsequent deeds. Chambless v. Parker , 38,276 (La. App. 2d Cir. 3/3/04), 867 So.2d 974. In a subdivision subject to building restrictions, each landowner has procedural standing to enforce the building restrictions. Harrison v. Myers , 25,902 (La. App. 2d Cir. 6/22/94), 639 So.2d 402.

In its first assignment of error, the LLC asserts that the trial court erred by concluding the building restrictions were not ambiguous. Doubt as to the existence, validity or extent of building restrictions is resolved in favor of the unrestricted use of the immovable. La. C.C. 783. While building restrictions are to be strictly construed, the intent of building restrictions must be ascertained according to the words contained in the document, their usual meaning, and with consideration of the context of the document as a whole. N. Desoto Estates, L.L.C. v. Johnson , 44,760 (La. App. 2d Cir. 10/14/09), 21 So.3d 1068, 1070. Ambiguity and doubt as to the intent of the creator of the building restriction exist when the restrictions are susceptible to more than one reasonable interpretation. In which circumstances, the interpretation that least restricts the property should apply. Id. Documents establishing building restrictions are further subject to the general rules of interpreting contracts, and whether or not a contract is ambiguous is a question of law. Jackson Square Towne House Home Ass'n, Inc. v. Hannigan , 38,239 (La. App. 2d Cir. 3/3/04), 867 So.2d 960 ; Lawrence v. Terral Seed, Inc. , 35,019 (La. App. 2d Cir. 9/26/01), 796 So.2d 115, writ denied , 2001-3134 (La. 2/1/02), 808 So.2d 341.

Bagley asserts that the restrictions are inherently contradictory, ambiguous, and unclear and should, therefore, be deemed invalid and unenforceable. He particularly takes issue with the exceptions provided for "temporary guests" and certain "structures appurtenant to the main residence building," claiming it is impossible to ascertain what is and is not permitted by the restrictions. The trial court, however, found that the building restrictions imposed on the subdivision are clear and unambiguous and that there is only one reasonable interpretation of the author's intent. The court summarized the restrictions as follows:

The restrictions address three main areas: 1) they prohibit commercial activity; 2) they limit each lot to a single residence of minimum size compliant with building specifications; 3) they prohibit use of "temporary structures or trailers" as residences or camps, subject to the right of a lot owner to permit his temporary guests, who are not lessees, to camp upon a lot and to place a trailer on the lot temporarily.

After a plain reading of the restrictions and a review of the record, we find that the plain meaning of the words used and the context of their use clearly convey the intent of the author of the restrictions. Furthermore, we find there is no other reasonable interpretation of the restrictions than that which was ascertained by the trial court; there could be no other meaning given. Therefore, we do not find that the trial court abused its discretion in concluding that the restrictions were not ambiguous. This assignment of error is without merit.

In its second assignment of error, the LLC asserts that the trial court erred by determining the restrictions had not been waived or abandoned by Bagley, freeing Lot 3 in whole or in part of the restrictions. We disagree.

Once a plaintiff seeking an injunction has established a violation of a restriction, the burden shifts to the defendant to prove a termination or abandonment of that restriction. Harrison, supra. Building restrictions terminate by abandonment of the whole plan or by a general abandonment of a particular restriction. When the entire plan is abandoned the affected area is freed of all restrictions; when a particular restriction is abandoned, the affected area is freed of that restriction only. La. C.C. art. 782. When violations occur without protest to the extent that the general plan is substantially defeated, the violated restrictions are considered waived and are thus unenforceable. Harrison, supra. Whether a restriction has been waived by common consent or universal acquiescence depends upon the facts of each case and the character, materiality, number of the violations and their proximity to the objecting residents. Id. Insubstantial, technical or infrequent violations of a restriction, which are not subversive to the general plan or scheme, weigh little toward establishing an abandonment. Id.

The trial court's factual finding with regard to whether or not certain conduct violates the building restrictions is subject to manifest error review. Jackson Square Towne House Home Ass'n, Inc., supra . In order to reverse a trial court's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Cosby v. Holcomb Trucking, Inc., 2005-0470 (La. 9/6/06), 942 So.2d 471. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Id.

Central to the LLC's argument of waiver or abandonment is Bagley's friends' use of Lot 3 and the ultimate determination of what constitutes a "temporary guest" or "visitor." The LLC contends that Bagley's friends' use of the property not only violated the restrictions but was also subversive to the general plan for the subdivision as a whole. The LLC further asserts that Bagley's knowledge of these violations and failure to object amounts to waiver of the restrictions. Over the span of time that Bagley's friends parked their camper trailers on Lot 3, they did bury electric cords, septic tanks, and PVC water lines and constructed concrete and paver patios. The LLC argues that each of these items violates the restrictions because they are "structures" that are not appurtenant to a main residence building. The trial court, however, found that the installation of these items was "minor and insubstantial" and did not constitute abandonment of the restrictions.

We agree that the installed electric lines, water lines, and paver patio are dissimilar to the structures specifically prohibited unless appurtenant to the main residence building, i.e. , "servants' quarters, boathouses, pier houses, storage sheds, garages, [and] pump houses." While these installations were left behind by Bagley's friends and remained on the property at the time of the LLC's purchase, they, unlike the items listed in the restrictions, are neither the type nor quality of permanent structures that would be installed to service a permanent main residence. The septic tanks and concrete patio, which measured approximately 12 x 20 feet and 3½ inches deep, however, are of more a permanent nature than the other items installed. We do note, although, that the patio was removed by the LLC following its purchase of the property. Likewise, while the septic tanks and concrete patio could conceivably be the type of nonappurtenant structures the restrictions intended to prohibit, we do not find that the trial court was manifestly erroneous or clearly wrong by characterizing them as "minor and insubstantial."

There is no doubt that the camper trailers used by Bagley's friends on Lot 3 are likely the sort of "temporary structure or trailer" that the restrictions prohibited being used on the property as a "residence or camp, either temporarily or permanently." However, the restrictions carved out an exception to this particular provision, allowing such use by "temporary guests or visitors who are not the owners or lessees of the said property." While there was no evidence admitted to indicate Bagley's friends were lessees of the property, and they of course were not owners, the LLC asserts their use of the property was not consistent with that of "temporary guests or visitors." The LLC argues that Bagley's friends occupied Lot 3 freely, unaccompanied by Bagley, and utilized the property as owners rather than guests or visitors. They invested time and money in maintaining the property and altering it to suit their needs, i.e. , the installations discussed herein.

The trial court, however, concluded that Bagley's friends made discontinuous and sporadic use of Lot 3 and their placement of camper trailers on the property was temporary. This determination by the trial court is supported by testimony that Bagley's friends each had their own residences and that they only used the campers at Lot 3 on weekends and holidays during the summer months. We do not find that the trial court erred in determining that the "temporary guests or visitors" exception applies to Bagley's friends and that their use of Lot 3, therefore, did not violate the restrictions. The trial court also concluded that neither the restrictions prohibiting commercial activity nor regulating the size and specifications of the primary residence had been violated prior to the LLC's purchase of Lot 3. Therefore, we find that the trial court was not manifestly erroneous or clearly wrong in finding that since the restrictions were never violated, no abandonment or waiver occurred. This assignment of error is without merit.

The LLC asserts in its third assignment of error that the trial court erred by rejecting and dismissing its reconventional demand for damages. Since we find no error by the trial court in finding that the building restrictions are valid and enforceable, we pretermit discussion of this assignment of error.

CONCLUSION

Accordingly, for the foregoing reasons, the trial court's judgment in favor of George Bagley, Jr., as trustee of the Michele Bagley Trust and Lydia Bagley Trust, is affirmed. Costs are assessed to Lake Bruin Landing and Marina, L.L.C.

AFFIRMED.

      Gonzalez was originally named as defendant in the suit but was dismissed by joint stipulation prior to trial.

      The LLC filed a third party demand for damages and indemnification against its title attorney and his law firm for their failure to discover and disclose the building restrictions. The claim was settled prior to trial and the third party demand dismissed with prejudice.

      Bagley filed a special motion to strike and exception of no cause of action in response to the LLC's reconventional demand that were denied by the trial court.


source: Caselaw Access Project

author: GARRETT, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Darren Scott LAMBERT, Appellant
    No. 52,004-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 23, 2018
    LOUISIANA APPELLATE PROJECT By: Douglas Lee Harville, Counsel for Appellant
    ROBERT S. TEW, District Attorney, HOLLY CHAMBERS JONES, JENNIFER H. JOHNSON, Assistant District Attorneys, Counsel for Appellee
    Before GARRETT, COX, and STEPHENS, JJ.
   GARRETT, J.

Following a bench trial, the defendant, Darren Scott Lambert, was convicted of domestic abuse battery by burning and attempted manslaughter. He was sentenced to 35 years at hard labor without benefit of parole, probation or suspension of sentence for domestic abuse battery by burning and 20 years at hard labor for attempted manslaughter. The trial court ordered that the sentences be served concurrently. The defendant appeals, contending the evidence was insufficient to convict him. We affirm the defendant's convictions and sentences. However, we remand the matter to correct the court minutes to reflect that the defendant's sentence for attempted manslaughter was imposed with no restriction of benefits.

FACTS

For approximately 2½ years, the defendant and the victim, Katie Battaglia, were engaged in an on-again, off-again relationship that was aptly described at trial as "toxic." There were multiple incidents of domestic abuse by the defendant against Katie. The violence ultimately culminated in a tragic episode on May 30, 2015, when the 23-year-old defendant poured rubbing alcohol on Katie, age 21, and then set her on fire. Katie suffered second and third degree burns to her upper torso, back, arms and ears. Additionally, Katie, who was approximately 10 weeks pregnant, lost the baby. The defendant was charged with domestic abuse battery by burning and attempted second degree murder. He was also charged with first degree feticide, but that charge was dismissed prior to trial.

The defendant, who was represented by retained counsel, waived his right to a jury trial. The six-day bench trial began on April 10, 2017. The testimony of Katie, her parents, and her best friend established that the defendant's abuse of Katie began early in the relationship and continued throughout its duration. Furthermore, one episode led to his arrest and subsequent guilty plea for violence against Katie's father. The defendant testified on his own behalf and claimed that Katie set herself on fire. After hearing all of the testimony and closing arguments, the trial court recessed for several hours to consider all the evidence and review the extensive notes taken during the lengthy trial. After deliberating on the matter, the trial court found the defendant guilty as charged of domestic abuse battery by burning and guilty of the responsive verdict of attempted manslaughter. In lengthy and extensively detailed oral reasons for its verdicts, the trial court made strong credibility determinations in favor of Katie and the other witnesses for the prosecution. The trial court concluded that there was a significant history of domestic violence in the relationship between the defendant and Katie. It further found that the defendant's "self-serving" testimony "defied ... and contradicted logic" in many instances.

Thereafter, the defense filed a motion for post-verdict judgment of acquittal, arguing that the evidence was insufficient to convict the defendant based on the victim's inconsistent testimony. At the sentencing hearing on June 21, 2017, the trial court denied the motion as procedurally improper. After reviewing the presentence investigation report, the trial court sentenced the defendant as described above.

The defendant appealed, asserting that the evidence was insufficient to convict him.

LAW

Standard of Review

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate , 01-1658 (La. 5/20/03), 851 So.2d 921, cert. denied , 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Carter , 42,894 (La. App. 2 Cir. 1/9/08), 974 So.2d 181, writ denied , 08-0499 (La. 11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 05-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Dotie , 43,819 (La. App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied , 09-0310 (La. 11/6/09), 21 So.3d 297.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton , 436 So.2d 471 (La. 1983) ; State v. Robinson , 50,643 (La. App. 2 Cir. 6/22/16), 197 So.3d 717, writ denied , 16-1479 (La. 5/19/17), 221 So.3d 78.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a trier of fact's decision to accept or reject the testimony of a witness in whole or in part. State v. Sims , 49,682 (La. App. 2 Cir. 2/27/15), 162 So.3d 595, writ denied , 15-0602 (La. 2/5/16), 186 So.3d 1161.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Crossley , 48,149 (La. App. 2 Cir. 6/26/13), 117 So.3d 585, writ denied , 13-1798 (La. 2/14/14), 132 So.3d 410 ; State v. Speed , 43,786 (La. App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied , 09-0372 (La. 11/6/09), 21 So.3d 299. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Johnson , 47,913 (La. App. 2 Cir. 4/10/13), 113 So.3d 1209.

The testimony of a victim alone is sufficient to convict a defendant. State v. McGill , 50,994 (La. App. 2 Cir. 1/11/17), 213 So.3d 1181, writ not cons. , 17-0455 (La. 4/24/17), 219 So.3d 329.

Domestic Abuse Battery by Burning

Domestic abuse battery is the intentional use of force or violence committed by one household member upon the person of another household member. La. R.S. 14:35.3(A). If the domestic abuse battery is committed by burning that results in serious bodily injury, the offense shall be classified as a crime of violence. La. R.S. 14:35.3(M).

At the time of the offense, La. R.S. 14:35.3 provided the following pertinent definitions:

B. For purposes of this Section:
(1) "Burning" means an injury to flesh or skin caused by heat, electricity, friction, radiation, or any other chemical or thermal reaction.
...
(4) "Household member" means any person of the opposite sex presently living in the same residence or living in the same residence within five years of the occurrence of the domestic abuse battery with the defendant as a spouse, whether married or not, or any child presently living in the same residence or living in the same residence within five years immediately prior to the occurrence of domestic abuse battery, or any child of the offender regardless of where the child resides.
(5) "Serious bodily injury" means bodily injury that involves unconsciousness, extreme physical pain, or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.

Attempted Manslaughter

La. R.S. 14:31, which defines manslaughter, states in pertinent part:

A. Manslaughter is:
(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed[.]

Further, La. R.S. 14:27(A) provides:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

To support a conviction for attempted manslaughter, the state must prove the defendant specifically intended to kill the victim and committed an overt act in furtherance of that goal. State v. Glover , 47,311 (La. App. 2 Cir. 10/10/12), 106 So.3d 129, writ denied , 12-2667 (La. 5/24/13), 116 So.3d 659 ; State v. Leone , 48,892 (La. App. 2 Cir. 5/15/14), 140 So.3d 793, writ denied , 14-1337 (La. 4/10/15), 163 So.3d 804.

Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1) ; State v. Glover , supra ; State v. Leone , supra . Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. The determination of whether the requisite intent is present in a criminal case is for the trier of fact, and review of that determination is to be guided by the standard of Jackson v. Virginia , supra . State v. Glover , supra ; State v. Leone , supra .

TESTIMONY

From the testimony presented at trial and deemed credible by the trial court, we have gleaned the following chronology of events.

The defendant and Katie began dating in January 2013 after meeting on Facebook. Shortly thereafter, Katie's parents, Gerald and Brenda, allowed him to move into an extra bedroom at their home because he had nowhere else to live. Within a brief period of time, Katie's parents and her best friend, Koycelyn, began noticing bruises on Katie's arms, legs, and face. However, when questioned, Katie explained away the bruises as the results of such activities as moving furniture or getting hit by a car door. Katie testified that on one occasion, the defendant made a comment that he "could f***" another girl, and punched her in the face, knocking her glasses off, after she slapped him. Katie's parents financially assisted the defendant, a high school dropout, in pursuing his GED after he lost his job at a paper mill. However, they discovered that he was not attending classes. The parents ordered the defendant to leave their home after Gerald saw him grab Katie by the arm and slam her into a wall and Brenda was frightened by the defendant hitting a wall with his fist.

The defendant moved into his grandmother's vacant trailer. Katie lived with him for about three weeks. After Katie made a remark critical of his mother, the defendant punched her in the face three or four times and held her down on the floor. The defendant's brother responded to Katie's screams and told him to leave her alone. Katie moved back home.

In August 2013, Katie moved into an apartment. A few weeks later, the defendant moved in with her. Katie described an incident when the defendant dragged her from the shower, accusing her of cheating, and began to beat her with his fists. She sustained bruises on her forehead and her back, and her vision and hearing were temporarily impaired.

On April 4, 2014, Katie called the police after she and the defendant had an altercation about a cellphone. During the fight, he put her in a headlock, and she scratched him. No arrests were made after the responding officer informed them that, since both of them had marks on them, they would both be arrested. Katie returned to her parents' home and remained there for a few days before returning to the apartment.

On Friday, April 11, 2014, they argued again. The defendant left with Katie's phone. At some point that day, she obtained and smoked marijuana from a neighbor and posted a comment about harming herself on Facebook. Katie testified that she used her XBox to access Facebook to contact an old high school friend, Chance, and asked him to pick her up. Chance testified that Katie was upset and said she needed to get away. She appeared scared of something and told him about fighting with her boyfriend. She stayed with him Friday and Saturday nights. Both testified that they did not have sexual relations. On Sunday night, he dropped her off at her parents' house.

Also on Sunday evening, the defendant contacted Katie's mother on Facebook and got into a profanity-laced argument with her. He told her that Katie was cheating and doing drugs. Brenda, who had already talked to Katie and knew that she had left the defendant and was coming home, told him to stay away from her daughter. During the course of their exchange, the defendant threatened to have Katie committed the next day. According to the testimony of Brenda and Koycelyn, who was at the parents' house that night, the defendant's posts expressed only anger, not concern for Katie's well-being. The next morning, law enforcement officers came to the parents' house, handcuffed Katie, and took her to a mental hospital pursuant to a coroner's warrant obtained by the defendant. (Brenda had inadvertently revealed Katie's location to the defendant during their Facebook conversation.) She was released after the mandatory 24-hour hold. A doctor at the hospital suggested that Katie obtain a restraining order against the defendant. However, according to Katie and her father, the sheriff's office refused to issue a restraining order. They did write a report and contacted the defendant and told him to have no further contact with Gerald or Brenda. Days later, the defendant appeared at Brenda's business, jumped out of his vehicle, opened the door of the vehicle Katie was in, threw her phone in, and told her to call him.

In his testimony, the defendant gave a vastly different account of this incident. He stated that he saw Chance drop Katie off on Friday and that she texted him an hour later, telling him that she bought weed and wanted him to come home to have sex with her. He said he did. On Saturday, as they were driving in the truck, Katie became enraged and began stabbing herself in the arm with a pen and, when he tried to stop her, she stabbed him until he took the pen away. That night she was crying in the kitchen with a knife to her stomach, insisting that she needed him to put the knife in her so she wouldn't go to hell. She then chased him in the bedroom with the knife. He locked himself in the bedroom and, when he came out about an hour later, she was in the kitchen swallowing pills. The defendant stated that he called her mother, who came and got her. He further testified that Katie texted him a message that she was going to kill herself. He admitted getting into a Facebook altercation with Brenda, who he believed was not going to do anything. So he went to the coroner's office and got the warrant to have her picked up because he loved her.

At any rate, the couple soon reconciled and resumed living together. On June 17, 2014, they were packing up to move when they had an argument. According to Katie's testimony, she told him to take her to her parents' house. He then "flipped out" and threw her eyeglasses out of the car window. They stopped but were unable to find the eyeglasses. When they arrived at her parents' house, the defendant stopped in the road in front of the residence and began throwing boxes of Katie's belongings onto the ground, breaking the contents. Katie ran in the house, where she remained. After telling his son to call the police, Gerald went outside where he observed the defendant throwing boxes. The defendant then attacked the 65-year-old Gerald. He punched Gerald in the face twice, knocking his glasses off and almost rendering him unconscious. Gerald fell back against the car. As he fell, he reached out and grabbed the defendant's T-shirt, which ripped. Gerald described the defendant as then ripping his own T-shirt off and "growling" before grabbing Gerald in a headlock and hitting him in the head 15 to 20 times. The defendant also gouged Gerald's eye. At this point, Charles, Gerald's son and Katie's brother, ran outside, screaming at the defendant to release his father. The defendant and his mother, who was also present, jumped in their respective vehicles and sped off. As a dazed Gerald was looking for his glasses, his older daughter Jerri screamed at him that they were coming back and to get out of the road. According to Gerald, they stopped their vehicles 10 to 15 feet away from him. The defendant then accelerated and hit Gerald with his car before leaving the scene. Gerald testified that he was struck on the left hip. Paramedics and police arrived. Although Gerald refused to go to the hospital, photos documenting his injuries were taken. The defendant was arrested for simple criminal damage to property, simple battery, and aggravated battery. He was allowed to plead guilty to simple battery and ordered to pay $200 restitution for Katie's eyeglasses.

Again, the defendant related a completely different version of the incident. According to him, Katie "went off" after he made a joke about her having too much stuff when they were packing. As he was driving, she began to hit him, and he did the "only thing" he could-he grabbed her head and "pushed." He proclaimed that he did not know what happened to her eyeglasses. Katie called her father crying, and, when they arrived at her parents' house, Gerald "jumped" him and popped him on the back of the head. They began fighting and, when Gerald bit him, he instinctively did the "only thing" he could-gouging Gerald's eye. According to the defendant, Katie's brother then came out and hit him. He denied hitting Gerald with his car as he and his mother fled in their vehicles. The defendant's mother testified that her son was not the aggressor and that Katie's father and brother attacked him. She also denied that her son tried to hit Gerald with his car.

Katie began dating another man, Jacob. In the fall of 2014, Katie rented a trailer in Sterlington from Koycelyn's mother, Marla. Jacob moved in with her. By all accounts, Jacob treated Katie well. Katie began taking hormones to enhance her chances of having a baby with Jacob. By December 2014, Katie was in contact with the defendant again. When her father learned of this, he confronted Katie. After she slapped him, Gerald called the police and expressed concern that she might harm herself. However, he subsequently admitted to the responding officer that she had not made any threats of self-harm.

In late February or early March 2015, Jacob moved out after he and Katie broke up. The defendant then moved in with Katie. In early April 2015, Katie learned that she was pregnant. The defendant's sister suggested to him that he was not the baby's father. According to Katie's testimony, her relationship with the defendant began to deteriorate again. He accused her of unfaithfulness, and they quarreled about his failure to pay bills.

Once again, a pattern of violence began to emerge. On May 19, 2015, there was an incident at the trailer during which the defendant's sister threatened Katie. Koycelyn, who was visiting Katie, heard the defendant threaten to let his sister beat Katie. The sister said she would not hit the pregnant Katie in the stomach but would punch her in the face. Koycelyn stepped in front of Katie to protect her, and the two women left the trailer. Katie had to call the police to try to get the defendant to return her cell phone. The next day, the defendant and Katie had an argument during which he broke things and then left. A frightened Katie called Marla, who had Katie wait for her on the steps of another trailer until she could come and get her. Katie stayed with Marla at least one night before reconciling with the defendant.

On Saturday, May 30, 2015, Koycelyn came over to the trailer and taught Katie how to cook pork chops. Katie told her that the defendant was not helping with any of the bills and that she wanted him to leave if he wasn't going to help. After the defendant arrived, Koycelyn cut his hair at Katie's request. After they ate the pork chops, Koycelyn left when the couple began arguing over the bills. Shortly thereafter, the defendant also left. Katie called him and told him not to return, that she was going to spend the night at Koycelyn's. He insisted that he would return to the trailer. When he arrived, she was sitting on the bed in the master bedroom, smoking, with a ceramic ashtray on the bed next to her. Again they argued about bills. The defendant then accused her of cheating. He picked up the ashtray and threw it; it shattered. He then began to break her cigarettes and throw them on the floor.

Katie got off the bed and knelt on the floor to pick up the pieces of the broken ashtray and the broken cigarettes. The defendant told her she needed to get an abortion. He said he would kill her and the baby. He sprayed or poured rubbing alcohol on her. The liquid ran down her arms, back, and chest. The defendant stood over her with a lighter. Crying hysterically, Katie said, "Just do it." The defendant then lit her on fire. Katie jumped up and ran toward the kitchen. The defendant followed her. She felt a push toward the master bathroom. She got in the shower and extinguished the flames. According to Katie, the defendant lay on the floor, sobbing and begging God for forgiveness. At one point, he told her that she could call the police. However, she testified that she did not believe him and was too scared to do so. When she suggested that he take her to the hospital, he said nothing. She did not ask again.

After getting out of the shower, Katie removed her clothes and lay on her bed under fans. Because she needed water to drink, she put on a robe and rode in the car with the defendant to a convenience store. She remained in the car while he went in the store and bought water. On Sunday, the defendant went to a pharmacy and purchased antibiotics, burn cream and bandages.

For the first few days of the week, the defendant helped take care of Katie. He told her that she had first degree burns and never offered to take her to the hospital. He went to work Monday through Wednesday, leaving her at home alone. While she had access to the Internet and a landline telephone at the house, she did not call for help. On Thursday, the defendant took off from work to take Katie to an appointment to sign up for WIC so her mother would not take her. Katie wore clothing that concealed her burns and did not report the burning incident while she was out of the defendant's presence. At trial, she testified that she was too afraid to seek help. She also felt that law enforcement had failed to protect her when she reported abuse before.

On Saturday, June 6, 2015, Brenda came to see Katie and observed the burns on her daughter's neck and ears. She did not believe Katie's claim that she had a rash and said it looked like a grease burn. Brenda contacted Marla and sent a message to Koycelyn, who went to see Katie. After initially claiming that she had grease burns, Katie admitted to Koycelyn that the defendant had burned her. While Koycelyn was at the trailer, the defendant called Katie. Koycelyn answered and told him he was going to jail. Koycelyn testified that the defendant laughed and declared that, if he went to jail, he would kill Katie, her family, and the baby, as well as Koycelyn and her family, when he got out. He never denied hurting Katie or claimed that Katie had hurt herself. The women left the trailer and went to the home of Koycelyn's parents, where Marla convinced Katie to let them take her to hospital. During an ultrasound, the doctor determined that Katie's baby was dead and apparently had been since the burning incident. It was determined that Katie had second and third degree burns.

Following her hospital admission, a police officer interviewed Katie at 1:44 a.m. on the morning of June 7, 2015. At 5:45 p.m. that day, Chief Barry Bonner of the Sterlington Police Department interviewed the defendant, who claimed that Katie set herself on fire and he had saved her by trying to put the flames out with his hands and getting her in the shower. However, he was unable to satisfactorily explain why he had no burns on the palms of his hands. At 8:40 p.m. that night, Chief Bonner interviewed Katie at the hospital. All three of these interviews were recorded and played at trial.

In his trial testimony, the defendant portrayed himself as a hapless victim of Katie's abusive mistreatment throughout their relationship. He emphatically denied ever abusing her and maintained that he only defended himself from a mentally ill girlfriend-who went "back and forth between sane and insane" at the snap of a finger. He stated that, about a week before the burning, he had decided to leave Katie. He said that she was "fine" with that, that she agreed to let him stay at the trailer until he found a new place to live, and they had an "open relationship." On May 30, they argued over where to eat, bills, and a sex tape he had made with a former girlfriend. After he told her they were over, she asked him to go outside and feed her cats. When he came back inside, she was standing between the kitchen and living room. After telling him he didn't have to deal with her anymore, she flicked a lighter and became engulfed in flames. She ran in the kitchen, dropped, and rolled. He then grabbed her shirt and led her into the bathroom shower.

According to the defendant, Katie refused to go to the hospital because she thought the baby would be taken away from them and she would be put in a mental hospital. He further stated that she threatened to kill herself and claimed that she would have access to the tools she needed to do so in a mental hospital. The defendant admitted that her physical condition worsened during the week, but he denied knowing the severity of her burns. Despite his repeated assertions that he was deeply concerned about her mental health, he admitted leaving her alone at the trailer on several occasions, such as going to work or leaving one night to have sex with another woman.

There were a number of discrepancies between the defendant's statement to Chief Bonner and his trial testimony. In particular, he failed to tell the chief that he and Katie had an "open relationship," that he was already planning to leave her at the time of the burning, or that he had sex with another woman days after the burning. In his trial testimony, the defendant attempted to blame Chief Bonner for the discrepancies, asserting that the chief did not "do a good job of interrogating" him.

ARGUMENTS

The defendant contends that Katie's testimony contained "irreconcilable inconsistencies" which were "compounded by improbable factual claims." As a result, he contends that the state failed to prove his guilt beyond a reasonable doubt.

The defense asserts the following inconsistencies: Katie testified that she just sat there as the defendant poured the alcohol on her, but she previously told her mother that she could not describe the bottle because she was fighting him off as she was being held down; Katie testified that the defendant told her to get an abortion or he would kill her and the baby for the first time on the night of the burning, but she told the officer that he had made that threat many times before; Katie previously told her mother that her wounds were a rash; Katie never mentioned to police that she asked the defendant to take her to the hospital or that the defendant threatened to kill her and her friend on the day she was taken to the hospital; Katie testified that the defendant "sprayed" the alcohol, but she told the officer that he "poured" it.

The defense also questions the following factual claims made by Katie: she stated that the defendant told her to get an abortion, but the day before the burning, he posted on Facebook that he "can't wait to be a dad"; the defendant took actions to put out the fire and save the lives of Katie and the baby; when she was on fire, Katie bypassed two doorways to the bathroom because there were pieces of the ashtray on the floor and clothes in the bathtub; Katie was able to navigate a route from the bedroom to the kitchen and back to the bathroom with her eyes closed; Katie was able to see the defendant as he sprayed her with the alcohol when he was standing to her left and slightly behind her; although Katie claimed she did not call the police because of the defendant's threats, she later stated that the threat was made later in the week; Katie stated that she was living in fear of the defendant, despite her testimony that he nursed her and cooked for her, he was away at work for 10 to 12 hours each day, and she sent messages to him joking, asking for help finding her cat, and reminding him about her WIC appointment; and Katie did not seek medical attention even though she had access to a phone and the Internet and had an appointment with a WIC doctor.

In response, the state argues that the history of domestic violence perpetrated by the defendant upon Katie and his actions before and after the burning support the conclusion that he is guilty of setting Katie on fire. The state claims that the defendant's statements to officers and his testimony at trial are inconsistent and self-serving.

First, the state notes that, although the defendant testified that he was no longer in a relationship with Katie at the time of the burning, in his police interview, he tearfully told officers that he was in love with Katie and wanted to marry her. Contrary to his assertions that he was leaving Katie, the text messages between the defendant and Katie introduced at trial show that they were still in a relationship. On the day of the burning, the defendant sent Katie a message saying "Hey girl you sexy," he responded to a message on June 1, 2015, with "Okay my love," and on June 3, 2015, he was talking about them planning a vacation together. Second, although the defendant testified that when she was on fire, Katie dropped to the ground with her hands behind her head, Katie did not suffer any burns to her hands. Third, the defendant claimed that he listened to the ravings of an allegedly suicidal woman in making his decision of whether to call the police or seek medical treatment after the burning. However, on a prior occasion, he went to great lengths to obtain a coroner's warrant for her commitment to a mental hospital.

DISCUSSION

Our review reveals that the trial court's verdicts are fully supported by the evidence presented at trial and the credibility determinations made by the trier of fact. Unlike a jury trial, we have the benefit of the trial court's extensive reasons for the verdicts rendered here.

The trial court stated that its rulings were based on the credibility of the witnesses. It found that there was a significant history of domestic violence in the relationship between the defendant and Katie. The court specifically found that Katie's versions of two of the most noteworthy incidents-the April 2014 incident involving the coroner's warrant and the June 2014 incident in which Katie's father was injured-were more credible than the defendant's versions. Likewise, as to the burning incident, the court found that Katie was a more credible witness than the defendant and that her version of the incident was more plausible. It concluded that the defendant's testimony was self-serving and defied logic. The court also noted that the defendant seemed "somewhat arrogant" and "to be braggadocios about his sexual exploits." However, it stated that it was looking past that in reaching its decision.

The trial court noted that when the defendant described the burning incident, he indicated that Katie placed her hands on her neck, the location where she was ablaze. However, there was no evidence that Katie's hands were burned. The trial court stated that Katie's failure to call the police or seek medical treatment after the incident is consistent with a history of domestic violence, and was not unreasonable because she had been under the defendant's dominion and control for so long. Further, the trial court found that it was even more unbelievable that the defendant did not call the police or the hospital if his version of the events was to be believed, based on his profession of love for Katie and the baby. The trial court noted that the defendant's statement that he wanted to kill Katie and the baby conflicted with his statement the day before the burning that he could not wait to be a dad. Also, the trial court stated that the defendant's post-burning statements, which included messages that he loved her and wanted to go on a vacation, and his devastation upon hearing of the loss of the baby, conflicted with his testimony that he was finished with Katie, he was moving out, and he slept with another woman. The trial court stated that the defendant's post-burning statements and actions did not support his version of the events. On the other hand, the trial court noted Katie's lack of emotion during trial, her past suicide attempt, her diagnosis of borderline personality disorder, and the fact that she did not go straight to the bathroom to extinguish the flames, but found that none of those factors raised reasonable doubt as to the defendant's guilt.

The trial court stated that, when Katie and the defendant were arguing about bills and cheating, the defendant became enraged and made a "snap decision" to douse Katie with alcohol and set her on fire. Also, although the trial court admitted that it struggled with the issue of specific intent, it believed that the defendant's statements that Katie needed to get an abortion or he would kill her and the baby, as well as the actual act of burning, were sufficient to establish the defendant's specific intent to kill.

On appeal, the defense argues that Katie "made up" the story of being set on fire by the defendant based on several inconsistent statements, her prior suicidal threats, and her actions after the incident in failing to seek medical attention. However, the trial judge found Katie's testimony credible. Although Katie made several inconsistent statements, the trial court was well aware of and considered these inconsistencies, in addition to the history of domestic violence between the parties, the plausibility of the defendant's version of the incident, Katie's and the defendant's actions after the incident, and Katie's history of mental health issues. The trial judge's credibility determinations are entitled to great deference, and we will not reevaluate the credibility of witnesses or reweigh evidence. Further, these inconsistencies are not sufficient to warrant the rejection of Katie's testimony as competent evidence of the defendant's guilt.

Considering the evidence in a light most favorable to the prosecution, Katie's testimony that the defendant poured alcohol on her and lit her on fire, and that she suffered second and third degree burns, was sufficient for the trial judge to conclude beyond a reasonable doubt that the defendant was guilty of domestic abuse battery by burning and attempted manslaughter. This assignment of error is without merit.

ERROR PATENT

Our review of the record reveals two errors patent.

First, the trial court imposed the defendant's sentences immediately after denying his motion for post-verdict judgment of acquittal, without obtaining a waiver of the sentencing delays in accordance with La. C. Cr. P. art. 873. However, it does not appear that La. C. Cr. P. art. 873 is applicable in this case because the trial court denied the motion for post-verdict judgment of acquittal as procedurally improper, rather than after considering the merits of the motion. Further, even if the trial court was required to obtain a waiver of the sentencing delay, this error is harmless as the defendant has not complained about the error or alleged that his sentences are excessive.

Second, the trial court minutes incorrectly state that the defendant's sentence for attempted manslaughter was to be served "without benefit of probation or parole." The sentencing transcript shows that the trial court did not restrict any benefits as to that sentence, and La. R.S. 14:27 and 14:31 do not require any restriction of benefits. When the transcript and the court minutes conflict, the transcript prevails. State v. Lynch , 441 So.2d 732 (La. 1983). Accordingly, we order that the trial court correct the court minutes to accurately reflect that the defendant's sentence for attempted manslaughter was imposed with no restriction of benefits.

CONCLUSION

The defendant's convictions and sentences are affirmed. We remand the matter to the trial court for correction of the minutes as discussed above.

AFFIRMED; REMANDED FOR CORRECTION OF COURT MINUTES.

      In State v. Williams , 04-1377 (La. App. 4 Cir. 12/1/04), 891 So.2d 26, the fourth circuit held that filing a motion for post-verdict judgment of acquittal following a bench trial is procedurally improper. See also State v. Barnett , 51,493-KW (La. App. 2 Cir. 4/4/17), writ denied , 17-0946 (La. 9/29/17), 227 So.3d 290 ; State v. Brown , 2011-1314 (La. App. 4 Cir. 6/13/12), 2012 WL 4760778.

      In 2008, at age 15, Katie was admitted to a facility after running away from home. In 2011, at age 18, she was admitted to a hospital after taking some pills after breaking up with a boyfriend. According to her parents, the event was an attempt to get attention, not a serious suicide attempt. At some point, she was diagnosed as having borderline personality disorder.

      She also testified that, as a result of the incident, her son was arrested for battery but pled guilty to misdemeanor theft. On cross-examination, she was confronted with the original charges, which were simple battery, aggravated battery, and simple criminal damage to property.

      After she was burned, Katie periodically used a monitor to check on the baby's heartbeat. As a result, she had believed that the baby was okay. However, she apparently had been hearing her own heartbeat.

      Photos of Katie's burns and her medical records were admitted at trial to show the extensive nature of her injuries. After her initial hospitalization at Morehouse General Hospital, she received treatment at a burn unit in Mississippi where she underwent multiple surgeries and skin grafts over a period of several months.

      Interestingly, the record indicates that the defendant was 6'2" and weighed about 170 pounds, while Katie was 5'4" and weighed about 130 pounds.

      This was not the same woman on the sex tape or the one with whom he was flirting who informed him that the police were looking for him after Katie was hospitalized.

      The record indicates considerable confusion about the fighting off/held down comment. Apparently, there was a phone conversation between Gerald, who was at Katie's trailer with the police, and Brenda, who was at the hospital with Katie. The parents relayed information between the police and Katie. Gerald, who was hard of hearing, admitted in his testimony that there might have been miscommunications or assumptions on his part or his wife's.

      At various points in the police interview, the defendant sobbed, wailed, and retched after being told that the baby was dead.

      As to the June 2014 incident, the trial court-which had the benefit of observing the appearances of the witnesses at trial-particularly noted the much younger and larger defendant's self-serving claim that he was "essentially attacked" by a man who was much older and "frail."

      La. C. Cr. P. art. 873 requires a 24-hour delay in sentencing after the denial of a motion for new trial or a motion in arrest of judgment, unless the defendant waives the delay. The article does not explicitly apply to motions for post-verdict judgment of acquittal. However, all of the circuits apply the sentencing delay to motions for post-verdict judgment of acquittal. State v. Zeno , 14-0325 (La. App. 1 Cir. 9/19/14), 155 So.3d 4, writ denied , 14-2167 (La. 5/22/15), 170 So.3d 983 ; State v. Joyner , 50,740 (La. App. 2 Cir. 6/22/16), 197 So.3d 724, writ denied , 16-1493 (La. 6/16/17), 219 So.3d 1111 ; State v. Westmoreland , 10-1408 (La. App. 3 Cir. 5/4/11), 63 So.3d 373, writ denied , 11-1660 (La. 1/20/12), 78 So.3d 140 ; State v. Dove , 15-0783 (La. App. 4 Cir. 5/4/16), 194 So.3d 92, writ denied , 16-1081 (La. 6/29/17), 222 So.3d 48 ; State v. Davis , 13-52 (La. App. 5 Cir. 8/27/13), 123 So.3d 751. But see State v. Harris , 42,376 (La. App. 2 Cir. 9/26/07), 966 So.2d 773, writ denied , 07-2109 (La. 3/28/08), 978 So.2d 304.


author: MOORE, J.

text:
    In re: Succession of Andrew DAVISSON, Sharon Cox and Michael Cox, Plaintiffs-Appellants v. Jordon DAVISSON, Defendant-Appellee
    No. 52,015-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 23, 2018
    MICHAEL D. COX, Michael D. Cox, sui juris
    SHARON COX, In Proper Person
    KEAN MILLER, LLP, By: Scott L. Zimmer, Shreveport, Counsel for Appellee
    Before BROWN, MOORE, and PITMAN, JJ.
   MOORE, J.

The plaintiffs, Sharon and Michael Cox, appeal a judgment that sustained exceptions of no cause of action, no right of action, and res judicata, and dismissed their claims against Jordon Davisson for money lent and services rendered to Jordon's father, Andrew Davisson, prior to his death. We affirm.

FACTUAL BACKGROUND

In 2012, Andrew Davisson was a 42-year-old man with serious mental health and drinking issues. For several years, he lived with his mother; at some point, they retained Michael Cox, an attorney in Bossier City, for various unspecified legal issues. The mother died in early 2012, and in March of that year, Andrew hired Michael to represent him in his mother's succession. Andrew also agreed to let Michael's wife, Sharon Cox, help him with his personal affairs, which included managing his own house, in Bossier City, his late mother's house, four doors down, and his grandmother's house, in Shreveport.

According to their petition, the Coxes rendered extraordinary services, helping Andrew renovate all three houses, negotiating the sale (to Sharon) of partial interests in the houses, lending him thousands of dollars, and providing general financial management. In May 2012, Andrew wrote an olographic will that disinherited his son, Jordon, for striking him, and left his entire estate to Sharon.

Andrew died in February 2014. Twelve days later, Sharon filed a petition to probate the olographic will; Michael signed the petition as Sharon's attorney. Jordon, the disinherited son, contested the will on grounds that Andrew lacked testamentary capacity and that the Coxes had wielded undue influence over him in his declining days; he also contended the sales of real estate to Sharon lacked adequate consideration.

After a three-day bench trial, the district court agreed with Jordon, finding that Andrew lacked physical and mental capacity to execute the will and that the will was the product of undue influence by the Coxes. The court also declared the sales of real estate to Sharon null and void for Michael's failure to use proper notarial form. A motion for reconsideration was filed by "Movers, Sharon Cox and Michael Cox," alleging that "both are judgment debtors." The district court denied reconsideration.

Sharon appealed. This court ruled that the record did not support the finding of Andrew's lack of testamentary capacity, but that it did support the finding of undue influence and the nullity of the cash sales. The Supreme Court denied Sharon's writ application. Succession of Davisson , 50,830 (La. App. 2 Cir. 12/22/16), 211 So.3d 597, writ denied , 2017-0307 (La. 4/7/17), 218 So.3d 111.

PROCEDURAL HISTORY

Twenty days later, Sharon and Michael filed the instant petition against Jordon, as "successor to the estate of Andrew Davisson" and who has "presumably accepted same." The Coxes traced a long and intricate narrative of their relationship with Andrew. In their telling, Andrew was the true manipulator, drawing them into an ever-deepening commitment of legal and personal services, in exchange for the understanding that he would remember them in his will. The Coxes recited items of uncompensated professional services and labor rendered to Andrew, and alleged that Andrew had repeatedly promised to repay them. Their demands totaled $164,000.

Jordon responded with peremptory exceptions of no cause of action, no right of action, and res judicata. In support of no cause and no right, he cited La. C.C. art. 1416 B, "A creditor has no action for payment of an estate debt against a universal successor who has not received property of the estate[,]" and the first sentence of La. C. C. P. art. 3246, "A creditor of a succession may not sue a succession representative to enforce a claim against the succession until the succession representative has rejected the claim." Jordon alleged that the estate was still under administration, he had not yet received any property, and the Coxes had never made any formal demand of the executor. In support of res judicata, Jordon cited La. R.S. 13:4231, arguing the judgment in the succession proceeding was final and valid; even though Sharon was the named plaintiff in the succession proceeding, Michael inserted himself into the case, even identifying himself as a "mover" in the motion for reconsideration; all the current claims existed at the time of the succession proceeding; and all the current claims arose out of the same transaction or occurrence. Jordon also showed that the Bossier Parish District Attorney had filed five bills of information against Michael for the "services" rendered to Andrew, so there was likely no legal basis for the claim of professional fees.

At the hearing on the exceptions, August 3, 2017, Michael represented himself and Sharon. He did not dispute the application of La. C.C. art. 1416and La. C. C. P. art. 3246. Instead, he argued that the cause of action in the succession, a summary proceeding to annul a will, was not identical to the current claim, for debt collection, and that the parties were not the same. Counsel for Jordon responded that all the current allegations "were specifically raised and addressed," not only at trial but in motions for new trial and for reconsideration.

ACTION OF THE DISTRICT COURT

The district judge ruled from the bench that he had read every word of the file and a summary of the testimony in the succession trial. He concluded that the current claims would not "pass the smell test." He then found that under Art. 1416, there was no appropriate person to sue, as the succession is still under administration. As to res judicata, he stated, "When you read the Second Circuit Court of Appeal's decision, all those [claims] have been disposed." He conceded that Michael raised some arguments, but "the court is not going to follow you down those rabbit holes." The court therefore sustained all exceptions and rendered judgment dismissing the Coxes' claims with prejudice.

The Coxes have appealed. By four assignments of error, they contend the court erred in (1) sustaining the exception of no cause of action, (2) sustaining the exception of no right of action, (3) sustaining the exception of res judicata, and (4) denying them due process.

DISCUSSION

By their first assignment of error, the Coxes contend the court erred in sustaining the exception of no cause of action. They contend that the law recognizes a claim for loans and services rendered.

The purpose of the exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. McCarthy v. Evolution Petr. Corp. , 2014-2607 (La. 10/14/15), 180 So.3d 252. La. C.C. art. 1416 B states, "A creditor has no action for payment of an estate debt against a universal successor who has not received property of the estate" (emphasis added). Jordon showed that he was a universal successor who had not yet received any property of the estate; clearly, the creditor has no action against him for an alleged estate debt. The first assignment of error therefore lacks merit.

In light of this finding, we pretermit any consideration of the Coxes' second assignment of error, regarding the exception of no right of action. Obviously, if no cause of action exists, it is immaterial to discuss who might own that cause of action. Landry v. Base Camp Mgmt. LLC , 2015-1377 (La. App. 1 Cir. 10/31/16), 206 So.3d 921, fn. 4, writ denied , 2016-2105 (La. 1/13/17), 215 So.3d 248.

By their third assignment of error, the Coxes urge the court erred in sustaining the exception of res judicata. They contend that "not one single claim" can be precluded by the prior suit, and that exceptional circumstances exist, deeply embedded in the petition and the expansive facts in both suits. By their fourth assignment, they concede that under R.S. 13:4231, absolute identity of the parties to both suits is not required, and that preclusion occurs if the nonparty "controlled" the prior litigation, Hudson v. City of Bossier , 33,620 (La. App. 2 Cir. 8/25/00), 766 So.2d 738, writ denied , 2000-2687 (La. 11/27/00), 775 So.2d 450. Even so, they contend, the concept of control or virtual representation must be narrowly construed and is not satisfied merely by showing the parties had common or parallel interests in the issues raised in the prior litigation, Gilbert v. Visone , 30,204 (La. App. 2 Cir. 2/25/98), 708 So.2d 496.

Res judicata is governed by La. R.S. 13:4231, which provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Under this statute, a second action is precluded when all of the following are satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Chauvin v. Exxon Mobil Corp. , 2014-0808 (La. 12/9/14), 158 So.3d 761. The chief inquiry is whether the second action asserts a cause of action which arises out of the transaction or occurrence that was the subject of the first action. Burguieres v. Pollingue , 2002-1385 (La. 2/25/03), 843 So.2d 1049. The preclusive effect of a judgment binds the parties to the action and nonparties who are deemed "privies" of the parties in these limited circumstances: (1) the nonparty is a successor in interest of a party; (2) the nonparty controlled the prior litigation; or (3) the nonparty's interests were adequately represented by a party to the action who may be considered the "virtual representative" of the nonparty because the interests of the party and the nonparty are so closely aligned. Forum for Equality PAC v. McKeithen , 2004-2551 (La. 1/19/05), 893 So.2d 738 ; Gilbert v. Visone , 30,204 (La. App. 2 Cir. 2/25/98), 708 So.2d 496.

The first two requirements set out in Chauvin are easily satisfied: the judgment in Succession of Cox is final, and there is no contention that it is a nullity. As for the third requirement, the parties are not absolutely identical, as only Sharon was the named plaintiff in Succession of Cox , while both Sharon and Michael are plaintiffs in the instant suit. However, in Succession of Cox , Michael drafted the plaintiff's petition and he was later disqualified from representing her because he was a "material witness." After hearing the evidence in Succession of Cox , the district court referred to "the second set of parties" as "Attorney Michael Cox * * * and his wife Sharon." Notably, the plaintiff's motion for reconsideration referred to "Movers, Sharon Cox and Michael Cox" and alleged that "Sharon Cox and Michael Cox [are] both judgment debtors and therefore * * * entitled to participate in any future hearings related to the aforementioned pleadings[.]" From these facts, it is clear that Michael either controlled the prior litigation or had his interest adequately represented by Sharon. The district court did not err in finding an identity of the parties by virtual representation.

As for the fourth requirement of Chauvin , the causes of action asserted in the instant suit existed when Sharon filed the first petition, as the Coxes alleged they provided loans and services to Andrew prior to his death. As for the fifth requirement, the loans and services were not technically the cause of the first petition, which was to probate Andrew's olographic will, but they arose from the same transaction, occurrence or course of conduct that fueled the dispute. If any elaboration were needed, this court's prior opinion recognized, "According to the Coxes, Andrew owed Michael over $10,000.00 in legal fees and owed Sharon $45,000.00 for taking care of him." We concluded, "The Coxes provide no evidence that Andrew owed them any money. To the contrary, the record suggests the Coxes owed Andrew money." In short, the issue of Andrew's alleged debts to the Coxes was actually litigated and determined in Succession of Davisson , satisfying R.S. 13:4231 (3) and the fifth requirement of Chauvin . The district court did not err in finding R.S. 13:4231 applied to bar this suit.

By their fourth assignment of error, the Coxes urge the district court denied them due process. Much of the argument overlaps res judicata, but they also contend that the district court impermissibly relied on a "smell test" and "rabbit holes," concepts which have no formal existence in the law and evinced a refusal to evaluate the actual facts of the case. They also argue that exceptional circumstances may justify relief from the res judicata effect of the prior judgment, La. R.S. 13:4232 A(1). While some of the judge's comments may have struck the Coxes as dismissive, he did not refuse to evaluate the evidence. Instead, he firmly stated that he had read a summary of the testimony in Succession of Davisson , as well as every word of the current file, and found that the arguments were diversionary-a conclusion that is not plainly wrong. We agree that exceptional circumstances may well exist, but they militate in favor of applying res judicata. The district court found, and this court affirmed, that the Coxes wielded undue influence over Andrew to disinherit Jordon and leave his whole estate to Sharon, and that Michael got Andrew to transfer real estate to Sharon by legally invalid instruments. The claim to be compensated for these "services" does not justify granting any relief from the application of res judicata. This assignment of error lacks merit.

CONCLUSION

For the reasons expressed, the judgment is affirmed. All costs are to be paid by the appellants, Sharon and Michael Cox.

AFFIRMED .

      The charges included filing false public records, unlawful exercise of notarial powers, theft of assets of an aged person, midgrade theft, and money laundering. This court takes judicial notice that a Bossier Parish jury found Michael guilty of unauthorized exercise of notarial powers on March 9, 2018; the conviction, obviously, is not final, and the other charges are pending.

      This court also takes judicial notice of the fact that the Supreme Court suspended Michael from the practice of law on January 24, 2018, after he filed his appellate brief in this matter. He notified this court that he would argue his case sui juris and that Sharon would argue hers in proper person; however, neither appeared for the oral argument they requested, on April 9, 2018.