text:
    SUCCESSION OF Raymond E. THEOBALD
    In re: the Matter of Raymond E. Theobald
    NO. 18-CA-241 NO. 18-CA-241 C/W 18-CA-242
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, EMILY T. WALET; CHRISTINE L. HERENDEEN, IN HER CAPACITY AS TRUSTEE FOR THE BANKRUPTCY ESTATE OF LUCY E. THEOBALD; AND DEAN R. THEOBALD, Brad P. Scott, Ashley U. Schmidt, New Orleans, O. Genevieve Leslie
    COUNSEL FOR PLAINTIFF/APPELLEE, DAVID M. DELYEA, JR., PAUL A. DELYEA, SR. AND ELIZABETH T. BAKER, Roberto A. Contreras, Kenner, Jeffrey A. Jones, Mandeville
    Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and John J. Molaison, Jr.
   CHAISSON, J.

This case arises from a dispute among the surviving relatives of Raymond E. Theobald ("Mr. Theobald") concerning the allocation of settlement proceeds from wrongful death and survival claims filed by an attorney on their behalf. Emily T. Walet, Lucy E. Theobald, and Dean R. Theobald appeal a September 26, 2017 judgment of the trial court that dispersed and divided equally among six legatees of Mr. Theobald's last will and testament the funds from the net proceeds of the settlement. For the following reasons, we reverse the judgment of the trial court and render judgment in favor of the appellants.

FACTS AND PROCEDURAL HISTORY

Mr. Theobald died as the result of being struck by a motor vehicle on June 14, 2009. At the time of his death, he was survived by three children, Emily T. Walet, Lucy E. Theobald, and Dean R. Theobald, and one grandchild, Elizabeth Baker, the daughter of his predeceased daughter, Ann-Marie Theobald. Through his marriage to Edna Bailly Theobald, Mr. Theobald was also survived by two step-children, David Delyea, Jr. and Paul A. Delyea, Sr., neither of whom were adopted by Mr. Theobald. Mr. Theobald left a last will and testament in which he named Emily, Lucy, Dean, Elizabeth, David and Paul as legatees of his estate in equal portions.

All six legatees named in Mr. Theobald's last will and testament retained attorney Bruce H. Lizana to make a claim against the driver of the vehicle that struck Mr. Theobald and the driver's liability insurer. In connection with his representation, Mr. Lizana requested and obtained an Acknowledgement and Waiver of Conflicts of Interests & Agreement for Disbursement of Proceeds (the "Conflict Waiver") individually from Emily, Lucy, Dean, Elizabeth, David and Paul.

The Conflict Waiver states:

To the Heirs of Raymond E. Theobald:

Below is your Informed Consent of my firm representing each of you, to which you have agreed after a careful consideration of all the facts and even though there are actual and potential conflicts of interest. I wish to remind you of the circumstances and facts that give rise to the conflicts of interest, which you each told me you did consider in making your decision.
This representation will include the Wrongful Death claim and Survivor Action that arise as the result of the automobile/pedestrian accident of Raymond E. Theobald that occurred on June 14, 2009 on West Esplanade Avenue in Jefferson Parish, Louisiana and resulted in his death.
You have each told me you understand that for the Wrongful Death claim and pursuant to Louisiana law only the natural children of the decedent, Raymond E. Theobald are entitled to file a claim or lawsuit for their damages for the loss of their father. That is Emily, Lucy and Dean. Step children and grandchildren who were not adopted are not entitled by law to file a claim or lawsuit for their loss. That is David, Paul and Elizabeth. You have each further told me you understand the Survival Action is part of the Estate of Raymond E. Theobald.
The conflicts arise for several reasons. First, each of the natural children, Emily, Lucy and Dean had a unique and different relationship with their father. It would be necessary to determine what each would be entitled to based upon their particular relationship. Next, it would be necessary to determine what portion of any proceeds recovered would be allocated to the Wrongful Death claims and what portion would be allocated to the Survival Action.
I previously recommended that each of you seek independent legal advice regarding the conflicts. You have each informed me that each of you has and that after considering all of the actual and potential conflicts you knowingly and voluntarily consent to representation by the firm, Bruce H. Lizana, a Professional Law Corporation, and waive any and all actual and potential conflicts of interest. You have each further told me that each of you has agreed to share any net proceeds recovered, that is after attorney's fees and expenses, on an equal basis of one-sixth (1/6) each. Please sign below confirming your decisions and agreements.

All of the parties signed identical but separate copies of this Conflict Waiver. After Mr. Lizana secured a settlement with Geico Insurance Company resolving the wrongful death and survival claims, Emily wrote a letter to Mr. Lizana on December 1, 2010, indicating that she could not agree to a disbursement of those funds until such time as "... the matters of the estate are fully settled." Subsequently, on January 19, 2012, Emily wrote a second letter to Mr. Lizana, on behalf of herself, Lucy, and Dean, instructing him not to distribute the funds per the prior "agreement," which she stated was made on the erroneous advice that Paul and David were eligible to receive money from the settlement.

On February 12, 2014, Mr. Lizana initiated concursus proceedings and deposited the settlement funds into the court registry. Paul and David filed a Motion to Disburse Funds seeking the equal distribution of funds pursuant to the Conflict Waiver. This motion was opposed by Emily. After hearing arguments on the motion, the trial court, on March 3, 2015, rendered judgment denying Paul and David's motion. The concursus proceedings were later consolidated with the succession proceedings of Mr. Theobald.

Emily, Lucy, and Dean then filed a Motion for Summary Judgment seeking to have the settlement funds dispersed to them in three equal shares, excluding Paul, David, and Elizabeth. Following other motions, the matter of the allocation of the settlement proceeds came to trial, after which, on September 26, 2017, the trial court rendered judgment decreeing that a valid and binding agreement to share equally in the settlement proceeds existed among the six parties.

On appeal, Emily, Lucy, and Dean argue that the trial court erred as follows: (1) in finding there existed a binding agreement; (2) in finding that Emily could not revoke her agreement to the Conflict Waiver; and (3) in failing to find that the consent of Emily was vitiated due to error based on misrepresentations made in the Conflict Waiver.

DISCUSSION

A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding which is manifestly erroneous or clearly wrong. Wooley v. Lucksinger , 09-0571 (La. 4/1/11), 61 So.3d 507, 554. When an appellate court finds that a reversible error of law or manifest error of material facts was made in the trial court, it is required, whenever the state of the record on appeal so allows, to redetermine the facts de novo from the entire record and render judgment on the merits without deference to the legal conclusions of the tribunal below. Id. at 555. In its reasons for judgment, the trial court found that all of Mr. Theobald's heirs had entered into a contractual agreement when they signed the Conflict Waiver and were therefore bound by its terms to share the settlement proceeds in equal one-sixth shares among them. As discussed more thoroughly below, this finding is based upon legal error, which requires this Court's de novo review.

Although they arise from a common tort, survival and wrongful death claims are separate and distinct causes of action. Lennie v. Exxon Mobil Corp. , 17-204 (La. App. 5 Cir. 6/27/18), 251 So.3d 637, 643. A survival action arises when a person who possesses a cause of action for injuries sustained by an offense or quasi offense subsequently dies, at which time the right to recover all damages for injury to the decedent is recognized in favor of certain statutorily-designated beneficiaries of the decedent. Id. A wrongful death action is recognized in favor of certain statutorily-designated beneficiaries of a person who dies due to the fault of another to recover damages which they themselves have sustained as a result of his death. Id. La. C.C. arts. 2315.1 and 2315.2 provide a ranking of beneficiaries, designated by classes according to relationship to the deceased, of those persons to whom the right to recover under survival and wrongful death actions belong, respectively. Any beneficiaries belonging to a higher classification possess the sole right to maintain the cause of action, and they exclude all other beneficiaries belonging to all lower classifications.

Pursuant to both of these statutes, the first class of beneficiaries in whose favor survival and wrongful death actions belong are "... [t]he surviving spouse and child or children of the deceased, or either the spouse or the child or children." La. C.C. arts. 2315.1(A)(1) and 2315.2(A)(1). Therefore, because Mr. Theobald had surviving children, the wrongful death and survival claims arising from his death accrued entirely to his surviving natural children, Emily, Lucy, and Dean, and not to his step-children, Paul and David, or his granddaughter, Elizabeth.

Contrary to the erroneous statement set forth in the Conflict Waiver, the survival action is not part of the estate of a decedent. In Haas v. Baton Rouge General Hospital , 364 So.2d 944, 945 (La. 1978), the Louisiana Supreme Court held:

The [survival] right of action does not pass through the victim's succession to be transmitted to his heirs as an inheritance. Instead, it devolves exclusively upon specially designated classes of beneficiaries or survivors set forth in [the Civil Code] article.

In the instant matter, Emily, Lucy, and Dean, as the only surviving natural children of the decedent, are the only parties vested with the right to recover damages for the wrongful death and survival actions relating to their father.

Having established that Emily, Lucy, and Dean are the only parties vested with rights to the proceeds of the wrongful death and survival actions, we next examine whether there was a valid agreement to transfer any portion of these rights to Paul, David and Elizabeth. In order to determine whether or not there was a valid transfer of any portion of these rights, it is imperative that we examine the exact nature of the agreement by which they were purportedly transferred.

We first note that it is clear from the language of the Conflict Waiver that it was obtained by Mr. Lizana in order that he could jointly represent six different individuals whose claims regarding the litigation might be adverse to one another. Although the Conflict Waiver also recites Mr. Lizana's understanding of the agreement reached between the parties, it does not purport to itself transfer any rights among the parties. The Conflict Waiver, which states that the parties have "... further told me that each of you has agreed to share any net proceeds recovered, that is after attorney's fees and expenses, on an equal basis of one-sixth (1/6) each," merely memorializes the verbal agreement previously reached among the parties.

Paul, David and Elizabeth contend that the agreement is a "contract of compromise," arguing that "[t]here was a dispute concerning a legal relationship, and the agreement to settle the dispute is a valid compromise, which precludes re-litigation of the dispute," citing La. C.C. arts. 3071, et seq. , the provisions of the Louisiana Civil Code dealing with compromise. La. C.C. art. 3071 defines compromise as "... a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship."

As regards the wrongful death and survival claims, although all statutorily-authorized claimants may be called upon to agree to a division of the proceeds of the settlement, the accident did not give rise to any liabilities or obligations that the claimants owed to one another that required a compromise among them. The only liability or obligation regarding the wrongful death and survival claims that was susceptible to compromise was the disputed liability or obligation of the tortfeasor and her insurer for Mr. Theobald's death. Furthermore, as previously established, Paul, David and Elizabeth, having no legal right to bring an action for those claims, had nothing to compromise with Emily, Lucy and Dean regarding those claims.

In an apparent attempt to bring their agreement within the definition of "compromise," Paul, David and Elizabeth argue that there was a dispute concerning some unspecified legal relationship. However, the record reveals that there was absolutely no evidence introduced regarding a dispute concerning a legal relationship, and Paul, David and Elizabeth do not expound upon this allegation or provide any explanation of what "legal relationship" was allegedly in dispute. Accordingly, we reject their characterization of the agreement regarding allocation of the settlement proceeds as a "contract of compromise" within the meaning of La. C.C. art. 3071.

Given that Paul, David and Elizabeth had no legal claim to any of the proceeds of the wrongful death or survival claims, they provided no consideration for Emily, Lucy and Dean's agreement to share the proceeds equally among the six parties. Therefore, any attempt to transfer a portion of those proceeds to them would have been a donation to them by Emily, Lucy and Dean. However, La. C.C. art. 1529 provides that "[a] donation inter vivos can have as its object only present property of the donor. If it includes future property, it shall be null with regard to that property."

At the time that the parties signed the Conflict Waiver memorializing their agreement to share the wrongful death and survival claim proceeds equally, no such proceeds had been received or distributed. Therefore, pursuant to La. C.C. art. 1529, there was no valid donation of a portion of these future proceeds to Paul, David and Elizabeth. Furthermore, there is no dispute that prior to disbursement of these proceeds, Emily wrote to Mr. Lizana on two occasions and advised him that due to the erroneous legal advice that he had provided regarding the parties who were entitled to these proceeds, the natural children were no longer in agreement to share these proceeds with Paul, David and Elizabeth. Where no consideration has been provided by the proposed recipients, we find nothing in the law that prevents the proposed donors of future property to rescind their agreement regarding that donation prior to the donation being consummated.

Having found no valid agreement to transfer any portion of the future proceeds of the wrongful death and survival claims to Paul, David or Elizabeth, we pretermit any discussion regarding Emily, Lucy and Dean's argument that their consent to such agreement was vitiated by the erroneous legal advice provided by Mr. Lizana.

DECREE

We therefore conclude that the trial court erred in finding there was a valid agreement for the six parties to share in the proceeds of the wrongful death and survival claims equally. Accordingly, we find that Emily, Lucy and Dean are the only parties entitled to share in the net proceeds of the wrongful death and survival claims. We reverse the judgment of the trial court and remand the matter for further proceedings consistent with this opinion.

REVERSED AND REMANDED

      Although the last will and testament of Mr. Theobald was not made part of the appellate record, all parties acknowledge that Emily, Lucy, Dean, Elizabeth, David and Paul were named as the legatees of Mr. Theobald's estate in equal portions.

      Although both appellants and appellees state in their briefs that a lawsuit was filed by Mr. Lizana, it appears from the record that this claim was settled with Geico Insurance Company without the necessity of filing a lawsuit.

      Grandchildren are not among the classes of beneficiaries to which the law grants the remedy of the wrongful death and survival actions. See Estate of Burch v. Hancock Holding Co. , 09-1839 (La. App. 1 Cir. 5/7/10), 39 So.3d 742, 748. Furthermore, although La. C.C. arts. 2315.1 and 2315.2 provide that the survival action and wrongful death action, respectively, are "heritable," the articles do not provide for representation of a 2315.1 or 2315.2 designated beneficiary who has predeceased the tort victim. See Dufrene v. Avondale Indus., Inc. , 01-1474 (La. App. 4 Cir. 8/22/01), 795 So.2d 456, 459 ; Day v. Day , 89-708 (La. App. 1 Cir. 5/30/90), 563 So.2d 441. Elizabeth's mother, having predeceased Mr. Theobald, had no survival or wrongful death action for Elizabeth to inherit pursuant to La. C.C. art. 2315.1 or La. C.C. art. 2315.2.

      Although La. C.C. art. 3082 provides that a compromise may be rescinded for error, it further provides that a compromise cannot be rescinded on grounds of error of law.

      The Conflict Waivers that memorialize the agreement reached among the parties each specifically provides that the agreement was "... to share any net proceeds recovered ..." (emphasis added).

      The law also sets forth requirements with regard to the form and content of the act of donation which do not appear to have been met in this case. See La. C.C. arts. 1541, 1542, and 1550 ; O'Krepki v. O'Krepki , 16-50 (La. App. 5 Cir. 5/26/16), 193 So.3d 574, 579.

      We disagree with Paul, David and Elizabeth's argument that "... entitlement to damages under the civil code is irrelevant in this matter ...," and their apparent contention that Paul, David and Elizabeth's lack of any legal right to pursue a survival claim was "... exactly the conflict explained to [Emily]..." and that that conflict was the conflict waived by Emily, Lucy and Dean in the Conflict Waiver.


source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    STATE of Louisiana v. Ronald M. MITCHELL
    NO. 18-KA-326
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Gail D. Schlosser, Harahan, Molly Massey
    COUNSEL FOR DEFENDANT/APPELLANT, RONALD M. MITCHELL, Gwendolyn K. Brown, Baton Rouge
    Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and John J. Molaison, Jr.
   CHAISSON, J.

Defendant, Ronald Mitchell, appeals his convictions and sentences for second degree murder and possession of a firearm by a convicted felon. On appeal, defendant contends that the trial court erred in allowing the admission of other crimes evidence at trial. For the reasons that follow, we find no merit to defendant's argument, and accordingly, we affirm his convictions and sentence.

PROCEDURAL HISTORY

On March 16, 2017, the Jefferson Parish Grand Jury returned an indictment charging defendant with second degree murder, in violation of La. R.S. 14:30.1 (count one), and possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (count two). On March 28, 2017, defendant was arraigned and pled not guilty.

On January 9, 2018, the matter proceeded to trial and continued until January 12, 2018, when the jury returned a verdict of guilty as charged on both counts. On January 25, 2018, the trial court sentenced defendant to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence on count one and twenty years at hard labor without benefit of probation, parole, or suspension of sentence and a $1,000.00 fine on count two.

Defendant now appeals.

FACTS

In the present case, it is uncontested that defendant shot and killed his ex-wife, Derice Bailey, on the evening of December 2, 2016, following an argument about the victim's alleged infidelities. According to evidence presented at trial, at approximately 6:04 p.m., Emilda Hamilton, a friend of the victim, received a Facebook call from the victim. Upon answering the call, Ms. Hamilton heard "tussling" and someone say "Stop!" "Get off of me," and "I can't breathe, stop!" Ms. Hamilton immediately contacted another friend, Chantrice Thomas, and asked her to go over to the victim's house because she and defendant were fighting. Ms. Thomas then contacted Daytona Tucker asking her to meet at the house, which was on Aero Street in Metairie. Ms. Tucker arrived first and began talking to Ms. Bailey and defendant. Ms. Thomas then arrived with her son, and the adults talked in the living room about defendant's allegation that the victim was cheating on him.

According to testimony at trial, the situation appeared to have settled down, and Ms. Tucker planned to bring defendant to his mother's house. At some point, defendant walked to the back of the house, returned with a gun, and forced Ms. Tucker, Ms. Thomas, and her son out of the house. Ms. Thomas immediately called 9-1-1.

Deputy Christopher Ohlmeyer with the Jefferson Parish Sheriff's Office responded to the call, and upon arrival to the area, he encountered Ms. Thomas, who advised him of the situation. As Deputy Ohlmeyer approached the front door of the house, he heard two gunshots. Shortly after the shots were fired, defendant exited the front door with his hands in the air.

Deputy Daniel Whamond, another responding officer, handled defendant while Deputy Ohlmeyer entered the residence and observed the deceased victim, Derice Bailey, laying on the floor in the kitchen. The victim's daughter, Derion Bailey, and son, Ronald Mitchell Jr., were also inside. Derion was near the kitchen area, visibly shaken, and was heard screaming, "why daddy, why did you kill mama?" Ronald was also visibly upset and screaming that defendant had killed his mother. While inside the home, police discovered a small black revolver, three live rounds, two spent casings, and a projectile, which were secured and collected as part of the investigation.

Defendant was transported to the detective bureau, and after being advised of his rights, gave a statement to Detective Jean Lincoln. In his statement, defendant admitted that he shot the victim twice with a revolver. Defendant confirmed that the two had been arguing for several days over messages he found from Cornell Anderson, whom he believed the victim had dated when they were separated. Defendant admitted that earlier that day, he snorted heroin and retrieved a black revolver that he hid at an abandoned house in case he had to protect himself from the individual with whom Ms. Bailey was allegedly having an affair. He claimed that Ms. Bailey had indicated that this individual wanted to protect her from defendant and would harm defendant. Defendant also admitted that during the conversation that evening, he became angry that the victim continued to lie to him about her cheating.

Defendant said that at one point, he looked out the window, saw the police coming towards the house, and shot his wife since he figured he was going to prison for a long time anyway because he was a felon in possession of a firearm.

ADMISSION OF OTHER CRIMES EVIDENCE

In his sole assigned error on appeal, defendant asserts that the trial court erred in allowing the admission at trial of several prior incidents of domestic abuse between himself and the victim as other crimes evidence under La. C.E. art. 404(B).

Generally, evidence of other crimes or bad acts committed by a criminal defendant is not admissible at trial. La. C.E. art. 404(B)(1) ; State v. Prieur , 277 So.2d 126, 128 (La. 1973). However, when evidence of other crimes tends to prove a material issue and has independent relevance other than to show that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to this rule. State v. Williams , 10-51 (La. App. 5 Cir. 7/27/10), 47 So.3d 467, 474. Evidence of other crimes is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding to such an extent that the State could not accurately present its case without reference to the prior bad acts. La. C.E. art. 404(B)(1) ; State v. Lawson , 08-123 (La. App. 5 Cir. 11/12/08), 1 So.3d 516, 525.

In order for other crimes evidence to be admitted under La. C.E. art. 404(B)(1), one of the factors enumerated in the article must be at issue, have some independent relevance, or be an element of the crime charged. Lawson , 1 So.3d at 525. Moreover, the probative value of the extraneous evidence must outweigh the prejudicial effect. La. C.E. art. 403. The burden is on the defendant to show that he was prejudiced by the admission of the other crimes evidence. Absent an abuse of discretion, a trial court's ruling on the admissibility of evidence pursuant to La. C.E. art 404(B)(1) will not be disturbed. State v. Granger , 12-193 (La. App. 5 Cir. 10/30/12), 103 So.3d 576, 589, writ denied , 12-2587 (La. 4/26/13), 112 So.3d 840.

On December 22, 2017, the State filed its "Notice of Intent to Introduce Evidence of Other Acts" in accordance with State v. Prieur , supra. The State alleged that defendant had a lengthy history of domestic abuse of the victim and sought the introduction of several prior incidents to show intent, motive, plan, preparation, knowledge, opportunity, and lack of mistake or accident under La. C.E. art. 404(B) for the charge of second degree murder. The State also alleged that the evidence was admissible under La. C.E. art. 412.4 as evidence of defendant's prior abusive behavior against the victim, a family or household member, and relevant as they involved the same parties and demonstrated the volatile nature of the relationship between the victim and defendant.

Specifically, the State sought the introduction at trial of the following incidents: on November 11, 2007, defendant grabbed the victim by the hair and slammed her to the floor, left the home, and then threatened the victim on her cell phone. A temporary restraining order and protective order were issued as a result, and defendant pled guilty to committing acts of domestic violence and battery; on November 24, 2008, defendant chased the victim with a brick and threatened to beat her in the presence of Derion, her minor child. Defendant was arrested, and a protective order was issued. Defendant subsequently pled guilty to aggravated assault; on March 30, 2012, defendant went to the victim's work place, slapped her, and threatened to kill her. Defendant was arrested for domestic abuse battery, but the charge was refused; on May 21, 2015, the victim called the police and reported that defendant had punched her in the face several times and threatened her with a knife. Derion witnessed that incident, and defendant was arrested on a warrant. Defendant was charged with domestic abuse battery, and the matter was pending at the time of the victim's murder; on July 1, 2015, the victim called the police and reported that defendant had kicked her in the side and punctured her tires. While the police were speaking with the victim, defendant sent a text message to the victim, indicating that he was preparing himself to serve a life sentence. Defendant was charged with harassing phone calls, and a protective order was issued. That matter was also pending at the time of the victim's murder.

A Prieur hearing was held in January of 2018. At that time, the State introduced into evidence, and the trial court admitted, the fifteen exhibits attached to its notice of intent. Following the admission of the evidence, the State argued that it had met the notice requirement of Prieur and restated, as was set forth in its notice of intent, that the evidence was admissible under La. C.E. art. 404(B) for the purposes of showing preparation, knowledge, lack of mistake or accident, and most importantly, for specific intent and motive and under La. C.E. art. 412.4 to show defendant's abusive history towards the victim. Further, the State argued that the probative value outweighed the prejudicial effect as it would allow the jury to hear the escalation of abuse and domestic violence prior to the date of the victim's death and to rebut any potential allegations of self-defense.

In response, defendant argued that the fifteen exhibits admitted would only inflame the jury and lead the jury to think he was a "horrible person." Defendant argued that even in light of La. C.E. art. 412.4, the evidence was overly prejudicial. After considering the arguments of counsel, the trial court granted the State's notice of intent to introduce evidence of other crimes. Pursuant to this ruling, the State, at trial, presented witness testimony and evidence concerning the prior incidents of abuse between defendant and the victim.

Defendant now challenges this ruling. He argues that there was no valid basis for admitting this prejudicial evidence as it was not relevant to any genuine issues in this case. Particularly, he points out although the evidence was offered purportedly to show intent, motive, plan, knowledge, opportunity, and lack of accident or mistake for the charge of second degree murder, there was no assertion that the shooting was accidental or that he was not the shooter. As such, defendant maintains that the probative value of this evidence was entirely lacking, and its admission at trial severely prejudiced him.

Having considered defendant's arguments in light of the applicable law, we find that the trial court did not abuse its discretion in allowing the admission at trial of the prior incidents of domestic abuse between defendant and the victim. See La. C.E. arts. 404(B)(1) and 412.4.

This Court has consistently upheld the admission at trial of similar other crimes evidence. For example, in State v. Adams , 11-980 (La. App. 5 Cir. 4/24/12), 89 So.3d 435, 445, writ denied , 12-1629 (La. 4/19/13), 111 So.3d 1027, this Court found that the trial court did not err in allowing the admission of evidence of five instances of domestic abuse, battery, and threats involving the defendant and the victim, who had been involved in a romantic relationship, pursuant to La.C.E. art. 404(B)(1). This Court determined that the other crimes evidence was substantially relevant for showing the defendant's motive for the charged offenses. Further, this Court noted that the State could not have placed the circumstances of the offenses in their proper context without reference to the nature of the relationship existing between the victim and the defendant. In addition, this Court determined that the primary purpose of the evidence was not to prove the defendant's bad character but to illustrate the volatile nature of his relationship with the victim.

In State v. Marshall , 13-233 (La. App. 5 Cir. 10/30/13), 128 So.3d 1156, 1161, this Court found that the defendant's prior acts of domestic abuse against the victim were independently relevant to show the volatile nature of their relationship as well as the defendant's motive. This Court further noted that the State could not place the circumstances of the offense in their proper context without reference to the nature of the relationship existing between the defendant and the victim. See also State v. Granger , 103 So.3d at 591-92, and State v. Cotton , 07-782 (La. App. 5 Cir. 2/19/08), 980 So.2d 34, 44, writ denied , 08-603 (La. 10/3/08), 992 So.2d 1010.

Likewise, in the instant case, we find that the prior incidents of domestic abuse between defendant and the victim were highly relevant to show defendant's motive for committing the crime. Defendant himself indicated that he became angry over his belief that the victim was cheating on him. Further, his prior acts toward the victim placed the shooting on December 2, 2016, in its proper context and demonstrated to the jury the nature of the parties' relationship. Also, the purpose of the evidence was independently relevant to illustrate their volatile relationship and the pattern of abuse, and thus, the probative value outweighed the prejudicial effect. It is also noted that the trial judge gave a limiting instruction to the jury prior to its deliberation.

Based on the foregoing, we find no abuse of discretion in the trial court's admission of the prior incidents of domestic violence. Nevertheless, even if improperly admitted, an improper reference to other crimes evidence is subject to the harmless error rule. The test for determining harmless error is whether the verdict actually rendered in the case was surely unattributable to the error. State v. McGowan , 16-130 (La. App. 5 Cir. 8/10/16), 199 So.3d 1156, 1161-62.

In the instant case, even without the admission of the prior incidents of domestic abuse, the evidence presented by the State was clearly sufficient to prove defendant's guilt of murdering the victim by shooting her twice in their home and in the presence of their children. The jury heard defendant's own admission that he shot the victim twice, and both Derion and Ronald Jr., who witnessed the shooting, recounted that defendant shot and killed the victim. Several of the parties' friends were aware that the two had a history of domestic violence, and they were fighting over defendant's belief that the victim was cheating on him in the days leading to the shooting. Therefore, given this abundance of evidence, the guilty verdict of second degree murder rendered in this case was surely unattributable to any alleged error in in admitting the prior incidents of abuse.

In light of the foregoing, we find no merit to the arguments advanced by defendant in this assigned error.

ERRORS PATENT REVIEW

We have also reviewed the record for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990). In the present case, the transcript reflects that the trial court failed to advise defendant of the prescriptive period for filing an application for post-conviction relief as required by La. C.Cr.P. art. 930.8. By means of this opinion, we correct this error and inform defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922. State v. Oliver , 14-428 (La. App. 5 Cir. 11/25/14), 165 So.3d 970, 978, writ denied , 14-2693 (La. 10/9/15), 178 So.3d 1001.

Accordingly, for the reasons set forth herein, defendant's convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED

      At trial, the parties stipulated that defendant had a 2003 conviction for simple robbery in 24th Judicial District Court case number 03-1361.

      In the statement given to police, defendant provided that he and the victim were in a relationship since 1999, were married in 2013, and were divorced in 2015. They were living together with their two children at the time of this incident, as they had recently reunited.

      Both children gave forensic interviews and testified at trial regarding the circumstances surrounding the December 2, 2016 shooting of their mother. The children confirmed that Ms. Bailey and defendant had been arguing about text messages she had received, and that defendant shot their mother two times despite their pleas not to shoot her.

      In his appellate brief, defendant's challenges to the admissibility of the other crimes evidence is based on La. C.E. art. 404(B)(1). We note that the evidence of the prior incidents of domestic abuse was also properly admitted pursuant to the provisions of La. C.E. art. 412.4, which specifically provides that when an accused is charged with a crime involving abusive behavior against a family or household member, evidence of the accused's commission of another crime, wrong, or act involving assaultive behavior against a family or household member may be admissible and may be considered for its bearing on any matter to which it is relevant, subject to the balancing test provided in La. C.E. art. 403.


author: JOHNSON, J.

text:
    Newell NORMAND, Sheriff & Ex-Officio Tax Collector for the Parish of Jefferson v. WAL-MART.COM USA, LLC
    NO. 18-CA-211
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, JOSEPH P. LOPINTO, III, SHERIFF AND EX-OFFICIO TAX COLLECTOR FOR THE PARISH OF JEFFERSON (SUCCESSOR IN OFFICE TO SHERIFF NEWELL NORMAND), Kenneth C. Fonte, Metairie
    COUNSEL FOR DEFENDANT/APPELLANT, WAL-MART.COM USA, LLC, Jeffrey A. Friedman, Charles C. Kearns, Martin E. Landrieu, New Orleans
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and John J. Molaison, Jr.
   JOHNSON, J.

In this tax collection case, Defendant, Wal-Mart.com USA, LLC ("Walmart.com"), appeals the trial court's judgment finding it liable for sales tax on transactions involving third-party retailers on its online marketplace. For the following reasons, we affirm the judgment of the trial court.

FACTS & PROCEDURAL HISTORY

The facts of this case are undisputed. Walmart.com operates an online marketplace ("the Marketplace") where it, along with third-party retailers, sell their goods. Specifically, Walmart.com sells inventory it owns on the website and facilitates the sales of goods owned by third-party retailers who list their goods for sale on the Marketplace. Visitors to the Walmart.com website have the opportunity to buy goods from Walmart.com or the third-party retailers.

In order to sell their goods on the Marketplace, the third-party retailers must enter into a contract with Walmart.com. This contract, the Marketplace Retailer Agreement ("the Agreement"), provides that the third-party retailer will be the seller of record. It further requires that the third-party retailer provide certain information for each product sold, including the product name, a description of the product, an image, the price, and the product tax code.

Under the contract, customers of the Walmart.com website place orders for the third-party retailer's goods using the Walmart.com checkout system, and Walmart.com collects all of the proceeds from such transactions. Thereafter, Walmart.com electronically transmits the order information, including the customer's name, email address and shipping address, to the third-party retailer who is solely responsible for fulfillment of the order, including packaging and shipping the goods to the customer. The third-party retailer is also responsible for customer service, including all cancellations, returns and refunds. Further, items purchased from the third-party retailer cannot be picked up at or returned to a physical Wal-Mart store. In exchange for allowing third-party retailers to sell their goods on the Marketplace, Walmart.com receives compensation from the third-party retailers in the form of a referral fee percentage, which is set forth in the Agreement, for each product sold by the third-party retailer on the Marketplace.

The Agreement further sets forth the tax policies applicable to the third-party retailers. It specifically provides that the third-party retailer is solely liable for any tax liabilities, including sales and use taxes. The Agreement offers an option to the third-party retailer for Walmart.com to collect the applicable taxes on its behalf, but the third-party retailer is responsible for remitting the taxes to the proper government agencies.

For each year from 2009 through 2015, Walmart.com filed its Jefferson Parish Quarterly Sales and Use Tax Returns, in which it reported all sales made by Walmart.com to customers in Jefferson Parish and remitted the required sales tax. It did not report or remit sales tax for those sales made by the third-party retailers on its Marketplace. Plaintiff, Newell Normand, Sheriff and Ex-Officio Tax Collector for the Parish of Jefferson, through his successor in office Sheriff Joseph P. Lopinto, III ("the Tax Collector"), subsequently conducted an audit of Walmart.com for the period of January 1, 2009 through December 31, 2015. As a result of the audit, the Tax Collector determined that additional sales taxes were owed by Walmart.com for sales involving the third-party retailers on the Marketplace.

On February 16, 2017, the Tax Collector filed a Rule for Taxes alleging Walmart.com failed to collect and remit local sales taxes from its customers for certain Jefferson Parish retail sales transactions - specifically those sales transactions involving third party retailers. Relying on the audit report, the Tax Collector sought unpaid sales taxes in the amount of $1,896,882.15, along with interests, penalties, audit fees, and attorney fees. After a three-day trial over a period of three months, the trial court rendered judgment on March 2, 2018, in favor of the Tax Collector for the uncollected taxes involving sales of third-party retailers in the amount of $137,944.25, plus interest and attorney fees. The trial court issued reasons for judgment explaining that the obligation to collect and remit local sales and use taxes is imposed on a "dealer" and that the statutory definition of "dealer" is not limited to a retail seller. The trial court determined that Walmart.com was a "dealer" as defined in La. R.S. 47:301(4)(l), and therefore, as a "dealer," it was responsible for the sales tax obligation arising from the sales of third-party retailers on its Marketplace. Walmart.com appeals this judgment.

ISSUES

Walmart.com raises several issues on appeal. First, it argues the trial court erred in finding Walmart.com liable for taxes attributable to sales made by third-party retailers when it never had title or possession of the property being sold and never transferred title or possession. Second, it contends the trial court erred in applying La. R.S. 47:301(4)(l). And, third, it argues the imposition of a sales tax obligation on Walmart.com for sales made by third-party retailers violates federal law.

DISCUSSION

Louisiana state law imposes a sales and use tax on every item of tangible personal property sold or used in Louisiana.

La. R.S. 47:302(A). Additionally, the Louisiana Constitution, Article VI, § 29, authorizes a local governmental subdivision to levy a tax on the sale or use of tangible personal property. Under this authority, Jefferson Parish has adopted by reference the Uniform Local Sales Tax Code - set forth in La. R.S. 47:337.1 through 47:337.100 and the definitions set forth in La. R.S. 47:301 - and has imposed a sales and use tax on each item of tangible personal property sold, used, consumed, distributed or stored in Jefferson Parish. Jefferson Parish Uniform Local Sales Tax Code Ordinance, Sections 35-16 and 35-22 through 35-24.1; Normand v. Cox Communications Louisiana, LLC , 14-563 (La. App. 5 Cir. 12/23/14), 167 So.3d 156, 159, writ denied , 15-158 (La. 4/10/15), 163 So.3d 815.

Under La. R.S. 47:337.17(A)(1), the sales tax "shall be collected by the dealer from the purchaser or consumer." Subsection C further provides that any dealer who fails to collect the sales tax shall be liable for the tax and pay the tax himself.

"Dealer" is generally defined in La. R.S. 47:301(4) as "every person who manufacturers or produces tangible personal property for sale at retail, for use, or consumption, or distribution, or for storage to be used or consumed in a taxing jurisdiction." La. R.S. 47:301(4) subsections (a) through (l) further define the term "dealer" for purposes of the sales and use tax. Under subsection (l), a "dealer" includes

[e]very person who engages in regular or systematic solicitation of a consumer market in the taxing jurisdiction by the distribution of catalogs, periodicals, advertising fliers, or other advertising, or by means of print, radio or television media, by mail, telegraphy, telephone, computer data base, cable, optic, microwave, or other communication system.

"Sale at retail" is defined in pertinent part as "a sale to a consumer or to any other person for any person other than for resale as tangible personal property." La. R.S. 47:301(10)(a)(i). And, "sale" is defined in pertinent part as "any transfer of title or possession, or both."

The crux of Walmart.com's argument is that it is not responsible for collecting sales tax because it is not a "dealer" as it was not the seller in the transactions at issue - it neither transferred title nor possessed the property. It maintains the term "dealer" necessarily refers to the "seller" in the transaction; therefore, it asserts that the definition of "dealer" under La. R.S. 47:301(4)(l) is irrelevant because Walmart.com was not the "seller." Walmart.com argues that to apply the definition of a "dealer," set forth in La. R.S. 47:301(4)(l), to a facilitator of a sale is contrary to the legislative history of the statute.

"It is a fundamental principle of statutory interpretation that when a 'law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the intent of the legislature.' " McLane Southern, Inc. v. Bridges , 11-1141 (La. 1/24/12), 84 So.3d 479, 483 (internal citation omitted). In interpreting statutes, the court must give the words of a law their generally prevailing meaning. La. C.C. art. 11. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. La. C.C. art. 12. The meaning of words or phrases may be ascertained by the words and phrases with which they are associated. Normand , 167 So.3d at 159. Words of general meaning should be applied only to such classes of things of the same general kind as those specifically mentioned. The meaning of a word in a statute must be determined in light of the statute as a whole. Id.

While taxing statutes must be strictly construed against the taxing authority, this rule of construction favorable to the taxpayer only applies where a tax is susceptible of more than one reasonable interpretation and the intent of the legislature is ambiguously expressed in the laws. McLane , 84 So.3d at 485. We find the statutory provisions at issue are clear and unambiguous.

The legislature specifically used the word "dealer" as opposed to "seller" in setting forth the party responsible for collecting sales tax. The legislature then provided detailed definitions of who constituted a "dealer." Had the legislature intended that a "dealer" be limited to a "seller," it would have used the term "seller" rather than "dealer." The legislature's choice of the term "dealer" and its definition clearly encompasses a wider group of people than "seller." Therefore, we find no merit in Walmart.com's argument that the definition of "dealer" provided in La. R.S. 47:301(4)(l) is only applicable when dealing with a seller in a transaction.

The question then becomes whether Walmart.com is a "dealer" as defined in the statute. The trial court made a factual determination that Walmart.com was a "dealer" under La. R.S. 47:301(4)(l). Specifically, the trial court found the Marketplace "provides to third-party Marketplace retailers the service of enabling them to reach new customers." It further concluded the Marketplace is a service "that brings retailers and customers together, facilitating retailers 'gaining new customers, providing various services such as facilitates transaction, facilitating payment processing, and taking on risks of fraudulent activity and customers, as well as advising and making sure the retailer's products are found by potential new customers.' " As such, it found Walmart.com engaged in "regular or systematic solicitation of a consumer market" in Jefferson Parish and, thus, was a "dealer" as defined by statute.

The factual findings of the trial court are subject to a manifest error standard of review. Under this standard, in order to reverse a trial court's findings, an appellate court must conduct a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong. Troxler v. Breaux , 12-330 (La. App. 5 Cir. 11/27/12), 105 So.3d 944, 949. The issue for the appellate court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was reasonable. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing 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. Accordingly, where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Id. Upon review of the record, we do not find the trial court's factual findings in this regard to be manifestly erroneous.

Insofar as Walmart.com argues that the law imposing an obligation on a marketplace facilitator, as a dealer, to collect sales tax on the sales of a third-party retailer on its website violates federal law and is discriminatory, we find it is effectively challenging the constitutionality of the tax statutes. Since Walmart.com did not challenge the constitutionality of the law at the trial court level, these issues are not properly before us. See Vallo v. Gayle Oil Co., Inc. , 94-1238 (La. 11/30/94), 646 So.2d 859, 864-65.

DECREE

For the foregoing reasons, we affirm the trial court's March 2, 2018 judgment in favor of Plaintiff, Newell Normand, Sheriff and Ex-Officio Tax Collector for the Parish of Jefferson, through his successor in office Sheriff Joseph P. Lopinto, III, and against Defendant, Walmart.com, for the uncollected taxes involving sales of third-party retailers on its online Marketplace.

AFFIRMED

      We note that the Tax Collector did not answer the appeal and does not challenge any part of the judgment.


text:
    The CENTER FOR CONSTITUTIONAL RIGHTS v. ST. CHARLES PARISH SHERIFF'S OFFICE and Greg Champagne, in His Official Capacity as Sheriff of St. Charles Parish and Custodian of Records
    NO. 18-CA-274
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, THE CENTER FOR CONSTITUTIONAL RIGHTS, William P. Quigley, Pamela C. Spees, Lake Charles
    COUNSEL FOR DEFENDANT/APPELLEE, GREG CHAMPAGNE, IN HIS OFFICIAL CAPACITY AS SHERIFF OF ST. CHARLES PARISH AND CUSTODIAN OF RECORDS, Wiley J. Beevers, Shayna Beevers Morvant, Steven M. Mauterer, Gretna
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Marc E. Johnson
   JOHNSON, J.

Plaintiff/Appellant, The Center for Constitutional Rights (hereinafter referred to as "TCCR"), appeals the involuntary dismissal of its petition for writ of mandamus in favor Defendant/Appellee, Sheriff Greg Champagne, from the 29th Judicial District Court, Division "C". For the following reasons, we reverse and render judgment.

FACTS AND PROCEDURAL HISTORY

On September 18, 2017, TCCR sent a request to the Custodian of Records at the St. Charles Parish Sheriff's Office (hereinafter referred to as "the Sheriff's Office"), pursuant to the Louisiana Public Records Law, La. R.S. 44:1 et seq. TCCR requested copies of any and all public records regarding nine categories. Specifically, information regarding Sheriff Greg Champagne's trip to North Dakota in October 2016 in response to the protests against the Dakota Access Pipeline Project, any travel by the employees of the Sheriff's Office to North Dakota in connection with the Dakota Access Pipeline and/or protests against it, and all records and communications relating to the Sheriff's Office's implementation of the Emergency Management Assistance Compact (hereinafter referred to as "EMAC") signed by Governor John Bel Edwards on June 19, 2016 and activities undertaken by the Sheriff's Office pursuant to the EMAC was requested by TCCR.

On October 17, 2017, Captain Maurice Bostick, the Director of Business and Legal Affairs for the Sheriff's Office, sent certified copies of approximately 60 pages of records to TCCR in response to the request. The correspondence accompanying the certified copies simply stated, "Enclosed please find certified copies of the records responsive to your request." TCCR replied to Captain Bostick regarding the records on October 27, 2017, stating the records supplied by the Sheriff's Office were insufficient and requested information about the specific searches conducted for the records. When it received no response from the Sheriff's Office concerning its October 17th letter, TCCR filed a "Petition for Writ of Mandamus under the Louisiana Public Records Act" on December 13, 2017.

In its petition, TCCR alleged that Sheriff Champagne, in his official capacity as Sheriff and custodian of records for St. Charles Parish, and the Sheriff's Office violated the public records act when they failed to adequately respond to the September 18, 2017 request. The petition specifically alleged that the response was silent as to the records concerning requests one, three, four, five, six and seven, and the response did not indicate whether the records were being withheld pursuant to a statutory exemption. TCCR sought to have a writ of mandamus issued that would direct Sheriff Champagne and the Sheriff's Office to disclose the requested records and attorney's fees, costs, damages, and civil penalties.

In response to the petition, on December 27, 2017, Sheriff Champagne filed a peremptory exception of no cause of action and a dilatory exception of lack of procedural capacity. In his brief, Sheriff Champagne argued that, in his official capacity, he was the proper person to be sued and was the person against whom the cause of action arose, not the entity of the Sheriff's Office, and TCCR-a foreign entity to the State of Louisiana-did not have the legal capacity to file the petition for writ of mandamus. Sheriff Champagne also filed a motion to strike, seeking to strike portions of TCCR's petition that were claimed to contain irrelevant and politically charged allegations. On the same date, Sheriff Champagne also filed an "Opposition to Petition and Amended Petition for Writ of Mandamus under Louisiana Public Records Act," asserting that no contradictory hearing was necessary to summarily dismiss TCCR's petition; many of the requested documents were not public records; and the custodian of records is not required to speculate as to the nature and scope of the requests to determine if they exist.

The exceptions, motion to strike, and trial were heard on January 3, 2018. Prior to the start of the trial, the parties stipulated to dismiss the Sheriff's Office from the action. The trial court overruled the exception of lack of procedural capacity on the basis that TCCR transacted business in this state. It then granted Sheriff Champagne's motion to strike paragraphs from TCCR's petition.

Once the trial commenced, TCCR presented the testimonies of Sheriff Champagne, Captain Bostick, and Captain Patrick Yoes, the Commander of the Special Services Division for the Sheriff's Office. At the conclusion of the TCCR's case-in-chief, Sheriff Champagne orally moved for an involuntary dismissal of TCCR's petition arguing TCCR's request failed to meet the requirements of the public records act. The trial court granted the motion, finding Sheriff Champagne demonstrated a substantial degree of compliance with the public records request, and dismissed TCCR's action. In a written judgment rendered on January 3, 2018, the trial court sustained the exception of no cause of action and dismissed all of TCCR's claims against the Sheriff's Office; overruled the exception of lack of procedural capacity; struck paragraphs 1-7 from TCCR's petition; granted Sheriff Champagne's oral motion for involuntary dismissal and dismissed TCCR's petition for writ of mandamus against him; and cast all of the costs on TCCR. The instant appeal followed.

ASSIGNMENTS OF ERROR

On appeal, TCCR alleges the trial court erred in: 1) finding that Sheriff Champagne complied with its obligation under the Louisiana Public Records Act; 2) dismissing the action against Sheriff Champagne and not requiring him to produce receipts and other documentation related to the official, work-related travel of the Sheriff's Office personnel; and 3) dismissing the action without requiring Sheriff Champagne to conduct a further search for responsive records, in light of the evidence that additional records existed at one point in time.

LAW AND ANALYSIS

Involuntary Dismissal Law

In an action tried before a judge, after the plaintiff has completed the presentation of his evidence, any party-without waiving his right to offer evidence in the event the motion is not granted-may move for a dismissal of the action as to him on the basis that the plaintiff failed to show his right to relief based upon the facts and the law. La. C.C.P. art. 1672(B). The court may then determine the facts and render judgment in favor of the moving party and against the plaintiff, or it may decline to render any judgment until the close of all the evidence. Id.

To avoid an involuntary dismissal of his action, the plaintiff must establish his claim by a preponderance of the evidence. Smith v. Warren , 18-453 (La. App. 5 Cir. 8/6/18), 253 So.3d 260, 263, citing Christiano v. S. Scrap Recycling , 13-595 (La. App. 5 Cir. 12/27/13), 131 So.3d 1059, 1063. In considering whether the plaintiff has met this burden, the trial court is not required to review the evidence presented in the light most favorable to the plaintiff. Id. The trial court is vested with much discretion when ruling on a motion for involuntary dismissal, and a reviewing court may not reverse the ruling on a motion for involuntary dismissal, unless the ruling is manifestly erroneous or clearly wrong. Id. The issue to be resolved on appeal is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Christiano , supra , citing Brock v. Singleton , 10-550 (La. App. 5 Cir. 3/29/11), 65 So.3d 649, 660, writ denied 11-1216 (La. 9/23/11), 69 So.3d 1160.

Production of Receipts and Documentation

TCCR alleges the trial court erred in finding that Sheriff Champagne complied with the public records request, dismissing the action against Sheriff Champagne, and not requiring him to produce receipts and other documentation related to the official, work-related travel of the Sheriff's Office personnel. It argues that the receipts and supporting documentation relating to the official travel by the Sheriff's Office personnel to North Dakota are public records-as defined in the Louisiana Public Records Law-and were withheld by Sheriff Champagne; therefore, they should have been produced in response to the request. TCCR contends that the trips made by the employees of the Sheriff's Office were made pursuant to the EMAC-based upon agreements between the states of Louisiana and North Dakota-and authorized by Sheriff Champagne, and are public records because they concern the receipt or payment of any money received or paid under the authority of this State. It further contends that, while Sheriff Champagne produced some documentation that contained a listing of the expenses at issue, there is nothing that exempts Sheriff Champagne from producing copies of the actual receipts and other supporting documentation.

Sheriff Champagne argues the trial court correctly ruled that he complied with the request for public records. He avers that TCCR was never denied the right to inspect, copy, reproduce, or obtain reproduction of the public records of the Sheriff's Office. Sheriff Champagne maintains that he went to North Dakota as a member of the National Sheriff's Association and the employees sent to North Dakota were deputized by the Morton County Sheriff's Office in North Dakota; thus, he was not obligated and/or authorized to produce copies of those entities' records. He further avers that the requests of TCCR were vague, and he was not legally required to guess the nature and scope of the requests in order to determine if particular documents existed.

The right of the public to access public records is a fundamental right guaranteed by both the Louisiana Constitution and the Public Records Law. Muhammad v. Office of Dist. Attorney for Par. of St. James , 16-9 (La. App. 5 Cir. 4/27/16), 191 So.3d 1149, 1156. According to La. R.S. 44:31,

A. Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees.
B. (1) Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter, any person of the age of majority may inspect, copy, or reproduce any public record.
(2) Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter, any person may obtain a copy or reproduction of any public record.
(3) The burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian.

The constitutional right of the public to access public records must be construed liberally in favor of free and unrestricted access to the records, and that access can be denied only when a law specifically and unequivocally provides otherwise. Louisiana Capital Assistance Ctr. v. Dinvaut , 16-383 (La. App. 5 Cir. 12/7/16), 207 So.3d 1187, 1194, citing Muhammad , 191 So.3d at 1156-57. Whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public's right of access. Id. Nevertheless, the burden of proving that a public record is not subject to inspection, copying, or reproduction remains with the custodian. La. R.S. 44:31(B)(2) ; Muhammad , supra .

At trial, Sheriff Champagne testified during TCCR's case-in-chief. He explained that his two trips to North Dakota in October 2016 were on behalf of the National Sheriff's Association, and the Sheriff's Office did not pay for his expenses on those trips. He further explained that the deployments of the employees of the Sheriff's Office to North Dakota in relation to the "Standing Rock" protests was in response to an EMAC request from the North Dakota, and the deployments were not expenses of the St. Charles Parish taxpayers. However, he later explained that expenses are reimbursed in connection with assisting the requesting state, and reimbursements occurred for the deployments in question. When questioned about receipt of TCCR's public records request, Sheriff Champagne testified that the requests were handled by Captain Bostick, as Captain Bostick was delegated the tasks of gathering the information and responding to the requests.

Captain Bostick also testified for during TCCR's case-in-chief. He stated that he was the in-house counsel and the Director of Business and Legal Affairs for the Sheriff's Office. When questioned whether documentation supporting the EMAC data, e.g. , receipts or invoices, sent to TCCR existed, Captain Bostick responded, "I'm sure there are receipts that back up any entry in the entire EMAC file for audit purposes." However, he did not consider the receipts to be responsive to the request because the EMAC file was produced.

As previously mentioned, TCCR requested copies of any and all public records relating to any travel by the employees of the Sheriff's Office to North Dakota in October 2016 in response to the protests against the Dakota Access Pipeline Project. According to La. R.S. 44:1(2)(a),

All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers...regardless of physical form or characteristics, including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function, which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state...or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state, are "public records", except as otherwise provided in this Chapter or the Constitution of Louisiana.

If any public record applied for by any authorized person is not in the custody or control of the person to whom the application is made, such person shall promptly certify this in writing to the applicant. La. R.S. 44:34. The certification shall state in detail, to the best of the custodian's knowledge and belief, the reason for the absence of the record from his custody or control, its location, what person then has custody of the record and the manner and method, and the exact time at which his custody or control was taken. Id. He shall include in the certificate ample and detailed answers to inquiries of the applicant which may facilitate the exercise of the right granted by that provision. Id.

Here, Captain Bostick testified there "probably" were receipts that were not produced to TCCR in response to its request. Receipts for the travel by the employees of the Sheriff's Office to North Dakota in October 2016 in response to the protests against the Dakota Access Pipeline Project fall within the definition of public records. Additionally, whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public's right of access. Louisiana Capital Assistance Ctr. , supra . As such, the doubt of whether TCCR should have access to the receipts in question that are in the possession of Sheriff Champagne must be resolved in favor of TCCR's right of access. Furthermore, if Sheriff Champagne was not authorized to produce the receipts, he did not comply with La. R.S. 44:34 because he failed to certify the reason for the absence of the receipts from the record.

Therefore, we find that the trial court's conclusion that Sheriff Champagne complied with the public records request in this matter was manifestly erroneous. The testimony presented at trial proved by a preponderance of the evidence that Sheriff Champagne possessed public records that were not produced pursuant to TCCR's request. Accordingly, we find that TCCR is entitled to any and all receipts for the travel by the employees of the Sheriff's Office to North Dakota in October 2016 in response to the protests against the Dakota Access Pipeline Project that are in the possession of Sheriff Champagne.

Additional Search

TCCR alleges the trial court erred in dismissing the action without requiring Sheriff Champagne to conduct a further search for responsive records relating to the trip to North Dakota by the personnel of the Sheriff's Office, in light of the evidence that additional records existed at one point in time. It argues that Sheriff Champagne acted arbitrarily and capriciously and conducted an inadequate and incomplete search without a reasonable basis. TCCR specifically argues that the existence of videos related to the employee's travel to North Dakota was confirmed through testimony, and the trial court should have ordered Sheriff Champagne to confirm whether the records still exist.

Sheriff Champagne argues that he did not act arbitrary or capriciously in responding to the request for public records. He maintains that no public records of the Sheriff's Office were withheld and all responsive documents that were located were produced to TCCR. He avers the trial court does not have the authority to order him to conduct a further search for documents that where not specifically requested.

At trial, Captain Yoes, the Commander of the Special Services Division, testified that he was sent to North Dakota and brought cameras from the Sheriff's Office with him. He stated that he was deputized as a deputy for the Martin County Sheriff's Office , and he used a number of cameras while there. Once he finished his work, the files from the devices were loaded on a hard drive, and he provided all of the files relating to the EMAC to the county's sheriff and the public information officer. Captain Yoes testified that there may be some electronic files that still exist; however, to his knowledge, no one has searched those cameras for records.

La. R.S. 44:1(2)(a) provides that photographs, tapes, and recordings, regardless of the physical form or characteristics, are considered public records, when used by a public body to conduct any authorized business, transaction, work, duty, or function. Pursuant to La. R.S. 44:36(C), the electronic files on those cameras should have been preserved for, at least, three years from the date on which the pictures were taken. If they exist, the files on the Sheriff's Office's cameras referred to by Captain Yoes fall within the definition of public records, and those files should have been produced to TCCR.

Therefore, we again find that the trial court's conclusion that Sheriff Champagne complied with the public records request in this matter was manifestly erroneous. The testimony presented at trial proved by a preponderance of the evidence that Sheriff Champagne possessed public records, i.e. , the electronic files stored on the Sheriff's Office's cameras, which were not produced pursuant to TCCR's request. Accordingly, we find that TCCR is entitled to the electronic files stored on the Sheriff's Office's cameras that were taken by the employees while on duty in North Dakota in 2016, if they still exist. We further find, after consideration of the efforts put forth to satisfy the request, that Sheriff Champagne was not arbitrary and capricious in his response to TCCR's public records request.

DECREE

For the foregoing reasons, we reverse the trial court's judgment that granted Sheriff Champagne's oral motion for involuntary dismissal and dismissed TCCR's petition for writ of mandamus. We render judgment in favor of TCCR, enjoin Sheriff Champagne from withholding public records, and grant mandamus relief by ordering Sheriff Champagne to produce the receipts for the travel by the employees of the Sheriff's Office to North Dakota in October 2016 in response to the protests against the Dakota Access Pipeline Project and the electronic files stored on the Sheriff's Office's cameras that are in his possession, in compliance with the Louisiana Public Records Law. In the event that Sheriff Champagne is unable to produce the ordered records, he is directed to comply with La. R.S. 44:34. We decline to render any awards to TCCR pursuant to La. R.S. 44:35(D)(1) or (E)(1).

REVERSED; JUDGMENT RENDERED

      TCCR later amended its petition on December 18, 2017.

      Assignment of error number one is interrelated to assignments two and three. Thus, the first assignment will be addressed within assignments of error two and three.

      In his brief to this Court, Sheriff Champagne represents that the county's name is "Morton."


author: WICKER, J.

text:
    Thomas G. WILKINSON v. Karen PARKER
    NO. 18-CA-431
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, THOMAS G. WILKINSON, Roland A. Ditta, Gretna
    COUNSEL FOR DEFENDANT/APPELLEE, KAREN PARKER, Daniel E. Broussard, Jr., Alexandria
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Marc E. Johnson
   WICKER, J.

This case is before us for review of a May 22, 2018 judgment in the Twenty-Fourth Judicial District Court sustaining an Exception of Lack of Jurisdiction Over the Subject Matter raised by defendant/appellee, Karen Parker. For the following reasons we reverse the judgment of the state district court and remand the matter for further proceedings consistent with this opinion.

BACKGROUND

On February 25, 2013, the United States District Court of the Eastern District of Louisiana imposed judgment against appellant, Thomas Wilkinson, and appellee, Karen Parker, who entered guilty pleas in connection with a federal criminal case and were sentenced. A specific condition of both appellant and appellee's sentences was restitution in the amount of $160,430.15 to the government of Jefferson Parish Louisiana (Jefferson Parish). Appellant and appellee, along with two co-defendants, were each found to be joint and severally liable for the full restitution amount, $160,430.15. On January 25, 2017, the United States Department of Justice executed a Certificate of Release of Lien Imposed Under the Mandatory Victims Restitution Act of 1996 in favor of appellant, thereby canceling the lien issued in the Eastern District Court's judgment.

On January 11, 2018, appellant filed a petition in the Twenty-Fourth Judicial District Court alleging that the virile portion of restitution he owed to Jefferson Parish as a result of his federal conviction was $66,997.39; however, he averred that he paid $97,426.79 in restitution, "approximately $30,431.40 over and above his virile share." Therefore, appellant sought contribution from appellee in the amount of $30,431.40 along with legal interest, proceeding costs, and general and equitable relief, arguing that she failed to pay $30,431.40 of her $40,107.58 virile portion in restitution owed to Jefferson Parish.

On April 17, 2018, appellee filed an Exception of Lack of Jurisdiction Over the Subject Matter in the state district court in which she alleged appellant sought to alter, modify, or amend a judgment rendered in a federal criminal proceeding, which she argued was outside of the state district court's jurisdiction. On the same day, appellee filed a memorandum in support of her exception in which she further alleged that appellant's petition sought to require appellee to pay more in restitution than she was sentenced to pay by the sentencing judge and argued that the decision concerning the amount of restitution remained with the sentencing federal court and not with the state district court. The state district court set a hearing on the exception for May 22, 2018.

Appellant filed an opposition to the exception in which he argued that the state district court is the proper forum in which to seek contribution. He maintained that he was not seeking to change, modify, or adjust the amount of restitution ordered by the federal court, but rather was seeking to recover appellee's virile share of the ordered restitution as he had paid both his virile share and the vast portion of hers. Appellant specifically referenced the clause contained in all four restitution orders finding appellee to be "joint and severally" liable with her co-defendants for payment of the $160,430.15 restitution to Jefferson Parish as the basis for his position that appellee is responsible for a one-fourth virile portion, or $40,107.53, of the aforementioned restitution amount. Therefore, appellant argued that the present case is an action for contribution among solidary obligors and not an actor to alter or amend the federal court sentence and restitution order.

On May 22, 2018, the state district court sustained appellee's Exception of Lack of Jurisdiction Over the Subject Matter and dismissed the matter assessing costs against appellant. The court found that it lacked subject matter jurisdiction because it deemed the issue to be a federal criminal matter in which the federal court judge could "waive or not waive restitution at any given time from a particular party." The court further stated, "There's apparently a schedule that that judge authorized. As a result, this Court does not find it has subject matter jurisdiction." The present appeal arises from this judgment.

ISSUE

Appellant argues that the state district court erred in holding that it did not have subject matter jurisdiction over a claim for contribution between two solidary obligors under La. C.C. art. 1804. He further argues that Louisiana state courts have jurisdiction over a claim for contribution by one solidary obligor against another solidary obligor after the whole performance has been rendered. Therefore, appellant avers that no state or federal law deprives Louisiana state courts of hearing claims in subsequent civil proceedings which arise after the conclusion of a federal criminal case. He maintains that the statute, 18 U.S.C. § 3664, relied upon by the state district court is inapplicable because restitution had been fully paid. Appellant asserts that he does not seek to modify a federal sentence imposed on appellee, but seeks a claim of contribution against appellee.

LAW AND ANALYSIS

The exception of lack of subject matter jurisdiction is a question of law and is reviewed de novo . Ryan Gootee General Contractors, LLC v. Plaquemines Parish School Board & One Construction, Inc. , 15-325, p. 9 (La. App. 5 Cir. 11/19/15), 180 So.3d 588, 595. Subject matter jurisdiction refers to the courts' legal power and authority to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2. A judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void. La. C.C.P. art. 3. Thus, the issue of subject matter jurisdiction addresses the court's authority to adjudicate the cause before it. Boudreaux v. State Dep't of Transp. & Dev. , 01-1329, pp. 7-8 (La. 2/26/02), 815 So.2d 7, 12-13.

The issue before us is whether a defendant in a federal criminal proceeding who has been ordered to pay restitution as a "joint and several"/ solidary obligor has a right to bring a claim for contribution in a state district court upon complete payment or release from an order of restitution. We find that if an obligation of restitution imposed in a federal court is satisfied, a solidary obligor may subsequently bring a claim for contribution against another solidary obligor in the appropriate state court.

In the present case, appellee and appellant were ordered to pay restitution under the Mandatory Victims Restitution Act of 1996 (MVRA). MVRA mandates restitution to victims of certain offenses and sets forth the procedure for the issuance and enforcement of an order of restitution. 18 U.S.C.S. §§ 3663A - 3664. A sentence that imposes an order of restitution is a final judgment, even though there are certain limited circumstances in which it may be corrected or amended. See 18 U.S.C.S. § 3664(j)(2), (o)(1)-(2). Once a restitution order is imposed, MVRA leaves the United States District Court with limited options to modify restitution. United States v. Hankins , 858 F.3d 1273, 1276 (9th Cir. 2017).

The obligation of restitution is a continuous one which terminates by the later of 20 years from the entry of judgment or 20 years after the release from imprisonment of the person ordered to pay restitution. Id. ; 18 U.S.C.S. § 3613(b). An obligation of restitution also extinguishes upon satisfaction of the obligation. See United States v. Ramirez , 2010 U.S. Dist. LEXIS 129210 (D.N.J. 12/2/10).

Here, the United States District Court for the Eastern District Court of Louisiana ordered appellant, appellee, and two other defendants to pay Jefferson Parish $160,430.15 and made them joint and severally liable for 100% of the amount due. Appellant alleges that appellee only made $4,600 in restitution payments to Jefferson Parish and that he made $97,426.79 in restitution payments. The record reflects that on January 25, 2017, the United States Department of Justice executed a Certificate of Release of Lien Imposed Under the Mandatory Victims Restitution Act of 1996 in favor of appellant whereby the lien and statutory requirements and additions associated with the judgment were canceled. In canceling the lien, the obligation of the remaining joint and severally liable defendants to make further payments to Jefferson Parish was extinguished. Thus, canceling the lien satisfied the sentence imposed upon all defendants as it related to the payment of restitution to Jefferson Parish.

We recognize that much of appellee's argument centers on the theory that any decision by the state court regarding contribution will, in effect, modify the restitution order imposed by the United States District Court against appellee under 18 U.S.C. § 3664. However, the federal court found appellee to be joint and severally liable with the other three defendants for the entire $160,430.15, merely specifying that she would pay the restitution at the monthly rate of $100.00; this did not relieve her of joint and several liability. Also, in making payments which benefited all defendants obligated to pay the restitution, appellant quickened appellee's satisfaction of her obligation to pay restitution in that appellee no longer bears the obligation to make monthly restitution payments to satisfy the claims of Jefferson Parish against her. Furthermore, we find that reliance on 18 U.S.C. § 3663(a) - 3664 is not appropriate in this case in that both statutes refer to imposition and enforcement of unsatisfied claims of restitution on behalf of the victim. In the present case, the restitution obligation to the victim, Jefferson Parish, has been fulfilled and its claim against the defendants satisfied. Therefore, any argument regarding the modification of restitution imposed in this matter is inapposite and moot as the obligation to pay restitution has been extinguished.

We are left to consider the question of whether a Louisiana state court has jurisdiction over a claim for contribution in a case in which the basis for the contribution claim is the joint and several obligation of criminal co-defendants to pay sums owed to an entity.

Louisiana courts have long acknowledged that the common law term "joint and several" is synonymous with the civil law term "in solido". See Mary v. Lupin Foundation , 609 So.2d 184 (La. 1992) ; Touchard v. Williams , supra . La. C.C. art. 1796 states that the "solidarity of obligation shall not be presumed. A solidary obligation arises from a clear expression of the parties' intent or from the law." La. C.C. art. 1786 identifies three forms of obligations. It states:

When an obligation binds more than one obligor to one obligee, or binds one obligor to more than one obligee, or binds more than one obligor to more than one oblige, the obligation may be several, joint, or solidary.

Article 1794 defines a solidary obligation for an obligor in stating:

An obligation is solidary for the obligors when each obligor is liable for the whole performance. A performance rendered by one of the solidary obligors relieves the others of liability toward the obligee.

Article 1795 states:

An obligee, at his choice, may demand the whole performance from any of his solidary obligors. A solidary obligor may not request division of the debt. Unless the obligation is extinguished, an obligee may institute action against any of his solidary obligors even after institution of action against another solidary obligor.

Article 1804 provides in the relevant part:

Among solidary obligors, each is liable for his virile portion. [...] If the obligation arises from an offense or quasi-offense, a virile portion is proportionate to the fault of each obligor.
A solidary obligor who has rendered the whole performance, though subrogated to the right of the obligee, may claim from the other obligors no more than the virile portion of each....

In the present case, the United States District Court of the Eastern District of Louisiana deemed appellee, appellant, and two other co-defendants "joint and severally" liable to Jefferson Parish for $160,430.15. As a solidary obligor, appellant and appellee were equally responsible to make monthly payments to Jefferson Parish in restitution until the total amount of restitution was paid. The federal court ordered that appellant, appellee, and co-defendant, Aaron Broussard be 100% liable for the restitution amount to be paid to Jefferson Parish. Another co-defendant, Timothy Whitmer, was added as the result of a latter trial where the Eastern District ordered that Mr. Whitmer be:

"jointly and severally" liable for the restitution with Aaron Broussard, Thomas, Wilkinson, and Karen Parker, who are defendants in a related case. The defendant shall make restitution to the Jefferson Parish Government, but no further payment shall be required after the sum of the amounts actually paid by all defendants has fully covered all of the compensable injuries.

When appellant made the final restitution payment, he extinguished the obligation of future payments to the benefit of his other obligors. In making payments, in what appellant argues is above his virile portion, appellant avers he has a right to seek contribution to the extent of appellee's virile share of the obligation. As the obligation has been extinguished in the federal court, appellant may seek to assert any rights he believes he is entitled to in the state court. Since subject matter jurisdiction relates to substantive matters pertaining to rights, duties, and obligations (see Tillis v. McNeil , 17-673 (La. App. 5 Cir. 5/30/18), 249 So.3d 303 ), we find that the state district court has jurisdiction over the subject matter of this case involving a claim for contribution. We express no opinion as to the merits of appellant's claim.

CONCLUSION

For the aforementioned reasons, we find that the state district court erred in sustaining appellee's Exception of Lack of Jurisdiction Over the Subject Matter . We reverse the judgment of the state district court and remand the matter for further proceedings.

REVERSED AND REMANDED

      Thomas Wilkinson pled guilty to Conspiracy to Commit Misprisions of a Felony in violation of 18 U.S.C. § 371. Along with paying restitution, Mr. Wilkinson was sentenced to three years of probation and prohibited from practicing law during his probationary period. He was further prohibited from applying for, soliciting, or incurring further debt without the written permission of the United States Probation Officer. Karen Parker pled guilty to Misprision of a Felony in violation of 18 U.S.C. § 4 and was sentenced to three years of probation, payment of restitution, and prohibited from applying for, soliciting, or incurring further debt without the written permission of the United States Probation Officer.

      Appellant alleges that the $160,430.15 owed in restitution is related to Ms. Parker's employment as a paralegal in the Jefferson Parish Attorney's Office.

      The District Court for the Eastern District found appellant, Thomas Wilkinson, joint and severally liable with co-defendant, Aaron Broussard, for the full restitution figure in the amount of $214,209.94 and ordered him to pay an initial lump sum payment of $53,779.79 with the balance due upon termination of his probation. The sentencing documents submitted into the record do not indicate the per month amount, if any, Mr. Wilkinson was required to pay in restitution.
      The court found Appellee, Karen Parker, joint and severally liable with appellant and co-defendant, Aaron Broussard, for part of the restitution figure in the amount of $160,430.15. She was ordered to pay $100 per month in restitution payments to the United States District Clerks' Office.
      In a subsequent related case also filed in the Eastern District of Louisiana, defendant, Timothy Whitmer, pled guilty to Misprision of a Felony in violation of 18 U.S.C. § 4 and was ordered to pay restitution to Jefferson Parish in the amount of $160,430.15 as a joint and severally liable defendant with Aaron Broussard, Thomas Wilkinson, and Karen Parker. The court further held that "...no further payment shall be required after the sum of the amount actually paid by all defendants has fully covered all of the compensable injuries."

      Louisiana courts have found the phrase "joint and severally" to be synonymous with "in solido." See Touchard v. Williams , 617 So.2d 885 (La. 1993).

      Although the amount in dispute is not before us for review, we take judicial notice that $66,997.39 subtracted from $97,426.79 equals $30,429.40. This is a two dollar difference from the amount appellant avers he paid above his virile share.

      Appellee averred that she "fully complied with her sentence in the federal court judgment and continued to pay $100.00 a month towards her restitution until said restitution amount was fully liquidated."

      As previously discussed, in making Mr. Whitmer joint and severally liable to Jefferson Parish for restitution, the court held "... but no further payments shall be required after the sum of the amounts actually paid by all defendants has fully covered all of the compensable injuries."

      We are not able to ascertain from the record the exact amount appellant was responsible to pay per month in restitution; however, the record reflects that appellee was required to pay $100 per month in restitution to Jefferson Parish.