author: THIBODEAUX, Chief Judge.

text:
    Randy LEBLANC v. Fred Alan THIBODEAUX, et al.
    18-96
    Court of Appeal of Louisiana, Third Circuit.
    September 26, 2018
    Jacques P. Soileau, Soileau & Soileau, 219 W. Bridge Street, Breaux Bridge, LA 70517, Telephone: (337) 332-4561, COUNSEL FOR: Defendants/Appellees - Fred Alan Thibodeaux and Virginia Thibodeaux
    Harold D. Register, III, P. O. Box 2473, Lafayette, LA 70501, Telephone: (337) 291-2431, COUNSEL FOR: Plaintiff/Appellant - Randy LeBlanc
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.
   THIBODEAUX, Chief Judge.

The plaintiff, Randy LeBlanc, appeals the judgment of the trial court granting an exception of prescription in favor of the defendants, Fred and Virginia Thibodeaux (Thibodeaux), in a dispute over an aborted business deal. Mr. LeBlanc alleges a ten-year prescription based on detrimental reliance and unjust enrichment, while Thibodeaux asserts a liberative prescription of three years arguing a claim for money owed. Finding no manifest error on the part of the trial judge, we affirm the judgment.

I.

ISSUES

We must decide whether the trial court was manifestly erroneous in finding that the plaintiff's action against the defendants had prescribed and in dismissing the plaintiff's suit.

II.

FACTS AND PROCEDURAL HISTORY

Virginia Thibodeaux owned a business called Country Windshields in Arnaudville, Louisiana. Her husband, Fred Thibodeaux, described himself as the shop foreman. Randy LeBlanc apparently owned LeBlanc's Automotive and Glass LLC in Lafayette. In February 2009, Randy LeBlanc and Fred Thibodeaux discussed the sale of Thibodeaux's windshield business to LeBlanc. Mr. LeBlanc alleges that the parties reached an agreement on an installment-type sale of the building for $3,000 per month for twelve years. Mr. Thibodeaux states that he and Mr. LeBlanc discussed $3,000 per month, but only as an estimate; that Mr. LeBlanc was in a hurry for some reason; that he (Mr. Thibodeaux) was not ready to finalize a contract to sell; that he had not "spoken to the boss" (Virginia Thibodeaux); and that negotiations were ongoing when the parties reached an impasse in May of 2009. It is undisputed that Mr. LeBlanc never paid any installments or monthly payments to Thibodeaux. Mr. Thibodeaux testified that there were never any signed papers; and that there was no agreement, no contract, and nothing final between them regarding a sale. The record contains no written contract or agreement between the parties.

Around February of 2009, Mr. LeBlanc asked, and was given permission, to build offices in part of Thibodeaux's building. He incurred expenses in the form of lumber and material purchases for flooring, wiring, painting, electrical supplies, and labor. He also sent two of his employees to inspection school at the cost of $160 each. When the impasse on the sale price was reached in May of 2009, Mr. Thibodeaux agreed to pay for Mr. LeBlanc's expenditures, and he asked for LeBlanc's bills. The record contains an invoice dated May 7, 2009, from "LeBlanc's Automotive and Glass LLC" in Lafayette, listing materials and labor "Sold to" "Country Windshields" in St. Martinville. The total on the invoice is $14,244.35. Mr. LeBlanc incorporated the text of this invoice into his petition and entered the invoice as "Plaintiff's Exhibit 1."

Mr. LeBlanc's only other exhibit was a copy of a check dated May 8, 2009, written by payor "Country Windshields, Inc." to payee "LeBlanc's Automotive and Glass" in the amount of $14,104.35, which Mr. LeBlanc entered as "Plaintiff's Exhibit 2." Mr. LeBlanc testified that a copy of Thibodeaux's check was faxed to him, but he never received the actual instrument/check.

Mr. LeBlanc testified that he went to Thibodeaux's house and lawyer's office repeatedly, but never got paid. Mr. Thibodeaux testified that LeBlanc brought additional receipts; that Mr. Thibodeaux wrote an even larger check than the above-referenced; and that he called LeBlanc repeatedly to pick up the check at the lawyer's office, but LeBlanc would not answer his phone. In questioning Mr. LeBlanc, Mr. Thibodeaux's attorney asked if Mr. LeBlanc had refused to sign the release that accompanied the check, and Mr. LeBlanc indicated that was because the check was for only $6,000 at that time. The only testimony given was that of Mr. LeBlanc and Mr. Thibodeaux, and the only exhibits entered were those of the plaintiff described in the preceding paragraph.

Mr. LeBlanc filed suit in November of 2014, over five years after the invoice/demand was given to Thibodeaux in May of 2009. Thibodeaux brought an exception of prescription. After some initial no-shows by the plaintiff and/or his lawyer, the exception was tried, with the above testimony and evidence entered into the record. The trial court granted the exception, and Mr. LeBlanc filed the appeal now under review.

III.

STANDARD OF REVIEW

Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Campo v. Correa , 01-2707, p. 7 (La. 6/21/02), 828 So.2d 502, 508. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. [ Id. ]; Williams v. Sewerage & Water Bd. of New Orleans , 611 So.2d 1383, 1386 (La.1993). If evidence is introduced at the hearing on the peremptory exception of prescription, the district court's findings of fact are reviewed under the manifest error-clearly wrong standard of review. Stobart v. State, Through DOTD , 617 So.2d 880, 882 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-83.

Carter v. Haygood , 04-646, pp. 8-9 (La. 1/19/05), 892 So.2d 1261, 1267.

IV.

LAW AND DISCUSSION

Mr. LeBlanc contends that the trial court erred in finding that his suit against Thibodeaux had prescribed because, he argues, the applicable prescriptive period is ten years pursuant to La.Civ.Code art. 3499. In support of his position, Mr. LeBlanc argues that (1) a valid oral contract existed under La.Civ.Code arts. 1906 and 1927, which Thibodeaux breached by refusing to sell the property. Mr. LeBlanc further argues that (2) he sustained damages under La.Civ.Code art. 1967 because he detrimentally relied upon Mr. Thibodeaux's promise to sell, which is also in the contract realm. Mr. LeBlanc finally argues that (3) Thibodeaux was unjustly enriched under La.Civ.Code art. 2298 by Mr. LeBlanc's expenditures, also arising under a ten-year prescriptive period.

Thibodeaux, on the other hand, argues that there was no contract, agreement, or promise to sell; and that the applicable prescriptive period is three years under La.Civ.Code art. 3494 because LeBlanc's action is for the recovery of money owed and compensation for services rendered, or, an action on an open account. Thus, he argues, the action is prescribed. Thibodeaux further argues that, because the amount of the alleged contract was well over $500, the contract or agreement must be proved by at least one witness and corroborating circumstances, pursuant to La.Civ.Code art. 1846, which it was not.

We find no manifest error in the trial court's judgment granting the Thibodeaux's exception of prescription and dismissing Mr. LeBlanc's suit. The parties are conflating a contract to sell Country Windshields and the obligation to repay the money that Mr. LeBlanc spent on a building that he did not own. We agree with Thibodeaux that the contract to sell the business was never perfected. It was never reduced to writing, which is a requirement for the sale of immovable property. La.Civ.Code arts. 2440 and 1832. However, Mr. LeBlanc's petition does not seek to enforce the sale. He seeks to recover the expenses evidenced in the invoice, which Thibodeaux agreed to pay upon presentation of the bills in 2009. This is the undisputed agreement between the parties .

Mr. LeBlanc's petition incorporates the invoice for supplies and labor in the amount of $14,244.35, and this is purportedly actual money that Mr. LeBlanc spent, which he seeks to recover. It is well-settled: "The character of an action disclosed in the pleadings determines the prescriptive period applicable to that action." Starns v. Emmons , 538 So.2d 275, 277 (La.1989). A suit to recover money is specifically addressed in La.Civ.Code art. 3494, and it is this article's three-year prescriptive period that applies in this case. Its applicability turns on the specificity of La.Civ.Code art. 3494 and the fact that it is an exception to the residual rule in La.Civ.Code art. 3499.

Comparison of Articles 3494 and 3499

Louisiana Civil Code Article 3494, prior to its amendment in 2018, stated in pertinent part (emphasis added):

The following actions are subject to a liberative prescription of three years:
(1) An action for the recovery of compensation for services rendered , including payment of salaries, wages, commissions, tuition fees , professional fees, fees and emoluments of public officials, freight, passage, money , lodging, and board;
....
(4) An action on an open account ....
....

Louisiana Civil Code Article 3499 states (emphasis added): "Unless otherwise provided by legislation , a personal action is subject to a liberative prescription of ten years."

The Louisiana Supreme Court in Grabert v. Iberia Parish School Board , 93-2715 (La. 7/5/94), 638 So.2d 645, explained the applicability of La.Civ.Code art. 3494 to specific claims enumerated therein, rather than La.Civ.Code art. 3499, which is the general statute applying only to personal claims not otherwise provided for in other legislation. This was true, even though the claims arose from breach of contract. There, tenured employees under four-year contracts sought wages not paid according to the proper salary index. The supreme court stated:

A petition claiming breach of contract by the payment of wages less than what is due and seeking judgment for the underpaid wages is clearly a cause of action asserting the right to recover unpaid wages. Breach of contract is not a free standing cause of action. It is a legal premise, or principle, which gives rise to the right to claim some substantive remedy at law. Here that remedy is the recovery of past due wages.

Id. at 646.

The Grabert court then discussed its earlier decision in Starns , 538 So.2d 275, where the plaintiff sought rent arrearages in a petition alleging breach of contract. The Starns court had found that "all actions covered by article 3494 are grounded in contractual relationships." Grabert , 638 So.2d at 647. " Article 3494 does not present a choice between a contract remedy and some other remedy; it merely provides exceptions to the general rule stated in article 3499 that a personal action prescribes in ten years." Id. (quoting Starns , 538 So.2d at 278 ). Accordingly, the court in Grabert found that "virtually all claims for wages arise out of breach of a contract, oral or written," for which the remedy is recovery of wages under La.Civ.Code art. 3494. See Id. Similarly, quoting extensively from Grabert , the second circuit in Minor v. Monroe Surgical Hospital, LLC , 49,367 (La.App. 2 Cir. 11/19/14), 154 So.3d 665, writ denied , 14-2667 (La. 3/13/15), 161 So.3d 641, found that a medical director's claim to recover unpaid compensation was subject to the three-year prescriptive period of La.Civ.Code art. 3494.

Here, Mr. LeBlanc's argument that the residual prescriptive period of La.Civ.Code art. 3499 gives him ten years to file suit is misplaced. Where La.Civ.Code art. 3494 specifically provides a remedy for the recovery of money owed if the action is brought within three years, there is no merit to Mr. LeBlanc's contention that the action against Thibodeaux was still viable over five years after the original demand was exigible. See La.Civ.Code art. 3495. Because we find that the action was for the recovery of money owed, pursuant to La.Civ.Code art. 3494(1), we pretermit discussion of whether the obligation derived from an open-account under La.Civ.Code art. 3494(4).

Promise and Detrimental Reliance

Mr. LeBlanc next urges that he is entitled to recover under a theory of detrimental reliance because Mr. Thibodeaux promised him that he would sell him Country Windshields. In reliance upon that promise, Mr. LeBlanc expended his own funds to build offices in the building to his detriment. Mr. LeBlanc cites State v. Murphy Cormier General Contractors, Inc. , 15-111 (La.App. 3 Cir. 6/3/15), 170 So.3d 370, writ denied , 15-1297 (La. 9/25/15), 178 So.3d 573, for the proposition that detrimental reliance is contractual and subject to the ten-year prescriptive period of La.Civ.Code art. 3499.

Louisiana Civil Code Article 1967 on detrimental reliance, effective in 1985, states in pertinent part (emphasis added):

A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee's reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable .

Mr. LeBlanc did not offer proof at the trial of the exception that there was a "promise" to sell the property for $3,000 per month. Mr. LeBlanc testified that his employees and a financial advisor were with him at one meeting with Mr. Thibodeaux, but he did not call them as witnesses or even provide affidavits from them regarding what they heard or saw. In addition to La.Civ.Code arts. 2440 and 1832, which require the sale of an immovable to be in writing, La.Civ.Code art. 1846 provides that if a contract is valued at over $500, its existence "must be proved by at least one witness and other corroborating circumstances." No such proof has been submitted in this case.

Further, the record reveals that Mr. Thibodeaux did not induce Mr. LeBlanc to prematurely spend his own money on Thibodeaux's building. It was Mr. LeBlanc who asked to build the offices. He seemed in a hurry, and Thibodeaux allowed him to proceed. In discussing a sale, there is no evidence that Thibodeaux required any consideration from Mr. LeBlanc in the form of a down payment or an earnest money deposit of any kind. He did not even require a single rent payment from Mr. LeBlanc. Such a promise, if made, would have been a gratuitous promise, and gratuitous promises are not enforceable under La.Civ.Code art. 1967 if formalities are required but not observed. The sale of an immovable is required to be in writing. In fact, even a promise to sell an immovable must be in writing. "A sale or promise of sale of an immovable must be made by authentic act or by act under private signature, except as provided in Article 1839." La.Civ.Code art. 2440.

Detrimental reliance is generally based upon an oral promise that imposes a burden upon the other party; such a promise is onerous because of the burden imposed. Cenac v. Hart , 98-1679 (La.App. 3 Cir. 4/7/99), 741 So.2d 690. If the promisee performs the burden at a cost to himself, and the promisor does not keep his part of the bargain, then the oral promise is enforceable, if it was reasonable for the promisee to rely on the promise in the first place. With such a promise no writing is required. Id. By contrast, a gratuitous promise is one given freely without imposing a burden. If this gratuitous promise requires a writing under the law, and no writing is made, the gratuitous promise is not enforceable. See Id. See Dugas v. Guillory , 97-398 (La.App. 3 Cir. 10/7/98), 719 So.2d 719, explaining the difference between an enforceable onerous promise and an unenforceable gratuitous promise. See also Palermo Land Co., Inc. v. Planning Comm'n of Calcasieu Parish , 561 So.2d 482 (La.1990) ("Equitable considerations and estoppel cannot be permitted to prevail when in conflict with the positive written law." Id. at 488 ).

As recognized in John Bailey Contractor, Inc. v. State Through DOTD , 439 So.2d 1055 (La.1983), a requirement for recovery under the theory of detrimental reliance is that the party seeking recovery must have had a justifiable reliance in the representation. In connection with that requirement, La.Civ.Code art. 1967 specifically states that "Reliance on a gratuitous promise made without required formalities is not reasonable." In Andrus v. Andrus , 93-856 (La.App. 3 Cir. 3/2/94); 634 So.2d 1254, we held that reliance based upon a donation of immovable property without adherence to the formal, written requirements provided by law was not justified. See also Kibbe v. Lege , 604 So.2d 1366 (La.App. 3 Cir.), writs denied , 606 So.2d 540 (La.1992).

Gray v. McCormick , 94-1282, p. 10 (La.App. 3 Cir. 10/18/95), 663 So.2d 480, 486.

Accordingly, here, the requirements of La.Civ.Code art. 1967 are not met. Thus, Mr. LeBlanc cannot prevail under this theory of recovery.

Unjust Enrichment

Mr. LeBlanc posits a final theory of recovery, arguing that his expenditures on the building of Thibodeaux unjustly enriched Thibodeaux at the expense and impoverishment of Mr. LeBlanc. The theory of unjust enrichment is based in equity and decided by a judge because there is no agreement, and because no other remedy is available.

Minyard v. Curtis Prod., Inc. , 251 La. 624, 205 So.2d 422 (La.1967). Obligations that are contracted without an agreement are quasi contracts and subject to a prescriptive period of ten years. Id.

The absence of another remedy is key in this case because we have found, based upon Mr. LeBlanc's petition containing the invoice he gave to Mr. Thibodeaux in 2009, that he had a cause of action for money owed, and he allowed it to prescribe. In an attempt to meet the requirement of "no other remedy," Mr. LeBlanc argues that a finding by this court that his action has prescribed will leave him without a remedy. But such interpretation is not based in law. The current law provides in pertinent part:

A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term "without cause" is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.

La.Civ.Code art. 2298 (emphasis added).

Unjust enrichment requires "[a] person who has been enriched without cause at the expense of another person" to provide compensation to that person. La.Civ.Code art. 2298. Recovery pursuant to unjust enrichment requires a plaintiff to prove: "(1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the resulting impoverishment; (4) an absence of justification or cause for the enrichment and impoverishment; and (5) the lack of another remedy at law." Davis v. Elmer , 14-1298, p. 7 (La.App. 1 Cir. 3/12/15), 166 So.3d 1082, 1088. Most importantly, this remedy is "subsidiary in nature and 'shall not be available if the law provides another remedy .' " Walters v. MedSouth Record Mgmt., LLC , 10-353, p. 2 (La. 6/4/10), 38 So.3d 243, 244 (per curiam) (quoting La.Civ.Code art. 2298 ). "The mere fact that a plaintiff does not successfully pursue another remedy does not give the plaintiff the right to recover under the theory of unjust enrichment ." Id.

Patriot Const. & Equip., LLC v. Rage Logistics, LLC , 15-1136, p. 11 (La.App. 3 Cir. 4/6/16), 215 So.3d 844, 852 (emphasis added), writ denied , 16-864 (La. 9/6/16), 205 So.3d 917.

In Walters v. MedSouth , 38 So.3d 243, quoted directly above, the Louisiana Supreme Court stated as follows:

In the instant case, plaintiff's original petition alleges he suffered harm as a "direct result of the negligent and tortious conduct" of defendant. Having pled a delictual action, we find plaintiff is precluded from seeking to recover under unjust enrichment. See Gallant Investments, Ltd. v. Illinois Central R. Co. , 08-1404, p. 9 (La.App. 1 Cir. 2/13/09), 7 So.3d 12, 18 ("we conclude that any equitable action for unjust enrichment is precluded by the availability of the unambiguously-pleaded delictual action").
Moreover, we find it of no moment that plaintiff's tort claims have been held to be prescribed. The mere fact that a plaintiff does not successfully pursue another available remedy does not give the plaintiff the right to recover under the theory of unjust enrichment. See Jim Walter Homes v. Jessen , 98-1685, p. 13 (La.App. 3 Cir. 3/31/99), 732 So.2d 699, 706 ("[t]o find that Jim Walter Homes now has no other remedy and to provide it one under unjust enrichment would be tantamount to allowing any plaintiff who let his cause of action prescribe, or any plaintiff who knowingly wrote a bad contract, to recover under an enrichment theory").

Id. at 244.

Similarly here, Mr. LeBlanc submitted an invoice to Mr. Thibodeaux for labor and supplies that Mr. Thibodeaux never paid. That invoice was copied into Mr. LeBlanc's petition. His petition clearly sought to recover the money that he had invoiced five and one half years earlier, pursuant to an undisputed May 2009 agreement by Thibodeaux to pay the expenses of LeBlanc. This was the undisputed agreement between the parties; that LeBlanc would submit his bills, and Thibodeaux would pay them . Regardless of whose fault it was, LeBlanc was never paid. If LeBlanc had pursued his remedy on the invoice within the time allowed under La.Civ.Code art. 3494, he likely would have recovered some money. The fact that he did not does not now give him a cause of action for unjust enrichment. This argument has no merit.

V.

CONCLUSION

Based upon the foregoing, the trial court's judgment granting the exception of prescription in favor of Fred and Virginia Thibodeaux and dismissing the suit of Randy LeBlanc is affirmed. The costs of this appeal are assessed against the plaintiff, Randy LeBlanc.

AFFIRMED.

      "A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished." La.Civ.Code art. 1906.

      "Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent." La.Civ.Code art. 1927.

      "A sale or promise of sale of an immovable must be made by authentic act or by act under private signature, except as provided in Article 1839." La.Civ.Code art. 2440.

      "When the law requires a contract to be in written form, the contract may not be proved by testimony or by presumption, unless the written instrument has been destroyed, lost, or stolen." La.Civ.Code art. 1832.

      Rather, LeBlanc argues that his suit is a "personal" action, which is distinguishable from a "real" action. "A personal action is one brought to enforce an obligation against the obligor, personally and independently of the property which he may own, claim, or possess." La.Code Civ.P. art. 422. "A real action is one brought to enforce rights in, to, or upon immovable property." Id.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kade Starbuck HENRY
    17-1141
    Court of Appeal of Louisiana, Third Circuit.
    October 3, 2018
    Sherry Watters, Louisiana Appellate Project, P.O. Box 58769, New Orleans, LA 70158-8769, (504) 723-0284, COUNSEL FOR DEFENDANT/APPELLANT: Kade Starbuck Henry
    John Foster DeRosier, Fourteenth Judicial District Attorney, Elizabeth Brooks Hollins, Charles Robinson, Cynthia Killingsworth, Assistant District Attorneys, P.O. Box 3206, Lake Charles, LA 70602-3206, (337) 437-3400, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Billy Howard Ezell, Shannon J. Gremillion, and D. Kent Savoie, Judges.
   GREMILLION, Judge.

On August 15, 2013, Defendant, Kade Starbuck Henry, entered a trailer, where his brother lived, without authorization. Defendant was charged with unauthorized entry of an inhabited dwelling, a violation of La.R.S. 14:62.3 on October 15, 2013. A jury found him guilty as charged on May 11, 2017. Defendant had been incarcerated since July 11, 2015, on other charges; the trial court sentenced him to time served, noting he had "paid [his] debt on this charge ...."

Defendant now seeks review of his conviction. For the following reasons, we affirm Defendant's conviction but remand for resentencing and instruction regarding post-conviction relief.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. We find two errors patent in the record.

Indeterminate Sentence

Defendant received an indeterminate sentence. For the offense of unauthorized entry of an inhabited dwelling, the trial court sentenced Defendant to time served. Prior to sentencing, the trial court inquired whether the current charge was the only one that Defendant was being detained on in the Calcasieu Correctional Center at that time; he was informed that it was not, and that Defendant had other pending charges. When asked by the trial court how long Defendant had been incarcerated, the deputy clerk responded that Defendant had been incarcerated since July 11, 2015.

Louisiana Code of Criminal Procedure Article 879 requires the imposition of a determinate sentence. In State v. Sedlock , 04-564, pp. 2-3 (La.App. 3 Cir. 9/29/04), 882 So.2d 1278, 1280, writ denied , 04-2710 (La. 2/25/05), 894 So.2d 1131, this court, addressing a similar issue, held:

For the offense of cruelty to juveniles, the trial court imposed the following sentence: "The Court is going to sentence him to two years in the parish jail. I'm going to suspend all but time served of that two years. I'm going to place him on supervised probation for the balance of that two-year period...." Rather than specify the period of probation, the trial court placed the Defendant on probation for "the balance of" the two-year period. In other words, the trial court placed the Defendant on probation for whatever time remained after the "time served" portion was deducted from the two years. Since the "time served" portion of the sentence was not specified, we find the trial court imposed an unspecified and indeterminate period of probation. Louisiana Code of Criminal Procedure Article 893(A) provides in pertinent part: "The period of probation shall be specified and shall not be less than one year nor more than five years." Since the probation period imposed in the present case was not specified and is indeterminate, we find that the sentence imposed for cruelty to juveniles should be vacated and the case remanded for resentencing specifying the period of probation in accordance with La.Code Crim.P. art. 893.

For unauthorized entry into an inhabited dwelling, Defendant faced a fine of not more than one thousand dollars or imprisonment with or without hard labor for not more than six years or both. It appears from the trial court's inquiry regarding Defendant's detention at Calcasieu Correctional Center that the court intended for Defendant's sentence to be served without hard labor, but the term was not specified, especially since it was unclear whether Defendant had been incarcerated on the current offense since July 11, 2015, or whether that may have been for another of his pending charges. Accordingly, Defendant's sentence should be vacated, and the case remanded for imposition of a specified term in accordance with La.R.S. 14:62.3.

Application for Post-Conviction Relief

The trial court failed to clearly advise Defendant of the time limitations for filing an application for post-conviction relief. According to La.Code Crim.P. art. 930.8, the prescriptive period for filing post-conviction relief is two years, and it begins to run when a defendant's conviction and sentence become final under the provisions of La.Code Crim.P. arts. 914 or 922. Defendant was informed that he had two years from the date of sentencing "and sentence becoming final" to file an application for post-conviction relief.

It is not clear whether the trial court advised Defendant that he had two years from the date of sentencing, two years from the date the sentence becomes final, or both, to file an application for post-conviction relief. Thus, we instruct the trial court to correctly inform Defendant of the provisions of La.Code Crim.P. art. 930.8 at resentencing.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues the State failed to prove him guilty of unauthorized entry of an inhabited dwelling beyond a reasonable doubt. The standard of review in a sufficiency of the evidence claim is "whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged." State v. Leger , 05-11, p. 91 (La. 7/10/06), 936 So.2d 108, 170, cert. denied , 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Captville , 448 So.2d 676 (La.1984) ). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court "to substitute its own appreciation of the evidence for that of the fact-finder." State v. Pigford , 05-477, p. 6 (La. 2/22/06), 922 So.2d 517, 521 (citing State v. Robertson , 96-1048 (La. 10/4/96), 680 So.2d 1165 ; State v. Lubrano , 563 So.2d 847, 850 (La.1990) ). The appellate court's function is not to assess the credibility of witnesses or to reweigh the evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442.

The factfinder's role is to weigh the credibility of witnesses. State v. Ryan , 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than ensuring the sufficiency evaluation standard of Jackson , "the appellate court should not second-guess the credibility determination of the trier of fact," but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert , 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27 ). Our supreme court has stated:

However, an appellate court may impinge on the fact finder's discretion and its role in determining the credibility of witnesses "only to the extent necessary to guarantee the fundamental due process of law." State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve " 'the factfinder's role as weigher of the evidence' by reviewing 'all of the evidence ... in the light most favorable to the prosecution.' " McDaniel v. Brown, 558 U.S. 120, 133, 130 S.Ct. 665, 674, 175 L.Ed.2d 582 [ (2010) ] (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence, ... this fundamental principle of review means that when a jury "reasonably rejects the hypothesis of innocence presented by the defendant[ ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt." State v. Captville, 448 So.2d 676, 680 (La.1984).

State v. Strother , 09-2357, pp. 10-11 (La. 10/22/10), 49 So.3d 372, 378.

"Unauthorized entry of an inhabited dwelling is the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person." La.R.S. 14:62.3(A). "Unauthorized entry of an inhabited dwelling requires general intent. General criminal intent is present when the circumstances indicate that the offender 'in the ordinary course of human experience must have adverted to the prescribed criminal consequences as reasonably certain to result from his act.' " State v. Riviere , 08-105, p. 5 (La.App. 5 Cir. 5/27/08), 986 So.2d 768, 770-71, writ denied, 08-1383 (La. 2/13/09), 999 So.2d 1146 (citation omitted). "In general intent crimes, the criminal intent necessary to sustain a conviction is established by the very doing of the proscribed acts." State v. Williams , 03-3514, p. 13 (La. 12/13/04), 893 So.2d 7, 16 (citing State v. Kennedy, 00-1554 (La. 4/3/01), 803 So.2d 916, 923 ; State v. Holmes, 388 So.2d 722, 727 (La.1980) )

"It is not necessary that a person be present in the dwelling at the time of the unauthorized entry to satisfy the inhabitation requirement; however, it must be proven that someone was actually 'living' in the dwelling at the time." State v. Morrison , 07-5, p. 5 (La.App. 5 Cir. 3/27/07), 957 So.2d 203, 205, writ denied , 07-742 (La. 11/2/07), 966 So.2d 601, and writ denied , 08-2090 (La. 1/30/09), 999 So.2d 752. "In the case of a private residence, a person must have the consent of the occupant or an occupant's agent to constitute a defense to unauthorized entry." State v. Butler , 06-645, p. 5 (La.App. 5 Cir. 12/27/06), 948 So.2d 296, 299.

The jury heard lengthy but significant background information about Defendant's relationship with his family at trial. Defendant's father, Errol James "Jimmy" Henry, owned three corporations, H & H Metal Contractors, H & H Industrial Contractors, and Metal Outlet, with his brothers. Some of Mr. Henry's children, nieces, and nephews have in the past worked or presently work in the businesses. Defendant began working in the companies when he was around fourteen years old, sweeping floors. He became a steel erector and was a good employee. However, he began showing up late for work, and he was ultimately fired for insubordination.

Mr. Henry said "the harassment started" after Defendant's termination. Defendant made phone calls and had his friends call posing as customers. He "would hack into [the companies' social media] accounts[,]" posing as an officer of the companies and appearing to fire employees. Mr. Henry believed Defendant had twenty pizzas delivered to the companies one day, and he posted on social media that the businesses needed Christmas help. Every morning, employees spent the first thirty minutes of the day taking down the Facebook posts Defendant had placed overnight, seven days a week. Defendant posed as an officer of the companies at a car dealership and attempted to purchase two trucks for one of the businesses. He posed as a purchasing agent for the companies and tried to buy thousands of dollars of tools from one of the companies' suppliers. Defendant also sent a text to Mr. Henry threatening to shoot him with one of the guns Mr. Henry had given him.

In an effort to get help for Defendant, Mr. Henry and his wife took him to many mental health facilities. Defendant was diagnosed as having bipolar disorder, schizophrenia, paranoia, and attention deficit disorder. After Defendant threatened Mr. Henry, Defendant was taken to Moss Regional Hospital, where he stayed "about seven days for psychoanalysis." However, Defendant would not take the medication prescribed for him. Defendant also was at Acadiana Mental and Rehab facility in "a lock-down for seven days[.]"

Defendant then entered a ninety-day program with New Beginnings at a cost to his family of $10,000. He was in jail before he went to New Beginnings. After four days at the facility, he threatened to kill one of the administrators, and he was returned to jail. Mr. Henry later testified Defendant went to a facility in Pineville run by Camp Beauregard, where he was supposed to stay for two years and be retrained for another occupation. Someone from that facility picked up Defendant from jail; Defendant "stayed there four days and they brought him back."

Mr. Henry obtained a permanent restraining order on behalf of H & H Metal Contractors, Inc.; H & H Industrial Contractors, Inc.; and Metal Outlet, Inc. against Defendant on July 26, 2012. The injunction prohibited Defendant from:

A. Using the name, company logos, or telephone numbers of H & H Metal Contractors, Inc., H & H Industrial Contractors, Inc., or Metal Outlet, Inc., to identify himself;
B. Claiming or stating to third parties that he is an employee, officer, or owner of H & H Metal Contractors, Inc., H & H Industrial Contractors, Inc., or Metal Outlet, Inc.;
C. Posting on social media, including Facebook pages, and on internet web pages false statements, including statements that he is an owner or CEO or officer or employee of plaintiffs herein;
D. Physically coming to the premises at 2241 E. Napoleon Street, Sulphur, Louisiana, or any of the company jobsites on which the company is performing work;
E. Contacting owners or officers of any of the three companies or their employees;
F. Calling or texting company officers or employees, either during working hours or during sleeping hours;
G. Attempting to charge his personal expenses on company accounts; and
H. Contacting customers and making false and disparaging comments and remarks to customers of the three named companies.

The injunction showed Defendant resided at 2860 Dunne Street. Mr. Henry intended the temporary restraining order and the permanent injunction to protect the reputation of his businesses and to stop the harassment of his employees, family, and customers. He testified he had reason to believe Defendant would cause physical harm to his family, employees, and customers. The injunction did not prohibit Defendant from going to or being at 2860 Dunne Street. The permanent injunction asked for service of process on Defendant at that address, and he was personally served there on August 1, 2012.

Mr. and Mrs. Henry purchased the house trailer on Dunne Street in Sulphur "about 2006 right after Hurricane Rita." Defendant graduated from high school around that time, and Mr. and Mrs. Henry sold the trailer to him. Defendant had no payments for the first six months, and then he was to pay $300 per month. The last payment Defendant made was on August 27, 2011; the balance was $11,550 at that time.

For a while, Defendant lived in the trailer without making payments, and Mr. Henry gave him money for living expenses, "just to kinda [sic] help him survive." Defendant then signed the property back over via a dation en paiement to Mr. and Mrs. Henry on March 28, 2012. They returned "[e]very penny" of the money Defendant had paid to them. Defendant had destroyed the inside of the trailer, and "many, many repairs" had to be made. Mr. Henry considered Defendant to be "unofficially evicted" after he "tore all the walls up in the trailer, tore the paneling off the walls."

After the dation en paiement, Mr. Henry testified that Defendant "was just jumping from pillar to post, staying with podnahs and buddies and - we didn't keep up with him." Mr. and Mrs. Henry never served any notice of eviction regarding the trailer on Defendant, took back his keys, or changed the locks. Mr. Henry testified they did not feel they needed to formally evict Defendant. He stated, "[O]nce he defaulted on the payments, he was done. He was out. The only reason he was still there was because of our generosity and he's our son. That's it." Mr. Henry was "very uncomfortable" testifying against Defendant, but he felt he needed to do so "for the safety of the rest of [his] family[.]"

Testimony about when Defendant moved out of the trailer, when his brother Briar moved into it, and whether they lived there together was not clear. Briar said he and Defendant were not on good terms after Defendant took Briar's truck in March 2013. He said Defendant lived in the trailer until around that time, and Briar moved there around the middle of March. Briar testified that Defendant was not welcome at the trailer once he moved into it, and Defendant had not stayed there since that time. However, when Defendant's counsel asked Briar where Defendant was when Briar moved into the trailer, Briar responded, "2860 Dunne Street." None of Defendant's property was in the trailer; Briar said he had put it in the garage in the back yard at Mr. Henry's direction so it could be given back to Defendant when he returned.

Mr. Henry testified that he never told Defendant he could move back to the trailer with Briar. He recalled a time when Briar called him and said Defendant had called to say "he was heading for the trailer[.]" Defendant had nothing inside the trailer at that point. Mr. Henry testified, "[A]ll [Defendant's] stuff was outside in one of the sheds," according to what Defendant said. However, Mr. Henry believed Defendant "gave everything away" and had nothing left.

On July 26, 2013, Defendant came to the trailer and asked to go inside. Briar told him he was not allowed inside and stopped him from entry. He told Defendant he would "have to call the cops" if he did not leave, and he showed the restraining order to Defendant. Defendant "crumpled it up," and Briar called police. Briar testified, "I also grabbed ahold of him and we wrestled in the grass, and I ended up eventually getting [the crumpled restraining order] back from him." When police arrived, they grabbed and cuffed Defendant, "and that was about it." Briar made it clear he did not want Defendant to come back to the trailer.

Deputy Pat Bordelon of the Calcasieu Parish Sheriff's Office answered the call on July 26, 2013. When he arrived, shortly before another deputy, he "saw two, white males, looked like they had been arguing, and so [he] walked up to them." One of the men said the other was "not supposed to be here" because of a restraining order. Deputy Bordelon recognized Defendant and "asked him to stand up, turn around, put his hands behind his back." After Defendant refused, and Deputy Bordelon asked him two more times, he "put [Defendant] on the ground, tried to get his - got one handcuff on him." When Defendant finally "gave up his [other] hand," Deputy Bordelon cuffed it.

The officers "had never seen a restraining order that was from a business." Deputy Bordelon said the copy presented to them "threw us for a loop because like I said, we've never seen one like a business against a person. So then we were like, well, I mean, we're not at the business." They "made several phone calls to supervisors, kinda [sic] explaining the situation." Part of the officers' confusion arose because the restraining order listed 2860 Dunne Street, the address of their call, as Defendant's address. Deputy Bordelon knew Mr. Henry owned both the H & H business and the trailer. They realized "there's a couple of clauses in here where it prevents the defendant from going to anything associated with the business ...." They "elected to go ahead and arrest him for violation of the restraining order and booked him in the jail." Had Deputy Bordelon not seen the restraining order, he thought they "would have probably issued [Defendant] a misdemeanor summons for trespassing." He thought Defendant clearly was not welcome at the trailer

Twenty days later, on August 15, 2013, Defendant returned to the trailer while Briar was at work. Briar had not given him permission to be there. Briar believed he was covered by the restraining order protecting employees of H & H Metal. He called Mr. Henry and said he had heard Defendant was again "heading for the trailer." Mr. Henry called the Sheriff's Department and met them at the trailer with a copy of the restraining order he believed showed Defendant was not allowed at the trailer or around Mr. Henry's employees, which included Briar. He saw "where [Defendant] kicked the front door in[.]"

Officers arrested Defendant in the trailer.

According to Mr. Henry, at the time of the arrest, Defendant was not living at the trailer, he had a copy of the restraining order, he knew he had signed over ownership of the trailer, and he knew "[h]e had no business being at that trailer whatsoever." He was not allowed at the trailer even without the protective order.

Sergeant Alton Johnson and Corporal Fontenot of the Calcasieu Parish Sheriff's Office answered the call on August 15, 2013 and found the back door of the trailer ajar but not damaged. Sergeant Johnson could hear movement in the back of the trailer, and he called for the person to come to the door. Sergeant Johnson entered the trailer when the person "said he couldn't walk." He found Defendant "sitting in an office chair, which was - how he was propelling himself around the house." Defendant identified himself and said his ankle and legs hurt.

When Sergeant Johnson asked Defendant what he was doing inside the residence, Defendant "said he had no other place to go." Defendant "stepped outside, unwillingly" when Sergeant Johnson said "he wasn't supposed to be there[.]" Corporal Fontenot arrived, and the officers placed Defendant under arrest.

Mr. Henry arrived while Sergeant Johnson was inside with Defendant, and he also told Defendant "he wasn't supposed to be there" because of the restraining order. Defendant, on the other hand, said he had no other place to go, and the trailer was his residence because the address was on his driver's license. Sergeant Johnson said the paperwork Mr. Henry had "looked like a restraining order, list of documents saying who could be in there or who can't be in his residence." However, he admitted the address of 2860 Dunne Street was not specifically mentioned in the paperwork.

In Butler , 948 So.2d 296, the victim had a restraining order against the defendant, the father of her young child. The victim found the defendant standing in the hallway of her apartment, but she did not immediately ask him to leave. However, she asked him to leave when they began to argue, and she threatened to call police. The defendant had retrieved a knife at one point, but he dropped it on the kitchen floor and fled the apartment. The victim had not allowed the defendant access to her apartment that night. The fifth circuit upheld the defendant's conviction, finding the evidence was sufficient to find he intentionally entered the victim's home without authorization.

The defendant in State v. Shaw , 30,477 (La.App. 2 Cir. 2/25/98), 708 So.2d 509, was inside the victims' rented residence when they returned home one evening. He told them friends had invited him, and they were inside the house. However, no one else was there. The defendant left peacefully when told to leave. The deadbolt lock on the front door of the home was damaged and partially broken. Several of the victims' belongings had been moved, but nothing was missing from the home. The defendant contended he had entered the home by mistake and left when he learned the house belonged to someone else. The second circuit affirmed the defendant's conviction for unauthorized entry of an inhabited dwelling.

Trial testimony in the present case showed Defendant intentionally entered a dwelling inhabited by Briar and used as Briar's home. Briar and Mr. Henry, the owner of the trailer, both testified Defendant did not have authorization to be there. Defendant told officers he went to the trailer because he had nowhere else to go. This fact did not justify his entry into the trailer. Defendant knew of the restraining order prohibiting him from contacting H & H employees, he knew Briar was an employee, and he knew Briar lived at the trailer. Even though Defendant had not been formally evicted from the trailer, he had signed over ownership of it to Mr. and Mrs. Henry. Defendant and Briar were not on good terms after Defendant took Briar's truck. Defendant knew or should have known the trailer was no longer his home, and he could not enter it at will.

As noted in Williams , 893 So.2d at 13, "the criminal intent necessary to sustain a conviction is established by the very doing of the proscribed acts" in this case. Accordingly, the evidence was sufficient to convict Defendant as charged.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends the district court erred in conducting a trial on double and triple hearsay, along with irrelevant testimony about the defendant's mental health, other alleged bad acts, and alleged dangerousness, such that he could not get a fair trial and was denied due process of law. He admits none of the testimony of which he now complains was a subject of the State's pre-trial motion seeking to offer evidence of other crimes Defendant had allegedly committed. Thus, Defendant was required to make a contemporaneous objection to testimony he considered hearsay or evidence of other crimes or bad acts. La.Code Crim.P. art. 841(A).

Defendant's appellate brief cites sixteen instances of alleged erroneously admitted testimony of bad acts and other crimes. Those points are:

1. Kade stopped showing up at work and was insubordinate;
2. Kade and his friends made harassing phone calls posing as customers or officers to H & H officers and employees;
3. Kade ordered 20 pizzas delivered to the company without payment; "all knew who ordered them";
4. Kade posted an ad saying that H & H was hiring extra Christmas help and a destitute woman drove 30 miles to apply;
5. Kade tried to buy two trucks in the company name, according to the Chevrolet dealership;
6. Kade ordered unneeded materials from suppliers for the company;
7. Kade texted his father, "I will shoot you with one of the guns you gave me.";*
8. While in jail, a judge had Kade committed for seven days to Moss Regional, but he refused treatment and was returned to jail;
9. Kade left treatment at New Beginnings after only 4 days and his parents were not refunded the thousands of dollars they paid for treatment;
10. Kade received all of the money back that he had paid for Dunne Street, yet he was homeless and still continued to freeload at the trailer;
11. Jimmy Henry called police because he "heard" Kade was in the trailer or on the way;
12. Jimmy Henry claimed to be in fear of Kade harming himself, his business, and his employees;*
13. Jimmy Henry claimed Kade "tore up the walls" of the trailer;
14. Jimmy Henry said Kade had no belongings left at the trailer because Kade gave it all away;
15. Sgt. Alton Johnson testified that other patrols "had trouble with the defendant";
16. Cpl. Patrick Bordelon said he recognized Kade and "knew he was dangerous".

Defendant alleges all of these points also constitute hearsay with the exception of those he marked with an asterisk (*). Defendant, however, objected to only three at trial. Defendant is prohibited from alleging errors at trial when he did not state a contemporaneous objection. La.Code Crim.P. art. 841(A). Thus, we consider only these three instances.

First, Defendant lodged an objection when the State referred to "a lot of friction" between him and Mr. Henry around the time of Defendant's termination from his employment. The trial court agreed the testimony was prejudicial but not "to the point to where ... it's beyond what is reasonable that the State is expected to prove." Next, Defendant objected on grounds of "relevance and prejudicial effect" when the State asked Mr. Henry if Defendant had ever directed any harassment or threats to him personally. The trial court overruled the objection without comment. Defendant objected a third time on grounds of hearsay when the State questioned Mr. Henry about calling the Sheriff's office on August 15, 2013, and Mr. Henry responded that he had heard Defendant was either in the trailer "or headed for the trailer," based on a call from Briar. The State argued the testimony explained why Mr. Henry did something; it was not offered for truth of the matter. The trial court sustained the objection with a warning to "[j]ust be careful."

" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." La.Code Evid. art. 401. Relevant evidence is admissible, but it "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time." La.Code Evid. arts. 402, 403. To determine relevancy, a trial court "must determine whether the evidence bears a rational connection to the facts at issue in the case." State v. Jacobs , 07-887, p. 62 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 580, writ denied, 11-1753 (La. 2/10/12), 80 So.3d 468, cert. denied , 568 U.S. 838, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012).

" 'Hearsay' is a statement ... offered in evidence to prove the truth of the matter asserted." La.Code Evid. art. 801(C). Although it is true that Briar's statement that Kade was on the way to the trailer as testified to by Mr. Henry is hearsay, the truth sought to be asserted was that Defendant intentionally entered the trailer without authorization. The fact that Defendant may have been on his way to the trailer does not prove he entered it or influence whether he had authorization to be in it. Thus, Mr. Henry's statement that Briar heard Defendant was on his way to the trailer did not prove the truth of the matter, and it was not hearsay evidence.

Further, Defendant's entry and presence were confirmed by officers who arrived at the scene. Other evidence established the intentional entry was unauthorized. Briar also testified, without objection, that he had heard Defendant was on his way to the trailer. Defendant offered no evidence to the contrary.

Even if this statement was hearsay, Defendant has shown no prejudice resulting from its admission because other evidence corroborated the testimony to which Defendant objected. Thus, any error regarding the hearsay nature of the statement, if at all, was harmless. See State v. R.K. , 10-982 (La.App. 3 Cir. 5/11/11), 64 So.3d 426.

The evidence of friction between Defendant and Mr. Henry and evidence of harassment or threats directed to Mr. Henry personally was relevant because it helped explain the issue of whether Defendant knew he was not authorized to be at the trailer. Although it may have been prejudicial to Defendant because it helped establish that issue to his detriment, that prejudice did not outweigh the probative value of the evidence, which was rationally connected to the facts at issue. Accordingly, this assignment of error lacks merit. The admission of evidence to which Defendant objected did not prevent him from receiving a fair trial or deprive him of due process.

DECREE

Defendant's conviction is affirmed. Defendant's sentence is vacated, and the case is remanded for imposition of a specified term of years in accordance with La.R.S. 14:62.3. At resentencing, the trial court should correctly inform Defendant of the provisions of La.Code Crim.P. art. 930.8.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING AND INSTRUCTION REGARDING POST-CONVICTION RELIEF.


author: GUIDRY, J.

text:
    STATE of Louisiana v. Michael Scott PAPIZAN
    NUMBER 2017 KA 0028
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 02, 2017
    Hillar C. Moore, III, District Attorney, Allison Miller Rutzen, Assistant District Attorney, Baton Rouge, Louisiana, Counsel for Appellant State of Louisiana
    Yigal Bander, W. Robert Gill, Bruce C. Bennett, Baton Rouge, Louisiana, Counsel for Defendant/Appellee Michael Scott Papizan
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   GUIDRY, J.

The defendant, Michael Scott Papizan, was charged by bill of information with aggravated crime against nature. The trial court granted a motion to quash the refiled bill, finding the state flaunted its authority by dismissing defendant's previous bill of information on the same charge then refiling the present bill. The state appeals. We affirm.

FACTS AND PROCEDURAL HISTORY

On October 21, 2015, the defendant was first charged with aggravated crime against nature. See La. R.S. 14:89.1A(2). According to the affidavit of probable cause, during 2015, the defendant inappropriately touched his son's genitalia on repeated occasions after showering with him.

Following that first charge, the defendant's jury trial began on June 27, 2016. During voir dire , the state objected to certain questions asked by defense counsel. In one instance, a prospective juror was asked if she had experience with "a child custody issue or a divorce where you had to fight like crazy and you use your child as a pawn." That prospective juror said her parents divorced, and defense counsel asked if either parent tried "to get you to go with their version and their side, and kind of manipulate you back and forth." The state objected, arguing the question improperly inquired into the facts of the case. The trial court warned defense counsel not to get "too close to the custody issue," but said questions about jurors' own situations would be allowed.

Each panel member was then asked by defense counsel if they were divorced and, if so, whether the divorce involved a custody dispute. To that inquiry, a prospective juror stated he had a son and daughter, and defense counsel then asked, "With the boy, what kind of duty did you have? Did you have bathing duty and shower duty with your boy?" The state objected, and the trial court cautioned defense counsel he was "crossing the line" and "broadcasting ... the facts of the case," but allowed the questioning to continue. Defense counsel then asked prospective jurors whether they "get in the shower with their boy," or "think it's wrong" to do so.

The next day the state filed a motion for mistrial, asserting defense counsel's questioning improperly inquired into the facts of the case and tainted the jury pool. Defense counsel countered that his questions were proper and did not warrant a mistrial. The motion was denied. The state then moved to dismiss the jury pool, which was denied. A request for a stay was also denied by the trial court. The state then announced it was dismissing the prosecution without prejudice, and court was adjourned.

Approximately five weeks later, the state filed a new bill of information charging the defendant with the same crime. The defendant filed a motion to quash the new bill of information, asserting the state violated his due process rights by dismissing and refiling the same bill of information, allegedly because the state was dissatisfied with jury selection and wanted to "start over." According to the defendant, by "flaunting [its] authority," the state would cause the defendant to incur additional expenses to defend the reinstated prosecution, including legal fees and the cost of a jury consultant for a second trial. The trial court granted the motion to quash, finding the state "did flaunt [its] authority" by dismissing and refiling the bill of information. The state argues on appeal its actions were a lawful exercise of prosecutorial discretion taken in response to improper voir dire by defense counsel, and the defendant failed to prove specific prejudice to his right to a fair trial.

DISCUSSION

The district attorney's authority over criminal prosecutions in his district is well established. See La. Const. art. V, § 26 (B); La. C. Cr. P. art. 61. He has entire charge and control of every criminal prosecution instituted or pending in his district and determines whom, when, and how he shall prosecute. La. C. Cr. P. art. 61. The district attorney has the power, in his discretion, to dismiss an indictment or a count in an indictment, without leave of court. See La. C. Cr. P. art. 691. The dismissal of a prosecution rests entirely within the discretion of the prosecuting attorney. State v. Sykes, 364 So.2d 1293, 1297 (La. 1978).

A dismissal is generally not a bar to a subsequent prosecution for the same offense. See La. C. Cr. P. art. 693. Two statutory exceptions to this rule are when the dismissal is entered (1) without the defendant's consent after the first witness is sworn at the trial, and (2) after a city court conviction is appealed to the district court for a trial de novo. See La. C. Cr. P. art. 693. Neither exception is applicable in this case.

The right to reinstate a prosecution is also subject to time limitations. A new prosecution on the same facts must be instituted within the time established for the charged offense, or within six months from the date of dismissal of a timely instituted prosecution, whichever is longer. See La. C. Cr. P. art. 576. The new prosecution cannot circumvent the accused's right to a speedy trial. See U.S. Const. Amend. VI ; La. Const. art. I, § 16 ; La. C. Cr. P. arts. 572, 576, and 578. Here, the defendant does not claim the refiled bill of information violates these time limits. The second bill of information was filed well within both the six-year period for prosecuting the charged offense and the two-year time limit for bringing the case to trial. See La. C. Cr. P. arts. 572 and 578A(2). Thus, the refiled bill of information is not time-barred or otherwise expressly prohibited by the Code of Criminal Procedure.

Rather, the defendant rests his motion to quash on the premise that the dismissing and refiling of the bill of information violated his constitutional right to due process. See U.S. Const. amends. V and XIV ; La. Const. art. I, § 2. For support, he relies on a line of cases from the Louisiana Supreme Court addressing motions to quash based on allegations a district attorney "flaunted" its authority by dismissing and refiling a criminal prosecution. See State v. King, 10-2638, p. 6 (La. 5/6/11), 60 So.3d 615, 618 (per curiam ); State v. Batiste, 05-1571, p. 5 (La. 10/17/06), 939 So.2d 1245, 1249 ; State v. Love, 00-3347, pp. 2-3 (La. 5/23/03), 847 So.2d 1198, 1202-03. In most of these cases, the district attorney dismissed and reinstated the prosecution after being denied a continuance of a trial. See King, 10-2638 at p. 4, 60 So.3d at 618 ; Love, 00-3347 at pp. 2-3, 847 So.2d at 1202-03. The district attorney essentially "grant[ed] himself a continuance that had been denied by the trial court." See Love, 00-3347 at p. 5, 847 So.2d at 1204. By doing so, the district attorney "can be said to have 'flaunted' the state's unique power and authority that the defense does not also possess." King, 10-2638 at p. 6, 60 So.3d at 618.

This jurisprudence recognizes the "frequent collisions" that occur between the prosecutorial authority of the district attorney and the power of the trial court to manage its docket. See King, 10-2638 at p. 5, 60 So.3d at 618 ; Love, 00-3347 at pp. 2-3, 847 So.2d at 1202-03 ; State v. Hayes, 10-1538, p. 15 (La. App. 4 Cir. 9/1/11), 75 So.3d 8, 11, writ denied, 11-2144 (La. 3/2/12), 83 So.3d 1043. While the district attorney has plenary control over criminal prosecutions, the trial court has the authority and duty to require criminal proceedings be conducted in an orderly and expeditious manner and to control the proceedings to ensure justice is done. See La. C. Cr. P. art. 17. The trial court sets the trial date, which can only be continued by order of the trial court. See La. C. Cr. P. arts. 702, 707 -14. While the cited articles appear to clearly delineate the authority of the district attorney and the trial court in docketing, then managing a criminal case, conflicts nevertheless arise in the exercise of these respective grants of authority.

When a defendant seeks to quash a reinstated prosecution because the district attorney allegedly flaunted his authority, the issue encompasses more than simply balancing the respective authorities of the trial court and the district attorney. The requested remedy-the dismissal of a prosecution-is a serious consequence that, unlike the exclusionary rule or granting a new trial, means a defendant who may be guilty of a serious crime is freed without being tried. See State v. Alfred, 337 So.2d 1049, 1057 (La. 1976) ; Hayes, 10-1538 at p. 8, 75 So.3d at 14 (citing Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101 (1972) ). Overzealous application of this remedy by the court infringes upon "the societal interest in trying people accused of crime, rather than granting them immunization because of legal error." Alfred, 337 So.2d at 1057 (quoting United States v. Ewell, 383 U.S. 116, 121, 86 S.Ct. 773, 777, 15 L.Ed.2d 627 (1966) ).

Because of the severe consequences of a court dismissing a prosecution that is neither time-barred nor precluded by the right to a speedy trial under the Sixth Amendment, the Louisiana Supreme Court has articulated that a motion to quash should be granted only when the state exercises its authority such that it not only disrupts the trial court proceedings or challenges the court's authority to manage its docket, but also "significantly disadvantages the defense at any forthcoming trial." King, 10-2638 at p. 6, 60 So.3d at 619. According to the Louisiana Supreme Court, to meet this burden, the defendant must prove the district attorney flaunted his authority "for reasons that show that he wants to favor the [s]tate at the expense of the defendant, such as putting the defendant at risk of losing witnesses." Batiste, 05-1571 at p. 5, 939 So.2d at 1249 ; Love, 00-3347 at p. 14, 847 So.2d at 1209. A showing of "specific prejudice" to the defense is essential. See King, 10-2638 at pp. 7-8, 60 So.3d at 619.

Although not expressly stated by the Louisiana Supreme Court, this standard is derived from the defendant's constitutional right to due process under the federal and state constitutions. See U.S. Const. amends. V and XIV ; La. Const. art. I, § 2. Thus, our task in applying the proper standard in this case is guided by jurisprudence from the United States Supreme Court, which defines the right to due process and addresses alleged violations thereof resulting from exercises of prosecutorial discretion.

The Due Process Clause guarantees that a criminal defendant will be treated with "that fundamental fairness essential to the very concept of justice." See United States v. Valenzuela-Bernal, 458 U.S. 858, 872, 102 S.Ct. 3440, 3449, 73 L.Ed.2d 1193 (1982) (quoting Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941) ). Fundamental fairness means a fair trial in a fair tribunal. See State v. Nunez, 15-1473, p. 7 (La. 1/27/16), 187 So.3d 964, 969. To declare a denial of due process, a court must find that the absence of fundamental fairness fatally infected the trial, that is, the acts that occurred were so egregious as to necessarily prevent a fair trial. See Valenzuela-Bernal, 458 U.S. at 872, 102 S.Ct. at 3449.

When a due process violation is asserted relative to the manner in which a criminal defendant was indicted or charged, the United States Supreme Court has cautioned that courts must be mindful of the limited nature of review:

[T]he Due Process Clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment. Judges are not free, in defining due process, to impose on law enforcement officials our personal and private notions of fairness and to disregard the limits that bind judges in their judicial function. Our task is more circumscribed. We are to determine only whether the action complained of ... violates those fundamental conceptions of justice which lie at the base of our civil and political institutions, and which define the community's sense of fair play and decency.

United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2049, 52 L.Ed.2d 752 (1977) (citations and internal quotation marks omitted) (the Court ultimately held that the government did not violate the defendant's due process rights by delaying indictment until 18 months after commission of the offense, where delay was purportedly due to the government's efforts to identify additional perpetrators).

In United States v. Marion, 404 U.S. 307, 308, 92 S.Ct. 455, 457, 30 L.Ed.2d 468 (1971), the Supreme Court addressed a motion to dismiss a prosecution based on allegations a prosecutor violated the defendants' due process rights by negligently delaying an indictment. The Court observed that the prosecutor's actions warrant a dismissal under the Due Process Clause only "if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." Marion, 404 U.S. at 324, 92 S.Ct. at 465 (emphasis added). The Court repeatedly stated that "actual prejudice" is necessary and that "no one suggests that every delay-caused detriment to a defendant's case should abort a criminal prosecution." Marion, 404 U.S. at 324-25, 92 S.Ct. at 465. Reversing the trial court's dismissal of the case, the Supreme Court found "[n]o actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them." Marion, 404 U.S. at 325, 92 S.Ct. at 466. Later, in Lovasco, the Supreme Court recognized that while Marion makes clear that proof of prejudice is a necessary element of a due process claim, "the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." Lovasco, 431 U.S. at 790, 97 S.Ct. at 2048-49 (emphasis added).

With this additional guidance from the United States Supreme Court, and consistent with the cited decisions from the Louisiana Supreme Court, we find that a defendant seeking to quash a prosecution based upon an alleged violation of his constitutional right to due process, arising out of an exercise of prosecutorial discretion, must show: (1) the state exercised its authority for the purpose of gaining a tactical advantage over the defendant, and (2) the state's action caused substantial prejudice to the defendant's constitutional right to a fair trial. See Marion, 404 U.S. at 324, 92 S.Ct. at 465 ; Lovasco, 431 U.S. at 790, 97 S.Ct. at 2048-49 ; King, 10-2638 at pp. 5-6, 60 So.3d at 618-19 ; Batiste, 05-1571 at pp. 5-6, 939 So.2d at 1249 ; Love, 00-3347 at p. 14, 847 So.2d at 1209 ; Hayes, 10-1538 at pp. 8-9, 75 So.3d at 14. To prevail under this due process standard, it is not sufficient to show the state dismissed a prosecution merely because it believed the dismissal was in the state's best interest. The record must establish the state dismissed the prosecution "for the purpose of" imposing a significant disadvantage on the defendant, and, as a result, the defendant's right to a fair trial was substantially prejudiced. See King, 10-2638 at p. 6, 60 So.3d at 618-19 ; Batiste, 05-1571 at p. 5, 939 So.2d at 1249 ; Love, 00-3347 at p. 14, 847 So.2d at 1209.

Motions to quash on these grounds should be decided on a case-by-case basis, and the trial court's judgment should not be reversed in the absence of an abuse of discretion. See Batiste, 05-1571 at p. 5, 939 So.2d at 1249 ; Love, 00-3347 at p. 8, 847 So.2d at 1206. The trial court's legal findings, however, are subject to de novo review. State v. Gray, 16-0687, p. 4 (La. 3/15/17), 218 So.3d 40, 43.

Here, the defendant argues the state violated his right to due process by dismissing and reinstating the prosecution "because it didn't like the way voir dire was going, was unhappy with the composition of the jury, and was unhappy with the [trial] court's rulings." The state's actions, according to the defendant, prejudiced his defense because he will incur additional attorney fees to defend the new prosecution, and he cannot afford to retain a jury consultant for a second trial. The defendant also maintains his voir dire will not be as successful now because the prosecution "knows what to expect." The state counters that it acted in good faith and dismissed the prosecution solely in response to the jury pool being tainted by improper questions from the defendant's attorney during voir dire.

The record does not reflect that the state rebutted the defendant's showing that he was substantially prejudiced by the nolle prosequi and reinstitution of prosecution. To the contrary, it establishes a violation of the defendant's right to due process. The state did not file an emergency writ nor seek a stay from this court regarding the trial court's rulings on its voir dire objections and post-voir dire motions. If the defendant had been caught in the state's position, his only recourse would have been such appellate review. See Love, 00-3347 at p. 21, 847 So.2d at 1214 (Weimer, J., concurring in part and dissenting in part).

The trial court had the advantage of observing the actions of the state firsthand in determining whether the state's actions violated the defendant's due process rights. See Batiste, 05-1571 at p. 4, 939 So.2d at 1253 (Weimer, J., dissenting). Because the complementary role of trial courts and appellate courts demands that deference be given to a trial court's discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court's discretion. Love, 00-3347 at pp. 9-10, 847 So.2d at 1206. After a thorough review of the record before us and considering the law and the specific facts presented by this case, we cannot say that the trial court abused its discretion in granting the defendant's motion to quash the bill of information. We therefore find that the ruling of the trial court should be upheld.

AFFIRMED.

Crain G., Dissents and assigns reason.

I believe the trial court abused its discretion in granting the defendant's motion to quash the bill of information. I agree the refiled prosecution is not time-barred, expressly prohibited by the Code of Criminal Procedure, or violative of the prohibition against double jeopardy. Absent the existence of any of those bars, I agree the proper analytical framework for the defendant's assertion that the refiled prosecution should be prohibited is under the constitutional right to due process. I further agree that under that standard, the proper inquiry is whether the state exercised its prosecutorial discretion (1) for the purpose of gaining a tactical advantage over the defendant, and (2) to the substantial prejudice of the defendants' constitutional right to a fair trial. The burden of proof is upon the defendant to prove that the prosecutor abused his discretion by refiling the prosecution. I respectfully disagree with the majority's conclusion that the defendant met his burden in this case.

The evidence supports the prosecutor's good faith belief that the jury pool was being improperly tainted. A party may not question or pose hypothetical scenarios to a prospective juror that demand a commitment or pre-judgment from the juror or pries into the juror's opinions about issues to be resolved in the case. State v. Holmes, 06-2988 (La. 12/2/08), 5 So.3d 42, 80. Counsel cannot question prospective jurors concerning their reaction to evidence that might be received at trial. Holmes, 5 So.3d at 80.

While I express no opinion on the merits of the state's objections to defense counsel's voir dire, the concerns expressed by the state appear to have some basis in the record and law, thus supporting the claim of good faith. Many of the objectionable questions arguably seek opinions about issues to be resolved in the case or solicit a reaction to possible evidence. The state, before dismissing the prosecution, attempted to curtail the perceived damage to the jury pool. The state initially objected during voir dire, without success. The state moved for a mistrial, which was denied. The state filed a motion to dismiss the jury pool, which was denied. The state then requested a stay of the proceeding, but that too was denied. After exhausting these avenues of relief, the state chose to dismiss the prosecution without prejudice.

There is no suggestion the state dismissed and reinstated the prosecution to increase the defendant's attorney fees, to deprive him of a jury consultant, or to otherwise harass him. There is no suggestion the state was "whipsawing defense witnesses by forcing them to make repeated but futile trips to the courthouse," or intended to "to wear down the defendant" and make him more inclined to consider a plea bargain. See State v. King , 10-2638 (La. 5/6/11), 60 So.3d 615, 619 ; see also State v. Reaves, 376 So.2d 136, 138 (La. 1979). Finally, there is no suggestion the state used its dismissal authority to forum shop. In fact, the reinstated prosecution was assigned to the same trial court division as the original prosecution. Upon this record, the state did not seek to gain a tactical advantage, but was in good faith in dismissing the prosecution without prejudice.

The record also fails to establish that the defendant's right to a fair trial was substantially prejudiced by dismissing and refiling the prosecution. Although the defendant may incur costs to defend the reinstated prosecution, he neither alleged nor proved any impairment of his right to counsel or that he will be significantly disadvantaged without a jury consultant. See U.S. Const. Amends. VI and XIV ; La. Const. Art. 1, § 13 ; Moore v. Johnson, 225 F.3d 495, 503 (5th Cir. 2000) ("[A] defendant does not lack 'an adequate opportunity to present [his] claims fairly' because he has been denied a jury consultant. Communicating with the jury is a quintessential responsibility of counsel.") The contention that voir dire for the defendant will be less effective at a second trial is purely speculative and cannot support a finding that his right to a fair trial has been substantially prejudiced. His procedural posture at the trial of the refiled prosecution is analogous to the procedural posture of a defendant following the granting of a motion for new trial.

By dismissing and refiling the bill of information, the state exercised a right expressly recognized by law. See La. Code Crim. Pro. arts. 576, 691, and 693. While this authority is not without limits, we are not at liberty to abort a criminal prosecution simply because we may disagree with the district attorney's judgment. See Lovasco, 431 U.S. at 790, 97 S.Ct. at 2049. The majority precludes the prosecution of the defendant on the charge of aggravated crime against nature. The cases reversing lower court decisions that have similarly quashed prosecutions because the prosecution allegedly "flaunted" its authority are legion, but I have not found a single Louisiana case where quashing the prosecution on that basis was allowed to stand. The quashing of the subject prosecution should likewise not stand. The defendant failed to prove that the dismissal and refiling of this prosecution substantially prejudiced his right to a fair trial. The record does not establish a violation of the defendant's right to due process. I believe the trial court abused its discretion in granting the motion to quash the bill of information, and I respectfully dissent.

      Other questions or comments prompting objections included revealing the victim's age and stating at side bar he intended to ask prospective jurors how their decision might be affected by the defendant's criminal history of two felony convictions. After being cautioned to "tread softly," defense counsel asked the panel if they would prejudge "a person" with two felony drug convictions. The state objected, but was again overruled.

      Notably, La. C. Cr. P. art. 693 bars a subsequent prosecution if the dismissal is entered without the defendant's consent "after the first witness is sworn," while La. C. Cr. P. art. 592 provides that "jeopardy begins when the jury panel is sworn." Because the subject dismissal was entered before a jury was sworn, we make no attempt to reconcile or further interpret these provisions.

      Louisiana Code of Criminal Procedure article 576, which allows a new prosecution to be filed within six months from the dismissal of a prior prosecution based on the same facts, provides that the new prosecution "shall not be instituted under this article ... for the purpose of avoiding the time limitation for commencement of trial established by Article 578."

      If the state engages in an abusive practice that is per se unconstitutional, such as forum shopping or harassment of a defendant through repeated filings of groundless charges, the refiling of the prosecution is presumptively barred by the Due Process Clause. See e.g. Nunez, 15-1473 at pp. 7-8, 187 So.3d at 970 (due process requires that felony cases be allotted for trial on a random or rotating basis that does not vest the district attorney with power to choose the judge for a particular case). For an overview of jurisprudence from other jurisdictions in accord, see State v. Morgan, 2001 UT 87, p. 16, 34 P.3d 767, 771 (Utah 2001) ("[W]hen potential abusive practices are involved, the presumption is that due process will bar refiling.").

      The majority finds significance in the fact that the state could have sought emergency relief and a stay from this court to correct the alleged error by the trial court. However, we are not required to determine whether the voluntary dismissal was the state's only or last option. Rather, the question to be answered is whether the state dismissed the prosecution "for the purpose of" gaining a tactical advantage over the defendant and, in doing so, substantially prejudiced his right to a fair trial.

      See King, 60 So.3d at 620 ; State v. Batiste, 05-1571 (La. 10/17/06), 939 So.2d 1245, 1249-50 ; State v. Roach, 10-0991 (La. App. 1 Cir. 12/22/10), 68 So.3d 558, 563, writ denied, 11-1913 (La. 2/3/12), 79 So.3d 1025 ; State v. Vernell, 10-0990 (La. App. 1 Cir. 12/22/10), 68 So.3d 553, 557, writ denied, 11-1912 (La. 2/3/12), 79 So.3d 1025 ; State v. Jones, 15-0688 (La. App. 4 Cir. 10/28/15), 178 So.3d 1112, 1116 ; State v. Glover, 11-1167 (La. App. 4 Cir. 6/27/12), 2012 WL 4760786 ; State v. Keeling, 11-0945 (La. App. 4 Cir. 6/13/12), 96 So.3d 596, 600 ; State v. Luther, 11-1003 (La. App. 4 Cir. 5/9/12), 91 So.3d 560, 564 ; State v. Williams, 11-0946 (La. App. 4 Cir. 4/11/12), 89 So.3d 422, 427 ; State v. Daffner, 11-0511 (La. App. 4 Cir. 10/26/11), 2011 WL 9160396 ; State v. Hayes, 10-1538 (La. App. 4 Cir. 9/1/11), 75 So.3d 8, 17, writ denied, 11-2144 (La. 3/2/12), 83 So.3d 1043 ; State v. Thomas, 07-1473 (La. App. 4 Cir. 5/21/08), 2008 WL 8927871 ; State v. Ross, 06-1328 (La. App. 4 Cir. 3/14/07), 955 So.2d 167, 172, writ denied, 07-1027 (La. 5/9/08), 980 So.2d 681 ; State v. Stevenson, 06-1094 (La. App. 4 Cir. 1/31/07), 952 So.2d 742, 744 ; State v. Dees, 06-1198 (La. App. 4 Cir. 1/10/07), 950 So.2d 50, 54 ; State v. Reddick, 05-1143 (La. App. 4 Cir. 11/8/06), 944 So.2d 751, 753, writ denied, 06-2907 (La. 8/31/07), 962 So.2d 426 ; State v. Ordonez, 14-186 (La. App. 5 Cir. 9/24/14), 151 So.3d 94, 100.


author: MOORE, J.

text:
    Sonya MCCARTNEY, Plaintiff-Appellee v. Chad MCCARTNEY, Defendant-Appellant
    No. 52,209-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018
    WILSON & WILSON, By: Donald R. Wilson, Jena, Christie C. Wood, Alexandria, Counsel for Appellant
    LOOMIS & DEMENT, By: Albert E. Loomis, III, Monroe, Counsel for Appellee
    Before MOORE, STEPHENS, and McCALLUM, JJ.
   MOORE, J.

Chad McCartney appeals a judgment ordering him to pay his ex-wife, Sonya McCartney, $109,398.50 to satisfy a partition of community property agreement. For the following reasons, we amend and affirm.

FACTS

According to this slender record, Chad and Sonya dissolved their community in June 2010 and, on September 29, 2011, executed a partition of community property agreement ("the agreement"). Among other things, the agreement required Chad to pay Sonya $700,000, with a credit of $277,696.22 for a payment already made in June 2011; a minimum of $100,000 due within 10 days of the agreement; and the balance due by June 1, 2012.

Sonya filed this petition for specific performance in December 2016. She alleged that Chad had made the following payments:

June 2011: $277,696.22 (in mutual funds), $15,562.26 (also in mutual funds), $3,680 and $5,400 (both in cash)

December 2011: $100,000 and $50,000 (both in cash)

June 2013: $52,619.21 (in mutual funds), $3,813.79 (in cash), and $95,000 and $42,000 (both in "retirement money," but identified in the agreement, Exhibit "A," as "401K and/or retirement accounts in his name").

Sonya alleged that the after-tax value of the retirement accounts was only $95,900, and thus Chad had paid her only $604,671.48. She demanded the balance due on the agreement, $95,328.52, plus legal interest from June 1, 2012.

Chad admitted all allegations, but asserted "payment, set-off, and confusion," in that he had made various payments to Sonya in excess of what was due under the agreement: rent for her mobile home and lot, utilities, insurance premiums, and moving and storage fees, for a total of $68,320. He ultimately argued that with credit for these payments, and for the face value of the retirement accounts, he had more than satisfied the $700,000.

At trial, in August 2017, Sonya offered a copy of the agreement; copies of her 2016 tax returns, prepared by Philip Dale Soignier, CPA, showing that if she withdrew the IRA funds, her tax liability would increase by $55,170; and a statement from Waskom & Brown, Accountants, for professional services of $625. The parties also offered a joint stipulation:

If converted to cash, $55,170 must be paid on the $137,000 rolled over retirement monies. The tax was based on the 2016 tax return of Ms. McCartney and the tax return was verified by Mr. Soignier, the CPA preparer of the 2016 tax return. Mr. Soignier also indicated that Ms. McCartney's income when the $137,000 was paid was essentially the same as in 2016. The $55,170 would be the tax and 10% penalty which would be owed if the $137,000 is withdrawn in 2017.

Sonya argued that on this evidence, Chad still owed her $109,398.52 on the agreement.

Aside from the joint stipulation, Chad offered no evidence. He reiterated his "affirmative defenses" of payments totaling $68,320, but conceded that he did not have any documentation for these. He also argued that Sonya was not "required" to convert the IRAs to cash, and allowing her to do this would amount to unjust enrichment.

ACTION OF THE DISTRICT COURT

The district court issued reasons for judgment, essentially adopting Sonya's positions. The court found no proof of any of Chad's alleged payments, and accepted that the IRAs were worth $55,170 less than face value if cashed in immediately. It rendered judgment in Sonya's favor, for $109,398.50.

Chad took this suspensive appeal. He designates three assignments of error.

DISCUSSION

Treatment of the IRAs

By his first assignment of error, Chad urges the court erred in rendering a money judgment based on an incomplete and disjointed record. He argues that the only evidence was exhibits, with "no real rhyme or reason," no live witnesses, and a stipulation concerning income taxes which Sonya "may or may not pay, depending on her whim." He contends that courts have vacated judgments and remanded for deficiencies like these, and urges this court to do likewise, i.e., to reverse and remand for a "trial in the ordinary fashion."

By his second assignment of error, Chad urges the court erred in reducing the value of two retirement accounts transferred by him to Sonya by the value of a potential, unliquidated tax liability. In brief, he asserts that he transferred these IRAs in December 2011, five years before suit was filed, giving her plenty of time to "roll them over" into another retirement account or annuity, which might reduce her tax by spreading the withdrawal over several years. He contends it is unjust enrichment for him to bear the cost of her income tax liability, at her sole discretion; citing La. C.C. art. 2298, he argues that he has been impoverished by Sonya's decision to cash in the accounts. He submits that in similar circumstances, other courts have applied a pro rata portion of tax liability to both spouses. He concludes that this court should reverse the portion of the judgment that reduced the value of the IRAs by $55,170.

Sonya responds that the court did not abuse its discretion in finding that she would receive less than agreed on in the agreement if she had to pay the taxes and penalties on withdrawing the funds. She cites Stewart v. Stewart , 2010-1525 (La. App. 3 Cir. 5/4/11), 63 So.3d 1174, in which the court interpreted a community property partition judgment as meaning the ex-wife did not expect to have to pay taxes on her portion of a thrift savings plan. She argues that the cases cited by Chad are inapposite, and concludes that the district court interpreted and applied the agreement correctly.

A husband and wife's agreement to partition community property is a transaction and compromise as contemplated by La. C.C. art. 3071. Unkel v. Unkel , 29,728 (La. App. 2 Cir. 8/20/97), 699 So.2d 472 ; Walton v. Walton , 597 So.2d 479 (La. App. 1 Cir. 1992). A compromise agreement, like other contracts, is the law between the parties and must be interpreted according to the parties' true intent. Suire v. Lafayette Consol. City-Parish Gov't , 2004-1459 (La. 4/12/05), 907 So.2d 37. Courts give contractual words their generally prevailing meaning unless the words have acquired a technical meaning. La. C.C. art. 2047. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the intent of the parties. La. C.C. art. 2046 ; Mack Energy Co. v. Expert Oil & Gas LLC , 2014-1127 (La. 1/28/15), 159 So.3d 437. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and other contracts of a like nature between the same parties. La. C.C. art. 2053 ; Olympia Minerals LLC v. HS Resources Inc. , 2013-2637 (La. 10/15/14), 171 So.3d 878 ; Total Minatome Corp. v. Union Texas Prods. Corp. , 33,433 (La. App. 2 Cir. 8/23/00), 766 So.2d 685, 147 Oil & Gas Rep. 304. The parties' undisputed course of conduct in interpreting an agreement in the years preceding the lawsuit may show their true intent. Total Minatome Corp. v. Union Texas , supra .

The agreement, Exhibit "B" (property of Sonya McCartney), states:

Payment of Seven Hundred Thousand and No/100 ($700,000.00) Dollars; with credit for a payment in the amount of $277,696.22 given to Sonya McCartney on or about June 30, 2011. Chad McCartney shall pay a minimum of $100,000.00 within ten (10) days of execution of the Community Property Agreement; with the remaining balance being due and payable on July 1, 2012. No interest shall be due.

The agreement does not allocate the tax burden or require Chad to pay in after-tax dollars. Normally, each party is to bear his or her own tax burden. If there is any ambiguity, it is best resolved by reference to equity, usages, and the conduct of the parties before and after the formation of the contract. La. C.C. art. 2053. Before she executed the agreement, Sonya accepted payment in mutual funds with a current market value of over $277,000, and, later, accepted two payments in mutual funds with current market values of over $68,000. This is notable because the value of the funds may rise or fall, depending on the markets, yet Sonya was content to accept the risk. In short, the parties' conduct before and after the formation of the agreement suggests that they intended to accept payments in some medium that might "short" the payee. In addition, Sonya initially accepted the two retirement accounts in payment, waiting 2½ years before contesting their after-tax value; the delay suggests that such payment was consistent with her view of the agreement, as well.

Moreover, a review of the exhibits to the agreement shows that the majority of the community property consisted of real property, interest in Chad's business corporation, and his two retirement accounts. Given this lack of liquidity, the parties may well have expected payment in a medium other than cash, such as by transfer of securities, with its concomitant risks.

By contrast, in Stewart v. Stewart , supra , the community property judgment specified a "cash equalization payment," while the instant agreement does not specify cash. Given the size and complexity of this community, the parties could have intended that some payments would not be in cash.

In light of the agreement's failure to allocate the tax burden, Sonya's conduct in accepting prior payments in mutual funds, and the nature and complexity of the community, it was plainly wrong for the district court to interpret the agreement as requiring payment of the whole amount in after-tax or cash money. The portion of the judgment ordering Chad to pay Sonya's tax burden of $41,100 is vacated. The judgment will be amended accordingly.

Denial of Credits

By his third assignment of error, Chad urges the court erred in failing to credit him for all payments made, including but not limited to Chad's payment of $68,320. He contends that each payment is "itemized and affirmatively pled in reduction of the debt." Citing La. C.C. art. 1868, he contends these payments should be imputed to the "debt that is already due," i.e., his obligation under the agreement.

Sonya responds that Chad's trial counsel admitted he had no proof of the alleged payments, other than one Entergy bill for $1,927.93. She submits that because he offered "zero proof," this claim should fail.

The party who has the burden of proof must prove the fact in issue by a preponderance of the evidence. Hunter v. Morton's Seafood Rest. & Catering , 2008-1667 (La. 3/17/09), 6 So.3d 152 ; Ellis v. Brown , 50,690 (La. App. 2 Cir. 5/18/16), 196 So.3d 665. The failure to introduce into evidence receipts, invoices, copies of checks, or other normal proof of payment is fatal to the claim for reimbursement. Ellis v. Brown , supra ; Vedros v. Vedros , 16-735 (La. App. 5 Cir. 10/25/17), 229 So.3d 677, writs denied , 2017-02119 (La. 2/23/18), 237 So.3d 1185, 2018-0004 (La. 2/23/18), 237 So.3d 520, 520 ; Andrus v. Andrus , 93-856 (La. App. 3 Cir. 3/2/94), 634 So.2d 1254.

Sonya correctly notes that in response to a question by the court, Chad's trial counsel conceded "he has no documentary proof" of the payments. We recognize there was a certain level of informality in these proceedings. However, we cannot overlook the total absence of proof. On this record, the district court was not plainly wrong to deny the claims of payment. However, credit will be given for the Entergy bill, $1,927.93, which Sonya concedes that Chad documented. This portion of the judgment will be amended and affirmed.

CONCLUSION

For the reasons expressed, the judgment is affirmed insofar as it denied Chad's claim for $68,320 in payments made, but credit is given for $1,927.93. The judgment is amended to give Chad credit for the face value of the retirement accounts, $137,000.00, rather than the after-tax amount. The fifth paragraph of the judgment is amended as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Sonya McCartney and against Chad McCartney in the full sum of Fifty-two Thousand, Three Hundred and 59/100 ($52,300.59) Dollars, together with legal interest from the date of judicial demand, December 1, 2016, until paid, and for all costs of court including the expert witness fee of $625.00.

Appellate costs are to be divided evenly between the parties.

AMENDED AND AFFIRMED .

      He cites Thaxton v. Roberson , 224 So.2d 183 (La. App. 3 Cir. 1969), in which a joint narrative of facts was not entered in the trial record; Patrick v. Johnstone , 312 So.2d 662 (La. App. 2 Cir. 1975), in which evidence regarding partition by licitation was "ambiguous"; and General Elec. Capital Auto Lease Inc. v. Jackson , 584 So.2d 1209 (La. App. 2 Cir. 1991), in which evidence of the prior suit was omitted on trial of an exception of lis pendens.

      Sonya's petition alleged that Chad transferred the IRAs in June 2013, a point that his trial counsel seemed to concede, R.pp. 70-71, and not in December 2011, as appellate counsel asserts in brief.

      Ramstack v. Krieger , 470 So.2d 162 (La. App. 4 Cir.), writ denied , 474 So.2d 1310 (1985) ; Hannan v. Hannan , 1999-0842 (La. App. 1 Cir. 5/12/00), 761 So.2d 700, writ denied , 2000-1723 (La. 9/29/00), 770 So.2d 349.

      He also contends that courts should always impute payments to an existing debt, citing VVP America Inc. v. Design Build Dev. Servs. , 41,652 (La. App. 2 Cir. 1/31/07), 951 So.2d 461, 217 Ed. L. Rep. 1035.

      In brief, Sonya refers to a pretrial conference in which the parties advised the judge that they were actually still living together for a time after their divorce, and the claimed credits were to pay household expenses for which Chad received a benefit. This is, of course, totally outside the record.