APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 16-6437, DIVISION
"D" HONORABLE SCOTT U.SCHLEGEL, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D.
Connick, Jr. Terry M. Boudreaux Anne M. Wallis Zachary P.
Popovich Jennifer C. Voss
COUNSEL FOR DEFENDANT/APPELLANT, MICHAEL PINNER Holli A.
composed of Judges Fredericka Homberg Wicker, Stephen J.
Windhorst, and John J. Molaison, Jr.
J. MOLAISON, JR. JUDGE
appeals his conviction for one count of residential
contractor fraud. For the reasons that follow, we affirm
defendant's conviction and sentence and further remand
for the correction of errors in the district court record.
October 21, 2016, defendant/appellant, Michael Pinner, was
charged by the Jefferson Parish District Attorney's
Office with one count of residential contractor fraud, a
violation of La. R.S. 14:202.1(A)(1). Defendant pled not guilty
and proceeded to a jury trial on January 22. 2019, after
which he was unanimously found guilty as charged. The trial
court thereafter denied defendant's motion for new trial
and motion for post-verdict judgment of acquittal on February
4, 2019. On that same date, the trial court sentenced
defendant to three years of active probation and ordered him
to pay $6, 500.00 in restitution. Defendant did not object to
his sentence. This timely appeal follows.
victims in this case, Lisa and Anthony Turley, testified at
trial that in November of 2015 they purchased a home in
Metairie with the intention to complete a renovation prior to
occupying the property. Because Mrs. Turley had worked with
defendant on a prior renovation project, she contacted and
hired him to replace the existing windows in the home. On
December 5, 2015, defendant went to the Turleys' house
and took measurements of all windows, informing the couple
that he would follow up by providing cost estimates for vinyl
and aluminum frames. After making their selection of frame
material on December 29, 2015, the Turleys signed a written
contract with defendant for the purchase of the windows as
well as the cost of installation. At that time, the Turleys
tendered an initial payment to defendant of $3, 500.00, and
defendant told the Turleys that the windows would be
available for installation in three to four weeks.
January 20, 2016, Mrs. Turley received a text message from
defendant informing her that their final payment was due, and
that he could begin installing the windows during the
following week. On January 29, 2016, Mrs. Turley tendered a
check to defendant in the amount of $3, 000.00. In the weeks
that followed, defendant did not immediately reply to Mrs.
Turley's text messages which inquired about the timeline
for installment of the windows. Defendant finally replied to
Mrs. Turley on February 18, 2016, stating that window
shipment had not arrived and therefore he did not have an
estimated installation date. Mrs. Turley responded that
defendant previously claimed that the windows had already
come in, which was why the final payment became due. Mrs.
Turley testified that defendant did not reply to her question
about the delivery date of the windows, nor did he send any
additional texts after February 25, 2016. She further
testified that defendant never delivered the windows or
refunded her money.
Turley testified at trial that in March of 2016, he directly
contacted the window manufacturer, Don Young, because
defendant failed to communicate about the status of the
windows. It was then that the Turleys discovered that the
window order had not yet been placed. Mr. Turley attempted to
contact defendant to request the return of their money to no
avail. Upon the advice of the Turleys' attorney, on March
14 and 28, 2016, defendant was mailed formal demand letters
requesting a refund. The March 28, 2016 certified letter was
received by defendant on April 2, 2016, as evidenced by
defendant's signature. On April 4, 2016, Mr. Turley
reached out to Dean Palazzalo, the owner of Cool-Vue
Aluminum, who was the local window distributor that defendant
used. Mr. Turley testified that he called Mr. Palazzalo to
inform him of the situation involving defendant and to advise
him that he did not intend on doing business with defendant.
Mr. Turley recalled that on April 12, 2016, defendant sent
him a text message saying, "[w]e need to get together to
resolve this matter. I'm looking for an
appointment," to which Mr. Turley replied, "[y]ou
may submit cashier's check/funds to my attorney."
Thereafter, sometime in May of 2016, Mr. Turley received a
voicemail from a man named "Keith Williams," whom
Mr. Turley did not know, stating, "I've got some
windows for you." Mr. Turley did not return the phone
call. Consistent with the testimony of Mrs. Turley, Mr.
Turley confirmed that, at the time of trial, they had not
received a full refund of their money from defendant, and the
new windows were never installed by defendant.
Shane Rivolo of the Jefferson Parish Sheriff's Office
testified that, in April of 2016, he was assigned to
investigate a case of contractor fraud involving defendant
after the Turleys filed a complaint. Deputy Rivolo detailed
the findings of his investigation, which closely tracked the
trial testimony of the Turleys. Deputy Rivolo stated that
there was no evidence that the Turleys had extended the
completion date of their contract past forty-five days.
Deputy Rivolo was also provided with a signed copy of a
receipt from a certified demand letter dated April 2, 2016,
which was served on defendant by the Turleys' attorney
requesting return of their money. Having failed to perform
the work or return the Turleys' money, a warrant was
issued for defendant's arrest for contractor fraud.
called two witnesses at trial. Dean Palazzalo testified that
he had known defendant for 22 years from working with
defendant in the window business. He recalled that defendant
placed a window order for the Turleys' home on April 4,
2016. Prior to that date, however, in February or March of
2016, Palazzalo received a phone call from Mr. Turley, who
indicated that he was frustrated with defendant and did not
want defendant to perform the work for him. Palazzalo stated
that Mr. Turley advised him not to order the windows and that
he had called the Don Young manufacturing company and
attempted to stop the order. At the time of their
conversation, defendant had not yet paid Palazzalo a deposit
for the windows, and Palazzalo had not yet placed the window
order. Palazzalo stated that despite his conversation with