author: PLEUS, J.

text:
    Jody TORRES, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3078.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2003.
    Kurt Erlenbach of Kurt Erlenbach, P.A., Titusville, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

Torres appeals an order resentencing him for attempted second degree murder with a firearm, robbery with a firearm and shooting into an occupied motor vehicle. He argues that the lower court erred in assessing 18 points for possession of a firearm on the shooting into an occupied motor vehicle count because the firearm he possessed was not used in the commission of that crime. We affirm.

Torres was convicted and sentenced for the above mentioned crimes in 1996. He sought a Heggs resentencing, which this court ordered in Torres v. State, 798 So.2d 777 (Fla. 5th DCA 2001). At his resen-tencing hearing, the state requested imposition of 18 points for possession of a firearm during the commission of the shooting into an occupied vehicle count. The state conceded that Torres was tried as a principal to that crime, not as the shooter, but he was present during the shooting and possessed a firearm. The lower court imposed the 18 points over Torres’ objections and he appeals.

Torres argues that the lower court erred in assessing 18 points on his score-sheet because the gun he possessed did not work and was not used to commit the offense. He cites Lopez v. State, 833 So.2d 283 (Fla. 5th DCA 2002) for the proposition that firearm points can be assessed only against the person who actually commits the shooting into an occupied vehicle, not his principal.

Torres misreads Lopez. In that case, the jury found the defendant guilty of carjacking with a firearm and robbery with a firearm, but entered a special finding that he did not possess a firearm. We concluded the defendant was properly convicted as a principal to those crimes but that firearm points were not proper in pertinent part because the jury specifically found that the defendant did not possess a firearm. Id. at 285.

The instant case is distinguishable because Torres possessed a firearm during the commission of the offense, even though he was not the person who shot into the occupied vehicle. The state relies on section 921.0014(1), Florida Statutes (1995), and Florida Rule of Criminal Procedure 3.702 (1996). Section 921.0014(1) states in pertinent part:

If the offender is convicted of committing or attempting to commit any felony other than those enumerated in s. 775.087(2) while having in his or her possession: a firearm as defined in s. 790.001(6), an additional 18 sentence points are assessed;

Rule 3.702(12) states in pertinent part:

Eighteen sentence points shall be assessed where the defendant is convicted of committing or attempting to commit any felony other than those enumerated in subsection 775.087(2) while having in his or her possession a firearm as defined in subsection 790.001(6) or a destructive device as defined in subsection 790.001(4).

The state argues that the plain meaning of these passages is clear. The law is intended to punish people in possession of a firearm, not just those who use a firearm, during the commission of particular offenses.

Torres suggests numerous hypothetical scenarios in which points assessed against a principal could lead to absurd results. It is unnecessary to address these scenarios since the statute and rule clearly contemplate assessing points under the facts of the instant case where Torres was at the scene of the crime and possessed a firearm while participating in the commission of the offense. Imposition of firearm points under these facts is consistent with the purpose of the statute: to punish offenders who possess firearms while committing offenses.

Finally, Torres’ argument that he cannot be assessed points because his gun was not functioning lacks merit. He cites no authority to support this argument. Section 790.001(6), Florida Statutes (1995), defines a firearm as “any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive.” This definition does not require that the firearm be operable. See Clayton v. State, 842 So.2d 971 (Fla. 5th DCA 2003).

Accordingly, we affirm Torres’ sentence.

AFFIRMED.

SHARP, W. and PALMER, JJ., concur.

      . Heggs v. State, 759 So.2d 620 (Fla.2000).


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Phillip WRIGHT, Appellee.
    No. 2D02-1592.
    District Court of Appeal of Florida, Second District.
    June 20, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellee.
   SILBERMAN, Judge.

The State appeals Phillip Wright’s sentence and argues that it is illegal because the trial court did not impose a three-year minimum mandatory sentence. We affirm Wright’s sentence based on the authority of Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003). We certify conflict with the Fourth and Fifth Districts’ cases with which we disagreed in Green. See id. at 755.

Affirmed.

WHATLEY and DAVIS, JJ., Concur.


author: KIRBY, J.

text:
    Debra Dean COOK, et al. v. HIBERNIA NATIONAL BANK, et al.
    No. 2002-C-0151.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 2002.
    Peter J. Losavio, Jr., Ronald J. Savoie, Losavio Law Firm, Baton Rouge, Counsel for Plaintiff/Relator Debra Dean Cook, et al.
    Corinne Ann Morrison, James C. Young, Heather M. Valliant, Chaffe, McCall, Phillips, Toler & Sarpy, L.L.P., New Orleans, Counsel for DefendanVRespondent Hibernia National Bank.
    Court composed of Judge MIRIAM G. WALTZER, Judge MICHAEL E. KIRBY and Judge DAVID S. GORBATY.
   KIRBY, J.

WRIT DENIED

Interpretation of a contract is the interpretation of the common intent of the parties. LSA-C.C. art.2045. 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 parties’ intent. LSA-C.C. art.2046. The words of a contract must be given their generally prevailing meaning. LSA-C.C. art.2047.

Here, the contract specifically and clearly provided that jury trial was waived. Plaintiff is an experienced business woman in these documents.

The court did not err in finding the contracts clear and explicit, in refusing to consider parol evidence, and in striking the request for jury.


author: |, DENNIS R. BAGNERIS Sr., Judge.

text:
    Reginald SIMPSON, et al. v. PEP BOYS-MANNY MOE & JACK, INC., et al.
    No. 2003-C-0358.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 2003.

      Gregory P. Di Leo, New Orleans, LA, for Plaintiffs-Respondents.
    Thomas J. Eppling, Julie Ann Steed, Staines & Eppling Metairie, LA, for Defendants/Relators.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS Sr., Judge EDWIN A. LOMBARD).
   |, DENNIS R. BAGNERIS Sr., Judge.

On January 17, 2003, the trial court denied the relators’, The Pet Boys — Man-ny, Moe & Jack, Inc. and Phillip Dussett’s, motion for a stay of proceedings pending arbitration. For the following reasons, we find that the relators waived their rights to arbitration, and the application is denied.

FACTS

On December 18,1995, upon being hired by Pep Boys — Manny, Moe & Jack, Inc., (“Pep Boys”) as an installer, the plaintiff, Reginald Simpson (“Simpson”), signed a mutual agreement to arbitrate claims. The mutual agreement to arbitrate claims reads in pertinent part as follows:

I recognize that differences may arise between The Pep boys — Manny, Moe and Jack and/or its subsidiary company, The Pep boys — Manny, Moe and Jack of California, (“the Company”) and me during or following my employment with the Company, and that those differences may or may not be related to my employment. I understand and agree that by entering into this Agreement to Arbitrate Claims (“Agreement”), I anticipate gaining benefits of a speedy, impartial dispute resolution procedure.
Claims Covered by the Agreement
The Company and I mutually consent to the resolution by arbitration of all claims or controversies (“claims”), whether or not arising out of my application for employment, my employment or the termination of my employment that the Company may have against me or that I may have ^against the Company or against its officer, directors, employees or agents in their capacity as such or otherwise. The claims covered by this Agreement include, but are not limited to, claims for wages or other compensation due; claims for breach of any contract or covenant (express or implied); tort claims; claims for discrimination (including, but not limited to, race, sex, religion, national origin, age, marital status, or medical condition, handicap or disability); claims for benefits, (except where an employee benefit or pension plan specifies that its claims procedure shall culminate in an arbitration procedure different from this one), and claims for violation of any federal, state, or other governmental law, statute, regulation, or ordinance, except claims excluded in the following paragraph.
Claims Not Covered by the Agreement
Claims I may have for workers’ compensation or unemployment compensation benefits are not covered by this Agreement.
Also not covered are claims by the Company for injunctive and/or other equitable relief for unfair competition and/or the use and/or unauthorized disclosure of trade secrets or confidential information, as to which I understand and agree that the Company may seek and obtain relief from competent jurisdiction.
Discovery
Each party shall have the right to take the deposition of any individual and any expert witness designated by another party. Each party also shall have the right to propound requests for production of documents to any party. The subpoena right specified below shall be applicable to discovery pursuant to this paragraph. Additional discovery may be had only where applicable to discovery pursuant to this paragraph. Additional discovery may be had only where the Arbitrator selected pursuant to this Agreement so orders, upon a showing of substantial need.
Subpoenas
Each party shall have the right to subpoena witnesses and documents for arbitration.
Judicial Review
Either party may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement and to enforce an arbitration award....
Requirements for Modification or Revocation
This Agreement to arbitrate shall survive the termination of my employment. It can only be revoked or modified by a writing signed by the parties which specifically states an intent to revoke or modify this Agreement.

On January 29, 2000, Simpson was involved in an altercation at work with coworker Phillip Dussett (“Dussett”). In June 2000, Simpson filed a lawsuit for | ¡¡compensatory damages against Dussett and Pep Boys. Simpson’s wife, Terry Simpson, (“Mrs.Simpson”) filed a loss of consortium claim as part of her husband’s lawsuit. (Collectively, Mr. and Mrs. Simpson shall be referred to as the “plaintiffs”).

In September 2000, Pep Boys and its insurance carrier, Travelers, answered and discovery commenced. On September 19, 2000, Pep Boys served interrogatories on Simpson. The plaintiffs also allege that Pep Boys propounded a second set of interrogatories. On December 19, 2001, the plaintiffs served Pep Boys with interrogatories and a request for production of documents. The plaintiffs allege that they could not serve Dussett due to Pep Boys difficulty in locating his personnel file and due to Pep Boys providing the spelling of his name as “Doucet”. On April 17, 2002, the plaintiffs served Dussett; and on June 14, 2002, Dussett answered the suit. On June 26, 2002, the plaintiffs served Dussett with interrogatories and a request for production of documents. The parties agree that they have conducted depositions of several witnesses.

On August 30, 2002, the defendants served a motion to stay the trial court proceedings pending arbitration. On January 17, 2003, a hearing was held on the motion to stay, which the trial court denied without written reasons.

DISCUSSION

This court recently reiterated the proper standard of review for a trial court decision based on interpretation of a contract as follows:

The issue of whether or not the language of a contract is ambiguous is an issue of law subject to de novo review on appeal. Orleans Parish School Board v. City of New Orleans, 96-2664 (La.App. 4 Cir. 9/3/97), 700 So.2d 870. “In the interpretation of contracts, the trial court’s interpretation of the contract is a finding of fact subject to the manifest error rule.” Grabert v. Greco, 95-1781, (La.App. 4 Cir. 2/29/96), 670 So.2d 571, 573. In applying the manifest error rule to the trial court’s interpretation, the Court of Appeal may not simply 14substitute its own view of the evidence for the trial court’s view, nor may it disturb the trial court’s finding of fact so long as it is reasonable. Syrie v. Schilhab, 96-1027, (La.5/20/97), 693 So.2d 1173. In such cases, appellate review of questions of law is simply to determine whether the trial court was legally correct.

Lakeland Anesthesia, Inc. v. CIGNA Healthcare of LA Inc., 2001-1059, p. 3 (La.App. 4 Cir. 2/6/02), 812 So.2d 695, 697-698, quoting Bartlett Construction Co., Inc. v. St. Bernard Parish Council, 99-1186 (La.App. 4 Cir. 5/31/00), 763 So.2d 94.

The right to demand arbitration is strong under federal and state law. Collins v. Prudential Ins. Co. of America, 99-1423, p. 2-3 (La.1/19/00), 752 So.2d 825. La. R.S. 9:4201 provides that when a contract contains an arbitration provision the provision “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” When a court determines that a matter pending before it is “referable to arbitration under an agreement in writing for arbitration,” and a party has requested a stay of the proceeding in order to submit its claims to arbitration, the court must stay the proceeding to allow arbitration. La. R.S. 9:4202. Louisiana courts, including this Court, have determined that, in spite of La. R.S. 9:4201’s provision that an arbitration clause is irrevocable, a party’s conduct can effect a waiver of its right to demand arbitration. (See e.g. Thomas v. Desire Community Housing Carp., 98-2097 La.App. 4 Cir. 8/10/00), 773 So.2d 755. Waiver of arbitration, however, is not a favored finding, and there is a presumption against waiver. Rauscher Pierce Refsnes, Inc. v. Flatt, 93-1672, p. 5 (La.App. 4 Cir. 2/11/94); 632 So.2d 807, 810. The burden of proof to establish waiver of arbitration is heavy, and the party seeking to establish waiver must show that it has been prejudiced by the actions of the party requesting arbitration. Rauscher, 93-1672, p. 5, 632 So.2d 807, 810.

The relators argue that Simpson’s suit should be stayed because of the executed mutual agreement to arbitrate. First, the relators argue the arbitration |Ragreement is a valid and enforceable contract under Louisiana law. Second, the relators argue that they did not waive their right to arbitrate. Third, the plaintiffs’ claim against Dussett is also subject to arbitration, and Dussett has a separate right to demand arbitration. The plaintiffs argue in response that the relators have, first and foremost, waived their right to arbitration. In addition, the plaintiffs argue that the arbitration contract is a contract of adhesion that should not be enforced.

Whether the Arbitration Agreement is an Enforceable Contract

The relators assert that the arbitration agreement is an enforceable contract under Louisiana law. The plaintiffs argue that it is a contract of adhesion, in which Pep Boys attempts to bind employees to arbitrate all conceivable claims while it remains free to resort to ordinary litigation for • the only type of claim it. would probably bring against an employee. Although the Federal Arbitration Act applies to this contract, state law governs questions of enforceability and validity of the contract itself. Gill v. Jim Walker Homes of Louisiana, Inc., 01-CA-2479 (W.D.1/31/02), 187 F.Supp.2d 618. Louisiana courts have found that “[generally speaking, a contract of adhesion is a standard contract, usually in printed form, prepared by a party of superior bargaining power for adherence or rejection of the weaker party.” Welch v. A.G. Edwards & Sons, Inc., 95-2085, p. 7 (La.App. 4 Cir. 5/15/96), 677 So.2d 520, 524-525, citing Golz v. Children’s Bureau of New Orleans, Inc. 326 So.2d 865, 868 (La.1976). In Golz, the Louisiana Supreme Court found that contracts of adhesion, which are often in small print, “sometimes raise a question as to whether or not the weaker party actually consented to the terms” but such contracts are not per se unenforceable. Golz, 326 So.2d 865, 869.

Simpson argues that the arbitration agreement is unenforceable as a contract of adhesion because Pep Boys reserved to itself the right to litigate claims for injunctions or other equitable relief for claims of unfair trade practices, unauthorized disclosure of trade secrets and/or confidential information. Simpson | ^characterizes these claims as the most conceivable type of claim by Pep Boys against its employees. Simpson cites in support of this argument Sutton’s Steel & Supply, Inc. v. Bellsouth Mobility, Inc., 2000-511 (La.App. 3 Cir. 12/13/00), 776 So.2d 589, in which the court found a standard contract used by BellSouth to be adhesionary. The clause was in “exceedingly small print”; the customers were in no position to bargain over the arbitration provision; and the substance of the. arbitration provision was “unduly burdensome and extremely harsh”. Sutton’s Steel & Supply, Inc., 2000-511, p. 10, 776 So.2d 589, 596-597. The court focused on Bellsouth’s reservation of its right to litigate a claimed “debt”, undefined in the agreement and easily construed to apply to any action imaginable by BellSouth against the plaintiffs, and the limitation on the plaintiffs to only seek relief under the arbitration clause for any claims they may have. Sutton’s Steel & Supply, Inc., 2000-511, p. 10, 776 So.2d 589, 596-597.

The relators argue that Sutton’s Steel & Supply, Inc. is not applicable to the arbitration agreement in the instant case. We agree. First, the arbitration agreement signed by Simpson was not in small print; rather, it is a separate agreement in standard type. Second, Simpson had the option of not signing the agreement and finding work at another automotive repair shop if he did not wish to be bound to arbitration. Third, the terms of the arbitration agreement are not unduly burdensome or extremely harsh. The agreement specifies that essentially all claims between Simpson and Pep Boys will be resolved by arbitration. The only exceptions are claims that are statutorily barred from arbitration (“worker’s compensation or unemployment benefits”) and claims requiring injunctive relief (unauthorized disclosure of trade secrets and other confidential information). Although the relators argue that injunctive relief is more quickly obtained through the court system, this is true for preliminary injunctions but is debatable for permanent injunctions. More importantly, however, the relators argue that a retail |7automotive repair shop such as Pep Boys is more likely to face and bring claims for negligence, theft, conversion, and employment disputes than trade secrets. Such claims would fall into the categories of claims that are covered by the arbitration agreement, and Pep Boys would be required to arbitrate those claims. Employer and employee both agreed to severe limits on the right to litigate the majority of claims they may have against each other. Thus, we find that the arbitration agreement is not unconscionably inequitable and is enforceable under Louisiana law.

Whether Relators Waived Their Rights to Arbitration

Because we find that the arbitration agreement is an enforceable contract in Louisiana, the next issue to address is whether the relators waived their right to arbitration. The relators argue that the issue of whether Pep Boys waived arbitration is separate from the issue of whether Dussett waived arbitration. The plaintiffs make no such distinction. After an examination of the applicable law and the parties’ arguments, waiver by Pep Boys and waiver by Dussett will be evaluated separately.

Neither the answering of a judicial demand nor a delay in filing a demand for arbitration alone necessarily constitutes a waiver of the right to demand arbitration, especially in the absence of prejudice to the opposing party. Moore v. Automotive Protection Corp., 97-0623, p. 3 (La.App. 4 Cir. 5/21/97), 695 So.2d 550, 551-552. The waiver of a party’s right to require arbitration by instituting court action will depend on the circumstances of each case, and whether the party indeed abandoned his right to insist upon arbitration by resorting to court procedure. Moore, 97-0623, p. 3, 695 So.2d 550, 551-552.

The relators argue that the proper test to determine whether a party has waived its right to arbitration turns on the issue of prejudice and is found in Rauscher.

RWaiver of arbitration is not a favored finding and there is a presumption against it. Miller Brewing Co. v. Fort Worth Distributing, 781 F.2d 494, 496 (5th Cir.1986). Waiver will be found when the party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party. Miller at 497. A party asserting waiver bears a heavy burden of proof to show that the opponent has waived a contractual right to arbitrate. Walker v. J.C. Bradford & Co., 938 F.2d 575, 579 (5th Cir.1991); Electrical Instrumentation Unlimited v. McDermott, 627 So.2d 702 (La.App. 4 Cir.1993). The party invoking waiver must prove prejudice. Britton v. Co-Op Banking Group, 916 F.2d 1405, 1412 (9th Cir.1990). Participation in litigation standing alone will not constitute waiver. Frye v. Paine, Webber, Jackson & Curtis, Inc., 877 F.2d 396, 398 (5th Cir.1989). Litigation in court is only a factor to be considered but is not determinative of whether arbitration has been waived. Electrical & Instrumentation v. McDermott, supra.

Rauscher, 93-1672, p. 5, 632 So.2d 807, 810. That is, participation in litigation is not enough to show waiver of a party’s arbitration rights. Applying this test to the facts of this case, the relators argue that the plaintiffs invoked the power of the district court and that their own participation in the litigation was essentially defensive. Thus, the relators conclude, the minimal discovery conducted within the district court case could have been conducted within an arbitration proceeding and staying the district court case in order for arbitration to commence would not prejudice the plaintiffs.

The plaintiffs focus on the test adopted by this Court in Thomas v. Desire Community Housing Corp., 1998-2097 (La.App. 4 Cir. 7/19/00), 773 So.2d 755. In Thomas, this court again recognized that there is a strong public policy in Louisiana favoring the enforcement of arbitration clauses and also recognized that arbitration is a substitute for litigation and that its purpose is to settle disputes in a fast, inexpensive manner before a tribunal chosen by the parties. Thomas, 1998-2097, p. 7, 773 So.2d 755, 759. This Court went on to apply the following test from Ritzel Communications, Inc. v. Mid-American Cellular Telephone Co., 989 F.2d 966, 968-969 (8th Cir.1993) to find waiver of the right to arbitration where the party claiming the right to arbitrate: (1) knew of an existing right to arbitration; 19(2) acted inconsistently with that right; and (3) prejudiced the other party by these inconsistent acts. Thomas, 1998-2097, p. 10, 773 So.2d 755, 760-761. That is, prejudice to the other party is a factor to be considered but is not determinative of the issue of waiver.

Waiver by Pep Boys

Applying the Thomas test to the facts of the instant case, we find that Pep Boys waived their right to arbitration. First, Pep Boys knew of the arbitration agreement because it drafted the agreement for its new employee Simpson to sign. Second, Pep Boys acted inconsistently with that right by participating in the litigation process for over two years, including discovery sufficient for the parties to set a trial date, before asserting its right to arbitration by filing a motion to stay. Third, to force the plaintiffs to arbitrate at this point would result in prejudice. Pep Boys obtained answers to interrogatories otherwise prohibited by the arbitration agreement, and moved for a stay of the trial court proceedings only after taking advantage of the more extensive discovery process. Under the arbitration agreement, depositions and requests for production of documents are allowed, but “additional discovery may be had only where the Arbitrator selected pursuant to this Agreement so orders, upon a showing of substantial need.” The relators went beyond the bounds of discovery permissible in the arbitration agreement by propounding interrogatories. Prejudice would also result by forcing the plaintiffs to give up their set trial date in favor of commencing an arbitration proceeding. Had Pep Boys more timely asserted their right to arbitration, the purpose of arbitration as a speedy alternative to litigation could have been met. Thus, we find that Pep Boys waived its right to arbitrate.

Waiver by Dussett

Dussett was served with the lawsuit in April 2002 and answered in June 2002. The motion to stay followed in August 2002. The delay in serving Dussett Imwas due to Pep Boys being unable to located Dussett’s personnel file, which contained the proper spelling of his name. The arbitration agreement covers “all claims ... that I may have against the Company, or against its officers, directors, employees or agents in their capacity as such or otherwise.... ” The relators argue that the plaintiffs’ claims against Dussett should be arbitrated and that Dussett clearly took no action to waive that right. The relators characterize Dussett as a third party beneficiary to the arbitration agreement between Pep Boys and Simpson. The relators, however, offer no jurisprudence or code authority for this argument and the plaintiffs do not address this issue in their opposition.

This Court recently reiterated the requirements for proving that one is a third-party beneficiary of a contract as follows:

Under Louisiana law, a contract for the benefit of a third party is referred to as a stipulation pour autri. See, e.g. Whitney National Bank v. Howard Weil Financial Corp., 93-CA-1568 (La.App. 4 Cir.1/27/94), 631 So.2d 1308, 1310 ... “In order to establish a stipulation pour autri there must be a clear expression of intent to benefit the third party. The third party relationship must form the consideration for a condition of the contract; the benefit may not be merely incidental to the contract.” State, In re Adoption of S.R.P., 555 So.2d 612, 618 (La.App. 4 Cir.1989). A contract, in order to constitute a stipulation pour autri, must be “in writing and clearly manifest an intention to confer a benefit upon a third party”. DePaul Hospital v. Mutual Life Ins. Co., 487 So.2d 143, 146 (La.App. 4 Cir.1986).

Lakeland Anesthesia, Inc. v. CIGNA Healthcare of LA, Inc., 2001-1059, 10-11 (La.App. 4 Cir. 2/6/02), 812 So.2d 695, 702, citing Concept Design, Inc. v. J.J. Krebs & Sons, Inc., 96-1295 (La.App. 4 Cir.3/19/97), 692 So.2d 1203. The arbitration agreement in Stadtlander v. Ryan’s Family Stedkhouses, Inc., 34-384, p. 5 (La.App. 2 Cir. 4/4/01) 794 So.2d 881, is an example of a clear third party beneficiary contract. The arbitration agreement at issue was between a potential employee and an arbitration firm: the agreement specifically stated that the potential employer was a third party beneficiary and also stated that every potential employee was a third party beneficiary of every other potential employee’s arbitration agreement. InThus the court found that the intended benefit to third parties was not merely incidental.

In contrast, the arbitration agreement in the instant case is between Simpson and Pep Boys only. There is no written indication of any third party beneficiary. Thus, the arbitration agreement executed between Pep Boys and Simpson does not meet the test of a contract for the benefit of a third party, and the relators’ argument that Dussett’s right to demand arbitration is independent of Pep Boys is, therefore, without merit.

In conclusion, although we find that the arbitration agreement is enforceable under Louisiana law, we find that the relators waived their rights to arbitration.

WRIT DENIED.

      . A copy of the answer is not attached to the application, but the plaintiffs assert that Pep Boys requested a jury trial in its answer.

      . A copy of the second set of interrogatories is not provided.


author: I MOAN BERNARD ARMSTRONG, Judge. | MURRAY, J., II JOAN BERNARD ARMSTRONG, J.

text:
    MEMORIAL HALL MUSEUM, INC. v. UNIVERSITY OF NEW ORLEANS FOUNDATION.
    No. 2002-CA-1810.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 16, 2003.
    Order Denying Rehearing June 4, 2003.

      L. Eades Hogue, Beth-Anne P. Bracey, Lemle & Kelleher, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    James M. Garner, Timothy B. Francis, Christopher T. Chocheles, Joshua S. Force, Sher Garner, Cahill Richter, Klein McAlister & Hilbert, L.L.C., New Orleans, LA, for DefendanVAppellee.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge DAVID S. GORBATY).
   I MOAN BERNARD ARMSTRONG, Judge.

This case is a dispute over the ownership of certain land and the building thereon in New Orleans. The appellant is the Memorial Hall Museum, Inc. (“MHMI”). The appellee is the University of New Orleans Foundation (“UNO Foundation”). The trial court found that the property in question is owned by the UNO Foundation rather than by the MHMI. We agree with the trial court that the UNO Foundation owns the property in question. Therefore, we will affirm.

The MHMI argues that the property (informally referred to as the “Confederate Museum”) was donated to its predecessor, the Louisiana Historical Association, or that it and/or the Louisiana Historical Association acquired title by acquisitive prescription. The UNO Foundation argues that the ownership of the property was not donated, that the MHMI did not acquire ownership by acquisitive prescription, and that, if title was acquired by the MHMI by acquisitive prescription, then the MHMI renounced that prescription. The trial court granted summary judgment in favor of the UNO Foundation as to all three issues and held that the ownership of the property was not donated, that there was no acquisitive | {¡prescription and, if there was acquisitive prescription, it was renounced. We agree with the trial court that ownership of the property was not donated and that title was not acquired by acquisitive prescription. We need not and do not address renunciation of acquisitive prescription.

The Howard Memorial Library Association (“HMLA”), the ancestor in title to the UNO Foundation, was organized in New Orleans in the late Nineteenth Century to administer the Howard Memorial Library in New Orleans. The library was housed on property in New Orleans. The library included a collection of materials related to the Confederacy. In order to house that collection, Frank T. Howard had constructed an annex next to the library. That annex, now known as the Confederate Museum, is the property at issue in the present case.

A group known as the Louisiana Historical Association (“LHA”), the predecessor to the MHMI, was seeking a place to house a collection of materials related to the Confederacy. Frank T. Howard decided to let the LHA use the annex building to house the LHA’s collection. He gave a speech in 1891 in which he stated:

It is with deep satisfaction that I perform the act of formally putting into your possession the Budding, which, while it is an Adjunct of the Howard Memorial Library Association, is to be set apart forever for the use of your organization.

Mr. Howard wrote down the speech and gave it to the LHA.

Appellant MHMI argues that, by giving the speech, writing it down, and giving the writing to the LHA, Mr. Howard donated the ownership of the annex labuilding to the LHA. We disagree. Mr. Howard did not say in the speech that he was donating the ownership of the building to the LHA. He spoke only of putting the LHA into “possession” of the building and of the building being for the “use” of the LHA. In short, Mr. Howard stated only that he would allow the LHA to use the building forever. The parties dispute as to exactly what rights, if any, Mr. Howard gave to the LHA. We need not, and do not, decide such issues. The present appeal concerns ownership of the property and it is apparent that Mr. Howard did not state that he was giving ownership of the annex building to the LHA. Thus, the trial court was correct in finding that ownership of the building was not donated to the LHA.

Because Mr. Howard’s 1891 speech did not donate ownership of the property to the LHA, ten year acquisitive prescription is not applicable. See La. Civ.Code art. 3474 (1870).

As the LHA took possession of the property in 1891, thirty year acquisitive prescription could have begun running at that time, and the LHA could have acquired title as early as 1921, if the LHA openly, uninterruptedly and unequivocally possessed the property as owner for thirty years. La. Civ.Code art. 3475 (1870); La. Civ.Code art. 3500 (1870). However, there is a great deal of undisputed evidence that, far from unequivocally asserting ownership of the property, the LHA recognized that the HMLA was the owner of the property. In 1912, at a meeting of the LHA’s Board of Governors, a committee appointed to investigate the status of the property concluded that the property belonged to the | ¿HMLA. At a March 4, 1931 meeting attended by the LHA and the HMLA members, an attorney retained by the LHA determined that the LHA had no legal claim to the property.

Appellant MHMI argues that a 1931 agreement, whereby the LHA allowed the HMLA to use part of the museum building, constituted an act of ownership by the LHA, recognized by the HMLA, and started the running of thirty year acquisitive prescription so that LHA acquired title to the property in 1961. We disagree, the LHA was given the right to use all of the building in 1891 and simply, in turn, gave some of that right to the HMLA in 1931. Both the LHA and the HMLA were of the understanding, in 1931, that the LHA had the right to use the entire building and so the fact that they entered into an agreement allowing the HMLA to use part of the building does not indicate that the LHA or the HMLA believed that the LHA was the owner of the building.

The MHMI points to a 1981 resolution of the LHA whereby the LHA “denied” the claim of HMLA to the property and thus, presumably, implied that the LHA owned the property. However, there is no evidence that this resolution was communicated to the HMLA or that there was any outward change in the routine of the LHA’s use of the property. Thus, there is no evidence that the LHA began to openly and unequivocally possess the property “as owner” in 1931. Accordingly, not only is there no evidence that the LHA ever possessed the property openly and unequivocally as owner for any thirty year period, the evidence to the contrary is undisputed.

I.Jn sum, the property was not donated by Mr. Howard to the MHMI’s predecessor, the LHA, and the LHA and the MHMI never acquired ownership of the property by acquisitive prescription. Therefore, the HMLA never lost ownership of the property until it conveyed ownership of the property, by deed, to the UNO Foundation. Consequently, the UNO Foundation is the owner of the property.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

MURRAY, J., concurs with reasons.

GORBATY, J., concurs.

| MURRAY, J.,

concurs with reasons.

I concur in the affirmation of the summary judgment in favor of UNO Foundation, but for different reasons than those expressed in the majority opinion. The 1891 speech gave LHA only a right to possess the building forever for the use of its organization; it gave LHA no right to ownership. Apparently for that reason, both the LHA and the HMLA consistently characterized LHA’s right as a perpetual usufruct throughout their century long relationship.

MHMI places great reliance on LHA’s possession and maintenance of the building for over a century. However, LHA possessed and maintained the building during that period as a usufructuary. A usufruc-tuary is a precarious possessor. Under La.C.C. art. 3438 (and former La.C.C. arts. 3446 and 3489), a precarious possessor “is presumed to possess for another although he may intend to possess for himself.” La.C.C. art. 3438. LHA was thus presumed to possess for HMLA. To overcome this presumption and commence to possess for himself, a precarious possessor must “give actual notice of this intent to the person on whose behalf he is possessing.” La.C.C. art. 3439.

L.The principal act on which MHMI relies as constituting actual notice to HMLA of its intent to commence possessing as owner was a 1931 act by which LHA granted HMLA a perpetual right of use of part of the building. That 1931 act was not an act of ownership sufficient to commence the thirty-year acquisitive prescription period running; rather, as the UNO Foundation argues, it was a grant by LHA to HMLA of a “sub-usufruct.” Although that legal label may be res nova, it has authoritative support in the jurisprudence. A usufructory “may burden his right of enjoyment with another usufruct.” 3 A.N. Yiannopoulos, Louisiana Civil Law Treatise: Personal Servitudes § 103(4th ed. 2000)(noting that “[t]his faculty is rarely exercised in practice”). Such a usufruct of a usufruct can logically be labeled a “sub-usufruct.”

Another aspect of the sub-usufruct on which MHMI relies is that the term of the sub-usufruct was perpetual. Particularly, MHMI argues that the perpetual term invoked former La.C.C. art. 729, which provided that the right to impose a servitude permanently on an estate belonged solely to the owner. The UNO Foundation counters that former article applied only to predial servitudes and that the 1931 act created a personal servitude — a sub-usufruct. I agree. A better view of the perpetual term of the sub-usufruct is that it was simply an attempt by the parties to be consistent with the perpetual term of the original usufruct.

Accordingly, I agree that the judgment of the trial court should be affirmed.

hGORBATY, J., concurs.

I agree with the result reached by the majority. However, while I agree that the UNO Foundation has acquired ownership of the building in question, I note that the summary judgment only determines the issue of who owns the building. The issue of who has the right to use the building has not been determined.

ON REHEARING

II JOAN BERNARD ARMSTRONG, J.

In our opinion on original hearing, we held that Mr. Howard’s 1891 speech did not donate ownership of the property to the Louisiana Historical Association. We made no other determination as to the legal effect, if any, of Mr. Howard’s 1891 speech.

The pleadings, record below and briefs on original hearing show that this is a case, and an appeal, limited to the issue of the ownership of the property. Thus, in this appeal, we determine only the ownership of the property.

The application for rehearing is denied.

REHEARING DENIED.

      . That characterization, however, was technically inaccurate as La.C.C. art. 608 (and former La.C.C. art. 612) limits a usufruct in favor of a legal entity to a thirty-year term.

      . The official comments to this article indicate that it did not change the law. La.C.C. art. 3439, Official Revision comment (a).

      .MHMI also cites a 1931 resolution; however, that resolution was subsequently rescinded. Moreover, as the opinion points out, there is no evidence that resolution was communicated to HMLA.

      . Again, as with LHA’s original usufruct, the sub-usufruct in favor of HMLA, a legal entity, is limited by La.C.C. art. 608 (and former La.C.C. art. 612) to a thirty-year term.


author: |,LEON A. CANNIZZARO, JR., Judge.

text:
    STATE of Louisiana v. Vernell WOODARD and Cawanda Bonner.
    No. 2003-K-0636.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 30, 2003.

      Eddie J. Jordan, Jr., District Attorney, Craig W. Famularo, Assistant District Attorney, New Orleans, LA, for State of Louisiana/Relator.
    (Court composed of Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR.).
   |,LEON A. CANNIZZARO, JR., Judge.

The defendant, Vernell Woodard, was indicted for the second degree murder of Leonard Joseph. In the same indictment, Cawanda Bonner was charged with being an accessory after the fact to second degree murder. Both defendants pled not guilty. The trial court granted Woodard’s motion to sever the trials of the co-defendants. The State filed a notice of intent to use the hearsay statements of a co-conspirator (Ms. Bonner) in Woodard’s trial pursuant to LSA-C.E. Art. 801 D(3)(b). The trial court denied the State’s motion. On the application of the State of Louisiana, we grant this writ to review the correctness of the trial court’s ruling.

FACTS

The State alleges that Woodard lured the victim, who was Ms. Bonner’s uncle, to her apartment and battered him to death. The next morning, the victim’s body was found in a car parked several blocks from Ms. Bonner's apartment. At the eviden-tiary hearing on the State’s motion, Detective Wayne Farve testified that while investigating the murder he interviewed Gregory Joseph who told him that he had been with the victim prior to the murder and that Woodard had called the victim and told him he wanted to meet with the victim to give him a package.

I ¡.Detective Farve testified he then met with Ms. Bonner, who told him that the victim had been involved in an argument with two men from the neighborhood and that they had committed the murder. Ms. Bonner identified the two men only by the nicknames of “Black” and “Red.”

Detective Farve also interviewed Woodard, who told him that several people had problems with the victim because the victim allegedly robbed them or stole items from their cars.

Detective Farve subsequently interviewed Angie Larson, who told him that Ms. Bonner and Woodard had called the victim and convinced him to go to Ms. Bonner’s apartment. A struggle ensued and the victim was ultimately beaten to death with a hammer.

Detective Farve testified that when he confronted Ms. Bonner about Ms. Larson’s statement, Ms. Bonner told him she was present when Woodard called the victim and she was present when the victim came to her apartment. She stated that the victim and Woodard got into an argument while sitting at the kitchen table. She left the kitchen when the argument turned physical with Woodard striking the victim on the head with a hammer. She admitted that after the victim died, Woodard removed the body, and she cleaned the kitchen of all the victim’s blood.

Detective Farve testified that he spoke again with Woodard, who told him he called the victim to come to the apartment because he wanted to confront the victim about his larcenous activities. At some point Woodard noticed that the victim had a gun and he reacted by repeatedly hitting the victim with a hammer. He indicated that Ms. Bonner left the room when he began to hit the victim.

^APPLICABLE LAW

LSA-C.E. Art. 801C defines hearsay as a statement, other than one made, by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. A “statement” is defined as an oral or written assertion. LSA-C.E. Art. 801A. Unless authorized by the Code of Evidence or other legislation, statements constituting hearsay are inadmissible as evidence. LSA-C.E. Art. 802. LSA-C.E. Art. 801D enumerates those statements which are considered non-hearsay. Such statements are admissible as evidence if relevant and not otherwise excluded.

Included in LSA-C.E. Art. 801D are statements offered against a party which are his own statements, either in his individual or a representative capacity, LSA-C.E. Art. 801D(2)(a), and statements offered against a party made by a declarant while participating in a conspiracy to commit a crime and in furtherance of the objective of the conspiracy, provided a pri-ma facie case of conspiracy has been established, LSA-C.E. Art. 801D(3)(b) .

After the state presents a prima facie case of conspiracy, the burden of proof shifts to the defendant to present evidence showing his withdrawal from the conspiracy prior to the time the statements were made by his co-conspirators. The conspiracy is presumed to continue unless or until the defendant shows his withdrawal from or the termination of the conspiracy. United States v. Walker, 796 |4F.2d 43, 49 (4th Cir.1986). To prove withdrawal, a defendant must show affirmative actions made by him that are inconsistent with the object of the conspiracy. United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). Such affirmative actions include making a clean break through confession to the authorities as well as notification to the co-conspirators of abandonment or withdrawal. United States v. Patel, 879 F.2d 292, 294 (7th Cir.1989), cert. denied, 494 U.S. 1016, 110 S.Ct. 1318, 108 L.Ed.2d 494 (1990).

The standard for determining the admissibility of statements made by co-conspirators is less than that required to convict a defendant of conspiracy to commit an offense. A trial court’s determination as to the admissibility of such evidence, i.e., whether the state has made a prima facie showing of a conspiracy and whether a defendant has sufficiently proven withdrawal so as to make his co-conspirators’ statements admissible or inadmissible under LSA-C.E. Art. 801D(3)(b), will not be overturned absent clear error. See United States v. Taylor, 802 F.2d 1108 (9th Cir.1986), cert. denied, 479 U.S. 1094, 107 S.Ct. 1309, 94 L.Ed.2d 164 (1987); State v. Lobato, 603 So.2d 739 (La.1992).

DISCUSSION

In the instant case, the trial court refused to permit the State to introduce Ms. Bonner’s statements, noting that because they were made after the murder had occurred they could not have been made in furtherance of any conspiracy to the murder. The State argues the trial court erred by so holding because Ms. Bonner’s initial, untruthful statement to Detective Farve was an attempt to conceal the truth regarding the murder, i.e. conspiracy to commit accessory after the fact. Although |Bthe State’s notice of intent to introduce the statements included her second statement as well, the State’s writ application asserts no argument as to Ms. Bonner’s second statement, wherein she confessed to being present at the apartment during Woodard’s phone call summoning the victim and when the beating started. Clearly, the second statement would not fall within the co-conspirator exception, as the statement was not made in furtherance of any conspiracy.

Woodard is charged with second degree murder, but the State has not made a prima facie showing that Ms. Bonner conspired with him to murder the victim. Nevertheless, we agree with the State that a prima facie case of conspiracy to commit accessory after the fact to second degree murder has been established.

In furtherance of the conspiracy to commit accessory after the fact, Ms. Bonner lied to Detective Farve to exonerate herself and Woodard by implicating two neighborhood men with whom the victim had been having trouble. Woodard, too, conspired to commit accessory after the fact when he attempted to conceal the true circumstances surrounding the murder by telling Detective Farve that several persons had problems with the victim because the victim had allegedly robbed or stole from them. Furthermore, the State presented a prima facie case of conspiracy to commit accessory after the fact when Ms. Bonner admitted that Woodard removed the victim’s body from the premises and she cleaned the blood from the kitchen. In view of these facts, the trial court erred in not allowing the State to introduce at trial pursuant to LSA-C.E. Art. 801D(3)(b) Ms. Bonner’s first statement made to Detective Farve.

^CONCLUSION

Accordingly, the State’s writ application is granted. The judgment of the trial court denying the State’s motion to introduce at Woodard’s trial Ms. Bonner’s initial, untruthful statement to Detective Farve pursuant to LSA-C.E. Art. 801D(3)(b) is reversed and the motion is granted.

WRIT APPLICATION GRANTED; TRIAL COURT JUDGMENT REVERSED.

      . LSA-C.E. Art. 801D(3)(b), provides:
      D. Statements which are not hearsay. A statement is not hearsay if:

      (3) Relational and privity admissions. The statement is offered against a party, and the statement is:

      (b) A statement by a declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of the conspiracy, provided that a prima facie case of conspiracy is established!)]


author: JJ1DWIN A. LOMBARD, Judge.

text:
    LAKEWOOD ESTATES HOMEOWNER’S ASSOCIATION, INC. v. Gloria Bell MARKLE and Edward D. Markle.
    No. 2002-CA-1864.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 30, 2003.

      Vallerie Oxner, Metairie, LA, for Plaintiff/Appellee.
    Edward D. Markle, Markle & Associates, APLC, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD).
   JJ1DWIN A. LOMBARD, Judge.

FACTS AND PROCEDURAL HISTORY

Defendants, Edward E. Markle and Gloria Bell Markle, appeal the trial court’s judgment ordering them to pay assessments from 1997 through 2001 to the Lakewood Homeowner’s Association, and dismissing their reconventional demand with'prejudice. We affirm the trial court’s judgment.

Lakewood Estates is a private subdivision located in Orleans Parish. It is a residential planned community with common facilities provided for the benefit of the owners and occupants of the community. The common facilities of Lakewood Estates are maintained and administered by the Homeowners Association “Association.” Membership in the Association is appurtenant to and may not be separated from ownership of a lot in Lakewood Estates. The contractual agreements by and between the lot owners of Lakewood Estates and the Association which govern the respective obligations of each are contained in the following documents: The Act of Establishment of Servitudes Restrictions and Privileges by Lakewood Estates Development Corporation, “the Act of Establishment”; the Articles of Incorporation of the Association, “Articles of Incorporation”; and the By-laws of the Association, “the By-laws”. The ^Association is charged with the duty of enforcing the provisions of the Act of Establishment, the Articles of Incorporation, and the By-laws. To acquire funds to meet its duty of maintaining the common facilities, the Association collects monthly dues and special assessments established as a charge on each lot respectively in Lakewood Estates.

In the second half of 1989, the Association calculated the monthly assessment based on sixty-three (63) lots as opposed to the original seventy-seven (77) lots to reflect the changes. It concluded that the assessment formula would be based upon the total number of legal lots existing as of January 1 of each year. This was done to give individuals who owned two lots the opportunity to re-subdivide their two lots into one lot, thereby assessed only one fee on that one lot.

Meanwhile, homeowner Ben Seale challenged the new assessment formula and refused to pay it. The Association filed liens against his property, and then filed a suit to enforce the liens. The trial court ruled in favor of the Association. However, this Court reversed the trial court’s decision and held that the documents creating the “covenant” provided for equality of expense sharing and required a vote by members before the method of allocation could be changed. Lakewood Estates Homeowners Ass’n v. Seale, 649 So.2d 17 (La.App. 4th Cir.1994). Our ruling in that case provided that the fees were to be assessed equally among the original seventy-seven lots comprising the subdivision.

Following the Seale decision, and the Association’s interpretation of the Act of Establishment, By-Laws and Articles of Incorporation, the Association decided that re-subdivision was no longer a viable option to avoid paying two assessments. Furthermore, the Association Board felt that they would be unable to obtain Lenough votes from the members of the Association to change the method of assessment as set forth in the Act and ByLaws. Therefore, the Association began assessing dues on each of the seventy-seven original lots.

The defendants paid two assessments for the two lots they owned in 1995 and 1996. The defendants submitted the payments under protest. However, the defendants only submitted payments for one lot in the subsequent years that followed. In response, the Association filed and recorded liens against both lots and filed suit to enforce the liens. Thereafter, the defendants filed a reconventional demand against the Association.

After trial on the merits, the trial court granted judgment in favor of the Association and against the defendants. The trial court awarded assessments for 1997 through 2001, plus interest from the date each assessment was due and costs for recording the liens, court cost and attorney fees. The trial Court also dismissed the defendants’ reconventional demand. The trial court found that the defendant did not show by a preponderance' of the evidence that they had a valid oral agreement with the bank, the developer and a member of the Association Board excusing them from the dues and fee assessments as set forth in the Act of Establishment of Servitudes, Restrictions and Privileges and By-Laws. The trial court also found that the Act of Establishment of Servitudes, Restrictions, and Privileges were not abandoned. The defendants filed this appeal to review the trial courts findings.

ASSIGNMENTS OF ERROR

The defendants assert that the trial court erred in several ways: (1) by finding that no valid oral agreement existed allowing the payment of only one assessment 14regardless of the number of lots owned; (2) by finding that the Act of Establishment of Servitudes, Restrictions, and Privileges was not abandoned; (3) by finding that the assessments were not prescribed; and (4) by dismissing their reconventional demand.

LAW AND ANALYSIS

The appellate court’s review of factual findings is governed by the manifest error — clearly wrong standard. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. See Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart, 617 So.2d at 882. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883.

^ASSIGNMENT OF ERROR (1)

The defendants contend that they were not required to pay the assessments on both lots owned by them because they had an oral agreement with the Association to only pay one fee for both lots. The defendants state that Mr. St. John and Ms. Nungesser testified that they were not privy to any agreement and would have no reason to disagree with the defendants’ testimony regarding the existence of the oral agreement. The defendants conclude that since there was no contradicted testimony the trial court should have found that an oral agreement did in fact exist between the Association and the defendants.

Louisiana Civil Code Article 1846 requires that an oral contract in excess of $500.00 must be proven by at least one witness and other corroborating evidence. A party may offer his own testimony in support of a claim of an oral contract in excess of $500.00, but must show other circumstances which corroborate his claim. Although corroboration is required, only general corroboration must be shown, not independent proof of every detail of his testimony. The question of whether evidence offered by the plaintiff corroborates his claim under an oral contract is a finding to be made by the trier of fact, and is therefore not subject to reversal unless clearly wrong. Lee Eyster Associates, Inc. v. Favor, 504 So.2d 580, 582 (La.App. 4 Cir.1987), writ denied, 507 So.2d 232(La.1987). Taylor v. Dowden, 563 So.2d 1294, 1297 (La.App. 3d Cir.), writs denied, 568 So.2d 1057(La.1990).

It is well settled that a party in the litigation may serve as his own ‘credible witness’ in fulfilling the requirements of this article. Ville Platte Concrete v. Western Cas. Sur., 399 So.2d 1320 (La.App. 3d Cir.1981); O’Rourke v. Tracy, |fi375 So.2d 747 (La.App. 4th Cir.1979); Richard v. Comeaux, 626 So.2d 507, (La.App. 3 Cir. 1993); Pennington Const., Inc. v. R A Eagle Corp., 652 So.2d 637, 94-575 La. App. 1 Cir. 3/3/95, (La.App. 1 Cir.1995). However, the corroborating circumstances that are required must come from a source other than the plaintiff. Hilliard v. Yar-brough, 488 So.2d 1038 (LaApp. 2 Cir. 1986); Pennington, supra. Whether there were corroborating circumstances sufficient to establish an oral contract is a question of fact. Pennington, supra; Pelican Electrical Contractors v. Neumeyer, 419 So.2d 1 (La.App. 4 Cir.1982), writ denied, 423 So.2d 1150 (La.1982).

In the present case, the trial court did not find any corroborating circumstances. Other than the defendants’ testimony, there were no witnesses to testify to the existence of such an agreement. We accept the trial courts finding that the defendants did not show by preponderance of the evidence that they had a valid oral agreement excusing them from the dues and fee assessments. As such, this assignment of error is without merit.

ASSIGNMENT OF ERROR (2)

The defendants assert that the trial court erred in finding that the Act of Establishment of Servitudes, Restrictions, and Privileges were not abandoned. First, the defendants claim that the Association abandoned their right to collect assessments on both lots because it allowed the payment of one fee for both lots. Secondly, the defendants contend that the Act of Establishment has been abandoned because the Association allowed certain acts to occur that violated the restrictions. The following acts occurred that supposedly violated the Act of Establishment: 1) clubhouse that belonged to the Association was rented out to be used for commercial purposes; 2) a resident conducted commercial activity from |7his home; 3) a resident parked his boat in the subdivision; and 4) a property owner put a gate in the fence at the back of his property. As such, the defendants argue these violations also amount to the abandonment of the Act of Establishment.

The Association argues that it never failed to collect assessments. The defendants knew that they were hable for the assessments on both their lots. Thus, the only reason that they were not assessed on both lots from 1990 until 1995 was because they misrepresented to the Association that they had re-subdivided their two lots into one, when they had not. The Association also argues that the defendants did not produce any evidence that showed the Association knew of the alleged violations. When the Association was made aware of any violations, it asked the offending property owners to remediate the situation. Thus, the Act of Establishment has not been abandoned.

Generally, insubstantial, technical or infrequent violations will be given little effect and the property owner against whom abandonment is asserted must have known of the alleged violations or have had a duty to know. Also, there is no abandonment of subdivision restrictions unless violations have been such that there has been a subversion of the original scheme of the subdividers, resulting in a substantial change in the intended nature of the subdivision. Schwab v. Kelton, 405 So.2d 1239 (La.App. 1st Cir.), writ denied, 407 So.2d 749 (La.1981); East Parker Properties, Inc. v. Pelican Realty Co., 335 So.2d 466 (La.App. 1st Cir.), writ refused, 338 So.2d 699 (La.1976).

The trial court found that the Association did not abandon the right to collect the assessments. In fact, the trial court found that by paying those assessments in 1995 and 1996, the defendants interrupted any possible abandonment. In addition, the trial found that the violations complained of were sporadic and insufficient to |sconstitute a finding of abandonment. We find no manifest error in the trial courts findings on this issue. As such, this assignment of error is without merit.

ASSIGNMENT OF ERROR (3)

In the third assignment of error the defendants assert that the trial court erred in not finding that the assessment dues were prescribed under Civil Code articles 781, 782 and 783. The defendants argue that the Association failed to timely and properly assess and collect the appropriate dues and fees under the assessment formula provided by the Act of Establishment. The evidence presented at trial clearly discloses the Association’s complete disregard for the dues structure contained in the Act of Establishment. Thus, the trial court erred in failing to find that the Association breached the Act of Establishment for over ten years and that any real rights associated with the Act of Establishment are fully and completely dissolved.

The Association state that the Louisiana Revise Statute 9:1147 provides that a homeowners association has five years after the date of recordation of its privilege to file suit to enforce the privilege. Lakewood Estates filed its suit in less than two years. Therefore, the Association argues that the defendants’ reliance on Civil Code Articles 781 and 782 is misplaced.

It is well settled that a trial judge’s factual determinations are entitled to great weight and should not be disturbed unless clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Our review of the record reveals ample support for the trial court’s factual conclusions. After carefully reviewing the record, we concur with the finding of the trial court that Civil Code articles 781 and 782 are inapplicable to the payment of dues and fees. We also agree with the |9trial court’s findings that the Louisiana Homeowners Association Act supercede Civil Code article 783.

ASSIGNMENT OF ERROR (4)

In their fourth assignment of error the defendants complain that the trial court erred in dismissing their reconventional demand. It was solely within the discretion of the trial court to make the factual determinations concerning the proof in support of the reconventional demand. After a complete review of the record, we do not find that the trial court’s decision that the defendant’s damages were not sufficiently proven to be manifestly erroneous or clearly wrong.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . By July 1990, the Association informed the defendants that they owed two assessments for their two lots. The defendants informed the Association that they had begun the re-subdivision process and so informed the plaintiff. However, the re-subdivision process was never completed.

      . Mr. St. John was a former President and Ms. Nungesser was the former Secretary of the Association.


author: JjMAX N. TOBIAS JR., Judge.

text:
    Larry BROOKS v. SEWERAGE AND WATER BOARD OF NEW ORLEANS.
    No. 2002-CA-2246.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 30, 2003.

      Robert T. Hughes, New Orleans, LA, for Plaintiff/Appellee.
    John D, Lambert, Jr., Special Counsel, Jacob Taranto, II, Assistant Special Counsel, Mary-Efizabeth Paltron, General Counsel, Sewerage & Water Board of New Orleans, New Orleans, LA, for Defen-dani/Appellant.
    Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS JR., Judge LEON A. CANNIZZARO JR.
   JjMAX N. TOBIAS JR., Judge.

The defendant-appellant, Sewerage and Water Board of New Orleans (“the Board”), seeks review of an evidentiary ruling of the lower court. The lower court ruled that the Board’s witnesses would not be allowed to testify at trial because the Board failed to file a witness list as required by the court’s trial order.

STATEMENT OF THE CASE

On 20 April 1998, the plaintiff-appellee, Larry Brooks (“Brooks”), allegedly injured his left leg when he stepped into an uncovered water meter hole located directly in front of his apartment on Sere Street in New Orleans. Brooks’ petition was filed on 13 April 1999 against the Board, a public body, alleging negligence and asserting that Board employees were performing work on the water meters at his address on the day of the accident.

A pre-trial conference was held on 11 December 2000, setting a deadline for the plaintiff to file a witness list by 16 January 2001 and the defendant to file a witness list by 29 January 2001; all discovery was to be completed by 9 February 2001. The trial date was set for 2 April 2001. On 2 April 2001, the trial was continued to 5 September 2001, and the former trial order was amended, requiring the plaintiff to file a witness list by 7 May 2001 and the defendant to file a witness 1 ¡.list by 29 May 2001. All discovery was to be completed by the new date of 18 June 2001 and the trial was reset for 5 September 2001. At the trial of 5 September 2001, after Brooks had completed his case in chief and the court asked, for the Board to call its first witness, an objection was made to the testimony of the Board’s witnesses due to the Board’s failure to file a witness list.

After a discussion between the attorneys and the trial judge in an attempt to resolve the issue, the trial judge excluded the testimony of the Board’s witnesses at the trial, but permitted the Board to proffer the testimony of their witnesses. The court held the case open to allow the Board the opportunity to take the depositions of its witnesses and to proffer the depositions.

Thus, the trial on the merits was conducted without any witnesses presented by the Board. Brooks presented testimony of David Blair, an eyewitness to his accident and injury. Mr. Blair corroborated Brooks’ testimony that on the morning of the accident the Board’s employees were working at the accident site. On the issue of damages, Brooks’ medical records were stipulated to and introduced into evidence. The records supported the finding of the trial judge that Brooks’ fall' caused an aggravation of a pre-existing injury. Metal screws, which had been inserted into Brooks’ left knee in a previous surgery, were loosened as a result of lathis accident, causing pain and necessitating an additional surgery. Judgment on the merits was rendered in favor of Brooks, awarding him $125,000.00 in general damages and $3,839.00 in medical expenses, together with costs and legal interest; the lien of the Veterans Administration for $2,719.00 was also recognized. This appeal followed.

The assignments of error before this court involve the trial court’s exclusion of the Board’s evidence. The Board specifically argues that the trial order should have been modified in order to prevent manifest injustice. In support of this position, it cites La. C.C.P. art. 1551, which states, in pertinent part:

B. The court shall render an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel. Such order controls the subsequent course of the action, unless modified at the trial to ‘prevent manifest injustice. [Emphasis added].

The effect of the trial court’s evidentiary ruling, as argued by the Board, was to prevent the Board from presenting its case, thereby causing manifest injustice.

The Board contends further that the decision of the trial court was inappropriate, as it penalized the client when the client’s fault was not an issue. The Board cites several cases for the position that when sanctions are imposed for the disregard of a pre-trial (or trial) order, the court must consider whether the |4misconduct was committed by the attorney, the client, or both. Benware v. Means, 99-1410 (La.1/19/02), 752 So.2d 841; Horton v. McCary, 93-2315 (La.4/11/94), 635 So.2d 199. The Board points out that no showing has been made of willfulness, bad faith, or fault on the part of the Board in the failure to submit the witness list. It therefore argues that the client in this case should not be penalized for the error of its attorney.

Brooks argues, however, that the trial court was correct in upholding the provisions of the trial order, pointing out that the Board was twice given in writing the opportunity to submit a list of witnesses, but failed to do so. He stresses the fact that the identities of the Board’s witnesses were not provided until the morning of trial, thus denying him the opportunity to depose them.

Brooks further asserts that although La. C.C.P. art. 1551 allows for the modification of a trial order to prevent manifest injustice, such a modification is left up to the discretion of the trial judge. Further, he submits that this discretion must be exercised to prevent substantial injustice to the parties who relied on the trial order. Benware, supra; Zanca v. Exhibition Contractors Co., 614 So.2d 325 (La.App. 4 Cir. 1993). Brooks contends that statements made by the trial judge during the trial indicate that the judge was of the opinion that allowing the witnesses to testify would have resulted in manifest injustice to Brooks’ case.

DISCUSSION

The well-established standard of appellate review to be applied in case dictates that this court may not overturn the judgment of the lower court absent an error of law or finding of fact that is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993).

Our courts have consistently stated that the theory inherent in pre-trial procedure is to avoid surprise and to permit an orderly disposition of the case. Eanes v. McKnight, 262 La. 915, 265 So.2d 220, 227 (1972); Zanca, supra. It is also well recognized that the trial judge has wide discretion to implement a pre-trial or trial order and to insure that its terms are enforced. Wells v. Gillette, 620 So.2d 301 (La.App. 4 Cir.1993); Zanca, supra. The trial court is also provided wide discretion in determining whether or not to modify a pre-trial or trial order. Neff v. Rose, 546 So.2d 480 (La.App. 4 Cir.1989); Wells, supra.

It is clear from the transcript in this case, that the trial judge weighed the positions of both parties in trying to arrive at an appropriate solution. Ultimately, it was ruled that Brooks was entitled to know the identity of the witnesses and the substance of their testimony in advance of the trial. To let the witnesses testify, the trial court noted, would have been unfair considering that Brooks had not been given an opportunity to depose the Board’s witnesses.

We find the ruling of the trial court to be reasonable, especially in light of the written requirement of the trial order, twice given, requiring that each party file a witness list by a date certain. It was not an abuse of discretion, under these circumstances, for the trial court to enforce the trial order in an attempt to prevent an injustice to the party who relied upon and followed that order in preparing for trial.

Although the cases relating to penalizing a party for failure to adhere to court orders cited by the Board do recognize the importance of determining | whether the client was the one responsible for violating the trial order, it is not the only consideration. As the Louisiana Supreme Court stated:

Other important considerations in determining the appropriateness of the penalty for a pre-trial order violation, in addition to the question of whether the client participated in the violation, are the stage of the proceeding at which the violation occurred, the presence or absence of prejudice to the opposing party’s preparation of the case, and the nature and persistency of the misconduct that constitutes the violation.

Benware, 99-1410, p. 10, 752 So.2d at 847.

When viewing the present case in light of the “other important considerations,” it is apparent that the trial court did not abuse its discretion. The Board was given a written trial order that specifically required each party to file a list of witnesses with the court by a date certain. The trial order was amended again giving counsel a date certain by which a witness list had to be filed with the court. Two discovery cut-off dates were specifically given. Neither the list nor the identity of the witnesses was provided to Brooks (or his counsel) until the morning of trial, thereby prejudicing his ability to prepare his case.

Finally we note that the Board equates the sanction imposed here with that of a dismissal and, being a severe penalty, should only be used in extreme circumstances. We are of the opinion, however, that the sanction imposed by the trial court is distinguishable from that of an outright dismissal. Brooks was still required to put on evidence to prove causation and damages, which he did. The Board was also offered the opportunity to apply to this court for a supervisory writ, (which it failed to do) and/or to proffer the deposition testimony of the excluded witnesses. The Board chose the latter. This court finds the ruling of the trial court to be reasonable.

|7We note that on the morning of trial, before Brooks presented his case, the trial judge and counsel discussed the case. We would assume that the Board’s counsel indicated in the conference that the Board intended to call witnesses and, by implication, Brooks’ counsel failed to inform the trial judge at that time that he would object to the Board calling any witnesses because of the failure to file a witness list. Such may have deprived the Board of an opportunity to move for a continuance before the trial commenced. The trial court could then have (a) considered whether it would grant the continuance, (b) ordered that the trial proceed but the matter be held open for the Board to present its case at a later date, (c) required the Board’s case be presented exclusively on depositions to be submitted later, or (d) strictly enforced its trial order. However, nothing in the record on appeal establishes what was discussed in the pre-trial conference, and it is inappropriate for us to speculate under the circumstances of this case what was discussed. The Board did not specifically ask that the trial court consider the proffered evidence when it filed its motion for new trial, but the Board in its supplemental brief analyzes the proffered evidence and asks this court to consider it. The trial court said:

And as a proffer, and then deliver it to the Court in an envelope marked proffer. That way, you know, once it’s submitted to me, obviously, I’m not going to read it. I’m going to render a decision based on what I have in front of me. And then the Court of Appeals [sic] can decide whether I’m right or wrong and they can order me to read them. They can do whatever they decide. I think that’s probably [a] better thing to do because it won’t delays things as long. [Emphasis supplied.]

We have reviewed the proffered evidence. Although the proffered evidence would at first blush appear to refute Brooks’ version of the facts, a detailed analysis does not refute the possibility that Brooks was injured as a result of the I «negligence of the Board’s employees associated with work performed at the site where Brooks claims he was injured. Accordingly, we do not find the judgment in this case to be either manifestly erroneous or clearly wrong.

CONCLUSION

Based upon the facts of the case at bar as established by the record on appeal, this court concludes that the trial court’s evidentiary ruling refusing to permit the testimony of the Board’s witnesses is not an abuse of discretion and not manifestly erroneous. We do not find that the proffered evidence would change the outcome of this case. Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

      . We find no evidence in the record on appeal that the Board's witnesses were ever disclosed to Brooks' counsel prior to 5 September 2001. It is apparent, however, that counsel for the parties discussed the case with the trial judge prior to the commencement of trial, and, by implication, Brooks' counsel did not raise during that conference an objection to the Board calling any witness for any reason whatsoever.

      . The Board deposed three witnesses on 8 October 2001 and on 12 October 2001 submitted their testimony together with documents referenced in their testimony as a proffer. The trial court signed a judgment on 4 April 2002. On 15 April 2002, file Board filed a motion for new trial; the motion was denied on'17 April 2002 without á hearing, and the court noted:
      "The court allowed counsel the opportunity to proffer the excluded testimony. The depositions were taken after trial. Counsel was obligated by the court’s trial order to include a list of witnesses.” Nowhere in either the motion for new trial or its accompanying memorandum of law does the Board ask for consideration of the proffered evidence.

      . We note that in its original brief filed with this court the Board does not assign as error, assert, or argue that the proffered evidence should be considered or reviewed for purposes of this appeal. The Board only noted that the proffered evidence would show that the Board was performing no work at the time and place claimed by Brooks. Subsequently, after the Brooks filed a response brief, the Board filed a "Motion for Permission to File Supplemental, Reply Brief.” However, the Board did not file a "Reply Brief.” Instead, they filed a supplemental brief that addresses that which in their opinion the proffered evidence establishes.

      . We note that the Board's counsel is its in-house counsel.


author: b MAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana v. Jessie LOOKADOO, III.
    No. 2002-KA-2516.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 30, 2003.
    Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Donna R. Andrieu, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    William R. Campbell, Jr., Louisiana Appellate Project, New Orleans, LA, for De~ fendant/Appellant.
    (Court Composed of Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III, and Judge MAX N. TOBIAS, JR.)
   b MAX N. TOBIAS, JR., Judge.

On 2 October 2001, the defendant, Jessie Lookadoo, III (“Lookadoo”), was charged by bill of information with the intentional or criminally negligent discharge of a firearm where it was foreseeable that it might result in death or great bodily harm to a human, a violation of La. R.S. 14:94. Loo-kadoo pleaded not guilty at his 10 October 2001 arraignment. The trial court denied Lookadoo’s motion to suppress on 16 November 2001. On 29 January 2002, Looka-doo waived his right to trial by jury and was found guilty as charged at the close of a bench trial. The state then charged Lookadoo as multiple offender pursuant to La. R.S. 15:529.1. On 7 February 2002, Lookadoo admitted his identity as the person previously convicted of the felony offense charged in the habitual offender bill of information. He was adjudicated a second-felony habitual offender and sentenced to two years at hard labor. On 20 June 2002, this court granted Lookadoo’s writ application for the purpose of transferring it to the trial court for filing as a motion for an out-of-time appeal. The trial court granted Lookadoo an out-of-time appeal on 1 July 2002.

\ .FACTS

New Orleans Police Officer Phillip Brigham and his partner Officer Bruce Gentry were in the North Miro Street courtyard of the Lafitte Housing Development at approximately 2:40 a.m. on 22 September 2001 when they responded to sounds of gunfire coming from Orleans Avenue. They observed two individuals shooting at each other. Lookadoo had a semiautomatic pistol in his hand and fired an estimated four to five shots in the presence of the officers. He expended all of the ammunition in the magazine of his pistol. Looka-doo dropped his pistol when he saw the officers and attempted to flee. Officer Gentry apprehended him. Officer Brigham identified a gun introduced in evidence as the one Lookadoo discarded. It was recovered approximately one and one-half feet away from where Lookadoo was apprehended. The second individual fled on a motorcycle and was never apprehended. Officer Brigham testified that Orleans Avenue at the location where Loo-kadoo had been shooting had businesses on one side and the Lafitte Housing Development on the other, where people resided.

ERORRS PATENT

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR

In Lookadoo’s sole assignment of error, he argues that the trial court erred in failing to permit him to substitute his counsel on the day of trial.

When the case was called for trial, the following colloquy occurred:

hMR. FONTENELLE:
Your Honor, for the record, Mr. Loo-kadoo is demanding a twelve-man jury. I’ve explained to him that he’s only entitled to a six-man jury because it’s with or without hard labor. I even had him read both laws regarding the number of jurors and the potential sentence for this charge, however, Mr. Lookadoo has insisted upon a twelve-pack and says I must be against him if I don’t demand a twelve-pack.
MR. LOOKADOO:
I didn’t tell him that but I don’t want him to represent me. He called me “stupid” — He called me “stupid” before.
MR. FONTENELLE:
And you told me to “fuck off’, too.
MR. LOOKADOO:
After you called me “stupid”.
MR. FONTENELLE:
Well, sir, if you read the law and still refuse to acknowledge it, that’s not a smart thing to do.
MR. LOOKADOO:
I don’t want him to represent me.
THE COURT:
Well, you don’t have a choice. The only choice is if you could hire a lawyer, but Mr. Fontenelle is the public defender assigned to this section of court. He has been involved with your case from the beginning and is looking out for your best interest.

This court set forth the applicable law in State v. Harrison, 2000-0213 (La.App. 4 Cir. 2/21/01), 782 So.2d 86.

“As a general proposition a person accused in a criminal trial has the right to counsel of his choice.” State v. Jones, 97-2593, p. 3 (La.3/4/98), 707 So.2d 975, 977, quoting State v. Harper, 381 So.2d 468, 470-71 (La.1980); La. Const, art. I, § 13 (at every stage of a criminal proceeding a defendant “is entitled to assistance of counsel of his choice”). However, the right is not absolute, and it must “be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system.” State v. Trepagnier, 97-2427, p. 8 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 188, quoting State v. Leggett, 863 So.2d 484, 436 (La.1978). “Thus, the Louisiana Supreme Court has repeatedly upheld the trial court’s denial of motions made 14on the day of trial based upon the defendant’s dissatisfaction with appointed counsel. See State v. Seiss, 428 So.2d 444, 447 (La.1983) and cases cited therein.” Id.

2000-0213, p. 5, 782 So.2d at 91.

“There is no constitutional right to make a new choice of counsel on the very date trial is to begin, with the attendant necessity of a continuance and its disrupting implications.” State v. Leggett, 363 So.2d 434, 436 (La.1978).

Lookadoo disputes the trial court’s statement that the only choice he had if he was dissatisfied with his counsel was to hire a private attorney, as Mr. Fontenelle was “the” public defender assigned to that section of court. Lookadoo notes that another public defender represented him at a 16 November 2001 appearance, and submits that that attorney could have been appointed to represent him. The trial transcript reflects that Lookadoo did not testify on his own behalf, although his counsel advised him to do so. Lookadoo infers that he might have testified had another counsel recommended that he do so, but that he could not bring himself to believe in and follow Mr. Fontenelle’s advice and was forced to proceed as though he were not represented at all.

Lookadoo cites no case analogous to this one. Even assuming arrangements could have been made to secure for him another attorney, he had no constitutional right to make that change on the day of trial. Mr. Fontenelle thoroughly cross-examined the only witness to testify at Lookadoo’s trial, and no indication in the record is found that his performance was less than that constitutionally guaranteed him. Looka-doo suggests that he could not trust Mr. Fontenelle because he called him “stupid” minutes before trial was to commence. Lookadoo implies that he would have followed the advice to testify on his own behalf if a different attorney ]Rhad given such advice. However, the trial court made clear to Lookadoo that Mr. Fonte-nelle had been correct in informing him that he could only be tried by a jury composed of six persons, not twelve. Thus, the court had confirmed Mr. Fonte-nelle’s competency in some measure. Loo-kadoo, who, with an eleventh-grade education had more education than many in his circumstances, may have chosen not to testify as an act of defiance toward Mr. Fontenelle. If he impaired his own defense in a vain gesture of defiance, he is required to live with the consequences of that decision.

Considering all of the facts and circumstances, we do not find that the trial court erred in denying Lookadoo’s request for a change of counsel on the day of and immediately prior to the start of his trial.

There is no merit to this assignment of error.

CONCLUSION

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

AFFIRMED.

      . State v. Lookadoo, unpub., 2002-1055 (La.App. 4 Cir. 6/20/02).


author: liMAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana v. Robert E. HOWARD.
    No. 2002-KA-2526.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 30, 2003.
    Richard P. Ieyoub, Attorney General, Darryl W. Bubrig, Sr., District Attorney, 25th Judicial District Parish of Plaque-mines, Belle Chasse, LA, and Gilbert V. Andry IV, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court Composed of Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR., and Judge LEON A. CANNIZZARO, JR.).
   liMAX N. TOBIAS, JR., Judge.

On 18 June 2001, the defendant, Robert E. Howard (“Howard”), was charged by bill of information with one count of distribution of cocaine, a violation of La. R.S. 40:967. On 4 December 2001, he elected to be tried by a jury, and trial commenced. However, during trial Howard withdrew his former plea of not guilty and entered a plea of guilty to the lesser charge of possession of cocaine. The court ordered a pre-sentence investigation and reset the matter for sentencing. On 18 April 2002, Howard orally moved for a new trial, asserting that the notes and tapes of the hearing on the motion to suppress the evidence and of his guilty plea had been destroyed in the Plaquemines Parish courthouse fire of 12 January 2002. The court granted the motion for new trial and vacated the guilty plea. In response, the state filed a motion to rescind the order vacating the guilty plea; after viewing the plea of guilty waiver form the court took the matter under advisement. On 4 June 2002, the court granted the state’s motion and reinstated Howard’s guilty plea to the possession charge. Howard noted his intent to seek supervisory -writs, but failed to do so. The matter was continued several times, and on 17 October 2002 the court sentenced Howard to serve five | ¿years at hard labor. Howard moved for an appeal a few days later, which the court granted.

Because Howard pled guilty to the charge and the transcript of the suppression hearing is unavailable, the facts of the underlying charge are unknown.

ERRORS PATENT

A review of the record reveals no indication that Howard was arraigned, most probably due to the destruction of the record in the courthouse fire. However, any error in this regard, if indeed it did occur, is harmless because the failure to arraign a defendant is harmless if the defendant goes to trial without objecting to the failure to arraign. La.C.Cr.P. art. 555. Here, there is no indication that there was an objection. In addition, the minute entry of the trial court and the resulting guilty plea indicates that Howard withdrew his prior plea of not guilty and entered a plea of guilty to the charge of possession of cocaine.

No other error patent exists.

ASSIGNMENT OF ERROR

In his sole assignment of error, Howard contends that his constitutional right to appellate review has been denied because the tapes and notes of his suppression hearing and his guilty plea were destroyed in the courthouse fire. He argues that because counsel on appeal is different from counsel at the suppression hearing, present counsel is unable to determine if the trial court erred by denying the motion to suppress the evidence.

This argument is, however, without merit because Howard pled guilty |sas charged without reserving his right of review of any pretrial rulings under State v. Crosby, 388 So.2d 584 (La.1976). Thus, even if the suppression transcript had been available, present counsel could not have raised an assignment of error as to the trial court’s ruling on the motion to suppress. In this respect, this case is distinguishable from the cases cited by Howard in his brief, namely, State v. Archie, 462 So.2d 248 (La.App. 4 Cir.1984), State v. Bizette, 334 So.2d 392 (La.1976), and State v. Rooney, 187 La. 256, 174 So. 348 (1937). Therefore, the unavailability of suppression hearing transcript does not impinge upon his right of review.

Howard also contends that he is prejudiced by the unavailability of his guilty plea transcript, but he does not specify how he is prejudiced. The guilty plea form indicates that Howard was tendering a straight guilty plea, without reserving any rights. The plea form and the minute entry of the guilty plea also note that Howard was pleading “in the blind,” meaning he had not been promised any particular sentence. Both the minute entry of the plea and the plea form set forth the rights of which the court advised Howard prior to accepting his plea, including his Boykin rights. In addition, the sentencing transcript, which is contained in the record on appeal, indicates that part of the plea bargain in this case included the state’s promise not to file a multiple bill against him; apparently Howard could have been charged as a fourth felony offender. Given these factors, we find the unavailability of the guilty plea transcript also does not impinge upon Howard’s constitutional right of appellate review.

^CONCLUSION

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

AFFIRMED.

      . The guilty plea form shows no reservation of Howard's rights under Crosby and it is clear that Howard was entering a plea of guilty without a promise of a specific sentence.