author: |,MARION F. EDWARDS, Judge.

text:
    Elizabeth Plaia Schiro, Wife of Joseph Andrew SCHIRO v. Joseph Andrew SCHIRO.
    No. 02-CA-542.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.

      Frank P. Tranchina, Jr., Cynthia A. De Luca, Metairie, LA, for Appellant.
    Ronald S. Hagan, Metairie, LA, for Ap-pellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   |,MARION F. EDWARDS, Judge.

Defendant/Appellant, Joseph Schiro, appeals the trial court’s valuation of his business in a proceeding to partition community property. For the following reasons, the judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Elizabeth Plaia Schiro, and defendant, Joseph Andrew Schiro, were married on October 18, 1986. On July 29, 1999, Mrs. Schiro filed for divorce in the 24th Judicial District Court for the Parish of Jefferson. The divorce was made final on October 25, 1999. On August 1, 2001, there was a hearing to determine the value of Schiro-Del Bianco Enterprises, a community asset. The trial court issued judgment on September 12, 2001, and it is from this judgment that Mr. Schiro presently appeals.

LAW AND ARGUMENT

|sOn appeal, Mr. Schiro raises two assignments of error. First, he argues that the trial court erred in finding that Schiro-Del Bianco Enterprises was a commercial business for which goodwill could be used in the valuation. Second, Mr. Schiro asserts that the trial court erred in attributing a value of $800,000.00 to Schiro-Del Bianco Enterprises.

An appellate court generally reviews the factual findings of a trial court according to the manifest error standard of review. As stated in Canter v. Koehring Co.:

When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.

The following facts were elicited at trial: Beginning approximately in 1988, Joseph Schiro began a partnership with Fulvio Del Bianco that was in the business of laying tile. Schiro-Del Bianco Enterprises, Inc., was not incorporated until 1994, however. The business operates out of Mr. Schiro’s mother’s home. Both Mr. Schiro and Mr. Del Bianco each own a 50% share of the business. Aside from the equipment it uses to complete jobs, the corporation does not keep any inventory in stock. In the day-to-day operations of the partnership, Mr. Schiro was responsible for the administrative aspects of running the business such as estimating job costs, coordinating work crews, accounting, payroll, and general office work. Mr. Del Bianco’s duties included physically laying the tile as well as overseeing |4work crews. No advertising takes place for the business, which instead obtains jobs through “word of mouth” and contacts within the local construction industry.

We first consider the issue of whether the trial court erred in classifying Schiro-Del Bianco Enterprises as a commercial entity for which goodwill could be used in evaluating the business’ worth. The Second Circuit noted in Head v. Head, in regard to goodwill:

Goodwill is recognized as an incidental property right in connection with commercial businesses. Its value may properly be included in the evaluation of a community-owned commercial business, in contrast to a one-person “professional” corporation where the goodwill results solely from the identity of the professional and his or her personal relationship with patients or clients. [Citations omitted].

Citing the case of Depner v. Depner, Mr. Schiro argues that his tile laying business is akin to corporations established by other professions such as doctors, lawyers, and accountants, and therefore, goodwill should not be a factor. The court in Dep-ner noted in regard to a definition of goodwill for a “professional” corporation:

The division of authority on the question of whether good will may exist in a profession dependent on the personal qualities of the professional himself has been stated in this manner; “ ... It has frequently been held that good will does not adhere to a business or profession dependent solely on the personal ability, skill, integrity, or other personal characteristics of the owner ...” 38 C.J.S. Good Will § 3, pp. 952-953.

In contrast, the court in Godwin v. Godwin noted in regard to the goodwill of a commercial business:

[T]his court, as were the Boyle and Ballero courts, is faced with a “commercial” business, “[t]he good will (sic) of [which] is an incidental property right connected with the business and capable of sale and transfer from one owner to the other.” Going further, the Ballero court defined goodwill as “the probability that the customers |Bof the old establishment will continue their patronage.” [Citations omitted].

Mr. Schiro argues that the only difference between his tile laying business and that of professional practices, such as those of physicians and attorneys, is the professional licensing requirement. Mr. Schiro asserts that there is no organization that offers professional certification for tile layers, but that his and Del Bianco’s knowledge, craftsmanship and professionalism “are very similar to the sorts of things necessary for a medical practice, law practice or CPA practice to be successful.”

In the case of Collier v. Collier the Third Circuit considered the criteria to be used in the classification of an individual as a professional engineer. In that case, the court noted that professional status was conveyed upon the engineer not only because of his special knowledge and ability, but also because of licensure by the state. The court further noted:

As stated in GLENN G. MORRIS & WENDELL H. HOLMES, 8 LOUISIANA CIVIL LAW TREATISE: BUSINESS ORGANIZATIONS § 42.02, at 448 (1999):
A professional corporation can render professional services only through individuals licensed to practice in this state. Of course, that does not prevent the corporation from hiring as employees individuals who, by custom and practice, are not usually considered to be rendering professional services.

Mr. Schiro further argues that, much like the professional practice in Depner, Schiro-Del Bianco Enterprises depends primarily upon the tile laying ability of Fulvio Del Bianco, who has a general reputation for his speed, attention to detail, quality consciousness, and artistic talent. Mr. Schiro asserts that, should Mr. Del-Bianco leave the business, as in the case of a sole practitioner professional, he could not be replaced. As the trial court in this case correctly noted in its oral reasons for judgment, however, 1 fithe Depner court had limited its ruling specifically to the facts before it. The trial court stated it reasons for judgment:

The Court is going to rule — and I want to put it in detail in case either side wants to take appellate review — and that is in this particular case I find this case to be different from Depner, in that Depner, by it’s words — And I read the case in its totality. It seemed to me that the Court in Depner was trying to bend over backwards to limit their ruling to a case with a sole practice professional. While it’s close to what we have here, it’s different. In that particular case, I think that a doctor while, running a business, he has more of an altruistic relationship with people, as some law firms do. In this particular case, I think this is a commercial business, and therefore, goodwill is a part of it.

Based upon our review of the record, we cannot say that the trial court was manifestly erroneous in finding that Schiro-Del Bianco Enterprises is a commercial business for which the principle of goodwill is applicable. While the craft of tile laying may take great ability, talent, and skill, we cannot say that the trial court erred in finding that Schiro-Del Bianco Enterprises did not meet the basic parameters of a “professional corporation,” as discussed above. Further, Mr. Schiro is not making a claim that his very own contributions to the company are irreplaceable, as in the cases he cites in support of his position, but instead he relies upon the unique abilities and skills of his business partner, Mr. Del Bianco, to defeat the application of goodwill. It would appear an argument analogizing the individual skill of an artisan to that of a licensed professional, such an attorney or physician, would be more properly raised by the individual artisan possessing such skill. We also specifically note the absence of legal precedent for the classification of a non-licensed artisan’s business as that of a professional practice, as Mr. Schiro urges the trial court should have done. Accordingly, we find this assignment to be without merit.

|7Mr. Schiro next argues that the trial court erred in its valuation of Schiro-Del Bianco Enterprises, specifically that the trial court erred in relying on the testimony of Mrs. Schiro’s expert, Albert J. Derbes, III, and upon his own testimony, where he stated that he had listed the value of the business as $1,000,000.00 on a loan application.

In Head v. Head, supra, the court noted in regard to business valuation methods:

Business valuations methods are not an exact science and are basically guides to determine a fair market value for buyers and sellers of a given business. Here, the evaluation is made for the purpose of resolving community property disputes. Given the dynamics of businesses and business practices, factoring in circumstances that may be unique to the parties, an inflexible formula for determining value is said to be impractical. Achee v. National Tea Company, 95-2556 (La.App. 1st Cir.12/20/96), 686 So.2d 121, 125.

The court in Head further noted in regard to the trier of fact’s evaluation of expert testimony in community valuation cases:

Generally, the trier of fact is not bound by expert testimony, but is to hear and weigh expert testimony in the same manner as any other evidence. Reasonable and well-founded opinion should be considered. Watts v. Watts, 552 So.2d 738, 740 (La.App. 1st Cir. 1989). The weight to be given expert testimony is dependent upon the professional qualifications and experience of the expert and especially on the facts on which that expert’s opinion is based. Goodwin v. Goodwin, 618 So.2d 579 (La.App. 2d Cir.1993).
The fact-trier is entitled to assess the credibility and accept the opinion of an expert just as with other witnesses, unless the stated reasons of the expert are patently unsound. The effect and weight to be given the expert’s testimony depends upon the validity of the underlying facts relied upon by the expert, and rests within the broad discretion of the trial judge. Chance v. Chance, 29,-591 (La.App. 2d Cir. 5/7/97), 694 So.2d 613, 617.

In the present case, there was testimony from several expert witnesses in the field of forensic accounting. There was no dispute that Mrs. Sehiro is entitled to one-half of the community ownership of the business based upon |sMr. Schiro’s fifty percent ownership, or twenty-five percent of the total value of the corporation.

Albert J. Derbes, III, who testified on behalf on the plaintiff, stated:

I looked at the possibility of looking— doing something based on net worth. The company doesn’t have any net worth because the owners take all the money out every year in one form or another. So that means that there had to be some other explanation for a large amount of net income that was being produced.
And the only way you can value that kind of business is to look at the goodwill factor and develop that.

Based upon a capitalized excess earnings method of determining the value of Schiro-Del Bianco Enterprises, as well as the value of goodwill, Derbes testified that the value of the business was $1,151,104.72.

Three experts gave their opinion their valuation of Schiro-Del Bianco Enterprises to the court on behalf Mr. Sehiro as well. Kern Shafer estimated that, based upon adjusted book value, Sehiro Del Bian-co Enterprises was valued at $75,000.00. Eric Rigby estimated the value of the business at $136,000.00; Bruce Miller assigned the company a value $132,500.00. None of Mr. Schiro’s experts included the value of goodwill into their calculations.

Mr. Sehiro also testified at trial, stating that Schiro-Del Bianco Enterprises did approximately $1,000,000.00 in sales every year, and that he had used that amount as the value of the business on a loan application in 1998.

The trial court stated in its oral reasons for judgment:

I don’t see either side of [sic] being 100 percent right. I think that what Mr. Tranchina, on behalf of Mr. Schiro is asking me to do, is his expert listed the 25 percent of the company at somewhere between 34,000 [sic] and $51,000. But yet, the company is making profits that really profits that a million dollar company would like to make, and they are paying Mr. Schiro and another party 150,000, [sic] plus still turning a profit, additionally, 50 to $60,000 a year. I don’t see how a lacompany that could make that kind of profit only be worth $30,000.
I do feel, though, that Mr. Derbes’ numbers as to what the good will was worth was a little bit high. He had it at — the good will at five times the earnings, and I thought that was a little bit high.

The trial court went on to note Mr. Schi-ro’s own valuation of the business on the loan application, further stating:

... I think that because it was for the purposes of making a loan that he [Schi-ro] may have well “puffed” a little bit about the value of the business.

The court then valued Schiro-Del Bian-co Enterprises at $800,000.00, finding Mrs. Schiro’s 25 percent value to be worth $200,000.00.

Based upon our review, we find that the trial court’s valuation of Schiro-Del Bianco Enterprises is reasonably supported by the record, and therefore we do not find an abuse of the trial court’s discretion in setting the value of the business at $800,000.00.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . 283 So.2d 716 (La. 1973).

      . Id. at 724.

      . 30,585 (La.App. 2 Cir. 5/22/98), 714 So.2d 231, 236.

      . 478 So.2d 532 (La.App. 1 Cir.1985), writ denied, 480 So.2d 744 (La.1986).

      . 533 So.2d 1009 (La.App. 1 Cir.1988), writ denied, 537 So.2d 1165 (La.1989).

      . 00-1263 (La.App. 3 Cir. 7/18/01), 790 So.2d 759, writ denied, 803 So.2d 30 (La.2001).


source: Caselaw Access Project

author: I JAMES L. CANNELLA, Judge.

license: Public Domain

text:
    Carolyn Eagan ZAMJAHN v. Charles J. ZAMJAHN.
    No. 02-CA-871.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.
    Writ Denied April 25, 2003.

      Frank P. Tranchina, Jr., Cynthia A. De Luca, Richard R. Schulze, Metairie, LA, for Appellant Carolyn Zamjahn
    John Patrick Connick, Hans J. Lilje-berg, Connick & Liljeberg, Metairie, LA, for Appellee Charles J. Zamjahn.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and CLARENCE E. McMANUS.
   I JAMES L. CANNELLA, Judge.

The Plaintiff, Carolyn Zamjahn (Carolyn), appeals from the trial court judgment which holds that the donation of property to her from her former husband, the Defendant, Charles Zamjahn (Charles), was null and void and awards Charles attorney fees of $2600. For the reasons which follow, we affirm in part, reverse in part and remand.

The parties, married on May 25, 1985, entered into a matrimonial agreement before their marriage and, thus, had no community of acquets and gains. All property which they acquired during the marriage was acquired as co-owners. A petition for divorce was filed by Carolyn on July 19, 2001. Two days prior to the filing of the divorce petition, the parties executed, at the office of Carolyn’s attorney, an Act of Donation involving two pieces of Jefferson Parish property that the parties had acquired during the marriage. One piece was the matrimonial domicile, located at 412 Aurora Avenue, and the other was located at 2404 Green Acres Road. In the Act of Donation, Charles conveyed his one-half interest in the two pieces of property to Carolyn so that she would own the two parcels as her separate property. In the Act of Donation, Charles also stated that he would pay the mortgage notes on both pieces of property for five years or until they were sold, and he would pay the Aurora property’s associated bills, like utilities and | -¡maintenance. The Act of Donation also contained an acceptance by Carolyn. The Act of Donation and Acceptance appeared to be executed by authentic act, notarized by Richard Alvarez and witnessed by Jenny Hampton (Hampton) and Dianne Landry (Landry). Both parties, the notary and the witnesses all signed at the bottom of the document.

On January 22, 2002, after the filing of the divorce petition, Carolyn filed a rule for interim periodic spousal support and to enforce the Act of Donation. On that same date, Charles filed an answer and reconventional demand to have the donation declared null and void and without legal effect. Charles filed two supplemental pleadings which asserted that the Act of Donation was null because (1) it was executed under duress, (2) it lacked proper form, (3) Defendant’s signature was not properly witnessed, (4) it was procured through threats and undue influence, and (5) there was a failure of cause.

Charles asserted that he and Carolyn were having marital difficulties and had physically separated. He contended that they had agreed upon a plan whereby he would give her full ownership of the two pieces of immovable property (the subject of the donation) and in exchange she would give him full ownership of the business which they owned. He further claimed that she had threatened to tell his children about some internet sites that he had viewed, if he did not sign over full ownership of the property to her. Finally, he had hoped that, going forward with the donation he would obtain some favor so that they might reconcile. Instead, she filed for divorce two days later, which had obviously been in preparation, and she refused to sign over her interest in the business to him.

Following trial on the merits, a judgment with reasons was rendered on April 16, 2002 holding that the Act of Donation was null and void and awarding Charles attorney fees in the amount of $2600. In his reasons, the trial judge said that he did not find Carolyn to be credible. He found that the Act of Donation was null and |4void because it was not properly executed as an authentic act and because it was executed by Charles under duress. He also found that there was a total failure of cause because Carolyn did not turn over full ownership of the family business to Charles in exchange for ownership of the property. It is from this judgment that Carolyn appeals.

On appeal Carolyn assigns six errors. She challenges the trial court findings concerning the improper form of the donation as well as the trial court’s findings of duress and failure of cause and consideration. -She argues that the trial court erred in awarding attorney fees to Charles and in not awarding attorney fees to her. Finally, she takes issue with certain evi-dentiary rulings which allowed Charles to testify to the marital history going back 15 years. Charles, on the other hand, argues that the trial court was correct in all of its findings and conclusions and he requests attorney fees for the appeal.

IMPROPER FORM

On appeal Carolyn argues that the trial court erred in finding that the donation should be declared null and void because it was not executed in the proper form. More particularly, Carolyn argues that the trial court was clearly wrong or manifestly erroneous in finding that one of the witnesses to the donation, Landry, was not present at the time that Charles executed the donation. Contrary to the trial court finding, the testimony of the notary and both of the witnesses, was consistently to the effect that all three of them were in the room and witnessed Charles signing his name on the Act of Donation. They all testified further that after Charles signed his name, the notary and two witnesses affixed their signatures to the document.

The testimony regarding a lack of proper execution of the donation came only from Charles. He testified that the Act of Donation was not signed by him on July 17th as the document indicated. He stated that he went to Alvarez’s office on | .July 13th and signed the Act of Donation with only he and Alvarez present. He stated that he did not recall that the witnesses were in the room with him when he signed. In support of his position, Charles produced a document that was a copy of the donation with only his signature on it. He contends that his possession of a copy of the donation with only his signature on it supports his testimony that he signed the document with only himself and Alvarez in the office and that he was given a copy of it before it was witnessed. Charles also introduced into evidence two copies of the time sheet or jacket log for his file from Alvarez’s office. One copy had been sent to the office of the Louisiana State Bar Association Disciplinary Counsel in November of 2001, pursuant to a complaint by Charles. The other was presented at trial. The latter copy had been changed regarding the activities of July 17, 2001, by adding information about the presence and names of the witnesses. Charles argues that the altered documents call Alvarez’s veracity into question.

Alvarez testified that he gave Charles a copy of the donation before it was finished, but that in no way indicated that the witnesses were not present. Alvarez stated that he did not know anything about the additions to the client log entry for July 17th and that Hampton handled that. Hampton explained that in other business that the firm had, it became imperative that the names of witnesses be noted, so she started doing it in all the files and simply added that information to this file afterward.

In finding that the donation lacked proper form, the trial court found that there had been testimony that Landry was not in the room when Charles signed. The reasons for judgment stated,

Mr. Alvarez testified that he and the two witnesses were present when Charles signed the document. Mr. Alvarez’s secretary testified that she was present and that the other witness was down the hall in another office, where she was employed. Coupled with the documents | ^introduced, the court concludes that the act was not in proper form and must fall for that reason.

Based on our review of the record, we find that the trial judge was clearly wrong in his recollection of Hampton’s testimony regarding Landry not being present when the donation was signed. There is no testimony to that effect in this record. Thus, we agree with Carolyn that the trial court erred in its factual finding that one of the witnesses was not in the room and did not observe Charles sign.

However, that does not end our inquiry concerning whether the Act of Donation was executed in proper form for an authentic act. At this point we must review the evidence de novo and apply the law accordingly.

Charles alone testified that he signed the Act of Donation three days before it is dated and that only he and Alvarez were in the room at the time. That testimony is expressly contradicted by Alvarez, Hampton and Landry. All three of these witnesses testified that they were all in the room when Charles signed the Act of Donation and that all three of them saw him sign it. They further testified that, following his signing, the two witnesses affixed their signatures and then Alvarez affixed his. While the embellished file log is troubling, there were no changes made in the July 17th entry insofar as it provided that “Chuck [Charles] came into office to sign documents — waiver.” There is no entry supporting Charles’ position that he came to the office on July 13th and signed. Moreover, when cross-examined on the matter, and specifically asked whether the two witnesses were in the room when Charles signed the donation, Charles did not respond definitively, but only answered “not to my recollection.”

There is no doubt that if the donation was signed as Charles described it, that is, with Charles signing the donation in the presence of the notary but not the witnesses, it would not be a valid authentic act. La. C.C. arts. 1536, 1833. Ritz v. Ritz, 95-0683 (La.App. 5th Cir.12/13/95), 666 So.2d 1181, writs denied, 96-0131 (La.3/8/96), 669 So.2d 395. However, we cannot conclude, from the evidence presented, that the donation was executed as Charles described it. Rather, we find that the evidence presented indicates that the two witnesses and the notary were present and observed Charles sign. Further, according to their consistent testimony, they then all three signed the Act of Donation, witnessing his signature. We find that the part of the Act of Donation evidencing the donation by Charles was in proper form.

However, a donation inter vivos is not valid until accepted. The problem with the validity of the donation here does not lie in the execution of the donation, but rather in the execution of the acceptance.

La. C.C. art. 1540, regarding when donations inter vivos become effective, provides:

A donation inter vivos shall be binding on the donor and shall produce effect only from the day of its being accepted in precise terms.
The acceptance may be made during the lifetime of the donor by a posterior and authentic act, but in that case the donation shall have effect, with regard to the donor, only from the day of his being notified of the act establishing that acceptance. (Emphasis added.)

La. C.C. 1833, defining an authentic act, provides:

An authentic act is a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed.
To be an authentic act, the writing need not be executed at one time or place, or before the same notary public or in the presence of the same witnesses, provided that each party who executes it does so before a notary public or other officer authorized to perform that function, and in the presence of two witnesses and each party, each witness, and each notary public signs it.
|sIf a party is unable or does not know how to sign his name, the notary public must cause him to affix his mark to the writing.

It has long been held that a donation is not effective as to the donor until it is accepted in accordance with law. Without acceptance, the donation is invalid and, prior to acceptance, it may be revoked by the donor. Works v. Noble, 177 La. 681, 149 So. 423 (La.1933); Lyons v. Lawrence, 118 La. 461, 43 So. 51 (La.1907). Applying these precepts to the evidence before us, we find that Carolyn’s acceptance of the donation was not in compliance with the statutory requirements for an authentic act and the act was, therefore, invalid.

Based on the evidence in this case, as we found above, Charles came into Alvarez’s office and, in the presence of Alvarez, Hampton and Landry, signed the Act of Donation. Following his signing of the donation, Hampton, Landry and Alvarez signed, witnessing Charles’ signing. Sometime later in the day, Carolyn came to Alvarez’s office and, as the witnesses testified, in the presence of Alvarez, Hampton and Landry, signed the Act of Donation as the donee, accepting the donation. The notary and two witnesses, who had previously signed the donation some hours earlier, did not thereafter sign the document attesting to Carolyn’s signature.

The attestation clauses in the document, did not apply to Carolyn when the notary and witnesses signed the document because Carolyn had not yet appeared before them and signed it. Thus, the signatures of the notary and witnesses attesting to the party’s appearance before them could only have been applicable to Charles when they signed the document. The document recites:

AND NOW, unto these presents comes and appears Donee for the purpose of accepting the said donation with gratitude and affection from her husband.
Donor and Donee acknowledge....
IcTHUS DONE AND PASSED, in my office in the Parish of Jefferson, State of Louisiana, on the day, month, and year hereinabove first written, in the presence of the undersigned competent witnesses who hereunto sign their names, together with the said Donor, Donee and me, Notary, after due reading of the whole.

When the notary and witnesses signed the document, Carolyn had not yet appeared and signed the document. Thus, their signatures could not have been attesting to her appearance and signature, they can only apply to Charles. For them to be applicable to Carolyn’s signature, they had to sign again, making the attestation clauses in the document correct recitations of the facts. To hold otherwise would be to allow the notary and witness to attest to false information. Since they did not sign the document again, after Carolyn appeared and signed the acceptance, we find that Carolyn’s acceptance was not in compliance with law and was, therefore, invalid. Since the donation is not valid until accepted, the Act of Donation is null and void.

Carolyn argues that there is no legal requirement that the donor and donee must sign the donation at the same time or that the witnesses and notary must sign at the same exact time as the party. Consequently, she argues that since the signatures of the notary and witnesses that observed her signing the document appear on the document, this should suffice as compliance with the statutory requirements for an authentic act. We disagree.

The purpose of authentic act requirements is to insure the validity of a signature on a document and that the person whose name appears thereon is the person who actually signed the document. The notary and witnesses attest to seeing the party sign the document. To reach the conclusion argued by Carolyn, we must find that it is acceptable for the notary and witnesses to sign the document, attesting to the validity of the party’s signature, before the person actually signs the document. Such a procedure would defeat the entire purpose of Imthe authentic act requirement. While we have reviewed the case of Rittiner v. Sinclair, 374 So.2d 680 (La.App. 4th Cir.1978), cited and relied on by Carolyn, we found no case that permitted the procedure utilized here, where the witnesses and notary signed the document attesting to a party’s signature hours before the party actually signed. Moreover, Rittiner was decided, based on the authentic act requirements provided in former La. C.C. art. 2234. That article did not mandate the same writing and signature requirements that are now contained in the governing law here, La. C.C. art. 1833.

When Alvarez, Hampton and Landry signed the donation as notary and witnesses, they did so attesting to Charles’ signature and fulfilled the authentic act requirements for part of the agreement. While La. C.C. art. 1833 does not mandate that all parties sign at the same time, or appear before the same notary and witnesses, it does mandate that each party sign the document before a notary and in the presence of two witnesses, who each must sign the document. Carolyn could have taken the donation to another notary, days later and signed it before a notary and two witnesses who all signed the document and it would have been valid. But we find that it was not in compliance with the legal requirements for her to come to the notary’s office, hours after the donor executed the document by authentic act, with the notary’s and witnesses’ signatures along affixed, and simply add her signature to the document.

Based on the evidence, we find that no one signed, witnessing Carolyn’s signature as the donee accepting the donation. Therefore, we find that the signature of the donee as to the acceptance, which must also be witnessed by a notary and two witnesses, who must also sign the document, was not in compliance Inwith the statutory requirements for an authentic act and was invalid. Absent a valid acceptance, the donation is invalid.

Based on the foregoing, we find that the donation is null and void because it was not executed and accepted in proper form as required by law.

Carolyn argues that the trial court erred in finding that the donation is invalid because it was executed by Charles under duress, exerted on him by Carolyn, and that the trial court further erred by awarding attorney fees to Charles on this basis. Charles, argues that the trial court was correct in finding that his consent to the donation was vitiated by the threats from Carolyn to disclose to others his interest in “adult” internet sites. Under La. C.C. art. 1964, where rescission is granted because of duress, the trial court may award attorney fees. Thus, Charles argues that the trial court award of attorney fees was proper.

In considering whether to invalidate the donation on the grounds that it was signed under duress, we note that that the donation has already been held invalid because it was not executed in the required form. Thus, the claim that the contract should be rescinded due to duress is moot. However, because it relates to the claim for attorney fees, we note that the facts presented here do not rise to the level of duress that would have warranted the rescission of the donation. Thus, we find that attorney fees were not properly awarded.

The testimony reveals that Carolyn had discovered that Charles was visiting “adult” sites on the internet. She found this very upsetting and intolerable. While the marriage does not appear to have been the most stable for many years, this seems to have been the precipitating event for the physical separation. While Charles may have had some concern that Carolyn would in fact tell people why she asked him to leave the marital domicile, the record also reveals that the execution of the donation was more likely motivated by Charles’ desire and hope for reconciliation and not out of fear. Charles contacted the attorney and instructed li¡>him what to place in the donation. Charles insisted on executing the document. Charles set up the appointment to execute the donation and arrived at the attorney’s office alone. All three witnesses testified that it did not appear that Charles was being forced to execute the document and that it appeared that he was signing it willingly and of his own free will.

La. C.C. art. 1962 provides that “[a] threat of doing a lawful act or a threat of exercising a right does not constitute duress.” Thus, we find that any threats by Carolyn, to tell Charles’ children why the parties separated, did not rise to the level of duress necessary to invalidate the donation.

The award of attorney fees is only allowed where there is a contractual or statutory right to attorney fees. Langley v. Petro Star Corporation of Louisiana, 01-0198 (La.6/29/01), 792 So.2d 721, 723. Absent a finding that the donation should be rescinded due to duress, there is no statutory or contractual right in either party to an award of attorney fees. Therefore, the award of attorney fees in favor of Charles is vacated and set aside and Carolyn’s request for attorney fees is denied.

The trial court also found that the donation should be set aside for lack of cause or consideration. As stated above, since the donation is being held invalid for want of form, this issue is moot.

Accordingly, based on the foregoing, the trial court judgment declaring the Act of Donation null and void and denying attorney fees to Carolyn is affirmed. The award of attorney fees to Charles is vacated and set aside. The case is remanded. Costs of appeal are to be borne by each party.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

      . Landry’s testimony was by way of deposition introduced at trial.

      . Former La. C.C. art. 2234, as written at the time which Rittiner was decided, provided in pertinent part:
      The authentic act, as relates to contracts, is that which has been executed before a notary public or other officer authorized to execute such functions, in presence of two witnesses, aged at least fourteen years, or of three witnesses, if a party be blind. If a party does not know how to sign, the notary must cause him to affix his mark to the instrument.


text:
    Mildred HALL, Lee White, Willie Mae Williams, et al. v. ZEN-NOH GRAIN CORPORATION, et al.
    No. 02-CA-1037.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.

      Provosty, Sadler, deLaunay, Fiorenza and Sobel, New Orleans, L.L.C. Henry S. Provosty, Walter R. Wellenreiter, New Orleans, and Joseph C. Wiley, Gonzales, LA, for Defendant-Appellant.
    George J. Nalley, Jr., Dona J. Dew, Metairie, LA, for Cargill, Inc., Defendant-Appellee.
    Robert J. Burvant, Elizabeth S. Wheeler, Laura E.F. Thompson, King, Leblanc & Bland, L.L.P., New Orleans, LA, for Weber Marine, Inc., Defendant-Appellee.
    C. Douglas Wheat, Kileen & Wheat, PLC, Houston, TX, for Stevedoring Services of America, Inc., Defendant-Appel-lee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and MARION F. EDWARDS.
   1 ¡.EDWARD A. DUFRESNE, JR., Chief Judge.

This is an appeal by Zen-Noh Grain Corporation, defendant-appellant, from summary judgment dismissing three third-party defendants, Cargill, Inc., Weber Marine, Inc., and Stevedoring Services of America, Inc. (SSA), from this suit. For the following reasons we affirm these judgments.

The basic facts of this litigation are these. Plaintiffs commenced this class action against Zen-Noh on June 8, 1999, alleging that the dust emissions from defendant’s grain operation were causing them damages. On August 31, 1999, Zen-Noh third partied a number of other agricultural and chemical operations in the area, asserting that emissions from these plants were at least partially responsible for plaintiffs’ problems.

This case, as it relates to the above three third-party defendants, was previously before this court on exceptions of no cause of action successfully urged by them in the district court, Hall v. Zenr-Noh Grain Corp., 00-151 (La.App. 5th Cir.9/26/00), 769 So.2d 769. This court reversed those rulings, however, holding that because these entities were engaged in grain operations which allegedly created grain dust in the area they might well be liable for at least a part of plaintiffs’ damages.

| -¡After substantial discovery was conducted, these three third-party defendants moved for summary judgment. Weber and Cargill’s motions were heard on April 8, 2002. On the following day, April 9, the trial judge granted Zen-Noh an additional 30 days to supplement its opposition to the motions. Then, on May 6, 2002, a judgment was signed granting the motions, but this judgment was not entered into the record until May 9. Zen-Noh filed a timely motion for a new trial on this judgment.

Meanwhile, SSA also urged a motion for summary judgment. This motion and Zen-Noh’s previous motion for a new trial were both heard on July 8, 2002. On August 2, 2002, a judgment was entered denying Zen-Noh’s motion for a new trial on the May 6, 2002 judgment, and granting SSA’s motion for summary judgment. This appeal followed.

The law concerning appeals of summary judgments is as follows. These appeals are reviewed de novo in the appellate courts, Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. Article 966 of the Louisiana Code of Civil Procedure provides that summary judgment shall be granted when there are no issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. It further provides that when the moving party will not bear the burden of proof at trial, the movant need not negate all essential elements of the adverse party’s claim, but rather point out that there is an absence of factual support for one or more elements of that claim. Thereafter, the adverse party must produce factual support sufficient to establish that he will be able to satisfy his evidentia-ry burden at trial.

In the present case, Zen-Noh alleged that emissions from the three third party defendants contributed to plaintiffs’ damages. In their motions for summary judgment the three third-party defendants submitted portions of |4depositions from 18 of the lead plaintiffs. Not one of these plaintiffs mentioned any of the third-party defendants as even possibly being responsible for their problems. Zen-Noh introduced an expert report on wind patterns in the area. The conclusion of this expert was that it was possible that emissions from other grain handling facilities could be borne by winds and affect plaintiffs negatively, but any ultimate finding would depend on whether and when these other facilities released particulate materials. There was no evidence to establish if the third-party defendants had released any such particles or when this might have occurred. On the above showing, we agree with the trial judge that there are no material facts in dispute and that summary judgment was proper.

Zen-Noh argues here that its expert’s report at least raised inferences that other facilities were responsible in part for plaintiffs’ damages. We disagree. All the report says is that winds in the area blow in all directions and therefore that particles released in the vicinity could be carried over plaintiffs’ properties. It makes no findings or conclusions that the third-party defendants released such particles, nor does it address any time component. This thus does not constitute evidence sufficient for Zen-Noh to carry its burden at trial that these other parties are liable in part for plaintiffs’ damages.

Zen-Noh also argues that the judgment was premature in that its discovery had been impeded by actions taken, not by third-party defendants, but by plaintiffs’ counsel. The record shows otherwise. The claims against the third-party defendants had been urged in pleadings in August of 1999, over three years ago. During all of that time Zen-Noh did not produce in support of its allegations any evidence or expert’s report in support of its claims. At the hearing on Weber Marine and Cargill’s motions on April 8, | r2002, Zen-Noh was given an additional 30 days to supplement it responses to these motions. No further evidence was submitted by May 8. We note in this regard that although the judgment was signed on May 6, it was not entered into the record until May 9, and because no supplemental materials were submitted by then, Zen-Noh was not prejudiced by the trial judge’s actions.

We further note that Zen-Noh filed a motion for a new trial as to the May 6, 2002 judgment, and a hearing on that motion was held on July 8, 2002, in conjunction with the motion for summary judgment urged by SSA, the remaining third-party defendant. By then the only additional piece of evidence presented by Zen-Noh was its expert’s report, which both we and the trial judge consider inadequate to present an issue as to a material fact. Given the amount of time that transpired between the filing of the third party demand and the summary judgment motions, we find no prejudice to Zen-Noh in the entry of the judgments against it for failure to present adequate evidence to substantiate its claims against these third-party defendants.

For the foregoing reasons, the summary judgments dismissing third-Party defendants Weber Marine, Inc., Cargill, Inc., and Stevedoring Services of America, Inc. are hereby affirmed.

AFFIRMED.


author: ¡JAMES L. CANNELLA, Judge.

text:
    Chauncey DAUZAT v. THOMPSON CONSTRUCTION COMPANY, INC. and Manhattan Boulevard Investors, L.L.C.
    No. 02-CA-989.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.

      Anthony F. Salario, Marksville, LA, for Appellant.
    Robert Henry Sarpy, Jr., Gregory D. Latham, Jones, Walker, Waechter, Poitev-ent, Carrere & Denegre, L.L.P., New Orleans, Lawrence J. Duplass, Magali Puente-Martin, Duplass, Zwain, Bourgeois & Morton, Metairie, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   ¡JAMES L. CANNELLA, Judge.

Plaintiff, Chauncey Dauzat, appeals from the trial court summary judgment in favor of Defendant, Manhattan Boulevard Investors, L.L.C. (Manhattan), in Plaintiffs tort suit against Manhattan for damages he suffered as a result of a fall from a lift while working as a subcontractor during construction of a building. For the reasons which follow, we affirm.

On April 1, 2000, Manhattan, owner of commercial property located at 2701 Airline Drive, contracted with Thompson Construction Company (Thompson) to build a new shopping center at that location. Thompson, in turn, subcontracted with Lafayette Fire and Safety, Inc. (Lafayette) to install a sprinkler system in the ceiling for fire prevention of the shopping center. Plaintiff was an employee of Lafayette when his injury occurred.

At the time of the accident, Plaintiff was working on an electrical lift attempting to guide an eight inch pipe, approximately 60 feet long, into its connection. The lift, with Plaintiff on it, was approximately 20 feet high. The lift was being operated by Plaintiffs helper. The helper moved the lift forward, backward, up and down at Plaintiffs command. Plaintiff gave the instruction to l8move the lift forward. When the lift moved forward, its front left tire went into a hole in the concrete slab, causing the lift to lurch, and Plaintiff to fall from the lift to the ground. The hole was about two and one-half feet in diameter and ten inches deep. Plaintiff injured his hip and wrist in the accident.

Plaintiff filed suit against Thompson and Manhattan, alleging that they were hable for his injuries. Manhattan moved for summary judgment, arguing that a property owner does not owe a duty to an employee of an independent contractor working on new construction on its property. In opposition to the motion for summary judgment, Plaintiff argued that Manhattan could be liable if they exercised operational control over the method and means of performing the construction, and/or gave express or implied authorization to an unsafe practice. In showing that Manhattan was liable, Plaintiff alleged that Manhattan approved the architectural plans that provided for the hole in the floor as part of the construction. The trial court granted the summary judgment in Manhattan’s favor. It is from this judgment that Plaintiff appeals.

On appeal Plaintiff asserts that the trial court erred in finding that there was an absence of genuine issues of material facts and in granting summary judgment in favor of Manhattan. More specifically, Plaintiff argues that there are genuine issues of material fact relating to whether the hole in the floor was an unreasonably dangerous condition or defect such that Manhattan can be held strictly liable under La. C.C. art. 2317 and 2322.

Manhattan argues that the summary judgment was properly granted. First, Manhattan points out that Plaintiff did not present its strict liability arguments in the trial court and, therefore, is precluded from presenting them on appeal. The only argument presented to the trial court was liability based on control, which 14lacks merit under this circuit’s jurisprudence, Villaronga v. Gelpi Partnership, No. 3, 536 So.2d 1307 (La.App. 5th Cir.1988), holding that a property owner is not hable in negligence for injuries to an employee of an independent contractor who performed work for the property owner. The affidavit submitted with the motion showed that Manhattan exercised no control over the construction project. Further, Manhattan argues that, even if Plaintiffs strict liability arguments are considered by this court, they lack merit because there is no showing of custody by Manhattan, that the hole was unreasonably dangerous, that the building is in ruin or that Manhattan had knowledge of the defect.

It is well settled that appellate courts review summary judgments de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730, 750; Nuccio v. Robert, 99-1327 (La.App 5th Cir. 04/25/00), 761 So.2d 84, writ denied, 00-1453 (La.6/30/00), 766 So.2d 544. Thus, this court must consider whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Smith, supra; Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. The burden of proof rests with the mover. Moreover, the summary judgment procedure is favored, and shall be construed, as it was intended, to secure the just, speedy, and inexpensive determination of most actions. La. C.C.P. art. 966(A)(2); Magnon v. Collins, supra. We find that mover met his burden in this case.

In the trial court the mover argued that it was entitled to summary judgment because, with only two exceptions, a property owner is not liable for injuries to an employee of an independent contractor who performed construction work on the property. The two exceptions are if the project is inherently dangerous or if the owner exercised control over the contractor’s methods or operation. Manhattan | Sargues that there was no evidence to support either exception. Therefore, summary judgment was correctly granted.

In response, the only argument raised in the trial court in opposition to Manhattan’s position was that Manhattan exercised control over the construction project by approving the architectural plans that governed the project.

This court has held that approving the architectural plans and having the right to inspect for compliance with the plans was not sufficient control to render the owner hable for the subcontractor’s negligence. Villaronga, 536 So.2d at 1311. We find Villaronga controlling here. There was no showing that Manhattan, as owner of the property, had any control over the construction operations and the contrary was established by affidavit. Approving the plans and inspecting for compliance with the specifications does not establish such control that would result in its liability.

Plaintiff also argues, for the first time on appeal, that Manhattan should be held strictly liable on the basis of either La. C.C. art. 2317 or 2322. We have considered Plaintiffs appellate arguments on strict liability and find no merit.

Article 2322, which provides for strict liability for the ruin of a building, is clearly inapplicable to this case because there is no liability for “ruin” during the construction of a building. Green v. Popeye’s Inc., 619 So.2d 69 (La.App. 3rd Cir.1993); Herron v. Lincoln Property Co., 525 So.2d 1189, 1191 (La.App. 5th Cir.1988); Temple v. General Insurance Co., 306 So.2d 915 (La.App. 1st Cir.1974), writ denied, 310 So.2d 643 (La.1975).

Next, we consider whether Manhattan can be held strictly liable under article 2317, which provides, in pertinent part: ‘We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.”

|f;A plaintiff who attempts to impose liability under La. C.C. art. 2317 on the custodian of a defective thing must prove that (1) the thing was in defendant’s custody or control, (2) the thing had a vice or defect, (3) the defect presented an unreasonable risk of harm, (4) the defendant knew or should have known of the unreasonable risk of harm, and (4) damage was caused by the defect. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990); Rolf v. Wal-Mart Stores, Inc., 00-1720 (La.App. 5th Cir.2/14/01), 782 So.2d 15, writ denied, 01-0702 (La.5/4/01), 791 So.2d 657. If a plaintiff fails to prove any one of these, his strict liability claim under La.C.C. art. 2317 falls.

A defect for the purposes of La. C.C. art. 2317 is a flaw or condition of relative permanence inherent in the thing as one of its qualities. Barron v. Webb, 29,707 (La.App. 2nd Cir.8/20/97), 698 So.2d 727, writ denied, 97,2857 (La.11/26/97), 703 So.2d 651. A temporary condition may constitute a hazard, but it does not constitute a defect as contemplated by article 2317. Barron v. Webb, supra.

In this case, the hole in the concrete slab was only a temporary condition as part of the construction. While it was part of the plans, this hole was not going to be left in the middle of the store when construction was completed. This temporary condition, arising as a part of the construction project, did not constitute a defect under La. C.C. art. 2317. Further, it was shown that Manhattan did not have custody or control over the building project or the contractor’s methods of operation. Thus, we find that Manhattan met its burden of showing that it was entitled to summary judgment.

Accordingly, for the reasons stated above, we find that the summary judgment rendered in favor of Manhattan and against Plaintiff was properly granted and affirm that judgment. Costs of appeal are assessed against Plaintiff.

AFFIRMED.

      . The trial court also granted summary judgment in favor of Thompson which resulted in dismissal of Plaintiff's case with prejudice. Plaintiff did not appeal from the summary judgment rendered in favor of Thompson and, as such, it is not before us and is final.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Ashraf N. QUTOUM.
    No. 02-KA-780.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 28, 2003.

      Martin E. Regan, Jr., Regan & Associates, P.L.C., New Orleans, LA, for Appellant, Ashraf N. Qutoum.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alison Wallis, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY and MARION F. EDWARDS.
   SUSAN M. CHEHARDY, Judge.

On January 14, 2000, the Jefferson Parish District Attorney filed a bill of information charging defendant, Ashraf N. Qut-oum, with committing aggravated arson of a structure located at 900 Avenue B in Westwego on or about December 21, 1999. Defendant’s trial commenced on January 23, 2001. After four days of testimony, the twelve-member jury found defendant guilty as charged. On January 29, 2001, defendant filed a motion for new trial. After extensive hearings, defendant’s motion for new trial was denied on August 31, 2001.

On that same date, defendant waived sentencing delays, and the trial court sentenced defendant to imprisonment at hard labor for ten years, ordering that the first two years of the sentence to be served without benefit of parole, probation, or suspension of sentence. That day, defendant orally moved for an appeal. Subsequently, defendant filed a written motion for appeal, which was granted.

Facts

The testimony and other evidence introduced at trial shows that, on December 21, 1999, at approximately 6:30 p.m., a fire occurred at the Shop and Save Convenience store at 900 Avenue B in Westwego, Louisiana. Agent John Springer, an expert in the field of fire cause and origin investigation, testified that |shis investigation showed that the fire had been intentionally set using a flammable liquid and an open flame ignition source.

Monica Bass, whose family resided above the convenience store, testified that she and her two young children were in their apartment above the store at the time of the fire. She testified that neither she nor her children were injured during the fire.

Other evidence introduced at trial revealed that defendant owned the store and its contents. Further, defendant was experiencing financial difficulties at the time of the fire. Defendant had obtained insurance coverage on the store and its contents approximately one month prior to the fire and had increased the insurance coverage on the store and its contents approximately 11 days before the fire. Finally, defendant’s cousin, Ashraf Dyouk, testified at trial that defendant admitted to him that defendant had started the fire.

Law and Argument

On appeal, defendant present four assignments of error: the evidence, viewed in the light most favorable to the prosecution, was constitutionally insufficient to support a verdict of guilty; the trial court abused its discretion in refusing to qualify David Tibbetts as an expert in cause and origin fire investigation; the trial court erred in denying a motion for new trial based on newly discovered evidence that Ashraf Dyouk perjured himself, while testifying for the State of Louisiana; and the trial court imposed an excessive sentence on Ashraf Qutoum, a first offender.

In his first assignment of error, defendant argues that the evidence was legally insufficient to convict him of aggravated arson. In essence, defendant contends that the State failed to prove any of the necessary elements of aggravated arson. He specifically that claims the State failed to prove beyond a reasonable 14doubt that the fire was intentionally set; that any flammable liquid was used to start the fire; or that it was foreseeable that human life might be endangered.

The standard for reviewing the sufficiency of the evidence presented in a particular case is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78. The trier of fact shall evaluate credibility and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27, 35. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual finding. State v. Stec, 99-633 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 787. In applying the Jackson standard, a reviewing court will not assess credibility nor re-weigh the evidence. State v. Rosiere, 488 So.2d 965, 968 (La.1986).

When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 provides that “assuming every fact to be proved that the circumstantial evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Captville, 448 So.2d 676, 678 (La.1984); State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208.

|fiDefendant was convicted of aggravated arson, in violation of La. R.S. 14:51, which defines that crime as “the intentional damaging by any explosive substance or the setting fire to any structure, watercraft, or movable whereby it is foreseeable that human life might be endangered.”

First, defendant argues that the State failed to prove beyond a reasonable doubt that the fire was intentionally set. However, Special Agent John Springer of the Bureau of Alcohol, Tobacco, and Firearms, an expert in the field of fire cause and origin investigation, testified, without contradiction, that the fire in question was intentionally set using a flammable liquid and an open flame ignition source.

Next, defendant argues that the State failed to prove beyond a reasonable doubt that any flammable liquid was used to start the fire, since the chemical analysis, conducted by an ATF chemist, of samples taken from the scene revealed no flammable liquids. Agent Springer explained that there were a number of reasons why no flammable liquid was found in the sample: the fire could have burned away the flammable product; the amount of liquid may have been so small that the instrument could not detect the type of liquid; the individuals who gathered the samples may have gathered them from the wrong spots; the liquids could have escaped from the metal cans if they had not been tightly sealed; or the water used to extinguish the fire could have dissolved the flammable liquid, if it were water-soluble. Agent Springer testified that the negative tests results did not affect his opinion about the cause and origin of the fire. See State v. Leger, In State v. Leger, 00-920, pp. 3-4 (La.App. 3 Cir. 12/20/00), 775 So.2d 1169, 1171-1172, writ denied, 01-240 (La.3/15/02), 811 So.2d 894.

Next, defendant argues that the State failed to prove beyond a reasonable doubt that it was foreseeable that human life might be endangered. Mrs. Bass testified that her family lived above the store in the apartment, which they rented from defendant. Defendant admitted that he spoke to Mrs. Bass three or four times | fithe day of the fire. Further, based on the conversation between defendant and Mrs. Bass at noon on the day of the fire, defendant knew that the Bass family would be in the apartment that evening. Moreover, defendant knew that the Bass family had two small children. He even knew that the Bass’ infant daughter had a serious medical condition. Lastly, and most disturbing, before the fire, defendant told his cousin that the tenants would be safe because they would smell the smoke and leave the building. See State v. Love, 611 So.2d 753, 756 (La.App. 4 Cir.1992), writ denied, 93-1384 (La.12/15/95), 664 So.2d 434.

Based on the foregoing, we conclude that any rational trier of fact could have found that the State proved the essential elements of aggravated arson beyond a reasonable doubt. This argument lacks merit.

In his second assignment of error, defendant argues, citing State v. Lewis, 95-0209 (La.App. 4 Cir. 4/13/95), 654 So.2d 761 and La. C.E. art. 702, that the trial court abused its discretion in refusing to qualify David Tibbetts as an expert in eause-and-origin fire investigation. He contends that Tibbetts should have been qualified as an expert witness based on his 22 years of fire investigation experience, training, and education. Defendant claims that Tibbetts’ method of fire investigation is the same type of fire investigation that was taught throughout the country by other experts in his field; that he is a state-certified fire investigator and an instructor at a nationally accredited fire-training school; and that he has used his | draining and experience to draw conclusions concerning fire while investigating hundreds of fire scenes.

The State notes that Tibbetts was not a certified arson investigator; has never been qualified as an expert in a court of law; has never been employed as an arson investigator; and does not hold a certification that allows him to classify fires above two alarms, where arson was suspected, or that involved fatalities.

In State v. Craig, 95-2499, pp. 8-9 (La.5/20/97), 699 So.2d 865, 870, cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997), the Louisiana Supreme Court discussed the qualification of a witness as an expert:

Pursuant to La. C.E. art. 702, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” In reviewing the decision of a trial court in qualifying a witness as an expert, courts typically place the burden on the party offering the witness as an expert and consider that the decision to accept or reject the offer rests within the sound discretion of the trial court. This Court employs that standard. Courts will also look to whether a witness has previously been qualified as an expert. Furthermore, the refusal of the trial court to receive such evidence will rarely, if ever, provide grounds for reversal. (Citations omitted).

At trial, Tibbetts testified that he was currently a district chief and Director of Training for the New Orleans Fire Department. Prior to becoming district chief, he was, for twelve years, a captain whose duties included, among other things, investigating the cause and origin of fires. He also worked for International Training and Service Corporation (ITSC), a company that trains fire department personnel.

Tibbetts has an associate’s degree in safety and fire technology. He attended the National Fire Academy and has served as an adjunct instructor for them. He admitted that, while the academy taught different aspects of firefighting, fire investigation, and safety, it did not teach about arson or fire origin.

| «Further, although he is a state-certified fire investigator level one, he could not “call” fires if those fires went above 2 alarms, if they involved suspected arson, or if they involved fatalities. He testified that, in any of those three situations, he had to call in a certified-trained fire investigator. Further, in his twelve years with the NOFD, Tibbetts had not “called” anything above a two-alarm fire. Furthermore, he had never made a “call” in an arson investigation.

Moreover, he admitted that firefighting is totally different from cause-and-origin investigation, but that, in firefighting training, he was trained to look for cause and origin. He also admitted that no more than six hours of his sixty-hour associate’s degree in fire technology were devoted to fire cause-and-origin determination. In addition, although Tibbetts had taken numerous training courses during his career, he admitted that a minimum number of those dealt with fire cause-and-origin.

In the end, Tibbetts admitted he had more experience in the field of hazardous materials than anything else. Tibbetts testified he did not play a role with the New Orleans Fire Department as a certified arson investigator; that he did not have a license to do certain types of private cause-and-origin work; and that he was not a member of the Louisiana Arson and Prevention Association, the International Association of Arson Investigators, or a member of the International Association of Bomb Technicians and Investigators. He also admitted that he had never been qualified in a court of law as an expert in cause and origin investigation.

After much argument, the trial judge found that the witness was not qualified to testify as an expert except in the areas of fire safety and hazardous materials. Our review of the testimony, as noted above, reveals that the trial court did not abuse its discretion in refusing to qualify Tib-betts as an expert in the field of fire 1 «cause-and-origin investigation. Defendant’s second assignment of error merits little consideration.

In his third assignment of error, the defendant alleges that the trial court erred in denying his motion for new trial based on newly discovered evidence that Ashraf Dyouk perjured himself while testifying for the State of Louisiana against defendant. Defendant claims that, ten days after his trial, Dyouk spoke to one of his trial attorneys, Tim Garlick, and admitted that he lied when he testified at trial. According to defendant, his attorney, Gar-lick, believed, after speaking with Dyouk, that the defense was not provided with Brady-Giglio information regarding threats and inducements allegedly made to Dyouk by prosecutors. Defendant contends that this evidence would have changed the jury’s verdict, if it had been introduced at trial. In addition, defendant argues that the trial court should have allowed his trial attorneys, Tim Garlick and Willard Hill, to testify at the new-trial hearing, instead of sustaining the State’s hearsay objections to their testimony.

The State responds that, during the extensive and lengthy hearing (four separate days) on the new-trial motion, Dyouk denied under oath that he had spoken to either of the defense attorneys. Further, Dyouk reiterated that defendant told him that he had intentionally started the fire. Finally, the State contends that defendant failed to present evidence at the new-trial hearing that Dyouk had committed perjury.

In State v. Gilkers, 01-1379, p. 9 (La.App. 5 Cir. 5/29/02), 820 So.2d 1152, 1157, this Court discussed motions for new trial based on newly discovered evidence:

A motion for new trial is based on the supposition that an injustice has been done to the defendant and unless such injustice is shown, the Imnew trial motion shall be denied, no matter the allegations upon which it is based. State v. Raines, 00-1941 (La.App. 5 Cir. 5/30/01), 788 So.2d 635, 642. In the case of State v. Bright, 98-0398 (La.4/11/00), 776 So.2d 1134,1149, the Louisiana Supreme Court discussed the factors a defendant must show in seeking a motion for new trial based on newly-discovered evidence:
A defendant seeking a new trial based on newly-discovered evidence must show that the evidence was discovered since trial; that the failure to discover was not due to a lack of reasonable diligence; that the evidence is material; that the evidence is available; and, the evidence is such that, had it been introduced at the trial, it would probably have changed the verdict or judgment of guilty. When ruling on a new trial motion, a trial court’s duty is the narrow one of ascertaining on an objective basis whether there is new material fit for a new jury’s consideration. (Citations omitted).
The ruling on the motion for new trial is left to the sound discretion of the trial court judge and will not be disturbed absent a clear abuse of discretion. State v. Raines, supra.

Defendant’s new-trial motion argued that the prosecution’s key witness, Dyouk, had lied on the witness stand and had attempted to extort money and other personal gains in return for testimony. Subsequently, defendant filed a supplemental new-trial motion, arguing that he had submitted to a polygraph examination that indicated that he did not set the fire. He also contended that Dyouk’s testimony was unclear as to the date (Christmas 1999 or Christmas 2000) that defendant confessed to the crime. Defendant argued (presumably in the alternative) that he was in Houston at the time of the confession and that he would produce witnesses to that effect.

Defendant further claimed that Dyouk’s testimony was a surprise, which he was not prepared to counter. He also alleged that Dyouk attempted to extort $50,000.00 from defendant and his family. Finally, he asserted that Dyouk told Tim Garlick, one of defendant’s trial attorneys, that his testimony was false and he only testified because he was forced to do so by the District Attorney’s office.

InHearings on defendant’s new-trial motion were held on April 12, 2001, May 18, May 30, 2001, and August 31, 2001. On the first day of the hearing, Tim Garlick testified that he had run into Dyouk at the bank approximately one week after the trial. Defendant’s trial attorneys both testified that they had not been provided information as to any threats or promises that had been made by the prosecution to Dyouk during or before the trial.

Further, defense attorney Hill explained that he did not know that Dyouk was going to testify at trial that defendant had confessed to the crime, that he did not have time during the trial to obtain witnesses to impeach Dyouk’s testimony, and that he did not have time to obtain evidence regarding the whereabouts of defendant when the confession was allegedly made.

Saed Nagi Qutoum, defendant’s brother, testified that he attended defendant’s trial. He also testified that defendant could not have confessed to Dyouk on Christmas Eve or New Year’s Eve of 1999 or 2000, because he saw defendant in Houston, Texas on Christmas Eve and Christmas Day of 1999 and on New Year’s Day of 2000. Further, Qutoum also testified that defendant went to a different state on Christmas Day 2000.

Morris Surber also provided an alibi for defendant during the times he allegedly confessed to Dyouk. Mr. Surber testified that he owned fireworks stands in Houston, and that he saw defendant working at a fireworks stand on December 31, 1999. Dyouk testified that he did not run into Garlick at the bank and also did not tell him he was forced to testify at trial against defendant. Further, Dyouk testified that, as clearly as he could recall, defendant confessed that he set fire to his own store to Dyouk on December 31,1999.

On the final day of the new-trial hearing, defense counsel argued his second supplemental new-trial motion, claiming that he had witnesses and information that was not available to defense counsel at trial. The prosecutor responded that the | ^second supplemental motion did not present newly discovered witnesses or evidence because (1) two of the witnesses defense counsel wanted to call, Brian Brown and Allen LeBlanc, were not newly discovered, since Brown, in fact, testified at trial; and (2) defense counsel knew at the time of the original motion for new trial that he needed witnesses as an alibi for December 31, 1999. The prosecutor further argued that the witness who had spoken to the alleged arsonist would be testifying as to hearsay, that that witness may be subjecting himself to a charge of perjury, and that he would need to be counseled as to his rights. The trial court, thereafter, denied defendant’s second supplemental motion for new trial.

Defense counsel subsequently called Nagi Qutoum, defendant’s father, as a witness. The trial court asked defense counsel if he was listed in the motion for new trial. Defense counsel refused to answer the question. Instead, he “terminated” the proceedings, alleging that in light of the court’s rulings, he would no longer present any evidence in support of his motion for new trial and indicated that he would file an application for post-conviction relief. The trial judge then ruled on the original and first supplemental motions for new trial, stating:

The matter having been considered by the Court and the pleadings filed and the evidence offered by the witnesses the Court takes notice that it does not find that Article 854 of the Code of Criminal Procedure has been complied with, that is to say the witnesses which [sic] have been offered before this Court do not support a finding that there was an exercise of reasonable; diligence by the Defense that new | ^evidence was discovered before or during the course of the trial. The witnesses which [sic] have testified at this point the Court finds nothing to suggest that they were not available during the course of the trial and that they could not have testified, in fact, the Defense so desired them to do so.
The Defense is correct in one point. There may be some post conviction issues and the Court does not speak to the merits of those, but as to a new trial we simply do not find that there is merit for same and we thereby deny the motion for a new trial.

When ruling on a new trial motion, a trial court’s duty is the narrow one of ascertaining on an objective basis whether there is new material fit for a new jury’s consideration. State v. Bright, 776 So.2d at 1149. Our review of the entire transcript of the hearing on the new-trial motion reveals that the trial judge was correct in finding that the defendant did not present new material fit for a new jury’s consideration. Thus, we find that defendant’s third assignment of error lacks merit.

Next, in his fourth assignment of error, defendant argues that his ten-year sentence was constitutionally excessive. He contends that the record does not support the sentence imposed. Defendant claims that the, trial court based its sentence on his criminal history; however, he claims there was no evidence in the record that he had a criminal history.

After sentence was imposed, defense counsel orally objected to the sentence, noting that defendant did not have a criminal record. Additionally, defendant did not file a motion for reconsideration of the sentence as required by La.C.Cr.P. art. 881.1. Failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a review of the sentence for constitutional excessiveness only. State v. Hester, 99-426, p. 10 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 103, writ denied, 1999-3217 (La.4/20/00), 760 So.2d 342.

Both the United States and Louisiana Constitutions prohibit the imposition of excessive or cruel punishment. U.S. Const, amend. VIII; La. Const, of 1974,1 uart. I, § 20. A sentence is constitutionally excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839.

Trial judges are granted great discretion in imposing sentences and sentences will not be set aside as excessive absent clear abuse of that broad discretion. State v. Bacuzzi, 97-573 (La.App. 5 Cir. 1/27/98), 708 So.2d 1065. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Watts, 99-311 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145.

Defendant was convicted of aggravated arson and sentenced to 10 years of imprisonment at hard labor, with the first two years of the sentence to be served without benefit of parole, probation, or suspension of sentence. La. R.S. 14:51 provides that a person convicted of aggravated arson shall be imprisoned at hard labor for not less than six nor more than twenty years, and shall be fined not more than twenty-five thousand dollars. Two years of such imprisonment at hard labor shall be without benefit of parole, probation, or suspension of sentence.

After the hearing on the motion for new trial, defendant waived sentencing delays, and the trial court stated as follows:

This matter is now before the before the Court for purposes of sentencing. The Court takes notice that the Defendant, Mr. Qutoum, was convicted by a jury of his peers for the crime of aggravated arson on the 26th day of January in the year 2001.
In imposing sentence, the Court has taken into consideration the provisions of the Code of Criminal Procedure Article 894.1 and further the following factors.
The Court notes that the Defendant has been convicted of a felony. The Court further notes the nature of the crime for which he has been 11Bconvicted, that is aggravated arson. The Court notes that the offender created a risk of death or great bodily harm to other persons and particularly the Court notes that there was a minor child located within the building wherein the fire took place who had a respiratory problem for which the Defendant was aware of. There were other persons living within that area.
The Court is of the opinion that there is an undue risk that if any suspended sentence were imposed that it would depreciate the seriousness of the Defendant’s conduct.
The Court further notes that there is a mandatory minimum of two years at hard labor which cannot be suspended, neither is there probation or parole available.
The Court is of the opinion that the Defendant is in need of correctional treatment in an institution under the supervision of the State of Louisiana; that any lessor [sic] sentence than which I will now impose would depreciate the seriousness of the Defendant’s conduct.
The Court further takes notice of the Defendant’s prior criminal history.
Accordingly, the Court sentences the Defendant to 10 years at hard labor. The first two years of that sentence must be served without benefit of probation, parole, or suspension of sentence.

In State v. Newsome, 524 So.2d 133, 134-135 (La.App. 4 Cir.1988), defendant was convicted of aggravated arson and sentenced to 20 years at hard labor. In Newsome, defendant threw flaming oil cans through the window of his ex-girlfriend’s apartment, causing the plastic window panes to melt and the curtains to catch on fire. Her five sons and her brother were also in the apartment. The trial court imposed the maximum penalty of 20 years at hard labor, with the first two years to be spent without benefit of parole, probation, or suspension of sentence.

On appeal, the Newsome court noted that defendant was 22 years old, had a prior criminal history, the crime was serious as evidenced by defendant threatening to kill everyone in the apartment while armed with a gun, and defendant showed no remorse and had a hostile, uncooperative attitude. Further, the Fourth Circuit discussed sentences imposed in other aggravated arson cases:

|1frFew decisions are reported that address the appropriateness of sentences imposed for aggravated arson. None were found in which the trial judge imposed the maximum twenty year sentence. However, in State v. Simmons, 443 So.2d 512 (La.1983), a fifteen year sentence was imposed for this crime where defendant set fire to a bingo hall containing approximately 100-150 individuals.
Other courts have imposed the following sentences for aggravated arson: ten years in State v. Washington, 421 So.2d 887 (La.1982) where defendant was a third offender and set fire to the jail where he was incarcerated; nine and one half years in State v. Smith, 448 So.2d 778 (La.App. 2nd Cir.1984) where drunk defendant set fire to the house where his wife lived; six years in State v. Williams, 457 So.2d 610 (La.1984) where defendant set fire to the hotel at which his ex-girlfriend worked; seven years in State v. Barnes, 495 So.2d 810 (La.App. 4th Cir.1986) where defendant set fire to ex-girlfriend’s house.

State v. Newsome, 524 So.2d at 135.

Defendant argues that the trial court erred in considering his prior criminal history when he had none. The record, in fact, does not indicate that defendant had any prior arrests or convictions. We find that the trial judge did err in considering defendant’s criminal history in imposing sentence. We also find that the error was harmless, because the record supports the sentence imposed.

Defendant, who was 26 years old at the time of trial, owned a building at 900 Avenue B in Westwego that contained a grocery store on the first floor and an apartment on the second floor. The evidence showed that defendant was having financial problems; that he set the building on fire to collect the insurance proceeds; that he knew a family with two young children was living in the apartment on the second floor; that the family’s infant daughter had a respiratory condition that required her to continually wear a monitor; and, finally, that he knew that the mother and children were in the apartment on the day of the fire. Defendant created a risk of death or great bodily harm to the family who lived in the apartment above the grocery store and to everyone who lived in the area of the building for financial gain.

117Pefendant was exposed to a maximum sentence of twenty years; however, he received only a mid-range sentence of ten years. The facts of the case, when considered in light of the jurisprudence discussed previously, support the ten-year sentence. Based on the foregoing, we find that defendant’s sentence was not constitutionally excessive. This assignment merits little consideration.

Finally, our review of the record reveals a patent error in this case. The trial court imposed an illegally lenient sentence when it failed to impose the mandatory fine of “not more than twenty-five thousand dollars” delineated in La. R.S. 14:51. This Court has the authority to notice an illegally lenient sentence despite the failure of either party to raise the issue in the district court or on appeal. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790; State v. Clemons, 01-1032 (La.App.2/26/02), 811 So.2d 1047, writ denied, 02-0866, 02-0918 (La.11/22/02), 834 So.2d 972, 2002 La. LEXIS 3354. Therefore, we remand this matter to the district court for imposition of an appropriate fine. In all other respects, the defendant’s conviction and sentence are affirmed.

CONVICTION AFFIRMED; REMANDED FOR RESENTENCING.

      . Defendant cites State v. Lewis, 95-0209, pp. 1-2, 6-7 (La.App. 4 Cir. 4/13/95), 654 So.2d 761, 762, 765-766, to support his position that Tibbetts was qualified to testify as an expert in fire cause and origin. In Lewis, the defendant was indicted for aggravated rape and other offenses. A hearing was held to determine whether the assistant director of GenTest Laboratories should be recognized as an expert in the fields of molecular biology and DNA testing and analysis. The trial court denied the assistant director expert status because she was not the primary scientist handling testing in this case and she did not hold a doctorate degree. On appeal, the Fourth Circuit noted that the assistant director had never been denied expert qualification and, in fact, had been accepted as an expert in DNA analysis and testing in the State of Florida, Jefferson and St. Charles Parishes, and Orleans Criminal District Court. The Lewis court concluded that the trial court abused its discretion in refusing to accept the assistant director as an expert in the fields of DNA analysis and molecular biology. Lewis is distinguishable, however, from this case because Tibbetts had never been qualified as an expert in a court of law in the field of fire cause-and-origin investigation.

      . In the interest of completeness, we note that defendant failed to proffer the substance of Tibbetts' testimony, thus, we cannot determine whether defendant's substantial rights were affected by the trial court’s refusal to accept Tibbetts as an expert.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

      . La.C.Cr.P. Art. 854, entitled, “Newly discovered evidence; necessary allegations” reads:
      A motion for a new trial based on ground (3) of Article 851 shall contain allegations of fact, sworn to by the defendant or his counsel, showing:
      (1) That notwithstanding the exercise of reasonable diligence by the defendant, the new evidence was not discovered before or during the trial;

        (2) The names of the witnesses who will testify and a concise statement of the newly discovered evidence;
      (3) The facts which the witnesses or evidence will establish; and
      (4)That the witnesses or evidence are not beyond the process of the court, or are otherwise available.
      The newly discovered whereabouts or residence of a witness do not constitute newly discovered evidence.

      . The trial court failed to impose a fine as required by LSA-R.S. 14:51. Please see error patent discussion,