text:
    Myung Soo KIM v. Esther S. KIM.
    No. 07-CA-318.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2007.

      Thomas E. Dunn, Attorney at Law, Mandeville, LA, for PlaintiffiAppellant.
    Derrick D.T. Shepherd, Attorney at Law, Marrero, LA, for Defendant/Appel-lee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

^Plaintiff, Myung Soo Kim (“Mr. Kim”), appeals a trial court judgment dismissing his lawsuit against defendant, Esther Kim (“Ms. Kim”), and awarding damages to Ms. Kim on her reconventional demand. For the reasons which follow, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On November 3, 2004, Mr. Kim filed a “Suit on Promissory Notes” against Ms. Kim. Mr. Kim alleges that Ms. Kim is indebted to him on a promissory note dated June 1, 1999 in the amount of $42,000 plus interest. He asserts that she is indebted to him on a promissory note dated August 1, 1999 in the sum of $41,330 plus interest. On January 10, 2005, Ms. Kim filed an “Answer and Reconventional Demand to Suit on Promissory Notes,” denying Mr. Kim’s allegations against her and asserting that Mr. Kim is liable to her for damages for failing to comply with their agreement to be business partners and for failing to provide $50,000 for equipment and supplies, as agreed.

| ¡¡Trial of this matter began on July 6, 2006, and Ms. Kim was called to the stand. However, after just a few questions and some discussion between the attorneys and the trial judge, plaintiffs counsel moved for a continuance, and the trial judge continued the matter to August 10, 2006.

When trial resumed on August 10, 2006, Esther Kim testified that she opened a beauty supply business called Beauty Avenue in 1999. She stated that Mr. Kim had agreed to be her business partner, but he did not comply with their agreement. She stated that she used $50,000 of her own money to buy equipment and supplies to open and operate the business, and that she never received any money from Mr. Kim. She further stated that she did not sign any promissory notes.

Myung Soo Kim testified that Ms. Kim signed both the June 1, 1999 and the August 1, 1999 promissory notes at his home in the presence of his wife. He stated that he loaned Ms. Kim $100,000 because she had filed for bankruptcy, she had no credit, her husband was his friend, and Ms. Kim was his wife’s friend. He stated that he gave her the money in cash and checks, but he was not able to produce copies of the checks because his bank no longer kept them. He indicated that the promissory notes were for less than $100,000, because Ms. Kim had agreed to pay back some of the money from insurance proceeds that she expected to receive. He asserted that she repaid $5,000 or $10,000, though he did not have evidence of these payments. He further stated that he never agreed to be Ms. Kim’s business partner.

At the conclusion of his testimony, plaintiff, Mr. Kim, rested his case. At that time, Ms. Kim’s attorney moved for dismissal of plaintiffs case on the grounds that no evidence had been submitted into the record. Plaintiffs attorney immediately requested that the trial judge allow him to introduce into evidence the | ¿exhibits that had been referred to in the previous testimony, asserting that it had “slipped his mind.” The trial judge denied plaintiffs request to admit the documents into evidence, granted defendant’s motion, and dismissed plaintiffs lawsuit.

Thereafter, testimony was heard on the reconventional demand. Ms. Kim testified that the Korean community is “close-knit” and that she had a good reputation before plaintiff filed this lawsuit, but she had a terrible reputation afterward. She also stated that because Mr. Kim did not comply with his agreement to provide money to start the business, she had to work at the business six days a week. She stated that she would have bought more supplies, hired help, and advertised if he had provided the money as agreed. Ms. Kim admitted that she had filed for bankruptcy prior to opening Beauty Avenue.

Mr. Kim was then called to the stand and requested that the court accept his testimony from the main demand in defense of the reconventional demand. In addition, he testified that he authorized Ms. Kim to open one credit card to help with her business, but she opened three additional credit cards, so he reported her to the police. He also stated that Ms. Kim never told him how much money she made from Beauty Avenue because they were not partners.

At the conclusion of trial on the recon-ventional demand, the trial court took the matter under advisement. On September 1, 2006, the trial court issued a judgment in favor of Ms. Kim on the reconventional demand, awarding her $6,000 in damages. Myung Soo Kim appeals.

DISCUSSION

On appeal, Mr. Kim sets forth five assignments of error. In his first assignment of error, he contends that “[t]he court erred by interpreting Defendant’s reconventional demand as the affirmative defense and specific denial of signature |son a negotiable instrument required by a defendant charged with making a promissory note.” By this assignment, Mr. Kim argues that Ms. Kim should not have been able to argue at trial that she did not sign the promissory notes at issue, because signing someone else’s name on a note is fraud, which is an affirmative defense that must be specifically plead in defendant’s answer. He claims that Ms. Kim never specifically plead this defense and that there is no evidence that, prior to trial, he was put on notice that Ms. Kim was claiming she had not signed the promissory notes. Mr. Kim further contends that he was surprised by this defense at trial and thus, he was unable to secure additional witnesses such as a handwriting expert.

In Ms. Kim’s answer to Mr. Kim’s lawsuit, she set forth general denials of plaintiffs claims. In her reconventional demand, after asserting that she and Mr. Kim had an agreement to enter into business together and that Mr. Kim agreed to provide $50,000 for equipment and supplies, she asserts, “no documents were ever signed or authentication [sic] by either party.” Mr. Kim contends that this statement logically means that no documents were signed concerning the alleged partnership agreement only, not the promissory notes. Ms. Kim responds that this assertion indicates that no documents related to the business were signed at all, including promissory notes.

An affirmative defense is a defense to an action which will have the effect of defeating a plaintiffs claim on its merits. Abadie v. Markey, 97-684 (La.App. 5 Cir. 3/11/98), 710 So.2d 327, 332. In the instant case, Ms. Kim contends that she did not sign the promissory notes at issue, so the signatures on these notes must be fraudulent. Fraud is an affirmative defense that must be specifically pled, and failure to do so will result in waiver of defendant’s right to argue the issue. LSA-C.C.P. art. 1005; Blanchard, v. Rental Service Corp., U.S.A., 05-460 (La.App. 5 Cir. 1/17/06), 920 So.2d 911, 916. However, failure to plead an affirmative defense in defendant’s answer does not automatically preclude application of the defense. Zulli v. Coregis Ins. Co., 05-155 (La.App. 5 Cir. 7/26/05), 910 So.2d 437, 440, writ denied, 05-2226 (La.2/17/06), 924 So.2d 1017. LSA-C.C.P. art. 1005 provides that if a party mistakenly designates an affirmative defense as an incidental demand and if justice so requires, the court shall treat the pleading as if there had been a proper designation.

In the present case, in the recon-ventional demand portion of the defendant’s “Answer and Reconventional Demand to Suit on Promissory Notes,” she specifically claims that no documents were signed by plaintiff or defendant. Failure to make this assertion in the “answer” portion of this document does not preclude application of this defense. Further, even if the assertion that “no documents were signed” was only intended to refer to documents regarding a partnership agreement, as argued by plaintiff, we find no surprise, prejudice, or error in the trial court’s decision to allow defendant to argue that she did not sign the promissory notes.

When the case came for trial on July 6, 2006, very few questions were asked of Ms. Kim before plaintiffs counsel moved for a continuance. A continuance to August 10, 2006 was granted. After the trial court indicated that he would grant the continuance, plaintiffs attorney stated:

At the point at which she denies that her signature is on these documents I still intend to raise the issue of an affirmative defense that wasn’t pled or otherwise made known to the plaintiff until we had a conference in your office.... ”

The general purpose of requiring certain defenses to be specifically pled is to give fair notice of the nature of the defense and to prevent surprise. Young v. St. Landry Parish School Board, 99-581 (La.App. 3 Cir. 12/15/99), 759 So.2d 800, 803-804, writ denied, 00-118 (La.3/17/00), 756 So.2d 1144. In the present case, it is clear that Mr. Kim’s attorney was aware of Ms. Kim’s claim that she did not sign the promissory notes and that Mr. Kim could not have been surprised or ambushed when this issue arose over a month later when trial resumed. Further, there is no evidence that there was insufficient time to get a handwriting expert or other witnesses during this time, and there is no indication that Mr. Kim sought additional time to prepare his case due to this affirmative defense.

Considering the record before us, we find no merit in Mr. Kim’s argument that Ms. Kim’s affirmative defense of fraud could not be considered and that the trial court erred by allowing testimony regarding Ms. Kim’s assertion that she did not sign the promissory notes. This assignment of error is without merit.

In his second assignment of error, Mr. Kim asserts that the trial court erred by placing the burden of proof on him to prove Ms. Kim’s signatures on the promissory notes. He contends that, in the absence of a denial of her signature on the notes, the notes would have been accepted as proof of the making of the loans and the burden would be on Ms. Kim to prove that she repaid the loans or was not bound to repay them.

In this assignment, Mr. Kim reiterates his argument that the trial court should not have allowed Ms. Kim to allege that she did not sign the notes, because she did not timely plead her affirmative defense. However, because we have found that the trial court did not err in allowing Ms. Kim to assert this defense, plaintiffs argument that the notes would have been accepted as proof in the absence of a denial of her signature does not apply, because such a denial was in fact made. Accordingly, we find no merit in this assignment of error.

In his third assignment of error, Mr. Kim contends that the trial court erred by not allowing plaintiffs counsel to thoroughly cross-examine Ms. Kim about |spotentially impeaching evidence, including questions regarding bankruptcy, whether she consulted with a different attorney than her current attorney after receiving a letter from plaintiffs attorney regarding the promissory notes, and why she paid $50,000 cash for equipment.

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the action more probable or less probable than it would be without the evidence. LSA-C.E. art. 401. Whether evidence is relevant is within the sound discretion of the trial court and an appellate court will not disturb that ruling in the absence of clear abuse of discretion. State Farm Mut. Auto. Insur. Co. v. Ford Motor Co., 04-1311 (La.App. 1 Cir. 6/15/05), 925 So.2d 1, 7.

Our review of the record does not reveal that plaintiff has shown an abuse of the trial court’s discretion in refusing to admit several questions and lines of questioning by plaintiffs attorney. Thus, we find no merit in this assignment of error.

In his fourth assignment of error, Mr. Kim argues that the trial court abused its discretion by not allowing the introduction of plaintiffs exhibits into evidence. He notes that the promissory notes are the foundation of this lawsuit, and he admits that the introduction into evidence of the original promissory notes is required proof. He argues that he inadvertently forgot to introduce his exhibits into evidence before he rested his case, but he contends that, in the interest of justice, the trial court should have allowed him to introduce them seconds later when he moved to introduce them, rather than granting an involuntary dismissal of plaintiffs case due to a momentary oversight.

Pursuant to LSA-C.C.P. art. 1632, the normal order of trial is:

|al) The opening statements by the plaintiff and the defendant, in that order;
2) The presentation of the evidence of the plaintiff and of the defendant, in that order;
3) The presentation of the evidence of the plaintiff in rebuttal; and
4) The argument of the plaintiff, of the defendant, and of the plaintiff in rebuttal, in that order. -

LSA-C.C.P. art. 1632 further provides that the order of trial may be varied by the court when justified by the circumstances. The trial court has great discretion in controlling the presentation of evidence. LeBlanc v. Continental Grain Co., Inc., 95-813. (La.App. 5 Cir. 3/13/96) 672 So.2d 951, 958, writ denied, 96-1526 (La.10/4/96), 679 So.2d 1383. The decision to hold open or reopen a case for production of additional evidence rests within the discretion of the trial judge deBen v. Bobby Collins Seafood, Inc., 00-306 (La.App. 5 Cir. 10/31/00), 772 So.2d 266, 267-268. However, in order to prevent miscarriage of justice, the trial court should not hesitate to reopen a case for the taking of additional evidence, and an appellate court should not hesitate to set aside the trial court’s ruling on such matters in the case of manifest abuse of discretion. Anderson v. Anderson, 98-676 (La.App. 5 Cir. 3/10/99), 732 So.2d 537, 540.

In the present case, after Mr. Kim rested his case, Ms. Kim’s attorney moved for a directed verdict on the grounds that no evidence had been submitted into the record. Mr. Kim’s attorney immediately apologized and asked the trial judge to admit his exhibits into evidence, but this request was denied by the trial judge. In his reasons for judgment, the trial judge indicated that he declined to exercise his discretion in controlling the presentation of evidence in order to allow plaintiff to offer his exhibits into evidence. He noted that plaintiff did not seek to introduce his exhibits into evidence until after he rested his case and defendant’s attorney had moved for a directed verdict.

hnAfber reviewing the record before us, we find that the trial judge abused his discretion in refusing to allow plaintiff to introduce evidence into the record after he rested his case. Although the normal order of trial indicates that plaintiff should have moved to introduce his exhibits into evidence prior to resting his case, the record reflects that he moved to introduce them shortly thereafter. As stated above, in the interest of justice, the trial court should not hesitate to reopen a case for the taking of additional evidence. Based on our review of the record before us, we conclude that, in the interest of justice, the trial judge abused his discretion in refusing to allow plaintiff to introduce into evidence those exhibits that had been previously referred to during presentation of plaintiffs case.

Accordingly, we reverse the trial judge’s ruling refusing to allow plaintiff to introduce his exhibits into evidence, and we vacate the trial judge’s ruling granting an involuntary dismissal of plaintiffs case. We remand the case for the trial judge to allow plaintiff to introduce his exhibits. Thereafter, defendant may again move for an involuntary dismissal, if she so chooses, or she can present her evidence, if any, in defense of plaintiffs lawsuit.

In his fifth assignment of error, Mr. Kim contends that the award of damages to defendant was against the weight of the evidence. He asserts that Ms. Kim was not a credible witness and did not sufficiently establish her claims on the recon-ventional demand. Ms. Kim responds that the trial judge’s award of damages on her reconventional demand was based on his credibility determinations and cannot be disturbed absent manifest error.

The trial judge awarded Ms. Kim $3,000 for damages to her reputation and $3,000 for emotional distress and mental anguish. In his reasons for judgment, the Intrial judge stated that he found Ms. Kim to be a reliable witness and that he accepted her testimony concerning the events at issue as credible and proven. The trial judge found that Mr. Kim’s failure to comply with the agreement to lend financial support to Ms. Kim’s business caused damage to her reputation and mental anguish. He cited Ms. Kim’s testimony that, within her culture, being sued for failure to pay a debt results in extreme disfavor and that her reputation suffered to such an extent that she was no longer able to do business in Louisiana.

This court will not set aside a trial judge’s finding of fact in the absence of manifest error or unless it is clearly wrong. Smith v. Louisiana Department of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Rosell v. ESCO, 549 So.2d 840 (La.1989). In order for this court to find that the factfinder’s determination warrants reversal, we must find from the record that a reasonable factual basis does not exist for the finding of the trial court. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

In the present case, the trial judge found that Ms. Kim was a credible witness, and we do not find this determination to be unreasonable. However, even finding no manifest error in the trial court’s determination that Ms. Kim was credible, we conclude that she did not meet her burden of proving that she is entitled to $6,000 for damage to reputation and mental anguish.

In seeking damages for loss of business reputation, a business must prove that it had a good reputation and how it was affected to its detriment. Simpson v. Restructure Petroleum Marketing Services, Inc., 36,508 (La.App. 2 Cir. 10/23/02), 830 So.2d 480, 486. Outside testimony is needed to prove that a business reputation was damaged. Id. Although Ms. Kim asserts that her personal business standing and reputation were damaged, the same considerations should apply. There was no evidence presented that Ms. Kim enjoyed a good reputation in the |12business community, other than her assertion that she had a good reputation before plaintiff filed his lawsuit and a terrible reputation afterward. In fact, Ms. Kim admitted that she had filed for bankruptcy prior to opening Beauty Avenue. Although she stated that she would have bought more supplies, hired help, and advertised if he had provided the money as agreed, there is no evidence that the outcome of her business would have been different. Further, although she stated that she had to relocate due to the damage to her reputation, she also indicated that she had to relocate due to “the hurricane.”

Our review of the record reveals that Ms. Kim did not meet her burden of proving that she was entitled to an award for damages to her reputation. Accordingly, we reverse and vacate this $3,000 award.

In her reconventional demand, Ms. Kim asserted that she suffered emotional distress and mental anguish as a result of Mr. Kim’s failure to comply with their agreement. However, the record contains insufficient evidence to establish a claim for emotional distress or mental anguish. Mental anguish which gives rise to a claim for damages must be a real mental injury that one can reasonably expect a person in such a position to suffer. State Farm Fire & Cas. Co. v. Torregano, 00-141 (La.App. 5 Cir. 9/26/00), 769 So.2d 754, 761. A plaintiff attempting to recover damages for intentional infliction of emotional distress must establish: 1) that the conduct of defendant was extreme and outrageous; 2) that the emotional distress suffered by plaintiff was severe; and 3) that the defendant desired to inflict severe emotional distress or knew that it would be substantially certain to result from his conduct. Cortes v. Lynch, 02-1498 (La.App. 1 Cir. 5/9/03), 846 So.2d 945, 951.

At trial, Ms. Kim testified that there was gossip about her in the community and that she lost her good reputation after Mr. Kim filed his lawsuit against her. 11sHowever, the evidence was clearly insufficient to prove a claim for mental anguish or emotional distress. Because Ms. Kim has not proven her claims for mental anguish or emotional distress, she has not is entitled to the damages awarded to her. Accordingly, the trial court’s judgment awarding $3,000 to Ms. Kim for mental anguish is hereby reversed and vacated.

DECREE

For the reasons set forth above, we reverse the trial court’s ruling refusing to allow plaintiff to introduce his exhibits into evidence, and we vacate the trial court’s judgment granting an involuntary dismissal of Mr. Kim’s lawsuit. We further reverse and vacate the trial court’s award of $6,000 to Ms. Kim on her reconventional demand. We remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . We note that plaintiff rested, defendant moved for a directed verdict, and plaintiff then moved to introduce his exhibits, all within one page of the trial transcript.


source: Caselaw Access Project

author: EDWARD A. DUFRESNE, JR., Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jerald J. JENKINS.
    No. 07-KA-423.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Donald Rowan, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   EDWARD A. DUFRESNE, JR., Chief Judge.

pOn November 17, 2004, the Jefferson Parish District Attorney filed a bill of information charging defendant, Jerald J. Jenkins, with unauthorized entry of an inhabited dwelling in violation of LSA-R.S. 14:62.3. At the arraignment, defendant pled not guilty. Thereafter, on February 6, 2007, the state amended the charge to aggravated burglary in violation of LSA-R.S. 14:60. On that same date, defendant was arraigned on the amended charge and pled not guilty. On March 22, 2007, the case was tried before a twelve person jury which unanimously found defendant guilty as charged.

Defendant then filed a motion for new trial and motion for post-verdict judgment of acquittal that were denied on April 13, 2007. On that same date, the trial judge sentenced defendant to imprisonment at hard labor for thirty years. Also on April 13, 2007, the state filed a multiple offender bill of information | ^alleging defendant to be a second felony offender. Following a hearing, the trial judge found defendant to be a second felony offender, vacated the original sentence, and resentenced defendant to imprisonment at hard labor for sixty years without benefit of probation or suspension of sentence. Defendant now appeals his conviction and original sentence.

FACTS

Kizzy Minor testified at trial that, on August 30, 2004, defendant was sleeping at her Kenner apartment when his cell phone started ringing. Minor explained that she had recently purchased the cell phone from Sprint with money defendant had given her, and that she had put the cell phone in her name, but allowed defendant to use it as his cell phone. Minor testified that, when she answered the cell phone, a woman asked to speak to defendant. The woman wanted to know when defendant was going to return the car he borrowed, and she threatened to call the police and give Minor’s cell phone number to them.

Minor hung up the phone and woke defendant. She and defendant had an argument regarding the phone call, and defendant left. Minor then called Sprint and had the cell phone service turned off. Shortly thereafter, defendant returned and told Minor that if she did not have his cell phone turned back on, he would slap and strip her daughter, and force her daughter to walk home naked when she got off the school bus. Minor testified that she was afraid, so she ran inside her apartment and hid behind the door. Defendant then kicked the door in, and Minor ran and jumped on the sofa and “balled up.”

Minor explained that defendant proceeded to punch her in the legs, but then he ran outside when he realized he had left his car parked in the street. While defendant was moving his car, Minor ran to a neighbor’s house and watched what 14was occurring through the window. When she saw defendant walk back in the direction of her apartment building, she called the police and told them what had happened.

Later on, Minor received a call from someone at Sprint who informed her that defendant was trying to use her driver’s license to have the cell phone turned back on. Minor indicated that she could hear defendant in the background. When Minor returned to her apartment, she noticed that her purse containing her driver’s license, social security cards, credit cards, and money was missing. Minor testified that defendant returned her purse to her mother later on that night, and that twenty dollars was missing. She noted that defendant did not have a key to her apartment and did not have her permission to enter it.

Officer Josh Taranto of the Kenner Police Department testified that he responded to the aggravated burglary call and met with the victim who told him what had happened and that her purse was missing. Officer Taranto further testified that a neighbor saw defendant walk out of the apartment with a purse.

After the state rested, defendant testified that Minor woke him up and gave him his cell phone. After defendant talked to his girlfriend on the cell phone, he got dressed and left. While he was driving to his girlfriend’s home, he realized that he had left a pair of shoes at Minor’s apartment. Defendant turned around and went back. When he got there, he jumped out of the car, and Minor ran inside to the living room. Defendant claimed that he went upstairs, got the shoes, and then left. As he was leaving, he noticed that his cell phone was off.

Defendant testified that he called a 1-800 number to have the cell phone turned back on using the pass code. He denied kicking in the door, hitting Minor, taking Minor’s purse, or going to a Sprint store and trying to have the phone turned Lback on with Minor’s driver’s license. He claimed that the damage to the door frame had been done in the past by police officers ramming the door.

Detective Brian McGregor of the Ken-ner Police Department testified for the state in rebuttal that the damage to the victim’s door was “fresh,” and that there were shavings of wood on the floor. McGregor further testified that he was not aware that a search had ever been conducted at Minor’s residence.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, defendant challenges the sufficiency of the evidence used to convict him of aggravated burglary. He contends that the initial charge of unauthorized entry of an inhabited dwelling is the more appropriate charge.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 mandates that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” State v. Boss, 03-133 (La.App. 5 Cir. 5/28/03), 848 So.2d 75, 77, writ denied, 03-1968 (La.5/14/04), 872 So.2d 508. “[I]n cases relying on circumstantial evidence to prove one or more elements of the crime, when the fact-finder reasonably rejects the hypothesis of innocence advanced by the defendant at | fitrial, that hypothesis fails, and the verdict stands unless the evidence suggests an alternative hypothesis sufficiently reasonable that rational jurors could not find proof of the defendant’s guilt beyond a reasonable doubt.” State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517, 521.

In the instant case, defendant was convicted of aggravated burglary. LSA-R.S. 14:60 defines an aggravated burglary as the unauthorized entering of any inhabited dwelling with the intent to commit a felony or any theft therein, if the offender is armed with a dangerous weapon, or commits a battery upon any person while in such place, or while entering or leaving the place. State v. Guillard, 04-899 (La.App. 5 Cir. 4/26/05), 902 So.2d 1061, 1070, writ denied, 05-1381 (La.1/13/06), 920 So.2d 233.

On appeal, defendant contends that all of the elements of aggravated burglary, namely, the unauthorized entry, the battery, and the intent to commit a felony or theft, were not present at the time of entry into the dwelling and did not occur in a single incident. In the appellate brief, he points out that there were several separate instances of confrontation. Specifically, in the first instance, defendant was in the apartment with Minor’s permission. Later he returned, entered the apartment without her permission, and hit her before leaving. He left for a short time to move his car, and when he returned, Minor was not present. It was during this third instance that defendant allegedly took Minor’s purse. Defendant now argues that the elements of aggravated burglary could not be met by combining the separate instances of entry. We have reviewed the evidence and conclude that a rational trier of fact could have found that the state proved the essential elements of aggravated burglary beyond a reasonable doubt under the Jackson standard, and further that all of the elements occurred during one incident.

|7At trial, Minor testified that, while standing outside her apartment, defendant, who was upset, threatened to harm her daughter if she did not turn his cell phone back on. Minor further testified that she was afraid of defendant, so she ran inside and hid behind the door. Defendant kicked in the door and entered her house without her authorization. Minor then ran and jumped on the sofa and “balled up.” Minor testified that defendant hit her in her legs, and then left to go move his car. As he did so, she ran out the door to a neighbor’s house to escape. The fact that Minor was able to escape before she was more seriously hurt was of no consequence. Given these facts, we find that a rational trier of fact could have found beyond a reasonable doubt that defendant, without authority, entered the victim’s apartment and committed a battery upon the victim. Moreover, it is clear from these circumstances that the jury could have inferred that defendant intended to commit a felony or theft therein. See State v. Celestine, 98-1166 (La.App. 5 Cir. 3/30/99), 735 So.2d 109, writ denied, 99-1217 (La.10/8/99), 750 So.2d 178, and State v. Francis, 96-2389 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, writ denied, 98-2360 (La.2/5/99), 737 So.2d 741.

Although defendant testified at trial that he did not kick in the door, hit Minor, take Minor’s purse, or try to have the cell phone turned back on using Minor’s driver’s license, the jury clearly rejected defendant’s testimony and found the testimony of Minor and the officers to be more credible. The trier of fact can accept or reject, in whole or in part, the testimony of any witness. State v. Baker, 01-1397 (La.App. 5 Cir. 4/30/02), 816 So.2d 363, 365. It is not the function of the appellate court to evaluate the credibility of witnesses, nor to overturn the trial court on its factual determination of guilt. State v. Gentras, 98-1095 (La.App. 5 Cir. 3/30/99), 733 So.2d 113, 118, writ denied, 99-1302 (La.10/15/99), 748 So.2d 464.

lain light of the foregoing, we find that a rational trier of fact could have found that the state proved the essential elements of aggravated burglary beyond a reasonable doubt under the Jackson standard. Accordingly, this assigned error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assigned error, defendant argues his original sentence of thirty years is constitutionally excessive, as the record does not support the conclusion that he is the worst of offenders deserving of a maximum sentence. He further contends that the trial court failed to give reasons for the sentence, as is required by LSA-C.Cr.P. art. 894.1.

On June 29, 2007, after the motion for appeal was granted, a multiple bill hearing was held wherein defendant was found to be a second felony offender. The trial court vacated the original sentence and resentenced defendant to imprisonment at hard labor for sixty years without benefit of probation or suspension of sentence. Therefore, defendant’s arguments relative to the original sentence are moot, since the original sentence no longer exists. State v. Hanson, 00-1168 (La.App. 5 Cir. 12/13/00), 778 So.2d 43, 45.

Defendant also argues that the trial court erred in sentencing him immediately after denying his motion for new trial. LSA-C.Cr.P. art. 873 requires a twenty-four hour delay in sentencing after denial of a motion for new trial, unless defendant waives the delay. In the present case, the record shows that defendant did not waive the delay. As a general rule, when a defendant challenges a non-mandatory sentence, and the delay is not waived, the defendant’s sentence must be vacated, and the matter remanded for re-sentencing. However, when the original sentence has been set aside at a habitual offender proceeding, as was the case here, |athe failure to observe the twenty-four hour delay is harmless. State v. McCloud, 04-1112 (La.App. 5 Cir. 3/29/05), 901 So.2d 498, 505, writ denied, 05-1450 (La.1/13/06), 920 So.2d 235.

Accordingly, the arguments raised by defendant in this assigned error are without merit.

ERROR PATENT DISCUSSION

We have also reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors that require corrective action at this time.

For the reasons set forth herein, we affirm defendant’s conviction for aggravated burglary.

CONVICTION AFFIRMED.

      . Defendant was also charged in the same bill of information with six other felonies that were later dismissed on March 22, 2007.

      . Minor explained that for the previous two or three weeks, defendant, whom she had known for a long time, had been spending the night with her at the home she shared with her family.

      . Unauthorized entry of an inhabited dwelling is defined by LSA-R.S. 14:62.3 as "the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person.”

      . It is noted that defendant has filed a second appeal from the multiple offender proceedings.


author: PICKETT, Judge.

text:
    Chester WRIGHT v. 3P DELIVERY, LLC.
    No. 07-683.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.
    Karleen J. Green, Phelps, Dunbar LLP, Baton Rouge, LA, for Defendant/Appellant, 3P Delivery, LLC.
    Thomas D. Davenport, Jr. The Davenport Firm, APLC, Alexandria, LA, for Plaintiff/Appellee, Chester Wright.
    Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

pThe defendant, 3P Delivery, LLC, appeals a judgment of the trial court dismissing their Motion to Compel Arbitration and Stay Litigation. We affirm the judgment of the trial court.

FACTS

The facts of this case and the actions by the trial court are succinctly stated in the trial court’s “Reasons For Ruling:”

This case arises as the result of a contract entered between the plaintiff, Chester Wright, and the defendant[,] 3P Delivery LLC. The plaintiff was to provide transportation services along with handling, loading and unloading of shipments. The plaintiff has filed suit claiming breach of contract. The defendant has filed a motion to compel arbitration and to stay these proceedings. There is no disputing the contract contained an arbitration clause. The primary issue is whether LSAR.S. 9:4216 is applicable in excluding this contract from the Louisiana Arbitration Law [LAL], This statute states that the LAL does not apply to “contracts of employment of labor.” While this contract refers to an independent contractor relationship, it begs the question of whether this was an employment of labor. It seems clear that one of the purposes for the exclusion of labor contracts versus managerial or professional contracts is the obvious inequality in bargaining positions and intellectual superiority by the employer. The cornerstone of arbitration would be an equality between the parties to prevent adhesionary provisions. The court finds from the four comers of the contract that the parties intended that Chester Wright engage primarily in labor services comprising of transportation services. This would mean driving, handling, loading and unloading shipments which would comprise solely of labor. The court can only conclude that this contract was intended as a contract of labor employment and is excluded from the Louisiana Arbitration Law. Accordingly, the defendant’s motion is denied and dismissed at defendant’s cost.

On appeal, the defendant argues two assignments of error. However, the only issue to be decided is whether the contract between the parties was one wherein the plaintiff provided service(s) to the defendant, thus making the arbitration clause valid, or was the contact one wherein the plaintiff provided labor to the defendant, thus exempting the contract from mandatory arbitration.

IsLAW AND DISCUSSION

The issue before this court is a question of law. Its is well settled that “when an appellate court reviews a question of law the standard of review is simply whether the lower court’s interpretive decision is correct. Jackson v. BASF Corp., 04-2777 (La.App. 1 Cir. 11/4/05), 927 So.2d 412, writ denied, 05-2444 (La.3/24/06), 925 So.2d 1231.” Johnson v. Calcasieu Parish Sheriff’s Dept., 06-1179, p. 3 (La.App. 3 Cir. 2/7/07), 951 So.2d 496, 499. See also, Moreau v. Avoyelles Parish School Bd., 04-1613 (La.App. 3 Cir. 3/9/05), 897 So.2d 875, writs denied, 05-910 (La.6/17/05), 904 So.2d 704, and 05-997 (La.6/17/05), 904 So.2d 705, citing, Forum for Equality PAC v. McKeithen, 04-2477, 04-2523 (La.1/19/05), 893 So.2d 715.

The defendant relies on the following clause in the contract: “3P DELIVERY and CONTRACTOR [the plaintiff] agree that any controversy or claim arising out of [or] relating to this Agreement (a “Claim”) shall be settled through binding arbitration .... ” and upon La.R.S. 9:4201 which provides:

A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

The plaintiff argues that the contract at issue is a contract “of employment of labor” and thus is exempt from the LAL under the provisions of La.R.S. 9:4216 which states in pertinent part: “Nothing contained in this Chapter shall apply to contracts of employment of labor....” Hence, the question before the trial court and before us is what was the nature of the contract — was it a contract for services or for labor. Our colleagues of the fifth circuit recounted the law applicable to the | interpretation of contracts in Kappa Loyal, L.L.C. v. Plaisance Dragline & Dredging Co., Inc., 03-124, pp. 6-7 (La.App. 5 Cir. 6/19/03), 848 So.2d 765, 769, writ denied, 03-2348 (La.12/12/03), 860 So.2d 1154, quoting, Fleniken v. Entergy Corp., 99-3023, 99-3024, p. 14 (La.App. 1 Cir. 2/16/01), 790 So.2d 64, 73, writs denied 01-1269 (La.6/15/01), 793 So.2d 1250, and 01-1295 (La.6/15/01), 793 So.2d 1252, as follows:

We are obligated to give legal effect to contracts according to the true intent of the parties. LSA-C.C. art. 2045. The true intent of the parties to a contract is to be determined by the words of the contract when they are clear, explicit, and lead to no absurd consequences. LSA-C.C. art. 2046. 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. In such cases, the meaning and intent of the parties to the written contract must be sought within the four corners of the instrument and cannot be explained or contradicted by parol evidence. LSA-C.C. art. 1848. Contracts, subject to interpretation from the instrument’s four corners without the necessity of extrinsic evidence, are to be interpreted as a matter of law, and the use of extrinsic evidence is proper only where a contract is ambiguous after an examination of the four corners of the agreement. In cases in which the contract is ambiguous, the agreement shall be construed according to the intent of the parties. Intent is an issue of fact which is to be inferred from all of the surrounding circumstances. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and other contracts of a like nature between the same parties. LSA-C.C. art. 2053. Whether a contract is ambiguous or not is a question of law. Where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown.

Although the contract between the parties is entitled “Driver Service Agreement,” the terms of the contract belie its true nature, which can be discerned from the wording thereof. The contract calls for the “Contractor” (the plaintiff herein) to “provide pickup and delivery service,” to “provide loading and unloading of ... shipments,” and to “handle, load, unload and transport shipments ... and Lequipment.” Although these activities may provide a “service” to their recipient, all of these activities are accomplished through physical labor.

The LAL does not specifically define what constitutes “labor,” however, we find the following except from Wright v. Round the Corner Restaurants, of Louisiana Inc., 252 So.2d 341, 344 (La.App. 4th Cir.1971)(emphasis ours) instructive:

In the only case involving Louisiana law and interpreting this provision [La. R.S. 9:4216], the court held that a baseball manager who played only occasionally and whose real value to the team lay in his mental skill, his personality and leadership qualities, and his general managerial abilities was not employed as a ‘laborer’ within the meaning of LSA-R.S. 9:4216 so as to exclude him from the substantive effects of the Louisiana Arbitration Law. Livingston v. Shreveport-Texas League Baseball Corp., 128 F.Supp. 191, W.D.La. (1955). In the course of this opinion Judge Dawkins stated at page 201:
“In our opinion, however, this exclusion does not apply to the present case. An annotation found at 129 A.L.R. 965, entitled ‘Construction and Application of Provisions of general arbitration statutes excluding from their operation contracts for labor or personal services’, reads as follows: ‘In construing a provision in an arbitration statute that it ‘shall not apply to contracts pertaining to labor’, it has been held that the word ‘labor’ does not include the performance of mental tasks, or the services or those recognized generally as professional men or women.
‘Then in Universal Pictures Corporation v. Superior Court, (1935) 9 Cal.App.2d 490, 50 P.2d 500, the court, in adhering to this rule, held that a contract for the employment of a motion picture actor to perform in the production of a photoplay for a salary of $1000.00 per week came within the Arbitration Statute, since it was not a contract pertaining to labor. The Court said: ‘It seems to be generally conceded that individuals whose principal efforts are directed to the accomplishment of some mental task * * * or | ñthose persons generally known or recognized as professional men or women, even though in its broad sense, perform ‘labor’, are not to be, nor should be, classified as ‘laborer’, * * *. In its present connection, the meaning that should be attributed to the word is that it applies to that kind of human energy wherein physical force, or brawn and muscle, however skillfully employed, constitute the principal effort to produce a given result, rather than where the result to be accomplished depends primarily upon the exercise of the mental faculties ’.’ ”

Loading, unloading and handling of shipments and equipment clearly require the application of “physical force, or brawn and muscle.” Hence, we find the contract at issue was a contract for labor excluded from binding arbitration under the provisions of La.R.S. 9:4216.

Accordingly, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the defendant, 3P Delivery, LLC.

AFFIRMED.


author: COOKS, Judge. EZELL, J.,

text:
    STATE of Louisiana v. Raphael VALLOT, et al.
    No. CA 07-119.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.
    Rehearing Denied Dec. 28, 2007.

      Robert Clauson Vines, Assistant District Attorney, New Iberia, LA, for Plaintiff/Appellant, State of Louisiana.
    Daniel James Stanford, Attorney at Law, Lafayette, LA, for Defendants/Ap-pellees, Kenneth Washington, Jessica Fri-lot Washington.
    John Kevin Stockstill, Attorney at Law, Lafayette, LA, for Defendants/Appellees, Raphael Vallot, Dexter Vallot, RV & Son Trucking, Inc.
    Pedros Ramos, In Proper Person, Church Point, LA.
    J. Kevin Watson, Watson & Jones, P.A., Jackson, MS, for Defendant/Appellee, Equilease, LLC.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   COOKS, Judge.

I/The State of Louisiana appeals a trial court judgment which rendered an in per-sonam judgment against only one of four defendants. In addition to Dexter Vallot, the State argues that it proved by more than a preponderance of the evidence that Kenneth Washington, Raphael Vallot, and RV and Son Trucking, Inc. were involved in a drug conspiracy. It asks this court to enter judgment finding these three defendants also share the burden of the civil forfeiture judgment along with Dexter Val-lot. For the following reasons, we affirm the judgment of the trial court.

FACTS

RV and Son Trucking, Inc. transports partially refined and/or refined sugar from mills throughout Iberia Parish to the Port of Iberia. Raphael Vallot is the president of RV and Son Trucking. His son, Dexter Vallot, is the vice president.

In June 2003, Dexter became acquainted with Kenneth Washington. Kenneth leased a 2000 Red Peterbuilt tractor to RV and Son Trucking. Equilease, LLC is the owner of the tractor who in turn leased it to Kenneth. Kenneth introduced Dexter to Pedro Ramos. Pedro and Kenneth had met while attending dog fights. Pedro and his brothers were cocaine traffickers.

The testimony revealed that Dexter transported cocaine for Pedro on two occasions. In order to do so, Dexter made modifications to the Peterbuilt tractor leased from Kenneth by constructing sheet metal to conceal the compartment under the sleeper bed where the cocaine was carried. The first time he transported cocaine to Florida. On the second occasion, which is at issue in this case, Dexter attempted to transport eighty-five kilograms of cocaine from the Mexico-Texas border to Louisiana. On February 10, 2004, Dexter was driving the 2000 Peter-built tractor which was searched at the Sarita Border Patrol Checkpoint, which is located north of Brownsville, Texas. At this time, the eighty-five kilograms of cocaine were | ¡.discovered hidden in the cab of the rig.

On August 26, 2005, the State of Louisiana instituted forfeiture proceedings pursuant to La.R.S. 40:2601, et seq. On October 4, 2005, the State filed a petition seeking an in personam judgment of forfeiture against Pedro Ramos, Raphael Vallot, Dexter Vallot, Kenneth Washington, and RV and Son Trucking. The petition sought a judgment in the amount $2,420,000.00 which represents the value of the Peterbuilt tractor and the eighty-five kilograms of cocaine seized.

A hearing on the in personam matter was held on October 13, 2006. The trial court found that the State met its burden of proof regarding Dexter and rendered judgment against him for $2,420,000.00. The trial court held that the State failed to meet its burden of proof regarding Raphael, Kenneth, and RV and Son Trucking. The State appeals the judgment.

IN PERSONAM FORFEITURE JUDGMENT

“Civil forfeiture is the process by which governments seize property without compensating its owner, based on its connection with the commission of crime. There is no prerequisite that a crime be proved before property is subject to confiscation.” State v. Edwards, 00-1246, p. 11 (La.6/1/01), 787 So.2d 981, 990 (citation omitted). The majority of proceedings that have been before the courts are in rem proceedings. However, the present action was filed pursuant to La.R.S. 40:2613 which provides that a forfeiture may be ordered by court on an in person-am civil action when there has been conduct giving rise to forfeiture. See also State v. Clark, 94-598 (La.App. 3 Cir. 2/21/96), 670 So.2d 493, writ denied, 96-1331 (La.2/7/97), 688 So.2d 495. Louisiana Revised Statute 40:2614 provides that assets can be substituted when the property subject to forfeiture is not available. The State Rsought an in personam judgment because the Peterbuilt tractor was leased and exempt from forfeiture since it was owned by an innocent entity. The money involved in the transactions was also beyond the jurisdiction of the court.

Under the original enactment of the Forfeiture Act, the state had the initial burden of showing the existence of probable cause for the forfeiture of property. In 1997, the burden of proof for forfeiture was amended by Acts 1997, No. 1334 § 1, which changed the state’s burden of proof from “probable cause” to “preponderance of the- evidence.” LSA-R.S. 40:2612(G).

State v. $107,156 U.S. Currency Seized from Marlin Morton and Richard Woods, 41,090, pp. 13-14 (La.App. 2 Cir. 6/30/06), 935 So.2d 827, 835, writ denied, 06-2271 (La.11/22/06), 942 So.2d 557. “Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, shows the fact sought to be proved is more probable than not.” Hanks v. Entergy Corp., 06-477, p. 19 (La.12/18/06), 944 So.2d 564, 578.

The ultimate determination of whether there was a preponderance of the evidence for forfeiture is a legal question. State v. $29,177.00 U.S. Currency, 93-592 (La.App. 3 Cir. 2/2/94), 638 So.2d 653, writ denied, 94-1955 (La.10/28/94), 644 So.2d 378. However, the findings of fact which lead to a preponderance of the evidence determination are subject to the manifestly erroneous/clearly wrong standard of review. Id.

In evaluating the testimony and evidence, the trial court specifically found that Pedro was lying. The trial court found that Raphael and RV and Son Trucking were only involved in the drug scheme by implication and not by proof adduced at trial. While the court stated that it believed Kenneth was involved in the conspiracy, it found that the evidence at trial fell short of proving such.

| ¿Kenneth Washington

Kenneth did introduce Pedro and Dexter. Kenneth is also the person who leased the 2000 Peterbuilt tractor to RV and Son Trucking. However, Dexter testified he used the tractor for the trip across the border without Kenneth’s consent. Dexter explained that this particular tractor was the only one with an apportioned plate. Dexter testified, after he was stopped in Sarita, Kenneth had a conversation with Pedro. During this conversation, Kenneth allegedly told Pedro Dexter was “green” and should not have been transporting the drugs.

Don DeSalvo, a special agent with the Drug Enforcement Agency (DEA) testified Dexter told him Kenneth was concerned that Pedro was grooming Dexter to transport drugs. Dexter further indicated Pedro and Kenneth were feuding and Pedro did not want to supply any more drugs to Kenneth. Douglas Langley, a task force agent with the DEA, confirmed Dexter related Kenneth knew nothing about the truck going to Texas and was upset when he learned about it.

Seward Broussard, who was employed at RV and Son Trucking, testified Kenneth conducted business on occasion with RV and Son Trucking. Although he saw Kenneth with a bag of cash, he did not know where the cash came from. Seward never heard Kenneth discuss drugs and had no knowledge that Kenneth knew Dexter had made modifications to the tractor.

Based on this evidence and testimony, we agree with the trial court the State failed to establish by a preponderance of the evidence that Kenneth Washington had knowledge or participated in the transport of cocaine on February 10, 2004. The judgment as to Kenneth Washington is affirmed.

| ^Raphael Vallot

The evidence as to Raphael is even weaker than it was for Kenneth. The only testimony which even hints that Raphael may have known something about the cocaine transportation is Broussard’s testimony. Broussard testified he heard Raphael comment a couple of times that he was involved in some things he did not want to do. Broussard further testified he had no knowledge that Raphael was involved in the transaction.

The trial court was also correct in finding the facts did not support, by a preponderance of the evidence, that Raphael Vallot was involved or had knowledge concerning the transportation of cocaine on February 10, 2004. The judgment is also affirmed as to Raphael Vallot.

RV and Son Trucking, Inc.

The law does provide, in certain instances, a corporation can be found responsible for the acts of its employees. However, certain prerequisites must be met before so finding. “The general rule is that if a specific criminal intent is necessary to constitute a crime, an employer may be penalized for an employee’s criminal act, only if the agent acted within the scope of his employment, and not if the agent acted for some purpose other than that of serving his employer.” U.S. v. Ridglea State Bank, 357 F.2d 495 (C.A.Tex.1966), quoting Restatement (Second), Agency § 217D, comment d, and § 235 (1958). As the federal court said in Standard Oil Co. of Tex. v. United States, 307 F.2d 120, 129 (5th Cir.1962):

Under a statute requiring that there be a “specific wrongful intent,” ... the corporation does not acquire that knowledge or posses the requisite “state of mind essential for responsibility,” through the activities of unfaithful servants whose conduct was undertaken to advance the interests of parties other than their corporate employer.

Dexter Vallot testified specifically that RV and Son Trucking would not profit from Ifithe sale of cocaine, and that it was Dexter who would receive the money for transporting the cocaine. There is no indication that the corporation was benefitted in any way from Dexter’s illegal scheme. Simply because he used his connection with RV and Son Trucking as vice president, to utilize the corporation and its assets to facilitate the “transportation of the cocaine” does not ipso facto require a finding that RV and Son Trucking had knowledge of and participated in the scheme to transport cocaine. The courts have consistently maintained that acts of employees are imputed to the corporation only when the employee’s conduct was “(1) in the course of his employment and (2) for the benefit of the corporation.” First Federal Savings Bank of Hegewisch v. United States, 52 Fed.Cl. 774, 792 (2002), quoting Official Comm. Unsecured Creditors v. R.F. Lafferty & Co., Inc., 267 F.3d 340, 359 (3d Cir.2001). Therefore, we affirm the trial court’s judgment as to RV and Son Trucking.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to appellant, the State of Louisiana.

AFFIRMED.

EZELL, J., dissents and assigns written reasons.

EZELL, J.,

dissenting.

__JjI disagree with the majority in finding that RV and Son Trucking should not also be held as a responsible party for the civil forfeiture judgment. I find that there is a preponderance of evidence that RV and Son Trucking had knowledge and participated in a scheme to transport cocaine. As vice-president of the corporation, Dexter was able to use corporate assets to further his interest, which in turn is a financial advantage to his own company.

Tort law has found companies liable for the wrongful actions of a corporate officer when the employment is shown to be employment-rooted, but not necessarily exclusively so, and it should be reasonably incidental to the performance of his official duties. Miller v. Keating, 349 So.2d 265 (La.1977). “The fact that the predominant motive of the servant is to benefit himself or a third person does not prevent the act from being within the scope of employment.” Ermert v. Hartford Ins. Co., 559 So.2d 467, 477 (La.1990).

The problem of determining the scope of executive employment often arises in intentional tort cases, in which the court must determine if the executive’s intentional wrongful act is attributable to the employer. While there is no black letter rule on when liability should attach in such situations, this court and others have generally imposed responsibility upon the business enterprise where the conduct in ^question was at least partially motivated by an intent to serve the interests of the business.

Id.

As noted by the supreme court in Er-mert, an assault and attempted murder of the corporation’s former vice-president by the corporate president in Miller was in large part, although perhaps not exclusively, motivated by the president’s desire to improve the company’s financial position, so the conduct was found to be within the scope of his employment.

In a forfeiture case in Pennsylvania, the court held that the knowledge of a corporate president’s use of a corporate motor vehicle to transport cocaine is properly imputed to the corporation since he had direct control over the vehicle and he himself represented the corporation in executing the vehicle registration and application for title. Court of Common Pleas of Pennsylvania, Montgomery County, Com monwealth v. One 1978 Porsche Coupe, 23 Pa. D & C.3d 268 (1981).

The Peterbuilt truck used to transport the drugs was leased by RV and Son Trucking a few months before the transportation of the cocaine began. It had an RV and Son Trucking insignia on it. Dexter, as vice-president of the corporation, altered the truck to facilitate the transport of cocaine. He did so on corporate property during business hours. An employee testified that he was present when the sleeper compartment was altered and that he helped. He was told that it was going to be used to pick up some “dope.”

Dexter testified that RV and Son Trucking did not invest any money to purchase the cocaine and that it was not going to profit from the sale of the cocaine. The testimony indicates that it was Dexter who was going to receive the money for transporting the cocaine and that there may have also been a need to repay a debt to Pedro Ramos. However, Dexter’s connection with RV and Son Trucking as vice president allowed him the opportunity to utilize the corporation and its assets to | ^facilitate the transportation of the cocaine and receive a transportation fee which benefitted him as vice president of the corporation.

The specific truck used was leased from Kenneth Washington, the man who introduced Dexter to Pedro, by Raphael Vallot. This specific truck had to be used to transport the cocaine because it had a special license plate that it allowed to travel out of state. None of the other trucks had the apportioned plate.

Clearly, RV and Son Trucking was involved with the scheme to transport the cocaine. The business was used to lease a particular truck. This could have only been arranged by an officer of the corporation. Furthermore, the vice president of the company actually used the employee and facilities of the company to further the endeavor. The vice president of the company was the person driving the leased company truck when it was stopped. The company should be held responsible.

      . It appears from the record that the claim against Pedro was not at issue at this hearing.


author: SAUNDERS, Judge.

text:
    R.E. HEIDT CONSTRUCTION CO., et al. v. Henry FRANCIS.
    Nos. WCA 2007-497, WCA 2007-498.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.

      Denis Paul Juge, Juge, Napolitano, Guil-beau, Ruli, Frieman & Whiteley, Metairie, LA, for Plaintiffs/Appellants, R.E. Heidt Construction Co., Gray Ins. Co.
    Robert Thomas Jacques, Jr., Attorney at Law, Lake Charles, LA, for Defendant/Appellee, Henry Francis.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   SAUNDERS, Judge.

|! This is a workers’ compensation case. The injured employee was receiving temporary total disability benefits when the employer filed a disputed claim for compensation due to the employee’s refusal to submit to an independent medical examination. While this claim was pending, the employee filed a disputed claim for compensation, and several supplementations to that disputed claim, alleging various transgressions by the employer and its workers’ compensation insurer. All claims were consolidated.

While the claims were pending, the employee was incarcerated twice, the second time in February of 2006. The employee then filed a rule hearing for the employer to show cause why indemnity benefits should not be paid to his minor dependents that relied upon those benefits for support. The employer, upon learning of employee’s February 2006 incarceration, terminated the employee’s benefits shortly thereafter in March of 2006.

The workers’ compensation judge (hereinafter ‘WCJ”) quashed subpoenas issued by the employer to witnesses based upon the employer’s admission that the witnesses’ testimony did not relate to the issue at bar, found that indemnity benefits should be fully paid to the minor children of the employee, and awarded attorney’s fees and penalties. The employer appealed, alleging five assignments of error.

We affirm the WCJ on all five assignments of error. Further, we award the employee $2,500 in additional attorney’s fees for work done on this appeal.

FACTS AND PROCEDURAL HISTORY:

Henry Francis (hereinafter “Francis”), an employee of R.E. Heidt Construction Company, was injured during the course and scope of his employment on May 2, 2002. R.E. Heidt Construction Company’s workers’ compensation insurer at the time |awas The Gray Insurance Company (R.E. Heidt Construction Company and The Gray Insurance Company hereinafter collectively “the employer”). The employer initiated and voluntarily paid temporary total disability benefits to Francis.

On November 7, 2002, the employer filed a disputed claim for compensation alleging that Francis was refusing to submit to an independent medical examination. On March 3, 2003, Francis filed a disputed claim for compensation alleging failure to timely pay installments of indemnity benefits, along with a request for penalties and attorney’s fees relative to the employer’s failure to timely pay the benefits. Francis supplemented this claim on March 26, 2003, adding allegations of entitlement to diagnostic testing and vocational rehabilitation, along with requests for penalties and attorney’s fees for the employer’s lapse in its duties in regard to these entitlements.

On October 16, 2003, these claims were consolidated. On November 21, 2003, Francis again supplemented his claim to add a dispute over a recommend translum-bar interbody fusion L5-S1. The employer answered this supplementation by requesting that the WCJ appoint an independent medical examiner. Further issues regarding the medical treatment that were added to the pending claims included psychological support and ESI and/or myoneural injections. Trial on the merits, set for November 3, 2004, was continued by request of the employer.

In February of 2006, after being incarcerated, Francis filed a motion for a rule hearing for the employer to show just cause why indemnity benefits should not be paid to his minor dependent children. The March 26, 2006, merit trial was continued at the request of Francis due to his incarceration.

After a status conference, trial was set for December 18, 2006. On December | a6, 2006, the employer filed a second amended pretrial statement and listed witnesses employed by the Calcasieu Parish Sheriffs Department and the Calcasieu Correctional Facility. In addition, various medical documents and records from the Calcasieu Parish Sheriffs Office were listed as exhibits. In response, Francis filed a motion to quash the subpoenas issued to Calcasieu Parish employees.

On December 18, 2006, following a trial on the merits, the WCJ rendered a judgment that: (1) granted Francis’ motion to quash trial subpoenas issued by the attorney for the employer; (2) held that the only issue before the court was the dependency status of Francis’ two minor children; (3) ordered that indemnity benefits for Francis be reinstated from the date of termination and continued thereafter until such time as a change in condition is shown and be made payable to Melissa Sarvaunt as the natural mother of the minor dependents; (4) ordered that the benefits be paid at the full rate of compensation entitlement of $280.37 per week; (5) ordered that a penalty of $2,000 be paid to the minor children; and (6) ordered that attorney’s fees of $7,500 be paid by the employer to Francis’ attorney.

The employer appealed this judgment, raising five assignments of error. We affirm the WCJ on all assignments of error alleged. All costs of this appeal are to be paid by the employer. Further, we grant Francis’ request for additional attorney’s fees and award $2,500 in additional attorney’s fees for work done on this appeal.

ASSIGNMENTS OF ERROR:

1. Did the WCJ commit legal error in ordering that indemnity benefits be paid without medical evidence by Francis that he is disabled from gainful employment?
2. Did the WCJ commit manifest error in quashing the trial subpoenas issued by the employer for the trial on the merits?
3. Did the WCJ compensation court commit manifest error in finding the minor | children were dependent on Francis’s compensation award?
4. Did the WCJ commit manifest error in awarding the minor children the full compensation benefit instead of partial dependency benefits?
5. Did the WCJ commit manifest error in awarding $2,000 in penalties and $7,500 in attorney fees?

ASSIGNMENT OF ERROR # 1:

The employer alleges in its first assignment of error that the WCJ committed legal error in ordering that indemnity benefits be paid when Francis did not present medical evidence that he is disabled from gainful employment. This assignment of error is not properly before this court.

Louisiana Code of Civil Procedure Article 2164, in pertinent part, states, “The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.” (Emphasis added.) This is a court of review. It is not this court’s proper function to hear an issue for the first time, without a determination made upon that issue at a lower level.

Whether Francis was disabled from gainful employment was not ever addressed as a contested issue at the trial level. The employer argues that a determination of whether Francis is disabled must be made prior to any consideration of whether his children should be considered dependent upon his workers’ compensation benefits.

Our reading of the record suggests that the employer at no time contested Francis’ disability status, and indeed conceded his status by voluntarily paying disability benefits. The employer once again conceded Francis’ disability status when counsel for the employer, prior to the trial on the merits, stated on the record that the only issue before the court was whether Francis’s children should receive his benefits Isgiven that he was incarcerated.

Moreover, the employer filed several pre-trial statements, none of which listed the issue of whether Francis was disabled from working as an issue to be litigated. Further, the employer was making payments for temporary total disability voluntarily until those payments were terminated based upon Francis’s second incarceration in March of 2006, not upon whether Francis was actually disabled. Finally, the record is completely devoid of any medical evidence that tends to prove or disprove whether Francis was disabled.

Accordingly, we will not address this issue as it was not properly raised by the employer at the trial level, and, therefore, is not properly before this court on appeal.

ASSIGNMENT OF ERROR # 2:

In its second assignment of error, the employer alleges that the WCJ committed manifest error in quashing the trial subpoenas issued by the employer for the trial on the merits. This assignment of error, like the previous assignment, is not properly before this court.

This court, in Deville v. E.S. Fields, et al., 546 So.2d 332, 334 (La.App. 3 Cir. 1989), stated, “Under LSA-C.C.P. art. 1635, in the absence of an objection, the complaining party must be deemed to have waived his right to complain of the alleged impropriety on appeal. In the absence of objection the trial court is afforded no opportunity to prevent or correct the alleged error.” (Citations omitted.)

After thoroughly reviewing the trial record before us, we find that the employer made no objection to having the trial subpoenas quashed. In fact, counsel for the employer stated as follows:

I don’t completely object to this motion to call these witnesses to testify as to what Mr. Francis has done and has been doing. But, as I ^understand, today the Court is — the issue — the only issue before the Court today will be the children and any workers’ compensation benefits related to the children.
With that, these witnesses could not address that particular issue.

Thus, due to the employer’s failure to make any objection to the rulings of the WCJ, its right to urge this objection on appeal is waived. Senegal v. George Theriot’s Inc., 445 So.2d 137 (La.App. 3 Cir.), writ denied, 448 So.2d 114 (La.1984). Therefore, we will not address this assignment of error.

ASSIGNMENT OF ERROR # 3:

The employer, in its third assignment of error, claims that the WCJ committed manifest error in finding that the minor children were dependent on Francis’s compensation award. We do not agree.

Whether a child is dependent on an employee’s compensation award is a finding of fact. Rogers v. Wackenhut Serv., Inc., 05-459 (La.App. 5 Cir. 1/17/06), 921 So.2d 1076. Our Louisiana Supreme Court, in Chaisson v. Cajun Bag & Supply Co., 97-1225, p. 9 (La.3/4/98), 708 So.2d 375, 380, stated the following:

Factual findings in worker’s compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Where there are two permissible views of the evidence, a fact-finder’s choice between them can never be manifestly erroneous or clearly wrong. (Citations omitted.)

Louisiana Revised Statute 23:1201.4 states, in pertinent part:

The employee’s right to compensation benefits, including medical expenses, is forfeited during any period of incarceration, unless a workers’ compensation judge finds that an employee has dependents who rely on a compensation award for their support, in which case said compensation shall be made payable and transmitted to the legal guardian of the minor dependent or other person designated by the workers’ compensation judge and such payments shall be considered as having been made to the employee.

|7In the case before us, the WCJ found that Francis had two minor dependents who relied upon his compensation award for their support. Thus, given the standard of review and La.R.S. 23:1201.4, it is this court’s duty to determine, after looking at the record as a whole, whether the WCJ’s finding that Francis’ two minor children were dependents that relied upon his benefits was a reasonable finding.

After reviewing the record, we conclude that there is ample evidence for the WCJ to find that Francis’ children were depen-dants that relied upon on his workers’ compensation benefits. Ms. Sarvaunt was working at various odd jobs making a minimal wage. She was raising four children. According to birth records, two of those children were dependents of Francis. How she was supporting those children was brought forth in the following exchange during her deposition:

Q: Is there any doubt in your mind that the compensation that [Francis] was getting for R.E. Heidt or for the insurance company due to that accident, he was using that money to support you and your children?
A: To support his family, yeah.
Q: Was any of his money going to the other two children? You had all four children, didn’t you?
A: Yes, sir.
Q: So he was paying money for—
A: No.
Q: No?
A: No. I worked and took care of my kids.
Q: And he-took care of his.
A: Yes.
Q: His money was going towards—
A: Yes, sir.
Q: —was it Franklin and Mia?
A: Cedric and Mia.

Ms. Sarvaunt’s testimony above shows that she financially supported her other |stwo children with money she earned at her jobs while Francis’ workers’ compensation benefits financially supported their two children they had together.

Moreover, Francis’ own testimony corroborates Ms. Sarvaunt’s testimony that he provides support for his children. Francis testified to the following on direct examination:

Q: Prior to being incarcerated, were you living with Ms. Sarvaunt?
A: Yes, I was.
Q: Are you on the certifícate of birth of these two children?
A: Yes, I am.
Q: Have you supported these two children since May 2nd, '02?
A: Yes, I have.
Q: You were getting workmen’s comp benefits. Were you giving this money to Ms. Sarvaunt for the upkeep of Ms. Saraunt [sic], you, and the children?
A: That is correct.

On cross examination, Francis’ testimony was consistent, as shown by the following:

Q: From August of '05 until you were put in jail I think you said around February of '06, what did you do with the money you got form comp checks then?
A: I would give her [Ms. Sarvaunt] money that she needed for the kids or whatever.
Q: Okay. But yet you agree that it has been about a year before her deposition that was the last time you have given her any funds?
A: The year I’m considering is the year that I’ve been incarcerated, almost a year that I’ve been incarcerated. Any time that I was not incarcerated, I did give money for child support or support for the family.

The employer argues that the WCJ committed manifest error in finding the minor children were dependent on Francis’s compensation award. The employer hinges its argument on some testimony that, for a period of time prior to 1 ([incarceration, Francis did not provide any money from his workers’ compensation benefits to his children. It argues that this testimony necessitates a finding that the children did not rely on Francis’s workers’ compensation benefits. This argument lacks merit.

Given the evidence cited above, the testimony of Francis and Ms. Sarvaunt, we find that the judgment of the WCJ that Francis’ children were dependants that relied upon on his workers’ compensation benefits was reasonable. Accordingly, we affirm the WCJ’s finding that Francis’ children were dependent upon Francis’ workers’ compensation benefits.

ASSIGNMENT OF ERROR # 4:

Next, the employer argues that the WCJ committed manifest error in awarding Francis’ minor children full compensation benefits instead of partial dependency benefits. This assignment also lacks merit.

“A finding of dependency by the trial court is entitled to great weight, and should not be disturbed unless clearly wrong.” Farmer v. Metro Light & Elec. Serv., Inc., 97-2237, p. 3 (La.App. 4 Cir. 3/11/98), 708 So.2d 1251, 1253, citing Doyle v. United General Ins. Co., 458 So.2d 152, 155 (La.App. 3 Cir.1984).

The employer argues that the WCJ erred in awarding full, rather than partial, support to the minor children by citing two cases. The employer first cites the Farmer case to bolster its contention that “sporadic” payment to children requires a finding that only partial benefits should be paid. However, the Fourth Circuit in Farmer did not reduce a finding of full dependency to partial dependency based upon “sporadic” support given by the employee prior to his incarceration. Rather, the Farmer court upheld the WCJ’s finding that, despite sporadic support, Farmer’s grandchild was “at least partially dependent.” Farmer, 708 So.2d at 1253. The Farmer court remanded the|10case for a determination of what specific amount should be given to fulfill the partial dependency as it found that the WCJ had arbitrarily estimated household expenses, rather than relying on concrete figures, in setting the amount of support to be paid to the grandchild. This case is distinguishable from the case before us.

The second case cited by the employer is Bellard v. OMNI Geographic, 00-717 (La. App. 3 Cir. 12/6/00), 773 So.2d 911. In Bellard, a trial court had ordered the employee to pay $130 per month in child support. The court affirmed the WCJ’s decision to award that amount of workers’ compensation benefits rather than the full amount of the employee’s workers’ compensation benefits. Here, we have no monthly child support award. Further, unlike in Bellard, we are not determining whether the court’s finding that the minor children did not rely on the workers’ compensation benefits was reasonable; instead, we are determining whether the record indicates that a finding that he children rely on the full amount of the workers’ compensation benefits is reasonable.

The record has substantial evidence of the reasonableness of the WCJ’s decision. Some such evidence is the testimony of Melissa Sarvaunt, wherein she stated:

Q: Most of the money [Francis] was getting in compensation you said went into the house. When you say that, you meant to the support of yourself or your children?
A: Yes, sir. He would cash the check and give it to me, and I’d pay the bills or get diapers or food or whatever.
Q: He was like most working men or whatever. They cashed their check and go to their wife or girlfriend and say, you know, to pay the bills?
A: Yes, sir.

Corroborating Ms. Sarvaunt’s testimony was that of Francis, wherein he stated:

Q: You were getting workmen’s comp benefits. Were you giving this money to Ms. Sarvaunt for the upkeep of Ms. Saraunt [sic], you, and the children?
jnA: That is correct.
Q: Did you give her the whole check?
A: Yes, sir.

This testimony indicates that when Francis would give money to his dependents, he would give them the entire amount of his benefit check, not just a particular payment amount ordered by a court as was the situation in the Bellard case cited by the employer.

Given the testimony of Ms. Sarvaunt and Francis, coupled with the manifest error standard of review, we cannot find that the WCJ’s factual findings were unreasonable. As such, we affirm the WCJ’s finding that Francis’ minor children were dependent upon the full amount of his workers’ compensation benefits.

ASSIGNMENT OF ERROR # 5:

In its final assignment of error, the employer asserts that the WCJ committed manifest error in awarding $2,000 in penalties and $7,500 in attorney’s fees. We do not agree and further award $2,500 in attorney’s fees to Francis for work performed on this appeal.

This court, in Ardoin v. Kipling Komer Grocery, 01-1596, p. 3 (La.App. 3 Cir. 4/17/02), 824 So.2d 371, 374. (citation omitted.), stated the following:

The determination of whether an employer should be cast with penalties and attorney fees is essentially a question of fact which will not be reversed absent evidence of manifest error. In order to reasonably controvert a workers’ compensation claim, an employer must have factual or medical information of such a nature that it reasonably counters that provided by claimant.

In the case before us, the employer was presented with evidence that Francis was incarcerated, that Francis had dependent children, and that those children were dependent upon Francis’ workers’ compensation benefits. While the employer did a thorough investigation into Francis’s status relative to incarceration, it failed to investigate the veracity of evidence that was presented to it that Francis had minor | ^children dependent upon his workers’ compensation benefits.

Accordingly, this court cannot find that the WCJ abused his discretion when awarding attorney’s fees, nor can we find that $7,500 was abusively high. Although the employer was presented with documentation and evidence of dependency, it waited on the court to determine whether it should pay those benefits to Francis’ children. Given this, the WCJ did not err in awarding $2,000 in penalties. As such, we affirm the WCJ’s award of $7,500 in attorney fees and $2000 in penalties.

Francis, in his answer to the employer’s appeal, requested additional attorney’s fees for work done on this appeal. We grant this request.

An award for additional attorney’s fees is generally given when attorney’s fees were correctly granted on the trial level, as to deny such a request on appeal would be inconsistent with the underlying judgment. Frank v. Kent Guidry Farms, 01-727 (La.App. 3 Cir. 5/8/02), 816 So.2d 969, writ denied, 02-1608 (La.6/27/03), 847 So.2d 1273. Given the number of assignments of error raised by the employer and the amount of work Francis’ attorney performed in successfully defending the judgment of the WCJ, we grant $2,500 in additional attorney’s fees for work done on this appeal.

CONCLUSION:

The employer raised five assignments of error. We find that all assignments of error raised by the employer are without merit and affirm the judgment of the WCJ. All costs of this appeal are to be paid by the employer. We award $2,500 in additional attorney’s fees to Francis for work performed in this appeal.

AFFIRMED AND RENDERED.