text:
    Charles BROWN v. Rodney FINNORN, et al.
    No. 2008-CC-0578.
    Supreme Court of Louisiana.
    April 25, 2008.
   In re Finnorn, Rodney et al.; Shoney’s L.L.C.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. B, No. 2006-00443; to the Court of Appeal, Fourth Circuit, No. 2007-C-1333.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


source: Caselaw Access Project

license: Public Domain

text:
    The SHERWOOD FOREST COUNTRY CLUB v. Elmer B. LITCHFIELD, as Sheriff and Ex Officio Tax Collector for East Baton Rouge Parish, and Brian Wilson, as Assessor of East Baton Rouge Parish.
    No. 2008-C-0194.
    Supreme Court of Louisiana.
    April 25, 2008.
   In re Wilson, Brian Assessor East Baton Rouge Parish; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 539,885; to the Court of Appeal, First Circuit, No. 2007 CA 0989.

Granted.

KIMBALL, J., recused.


author:
HUGHES, J.
      PETTIGREW, J.,

text:
    STATE of Louisiana v. Karen Marie CALLOWAY.
    No. 2007 KA 0012.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2007.

      Joseph L. Waitz, Jr., District Attorney, Barry Vice, Ellen Daigle Doskey, Assistant District Attorneys, Houma, LA, for Appellee, State of Louisiana.
    Gwendolyn Brown, Baton Rouge, LA, for Defendant/Appellant, Karen Marie Cal-loway.
    Before PETTIGREW, DOWNING, and HUGHES, JJ.
   HUGHES, J.

| ^Defendant, Karen Marie Calloway, and the codefendant, her seventeen-yeár-old son Demond Kentrell Calloway, were charged by bill of information with illegal possession of stolen things having a value greater than $500.00, violations of La. R.S. 14:69. They pleaded not guilty. A jury found Demond not guilty and Ms. Callo-way guilty as charged. She filed motions for new trial and for judgment notwithstanding the verdict, but these were denied. She was sentenced to three years imprisonment at hard labor. Her motion for reconsideration 'of the sentence was denied, as was her request for an appeal bond. She now appeals, designating the following six assignments of error:

Assignment of Error No. 1

The evidence is insufficient to support the conviction as it is based upon circumstantial evidence and the State failed to exclude every reasonable hypothesis of innocence.

Assignment of Error No. 2

The trial court erred by denying Ms. Calloway’s motion for judgment notwithstanding the verdict.

Assignment of Error No. 3

The trial court erred by denying Ms. Calloway’s motion for new trial.

Assignment of Error No. k

The trial court erred by imposing an excessive sentence.

Assignment of Error No. 5

The trial court erred by denying Ms. Calloway’s motion to reconsider sentence.

| ¿Assignment of Error No. 6

The trial court erred by dénying Ms. Calloway’s motion for appeal bond.

For the following reasons, we reverse the conviction and sentence.

FACTS

When Hurricane Katrina struck the New Orleans ar,ea on August 29, 2005, Ms. Calloway, her boyfriend Travis Williams, her teenaged son Demond, her asthmatic ten-year-old. daughter Kashawn, her seven months’ pregnant “sister-in-law” Stephanie Williams, and a teenaged female neighbor named Keesa, were living in her apartment in Marrero. The group remained at the Marrero apartment for two days without electricity or a working phone, then decided to try and reach the Superdome, to seek shelter when their supplies began running low, and looting and robberies were occurring in the neighborhood. They walked and hitched a ride to the Crescent City Connection bridge, area, where the women stayed to rest while the men went to the Superdome. But the men were turned away by police at the Superdome and the family had to spend the night on the bridge. The men tried again the next day to reach the Superdome but were again turned away.

By that time, the family had run out of food and water and the situation on the bridge was deteriorating rapidly. They saw fighting, heard screaming, and learned that rapes and robberies were going on. Demond witnessed a stabbing over water that a man was saving for his infant. When a stranger tried to grab at Ms. Calloway’s young daughter Kashawn, the family decided to return to their Marrero apartment.

When they returned home, their apartment had been broken into and their remaining food and water had been stolen. The door and windows had |4been kicked open and the family adults took turns during the night standing guard over the children. During the night, they' heard screaming and gunshots around the area. There were no police. As the looting continued throughout .the night in her neighborhood, Ms. Calloway began fearing for her and her family’s safety since they had no food, electricity, water, or use of a phone. They had also heard that the nearby Harvey Canal might overflow,-

The next day, a neighbor told Ms. Callo-way that some men were at a location about half a mile away selling cars. Ms. Calloway and her son Demond walked over to look at the cars. They spoke to a man named “Reggie,” who Ms. Calloway had heard around the neighborhood usually had cars to sell. Reggie had five or six vehicles and suggested that he would sell Ms. Calloway a Toyota Solara, but she wanted to purchase a Toyota Tundra pickup that Reggie had, thinking it would hold more people and belongings. Reggie was reluctant to sell the truck, indicating that he needed it, but the two continued negotiating. Ms. Calloway had to return home because her daughter had an asthma attack.

When Ms. Calloway returned to Reggie, she gave him $2,200.00, for which she expected to buy the Tundra pickup. Instead, and to her surprise, Reggie gave her the keys to both the Tundra and the Solara. Reggie told Ms. Calloway that he did not have the sale documents available at that moment, but that he would either send the documents to the Houma address Ms. Calloway provided or bring them to her himself. Ms. Calloway later testified that at the time, she did not concern herself overly with the paperwork due to the chaos of the situation. Similarly, she did not .suspect |sthe vehicles were stolen because Reggie had the keys to both when he sold them to her and the vehicles did not look to have been broken into or hot-wired.

After acquiring the two vehicles, Ms. Calloway packed up her family and their belongings and they drove the Tundra and the Solara to Houma, where they stayed with Ms.. Calloway’s mother. About two months later, detectives from the Houma Police Department received a tip that led them to discover that the Solara and Tundra were stolen vehicles owned by Dr. Dimetry Cossich and Kevin Adams, respectively.

At the trial, Dr. Cossich, a dentist, testified that he purchased a new 2004 Solara for about $32,000.00 from Don Bohn Toyota on LaPalco Boulevard in Harvey. Before the hurricane hit,. Dr. Cossich had brought the Solara to the dealership for a minor repair to a window. . When the hurricane struck, Dr. Cossich evacuated, leaving the Solara at the dealership. Dr. Cos-sich testified that before the hurricane, the Solara was in excellent condition and had about 24,000 miles on it.

The facts concerning Mr. Adams’s Toyota Tundra are similar. Mr. Adams testified that he purchased the 2003 Tundra new for about $30,000.00 from Bohn Brothers Toyota on LaPalco Boulevard in Harvey. Prior to the hurricane, Mr. Adams brought the Tundra to the dealership to have the power steering repaired. When the hurricane struck, Mr. Adams evacuated, leaving the Tundra at the dealership. He testified that before the hurricane, the Tundra was in excellent condition and had about 40,000 miles on it.

Both Dr. Cossich and Mr. Adams testified that they attempted to make a stolen vehicle report with Jefferson Parish authorities but were unable to Rdo so. Dr. Cossich testified that the police advised him that they were not taking stolen car claims at that time.

Ms. Calloway testified that when she bought the Tundra pickup from Reggie, it was not severely damaged," but it was in only fair condition. She testified'that the Solara had key marks on it, the sunroof was cut, thfere were dents in it, and the floor was wet. Travis Williams, Ms. Callo-way’s boyfriend, also testified that the vehicles were not in excellent condition. He reported that the Solara was “keyed up,” the sunroof was cut open, the rearview mirror was broken off, and it had water damage to the interior. He testified that the Tundra had a flat tire and the stereo system had been ripped out, which left all the stereo wires hanging and exposed.

Ms. Calloway testified that while she did not purchase the vehicles from a known car lot, Reggie was known for selling vehicles in the back of the neighborhood. She did not have a driver’s license and prior to purchasing these two vehicles, she. had never owned or purchased a car before. Thus, she testified, she had no way of knowing the retail value of the vehicles she purchased. She testified that it never crossed her mind that the vehicles were stolen. They did not look broken into or hot-wired and she thought that since the levee was getting ready to break, Reggie was trying to get rid of the cars “now and get something for it, or let the rain hit it and water take it away and get nothing for it.”

In Houma, Ms. Calloway never altered or changed the Tundra’s license plate or attempted to disguise or camouflage the vehicle in any way. Demond testified that he regularly drove the Solara to school and to work while in Houma after the hurricane. He testified that he had no idea the car |7was stolen. The price paid for the vehicles did not concern him and he did not discuss it with his mother. Ms. Callo-way testified it was her understanding that Reggie was coming to Houma and would then give her the title to the vehicles. As it turned out, Reggie never did go to Hou-ma and when Ms. Calloway went back to Marrero and looked for him, he was gone.

Jeff Walters, who qualified at the trial as an expert on appraising automobiles, testified on direct examination that a used 2004 Solara in excellent condition with 24,-000 miles and features similar to those of Dr. Cossich’s Solara would bring between $22,000.00 and $24,000.00 at an auction. If sold by a private individual, it would sell for between $24,000.00 and $27,000.00. Mr. Walters also testified that a 2003 Tundra, used but in excellent condition with 40,000 miles and features similar to those of Mr. Adams’s Tundra, would have a wholesale value of $17,000.00 and a retail value as high as $20,500.00. On cross-examination, Mr. Walters testified that a $20,000.00 vehicle that was water-damaged would likely sell for “twenty-five cents on a dollar, at worst” or roughly $5,000.00. He was also asked on cross-examination: “[i]f, in fact, the vehicles were waterlogged, had some engine-power steering, the interior was trashed, maybe a little damaged, would it come a point where you would not pay a penny for those vehicles?” He responded, “In my current position, I would not.”

ASSIGNMENTS OF ERROR NOS. 1, 2, AND 3

In her first three assignments of error, Ms. Calloway argues that the evidence was not sufficient to support her conviction. Specifically, she contends that the State failed to prove the elements of intent or knowledge that the vehicles were stolen when, in fact, she reasonably believed that she legally acquired the vehicles.

|sA conviction based on insufficient evidence cannot stand as it violates due process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. See La.Code Crim. P. art. 821(B). Incorporated into Article 821 is the standard of review articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). This is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. Furthermore, when analyzing circumstantial evidence, Louisiana Revised Statutes 15:438 provides that the trier of fact must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585, pp. 4-5 (La.App. 1 Cir. 6/21/02), 822 So.2d 141, 144.

Louisiana Revised Statutes 14:69 provides in pertinent part:

A. Illegal possession of stolen things is the intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.

Thus, the three elements of the crime of illegal possession of stolen things are: (1) intent, (2) possession, procurement, receipt, or concealing of stolen goods, and (3) knowledge that the goods were stolen. State v. Mangrum, 509 So.2d 818, 820 (La.App. 1 Cir.1987). Illegal possession of stolen things is a general intent crime. See State v. Davis, 371 So.2d 788, 790 (La.1979). General criminal intent is present when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain | ato result from his act or failure to act. La. R.S. 14:10(2). Though intent is a question of fact, it may be inferred from the circumstances of the transaction. See Davis, 371 So.2d at 790.

In State v. Chester, 97-1001, p. 3 (La.12/19/97), 707 So.2d 973, 974 (per curiam), the Louisiana Supreme Court stated:

[J]urors may infer the defendant’s guilty knowledge from the circumstances of the offense. See Barnes v. United States, 412 U.S. 837, 843, 93 S.Ct. 2357, 2362, 37 L.Ed.2d 380 (1973) (“For centuries courts have instructed juries that an inference of guilty knowledge may be drawn from the fact of unexplained possession of stolen goods.”). The inference of guilty knowledge arising from the possession of stolen property is generally a much stronger one than the inference the possessor committed the theft, Cosby v. Jones, 682 F.2d 1373, 1381 (11th Cir.1982), and for the buyer and seller alike, in a transaction involving stolen goods, “one of the most telling indices of guilt is a low price paid by the receiver.” United States v. Werner, 160 F.2d 438, 443 (2d Cir.1947); see 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law, § 8.10, p. 430 (West 1986) (“The circumstance that the buyer paid an inadequate price for the goods, that the seller was irresponsible, that the transaction between them was secret-these factors all point toward ... guilty knowledge.”); see United States v. Prazak, 623 F.2d 152, 154-55 (10th Cir.1980) [cert. denied, 449 U.S. 880, 101 S.Ct. 229, 66 L.Ed.2d 104 (1980)] (“Acquisition of recently stolen property at a ridiculously low price from an unknown person is itself sufficient to support an inference that the one acquiring the property knew the property was stolen.”); State v. Butler, 9 Ariz. App. 162, 450 P.2d 128, 132 (1969) (“When ... there is other evidence in addition to possession and sale at a disproportionately low price guilty knowledge may be found.”); Russell v. State, 583 P.2d 690, 699 ([Wyo.] 1978) (Thieves “must rid themselves of stolen property as quickly as possible, and willingness to sell at a grossly reduced price betrays or should betray such a predicament.”). Application of the Chester precepts to the instant matter convinces us that a rational trier of fact could not have concluded that the evidence as admitted excluded a reasonable hypothesis that Ms. Calloway had no knowledge that the vehicles were stolen. While she did pay a reduced price for the vehicles, uncon-troverted trial testimony established that at the time of purchase, both vehicles had damage that would have lowered their prices, | ^including water damage to the Solara. Mr. Walters, the appraisal expert, testified on cross-examination that water damage could cause a vehicle to lose up to three-quarters of its value. Further on cross, Mr. Walters indicated that he would pay nothing for a water-damaged vehicle with any additional damage, such as to the interior or the power steering.

The evidence further suggests that the disparity between the estimated value of the vehicles when Ms. Calloway first saw them (already damaged) right around the time of the hurricane and the price she paid for them was not so great that it should have been readily apparent to an unsophisticated buyer such as herself. She had no driver’s license and had never owned or purchased a car before. Accordingly, as she testified at trial, she had no way of knowing the value of the vehicles she purchased.

Also, the circumstances under which Ms. Calloway purchased the vehicles are particularly relevant. The area was swiftly descending into total chaos around her and her family. She negotiated a price with and purchased the vehicles from Reggie, a man she knew to be in the business of selling used vehicles in the area. The purchase was not secretive, but was conducted in a public location in Ms. Callo-way’s neighborhood. Testimony suggests that when Ms. Calloway was negotiating with Reggie, it appeared that Reggie had about five or six other vehicles to sell and other people were also there trying to purchase vehicles.

Furthermore, Ms. Calloway testified that when she purchased the vehicles for $2,200.00 together, it did not cross her mind that they were stolen. She testified that since everyone thought the levee was getting ready to break, she figured Reggie would “sell them anyway he can other than lose all the interest on them, everything. So he’s looking at I can get rid of them Innow and get something for it, or let the rain hit it and water take it away and get nothing for it.” Finally, Ms. Calloway and Demond’s actions and conduct following the purchase of the vehicles supports her claim that she did not believe the vehicles were stolen.

Once Ms. Calloway and her family arrived in Houma, they did not alter or change the license plates or attempt to disguise or camouflage the vehicles in any way. They used the vehicles openly until they learned from the Houma police that the vehicles were in fact stolen. Regarding the lack of paperwork for the purchase of the vehicles, Ms. Calloway’s claims are supported by her testimony that she believed Reggie, based on his assurances, was going to come to Houma to give her papers and the title to the vehicles. She testified she returned to Marrero and looked for Reggie but could not And him. Although it is true that Reggie never came to Houma to give her the papers and had disappeared by the time she went back to ask for them, her assertions as to her state of mind and understanding at the time and under the circumstances are reasonable.

In a similar vein, Demond testified that while he was in Houma, he drove the Solara to high school and to work. When he parked at home, he never tried to conceal the car. He did not discuss the price paid for the vehicles with his mother. When asked whether he had any indication that the vehicle he used was stolen, De-mond testified, “No. My momma wouldn’t give me no keys to no stolen car.” When asked what he thought “those guys were doing when they were selling those vehicles like that,” Demond responded, “I thought it was a light out of heaven. I thought we finally about to leave. You, know, we finally about to get out. I thought it was a light out of heaven.”

| ^Officer Dennis Bourdreaux testified regarding an occasion when he had to confront Demond at Ellender High School in Houma about the car stereo in the Solara being too loud. Officer Bourdreaux confirmed that Demond was very respectful to him, and was not evasive in any way.

We have carefully reviewed the entire record. Under the facts of this case and in light of the credible testimony of Ms. Calloway and Demond, we conclude that any rational trier of fact, after viewing all of the evidence as favorably to the prosecution as possible, would have a reasonable doubt as to Ms. Calloway’s guilt. Particularly, no rational trier of fact could have found that, under these circumstances, Ms. Calloway knew or had good reason to believe that the vehicles she purchased were stolen. See, e.g., State v. Mussall, 528 So.2d 1305, 1311-12 (La.1988). Proving a defendant’s knowledgeable possession is an essential element of the crime of illegal possession of stolen things and it has not been shown here beyond a reasonable doubt as to Ms. Calloway Accordingly, the conviction and sentence are reversed.

The trial court erred in denying bail. Louisiana Code of Criminal Procedure Article 332 clearly states that “[a]fter sentence and until final judgment, bail shall be allowed if a sentence of five years or less is actually imposed” (emphasis added). Ms. Calloway should not have been incarcerated during the pendency of this appeal.

CONVICTION AND SENTENCE REVERSED.

PETTIGREW, J, Dissents, and Assignsp Reasons.

PETTIGREW, J.,

dissenting.

|,1 dissent and would affirm the defendant’s conviction and sentence for the following reasons.

In her first three assignments of error, the defendant argues the evidence was not sufficient to support her conviction. Specifically, the defendant contends that the State failed to prove the elements of intent or knowledge that the goods were stolen in that she reasonably believed that she legally acquired the stolen vehicles.

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. See La.Code Crim. P. art. 821(B). The Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585, pp. 4-5 (La.App. 1 Cir. 6/21/02), 822 So.2d 141, 144.

Louisiana Revised Statutes 14:69 provides in pertinent part:

A. Illegal possession of stolen things is the intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.

I/The three elements of the crime of illegal possession of stolen things are: (1) intent, (2) possessing, procuring, receiving, or concealing stolen goods, and (3) knowledge the goods were stolen. State v. Mangrum, 509 So.2d 818, 820 (La.App. 1 Cir.1987). Illegal possession of stolen things is a general intent crime. See State v. Davis, 371 So.2d 788, 790 (La.1979). General criminal intent is present when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Davis, 371 So.2d at 790.

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact’s determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder’s determination of guilt. State v. Taylor, 97-2261, pp. 5-6 (La.App. 1 Cir. 9/25/98), 721 So.2d 929, 932.

The testimony at trial established that Karen purchased two stolen vehicles from a man named Reggie in the back of her neighborhood allegedly for $2,200.00 in cash. There was no bill of sale or any other paperwork memorializing the transaction. Karen did not register or purchase automobile insurance for either vehicle. According to Karen, she wanted to purchase only the Tundra, but when she gave Reggie the cash, Reggie gave her keys to both the Tundra and the Solara. Dr. Cossich testified that his 2004 Solara, purchased new for $82,000.00, was in excellent condition, and that his insurance company paid off his note for about $26,000.00 Kevin Adams testified that his 2003 Tundra, purchased new for $30,000.00, was in excellent condition, and that his insurance company paid him $23,000.00 for the truck.

In State v. Chester, 97-1001, p. 3 (La.12/19/97), 707 So.2d 973, 974 (per cu-riam), the Louisiana State Court, stated:

13[J]urors may infer the defendant’s guilty knowledge from the circumstances of the offense. See Barnes v. United States, 412 U.S. 837, 843, 93 S.Ct. 2357, 2362, 37 L.Ed.2d 380 (1973) (“For centuries courts have instructed juries that an inference of guilty knowledge may be drawn from the fact of unexplained possession of stolen goods.”). The inference of guilty knowledge arising from the possession of stolen property is generally a much stronger one than the inference the possessor committed the theft, Cosby v. Jones, 682 F.2d 1373, 1381 (11th Cir.1982), and for the buyer and seller alike, in a transaction involving stolen goods, “one of the most telling indices of guilt is a low price paid by the receiver.” United States v. Werner, 160 F.2d 438, 443 (2d Cir.1947); see 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law, § 8.10, p. 430 (West 1986) (“The circumstance that the buyer paid an inadequate price for the goods, that the seller was irresponsible, that the transaction between them was seeret-these factors all point toward ... guilty knowledge.”); see United States v. Prazak, 623 F.2d 152, 154-55 (10th Cir. 1980) (“Acquisition of recently stolen property at a ridiculously low price from an unknown person is itself sufficient to support an inference that the one acquiring the property knew the property was stolen.”); State v. Butler, 9 Ariz.App. 162, 450 P.2d 128, 132 (1969) (‘When ... there is other evidence in addition to possession and sale at a disproportionately low price guilty knowledge may be found.”); Russell v. State, 583 P.2d 690, 699 (1978) (Thieves “must rid themselves of stolen property as quickly as possible, and willingness to sell at a grossly reduced price betrays or should betray such a predicament.”).

While there was no direct or circumstantial evidence linking Karen to the theft of the vehicles, trial testimony provided jurors with direct evidence regarding the value of the vehicles. When the vehicles were stolen, the Solara was about one year old and the Tundra was about two years old. While the value of both vehicles combined, when purchased new, was about $62,000.00, and both vehicles were paid off by the rightful owners’ insurance companies for a total of about $49,000.00, Karen purchased both vehicles for $2,200.00. While Karen testified that there was some damage to the vehicles when she bought them and that this was the first time she ever purchased any vehicle, it was not unreasonable for the jurors to infer that Karen should have been put on notice about a seemingly illegitimate transaction wherein she acquired two relatively new vehicles for an extraordinarily low price. Moreover, given the widespread looting and stealing at this time, and the fact that Karen acquired these vehicles with a complete lack of transactional formality at the back of her neighborhood from someone with whom there was no discussion about where or how he came to possess these vehicles, a reasonable juror could have inferred that Karen knew or had good reason to believe that the vehicles were stolen, and that she intended to possess stolen things | ¿given her two-month use and possession of these vehicles. See Chester, 97-1001 at pp. 3-4, 707 So.2d at 974-975.

When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La.1984). In finding the defendant guilty, it is clear the jury rejected the hypothesis of innocence presented by Karen; namely, that she reasonably believed that she legally acquired two stolen late-model vehicles for $2,200.00.

We are constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342, p. 8 (La.10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1 Cir.1985).

After a thorough review of the record, I am convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of the illegal possession of stolen things having a value greater than $500.00.

The defendant’s fourth and fifth assignments of error address the issue of excessive sentence. The defendant argues the trial court erred in imposing an excessive sentence and denying the motion to reconsider sentence.

Article I, § 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is|ficonsidered constitutionally excessive if it is crossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks one’s sense of justice. State v. Andrews, 94-0842, pp. 8-9 (La.App. 1 Cir. 5/5/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So.2d 1241, 1245 (La.App. 1 Cir.1988).

The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Article 894.1. State v. Lanclos, 419 So.2d 475, 478 (La.1982). The trial judge should review the defendant’s personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. State v. Jones, 398 So.2d 1049, 1051-1052 (La.1981).

In the instant matter, the trial court imposed a three-year sentence at hard labor. While the trial court did not mention Article 894.1 by name, it is clear from its reasons for judgment at sentencing that it considered the article. At sentencing, the trial court stated in pertinent part:

[The defendant] does not have a significant record. She had a previous receiving stolen goods, but that was some time in the past.
The Court is familiar that she has a family. She was working at the time this happened, and what is particularly troublesome to the Court is that she has steadily and steadfastly maintained that she thought she owned these vehicles, which from this Court’s standpoint is just ludicrous under the circumstances. If she had come to this Court and said, look, Judge, we were in a bad situation, we needed to get out of Marrero because of the circumstances that were there, you know, while legally it is not a justification but certainly a lot of things happened during Hurricane Katrina, which certainly law enforcement was not going to get involved in given the circumstances, and the Court could have understood certain things....
The story, in this case, is I bought two cars that are valued somewhere between 20- and $40,000. I have no papers, no title. I don’t | fiknow who I bought them from. I didn’t do a Bill of Sale. There was no notary, and I own two cars. And, simply, it does not wash under the circumstances of this matter.

The maximum sentence pursuant to La. R.S. 14:69(B)(1) is ten years imprisonment. Considering the trial court’s careful analysis of the circumstances and the fact that the defendant was sentenced to only three years imprisonment, or less than one-third the possible maximum sentence, the sentence imposed by the trial court is not grossly disproportionate to the seventy of the offense and, therefore, is not unconstitutionally excessive. The trial court did not err in denying the defendant’s motion to reconsider sentence.

For the above reasons, I would affirm the conviction and sentence of the defendant.

      . Testimony indicated that the Calloways had about $2,300.00 in cash at the time, most of which came from Ms. Calloway’s husband’s welding income.

      . When asked on cross-examination if Reggie had a business office for the "car lot," the defendant responded, "[i]t was a house that had another little something going on in the shed, so I wouldn’t — I didn't know what that . part was.' ,

      . According to the testimony of the defendant and Demond, another man named '‘Slick” was with Reggie selling cars.


author: GUIDRY, J.

text:
    Michael F. STARR v. Kenny BOUDREAUX and Guidry Group, Inc.
    No. 2007 CA 0652.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2007.
    Rehearing Denied Feb. 26, 2008.

      W. Christopher Beary, R. Ray Orrill, Jr., Aaron Z. Ahlquist, New Orleans, LA, for Plaintiff/Appellant, Michael F. Starr.
    Jerry L. Hermann, Houma, LA for Defendant/Appellee, Kenny Boudreaux and Guidry Group, Inc.
    Before WHIPPLE, GUIDRY, and HUGHES, JJ.
   GUIDRY, J.

| pin this defamation action, plaintiff, Michael F. Starr, appeals from a judgment of the trial court granting a special motion to strike filed by the defendants, Kenny Bou-dreaux and Guidry Group, Inc. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Michael Starr is an owner of Delta Starr Broadcasting, L.L.C. (Delta Starr). Delta Starr owns ninety-eight percent of La-Terr Broadcasting Corporation (La-Terr), which operates the KTIB 640 AM radio station (KTIB) in Thibodaux, Louisiana. On May 25, 2005, and June 1, 2005, the local weekly newspaper, the Tri-Parish Times, is owned by Guidry Group, Inc.

As a result of the publication of these articles, Starr filed a petition for damages based on defamation, slander, and libel wherein he claimed that the articles made five unqualified, affirmative statements of fact that were untrue. Thereafter, the defendants filed a special motion to strike Starr’s petition pursuant to La. C.C.P. art. 971. In its motion, the defendants asserted that Starr is a public figure by virtue of his ownership interest in La-Terr and Delta Starr entities, which control KTIB. Further, the defendants asserted that the articles concerning the radio station involved a public issue/matter of public interest, were based on a thorough investigation, were reported evenhandedly and without malice, and that the defendants believed that the articles were true when they were printed. Finally, the defendants asserted that based on the pleadings, affidavits, and attached exhibits, Starr did not have a probability of success on his claim, and therefore, his petition should be dismissed with prejudice and defendants should be awarded costs and attorney fees.

^Following a hearing on the defendants’ motion to strike, the trial court signed a judgment on March 13, 2006, in favor of the defendants, granting their motion to strike, dismissing Starr’s petition for damages, and awarding $1,000.00 in attorney fees. Starr now appeals from this judgment, asserting that the trial court erred in finding that Starr failed to establish a prima facie case for defamation, slander, and libel, and accordingly, erred in granting the defendants’ special motion to strike and in awarding attorney fees.

DISCUSSION

Special Motion To Strike

The special motion to strike is governed by La. C.C.P. art. 971, which provides, in part:

A. (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding.
B. In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.

The granting of a special motion to strike presents a question of law. Appellate review of a question of law is simply a review of whether the trial court was legally correct or legally incorrect. Lamz v. Wells, 05-1497, p. 3 (La.App. 1st Cir.6/9/06), 938 So.2d 792, 795. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty |4to review questions of law and renders a judgment on the record. Lamz, 05-1497 at p. 3, 938 So.2d at 795.

Article 971 was enacted by the legislature as a procedural device to be used in the early stages of litigation to screen out meritless claims brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. Thinkstream, Inc. v. Rubin, 06-1595, p. 9 (La.App. 1st Cir.9/26/07), 971 So.2d 1092, 1100.

Pursuant to article 971, a cause of action against a person arising from any act in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim. La. C.C.P. art. 971(A)(1). Accordingly, article 971 establishes a burden-shifting mechanism, whereby once the mover has established that a cause of action against him arises from an act by him in further-anee of the exercise of his right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue, the burden then shifts to the plaintiff to demonstrate a probability of success on his claim. See Thinkstream, 06-1595 at p. 9, 971 So.2d at 1100,.

In the present case, neither party disputes that the cause of action against the defendants arose from an act by the defendants in furtherance of the right of petition or free speech, as the defendants made the allegedly defamatory statements in several articles published in the Tri-Parish Times newspaper, wherein the paper attempted to provide the public with information regarding the sudden removal from the airwaves of an important local radio station. Clearly, this involves an act in furtherance of the defendants’ right to free speech under the United States and Louisiana Constitutions in connection with a public issue. Accordingly, because |fithe defendants met their initial burden of proof, the burden shifted to Starr to establish the probability of success on his claim against the defendants.

Defamation

A cause of action for defamation arises out of La, C.C. art. 2315. Defamation involves the invasion of a person’s interest in his or her reputation and good name. Costello v. Hardy, 03-1146, p. 12 (La.1/21/04), 864 So.2d 129, 139. To maintain a cause of action for defamation, a plaintiff must prove: (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. Lamz, 05-1497 at p. 7, 938 So.2d at 797. If any one of these required elements is lacking, plaintiffs cause of action fails. Costello, 03-1146 at p. 12, 864 So.2d at 140.

Defamatory words are, by definition, words which tend to harm the reputation of another so as to lower the person in the estimation of the community, to deter others from associating or dealing with the person, or otherwise expose the person to contempt or ridicule. Fitzgerald v. Tucker, 98-2313, p. 11 (La.6/29/99), 737 So.2d 706, 716. Words that convey an element of personal disgrace, dishonesty, or disrepute are defamatory. Fitzgerald, 98-2313 at p. 11, 737, So.2d at 716. The question of whether a communication is capable of a particular meaning and whether that meaning is defamatory is ultimately a legal question for ,the court. The. question is answered by determining, whether a listener could ,have reasonably understood the communication, taken in context, to have been intended in a defamatory sense. Costello, 03-1146 at p. 13, 864 So.2d at 140.

In Louisiana, defamatory words have traditionally been classified into two categories: those that are defamatory per se and those that are susceptible of a defamatory meaning. Kennedy v. Sheriff of East Baton Rouge, 05-1418, p. 5 (La.7/10/06), 935 So.2d 669, 674-675. Words which expressly or implicitly accuse another of criminal conduct, or which, by their very nature tend to injure one’s | (¡personal or professional reputation, even without considering extrinsic facts or surrounding circumstances, are considered defamatory per se. Kennedy, 05-1418 at p. 5, 935 So.2d at 675. When a plaintiff proves publication of words that are defamatory per se,’ the eléments of falsity and malice are presumed, but may be rebutted by the defendant. Kennedy, 05-1418 at p. 5, 935 So.2d at 675. Injury may also be presumed. Kennedy, 05-1418 at p. 5, 935 So.2d at 675.

When the words at issue are not defamatory per se, a plaintiff must prove, in addition to defamatory meaning and publication, the elements of falsity, malice, and injury. Costello, 03-1146 at p. 14, 864 So.2d at 140. In cases involving statements made about a public figure, where constitutional limitations are implicated, a plaintiff must prove actual malice, i.e., that the defendant either knew the statement was false or acted with reckless disregard for the truth. Costello, 03-1146 at p. 14, 864 So.2d at 140-141.

To establish a reckless disregard for the truth, the plaintiff must show that the false publication was made with a high degree of awareness of probable falsity, or that the defendant entertained serious doubt as to the truth of his publication. Tarpley v. Colfax Chronicle, 94-2919, p. 2 (La.2/17/95), 650 So.2d 738, 740. Further, conduct which would constitute reckless disregard is typically found where a story is fabricated by the defendant, is the product of his imagination, or is so inherently improbable that only a reckless man would have put it in circulation. Kennedy, 05-1418 at pp. 28-30, 935 So.2d at 688-689.

In the instant case, Starr asserts that five statements printed in the newspaper articles are defamatory. These five statements assert: (1) Michael Starr, Vincent Bruno, and John Treen were equal owners of Delta Starr; (2) final judgment in a suit against Starr is pending; (3) Cajun Radio executives discovered unethical dealings of ownership with KTIB; (4) KTIB employees complained about receiving bounced checks from Starr; and (5) Bruno makes additional claims 17against Starr, which are serious under federal law, and each count could result in heavy fines or up to five years in jail if the court agrees.

Particularly, Starr contends that these five statements are defamatory per se, and therefore, he does not need to establish falsity, malice or injury, as those elements are ■ presumed. However, the Louisiana Supreme Court has recognized that the legacy of United States Supreme Court decisions regarding defamation is that “the protections afforded by the First Amendment supercede the common law presumptions of [malice], falsity, and damages with respect to speech involving matters of public concern, at least insofar as media defendants are concerned.” Kennedy, 05-1418 at p. 8, 935 So.2d at 677 (referring to Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), and Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986). Accordingly, our supreme court has recognized that in actions against a media defendant involving an issue of public concern, the presumptions of falsity, malice, and injury do not apply. Kennedy, 05-1418 at pp. 8-9, 935 So.2d at 677.

Additionally, prior to Kennedy, the supreme court indicated that in cases involving statements made about a public figure, where constitutional limitations are implicated, a plaintiff must prove actual malice, implying that defamation per se does not apply in cases involving a public figure. See Costello, 03-1146 at p. 14, 864 So.2d at 140-141 (wherein the court noted that if words are not defamatory per se, a plaintiff must prove malice, and in cases involving statements made about a public figure, a plaintiff must prove actual malice). Therefore, in accordance with the above decisions, in eases involving statements made on an issue of public concern against a media defendant or statements made about a public figure, a plaintiff must prove all elements of his cause of action for | ^defamation, including actual malice, and may not rely on any presumption based on the fact that the words are defamatory per se.

Starr, however, contends that he is not a public figure, and therefore, any heightened standard of proof is inapplicable. From our review of the facts and the record in the instant case, we find that Starr is a public figure for purposes of the limited issues involved in the newspaper articles.

The United States Supreme Court stated in Gertz v. Robert Welch, Inc., 418 U.S. 323, 351-352, 94 S.Ct. 2997, 3012-3013, 41 L.Ed.2d 789 (1974) that a person’s designation as a public figure may rest on either of two alternative bases. In some instances, an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. Gertz, 418 U.S. at 351, 94 S. Ct at 3013. More commonly, however, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. Gertz, 418 U.S. at 345, 94 S.Ct. at 3009. An individual who voluntarily injects himself or is drawn into a particular controversy becomes a public figure for this limited range of issues. In either case, such persons invite attention and comment and assume special prominence in the resolution of public questions. Gertz, 418 U.S. at 345 and 351, 94 S.Ct. at 3009 and 3013.

In the instant case, Starr is an owner of Delta Starr and La-Terr, which operates KTIB, a radio station that served as an important source to the community for local news, talk and weather. In his capacity as an owner and operator of KTIB, Starr issued a press release explaining KTIB’s sudden removal from the airwaves. In this release, Starr stated that there had been some recent changes and that the station had experienced some setbacks. Starr stated that KTIB was seeking a new owner and he also expressed confidence that KTIB would resume broadcasting. In issuing this press release, Starr voluntarily injected himself into |nthe debate regarding KTIB’s removal from the airwaves and voluntarily divulged information regarding the company’s operational problems and its search for a new owner. Therefore, to the extent that the newspaper articles at issue discussed Starr in his capacity as an owner and operator of KTIB, and addressed issues directly related to the ownership and management of KTIB, we find that Starr was a public figure for that limited issue.

Further, even if we did not find that Starr was a public figure, the articles and statements at issue involve a matter of public concern. The United States Supreme Court has defined matters of “public concern” as speech “relating to any matter of political, social, or other concern to the community.” Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). Clearly, the articles discussing the removal of a local radio station from the airwaves, which was an important source for local news, talk, and weather, relates to a matter of public concern and is an issue about which the local community would reasonably be expected to have a legitimate interest. Therefore, because we find that Starr is a public figure for the limited issues involved, and alternatively, that the articles at issue, published by the media defendants, involve a matter of public concern, Starr must prove actual malice, as well as the other elements of his defamation claim, in order to prevail.

From our review of the record, we find no evidence to suggest that the defendants acted with actual malice in publishing the newspaper articles at issue. Defendants filed into the record affidavits of Darrin Guidry, the President and Chief Executive Officer of Guidry Group, and Kenny Boudreaux. In these affidavits, Guidry and Boudreaux state that the articles were researched and written in accordance with proper reporting standards, including review of the public records and interviews with known, reliable, and identified sources. Additionally, the defendants attached copies of the documents they reviewed in writing the h particles, including copies of complaints filed in the Seventeenth Judicial District Court and federal court; emails from Starr’s employees; letters from Vincent Bruno to the Federal Communications Commission; and affidavits from Vincent Bruno, John Treen, and Thomas Cvitanovieh (a shareholder of La-Terr).

In opposing the motion to strike, Starr filed his affidavit; acts of sale related to ownership interests in Delta Starr and La-Terr; a judgment from the Seventeenth Judicial District Court dismissing a claim filed against Starr on an exception of venue; affidavits from two of Starr’s employees clarifying previous statements regarding their paychecks; and an email from the President of Wilkins Communications stating that he did not know where the defendants obtained information that it or Cajun Radio was excusing itself from the deal with KTIB, that he did not comment orally or in writing to anyone with the defendants, and that the comments contained in the newspaper articles were not made by any of his representatives or counsel.

However, none of the evidence presented by Starr demonstrates any actual malice on the part of the defendants in publishing the newspaper articles at issue. The evidence neither suggests that the defendants knew the statements were false, nor that they acted with reckless disregard for the truth. The evidence presented by Starr may establish that the statements were subsequently shown to be false. However, it does not demonstrate that the defendants were highly aware at the time the statements were made that they were false or that they entertained serious doubt at that time as to the statements’ truth. In fact, the totality of the evidence shows that at the time the articles were published, the defendants had a reasonable basis for believing the statements were true. See Trentecosta v. Beck, 96-2388, p. 16 (La.10/21/97), 703 So.2d 552, 562.

Accordingly, because Starr has failed to prove actual malice with regard to the statements made by the defendants in the newspaper articles, he did not ^establish a probability of success on his claim for defamation, and the trial court was correct in granting defendants’ special motion to strike Starr’s petition.

Attorney Fees

Louisiana Code of Civil Procedure article 971(B) provides that a prevailing party on a motion to strike shall be awarded reasonable attorney fees. Accordingly, because we find that the trial court was correct in granting defendants’ motion to strike, we also find no error in the trial court’s decision to award the defendants reasonable attorney fees.

In brief before this court, the defendants request additional attorney fees for work performed on appeal. However, it is well settled that an appellee, who neither appeals nor answers an appeal, is not entitled to additional attorney fees for legal services rendered on appeal. La. C.C.P. art. 2133; Parfait v. Gulf Island Fabrication, Inc., 97-2104, p. 18 (La.App. 1st Cir.1/6/99), 733 So.2d 11, 25. Because the defendants did not appeal the trial court’s judgment, nor did they answer Starr’s appeal and request additional attorney fees, they are not entitled to additional attorney fees for work performed on appeal.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court, granting defendants’ special motion to strike and dismissing Starr’s petition. All costs of this appeal are to be borne by the appellant, Michael F. Starr.

AFFIRMED.

HUGHES, J., concurs.


author: CARTER, C.J.

text:
    DEAN CLASSIC CARS, L.L.C. and Bob G. Dean, Jr. v. FIDELITY BANK AND TRUST COMPANY, State of Louisiana Through the Department of Public Safety, Office of Motor Vehicles, and James E. Jordan, Jr.
    No. 2007 CA 0935.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2007.

      William D. Treeby, Samantha P. Griffin, New Orleans, LA, for Plaintiffs-Appellees, Dean Classic Cars, L.L.C. and Bob G. Dean, Jr.
    James P. Doré, Amy D. Borret, Baton Rouge, LA, for Defendant-Appellant, Fidelity Bank and Trust Company.
    Mark L. Ross, Lafayette, LA, for Inter-venor-Appellant, Chubb Group of Insurance Cos.
    James E. Jordan, Jr., Baton Rouge, LA, Defendant In Proper Person.

      Before CARTER, C.J., PETTIGREW, and WELCH, JJ.
   CARTER, C.J.

| ¡¿Plaintiffs, Bob G. Dean, Jr. and Dean Classic Cars, L.L.C., sought to recover losses sustained as a result of a former employee’s fraudulent action of stealing multiple checks, forging plaintiffs’ indorse-ments, and presenting the forged instruments for deposit into the employee’s personal bank account. In the proceedings below, the trial court found in favor of plaintiffs, holding that the bank’s action of depositing the forged checks constituted conversion. The bank and its insurer appeal, primarily arguing that the trial court erred in failing to find that plaintiffs bore responsibility for the losses because of their lack of sufficient internal auditing controls. Finding no error, we affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL HISTORY

Bob Dean Enterprises, Inc. (“BDE”) provides management services to various companies owned by Bob G. Dean, Jr. (“Dean”), including Dean Classic Cars, L.L.C. (“DCC”), a licensed Louisiana automobile dealer that was organized to buy, sell, and hold title to company vehicles used by Dean’s various company’s employees and Dean’s antique and exotic vehicle collection. The vehicle collection ordinarily consisted of 50 to 100 vehicles, and was housed at both a warehouse owned by Dean and at Dean’s personal residence. DCC did not have any employees, but Dean instructed and supervised various BDE employees regarding DCC work and activities.

In 1997, Dean hired James E. Jordan, Jr. (“Jordan”), a former Louisiana state trooper, as an employee of BDE. Initially, Jordan handled workers’ compensation matters for Dean’s various companies. Eventually, Jordan’s duties expanded to include responsibility for handling bills of sale and titles to the vehicles owned by DCC, as well as becoming a licensed Dsalesman to assist Dean in the buying and selling of the vehicles for Dean’s private collection.

Unbeknownst to Dean and BDE employees, Jordan had a serious gambling addiction. In 2002, Jordan began to use fraudulently prepared financial statements, documents, and titles for the DCC vehicles to secure personal loans from Fidelity Bank and Trust Company (“Fidelity”) and several other banks in order to cover his gambling debts. In late 2002 and throughout 2003, Jordan also devised a scheme to intercept checks made payable to DCC and/or Dean, including three checks that Jordan deposited into his personal checking account at Fidelity. In each instance, Jordan stole the checks, forged the respective signatures for DCC and/or Dean, personally indorsed the checks, and then deposited the funds into his checking account at Fidelity. Neither Dean nor any of his companies had bank accounts at Fidelity. Despite bank policies to the contrary, Fidelity permitted Jordan to deposit the checks made payable to DCC and/or Dean into his personal checking account without manager or officer approval, and without verifying the validity of the indorsements appearing on the checks or Jordan’s authority to deposit the third party checks.

One of the checks deposited by Jordan represented proceeds for a loan obtained by Dean and DCC in December 2003 after the purchase of several vehicles. Jordan somehow confiscated the $278,000.00 check and deposited it in his Fidelity checking account before Dean was even aware that the loan | shad been successfully processed and funded. When Dean questioned Jordan regarding the whereabouts of the loan proceeds, Jordan concocted a story about title problems on the vehicles used to secure the loan. Jordan maintained the title problem story line each time he was questioned until March 2004. At that time, Dean pressed Jordan for receipt of the loan proceeds or a speedy resolution to the title problems within twenty-four hours. The pressure from Dean resulted in Jordan confessing to Dean that he had stolen the loan check along with several other checks, and that he had previously used some titles to DCC vehicles in order to secure numerous loans to cover his gambling debt. After the confession, Jordan ultimately pled guilty to an elaborate embezzlement scheme and was sentenced to serve time in a federal penitentiary.

Plaintiffs, DCC and Dean, filed suit against Fidelity on April 7, 2004, alleging that Fidelity’s action of depositing the third-party checks without verifying the indorsements or authority for the deposit of corporate checks into a personal account, constituted unlawful and negligent conversion of the funds pursuant to LSA-R.S. 10:3-420, and therefore, plaintiffs were entitled to an award of damages, legal interest, and costs relative to Fidelity’s handling of the forged corporate checks. Fidelity answered, denying all allegations of negligence and asserting that plaintiffs were responsible for |fithe loss because Jordan was a “responsible employee” within the meaning of LSA-R.S. 10:3-405. Fidelity also alleged that plaintiffs had insufficient internal auditing controls that allowed Jordan to engage in the embezzlement scheme. Finally, Fidelity’s insurer, Chubb Group of Insurance Companies (“Chubb”), intervened in the lawsuit to recoup funds that it had paid to Fidelity for payment on the three fraudulently indorsed checks.

During trial on January 23-24, 2007, Dean and several accounting employees of BDE testified that Jordan: (1) did not have check-signing authority for Dean or DCC, (2) did not have authority to prepare deposit slips, (3) did not have authority to make deposits of corporate checks into his personal checking account, (4) did not have authority to indorse corporate checks made payable to Dean or DCC, and (5) was not a signatory on any of Dean’s accounts, including DCC. Jordan acknowledged all of these facts, emphasizing that he did not have any accounting or bookkeeping duties, and he had no check writing authority for Dean or any of Dean’s businesses. It was established that Jordan’s role in bank deposits for plaintiffs was to simply transport the deposits to the bank and return with the deposit slips for BDE accounting staff. There was also testimony that Jordan never had primary responsibility for the initial receipt of the mail for BDE; instead, different designated BDE employees at different times would handle the mail. However, Jordan testified that he occasionally would have DCC mail distributed directly to him and he would open it. Testimony from the loan 17officer at Fidelity revealed no one at Fidelity took any steps to verify Jordan’s authority to indorse checks for Dean or DCC on any of the three checks involved. Further, no one at Fidelity verified that Dean’s indorsement was authentic. The loan officer agreed that it was a “total violation of acceptable bank practice” for the three corporate checks to be deposited into Jordan’s personal account without an officer’s approval or without verification of the indorsements and of Jordan’s authority to indorse and deposit the checks.

Dean testified that he initially hired Jordan based upon the recommendation of one of his friends. He took for granted that Jordan’s reputation was good because Jordan was a retired state trooper who had been a former president of the state trooper’s association, and Jordan’s father was a former sheriff. Dean trusted Jordan and did not see the need for a background check. Dean denied any knowledge of Jordan’s gambling addiction until Jordan confessed to his fraudulent activities. Dean testified that he personally supervised Jordan, and he was a “hands-on” manager for his companies. It was undisputed that Jordan could not transact any business on behalf of plaintiffs without Dean’s authority. The evidence revealed that Jordan, as well as Dean and two other BDE employees, had access to the titles for the vehicles owned by DCC. Also, a security code was required to access the physical inventory of vehicles. Dean described Jordan as having clerical type duties such as making phone calls, filing, preparing documents, including bills of sale and titles, and making arrangements for insurance and | ¿repairs on vehicles. The testimony reflected that Jordan also occasionally helped facilitate the buying and selling of vehicles under Dean’s supervision.

Additionally, Dean testified that he periodically checked on the titles and bills of sales for the DCC vehicles, and he personally had access to all of the vehicles and titles every day. BDE’s chief financial officer, Angela Courville, testified that she personally maintained an inventory list of the vehicles owned by DCC and she always reconciled the list with the general accounting ledger. After the discovery of Jordan’s embezzlement scheme, she began to reconcile the physical inventory with the titles to the vehicles as well. Both Dean and his chief financial officer maintained their belief that the internal accounting and auditing controls for DCC and BDE were sufficient to detect fraud with the small number of employees involved in the companies. They testified that until Jordan’s embezzlement, they had never experienced any kind of fraud or theft of checks affecting Dean’s businesses.

Fidelity’s expert in accounting and assessment of internal controls, Scott Ginn, testified that Dean’s accountants should have used restrictive endorsements such as “for deposit only” on all incoming checks for Dean’s companies. Ginn testified that restricted access to the vehicles and to the titles was a good internal control, but in addition, different people should perform a reconciliation of the physical inventory with the titles in order to prevent fraud. He also testified that the only way to control the theft of checks coming in the mail is to control receipt of the mail, to make a record of incoming checks, to use restrictive endorsements on all checks that are received, and to follow up to ensure that deposits are made. Ginn emphasized that a segregation of duties was essential for internal controls. | aGinn acknowledged that no one that was involved with Dean’s companies knew how the three checks got into Jordan’s possession, and Jordan had a propensity for forging signatures. Ginn also acknowledged that if Jordan stole the checks before the checks were processed at DCC, then a restrictive endorsement procedure would have been meaningless under that scenario.

Dr. William Staats, the financial management and banking expert offered by plaintiffs, testified on rebuttal that internal controls had nothing to do with the fraud that occurred with the three checks, because reconciliation of titles with inventory would not have limited Jordan’s ability to forge indorsements on the checks. Staats focused on Fidelity’s “haphazard” loan approval practice and its failure to follow general banking policies resulting in the deposit of forged checks into Jordan’s account. Staats testified that had Fidelity properly underwritten the loans by verifying all of the information provided by Jordan and then followed standard banking policies by verifying indorsements and authority for deposits when accepting third party checks, Jordan’s fraud would have been detected. Staats testified on rebuttal that the segregation of the physical inventory and the titles for the DCC vehicles was sufficient to control fraud because the vehicles could not be sold unless there was access to the car and delivery could be made.

According to BDE’s chief financial officer, the money from DCC’s vehicle sales was not typically received until actual delivery of a vehicle. The accounting system was set up for DCC to allow for tracking of the sales, which were then reconciled with the inventory list. DCC did not have an accounts receivable ledger because the vehicles were typically not sold with installment payments. Any checks received at DCC were posted to the accounting ledger and copies were attached to the deposit slips. Bank |instatements were reconciled with the accounting program. The chief financial officer testified that she believed all of the internal controls were sufficient to detect fraud after the checks were received by DCC, but Jordan apparently stole the checks before they could be processed and Jordan was able to replace funds before questions arose about missing deposits.

After trial, the trial court found in favor of plaintiffs, holding that Jordan’s embezzlement scheme was not something that would have been easily detected by different internal controls. The trial court awarded plaintiffs $299,424.70, plus interest and costs, for the amount converted by Fidelity, thereby denying Fidelity’s and Chubb’s claims that plaintiffs were responsible for the loss. Both Fidelity and Chubb appealed, contending that the trial court erred in failing to find that plaintiffs could have prevented Jordan’s frauds by instituting more internal auditing controls. Fidelity also argues that the trial court erred in excluding portions of Jordan’s deposition and in permitting plaintiffs’ banking expert to testify regarding internal controls. Additionally, Fidelity complains that the trial court’s written judgment does not comport with its assigned reasons.

STANDARD OF REVIEW

Whether Dean failed to exercise ordinary care in supervising Jordan and whether plaintiffs could have prevented Jordan’s embezzlement scheme by instituting more internal accounting controls are questions of fact. Med Data Service Bureau, L.L.C. v. Bank of Louisiana in New Orleans, 03-2754 (La.App. 1 Cir. 12/30/04), 898 So.2d 482, 491. This court’s function is to determine whether there is a reasonable basis to support the trial court’s factual findings and whether the trial court’s factual findings are clearly In'wrong or manifestly erroneous. Id.; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993).

An appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Salvant v. State, 05-2126 (La.7/6/06), 935 So.2d 646, 650. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. Where a fact finder’s finding is based on its decision to credit the testimony of one or two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Id.

LAW AND ANALYSIS

The general rule established by long-standing jurisprudence is that when a bank pays on a forged check, it is liable for the amount of the checks, plus legal interest from the date of judicial demand. Marx v. Whitney National Bank, 97-3213 (La.7/8/98), 713 So.2d 1142, 1145; Cable Cast Magazine v. Premier Bank, Nat. Ass’n, 98-0676 (La.App. 1 Cir. 4/1/99), 729 So.2d 1165, 1166, writ denied, 99-1257 (La.6/18/99), 745 So.2d 31. A statutory exception to the general rule is provided in LSA-R.S. 10:3-405 when fraudulent in-dorsements are made in the name of an employer by an employee with respect to instruments payable to the employer and to which the employer has given responsibility to the employee. This exception adopts the principle that the risk of loss for fraudulent indorsements by employees who are entrusted with responsibility with respect to checks should fall on the employer rather than the bank that takes the check or pays it, if the bank was not negligent in the transaction. This provision is based on the belief that the employer is in a far better Imposition to avoid the loss by using care in choosing employees, in supervising them, and in adopting other measures to prevent forged instruments in the name of the employer. Cable Cast, 729 So.2d at 1167. See also 2003 Uniform Commercial Code Comments, LSA-R.S. 10:3-405. Another statutory exception is provided in LSA-R.S. 10:3-406(a), where a person is precluded from asserting a claim against the bank acting in good faith when conduct before funds are paid out on a forged instrument substantially contributed to the loss. See Marx, 713 So.2d at 1145-1146.

Louisiana Revised Statute 10:3-420(a)(iii) provides that an instrument is converted when it is taken by transfer from a person not entitled to enforce the instrument. The undisputed facts establish that Fidelity made payment by depositing plaintiffs’ corporate checks into Jordan’s personal checking account when Jordan was not entitled or authorized to enforce the checks. Fidelity does not contest that it converted the checks in question. The Fidelity employee that testified at trial, Warren L. Kron, candidly admitted that a bank officer such as himself should have approved all three of the third-party checks presented for deposit by Jordan, but only one check was approved. Kron also testified that he had not verified the indorsements or Jordan’s authority for the indorsements on any of the checks. Instead, he simply accepted Jordan’s representation that he was Dean’s partner. Kron agreed without hesitation that the deposits were a “total violation of acceptable bank practice” and that he had personally exercised poor judgment in his dealing with Jordan, who was a “very smooth talker” and a “very likable person.” Any appearance of Jordan’s authority came directly from Jordan himself and no employee of Fidelity questioned Jordan’s authority. It is well-established that the mere fact than an employee has [ ^managerial status or presents himself as being in charge of a company’s office or as a partner of a corporation does not entitle third persons to assume that the employee has authority to execute or indorse corporate checks. See Confederate Welding and Safety Supply, Inc. v. Bank of the Mid-South, 458 So.2d 1370, 1375 (La.App. 2 Cir.1984), writ denied, 462 So.2d 1264 (La.1985); Pargas, Inc. v. Taylor’s Estate, 416 So.2d 1358, 1362 (La.App. 3 Cir.1982). The expert testimony and Fidelity’s employee’s testimony support a finding that Fidelity’s actions fell below reasonable commercial standards of ordinary care in the banking industry.

Fidelity submits that LSA-R.S. 10:3-405(a)(3) precludes plaintiffs’ recovery in this case because Jordan was a “responsible employee” in that he had responsibility with respect to the forged instruments. Fidelity also argues that plaintiffs are precluded from recovery pursuant to LSA-R.S. 10:3-406, because of their negligent lack of internal controls that substantially contributed to Jordan’s ability to forge the indorsements on the corporate checks.

From a review of the record, we find LSA-R.S. 10:3-405 does not apply in this case. That provision states, in pertinent part:

(a) In this Section:
(2) “Fraudulent indorsement” means (i) in the case of an instrument payable to the employer, a forged in-dorsement purporting to be that of the employer,
(3) “Responsibility” with respect to instruments means authority (i) to sign or indorse instruments on behalf of the employer, (ii) to process instruments received by the employer for bookkeeping purposes, for deposit to an account, or for other disposition, (iii) |uto prepare or process instruments for issue in the name of the employer, (iv) to supply information determining the names or addresses of payees of instruments to be issued in the name of the employer, (v) to control the disposition of instruments to be issued in the name of the employer, or (vi) to act otherwise with respect to instruments in a responsible capacity. “Responsibility” does not include authority that merely allows an employee to have access to instruments or blank or incom-píete instrument forms that are being stored or transported or are part of incoming or outgoing mail, or similar access. (Emphasis supplied.)

The testimony at trial established that Jordan was not an employee of DCC, rather he was an employee of BDE and performed work for DCC under Dean’s supervision. While the evidence clearly established that Jordan made fraudulent indorsements on checks made payable to plaintiffs, representing his signature to be that of Dean or DCC, the evidence also revealed that Jordan was not entrusted with “responsibility” 'as defined by LSA-R.S. 10:3-405(3). He did not have authority to sign or indorse any checks on behalf of plaintiffs. Jordan did not have authority to process any received checks for bookkeeping purposes or to prepare or process any checks for Dean or any of Dean’s businesses. The evidence established that Jordan’s only duty with respect to corporate checks was to transport the deposit slips to and from the bank. Other employees of BDE always prepared the deposit slips and processed the checks that were received. Therefore, Jordan was not a “responsible” employee by definition. Jordan’s mere access to corporate checks when he occasionally directly handled mail for DCC and when he transported deposits to the bank for plaintiffs, did not |1fimake him have “responsibility” for the checks. We find this case to be factually distinguishable from our decision in Cable Cast, upon which Fidelity heavily relies, because the employee in that case was vested with authority to process checks received for deposit into the account used by her employer. Jordan did not have any such authority in this case.

Moreover, we are not persuaded by the argument that plaintiffs were negligent because they did not have better internal controls with regard to the reconciliation of vehicle titles with physical inventory and restrictive endorsements on all checks that were received. Kron’s admission of his failure to exercise ordinary care by failing to follow standard banking procedures and Fidelity’s own internal policies for deposits of corporate checks with multiple indorsements into a personal account, precludes Fidelity from trying to shift full responsibility for the loss to plaintiffs. See Cable Cast, 729 So.2d at 1168; Confederate Welding, 458 So.2d at 1375-1376. See also 2003 Uniform Commercial Code Comments, LSA-R.S. 10:3-405 and LSA-R.S. 10:3-406.

We find the record supports the trial court’s finding that Jordan was not placed in a position that was authorized to handle plaintiffs’ checks. We find no manifest error in the trial court’s implicit finding that plaintiffs’ business practices did not contribute to Jordan’s ability to steal the checks, forge indorsements on the checks, and present them for deposit into his Impersonal checking account at Fidelity. We also find that Fidelity failed to establish that plaintiffs’ internal controls fell below the standard of ordinary care. In fact, Fidelity did not compare any other relevant businesses to that of DCC to show what reasonable commercial standards prevailed, as provided by LSA-R.S. 10:3 — 103(a)(7). The evidence revealed that plaintiffs had controls in place with regard to receipt of mail by designated employees, the processing of checks, a general accounting ledger for sales of vehicles, and segregated access to titles and physical inventory. Fidelity failed to establish that plaintiffs’ failure to have a practice in place to reconcile the vehicle titles with the physical inventory on a regular basis was below “reasonable commercial standards.” The lack of evidence of any previous fraud or theft in Dean’s businesses also reasonably supports the conclusion that plaintiffs’ internal controls were sufficient. Likewise, considering the small size of Dean’s private vehicle collection and the segregation of duties pertaining to mail, accounting, titles, and inventory, we find that plaintiffs exercised “ordinary care.”

|17FinaIIy, we conclude that regardless of whether plaintiffs could have employed more rigorous internal auditing controls, Fidelity simply cannot shift responsibility for this loss. Fidelity completely failed to exercise ordinary care by accepting the forged corporate checks for deposit into Jordan’s personal account without following reasonable banking standards and its own internal policies of verifying the authenticity of and authority of the indorsements. The primary obligation to determine whether there is a forged in-dorsement is rightly placed in this case on Fidelity, whose business is banking. See Pargas, 416 So.2d at 1362-1363. In this case, we believe it was more reasonable for plaintiffs to assume that Jordan was honest than it was for Fidelity to assume that Jordan had the authority to indorse corporate checks without requiring verification of that authority.

For these reasons, we affirm the trial court’s judgment in favor of plaintiffs, Bob G. Dean, Jr. and Dean Classic Cars, L.L.C. Appeal costs are assessed equally against appellants, Fidelity Bank and Trust Company and Chubb Group of Insurance Companies.

AFFIRMED.

      . Jordan’s embezzlement scheme encompassed far more than three checks, but we focus on the three checks that resulted in this trial court judgment rendered against Fidelity. The three checks, totaling $299,424.70 are as follows: (1) June 3, 2003 deposit of a $20,000.00 check made payable to DCC; (2) July 8, 2003 deposit of a $1,424.70 check made payable to DCC; and (3) December 19, 2003 deposit of a $278,000.00 check made payable to Dean and DCC.

      . According lo Dean and BDE’s chief financial officer, Jordan's story was believable and reasonable because title problems were common for purchases of antique and exotic vehicles.

      . The lawsuit brought by plaintiffs also involved multiple claims regarding the Fidelity loans obtained by Jordan pursuant to fraudulent titles on DCC vehicles, including a claim against the State of Louisiana, through the Department of Public Safety, Office of Motor Vehicles. However, the only claims left unresolved at the time of trial involved Fidelity as the sole defendant on the three checks fraudulently indorsed by Jordan and deposited in his personal checking account at Fidelity, and the subrogation claim of Fidelity’s insurer, Chubb Group of Insurance Companies.

      .Jordan gave his testimony in a deposition taken at the federal prison where he was incarcerated for his embezzlement crimes. The deposition testimony was offered in lieu of live testimony at trial. Jordan testified that early on in his employment for BDE, he sometimes signed other names to checks at their direction; however, this statement was not corroborated by any other witness’ testimony or evidence. Additionally, the time-frame for which Jordan alleged he had signed other names to checks was not relevant to the checks at issue.

      . In his deposition testimony, Jordan testified that he had not discussed his gambling addiction with Dean, but that Dean was aware that he frequented the casinos. Dean denied any knowledge of Jordan’s gambling problems.

      . We note that we have carefully reviewed Jordan’s full deposition testimony, which was proffered by Fidelity and compared it to the version of Jordan's deposition that was admitted into evidence. We do not find that the trial court abused its great discretion in controlling the admission of this deposition testimony. Most of what Jordan testified to in his deposition was covered by other witness’ live testimony at trial. Therefore, we find no merit to Fidelity’s assignment of error regarding the trial court’s exclusion of certain portions of the deposition that primarily consisted of attorney colloquy. We also note that the proffered deposition had missing pages throughout as well.

      . In this regard, we also find that the trial court did not abuse its great discretion in admitting the rebuttal evidence offered by plaintiffs’ expert, Staats. Rebuttal evidence is to be confined to new matters adduced by the defense and is not to be a repetition of the plaintiff's case. Capel v. Langford, 98-1517, (La.App. 3 Cir. 4/28/99), 734 So.2d 835, 847, writs denied, 99-2080, 99-2086 (La. 10/29/99), 749 So.2d 637, 638; Combs v. Hartford Ins. Co., 544 So.2d 583, 588 (La.App. 1 Cir.), writ denied. 550 So.2d 630 (La.1989). The matter of admission of rebuttal evidence is largely within the discretion of the trial court. Id.; State ex reí. Guste v. Nicholls College Foundation, 592 So.2d 419, 422 (La.App. 1 Cir. 1991), writ denied, 593 So.2d 651 (La.1992); LSA-C.E. 611 E. Accordingly, Fidelity’s assignment of error regarding Staats' rebuttal testimony is without merit.

      . Fidelity's expert made general references to the handling of titles, accounts receivable, and inventory for large car dealerships that sell to the general public, but not any private car collection businesses. Louisiana Revised Statutes 10:3-406(c) places the burden of proving that plaintiffs failed to exercise ordinary care on Fidelity. "Ordinary care” means observance of reasonable commercial standards, prevailing in the area in which the company is located, with respect to the business in which the company is engaged. LSA-R.S. 10:3 — 103(a)(7); Med Data, 898 So.2d at 490-491.

      . Lastly, we note that we find no merit to Fidelity's assignment of error alleging that the trial court’s written judgment did not comport with its reasons. A trial court's written reasons for judgment form no part of the judgment itself, and where there is a conflict between the judgment and the written reasons, the judgment controls. Babin v. Bum-side Terminal, Greater Baton Rouge Port Com’n, 577 So.2d 90, 98 (La.App. 1 Cir. 1990). We disagree with Fidelity’s assertion that there is a conflict. The trial court’s judgment denied any relief for Fidelity, and its reasons accurately reflect that decision.


author: GUIDRY, J. WHIPPLE, J.,

text:
    Christopher TERITO v. WALL-VAUGHN MOTORS, INC.
    No. 2007 CA 0627.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2007.
    Peter T. Dudley, Baton Rouge, LA, for Plaintiff-Appellee, Christopher Terito.
    Karl J. Koch, Baton Rouge, LA, for Defendant-Appellant, Wall-Vaughn Motors, Inc.
    Before WHIPPLE, GUIDRY, and HUGHES, JJ.
   GUIDRY, J.

| ¡An employer appeals a judgment awarding a former employee a sum of money for work performed during the time the employee was absent from work to have back surgery performed. Having reviewed the law and evidence governing this matter, we reverse.

FACTS AND PROCEDURAL HISTORY

In January 2004, Wall-Vaughn Motors, Inc. began operating a car dealership in Hammond, Louisiana called Hammond Suzuki. Christopher Terito was hired as the finance and insurance manager for the dealership. Shortly after commencing work with the company, Terito disclosed that he needed back surgery. On April 26, 2004, the surgery was performed. In June 2004, Terito returned to work, but after a couple of days resigned from his position. Following his resignation, Terito made demand on Wall-Vaughn Motors, Inc. for $3,100.00 in unpaid vages allegedly “agreed to be paid by [Wall-Vaughn Motors, Inc.] for the services [Terito] performed on behalf of Wall-Vaughn Motors, Inc., during the [months] of May 2004 and June 2004.” Wall-Vaughn Motors, Inc. denied owing Terito any unpaid wages.

On January 20, 2005, Terito filed a petition for damages against Wall-Vaughn Motors, Inc. seeking $8,100.00 in wages and further seeking penalty wages and attorney fees pursuant to La. R.S. 23:631 and 632. Wall-Vaughn Motors, Inc. answered the petition denying the alleged debt, and the matter went to trial. Following the trial on the merits, the trial court rendered judgment in favor of Terito awarding him the sum of $880.00 for work performed by him while he was absent from work. Wall-Vaughn Motors, Inc. appeals the judgment, asserting that lathe trial court erred in rendering judgment in favor of Terito because there was no evidence introduced proving that a person with authority to bind the company obligated the company to pay Terito.

DISCUSSION

A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal. La. C.C. art. 2989. The question of mandate/agency is basically a factual determination. The essential test to determine whether implied agency exists is whether the principal has the right to control the conduct of the agent and whether the agent has the right and authority to represent or bind the principal. Lewis v. Succession of Johnson, 05-1192, p. 16 (La.4/4/06), 925 So.2d 1172, 1182.

In Barrilleaux v. Franklin Foundation Hospital, 96-0343, pp. 6-7 (La.App. 1st Cir.11/8/96), 683 So.2d 348, 354, writ denied, 96-2885 (La.1/24/97), 686 So.2d 864 (citations omitted) (emphasis added), this court succinctly presented the principles governing a determination of apparent agency:

Apparent agency arises when the principal has acted so as to give an innocent third party a reasonable belief that the agent had the authority to act for the principal, and the third party reasonably relies on the manifested authority of the agent. Apparent agency is established by the words and conduct of the parties and the circumstances of the case. An agency relationship may be created even though there is no intent to do so.
An agency relationship is never presumed; it must be clearly established. The burden of proving apparent authority is on the party seeking to bind the principal. A third party may not blindly rely on the assertions of an agent, but has a duty to determine, at his peril, whether the agency purportedly granted by the principal permits the proposed act by the agent. One must look from the viewpoint of the third party to determine whether an apparent agency has been created.

At trial, Terito testified that prior to having back surgery, he asked Michael D. Vaughn, the dealer principal and part owner of Wall-Vaughn Motors, Inc., if 14there was any work he could do from home, and Vaughn told him that he could not work from home and that the company would not pay him while he was absent from work for his surgery. Despite Vaughn’s denial of Terito’s request to work from home, Terito testified that “[m]y understanding was that once I started being contacted from work, I talked to my boss; and I was explained (sic) that I would be taken care of, and that my insurance would be taken care of while I was out.” Terito testified that he understood that being “taken care of’ meant that he would receive $2,400.00, plus insurance, based on a subsequent conversation with the dealership comptroller/accountant; yet he acknowledged that both his boss and the comptroller/accountant worked under Vaughn.

Vaughn likewise testified that he told Terito that he would not be paid while absent from work for back surgery. Vaughn testified that at the dealership, only he and Garry Lewis, the senior partner and the majority owner of the dealership, had authority to decide whether Teri-to would be paid during his absence. He explained that when Terito was hired, he allowed Kemp to make the decision to hire him; however, Vaughn said that while Kemp negotiated directly with Terito about Terito’s salary, he, Vaughn, actually made the final decision about what salary to offer Terito. As Vaughn stated, Kemp simply “delivered the message.”

As for the circumstances surrounding the work performed by Terito while absent from the dealership for his back surgery, Vaughn stated that he knew that | r,salespeople from the dealership were contacting Terito at home following his surgery to see how Terito was doing, but he said he did not know they were talking to him about business deals. As Vaughn explained, “I was paying Jeff to handle that job, and I assumed it was being taken care of.” Moreover, a medical excuse entitled “Work Status Report” was introduced into evidence in which it is noted that Terito was “unable to work pending treatment” and that he could perform “zero” work until he was released from surgery.

Based on this evidence, we find the trial court erred in awarding Terito compensation for the work he performed while he was absent from work for his back surgery. Vaughn, the owner and principal authority at the dealership, expressly informed Terito that he could neither work nor be compensated while he was absent from work for his back surgery. Although the actions of Terito’s immediate supervisor and co-workers (i.e., requesting Terito to perform some employment duties and assuring him that he would be compensated) were contrary to the express declaration of Vaughn, there was no evidence presented to show that any of those persons had authority to countermand Vaughn’s prior directive. Thus, the trial court erred in awarding Terito compensation for the work performed under such circumstances.

CONCLUSION

Based on the foregoing discussion, we reverse the judgment of the trial court. All costs of this appeal are cast to the appellee, Christopher Terito.

REVERSED.

WHIPPLE, J., concurs, for reasons assigned.

WHIPPLE, J.,

concurring.

hln the instant case, the trial court un-disputedly found that Terito had performed some work from home while absent from the dealership for his back surgery. Nonetheless, Vaughn testified, and Terito acknowledged, that Vaughn had informed him that the company would not pay him while he was absent from work. In my view, given the absence of any testimony from the employees who allegedly told Terito that he would be compensated, I must agree with the majority’s ultimate conclusion that Terito failed to satisfy his burden of proof.

      . Although a medical excuse introduced into evidence and marked as "D-l” states that Terito's surgery was "scheduled for 5-26-04," the number "5” clearly appears to have been superimposed over the number "4" in the date, and based on other evidence, including Terito's testimony, it was established that the surgery was performed on April 26, 2004.

      . On appeal, a trial court’s determination as to whether an apparent agency exists should not be reversed absent a finding of manifest error; however, it is clear from the trial court's reasons for judgment that its decision was not premised on a finding of apparent agency, which it expressly found had not been established.

      . Terito considered the general manager for the dealership at that time, Brett Kemp, to be his "boss,” and he was the person to whom Terito spoke. Terito further stated that he told Kemp "that I was being called and that I expected if I was going to have to work from my house and take care of my office — I expected to be paid. And he informed me that it would be handled and worked out, and that I would be compensated for doing my job because L.D.S. could not get a temporary to replace me while I was out of work.”

      . Specifically, Vaughn explained "I let [Kemp] pick who he wanted as an F & I person, because I knew they would be married and coupled closely together. There was (sic) two guys he was looking at. He bounced both of them off of me asked me what I thought, which one did I want him to pick, which one did I want to pick. And I said well, [Kemp], I'm going to let you decide which F & I person you want to hire[.]”

      . Vaughn had previously testified on direct examination that he had Jeff Xambrino, "one of our better salespeople" from St. Louis, fill Terito's place as finance and insurance manager.