author: STEWART, J.

text:
    Janice Caraway STROUD, Plaintiff-Appellant v. Gregory Eugene STROUD, Defendant-Appellee.
    No. 43,003-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2007.

      Smith & Jacobs by Edward Charles Jacobs, Springhill, for Appellant.
    Kitchens, Benton, Kitchens & Black, by Paul Edward Kitchens, Minden, for Appel-lee.
    Before WILLIAMS, STEWART and DREW, JJ.
   STEWART, J.

| -, Janice Caraway Stroud (“Janice”) appeals a judgment modifying a stipulated joint custody agreement and naming her ex-husband, Gregory Eugene Stroud (“Gregory”), the domiciliary parent of the parties’ son. Because the evidence does not show that a material change in circumstances occurred or that modification would be in the child’s best interest, we reverse the trial court’s judgment and reinstate the prior joint custody plan.

FACTS

Since the parties divorced in 2000, Janice has been the domiciliary parent of their minor son, Gregory Ryan Stroud (“Ryan”), pursuant to a stipulated joint custody agreement and subsequent modifications. The first agreement is evidenced by a joint custody implementation plan that was signed by the trial court on May 18, 2000.

On July 28, 2000, Janice filed a rule to modify Gregory’s visitation after he was arrested for a DUI, which allegedly occurred while Ryan, then age five, was in the vehicle with him. We note this appears to have been a third offense DUI that was amended down to a second offense charge. Pursuant to the parties’ stipulations, the trial court rendered a judgment modifying Gregory’s visitation privileges, prohibiting him from driving any vehicle in which the child is a passenger, and requiring that visitation be conducted in the presence of the paternal grandmother, Sherry Bagwell. Gregory lived with his mother and step-father.

On February 7, 2001, Janice filed a petition seeking sole custody of Ryan. Janice alleged that she had remarried, was joining the U.S. Army, and would likely be stationed outside of Louisiana. She also based her |aclaim on Gregory’s criminal history, which allegedly included additional arrests in November 2000, for simple battery of a police officer and possession of marijuana; he pled guilty to both. In response, Gregory filed a reconventional demand seeking temporary custody of Ryan during Janice’s military training with additional visitation time thereafter. Pursuant to the parties’ stipulations, the trial court rendered a judgment maintaining joint custody but granting temporary custody of Ryan to Sherry Bagwell during Janice’s military training and increasing Gregory’s visitation.

While in the Army, Janice lived in Texas with Ryan. After receiving an honorable discharge, she returned to Louisiana. In the latter part of 2003, both parties filed rules for contempt regarding a disagreement over visitation. Considering the parties’ stipulations, the trial court rendered a judgment on January 9, 2004, continuing joint custody with Janice remaining as the domiciliary parent. The judgment specified the periods of visitation for Gregory and rescinded the requirement for supervised visitation and the prohibition against Gregory driving a vehicle with Ryan in it.

On August 11, 2006, Gregory filed a petition for change of custody. He alleged that Janice had divorced her second husband, was living with another man, and had moved with Ryan at least seven times over the years. He further alleged that Ryan now desired to live with him and attend school near Sibley. Gregory also alleged that Ryan “is terrified of the threats and coercion he would receive while with his Mother, and desires ... that the court permit him to remain living together with his Father” pending a | shearing on the requested change in custody. Gregory asked to be named primary domiciliary parent of Ryan subject to visitation by Janice. Attached to the petition was an order providing that Ryan be allowed to continue living with his father and enroll in school pending a hearing. The trial court signed this ex parte order effecting a change in the custody of Ryan on August 11, 2006.

In opposing Gregory’s petition to change custody, Janice requested sole custody and again raised Gregory’s history of DUI offenses and the fact that he has no residence of his own as reasons why he should not be named the domiciliary parent. She claimed that Ryan’s desire to live with his father was the result of “bullying” and “constant harassment” by him. She asked the court to appoint a mental health expert to examine the parties and make a custody recommendation. Also, she alleged that the trial court had improperly granted the ex parte custody order and demanded return of Ryan to her custody as required by the agreement of January 2004. A judge signed an order restoring custody to Janice in accordance with the parties’ custody agreement, but the order was rescinded due to the ongoing custody dispute having already been assigned to another division.

In the months preceding the hearing, the trial court rendered three interim orders maintaining Ryan in the physical custody of his father with weekend visitations for his mother. A trial was not conducted until May 29, 2007. Thus, Ryan completed the school year while living with his father.

After hearing the testimony of Ryan, Gregory, and Janice, the trial court ruled in Gregory’s favor. Although the trial judge found Janice to be a 14good mother who had done nothing wrong and who had provided an adequate environment for Ryan, he concluded that the La. C.C. art. 134 factors were “more or less equal” between the parents. Therefore, the trial judge gave the child’s preference to live with his father significant weight. He also considered the fact that Ryan had lived with his father during the last year in “a stable, adequate environment” as grounds for granting domiciliary custody to Gregory. To address Gregory’s “drinking problem,” the trial judge required that he place an ignition interlock device on any vehicle he drives and that he refrain from drinking or risk losing Ryan. A judgment setting forth a joint custody implementation plan in accordance with the trial court’s ruling was signed on July 24, 2007. Janice’s appeal followed.

DISCUSSION

In arguing for reversal of the trial court’s judgment, Janice asserts that Gregory did not carry the burden of proof necessary to modify the stipulated joint custody arrangement that had been in effect between them. She also asserts that the trial court erred in basing its decision on the child’s desire to live with his father and the fact that he did so for the school year preceding the trial as a result of the court’s interim orders. Finally, she argues that the trial court erred in not considering the expert report.

As in every child custody determination, the primary consideration is the best interest of the child. La. C.C. art. 131; Adams v. Adams, 39,424 (La.App.2d Cir.4/6/05), 899 So.2d 726. When, as here, the parties consent to a custodial arrangement or agree to a stipulated judgment, the | (¡party seeking modification must prove both that there has been a material change in circumstances since the original custody decree, and that the proposed modification is in the best interest of the child. Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731; Adams v. Adams, supra.

The court is to consider all relevant factors in determining the best interest of the child. La. C.C. art. 134. Factors that may be considered are set forth in Article 134, but the court is not bound to make a mechanical evaluation of each. Rather, a custody dispute must be decided in light of its peculiar set of facts and the relationships involved in order to reach a decision that is in the best interest of the child. Wages v. Wages, 39,819 (La.App. 2d Cir.3/24/05), 899 So.2d 662. To begin, we will review the facts as established by the testimony.

Ryan’s desire to live with his father was the only change in circumstance referred to by the trial court. Ryan, who was almost 13 at the time of trial, was asked to explain his reasons for wanting to live with his father. He referred to the friends he made at school and church, his recent baptism, his involvement in baseball, and his desire to play on the school’s team. He described the home as a “nice place to live” with “a lot of room to do things.” Ryan and Gregory testified that Ryan’s grades and attitude about school were better since living with his father. However, the evidence showed no significant academic change and established that his grade point average was slightly higher when he lived with his mother. On cross-examination, Ryan explained that his mother moved a lot when in the military but that she now stays home after having had a baby. Ryan | admitted that he could attend church on weekends with his father and play sports at school where his mother lives if she regained domiciliary custody.

Gregory testified that he filed the petition to change custody after Ryan said that he wanted to stay with him. He denied bullying or coercing Ryan into this decision. They live with Gregory’s mother and stepfather. Gregory said that Ryan is enjoying being a kid. He plays with friends and participates in sports and church activities. Ryan knows about his father’s alcohol problems. Gregory admitted that he received more than one DUI citation. He claims that he has not wanted alcohol since Ryan has been living with him and that he will not have alcohol around Ryan. Gregory completed his probation and counseling, and he now “feels comfortable with it.” However, he has not attended AA because of ball season; he claims he will get back to the meetings when ball season ends.

On cross-examination, Gregory denied that he is still drinking, and he testified that he would regain his license on July 22, 2007. Even though he lives with his mother and stepfather, Gregory asserted that he is financially able to support himself and Ryan. He admitted that Janice had never done anything to harm Ryan, that Ryan had never said anything bad about her, and that she is a good mother.

Janice testified about her moves over the years since her divorce from Gregory. She had recently married her third husband, William Wincliff, had a baby, and is now a homemaker. Janice stated that she wants Ryan to be a part of her family and to be happy. While she would like for Ryan to have a good relationship with his father, she wants him to be safe, and she does not|7want him to become an alcoholic or drug abuser. She admitted that she does not communicate well with Gregory, but she claimed their relationship would be better if his mother did not interfere. Janice testified that during the year Ryan lived with Gregory, she “slacked off’ on going to church due to being pregnant and giving birth, but she stated that Ryan attends church with her mother and cousins when he visits on weekends. Although she was told about Ryan’s baptism, she did not attend. She also did not attend some of his sports events due to having a newborn and living 45 miles away.

On cross-examination, she testified that she currently lives in the Springhill and Sarepta area where she grew up and where Ryan has family and friends. She stated that Ryan could play sports at school in Springhill. She expressed the belief that Gregory still drinks and that he is unable to function on his own or raise a child. She referred to his addiction and past behavior, including multiple DUI’s and one obtained while Ryan was with him, as reasons for her concern about Ryan living with Gregory.

The report of Sandi Davis, an expert appointed by the trial court, was admitted into evidence. Davis did not testify, and both parties claimed that she misinterpreted things they said to her. Her report consists of detailed reviews of sessions with Ryan, Janice, Gregory, and Sherry Bagwell, along with findings and recommendations. Davis concluded that Gregory should not be named the domiciliary parent. She cited his dependency on his mother and his history, which included a period of supervised visitation, as reasons. Davis also concluded that Sherry, not Gregory, had been Ryan’s | ¿primary caregiver. She found no negativity in Janice’s household or her parental ability.

Janice argues that the trial court erred in not considering Davis’s report. The trial judge stated that he had probably read the report before trial and that the parties believed Davis had not reached any strong conclusion. Davis was not called as a witness by either party. When Janice’s counsel argued to the court that Davis presented two options for custodial arrangements but concluded that Gregory should not be designated domiciliary parent, the trial judge stated that he was an expert as well due to his years on the bench and that he did not give much credit to “these allegations that she’s made in her report about she thinks this and she thinks that.” After weighing and evaluating expert and lay testimony, the trial court is free to accept or reject the expert’s opinion and may substitute his common sense and judgment when warranted by the record as whole. Warlick v. Warlick, 27,389 (La. App. 2d Cir.9/29/95), 661 So.2d 706; Goodwin v. Goodwin, 618 So.2d 579 (La.App. 2d Cir.1993), writ denied, 623 So.2d 1340 (La. 1993). In this case, the record as a whole supports Davis’s conclusion that Gregory should not be the domiciliary parent.

In his petition, Gregory alleged Ryan’s desire to live with him as well as Janice’s divorce, her living with another man, and her having moved seven times over the years with Ryan as grounds for modification. At the time of trial, Janice had remarried and given birth to Ryan’s half-brother. While the various moves over the years, as well as Janice’s new marriage and child, were changes that had occurred, they were not shown to be [¡¡material changes affecting Ryan’s welfare. The trial court found and the record establishes that Janice provided an adequate environment for Ryan. Therefore, the alleged changes do not justify a modification of custody.

The only change in circumstance referred to by the trial court was Ryan’s preference to live with his father. We have observed that a child’s preference to live with a particular parent is not by itself sufficient to justify a change in custody. Lunsford v. Lunsford, 545 So.2d 1279 (La. App. 2d Cir.1989). In Lunsford, supra, this court reversed the trial court’s modification of joint custody in favor of the father upon finding that the factors underlying the children’s preference to live with their father did not justify a change in custody absent a showing of inadequacy in the environment provided by the mother. The factors included the children’s love and affection for their father and stepmother, as well as their father’s larger home and greater financial resources.

Gregory cites Wages, supra, as support for his argument that the trial court did not err in giving significant consideration to Ryan’s desire to live with his father. In Wages, supra, the child was 16 and had asked his mother for the opportunity to live with his father during his last two years before college. The mother refused the request and litigation ensued. The trial court applied the burden of proof for modification of considered decrees as set forth in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), and concluded that the father did not overcome the burden. On appeal, this court concluded that the Ber-geron burden did not apply and reversed in favor of the father under the less stringent burden of proof for stipulated |¡ ¡¡judgments. The opinion makes clear that at issue was the preference of a “mature and grounded teenager,” who expressed an “adamant and convincing desire” to live with his father while finishing his last two years of high school. Given that the factors of La. C.C. art. 134 were equally balanced between the parents, this court found the young man’s preference to be entitled to great weight under the specific facts presented.

Although Ryan has expressed the preference to live with his father, the record does not show him to be of an age or level of maturity at which his choice should be controlling, particularly considering there was no evidence that his mother provided an inadequate environment for him. At the time of trial, Ryan was still 12, but soon to turn 13. His main reasons for wanting to continue living with his father were friends, the school and church he attended, and sports. These are not the considered reasons of mature teenager who wishes to spend time with his father before leaving home for college. While friends, church, and extracurricular activities are important to a child, they are not legally sufficient to justify a change in custody in this case where other significant concerns exist and where the custodial parent has provided a suitable home for the child.

The record shows that Gregory has a troubling history of alcohol abuse and related criminal offenses. Although he testified that he has not had any alcohol since Ryan has lived with him, his testimony that he has not attended AA due to ball season and his claim that he now feels comfortable suggests that he does not take his drinking problem seriously. The trial court’s judgment, which prohibits Gregory from drinking and requires the | ^installation of an ignition interlock device, also shows some naivete "with regard to Gregory’s alcoholism and its potential impact on Ryan. Gregory has not been on his own since the divorce. Although he was gainfully employed at the time of trial and able to provide a home for Ryan with his parents, Gregory’s living situation and history raise concerns about his ability to care for Ryan on his own. The record suggests that much of Ryan’s care is provided by his grandparents.

The trial court referred to the fact that Ryan had been in a stable environment for the last year while living with his father. Janice argues that this should not have been considered by the trial court, because Gregory’s custody was the result of non-prejudicial interim orders. Any relevant factor affecting the child should be considered in making a custody determination. This would include Ryan’s living situation prior to trial. However, the trial court’s initial rendering of the ex parte interim order on August 11, 2006, allowing Ryan to remain in his father’s custody and enroll in school contrary to the parties’ joint custody agreement, raises concerns about how this matter was handled.

Ex parte orders of temporary custody are authorized under La. C.C.P. art. 3945(B) only when the following requirements are satisfied:

(1) It clearly appears from specific facts shown by a verified petition or by supporting affidavit that immediate and irreparable injury will result to the child before the adverse party or his attorney can be heard in opposition.
(2) The applicant’s attorney certifies to the court, in writing, either:
(a) The efforts which have been made to give the adverse party reasonable notice of the date and time such order is being presented to the court.
172(b) The reasons supporting his claim that notice should not be required.

Thus, issuance of an ex parte temporary custody order requires specific and verified allegations of immediate and irreparable injury to the child. Trettin v. Trettin, 37,260 (La.App. 2d Cir.3/17/03), 839 So.2d 1272. An ex parte order that does not comply with the provisions of La. C.C.P. art. 3945 is null and void. La. C.C.P. art. 3945(E). See also Tabuchi v. Lingo 588 So.2d 795 (La.App. 2d Cir.1991), stating, “It is well-settled that an ex parte custody order granted by a trial judge without notice, service of pleadings, and without affording a hearing to the parent having custody of the child is null and without effect.”

The trial court’s ex parte interim order of custody signed on August 11, 2006, is not in compliance with the provisions of La. C.C.P. art. 3945. There were no verified, specific facts showing that immediate and irreparable injury would result to Ryan before a hearing, nor did Gregory’s attorney certify that any efforts were made to give Janice notice of the date and time the order was to be presented to the court or reasons that such notice should not be required. Thus, the trial court erred in granting the ex parte temporary custody order. The trial court’s actions needlessly upset the parties’ custody agreement and further disrupted Ryan’s life by allowing a change in custody that was not warranted under the circumstances. Court’s must abide by the appropriate procedures and laws when presiding over custody disputes in order to avoid unnecessary changes in custody and to | isensure that only the best interests of the children caught in the middle are served.

We recognize that the trial court’s decision in a child custody dispute is entitled to great weight and not to be disturbed on appeal unless an abuse of discretion is clearly shown. Goodwin, supra; Lunsford, supra. However, after closely reviewing the record, we find that the trial court abused its discretion in modifying the parties’ stipulated joint custody arrangement without the burden of proof having been met. Gregory did not prove either a material change in circumstances since the original stipulated judgment or that the proposed modification would be in Ryan’s best interest. Accordingly, we reverse the trial court’s judgment and reinstate the joint custody implementation plan rendered in open court on December 9, 2003, and signed January 9, 2004, to take effect as of the date of this opinion with the parties to abide by the following Christmas visitation schedule provided in the plan:

CHRISTMAS: The Christmas holiday will be divided into two (2) periods, with Period “A” beginning at 6:00 p.m. on the date on which school is dismissed for the Christmas holiday and extending until 2:00 p.m. on December 25 and Period “B” beginning at 2:00 p.m. on December 25 and extending until 6:00 p.m. on the day before school again commences. MS. DAVIS shall have the custody of RYAN during Period “A” in the year 2003 and every odd-numbered year thereafter, with MR. STROUD having Period “B” in the year 2003 and every odd-numbered year thereafter, with the periods rotated between the parties each year thereafter.

This means that Janice will have custody of Ryan for the first part of the 2007 Christmas holiday (Period “A”) and that Gregory will have Ryan for the second part of the holiday (Period “B”) until 6:00 p.m. on January 6, 2008, the day before school commences. At that time, Janice will regain | udomiciliary custody of Ryan and the plan agreed to on December 9, 2003, will continue in effect.

CONCLUSION

For the reasons expressed, the trial court’s judgment is reversed and the parties’ joint custody implementation plan is reinstated as set forth above. Costs of appeal are assessed to Gregory Eugene Stroud, appellee.

REVERSED.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    Catherine EAKIN v. Samuel EAKIN.
    No. 07-693.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 2007.
    James B. Reichman, Attorney at Law, Alexandria, LA, for Defendant-Appellant, Hoffman Consulting, LLC.
    Richard A. Rozanski, Stephen D. Wheel-is, Ryan C. Robinson, Wheelis & Rozanski, Alexandria, LA, for Intervenor-Appellant, Red River Bank.
    J. Ogden Middleton, II, Attorney at Law, Alexandria, LA, for Plaintiff-Appel-lee, Catherine Gresham, formerly known as Catherine Eakin.
    Ricky L. Sooter, Stephanie N. Pres-tridge, Provosty, Sadler, DeLaunay, Fior-enza & Sobel, Alexandria, LA, for Defendant-Appellee, William Earl Hilton, as Sheriff of Rapides Parish.

      Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

[¶ Defendant, Hoffman Consulting, L.L.C. (Hoffman Consulting), appeals the judgment of the trial court dismissing Hoffman Consulting’s Petition for Temporary Restraining Order, Preliminary and Permanent Injunction. Intervenor, Red River Bank (Red River), appeals the dismissal of its intervention. For the following reasons, we affirm the judgment of the trial.

FACTS

The essential facts of this case are undisputed. On November 18, 1997, Samuel Eakin and Catherine Eakin, who were married at the time, executed two promissory notes (the Hibernia notes): one in the amount of $196,200.00 and another in the amount of $70,400.00, both payable to Hibernia National Bank (Hibernia) as lender. At the same time, the Eakins executed two Multiple Indebtedness Mortgages in favor of Hiberia in the same amounts as the notes and secured by the Eakins’ community domicile, located at 1910 White Street, and other property. The Hibernia notes contain agreements that the debt would be solidary or joint and several as between Samuel and Catherine.

The Eakins divorced in 1999 and remained co-owners of 1910 White Street. On April 16, 2001, a Grant Parish court granted Catherine a judgment in the amount of $375,000.00 against Samuel. That judgment was recorded in Rapides Parish on April 8, 2005, and again on March 15, 2006. After his divorce from Catherine, Samuel was remarried to Joan Hoffman. Joan is the sole managing member of Hoffman Consulting, which she

operated as a sole proprietorship for about five years.

On March 5, 2002, Samuel sent a letter to James W. Thibodeaux of Farmer’s Bank and Trust of Cheneyville (Farmer’s), in which he stated that:

[ ¡.Per our recent discussion, I would like to request a loan for $250,000.00, interest only for a period of two years. The purpose of the loan is to purchase notes from Hibernia Bank which secure my residence and adjacent apartments on White Street in Alexandria. It is currently my intent to foreclose on the notes in order to sell the property. This is an unfortunate necessity due to the extenuating circumstances of my divorce three years ago.
.... The property will either be put up for sale and refinanced during the upcoming year with proceeds to pay off the loan.

In April 2002, Hoffman Consulting filed Article of Incorporation qualifying to do business in Louisiana. On June 3, 2002, Samuel executed a promissory note borrowing $250,000.000 from Farmer’s (the Farmer’s note). The Farmer’s note bears the signature of Samuel Eakin and no notation that he is signing on behalf of any other person or business. He also signed as guarantor of the Farmer’s note. Hoffman Consulting asserts that Samuel acted as its agent in executing the Farmer’s note and pledging the Hibernia notes as security. Farmer’s wire transferred funds in the amount required to either payout or purchase the Hibernia notes.

On July 3, 2002, each of the Hibernia notes were assigned to Hoffman Consulting in a document signed by Joan on behalf of Hoffman Consulting. The following language was placed on each of the Hibernia notes:

Paid to the Order of Hoffman Consulting, LLC, without warranty or recourse, not even for return of the purchase price.
Hibernia National Bank By:
s/Robert Stuart, Jr.
Date: July 3, 2002

The notes were further stamped “ ‘Ne Varietur’ for identification with Act of En-dorsent executed before me this 3 day of July 2002 s/Marcia Olson.” Joan obtained the original Hibernia notes and delivered them to Farmer’s as security for pthe Farmer’s note. On December 10, 2002, Samuel executed a Dation en Paiement conveying his undivided half interest in the White Street property to Hoffman Consulting. That act was not recorded until January 25, 2006.

In November 2003, Farmer’s went into FDIC receivership, and the FDIC assigned the Eakin debt to ResComm Holdings No. 2, LLC (Rescomm).

On December 30, 2004, Samuel, acting on behalf of Hoffman Consulting, borrowed $225,000.00 from Red River for payment of the Farmer’s note, by then held by ResComm. The two original Hibernia notes, secured by the White Street Property, were again pledged as security. There does not appear to be any dispute that this loan was taken on behalf of Hoffman Consulting.

In March 2006, Catherine had her Grant Parish judgment made executory in Rap-ides Parish. In May 2006, she began proceedings to seize the White Street Property-

On July 7, 2006, Capital One, N.A. (Capital One), successor to Hibernia, executed a Request for Cancellation of the Mortgage or Privilege and Release by Licensed Financial Institution in connection with the Hibernia mortgages after Catherine informed a loan officer at Capital One that the Hibernia notes had been extinguished by payment. That document was filed into the public record on July 11, 2006. On July 12, 2006, Hoffman Consulting filed a Petition for Temporary Restraining Order, Preliminary and Permanent Injunction seeking to stop the seizure. On July 14, 2006, Capital One, without requesting a contradictory hearing on the matter, filed a correction reinstating the Hibernia mortgages, alleging that they were cancelled in error. In August 2006, Red River Bank filed an intervention in the proceeding asking for a ranking of the creditor’s claims.

14After a hearing, the trial court rendered judgment in favor of Catherine. It found that Samuel executed the Farmer’s note as an individual rather than as the representative of Hoffman Consulting. It concluded that Samuel had paid off the Hibernia notes, and, since he and Catherine were solidary obligors, his performance relieved Catherine of the debt to Hibernia. As a result, the court found that the Dation en Paiement of the White Street Property to Hoffman Consulting was null for failure of cause and that Samuel remained co-owner in indivisión of the White Street property. Consequently, it dismissed Hoffman Consulting’s action and the intervention of Red River Bank. Hoffman Consulting and Red River appeal.

DISCUSSION

Agency

The outcome of this case turns on the determination of whether Samuel was acting on his own behalf or as agent of Hoffman Consulting when he signed the Farmer’s note. The trial court, in its written reasons for judgment, noted that:

Joan Eakin also testified that she ratified all the actions of her husband, Samuel Eakin. However, Joan Eakin never granted Samuel Eakin any authority to act on behalf of Hoffman Consulting, LLC or ratified any of his actions in writing, nor is there any record of Joan Eakin orally granting Samuel Eakin authority to act on behalf of Hoffman Consulting, LLC or orally ratifying his actions prior to the commencement of this litigation.
On 3 June 2002, Samuel Eakin executed a promissory note borrowing $250,000.00 from the Farmer’s Bank and Trust of Cheneyville.... The Farmer’s Note bears the unqualified signature of Samuel Eakin. He also signed as Guarantor of the Farmer’s Note. There is no other signature anywhere on the note.
It was undisputed at trial that Farmer’s Bank wire transferred funds from the Farmer’s Note in the amount required to either payoff or purchase the Hibernia Notes. However, the source of the transferred funds (i.e. who borrowed the money from Farmer’s Bank) and whether |fithe Hibernia Notes were purchased or paid off was disputed at trial. Hoffman Consulting, LLC suggests that it executed the Farmer’s Note through its agent, Samuel Eakin. However, the evidence does not support Hoffman’s argument.
The Hibernia Notes were paid, in full, with funds Mr. Eakin personally borrowed from Farmer’s Bank. The Farmer’s Note clearly and unambiguously contains Samuel Eakin’s unqualified signature as maker. Hoffman Consulting, LLC is attempting to use parol evidence to prove that it was the true maker of the Farmer’s Note. However, testimonial or other evidence may not be admitted to negate or vary the contents of an act under private signature. La. C.C. art. 184-8. Although there are exceptions to the parol evidence rule, none are applicable under the facts of this case. Id; see also, Hartford Accident and Indemnity Co.[ v. Louisiana Minority, Inc.], 522 So.2d 1154 (La.App. 4 Cir.1988); Parlay Enterprises, Inc. v. R-B-Co, Inc. of Bossier, 504 So.2d 660, 661 (La. App. 2 Cir.1987). However, even considering Joan Eakin’s testimony, the Court concludes that Mr. Eakin personally and as sole maker, executed the Farmer’s Note. Furthermore, the Court did not find Joan Eakin to be a credible witness.
Farmer’s Bank followed the wire transfer instructions it received on 3 June 2002 and paid off the notes on Mr. Eakin’s behalf. Hoffman Consulting, LLC never received any funds from the Farmer’s Note, nor did it pay any money to Hibernia.

This court will review the trial court’s determination of whether Samuel was acting as an agent for Hoffman Consulting using a manifest error standard of review:

A trial court’s determination of an agency relationship and scope of authority are essentially factual matters and therefore, are subject to the manifest error standard of review. Bamburg Steel Buildings, Inc., [v. Lawrence General Corp., 36,005 (La.App. 2 Cir. 05/08/02), 817 So.2d 427]; Salley v. Colonial Marine Industries, Inc., 95-2215 (La.App. 4th Cir.09/11/96), 680 So.2d 1242. Thus, the appellate court will not reverse the decision below if credible evidence providing a reasonable factual basis for the trial court’s conclusion was presented. Id.

Broussard v. Compulink Business Systems, Inc., 41,276, pp. 5-6 (LaApp. 2 Cir. 8/23/06), 939 So.2d 506, 510.

Given the evidence of record, we cannot say that the trial court committed manifest error in its determination that Samuel signed the Farmer’s note on his own | fibehalf rather than on behalf of Hoffman Consulting. “An agency relationship is never presumed; it must be clearly shown. The burden of proving apparent authority is on the party seeking to bind the principal.” Id. at 509. An agent must have express authority to contract a loan on behalf of a principal. La.Civ.Code art. 2997.

The March 2002 letter cited by the trial judge evidences Samuel’s intention at that time to borrow money as an individual to buy the notes. Although Joan and Samuel testified that the bank refused to loan him money personally, there is no documentary evidence of this refusal. Further, Joan and Samuel admit that no loan application was filled out by Hoffman Consulting and that the loan was based on Samuel’s prior relationship with Farmer’s. The Farmer’s note, as stated by the trial court, was signed by Samuel without any notation that he was signing in any other capacity than for himself. At the top of the note, Samuel’s name and address and no other have been entered into blanks appearing above the words “Debtor’s Name and Legal Address.” Joan admits that she has no document that indicates that Samuel was acting on behalf of Hoffman Consulting when he signed the Farmer’s note. Therefore, we find no error in the trial court’s conclusion that Samuel signed the note on his own behalf.

Hoffman Consulting argues that Joan, as sole member of the LLC, ratified Samuel’s action in signing the note. With regard to ratification, the trial court found as follows:

Assuming arguendo Joan Eakin’s ratification is valid, it does not [affect] the rights the plaintiff acquired as a result of Samuel Eakin’s payment of the Hibernia Notes. Although Joan Eakin did testify that she ratified all of Samuel Eakin’s actions, her oral ratification over four years after Mr. Eakin’s execution of the Farmer’s Note does not change the source of the funds used to pay off the Hibernia Notes vis-a-vis Catherine Ea-kin Grisham. The effects of confirmation and ratification are retroactive to the date of the confirmed or ratified obligation. La. \ nC. C. art. 18hL However, neither confirmation nor ratification may impair the rights of third persons. Id. Article 1844 protects third persons who acquired rights between the time Samuel Eakin executed the Farmer’s Note and the time it was ratified by Joan Eakin. The plaintiff acquired the benefit of payment by a soli-dary obligor after Samuel Eakin paid the Hibernia Notes with funds he personally borrowed from Farmer’s Bank for that purpose. Even if Joan Eakin’s oral ratification is valid, it occurred at trial over four years after the plaintiff acquired the benefit of extinguishment of her obligation to Hibernia Bank. Thus, Joan Eakin’s ratification does not have retroactive effect vis-a-vis Catherine Eakin Grisham. 5 La.Civ.L. § 12.62.

After the loan proceeds from the Farmer’s note signed by Samuel were transferred from Farmer’s, Hibernia prepared a “Notarial Act of Transfer, Endorsement, Assignment and Subrogation of Notes and Related Collateral” in which it assigned the Hibernia notes to Hoffman Consulting. That document was executed by Joan on behalf of Hoffman Consulting on July 3, 2002. It is uncontested that Joan, as sole managing member of Hoffman Consulting, obtained the Hibernia notes from Hibernia and delivered them to Farmer’s. Even if there is not enough evidence of record to establish express authority to act on behalf of Hoffman Consulting, it is possible that Joan’s action in delivering the Hibernia notes to Farmer’s served as a ratification of Samuel’s actions by Hoffman Consulting.

Ratification is a declaration whereby a person gives his consent to an obligation incurred on his behalf by another without authority.
An express act of ratification must evidence the intention to be bound by the ratified obligation.
Tacit ratification results when a person, with knowledge of an obligation incurred on his behalf by another, accepts the benefit of that obligation.

La.Civ.Code art. 1843.

The evidence shows that Joan was aware of Samuel’s acts. She signed papers accepting an assignment of the Hibernia notes. This action shows that she was aware | «of Samuel’s action. Further, by so doing, Hoffman Consulting received the benefit of the obligation incurred in signing the Farmer’s note which provided funds to purchase the Hibernia notes. Further, Joan delivered the Hibernia notes, which had been endorsed to Hoffman Consulting, to Farmer’s to act as collateral for the Farmer’s note signed by Samuel. However, even if these actions are considered to be ratification of Samuel’s signing of the note on -behalf of Hoffman Consulting, the ratification occurred after the funds were transferred to Hibernia for payment of the notes. As a result of Samuel’s payment to Hibernia, the Hibernia notes were extinguished through confusion. La.Civ.Code art.1908. Since Catherine was a solidary obligor as to the Hibernia notes, Samuel’s performance extinguished her liability to Hibernia under the notes. La.Civ.Code art. 1794. The later ratification cannot affect the benefit of extinguishment that Catherine received as a result of the payment.

Dation En Paiement

Samuel further argues that the Dation en Paiement of his interest in the White Street property was not null. However, his argument in this regard depends on a determination that the Hibernia notes secured by that property were purchased by Hoffman Consulting. Having found that the Hibernia notes were paid by Samuel individually, we agree with the trial court that the Dation en Paiement is null for failure of consideration. Hoffman Consulting did not buy the Hibernia notes, and the record does not establish any other debt owed by Samuel to Hoffman Consulting for which the Eakin dation could have been made. Therefore, the dation was made to release Samuel from a debt he did not owe and is, therefore, null.

Red River Intervention

laRed River appeals the dismissal of its intervention. It asserts that it is the current holder of the Hibernia notes. We disagree. We have found that the obligation represented by the Hibernia notes was extinguished by confusion. Therefore, Red River cannot be a holder of the Hibernia notes. However, this does not extinguish any claim it may have against Hoffman Consulting and Samuel.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are to be paid by Hoffman Consulting.

AFFIRMED.


author: EZELL, Judge.

text:
    Henry SANDERS v. STATE of Louisiana, DEPARTMENT OF NATURAL RESOURCES.
    No. CA 07-821.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 2007.
    Rehearing Denied Jan. 30, 2008.
    Albin Alexandre Provosty, Provosty, Sadler, deLaunay Alexandria, LA for Defendant/Appellant State of Louisiana, Department of Natural Resources.
    William Henry Sanders J. Christopher Peters Attorney at Law Jena, LA for Plaintifl/Appellee Henry Sanders.
    Court composed of MICHAEL G. SULLIVAN, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

| ■, Henry Sanders filed a suit against the State of Louisiana involving land located on Catahoula Lake. Mr. Sanders sought to be recognized as possessor of a certain area of land and also asked that a boundary be established between his land and the land owned by the State, as owner of the bed of Catahoula Lake and/or Little River. Additionally, Mr. Sanders sought an injunction prohibiting the State from “artificially flooding and holding of water or by artificially inducing a rapid rate of regression of back water and overflow water.” Finally, Mr. Sanders sought an award of damages against the State, alleging that the State was in bad faith.

The trial court denied Mr. Sanders’ last two claims. However, the trial court found that the proper ordinary high water mark of Catahoula Lake in 1812 was 30.1-foot elevation above mean sea level (MSL), as opposed to the 36-foot elevation that the State claimed. The trial court also found that Mr. Sanders was possessor of the lands he claimed. Due to these findings, the trial court limited Mr. Sanders’ damages to any amounts of proceeds that the State has received from the granting of mineral leases and/or production of minerals beginning April 7, 1994, from the lands possessed by Mr. Sanders which were between the elevations of 36 feet MSL and 30.1 feet MSL. The State appealed the trial court’s determination of the ordinary high water mark of Catahoula Lake.

FACTS

Mr. Sanders filed this suit on April 7, 2004. Mr. Sanders’ property is located along the Devil’s Creek-Hemphill Creek delta or alluvial fan of Catahoula Lake. In the suit, Mr. Sanders claimed possession of the following lands:

That portion of the West one-half of Section 30, Township 7 North, Range 4 East, lying South of the existing Justiss Oil Company, Inc. — Whitehall Plantation fence and lying West of the bank of Catahoula Lake and U.S. Government Lot No. 1 of Section 25, Township 7 North, pRange 3 East including all of said lands that are bottom hardwood land, grass lands, sandridges, elm and swamp privet lands, all of which lands are known as riparian lands covered with back water and overflow water during the wet season of the year.

Mr. Sanders alleged that his possession had been disturbed by the State due to a March 2004 report which relied on the Russell-Brown study from 1941-1942 indicating that the ordinary high water mark of Catahoula Lake was located at 36 feet MSL.

Louisiana became a state on April 30, 1812. The United States General Land Office (GLO) surveyed the area around Catahoula Lake between 1813 and 1884. Much of the land bordering and lying outside Catahoula Lake was selected and approved as swampland and transferred to the State by the United States Government under the Swampland Acts of 1849 and 1850. These Acts provided that all swamp and overflowed lands unfit for cultivation shall be granted in fee simple to the State to aid in construction of necessary levees and drains for reclamation of swamp and overflowed lands. The State then transferred these swamplands to levee districts who could use the land or sell it for necessary monies. Mr. Sanders’ title is derived from these transfers.

A trial was held for approximately two weeks between July 25, 2006, and August 3, 2006. The trial court issued written reasons for judgment. In determining the ordinary high water mark, the trial court ruled that “from 1800 to the present, Cata-houla Lake was and is an intermittent body of water with no traditional ‘shoreline.’ And, because of such fact, traditional methods of determining where the usual high water level is simply not applicable.” The trial court further held that “in this present situation the most reasonable result for the normal high water level of the lake should be established at that level where the main distributary, Little River, becomes a tributary due to back flow from the Black River (as well as the Ouachita |¿and Tensas).” Randall Smoak, a professional civil engineer, testified on behalf of Mr. Sanders. He correlated water level activities and the relationship between the Black River and Catahoula Lake utilizing gauge readings taken between 1961 and 1971, prior to the construction of water level control structures in Little River and Catahoula Lake. The trial court’s conclusion as to the ordinary high water level of Catahoula Lake was based on Mr. Smoak’s correlation of the gauge readings indicating that 30.1 feet above MSL is the level at which water from the Black River will flow back through the Little River into Cata-houla Lake.

DISCUSSION

On appeal, the State argues that the trial court erred in setting the ordinary high water level at 30.1 feet MSL based upon analyses of gauge data during an eleven-year period that correlated levels on Black River with levels on Catahoula Lake and excluded all levels during the annual high water season. The State asserts that the 36-foot contour, as it existed in 1942 and as surveyed by Heard and Daigre, represents the true ordinary high water level of the lake today and in 1812.

Louisiana courts of appeal apply the manifest error standard of review in civil cases. Hall v. Folger Coffee Co., 03-1734 (La.4/14/04), 874 So.2d 90. Under the manifest error standard, a factual finding cannot be set aside unless the appellate court finds that the trier of fact’s determination is manifestly erroneous or clearly wrong. Smith v. Louisiana Dept, of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132. In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id.
The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Id.; Pinson-neault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 278-79. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong, even if the reviewing court would have decided the case differently. Id.

Detraz v. Lee, 05-1263, p. 7 (La.1/17/07), 950 So.2d 557, 561.

There is no dispute that, as to lakes, the State owns the land below the ordinary high-water mark. State v. Placid Oil Co., 300 So.2d 154 (La.1973), cert, denied, 419 U.S. 1110, 95 S.Ct. 784, 42 L.Ed.2d 807 (1975); McCormick Oil & Gas Corp. v. Dow Chem. Co., 489 So.2d 1047 (La.App. 1 Cir.1986). Furthermore, “[t]here is no right to alluvion or dereliction on the shore of the sea or of lakes.” La.Civ.Code art. 500.

In determining the meaning of “ordinary high water,” as it pertains to a river, the supreme court in DeSambourg v. Board of Commissioners for Grand Prairie Levee District, 621 So.2d 602, 613 (La.1993), cert, denied, 510 U.S. 1093, 114 S.Ct. 925, 127 L.Ed.2d 218 (1994), defined it as “the highest level the river inevitably reaches during annual seasons of high water, which is the highest stage the river can be expected to reach yearly.” We find this definition equally applicable to the waters of a lake.

A description of Catahoula Lake can be found in the “Catahoula Lake Area Report” presented to Governor Kennon and the Louisiana Legislature by the Louisiana Department of Public Works in 1954:

The lake bed proper has a length of about 14 miles and an average width of 3 miles covering an area of some 42 square miles or about 27,000 acres. The western Louisiana uplands adjoin the lake bed on the west and northwest. To the south and southeast of the lake bed lies alluvial area. The lowest portion of the lake’s bed of any appreciable extent is at elevation 27 feet m.s.l.... The principal tributary to the lake is Little River which enters the lake at its southwest end. It traverses the lake in a relatively wide and shallow channel to the northeast end of the lake, a total distance of about 15 miles. Outflow from the lake is principally through French Fork and Old River which join at Lavaca forming Little River down which the flow is carried to Black River at Jonesville. One other principal outlet or distributary of the lake, which serves mostly for flood flows, is Big Saline Bayou which emerges from the lake near its southwest end meandering southeasterly to join Red River. Other outlets for flood waters are Sandy, Indian, Muddy, Cypress and Big Bayous, all of which lead off in a southeastern direction through either Saline Lake or Larto Lake to Red River.
LA watershed area of 2,672 square miles contributes to the lake. The area is composed principally of upland hilly timbered area and extends generally northwestward from the lake to Ruston and the vicinity of Arcadia, an airline distance of some 80 miles with an average width of about 33 miles. Little River drains an area of 2,555 square miles above its entry into the lake.

No one disputes the trial court’s finding that Catahoula Lake is a lake, and it was stipulated at trial that it was navigable in 1812. The State disagrees with the trial court’s finding that the lake is an “intermittent” lake versus a perennial lake which has a consistent water bowl. An intermittent lake is one that disappears seasonally as compared to an ephemeral lake which is one that lasts only a short while because it is associated with an event like heavy rainfall. In finding Catahoula Lake to be an intermittent lake, the trial court found that water did not stand in Catahoula Lake for a sufficient period in order to create a traditional shoreline. Thus, it accepted the gauging method testified to by Mr. Sanders’ expert to determine the ordinary high water mark, as opposed to using the physical evidence method promoted by the State. It makes no difference how we classify Catahoula Lake. It is still a lake, and the proper determination of the State’s ownership is the ordinary high water mark.

The trial court relied on the testimony of Carl Smoak, a civil engineer, in concluding that 30.1 feet was the ordinary high water mark of Catahoula Lake. In accepting the gauging method as the proper method of determining the high water mark, the trial court found that the most reasonable result for the normal high water level of the lake should be established at that level where the main distributary, Little River, becomes a tributary due to the back flow from Black River. The trial court found that the traditional definitions of overflow and back flow were not applicable because there were no banks in the lake bed for this back water to flow over the top. It found that the normal high water level was more appropriately defined by Catahoula Lake’s function as it relates to the whole drainage of the area.

|fiMr. Smoak used gauge data from Black River from the years 1960 to 1972 and gauge data from Catahoula Lake from the years 1961 to 1971 to reach his conclusions. Mr. Smoak testified that he strictly looked at gauge readings from those two areas and did not feel it necessary to look at the effect of other tributaries feeding into Catahoula Lake. It was his opinion that when Black River was rising it was influencing the rise of Catahoula Lake. He opined that any level in Catahoula Lake above 30.1 feet was caused by Black River during the eleven-year period of gauge readings. Mr. Smoak admitted that he excluded any lake levels from the gauge data information once Black River exceeded the level of Catahoula Lake.

Swamplands subject to overflow are private things. State v. Barras, 615 So.2d 285 (La.1993); Buckskin Hunting Club v. Bayard, 03-1428 (La.App. 3 Cir. 3/3/04), 868 So.2d 266. Furthermore, privately owned land does not become subject to public use when a navigable body of water overflows its normal bed and temporarily covers the adjacent land. Edmiston v. Wood, 566 So.2d 673 (La.App. 2 Cir.1990). However, this is not the situation that is involved here.

The situation at Catahoula Lake is not a temporary or extraordinary situation. It has been occurring for hundreds of years. What is involved is the natural flow of water between connected water bodies. Everyone agreed that these bodies of water stay within their natural beds. Catahoula Lake always reaches a certain normal high level during several months of the year. It is obvious from the physical characteristics around Catahoula Lake that this is a natural and ordinary occurrence for the lake. None of the tributaries, including Black River, overflow their natural beds. Black River, along with other tributaries, contribute to the water flowing in and out of Catahoula Lake.

|7In State v. Placid Oil Co., 300 So.2d 154, the supreme court approved its prior decision in Amerada Petroleum Corp. v. State Mineral Board, 203 La. 473, 14 So.2d 61 (1943), wherein it clearly defined a lake as a body of water which is more or less stagnant and is supplied by drainage. This is exactly the situation of Catahoula Lake. Other water bodies drain into this area. Therefore, we find the level at which Black River, or any other tributary, affects Catahoula Lake to be of no moment. The ordinary high water mark of Catahoula Lake is normally reached by the influence of other water bodies.

We find that the trial court committed manifest error in relying on the testimony of an expert who correlated gauge readings under the assumption that the effect of Black River on Catahoula Lake should determine the ordinary high water level and omitted any readings above this level. Evidence revealed that gauge readings were far above 30.1 feet for much of the year in Catahoula Lake. In 1961, the elevation at Catahoula Lake was in excess of 45 feet for 116 days and for 143 days in 1962. We recognize that the supreme court in DeSambourg, 621 So.2d 602, found that the trial court did not err in using river gauge data to determine the ordinary high water mark on the Mississippi River at Shingle Point. However, in that case, the court had almost a century of gauge data in making this determination versus a mere eleven years of data available in this matter. In DeSambourg, the ordinary high water level was calculated without consideration of both unusually high or low annual readings. Here, Mr. Smoak eliminated any gauge readings above the 30.1 feet. Furthermore, the gauge readings used by Mr. Smoak did not take into account any effect of man-made levees which were completed after 1812.

No one disputes that it is the ordinary high water level as it existed in 1812 in Catahoula Lake that determines the extent of the State’s ownership. This is |sevidenced by the physical characteristics surrounding the lake. While the trial court found the Russell-Brown study to be scientifically unreliable, the physical characteristics test has been used by both state and federal courts in determining the ordinary high water mark. See John A. Lo-vett, Batture, Ordinary High Water, and the Louisiana Levee Servitude, 69 Tul. L.Rev. 561 (1994). The evidence clearly established that it while the water does not stand at 36 feet year round, it does stand at this level for a big part of the year, which is long enough to make an imprint on nature.

The closest piece of evidence in time to 1812 as to the nature of Catahoula Lake is an article written by William Darby in 1817 entitled, “A Geographical Description of the State of Louisiana, the Southern Part of the State of Mississippi, and Territory of Alabama.” Before writing the article, Darby undertook a study of the area for eleven years from 1806 to 1817. In describing the Catahoula Lake area, Darby stated:

Fourteen miles below the Boeuf, the Ouachitta loses its name by its union with the rivers Tensaw and Ocatahoola. This singular small river, Ocatahoola, is a very striking example to show how near the surface of Louisiana approaches that of the superficies of a real sphere. The map will exhibit the places where this river has its sources but no delineation upon a plane can convey correct ideas of the peculiar traits of its geography. The lake through which this river flows, is alternately a wide expanse of water ten or fifteen feet deep, and an extensive grassy plain, the river winding through its center, and receiving several fine creeks from the north, which in the season of inundation empty themselves into the mass of water at the margin of the woods.

Also included in Darby’s materials was a map of Louisiana constructed from actual surveys and observations. The map indicates that Catahoula Lake is a massive water area in Louisiana which was then named “Ocatahoola Lake.”

Between 1814 and 1865, GLO surveyors surveyed around the perimeter of Cata-houla Lake. The lines they surveyed along the edge of the lake are called | ameander lines. Both Mark Tooke, the expert surveyor for Mr. Sanders, and Frank Willis, the State’s expert surveyor, testified that meander lines are not considered property boundaries unless deeds specifically state that they are. In other words, the meander lines do not set the boundary between private and public ownership.

As testified to by Mr. Willis, meander lines can have different meanings under different conditions. The purpose of the earlier surveys was to determine the approximate location of the lake and to plot the sinuosities of the shoreline so that the land could be patented out. This was all done before the Swamplands Acts. Field notes from the different surveyors were introduced into evidence. One such field note indicated that the GLO surveyor ran a line along the water’s edge.

During the 1940’s, oil was discovered in the area. At the request of Carter Oil Company, Richard Joel Russell, a professor of physical geography with Louisiana State University, conducted a field investigation to determine the elevation of the shoreline of Catahoula Lake. He observed that the building of artificial levees along the Mississippi, Red, and other rivers had resulted in increasing flood levels not only in Catahoula Lake but also in adjacent swamps. This influence was not present in the year 1812 and did not become pronounced until after the year 1882, when the levees had really become effective in blocking outflowing flood waters and in raising river stages. Dr. Russell further noted that the lake has been subjected to unnatural ranges in stage elevations during more recent years.

Dr. Russell was assisted by Clair Brown, an associate professor of botany with Louisiana State University. He examined the vegetation surrounding Cata-houla Lake, starting in 1936 and also in the years 1937, 1940, and 1942. Dr. Brown observed that Catahoula Lake has considerable fluctuation of the water levels during different seasons of the year which is reflected in the zonation of the vegetation around the|10lake.

In determining the normal high water level of Catahoula Lake, Dr. Russell observed that the stage variations of Cata-houla Lake are extremely variable from week to week, season to season, year to year, or decade to decade. He further stated that:

[E]ven if we had observations extending over many years we would have difficulty in justifying a mean high stage on the basis of gauge records, for the reasons that the year or decade following would not likely yield the same result. In every sense the gauges of nature serve the best for determining the elevation of Catahoula Lake, for they record averages that have been established over a long range of years.

In finding that physical evidence indicated a normal high water mark at 36 feet MSL in 1812, Dr. Russell stated that:

The more positive criteria for the recognition of mean high stages are such things as the elevation of deltas built into the lake, the elevations of flood plains of both inflowing and outflowing streams, the distribution of vegetation, and such shore features as beaches and wave-cut notches. It is the 36-foot shore that shows the greatest development of all these features, persistently, and all sides of the lake.

Dr. Russell further stated that “[t]he 36-foot shore today is farther out in the lake than was the shore in 1812, because these deltas have all grown lakeward, extending land beyond 1812 shore positions.” Dr. Russell also observed:

In 1812, as in succeeding years on up until about 1882, the northwestern side of Catahoula Lake was relatively stable. A wave notch was present at the elevation of 36 feet and a cypress zone became established along the mean high shore line of the day. These trees are still living and may be seen today, with trunks in excess of two feet in diameter.

The importance of the cypress fringe at the 36-foot elevation was explained by Dr. Brown:

The seeds and the fruits of cypress are adapted for water transportation and thus float for some time. In low, swampy woods the winter water level is usually the highest level, except for floods, and can be traced by the distribution of stranded fruits. Therefore, in order to have a well established cypress zone, the water level must have remained relatively constant for many years before man upset natural conditions by the Inremoval of the virgin timber, the construction of dams, roads and levees. The cypress tress of this zone are very large and very old....
The low height of the cypress knees likewise indicates that these trees grew near the margin of the lake. Cypress knees are supposed to be an adaptation for securing oxygen for the root system in water logged or poorly aerated soils. Thus the knees must protrude above the water level for a few inches. The height of the cypress knees has been correlated with the depth of the water. High knees indicate deeper water than low knees. Also in areas with a very high and long hydroperiod, knees do not develop.
It has been shown that the development of the conspicuous buttress base of trees is correlated with flooding, the height of the floodwaters, and length of submergence. The swollen part of the trunk is the part which has been submerged for short intervals of time. The zone of maximum swelling is at the level in which flood waters stayed the longest time. The bottle-shape of the buttress is best developed on the occasional cypress ... in the water elm-swamp privet forest, well developed on the cypress fringe, and less so on the scattered cypress of the mixed hardwood zone.

Based on the vegetation in the area, Dr. Brown concluded that 32.8 feet was the normal water level, the normal high water level was 36 feet, flood stage was located at 43 feet, and extreme flood stage was located at 46 and 48 feet.

Following Drs. Russell’s and Brown’s investigation, the Louisiana Department of Public Works conducted a meander survey around the periphery of Catahoula Lake following the 36-foot contour. This survey has become known as the Heard and Daigre survey of 1942. A map introduced into evidence depicts both the meander line from the GLO surveys and the survey of Heard and Daigre. There is a general agreement between the two.

Mr. Sanders retained the services of George Flowers, an expert in geology with a speciality in geochemistry. Mr. Flowers put together a team to investigate the Catahoula Lake area which included Dr. Leonard Thien, an expert botanist. The Flowers-Thien study concluded that the ordinary high water mark was at 29 feet because it is the edge of the bowl. Mr. Flowers disagreed with Dr. Russell that there |iawas a standing lake in 1812, although he agreed that lake stood in the area at 36 feet for an extended period of time prior to 1800.

Mr. Flowers agreed that there were four bench cut areas indicating that water stood at that level for sufficient time to create a cut in the bedrock. The bench cuts were located at 42-40 feet, 36-35 feet, 31 feet, and 28 feet. One hypothesis of Mr. Flowers for the 35-foot shoreline was that during the Great Raft, the raft extended further down to Catahoula Lake and held the lake there. He further hypothesized that Catahoula Lake was not directly influenced by the raft when Louisiana became a state in 1812. No other testimony or evidence was offered to support the conclusion that Catahoula Lake was a raft lake. There was a general discussion of raft lakes that had been created by the Great Raft and the cypress fringes that formed as a comparison to Catahoula Lake, but no one has claimed herein that Catahoula Lake was a raft lake. Mr. Flowers did not contest that there was a well-defined shrine around the lake but contested that it was relevant in 1812.

In determining the age of the cypress trees, Dr. Thien utilized the Brown and Montz method which uses the diameter of the tree to estimate its age. This method placed the ordinary high water mark farther out in the lake.

To reevaluate the Russell/Brown study, the State hired Dr. George Castille, an expert in archeology and geography, and Patricia Young, an expert in dendro-ecolo-gy, which involves the study of tree rings. Dr. Young used the core method to analyze the age of the cypress trees, which the trial court agreed was more reliable than the Brown and Montz method of measuring the diameter of trees. Dr. Young testified that the Brown and Montz method, in general, overestimated the age of the younger, faster-growing trees. Dr. Young explained that cypress trees like fluctuation in water and will not generate unless there is a drought period. Dr. Young found that | iathe bald cypress trees at Ca-tahoula Lake tend to cluster at 36 feet, She testified that the flooding effects of the trees suggested that the cypress fringe has historically and continues to establish at this same area. There are trees of multiple age classes in the area. She found no evidence that points to a cypress fringe at an elevation below the 36-foot contour. Dr. Young further stated that the trees measured by Dr. Thien were less than 200 years old except for one. She was impressed that the Russell-Brown study classification of 36 feet as the ordinary high water mark was correct. She agreed that there are trees above and below the 36-foot level, but they thin out.

Dr. Castille testified that he saw the cypress fringe in every area he looked. It was his conclusion that if the ordinary high water mark for Catahoula Lake in 1812 was around 30 feet, then the basin would be full of forest. He explained that you would see a new generation of cypress trees at the new ordinary high water line down to the new ordinary low water line, but there was no physical evidence of this. Dr. Castille testified that as you move out into Catahoula Lake, the number of old growth cypress begins to decline. He stated that the large trees in the lower elevations are young based on the core samples. Dr. Castille found that Dr. Russell and Dr. Brown performed a valid and comprehensive investigation.

In performing his survey, Mr. Willis observed that the Flowers-Thien line is not anywhere near the cypress fringe that he observed. He saw no basis for this line as the line of the ordinary high water mark.

Mark Tooke, who surveyed the area for Mr. Sanders, did not dispute the methodology of the Russell-Brown study. He agreed that there was a cypress fringe around the lake and that he had personally observed in addition to the fact that it is very near to what appears to be the shore of the lake. Mr. Tooke was in further agreement that the survey by Heard and Daigre was a general facsimile of the 114meander lines from the GLO surveys.

In summary, the trial court was manifestly erroneous in placing the ordinary high water mark at 30.1 feet MSL. This finding was based on a correlation of gauge data that excluded any readings over 30.1 feet on the erroneous conclusion that the effects of water from other tributaries should not be considered in calculating the ordinary high water mark. The remaining evidence was based on the physical characteristics of Catahoula Lake which clearly established that the ordinary high water mark in 1812 was 36 feet MSL as surveyed by Heard and Daigre in 1942.

The judgment of the trial court is reversed. Costs of this appeal are assessed to Henry Sanders.

REVERSED.


author: GENOVESE, Judge.

text:
    MACLAFF, INC., University Partnership, Ambassador Partnership, Abnar, Inc., Wilburn Enterprises, L.L.C., and Terry Wilburn d/b/a Cat Enterprises v. ARCH INSURANCE COMPANY, Risk Management Services, and Wright & Percy Insurance, Inc.
    No. 07-870.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 2007.
    Rehearing Denied Jan. 30, 2008.

      Patrick M. Wartelle, Leake & Anders-son, L.L.P., Lafayette, Louisiana, for Plaintiffs/Appellants, MacLaff, Inc., University Partnership, Ambassador Partnership, Abnar, Inc., Wilburn Enterprises, L.L.C., and Terry Wilburn d/b/a/ CAT Enterprises.
    James L. Pate, Robert E. Torian, La-Borde & Neuner, Lafayette, Louisiana, for Defendants/Appellees, RMS Insurance Brokerage, L.L.C. and Liberty Surplus Insurance Corporation.
    Charles P. Carriere, III, New Orleans, Louisiana, for Defendant/Appellee, Wright & Percy Insurance, Inc.
    Court composed ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

bln this insurance suit for negligent misrepresentation and/or breach of fiduciary duty, the trial court granted summary judgments in favor of Defendants. Plaintiffs appeal. For the following reasons, we affirm.

FACTS

This case arises out of damages caused by Hurricane Lili which struck south Louisiana on October 3, 2002. Plaintiffs, MacLaff, Inc., University Partnership, Ambassador Partnership, Abnar, Inc., Wilburn Enterprises, L.L.C., and Terry Wilburn d/b/a/ CAT Enterprises (collectively franchisees) are owners and operators of McDonald’s franchises which sustained property damage as a result of Hurricane Lili. The property damage insurer of the franchisees at the time of Hurricane Lili was Arch Insurance Company (Arch).

Prior to Hurricane Lili’s landfall, aware that their existing property insurance policy issued by Zurich Insurance Company (Zurich) was soon to expire, the franchisees contacted their retail insurance agent, Wright & Percy Insurance Agency (Wright & Percy), seeking to procure new property insurance coverage. Wright & Percy, in turn, contacted a wholesale insurance broker, Risk Management Services a/k/a RMS Insurance Brokerage, L.L.C. (RMS), to obtain property damage coverage for the franchisees. RMS secured such a policy through Arch. An RMS Executive Summary, setting forth the details (coverages, deductibles, exclusions, etc.) of the 1 ^policy, was sent to Wright & Percy for the franchisees. The appropriate premium for said policy was paid by the franchisees. Thus, the franchisees had property insurance coverage through a national McDonald’s insurance program with coverage underwritten by Arch in accordance with said Executive Summary and policy provisions.

As a result of property damage to various McDonald’s restaurants due to Hurricane Lili, the franchisees submitted claims to Arch. In adjusting the submitted claims, Arch concluded that the losses were to be adjusted by applying the “Named Storm” deductible to determine what amounts were to be paid under the policy. The “Named Storm” deductible in the policy provided as follows:

2% of the combined “Total Insurable Values” for Building, Personal Property and Business Income at risk at place and time of loss, subject to a $25,000 minimum per occurrence due to loss or damage from “Named Storm”. A Named Storm is a windstorm or tropical disturbance that has been named by the National Weather Service. The deductible applies separately to each insured premises and to each Named Storm occurrence. We will then pay the amount of loss or damage in excess of the deductible, up to the applicable Limits of Insurance. [“] Total Insurable Values” means the 100% value of Building, Personal Property, and Business Income insured (using the applicable policy valuation clause) without regard to the Limit of Insurance.

Thus, following the damages sustained by Hurricane Lili, the franchisees were met with a deductible of $25,000 per restaurant. As a result thereof, the franchisees instituted the instant litigation naming as defendants Wright & Percy, Arch, RMS, and RMS’s liability insurer, Liberty Surplus Insurance Corporation (Liberty).

With respect to Arch, the franchisees asserted sundry legal theories attempting to establish the applicability of various other deductibles under the policy as opposed |ato the “Named Storm” deductible of two percent of the total insured value. With respect to RMS and Liberty, the franchisees assert that the inclusion of the “Named Storm” deductible constituted a breach of RMS’s fiduciary duty to obtain favorable insurance coverage on their behalf. Alternatively, the franchisees assert that RMS negligently misrepresented the policy provisions, particularly the Executive Summary, by advising them that the dedueible was going to remain at two percent of the loss as it had been the previous year as opposed to two percent of the total insured value for a named storm.

On September 20, 2006, RMS and Liberty filed a motion for summary judgment which was heard on November 13, 2006. The trial court granted a partial summary judgment in favor of RMS and Liberty dismissing the claims of Wilburn Enterprises, L.L.C. and Terry Wilburn d/b/a/ CAT Enterprises. Also at the hearing on the motion for summary judgment, the trial court granted the remaining plaintiffs, MacLaff, Inc., University Partnership, Ambassador Partnership, and Abnar, Inc., additional time to direct the trial court to evidence relating to the availability of alternative insurance coverage during the relevant time period. RMS and Liberty were also granted additional time to respond thereto.

On January 4, 2007, the trial court signed a “RULING AND JUDGMENT MOTION FOR SUMMARY JUDGMENT” wherein the trial court expressly stated that no such evidence was produced. Consequently, the trial court also granted summary judgment in favor of RMS and Liberty as to the claims of MacLaff, Inc., | University Partnership, Ambassador Partnership, and Abnar, Inc.

A formal judgment was signed by the trial court on January 5, 2007, granting summary judgment in favor of RMS and Liberty and dismissing the claims of Wilburn Enterprises, L.L.C. and Terry Wilburn d/b/a/ CAT Enterprises. On January 10, 2007, a motion for new trial was filed by all the franchise owners which was denied by the trial court on January 17, 2007. A second motion for new trial was filed only on behalf of Wilburn Enterprises, L.L.C. and Terry Wilburn d/b/a/ CAT Enterprises which was also denied by the trial court on February 12, 2007. The franchisees appeal.

ISSUES

In brief, the MacDonald’s franchisees present the following issues for our review:

1. [w]hether the trial court erred in granting the Motion for Summary Judgment filed by Risk Management Services a/k/a RMS Insurance Brokerage!,] and its insurer, Liberty Surplus Insurance Corporation, on causation grounds, despite the existence of numerous issues of material fact as to whether or not RMS, as the agent for both the plaintiffs and the defendant insurer, fulfilled its fiduciary obligation to Plaintiffs to procure a favorable deductible;
2. [wjhether the trial court erred in granting the Motion for Summary Judgment filed by Risk Management Services a/k/a RMS Insurance Brokerage!,] and its insurer, Liberty Surplus Insurance Corporation, where the evidence shows that RMS negligently misrepresented the named storm deductible, causing Appellants to think they had an acceptable deductible which deprived them of the opportunity to shop the market for a more favorable deductible;
3. [wjhether the trial court erred in granting the Motion for Summary Judgment filed by RMS and its insurer, Liberty Surplus Insurance Corporation, based upon hearsay testimony;
4. [wjhether the trial court erred in granting the [M]otion for [Summary [J]udgment filed by RMS and its insurer, Liberty 15Surplus Insurance Corporation, where there was testimony in the record from the retail broker, Wright & Percy Insurance Company, that RMS could have gotten a more favorable wind deductible; and
5. [w]hether the trial court erred in granting the Motion for Summary Judgment filed by Risk Management Services a/k/a RMS Insurance Brokerage^] and its insurer, Liberty Surplus Insurance Corporation, based solely upon a causation argument, which should have been reserved to the trier of fact at a full trial on the merits.

As discussed above, the trial court orally granted summary judgment relative to the claims of the Wilburn Plaintiffs at the hearing on November 13, 2006. The trial court expressly found that “[t]here was no representation made to the Wilburnes [sic].” Accordingly, the trial court granted summary judgment in favor of RMS and Liberty dismissing the claims of the Wilburn Plaintiffs without even reaching the issue of causation. We note that although an appeal was taken from this judgment, plaintiffs have not assigned this ruling of the trial court as an error for our review; therefore, it is not properly before this court. Given our determination herein that the franchisees failed to produce factual support sufficient to establish the element of causation, we note that RMS and Liberty would still be entitled to summary judgment dismissing the claims of the Wilburn Plaintiffs.

LAW AND DISCUSSION

Standard of Review

We review an appeal of the granting or denial of a motion for summary judgment de novo, using the same standards and criteria as the trial court.

An appellate court will apply the de novo standard of review when reviewing a summary judgment and will use the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Goins v. Wal-Mart Stores, Inc., 01-1136 (La.11/28/01), 800 So.2d 783. Summary judgment is appropriate when “the | ¿pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that [the] mover is entitled to [a] judgment as a matter of law.” La.Code Civ.P. art. 966(B).

Saint Mary Operating Co. v. Champagne, 06-984, p. 4 (La.App. 3 Cir. 12/6/06), 945 So.2d 846, 849, writ denied, 07-301 (La.4/5/07), 954 So.2d 140 (quoting Lamo-co, Inc. v. Hughes, 02-1498, p. 4 (La.App. 3 Cir. 7/9/03), 850 So.2d 67, 70, writ denied, 03-2603, 860 So.2d 1156 (La.12/12/03)).

Causation

The underlying basis for the imposition of liability against RMS herein is the assertion by the franchisees that RMS was their agent and, therefore, owed them a fiduciary duty to obtain favorable insurance coverage. They contend that the unfavorable policy provisions which were part of the Arch policy constituted a breach of that fiduciary duty. Alternatively, the franchisees assert that RMS negligently misrepresented the policy provisions. The franchisees discuss the issue of agency and fiduciary duty at length in their appellate brief to this court. However, the trial court did not base its grant of summary judgment on these grounds. In fact, the trial court did not address that issue at all. The sole basis given by the trial court for granting summary judgment in favor of RMS and Liberty, and dismissing all of the claims of the franchisees against these entities, was the court’s finding of a lack of causation.

Diane Alleman, a corporate representative of the Krampe Plaintiffs, who was responsible for insurance matters relating to the entities, testified as follows:

Q. Have any of these McDonald entities, MacLaff, Inc., University Partnership and Ambassador Partnership, have they ever attempted to obtain insurance coverages for property and casualty damages or losses outside of a[b]ig McDonald’s insurance program?
|7A. Yes, but it couldn’t be done.
Q. When was that attempted? You said it couldn’t be done, so it must have been sometime during the last six years; is that right?
A. Yes.
Q. Was it during the last couple of years?
A. Yes.
Q. What happened?
A. There’s nobody else besides the company that McDonald’s approves that will carry insurance for McDonald’s and Burger King and those kind of places. These insurance companies, somehow, again, that’s their side. I don’t’ really know how that works, but somehow, they’re large enough to be able to take those kind of policies or the ones I was seeking quotes from, like Liberty Mutual, places like that, didn’t want to have anything to do with carrying that kind of business.
Q. What kind of coverages were you trying to get from Liberty Mutual and the other insurers?
A. Property and GL.
Q. Did they ever give you a quote?
A. No.
Q. I thought with the other insurers that you did not submit an application to, the reason you didn’t submit an application is because they told you, we can’t get a program for you?
A. Right.

Finally, Ms. Alleman explained that when she discussed the deductible provisions of the Arch policy with RMS, and what the deductible amounts were, it did not really make a difference. She acknowledged that this was true because there was no other insurance coverage available besides the Arch insurance program through McDonald’s.

^Consistent with the testimony of Ms. Alleman was that of Mr. Ajay Patel, the owner of Abnar, Inc., a franchisee. He likewise acknowledged that the franchise was required to have insurance and that the insurance which was purchased had to be through a McDonald’s-approved insurance program. Mr. Patel’s testimony also failed to established the existence of other available insurance. Mr. Patel testified as follows:

Q. Why are most people with McDonald’s property insurance program who are franchisees?
A. We’re required to based on our license agreement that we signed with McDonald’s to have a certain amount of coverage, and we stay within the realm of approved insurance companies.
Q. Have you ever gone uninsured?
A. No.
Q. If you went uninsured, would that be in violation of the franchise agreement?
A. Yes.
Q. Would you ever go uninsured?
A. No.

The testimony of Ms. Alleman concerning the Krampe Plaintiffs and the testimony of Mr. Patel relative to Abnar were echoed by Mr. Terry Wilburn of the Wilburn Plaintiffs. Mr. Wilburn confirmed that the franchisees were required to purchase insurance and, moreover, that the policy issued by Arch was the only insurance available. When explaining the circumstances surrounding a franchisee’s purchase of insurance, Mr. Wilburn testified that although they were required to obtain insurance, “there was nothing [he] could do, ... [he] had nobody else bidding on [his] insurance, so [he] had no choice.” Mr. Wilburn explained, “[w]e have got 19to have insurance. It’s not like we have a choice to pick insurance companies.”

In addition to the testimony of the franchise owners, Diane Krause, an employee of RMS, testified that there was no other corporately approved insurance available. Ms. Krause, explaining that it was a “very difficult” market, testified as follows: “And I will repeat. I don’t believe any other McDonald corporate insurer at that time was offering the coverage to certain franchisees.” Subsequently, when asked whether Arch offered the only insurance which could be obtained for this area, Ms. Krause testified: “To the best of my knowledge, the [2002 to 2003] term, Arch was the only insurance company offering quotations in some of the, quote, high hazard wind territories.” According to Ms. Krause, Arch was offering coverage in some areas “that none of the other carriers were offering coverage in”; therefore, she was “thankful [she] was getting the coverage at all.”

In an effort to defeat the motion for summary judgment, the franchisees point to the testimony of Larry Andrews, the account executive with Wright & Percy who handled the accounts at issue. They assert that, according to Mr. Andrews, “the market for the McDonald’s insurance program in 2002 was not a difficult market.” The franchisees further assert that Mr. Andrews established that there were “five players out there, and constantly those other four players were quoting business in our areas also.” Thus, the franchisees contend that the market was in fact competitive and that other insurance could have been obtained with a more favorable deductible. We disagree.

The testimony of Mr. Andrews on the availability, vel non, of other approved |! (Insurance coverage was not inconsistent with that discussed above. To the contrary, Mr. Andrews made it clear that only McDonald’s-approved insurance companies can issue coverage to the franchisees. Additionally, although Mr. Andrews did discuss the concept of “buying back wind[,]” in this context, he was referring generally to commercial accounts. The testimony of Mr. Andrews failed to establish that corporately approved insurance, which was more favorable to that provided by the Arch policy, was available to the franchisees at the relevant time period. As correctly stated by the trial court, the franchisees failed to produce factual support sufficient to establish that they would be able to satisfy their evidentiary burden of proof at trial as to the key element of causation as required by La.Code Civ.P. art. 966. Consequently, Defendants, RMS and Liberty, are entitled to summary judgment.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against MacLaff, Inc., University Partnership, Ambassador Partnership, Abnar, Inc., Wilburn Enterprises, L.L.C., and Terry Wilburn d/b/a Cat Enterprises.

AFFIRMED.

      . MacLaff, Inc., University Partnership, and Ambassador Partnership are sometimes collectively referred to as the Krampe Plaintiffs due to their common ownership and operations. Wilburn Enterprises, L.L.C. and Terry Wilburn d/b/a/ Cat Enterprises are collectively owned by Terry Wilburn; thus, they are sometimes collectively referred to as the Wil-bum Plaintiffs. Lastly, Abnar, Inc. (Abnar) is owned and operated by Ajay Patel. As discussed below, the trial court granted a partial motion for summary judgment on November 13, 2006 dismissing the claims of the Wilburn Plaintiffs. The trial court, on January 4, 2007, granted summary judgment dismissing the remaining plaintiffs' claims.

      . On August 18, 2005, Arch filed a motion for summary judgment wherein it asserted that the Named Storm deductible of 2% of the total insured value applied to all of the plaintiffs’ claims. That motion for summary judgment was heard by the trial court on November 13, 2006. After said hearing, the trial court granted the motion for summary judgment on behalf of Arch. A Ruling and Judgment Motion for Summary Judgment was issued and signed by the trial court on January 4, 2007. That portion of said judgment is not the subject of the present appeal.

      . The franchisees raise the issue of whether this testimony by Ms. Krause was inadmissa-ble hearsay testimony. However, there was no objection made in the trial court. Having failed to do so, the franchisees did not properly preserve this objection for appeal, and there is nothing for this court to review. Rat-cliff v. Normand, 01-1658 (La.App. 3 Cir. 6/5/02), 819 So.2d 434.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee, v. Nicholas D. SHORTS, Appellant.
    No. 42,854-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 19, 2007.
    Mark O. Foster, Louisiana Appellate Project, for Appellant.

      Jerry L. Jones, District Attorney, John Michael Rnddick, Assistant District Attorney, for Appellee.
    Before BROWN, STEWART, and CARAWAY, JJ.
   BROWN, Chief Judge.

11Defendant, Nicholas D. Shorts, pled guilty to two counts of aggravated battery and was sentenced to concurrent terms of 10 years at hard labor with no diminution of sentence for good behavior. Defendant has appealed his sentences as excessive. Finding no error, however, we affirm.

Facts

The charges against defendant stem from an April 13, 2005, fight at Banana Bob’s Cantina in Monroe, Louisiana. The victims, Clifton Straughter and Randall Harris, were patrons at the club, as was defendant. The cause of the fight is unclear from the record. What the record does reveal is that during the fight, defendant produced a knife and stabbed Straughter several times in the back, once in the stomach, and once in his upper left leg. Harris intervened to stop the attack and defendant stabbed him once in his upper left chest. Both victims were seriously injured. Straughter was hospitalized for six days in the intensive care unit, and Harris spent two days in the hospital.

Witnesses and the victims related that the attack was unprovoked. In a photographic line-up, both victims identified defendant as their attacker. On June 15, 2005, defendant was charged by bill of information with two counts of attempted second degree murder. After a preliminary examination hearing, the trial court found there was probable cause to support a charge of one count of attempted second degree murder as to Clifton Straughter and one count of aggravated battery as to Randall Harris.

| pPursuant to a plea agreement, defendant pled guilty to two counts of aggravated battery. There was no agreement as to sentence length, but the state and defendant agreed that the sentences would be concurrent. The trial court ordered a Pre-Sentence Investigation (“PSI”) report and subsequently sentenced defendant to ten years at hard labor on each count, with the terms to run concurrently. Defendant filed a timely motion to reconsider his sentences, which was denied. This appeal ensued.

Discussion

Because defendant’s motion for reconsideration urges only that his sentence is excessive, he is relegated to a review for constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Smith (I), 41,544 (La.App.2d Cir.11/01/06), 942 So.2d 618, writ denied by State ex rel. Smith v. State, 06-3015 (La.10/05/07), 964 So.2d 379. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith (II), 01-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.01/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La. App.2d Cir.04/02/97), 691 So.2d 864.

[SA trial court has broad discretion in sentencing offenders. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Chizman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.05/12/04), 873 So.2d 939.

We do not find an abuse of the trial court’s discretion in this case. The offenses to which defendant pled guilty were violent crimes, and at least one of his victims received life-threatening injuries. Each count carried a possible maximum sentence of ten years at hard labor. The trial court found probable cause to support an attempted second degree murder charge against defendant for his attack on Clifton Straughter. Although defendant was a first felony offender, the trial court noted that his criminal history included arrests for simple battery and criminal trespass in 2002, a conviction for simple battery in 2004, and the court observed that while defendant was on bond for the instant offenses, he was arrested for criminal trespass, aggravated battery, and simple assault with a weapon. Defendant also had a pending drug charge. The PSI reveals that defendant admitted to the probation officer that he has an “anger problem and that he can’t control his temper at times.” The court also took into consideration defendant’s age and social history in imposing sentence.

In light of the nature of the offenses and defendant’s criminal history, the court found that defendant would continue to commit violent crimes absent correctional treatment and that a lesser sentence would deprecate the |4seriousness of the instant offenses. The court then imposed the ten-year concurrent sentences.

In light of the record, particularly considering defendant’s demonstrated violent nature, the ten-year concurrent sentences do not shock our sense of justice. Defendant received the benefit of a favorable plea bargain and potentially avoided a much lengthier sentence had he been found guilty of attempted second degree murder.

Conclusion

For the reasons set forth above, defendant’s convictions and sentences are AFFIRMED.

      . Defendant pled guilty to an amended charge of illegal use of a weapon and served 90 days in jail.