author: COOKS, Judge.

text:
    State of Louisiana v. Anthus McCoy BLEDSOE.
    No. 07-149.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2007.
    Don M. Burkett, District Attorney, Anna L. Garcie, Assistant District Attorney, Many, Louisiana, for Appellee: State of Louisiana.
    Elvin C. Fontenot, Jr., Attorney at Law, Leesville, Louisiana, for Defendant/Appellant: Anthus McCoy Bledsoe.
    Court composed of SYLVIA R. COOKS, GLENN B. GREMILLION, and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

| .STATEMENT OF THE FACTS

On February 15, 2005, in Many, Louisiana, the Defendant, Anthus McCoy Bled-soe, and two other individuals, robbed Michael Cutwright, an employee of Rent Way, at gunpoint. Bledsoe was charged by bill of information with armed robbery. The Defendant entered a plea of not guilty, but later changed his plea to guilty of the lesser offense of first degree robbery, a violation of La.R.S. 14:64.1. The trial court sentenced Bledsoe to thirty years at hard labor, without benefit of probation, parole, or suspension of sentence. The Defendant was given credit for time served. Although this sentence is within the range mandated by La.R.S. 14:64.1, the Defendant appeals, asserting excessiveness of sentence. He argues there is nothing in the reasons for the sentence which indicates he is more culpable than his co-defendants, who pled guilty to simple robbery and were sentenced to five years. For the reasons assigned below, we affirm the sentence of the trial court.

LAW AND DISCUSSION

The trial court obtained a pre-sen-tence report on Bledsoe and, in sentencing him to thirty years at hard labor, articulated several factors which justified a sentence different from his co-defendants. First, Bledsoe was a third felony offender; second, this crime was committed less than one year after he was released from prison on a previous conviction; third, he was in the leadership position and influenced the other individuals to participate; and, fourth, he used a dangerous weapon in the commission of the offense. The trial court stated:

The Court finds, amazingly, that in this case, this defendant is a third felony offender, therefore, he is not eligible for a probated sentence. In this case, the report shows that in 1994, he was charged with the offense of burglary of a habitation. In 1996, he was charged with sexual assault and burglary of a habitation. Those charges, that second charge was dismissed. In connection with the second set of charges, he pled guilty | <¡to burglary of a habitation, sexual battery, August 8, 1996. He was sentenced to eight years Department of Corrections. He had been out ... [eight months] before you were arrested on this charge.
Less than a year. So, that tells me you are clearly, under Code of Criminal Procedure Article 894.1, in need of a custodial environment which can most be effectively provided by your commitment to an institution. There is an undue risk that during a period of suspended sentence of probation, if available — since it’s not — that you would commit another crime. Any lesser sentence than the one imposed by the Court would deprecate the seriousness of your conduct. Any type of crime of violence, this is designated as a crime of violence and is so noted for the record. The aggravating factors, you’re using a dangerous weapon, you’re committing a list of threat[s] of great bodily harm to any number of people. You used threats and actual violence in commission of the offense, I believe in subsequent to the offense that you used and caused others in this to influence the institution of this, or threats to influence the prosecution or outcome of these proceedings based upon what is contact with this woman. And I believe that you were in a position of leadership in this because of your past. It is the thing that is most indicated in this case. I do not find any mitigating factors that apply.

In State v. Whatley, 03-1275, p. 6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 959, this court articulated three factors to be considered in reviewing a trial court’s sentencing discretion: (1) the nature of the crime; (2) the nature and background of the offender; and, (3) the sentence imposed for similar crimes.

This was a crime of violence. The Defendant robbed an individual at gunpoint. The Defendant was a habitual offender. In fact, he had been released from jail less than a year at the time of the current offense. Our review of the sentence imposed for similar crimes indicates the sentence imposed by the trial court was not excessive.

In State v. Sullivan, 02-360 (La.App. 3 Cir. 10/2/02), 827 So.2d 1260, writ denied, 02-2931 (La.4/21/03), 841 So.2d 790, writ denied, 02-2965 (La.9/5/03), 852 So.2d 1024, this court found the trial court did not abuse its discretion when sentencing the defendant, a fourth felony offender, to thirty years at hard labor without benefit of probation, parole, or suspension of sentence for first degree robbery.

In State v. Mitchell, 35,970 (La.App. 2 Cir. 5/8/02), 818 So.2d 807, the court held a thirty-year sentence to be served at hard labor without benefit of probation, parole, or suspension of sentence was not excessive for a first felony offender who wielded a cocked gun and repeatedly threatened to kill the victim several times during the course of the robbery.

A sentencing court must individualize the sentence to the crime committed and to the offender. State v. Cathey, 569 So.2d 627 (La.App. 2 Cir.1990). A trial court is given wide discretion in sentencing, and the sentence will not be disturbed on appeal absent a manifest abuse of that discretion. State v. Lanclos, 419 So.2d 475 (La.1982).

Based on Bledsoe’s status as a third felony offender and the fact that he committed the present crime only eight months after his release from prison, we conclude the sentence imposed by the trial court was not excessive.

DECREE

Based on the foregoing review of the record, we affirm the sentence imposed by the trial court.

AFFIRMED.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Chad EASTERLING, et al. v. ROYAL MANUFACTURED HOUSING, LLC, et al.
    No. 07-192.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2007.

      Lamont Paul Domingue, Voorhies & Labbe, Bruce David Beach, Ungarino & Eckert, L.L.C., F. Douglas Ortego, Juneau Law Firm, Lafayette, LA, for Defendant/AppellaniARoyal Manufactured Housing, LLC.
    Andrea D. Aymond, Riddle & Moreau, L.L.C., Marksville, LA, for Plaintiffs/Ap-pellees-Chad Easterling and Lisa Easter-ling.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

hThis case involves a challenge to an arbitration agreement between the plaintiff in a redhibition suit, Chad Easterling (“Easterling”), and the defendant who sold Easterling a manufactured home, Royal Manufactured Homes, L.L.C. (“Royal”). Following a hearing in June of 2006 on Royal’s Motion to Compel Arbitration, the trial court entered a judgment denying the defendant’s motion based upon confusion created by the arbitration document which tied it to a specific “contemporaneously” executed transaction that did not exist. Subsequently, Royal filed a Motion for Reconsideration that was also denied. For the following reasons, we affirm the trial court’s judgment denying Royal’s Motion to Compel Arbitration, and the trial court’s denial of Royal’s Motion for Reconsideration.

I.

ISSUES

We must decide whether the trial court erred as a matter of law in denying Royal’s Motion to Compel Arbitration and its Motion for Reconsideration.

II.

FACTS AND PROCEDURAL HISTORY

On February 16, 2004, Chad Easterling signed an agreement to purchase a particular manufactured home from Royal after viewing the home on Royal’s lot. The agreement provided the serial number and model name of the home, the “Brandy-wine” model, and provided a breakdown of the base price of the unit and the price of each piece of optional equipment, such as skirting, foundation, pole, hook-ups, etc., for a total “Cash Purchase Price” of $85,080.00. The document was also signed by Danny Richard, agent for Royal, and further provided that “[tjhis agreement contains the entire understanding between you and me and no other | ^representation or document, verbal or written, has been made which is not contained in this contract.” The agreement also provided that part of the deposit would be retained by Royal if Easterling failed to complete the purchase. However, no money changed hands that day; no deposit or down-payment was indicated; and the full balance due was shown as $85,080.00. The document further provided that if the buyer did not complete a cash transaction, he would enter into a retail installment contract with the seller. That never occurred. Easter-ling obtained financing elsewhere and paid cash for the home five months later in July 2004. Between February and July, East-erling’s wife, Lisa, apparently made frequent calls to Royal to make sure that the home they had selected was still on the lot.

On February 23, 2004, Easterling signed a Placement and Service Agreement along with several one-page information sheets outlining the requirements for permits, installation, skirting, hook-up, debris removal, air conditioning, etc. One of the documents contained an acceptance of the “Brandywine” model as seen on the lot. The last document consisted of one page as well, and was entitled “Arbitration Agreement Addendum.” The first paragraph of the agreement states as follows:

This Arbitration Agreement (“Agreement”) is executed contemporaneously with, and becomes part of, the Retail Installment of Sales Contract (“Contract”) for the purchase of a manufactured home (“Home”) as described in the Contract by the purchaser (“Purchaser”) from the selling retailer (“Retailer”). This Agreement is for, and inures to, the benefit of the parties here, their successors and assigns, and additionally for the benefit of the manufacturer of the Home, and of the lender or mortgagee which provides the financing for the purchase of the Home, their successors and assigns, as fully as if the manufacturer and lender mortgagee were signatories hereto. The lender or mortgagee may elect at any time not to submit to binding arbitration by providing written notice to the Retailer and Purchaser at the addresses set forth in this Agreement.

The second paragraph of the document states as follows:

laThe parties agree that all claims, disputes, and controversies arising out of or relating in any way to the sale, purchase, occupancy of the Home including, but not limited to, any negotiations between the parties, the design, construction, performance, delivery, condition, installation, financing, repair or servicing of the Home and any warranties, either express or implied, pertaining to the Home, and including claims for equitable relief or claims based on contract, tort, statue [sic], common law or any alleged breach, default, or misrepresentation, will be resolved by binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Any contests to the validity or enforceability of this Agreement shall be determined by the provisions of the Federal Arbitration Act and the rules of the AAA. Copies of the rules may be obtained by -writing the AAA at 13455 Noel Road, Suite 1750 Dallas, Texas 75240-6636.

On July 2, 2004, after Easterling had obtained financing from the United States Department of Agriculture, Rural Development, he signed a “Construction Contract” for delivery and set up of the home wherein Royal agreed to start work the next day, on July 3rd, and complete the installation by August 31, 2004, for one lump sum cash payment of the purchase price of $85,080.00. This set of documents also contained a Description of Materials with charts and diagrams, and a sheet explaining the U.S. Department of Agriculture’s requirements for proof of immobilization, which changes the manufactured home from a “mobile” home to a permanent construction that exempts the buyer from paying sales tax on the purchase.

After the Easterling family moved into the home, it began to exhibit various defects such as water leaks and excessive condensation on the interior walls, which the Easterlings attributed to improper caulking and venting. Some of these conditions allegedly caused the growth of toxic mold and caused the air conditioner to run excessively. Apparently, repairs were attempted by Royal on behalf of the manufacturer, but the results were not satisfactory. In December of 2005, Chad and RLisa Easterling filed a redhibition suit alleging latent and hidden defects in the home at the time of manufacture by Indies House, and also alleging deficiencies in the set up of the home by Royal. Additionally, the Easterlings alleged personal injuries to the family members due to their exposure to the toxic mold.

Royal filed a Motion to Compel Arbitration based upon the Arbitration Agreement Addendum signed by Chad Easterling on February 23, 2004. The Easterlings opposed the motion arguing that they obtained financing for the home through Rural Development, not Royal, and that no “Retail Installment of Sales Contract” was ever executed, as referenced in Royal’s arbitration agreement. They further pointed out that they did not execute the purchase from Royal until July 2, 2004, at which time they signed a “Construction Contract” and paid Royal one lump sum of $85,080.00 for the home.

The trial court subsequently denied the motion and issued written reasons explaining that the arbitration agreement would have applied to a “Retail Installment of Sales Contract” if Royal had financed the home for the Easterlings and if the parties had executed the referenced installment contract. However, the court would not apply the arbitration agreement to a lump sum purchase document, called a “Construction Contract,” that was executed five months after the arbitration agreement. Nor did the court apply the arbitration agreement to the agreement to purchase that Easterling signed one week before signing the arbitration agreement, as neither the agreement to purchase nor the Construction Contract evidencing the sale were reflected in the arbitration agreement or executed “contemporaneously” with the agreement as purported in the agreement.

Based upon the trial court’s denial of its Motion to Compel Arbitration, Royal filed a writ application, numbered 06-1084, and also filed an appeal. We | ¡^granted the writ for the sole purpose of consolidating it with this appeal. Royal also filed a Motion for Reconsideration of the arbitration issue with the trial court, which was also denied for the same reasons as previously stated by the trial court. Again, Royal filed a writ application with this court, number 07-136, and that writ application has been consolidated as well with the instant appeal.

III.

LAW AND DISCUSSION

Standard of Review

Whether a court should compel arbitration is a question of law, and our appellate review of a question of law is simply to determine whether the trial court was legally correct or incorrect. Rico v. Cappaert Manufactured Housing, Inc., 05-141 (La.App. 3 Cir. 6/1/05), 903 So.2d 1284.

Royal contends that the trial court erred as a matter of law in denying its Motion to Compel Arbitration and its Motion for Reconsideration where the court failed to first apply the Federal Arbitration Act at 9 U.S.C. § 1, et seq, which favors arbitration and preempts state law. We disagree that the trial court erred in failing to analyze the question of federal preemption.

As this court has recognized in Abshire v. Belmont Homes, Inc., 04-1200 (La.App. 3 Cir. 3/2/05), 896 So.2d 277, writ denied, 05-862 (La.6/3/05), 903 So.2d 458, and in Rico v. Cappaert Manufactured Housing, Inc., 903 So.2d 1284, the issue of federal preemption, or application of the Federal Arbitration Act at 9 U.S.C. 1, et seq., as apposed to the Louisiana Binding Arbitration Law at La.R.S. 9:4201, et seq, is of little consequence. Pursuant to the Louisiana Supreme Court decision in International River Center v. Johns-Manville Sales Corp., 02-3060, p. 6 (La.12/3/03), 861 So.2d 139, 143, the Federal Arbitration Act is “a collection of statutes |fiwhich is very similar to the Louisiana Binding Arbitration Law.” See also Dufrene v. HBOS Manufacturing, LP, 03-2201, p. 3 (La.App. 4 Cir. 4/7/04), 872 So.2d 1206, 1210, wherein the fourth circuit stated that the federal and state acts are “virtually identical.”

More specifically, Louisiana’s arbitration law provides as follows:

La.R.S. 9:4201. Validity of arbitration agreements
A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
La.R.S. 9:4202. Stay of proceedings brought in violation of arbitration agreement
If any suit or proceedings be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which suit is pending, upon being satisfied that the issue involved in the suit or proceedings is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until an arbitration has been had in accordance with the terms of the agree-
ment, providing the applicant for the stay is not in default in proceeding with the arbitration.

Similar to La.R.S. 9:4201, above, the FAA provides at 9 U.S.C. § 2:

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

Similar to La.R.S. 9:4202, the FAA at 9 U.S.C. § 3 provides:

|7If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.

Quoting the Louisiana and federal statutes above, the Louisiana Supreme Court in Aguillard v. Auction Management Corp., 04-2804, 04-2857 (La.6/29/05), 908 So.2d 1, stated that the positive law of Louisiana favors arbitration, and that this favorable treatment echos the Federal Arbitration Act (“FAA”) at 9 U.S.C. § 1, et seq. The Court made it clear that due to the similarity of the foregoing statutes, it would adopt the liberal federal policy favoring arbitration agreements. The Court in Aguillard further resolved the split between our circuit courts, stating that it would adopt the liberal interpretation policy of the Second and Fourth Circuits, as opposed to the conservative policies of the First and Third Circuits at that time. Accordingly, a presumption of arbitrability now exists with regard to the enforceability of arbitration agreements under a contract of adhesion analysis. While the events giving rise to this suit arose prior to our Supreme Court’s official adoption of the liberal interpretation of arbitration agreements, the Louisiana statutes already were in place. ^Therefore, federal preemption is not a real issue in this case, as the law of Louisiana does not conflict with the federal statutes. However, the arbitration agreement in this case specifically states that it is governed by the FAA. While the trial court did not cite the state or federal statutes in its analysis, it did not violate the FAA, which provides at 9 U.S.C. § 2 that the court may invalidate an arbitration agreement “upon such grounds as exist at law or in equity for the revocation of any contract” as more fully explained below.

Royal asserts that the trial court’s rulings were directly contrary to our Louisiana Supreme Court’s ruling in Aguillard and in the United States Supreme Court’s opinion in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006). Again we disagree. Buckeye, which was the basis for Royal’s request for reconsideration, involved a lawsuit brought by borrowers alleging that a lender made illegal usurious loans disguised as check cashing transactions. The lender’s motion to compel arbitration, based upon a deposit and disclosure agreement signed by the borrowers, was denied. The Florida Supreme Court ruled that the borrower’s claims that an underlying contract was illegal and void had to be resolved by the trial court before arbitration of other disputes could be compelled. The United States Supreme Court reversed and remanded, holding that regardless of whether it is brought in federal or state court, a challenge to the validity of a contract as a whole, and not specifically to the arbitration clause within it, must go to the arbitrator, not the court.

This is true because the arbitration provision is severable from the remainder of the contract, and “unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance.” Buckeye, 126 S.Ct. at 1206. Accordingly, this case falls into the “unless” category; 19that is, Easterling’s challenge is to the arbitration agreement itself, not to the underlying sales contract. This is not a breach of contract case for non-delivery or delivery of the wrong model, but rather is a suit for redhibitory defects under La.Civ.Code art. 2520, which involves a breach of implied warranty against defects, but which is distinguishable from challenges to an underlying contract.

The courts in Louisiana have held unequivocally that actions based on a breach of warranty against defects are to be brought in redhibition instead of as a breach of contract. PPG Industries, Inc. v. Industrial Laminates Corp., 664 F.2d 1332 (5th Cir.1982); Molbert Bros. Poultry & Egg Co. v. Montgomery, 261 So.2d 311 (La.App. 3 Cir.), application not considered, 262 La. 306, 263 So.2d 46 (La.1972). Even if the warranty in a contract of sale is express rather than implied, the presence of the express warranty in the sale does not convert the action for redhibition into an action for breach of contract. See PPG Industries, Inc., 664 F.2d 1332, and Comment (b) under La.Civ.Code art. 2520. Unlike damages for other contractual breaches, damages caused by a breach of the warranty in a contract of sale are regarded as founded upon redhibition and subject to the prescription applicable to redhibitory actions. Molbert Bros. Poultry & Egg Co., 261 So.2d 311.

Accordingly, the challenge in this case is not to the underlying sales contract, but to the arbitration agreement alone. The United States Supreme Court in Buckeye made it very clear that the arbitration agreement is severable, and when challenged, a court can decide whether it is enforceable. More specifically, the Court quoted the language from the Federal Arbitration Act at 9 U.S.C. §§ 2 and stated as follows:

| ^Challenges to the validity of arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract” can be divided into two types. One type challenges specifically the validity of the agreement to arbitrate. See, e.g., Southland Corp. v. Keating, 465 U.S. 1, 4-5, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984) (challenging the agreement to arbitrate as void under California law insofar as it purported to cover claims brought under the state Franchise Investment Law). The other challenges the contract as a whole, either on a ground that directly affects the entire agreement (e.g., the agreement was fraudulently induced), or on the ground that the illegality of one of the contract’s provisions renders the whole contract invalid. Respondents’ claim is of this second type. The cr.ux of the complaint is that the contract as a whole (including its arbitration provision) is rendered invalid by the usurious finance charge.

Buckeye, 126 S.Ct. at 1208 (footnote omitted).

The Court in Buckeye concluded that “because respondents challenge the Agreement, but not specifically its arbitration provisions, those provisions are enforceable apart from the remainder of the contract. The challenge should therefore be considered by an arbitrator, not a court.” Id. at 1209. The opposite occurred in the present case, where the arbitration agreement itself, not the underlying contract, was at issue. We believe that under Buckeye, the trial court properly severed the arbitration agreement and found that it, standing alone, created confusion and ambiguity by tying itself to a document and a transaction that did not exist. Therefore, the trial court’s judgment was not contrary to the holding in Buckeye.

Likewise, we find no merit in Royal’s assertion that the trial court’s judgment is contrary to our Supreme Court’s holding in Aguillard. There, the plaintiff had presented the highest bid on real property at an auction, thereby purchasing a residential dwelling. When the seller refused to accept the offer, the plaintiff brought a breach of contract action against the vendor bank, its servicer, and the auctioneers seeking to enforce the auction real estate sales agreement which In contained an arbitration clause. The trial court denied the defendants’ motion to stay the proceedings pending arbitration, and the defendants applied for supervisory writs. A panel of this court affirmed, finding that the entire contract between the parties, including the arbitration clause, was adhe-sionary and lacked mutuality. Certiorari was granted by the Louisiana Supreme Court, and we were reversed.

The Louisiana Supreme Court discussed the general definition of a contract of adhesion as a standard contract prepared by a party of superior bargaining power, often in small print, and often raising the question of whether or not the weaker party actually consented to the terms. The Court rejected the idea that all standard form contracts are adhesionary and determined in the Aguillard case that neither the print nor the font size in the arbitration clause was smaller or different from the other clauses; that the contract was only a two-page document with each paragraph separated by double spacing; that the arbitration clause was not concealed in any way; and that the contract did not lack mutuality. The Supreme Court then articulated that, “unquestionably a written arbitration agreement does exist, and because the issue in this case arises from and is related to the Auction Terms & Conditions and its breach, the issue is referable to arbitration.” Aguillard, 908 So.2d at 18.

Conversely, in the present case, we do not have allegations of an adhesionary contract, which was the specific analysis involved in Aguillard. In fact, Royal admits that Easterling did not allege adhesion. We note that Easterling did question the validity of a consent given in the arbitration agreement itself when the referenced transaction and document, a retail installment contract, never existed. However, there were no allegations regarding small print, hidden agreements, and unequal bargaining power. We do also note that while a lack of mutuality was not 11galleged, or discussed by the trial court, the arbitration agreement in this case, unlike the one in Aguillard, did state that “[t]he lender or mortgagee may elect at any time not to submit to binding arbitration by providing written notice to the Retailer and Purchaser at the addresses set forth in this Agreement.” Accordingly, under an adhesion analysis, there would appear to be a question of mutuality, even if the arbitration agreement had properly incorporated by reference the cash sale of the home, which it did not do.

Notwithstanding, before the reader gets anywhere near the foregoing language at the end of the first paragraph, the first sentence of the agreement creates confusion that renders the arbitration agreement unenforceable. It states that the arbitration agreement is being executed “contemporaneously with, and becomes part of, the Retail Installment of Sales Contract,” which is a document and a transaction that did not then or thereafter exist.

After the Supreme Court in Aguillard compared the state and federal statutes and discussed the congressional intention of legislating in favor of arbitration, it made it clear that even though the FAA would preempt any conflicting state law:

[T]he states do retain the ability to regulate contracts involving arbitration agreements and may do so under general contract law as is referenced in the final section of 9 U.S.C. § 2. Thus, states may invalidate an arbitration clause “upon such grounds as exist at law or in equity for the revocation of any contract.”

Aguillard, 908 So.2d at 8 (citations omitted).

We believe that is exactly what the trial court did in this case. The court severed the arbitration agreement, pursuant to Buckeye, independent of the underlying sale, invalidated the arbitration agreement for the confusion that it created regarding the non-existent installment contract, and interpreted it against the drafters. See La.Civ.Code art. 2056. We disagree with Royal’s assertion that the trial court “took a peek” at the underlying contract and made a decision on contract formation. The underlying contract was not at issue. The trial court merely found that the arbitration agreement signed in February, almost five months before the purchase of the home in July, stated that it was being executed “contemporaneously” with a “Retail Installment of Sales Contract.” The arbitration agreement, therefore, indicated that it would apply to an installment contract with Royal, a document that never existed, and a transaction that never took place.

Royal asserts that the “exact same language” in the instant Arbitration Agreement Addendum “was held to be clear, understandable, and non-adhesionary in Dufrene v. HBOS Manufacturing, LP, 03-2201 (La.App. 4 Cir. 4/7/04), 872 So.2d 1206, ruling on rehearing, 03-2201 (La.App. 4 Cir. 5/28/04), 872 So.2d at 1212.” Again, we disagree. While it is true that the Supreme Court in Aguillard spoke approvingly of Dufrene and the Fourth Circuit’s liberal approach to analyzing arbitration agreements, the Arbitration Agreement in Dufrene did not contain the “exact same language.” Rather, the first sentence in the Arbitration Agreement Addendum in Dufrene stated as follows:

This Arbitration Agreement (“Agreement”) is executed contemporaneously with, and becomes part of the Retail Installment or Sales Contract (“Contract”) for the purchase of a manufactured home (“Home”) as described in the Contract by the purchaser (“Purchaser”) from the selling retailer (“Retailer”).

Dufrene, 872 So.2d at 1209 (emphasis added).

| uThe insertion of the word “or” above indicates that the arbitration agreement addendum in Dufrene was clearly intended to apply to a retail installment contract or a sales contract, unlike the instant agreement which referenced one specific document, a non-existent “Retail Installment of Sales Contract.” Moreover, the court in Dufrene referenced an underlying arbitration agreement, such that the “addendum” was actually an addendum to an existing arbitration agreement. In the present case, the Arbitration Agreement Addendum was not what it purported to be. It was not an addendum at all, but rather stood alone; and, rather than being characterized as clear and understandable, it was ill-conceived, and it created confusion and ambiguity, as it attempted to incorporate by reference a document and a transaction that did not exist at any time between Royal and Easterling.

We acknowledge the presumption of arbitrability in the state and federal statutes. However, we do not believe that Congress or our state Legislature intended to find all arbitration agreements enforceable simply because they are written agreements, which appears to be Royal’s argument. That is, if there is a written arbitration agreement, no matter what it says, the case must go to an arbitrator. That is not what the law says. Rather, an accurate summary would state that (1) if there is a valid arbitration agreement, then (2) whether the particular complaints are referable to arbitration should be determined by the arbitrator. In the present case, the trial court first determined that there was no valid arbitration agreement, and that ended the issue of arbitration. While the trial court did not cite the state or federal statutes on arbitration, it did invalidate the agreement “upon such grounds as exist at law or in equity for the revocation of any contract,” pursuant to 9 U.S.C. § 2 and La.R.S. 9:4201.

CONCLUSION

Based upon the foregoing, the trial court’s denial of the Motion to Compel Arbitration, and the Motion for Reconsideration, are hereby affirmed. Costs of this appeal are assessed against the defendant, Royal Manufactured Housing, LLC.

AFFIRMED.

      . See, Stadtlander v. Ryan’s Family Steakhouses, 34,384 (La.App. 2 Cir. 4/4/01), 794 So.2d 881, writ denied, 01-1327 (La.6/22/01), 794 So.2d 790; Simpson v. Pep Boys-Manny Moe & Jack, Inc., 03-358 (La.App. 4 Cir. 4/10/03), 847 So.2d 617; Dufrene v. HBOS Manufacturing, LP, 03-2201 (La.App. 4 Cir. 4/7/04), 872 So.2d 1206, ruling on rehearing, 03-2201 (La.App. 4 Cir. 5/28/04), 872 So.2d at 1212.

      . Aguillard therefore abrogated the First and Third Circuit cases of Posadas v. The Pool Depot, Inc., 02-1819 (La.App. 1 Cir. 6/27/03), 858 So.2d 611, writ denied, 03-2125 (La. 11/7/03), 857 So.2d 502, Sutton's Steel & Supply, Inc. v. BellSouth Mobility, Inc., 00-511 (La.App. 3 Cir. 12/13/00), 776 So.2d 589, writ denied, 01-0152 (La.3/16/01), 787 So.2d 316, Simpson v. Grimes, 02-869 (La.App. 3 Cir. 5/21/03), 849 So.2d 740, writ denied, 03-2497 (La. 12/19/03), 861 So.2d 567, and Vishal Hospitality, L.L.C. v. Choice Hotels International, Inc., 04-568 (La.App. 1 Cir. 3/24/05), 907 So.2d 80, writ granted, cause remanded, 05-1058 (La. 1/9/06), 918 So.2d 1020.

      . We are not holding that all arbitration agreements are invalid if the underlying suit is one in redhibition rather than one for breach of contract. We acknowledge that the arbitration agreement in this case attempted to apply itself to a breach of implied warranty cause of action. However, the arbitration agreement in this case was fatally flawed at the outset b&fore it discussed the types of disputes to which it would apply or the specific law that would control it.

      . La.Civ.Code art. 2056. Standard-form contracts: "In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text. A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party.”


text:
    Chad EASTERLING, et al. v. ROYAL MANUFACTURED HOUSING, LLC, et al.
    No. 06-1084.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2007.
    Lamont Paul Domingue, Voorhies & Labbe, Bruce David Beach, Ungarino & Eckert, L.L.C., F. Douglas Ortego, Juneau Law Firm, Lafayette, LA, for Defendant/Appellant, Royal Manufactured Housing, LLC.
    Andrea D. Aymond, Riddle & Moreau, L.L.C., Marksville, LA, for Plaintiffs/Ap-pellees, Chad Easterling and Lisa Easter-ling.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated case of Chad Easterling, et al. v. Royal Manufactured Housing, LLC, et al., 07-192 (La.App. 3 Cir. 6/6/07), 963 So.2d 399, 2007 WL 1611138, the judgment of the trial court is affirmed. Costs are assessed to Royal Manufactured Housing, LLC.

WRIT DENIED.


text:
    Chad EASTERLING, et al. v. ROYAL MANUFACTURED HOUSING, LLC, et al.
    No. 07-136.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2007.
    Lamont Paul Domingue, Voorhies <& Labbe, Bruce David Beach, Ungarino & Eckert, L.L.C., F. Douglas Ortego, Juneau Law Firm, Lafayette, LA, for Defendant/Appellant, Royal Manufactured Housing, LLC.
    Andrea D. Aymond, Riddle & Moreau, L.L.C., Marksville, LA, for Plaintiffs/Ap-pellees, Chad Easterling and Lisa Easter-ling.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated case of Chad Easterling, et al. v. Royal Manufactured Housing, LLC, et al., 07-192 (La.App. 3 Cir. 6/6/07), 963 So.2d 399, 2007 WL 1611138, the judgment of the trial court is affirmed. Costs are assessed to Royal Manufactured Housing, LLC.

WRIT DENIED.


text:
    Rex TOWNSLEY and J. Mac Morgan v. QUALITY MARINE SERVICES, INC. and Indemnity Insurance Company of North America.
    No. 2007-283.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2007.

      Rex D. Townsley, The Townsley Law Firm, J. Mac Morgan, Law Office of Mac Morgan, Lake Charles, Louisiana, for Appellants, Rex D. Townsley and J. Mac Morgan.
    Carl T. Conrad, Henderson, Reilly & Boudreaux, Houma, LA, for Appellees, Quality Marine Services, Inc. and Indemnity Insurance Co.
    Court composed of SYLVIA R. COOKS, GLENN B. GREMILLION, and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

I,This litigation began with Gerard Bol-lich filing a maritime personal injury suit against Quality Marine Services, Inc. and its insurer, Indemnity Insurance Company of North America. Bollich was represented by appellants, Rex Townsley and J. Mac Morgan. A settlement was reached in mediation, which was reduced to writing at the completion of the mediation by counsel for Bollich. A Receipt, Release, and Indemnity Agreement, which incorporated the provisions of the agreed upon settlement, was then prepared and signed by the parties. The litigation in federal court was then dismissed.

At issue in this matter was the settlement’s provision that $100,000 be set aside in an escrow account “to fund medical expenses related to GERARD BOL-LICH’s lumbar spine surgery that has been recommended by Dr. Clarke Gunder-son.” The “Receipt, Release, and Indemnity Agreement” further provided that “[t]he funds deposited in the escrow account must be utilized by GERARD BOL-LICH within eighteen months from the date of June 3, 2005, or by December 3, 2006, or the funds will revert to Quality Marine Services, Inc., and its underwriters and insurers.”

On July 7, 2005, in accordance with the terms of the release agreement, Quality Marine deposited $100,000 into an escrow account. On July 8, 2005, Mr. Bollich’s attorneys, Townsley and Morgan, made demand on Quality Marine for their 40% contingency fee on the $100,000 portion of the settlement in the escrow account. Quality Marine refused to pay.

Townsley and Morgan then filed a “Petition for Enforcement of Attorney’s Fee Lien” seeking said payment. In response to the petition, Quality Marine filed a | ¿motion for summary judgment asking that the claims of Townsley and Morgan be dismissed. Both Townsley and Morgan filed their own motions for summary judgment declaring “they were entitled to their 40% contingency fee on the $100,000 of the settlement between defendants and Gerard Bollich.” Two hearings were held on the motions. After the first hearing, held on December 1, 2005, the trial court ruled that the $100,000 would remain in escrow to be drawn upon by Mr. Bollich as his future medical care would necessitate without any deduction of attorney fees. The funds were never used by Mr. Bollich. On December 4, 2006, the trial court held the second hearing, at which the following discussion took place:

THE COURT
... There was a Motion for Summary Judgment in this matter filed by plaintiffs’ counsel in this matter, seeking 40 percent of a contingency fee contract of a hundred thousand dollars in a settlement. That hundred thousand dollars was set aside for future medical expenses. The argument being that the future medical expenses, that hundred thousand dollars would either go, (A) to the victim in this case, whom the plaintiffs’ attorneys represent, or (B) if it’s not used, then it would revert back to the insurance company. Under either theory, I find that the Court cannot award 40 percent of that sum, since under neither scenario was it listed in the contract that that particular sum should go back to the — or the 40 percent may come out of the total amount. But this specific amount, it can’t come out of the specific one hundred thousand dollars since it’s already been detailed as to where that money would go, and the plaintiffs would certainly have to seek any type of reimbursement from their client, but it wouldn’t — it could not come out of this particular fund. So the Court is going to deny the plaintiff attorneys’ Motion for Summary Judgment at this point.
MR. BOUDREAUX:
Your Honor, may it please the Court, I—
THE COURT:
You need to get by a microphone if you want to do it in court.
MR. BOUDREAUX:
Your Honor, I am Barry Boudreaux here, and I’m representing Quality Marine and its insurance carrier. I believe if I am correct, there was a cross motion for summary judgment. I could be mistaken, but I think there were two motions perhaps before the Court. It’s been — I think we waited the 18th-month [sic] period, under the contract, for the plaintiff to have whatever medical treatment he was going to have, but |aI just wanted the Court to, if you could, check the record and see if I am correct on that. I understand your ruling.
THE COURT:
Well, if that 18th-month [sic] period of time has elapsed, if you will present a judgment to me — in the motion — in the judgment itself, point out that the 18th-month [sic] period of time has — I’m not going to check it myself,—
MR. BOUDREAUX:
I understand.
THE COURT:
—but you can certainly file it, and then the Court will sign it and grant it, based on that factor. I think I left it open for 18 months to see if the money was being used for future medical. If not, it would, in fact, revert back. And the Court would order, and the motion by Defense, that if the money has not been used, as was set out in the contract, in that 18th-month [sic] period of time, that it would be returned to the insurance company. And I will sign a judgment when presented to me.

On January 9, 2007, the trial court signed a judgment dismissing the motion for summary judgment filed by Townsley and Morgan. On January 29, 2007, the trial court signed a judgment granting Quality Marine’s motion for summary judgment. Townsley and Morgan have appealed.

ANALYSIS

In Hines v. Riceland Drilling Co., 04-503, pp. 3-4 (La.App. 3 Cir. 9/29/04), 882 So.2d 1287, 1289-90, writ denied, 04-2705 (La.1/07/05), 891 So.2d 681, this court set forth the law applicable to the appellate review of summary judgments, stating as follows:

In Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230-31, the Louisiana Supreme Court discussed the standard of review of a summary judgment as follows:
Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the |4affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows:
The burden of proof remains with the movant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).
Hines, 882 So.2d at 1289-90. Thus, we must undertake a de novo review of the summary judgment.

The facts in this case are not in dispute. The “Receipt, Release, and Indemnity Agreement” signed by both sides clearly reflects the intent of the parties to return the funds in escrow to Quality Marine if not utilized for future medical expenses by December 3, 2006. The relevant provision provides:

a) Quality Marine Services, Inc., and its underwriters agree to deposit $100,000 in an escrow account to fund medical expenses related to GERARD BOL-LICH’s lumbar spine surgery that has been recommended by Dr. Clarke Gun-derson, for injuries sustained on June 29, 2003. The funds deposited in the escrow account must be utilized by GERARD BOLLICH within eighteen months from the date of June 3, 2005, or by December 3, 2006, or the funds will revert to Quality Marine Services, Inc., and its underwriters and insurers.

This provision clearly does not provide for payment of a 40% contingency fee to Mr. Bollich’s attorneys. The provision also clearly established a suspensive condition which Mr. Bollich was required to meet before utilizing the funds. The potential payment of the $100,000 placed in the escrow account was conditioned upon Mr. Bollich submitting to a specific medical procedure. Absent such, the agreement unambiguously provides that the funds “will revert” to Quality Marine and its underwriters and insurers. The placement of $100,000 in the medical expenses [sescrow account did not create an unconditional payment to Mr. Bollich for which his attorneys were entitled to receive 40% of in fees. The escrow account created a conditional obligation, which could only be triggered by Mr. Bollich undergoing spinal surgery, which he chose not to do. “A conditional obligation is one dependent on an uncertain event.” La.Civ.Code art. 1767. “If the obligation may not be enforced until the uncertain event occurs, the condition is suspensive.” Id. “If the condition is that an event shall occur within a fixed time and that time elapses without the occurrence of the event, the condition is considered to have failed. La.Civ.Code art. 1773. Since Mr. Bollich’s right to the escrow account never materialized, his attorneys cannot claim any right to fees on that amount. The trial court’s grant of Quality Marine’s motion for summary judgment and its denial of Townsley’s and Morgan’s motion for summary judgment were correct.

DECREE

For the above reasons, the judgments appealed from are affirmed. All costs of this appeal are assessed to appellants, Rex Townsley and J. Mac Morgan.

AFFIRMED.

      . The settlement also provided that Mr. Bol-lich receive an immediate payment of $600,000.00.


author: PETERS, J.

text:
    WMC MORTGAGE CORPORATION v. Raymond Eugene WEATHERLY and Donna Louise Weatherly.
    No. 2007-0075.
    Court of Appeal of Louisiana, Third Circuit.
    June 13, 2007.

      Charles Schrumpf, Schrumpf & Schrumpf, PLC, Sulphur, LA, for Plaintiff/Appellee, WMC Mortgage Corporation.
    Richard D. Moreno, E.R. Robinson, III, Robinson and Moreno, L.L.C., Lake Charles, LA, for Defendant/Appellant, Donna Louise Weatherly.
    Court composed of ULYSSES G. THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and ELIZABETH A. PICKETT, Judges.
   PETERS, J.

hThe defendant, Donna Louise Weatherly, appeals a trial court judgment reforming a conventional mortgage and promissory note in favor of the plaintiff, WMC Mortgage Corporation (WMC Mortgage), by judicially recognizing that her separate property is encumbered by the conventional mortgage and that the indebtedness evidenced thereby is a community debt even though she never executed either instrument. For the following reasons, we reverse.

DISCUSSION OF THE RECORD

The facts surrounding the events leading up to this litigation are generally not in dispute and begin with the marriage of Donna Louise Weatherly and Raymond Eugene Weatherly on May 7, 1982. Almost twelve years later, on March 14, 1994, Mrs. Weatherly acquired full ownership of a tract of immovable property located in Section 27, Township 10 South, Range 9 West, in Calcasieu Parish, Louisiana. There exists no dispute over the fact that the property is Mrs. Weatherly’s separate property.

Despite its separate status, Mr. and Mrs. Weatherly used the property as security for a loan from Southern Mortgage Company (Southern Mortgage) in October of 1996, when both executed a conventional mortgage and promissory note in favor of Southern Mortgage. The transaction occurred on October 15, 1996, with the property being used as security for a loan of $30,000.00.

On November 4, 1997, Mr. Weatherly executed a conventional mortgage and promissory note in favor of WMC Mortgage using Mrs. Weatherly’s same separate property. The difference between the WMC Mortgage transaction and the Southern Mortgage transaction is that in the WMC Mortgage transaction, Mrs. Weatherly did not sign the mortgage or the note. In exchange for Mr. Weatherly’s execution of the conventional mortgage and note, WMC Mortgage loaned him $46,400.00, repayable |2⅛ monthly payments of $468.02. The Settlement Statement executed by Mr. Weatherly reflects that after settlement charges totaling $6,811.80 were deducted from the amount loaned, an additional $28,818.00 was disbursed to pay the holder of the Southern Mortgage note. Other disbursements indicated by the Settlement Statement included $3,243.00 to Bank One, $960.00 to Campo, $312.00 to K & B Drugs, and $422.00 to an entity for child support. The remaining balance of approximately $6,000.00 was disbursed directly to Mr. Weatherly. Mr. Weatherly testified that he used the cash to pay Calcasieu Marine Bank the balance owed on a loan which he had incurred to purchase a mobile home that he used as rental property. According to Mr. Weatherly, the mobile home, which had been purchased during his marriage to Mrs. Weatherly, burned and was not covered by insurance.

The Weatherlys initially made the monthly payments to WMC Mortgage as required by the November 4,1997 transaction, but discontinued payments sometime in 2003. Coincidentally, the Weatherlys obtained a divorce on July 26, 2004. Thereafter, when Mrs. Weatherly refused to agree to recognize that her separate property was properly pledged as security for the loan obtained by her former husband, WMC Mortgage brought the instant action to reform the mortgage and note signed by Mr. Weatherly on November 7, 1997, to reflect that Mrs. Weatherly was a party to the transaction, that she understood that her separate property was to be Dused as security for the loan, and that the proceeds were used to extinguish community debts.

WMC Mortgage filed suit against both Mr. and Mrs. Weatherly on October 13, 2003, and the matter was tried in stages over a period of over more than one year. Upon completion of the evidence, the trial court issued written reasons for judgment granting WMC Mortgage the relief it requested. After the trial court denied Mrs. Weatherly’s motion for new trial, she perfected this appeal, asserting two assignments of error:

1. The trial court erred by rendering judgment ordering the equitable “reformation” of a conventional mortgage to add an owner-spouse as a new mortgagor where the original mortgage was executed only by a non-owner spouse over the owner-spouse [sic] objections and where the lender specifically rejected its counsel’s advice to have the owner spouse execute the mortgage.
2. The trial court erred by rendering judgment ordering the equitable “reformation” of the related promissory note to add an owner-spouse as a co-obligor where the original mortgage note was executed only by a non-owner spouse over the owner-spouse [sic] objections and where the lender specifically rejected its counsel’s advice to have the owner spouse execute the mortgage note.

OPINION

We first recognize that because the property was Mrs. Weatherly’s separate property, and Mr. Weatherly had no interest in the property, Mr. Weatherly had no right to mortgage the property. Louisiana Civil Code article 3290 provides that “[a] | conventional mortgage may be established only by a person having the power to alienate the property mortgaged.” One cannot validly mortgage another person’s property. State, Through Dep’t. of Transp. & Dev. v. Wahlder, 94-761 (La.App. 3 Cir. 12/7/94), 647 So.2d 481.

While it is undisputed that Mrs. Weath-erly did not sign the November 4, 1997 mortgage and note, she did participate to a limited extent in the transactions of that date. The extent of her involvement in the November 4 transaction and the legal effect of her limited participation are the issues now before us on appeal.

Reformation is an equitable remedy that is available to correct errors or mistakes in written instruments only when the instruments as written do not reflect the true intent of the parties. Agurs v. Holt, 232 La. 1026, 95 So.2d 644 (1957). In a reformation action the party seeking reformation bears the burden of establishing mutual error and mistake by clear and convincing proof. Id.

A mutual mistake is a mistake shared by both parties to the instrument at the time of reducing their agreement to writing, and the mistake is mutual if the contract has been written in terms which violate the understanding of both parties; that is, if it appears that both have done what neither intended. The evidence of mutuality must relate to the time of the execution of the instrument and show that the parties then intended to say one thing and by mistake expressed another and different thing.

Teche Realty & Inv. Co., Inc. v. Morrow, 95-1473, p. 4 (La.App. 3 Cir. 4/17/96), 673 So.2d 1145, 1147 (citation omitted).

As a general rule, whether there is a mutual error is mainly a question of fact, and the trial court’s factual finding cannot be disturbed on appeal unless it is clearly wrong. Succession of Jones v. Jones, 486 So.2d 1124 (La.App. 2 Cir.), writ denied, 489 So.2d 249 (La.1986). The manifest error or clearly wrong standard demands great deference for the trier of fact’s findings. Theriot v. Lasseigne, 93-2661 (La 7/5/94), 640 So.2d 1305. Where different, yet permissible, views of the evidence exist, the factfinder’s choice from among the different permissible views cannot be manifestly erroneous or clearly wrong. Stobart v. State, Through Dep’t. of Transp. & Dev., 617 So.2d 880 (La.1993). “[T]he issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one.” Id. at 882.

In its written reasons for judgment, the trial court specifically recognized that Mr. Weatherly had no legal authority to mortgage his wife’s separate property, but granted the requested reformation to the mortgage and the promissory note. The trial court in effect concluded that Mrs. Weatherly was a party to the underlying agreement to borrow the money and mortgage the property, making the following factual findings:

The Plaintiff has met its’tsic] burden of proving mutual error by the clear and convincing evidence necessary for the Court [to] order a reformation of a contract. There was clear evidence that Mrs. Weatherly knew of the mortgage and intended on being a signatory. After being erroneously told she was not needed, she did not sign the document. While the marriage was ongoing payments were made from community funds to satisfy the obligation. It is only after domestic issues arose and the Husband and Wife separated that the mortgage issues arose. Evidence was presented proving Mrs. Weatherly was a part of the antecedent agreement and then somehow regrettably left off of the mortgage documents.
There is no question that the funds described in the promissory note were received by the Plaintiffs. The parties stipulated that the funds secured were used by the Defendants to pay community debts. Because of this, the funds in controversy should undoubtedly be considered a community obligation because the funds were incurred for the “common interest of the spouses.” The basis of these funds were the mortgaged property.

The trial court’s factual finding that Mrs. Weatherly intended to sign the mortgage was not based on any evidence presented at trial.

| (¡In support of its claim for reformation of the mortgage and promissory note, WMC Mortgage offered the testimony of Eva Townsend, a loan closing secretary for the law firm that closed the November 4, 1997 loan. According to Ms. Townsend, both Mr. and Mrs. Weatherly were present at the loan closing, as was Robert Cupid, a loan officer representing WMC Mortgage. Ms. Townsend recalled going over the entire loan closing package with both Mr. and Mrs. Weatherly, including the proposed disbursements evidenced on the Settlement Statement. When she was informed that only Mr. Weatherly was to sign the conventional mortgage and note, Ms. Townsend immediately advised Mr. Cupid that Mrs. Weatherly’s signature was necessary. However, her testimony does not clarify why she volunteered that advice to Mr. Cupid. According to Ms. Townsend, Mr. Cupid “protested that no, they did not want her signature on any documents whatsoever” because of “credit reasons.” Although Mrs. Weatherly did not sign the loan instruments, Ms. Townsend recalled that at no time did Mrs. Weatherly protest the use of her separate property as security during the loan closing proceedings.

Mrs. Weatherly testified on her own behalf. She acknowledged that she and her husband had used her separate property as security in securing the loan from Southern Mortgage, that the Southern Mortgage loan was a community obligation, and that the proceeds of the WMC Mortgage loan were used to pay that obligation as well as other community debts. Additionally, she acknowledged that she was present when the November 4, 1997-mortgage and note were executed by her former husband. But she |7disputed Ms. Townsend’s testimony that she participated in the review of the loan documents. According to Mrs. Weatherly, she came to the closing to explain to the closing attorney that she did not want to mortgage her home. She emphatically denied that she ever gave her husband permission to use her separate property as security for the loan, but did acknowledge that she and her husband had discussed the need to borrow the money. Still, she witnessed her husband signing the mortgage and note, and acknowledged that she knew that day that a mortgage had been taken out on her separate property.

Mr. Weatherly testified that while he and his former wife had discussed the loan, she expressed her opposition to it. However, he completed the transaction because he thought it was their best financial alternative and “as her husband [he] did it.” He denied knowing that, because it was her separate property, he had no legal right to encumber it.

The only evidence that could be construed to support the trial court’s factual finding that Mrs. Weatherly intended to sign the mortgage is Ms. Townsend’s testimony that Mrs. Weatherly did not make an active protest when her separate property was mortgaged. Because there was no evidence other than Mrs. Weatherly’s silence to support its factual findings, the trial court was clearly wrong in finding that Mrs. Weatherly intended to sign the mortgage. And based on the evidence presented at trial, it would not be reasonable to conclude' that Mrs. Weatherly was a party to the underlying agreement to borrow the money and mortgage the property.

By adding Mrs. Weatherly to the mortgage and the promissory note, the trial court made a new contract, different from the one agreed to by Mr. Weatherly and IsWMC Mortgage. See In re Tutorship of Witt, 99-646 (La.App. 3 Cir. 11/3/99), 747 So.2d 1142, writ denied, 99-3426 (La.2/4/00), 754 So.2d 238. But a reformation can only be made to reflect the actual intention or agreement of the parties to the instrument at the time of its execution. Accordingly, the trial court erred in reforming the mortgage and the promissory note to add Mrs. Weatherly onto the documents when she was not a party to either the instruments or the underlying agreement. See Chanrai Inv., Inc. v. Clement, 566 So.2d 838 (Fla.App. 5 Dist., 1990), review denied, 576 So.2d 285 (Fla.1991) and Lusher v. Sparks, 146 W.Va. 795, 122 S.E.2d 609 (1961).

WMC Mortgage argues that even if Mrs. Weatherly is not a party to the instruments or the underlying agreement, equitable reformation is also allowed as to the privies of the original parties, citing to Placid Ref. Co. v. Privette, 523 So.2d 865 (La.App. 1 Cir.), writ denied, 524 So.2d 748 (La.1988), and First State Bank & Trust Co. of East Baton Rouge Parish v. Seven Gables, Inc., 501 So.2d 280 (La.App. 1 Cir.1986), writ denied, 502 So.2d 103 (La.1987). Even assuming that an instrument may be reformed as to those who are privy to the original parties, WMC Mortgage’s argument fails because Mrs. Weatherly is not a privy to Mr. Weatherly or WMC Mortgage. “A ‘privy’ is one who has succeeded to some right or obligation which one of the parties to the act derived through the act or incurred under it.” Commercial Germania Trust & Savings Bank v. White, 145 La. 54, 81 So. 753, 755 (1919). Mrs. Weatherly has not succeeded to any right or obligation under the mortgage or the note, nor does she have any interest in them. Thus, she is not a privy within the meaning of the cases that WMC Mortgage cites.

INDISPOSITION

For the foregoing reasons we reverse the judgment of the trial court reforming the mortgage and the promissory note. We tax all costs to the plaintiff, WMC Mortgage Corporation.

REVERSED.

      . The check drawn on the escrow account of the closing attorney reflects that the amount paid to the mortgage holder was $29,245.56. However, this discrepancy does not affect the analysis of the transaction.

      . Mr. Weatherly testified that he received $6,088.00 at closing. If he received this amount, the Settlement Statement is not totally accurate. However, this discrepancy does not affect the analysis of the transaction.

      . All payments to WMC Mortgage were made with community funds.

      . The first hearing occurred February 3, 2005; after taking some evidence, the matter was then left open. The evidentiary portion of the trial was completed on June 2, 2005, and a final hearing on a motion for new trial was held on April 13, 2006. The delay in completing the record relates primarily to efforts by Mr. and Mrs. Weatherly to seek relief in the United States Bankruptcy Court for the Western District of Louisiana.

      . Before completion of the trial, Mr. Weatherly was successful in obtaining relief in the United States Bankruptcy Court for the Western District of Louisiana. Therefore, the judgment of the trial court was rendered against Mrs. Weatherly only and she is the only party-appellant now before this court.

      . Ms. Townsend is not an attorney and certainly could not give Mr. Cupid legal advice. However, we are left only to speculate whether Ms. Townsend- recognized the separate nature of the property or had other reasons for suggesting that Mrs. Weatherly should sign the document.

      . The only disbursement from the November 4, 1997 transaction which seems to be questionable as to whether it is a community debt is the $422.00 child- support payment. The record does not establish the exact nature of that obligation or even to whom it was paid.

      . Mrs. Weatherly admitted that she never spoke to the closing attorney, but testified that she expressed her concerns to the receptionist and Ms. Townsend.