text:
    STATE of Louisiana ex rel. Quinton BLACKSTONE v. STATE of Louisiana, et al., Ross Maggio, Jr., Warden.
    No. 84-KH-0146.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Quinton Blackstone, applying for supervisory writs, to the Criminal District Court, Parish of Orleans, No. 245-247, Section “B”.

Granted. The ruling of the trial judge is set aside; the ease is remanded to the district court. An evidentiary hearing is ordered to consider and decide the claim of constitutionally excessive sentence. The district court is ordered to appoint a lawyer to represent relator.

MARCUS and WATSON, JJ., dissent from the order.


source: Caselaw Access Project

author: .YELVERTON, Judge.

license: Public Domain

text:
    C.J. CLARK and Lois Clark, Plaintiffs-Respondents, v. LAFAYETTE ASSOCIATION OF RETARDED CITIZENS, et al., Defendants-Relators.
    No. 84-371.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 6, 1984.
    Rehearing Denied Sept. 11, 1984.
    Davidson, Meaux, Sognier & McElligott, Stephen H. Myers, and Anthony J. Fazzio, Lafayette, for defendants-relators.
    Gregory B. Dean, Lafayette, for plaintiffs-respondents.
    Before FORET, YELVERTON and KNOLL, JJ.
   .YELVERTON, Judge.

The defendants-relators, Lafayette Association for Retarded Citizens, Inc., (LARC) and Irving and Bonnie Manuel, sought supervisory writs from a judgment granting a preliminary injunction. We granted the writ in order that the positions of the parties could be more closely considered, and we ordered up the transcript of the proceedings and a stay of all proceedings pending further action by this court. The matter is now ready for decision.

FACTS

LARC is a non-profit corporation which exists to provide for the care and supervision of retarded citizens. On January 18, 1984, the Manuels leased to LARC a residence located on lot 13 of the Westgate Subdivision in the Town of Scott. LARC intended to establish in the residence a community home for retarded individuals pursuant to LSA-R.S. 28:475-478.

The respondents, C.J. Clark and Lois Clark, are the owners of another lot in the Westgate Subdivision. They petitioned the court seeking a preliminary injunction to stop LARC from operating the home. Their petition alleged two reasons why the activity should be prohibited. First, it was alleged to be in violation of the building restrictions affecting the property within the subdivision. Second, it was alleged that LARC had failed to obtain the required approval of the site as a community home. The parties stipulated to the fact that LARC failed to seek approval of the community home from the local governing authority of the Town of Scott, the Town Council.

The building restrictions relied on by the residents read as follows:

“1. All of the lots located in Westgate Subdivision which are numbered, those being Lots 1 through 53, shall be used exclusively for residential purposes.
“2. No structures shall be erected, altered, placed or permitted to remain on any residential building lot, other than one detached, single family dwelling not exceeding two and one-half stories in height, and a private garage and other out buildings incidental to residential use of the plot.”

The defendants answered the suit and also filed reconventional demands against the plaintiffs for damages.

A summary hearing was held on March 20, 1984, as to the injunctive relief only. The court granted the preliminary injunction finding that LARC’s activities violated the building restrictions. In its reasons for judgment the trial court did not consider the effect of the failure to obtain the required approval of the site as a community home.

THE ISSUE

The issue presented to this court is whether the trial court properly granted the preliminary injunction. We find that the injunction was proper but for reasons different from those given by the trial court.

It is clear that building restrictions may be enforced by mandatory and prohibitory injunctions. La.Civil Code art. 779.

In the present case the house in West-gate Subdivision is to be used strictly as a residence for six or fewer mentally handicapped individuals with two staff members working in the house on a rotating shift basis. LARC’s activities within the home is to provide services for the residents in teaching them daily living skills. The mentally handicapped residents will not be members of the same family.

Such activities do not violate a building restriction which limits the use of the residence for “residential purposes only”, since the home is being used strictly as a residence for the mentally handicapped as contrasted from the situation where a business is actually being run from the structure. See Harbour v. Normal Life of Louisiana, 454 So.2d 1208 (La.App. 3rd Cir.1984).

However, we do find that such activities are in violation of the building restriction which limits the dwellings to “single family dwellings.” Relators argue that Tucker v. Special Children’s Foundation, Inc., 449 So.2d 45 (La.App. 1st Cir.1984), writ denied 450 So.2d 959 (La.1984) is dispositive of this issue. We disagree.

Tucker, supra, involved a community home that had been established pursuant to LSA-R.S. 28:380-444. The court found that such a community home was not in violation of a building restriction almost identical to the restriction in the present case. The court reasoned that since the state’s Mental Retardation Law considered “community homes” that provide for six or fewer mentally retarded individuals as single-family units having common interests, goals and problems, this was a valid exercise of the state’s police power and thus superceded the building restriction. With this reasoning we agree.

However, before we can hold that the activity in the present case is not governed by the subdivision restriction, via the state police power, we must determine that it qualifies as a “community home” as defined by the statute. In this connection, we must consider the failure of LARC to notify the Town Council of Scott of its intention to file its application to the Department of Health & Human Resources to open a community home, and the consequent fact that LARC’s site has not been approved by the local governing authority in the Town of Scott pursuant to LSA-R.S. 28:478(C). That statute provides as follows:

C. The local sponsor shall notify the local governing authority of his intent to file an application to the department to open a community home. In any area over which a local planning commission has jurisdiction the site selection shall first be submitted to the local planning commission, which shall recommend approval or disapproval of the site to the local governing authority. The local governing authority shall then affirm or reverse the decision of the planning commission by a majority vote of its entire membership, within forty-five days of the date of the original notification to the local planning -commission. In any area in which there is no local planning commission, the local governing authority shall approve or disapprove the site within forty-five days from the date of the original notification to the local governing authority. Whenever the local governing authority has disapproved the site, the local sponsor and the department may develop an alternate site selection for the community home which is acceptable to the local sponsor, the local governing authority, and the department. (emphasis added)

It is the intent of this statute that sponsors, such as LARC, first notify and seek approval of a proposed site for a community home from the local governing authority of the area in which the home is to be located. This provision is a mandatory requirement in the establishment of a community home pursuant to LSA-R.S. 28:475-478. Since LARC has failed to follow the statutory prerequisites in the establishment of a community home, the home in Westgate Subdivision cannot be considered a community home under LSA-R.S. 28:381(8) or 477(1), and therefore there is no basis for saying that the exercise of the state police power supercedes the building restriction in question.

We therefore find that the activities of LARC in providing for the residence of individuals not members of a single-family unit violates the building restriction, and that the trial court properly issued a preliminary injunction prohibiting such activity.

For these reasons we now recall the writ granted herein and the case is remanded to the trial court for further proceedings.

WRIT RECALLED; CASE REMANDED.

FORET, J., concurs in the result.


author: ALFORD, Judge.

text:
    Frank P. ARNONE v. ILLINOIS CENTRAL GULF RAILROAD.
    No. 83 CA 1053.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Charles B.W. Palmer, Amite, for plaintiff-appellee.
    Frank S. Craig, III, Christine Litsey, Baton Rouge, for defendant-appellant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment notwithstanding the verdict in favor of plaintiff-appellee, Frank P. Arnone, Jr., and against defendant-appellant, Illinois Central Gulf Railroad (ICGR). Arnone filed suit alleging that ICGR’s failure to properly maintain a culvert and drainage ditch on its railroad right-of-way caused his property to flood, resulting in bacterial spot disease which destroyed his 1979 bell pepper crop. ICGR answered the petition denying liability and praying for a jury trial. Ar-none was then permitted to amend his petition to allege damages for the years 1980 and 1981. After answering the amended petition, ICGR filed a peremptory exception of prescription regarding the claim for damages for years 1980 and 1981. The trial judge reserved ruling on the exception until after a jury verdict could be rendered. After trial on the merits, the jury returned a verdict in favor of ICGR finding no liability.

Subsequently, Arnone filed a Motion for a New Trial. Prior to this motion being heard by the court, Arnone filed an Amended New Trial Motion, and Alternatively Motion for Judgment Notwithstanding the Verdict. On the hearing of this motion, the trial judge determined that a judgment notwithstanding the verdict was called for regarding the claim for the 1979 bell pepper crop and granted Arnone judgment in the amount of $5,363.00 plus costs and interest from judicial demand. Additionally, the trial judge maintained ICGR’s previously filed exception of prescription as to the claim for damages for 1980 and 1981. Next, Arnone filed a Motion for Amended New Trial, or Alternatively, to Amend Judgment Notwithstanding the Verdict. The trial judge, without a hearing on the motion, amended the judgment notwithstanding the verdict, additionally ordering ICGR to repair and maintain the culvert.

Appellant, ICGR, maintains that the trial judge erred in granting the judgment notwithstanding the verdict. It is appellant’s contention that the trial judge applied the wrong standard in determining that the judgment notwithstanding the verdict should be granted. Additionally, ICGR maintains that the trial judge erred in substantively amending the judgment on ap-pellee’s motion without a contradictory hearing. We agree. Appellee, Arnone, filed an untimely answer to the appeal seeking an increase in the damage award and alleging error on the part of the trial judge in sustaining ICGR’s exception of prescription. Arnone’s answer to the appeal was dismissed by this court in Arnone v. Illinois Central Gulf Railroad Company, 447 So.2d 61, (La.App. 1st Cir.1984), therefore, we need not consider these allegations in this appeal.

It is apparent that the trial judge applied the wrong legal standard in determining that a judgment notwithstanding the verdict was warranted in this case. In both his judgment and his oral reasons for the granting of the judgment, the trial judge stressed that the preponderance of the evidence was in favor of Mr. Arnone as to the claim for the 1979 crop failure.

LSA C.C.P. art. 1811 is the statutory authority for a motion for a judgment notwithstanding the verdict. This article does not, however, provide the standard to be applied by the trial judge in determining the propriety of such a motion. In Rougeau v. Commercial Union Ins. Co., 432 So.2d 1162 (La.App. 3rd Cir.1983), writ denied, 437 So.2d 1149 (La.1983), the Third Circuit determined that the proper standard to be applied on a motion for a judgment n.o.v. was that standard applied on motions for directed verdicts. Additionally, the Court determined that since the Louisiana Code of Civil Procedure provision was modeled after Rule 50(b), (c) and (d) of the Federal Rules of Civil Procedure, it was appropriate to look at federal jurisprudence interpreting those rules.

In determining what the appropriate standard for directed verdicts was in Louisiana, the Rougeau Court relied on Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir.1979). The Court in Campbell, in turn relied upon the U.S. Fifth Circuit case of Boeing v. Shipman, 411 F.2d 365, 374 (5th Cir.1969), where in the Court found,

On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence-not just that evidence which supports the non-mover’s case-but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.

We are of the opinion that the quality and weight of the evidence in this case is such that “reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions.”

It is not disputed that the culvert in question was partially obstructed and that some excessive water did in fact reach Mr. Arnone’s field. On the other hand, it is also not disputed that Mr. Arnone’s property is by nature low, poorly drained bottom land. Additionally, there is no dispute as to the fact that Mr. Arnone’s 1979 bell pepper crop was destroyed as the result of bacterial spot disease.

In support of his position, Mr. Arnone presented Mr. Delos Jones as an expert in the field of horticulture. Mr. Jones did in fact testify that the crop in question developed bacterial spot disease which results from the land becoming saturated with water. However, Mr. Jones further testified that bacterial spot disease was a prevalent disease in Tangipahoa Parish, often resulting from natural rainful conditions.

ICGR presented expert testimony tending to show that the amount of excess water reaching the Arnone property was inconsequential in comparison to the amount of water naturally reaching the property. It is apparent that the jury, as trier of fact, gave greater weight to this testimony than did the trial judge. As noted in Rougeau, supra, at 1166, in applying the correct standard on a motion for a judgment n.o.v., “... the court can not weigh the evidence, pass on the credibility of the witnesses, or substitute its judgment of the facts for that of the jury.” (citation omitted). Given the evidence presented, we are of the opinion that reasonable minds might reach contrary verdicts in this matter, and thus, the granting of the judgment n.o.v. was improper.

We further agree with ICGR’s position that it was error for the trial judge to substantively amend the judgment n.o.v. ex parte after it had been rendered. LSA C.C.P. art. 1951 provides,

“A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.

By ordering an additional affirmative act on the part of the railroad (i.e. repairing or maintaining the culvert), the judgment was amended substantively in contravention of LSA C.C.P. art. 1951.

Therefore, for the foregoing reasons, the judgment of the trial judge in granting the judgment n.o.v. and subsequently amending the judgment n.o.v. is hereby reversed. Judgment is hereby rendered in accordance with the verdict of the jury finding no liability on the part of the Illinois Central Gulf Railroad. Costs of this appeal are taxed to appellee, Mr. Frank Arnone, Jr.

REVERSED AND RENDERED.

      . At the time of the trial of this matter, the provisions of LSA C.C.P. art. 1811 were contained in LSA C.C.P. art. 1810.1, repealed by Acts 1983, No. 534, § 11. The repeal of article 1810.1 and the subsequent enactment of article 1811 by Acts 1983, No. 534 § 8, in no way affects this case.


author: KLIEBERT, Judge. PER CURIAM.

text:
    CENTURY BANK v. Beryl Melendy, Wife of/and Edward H. KEILER.
    No. 84-CA-90.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.
    Rehearing Denied Jan. 17, 1985.

      Cyril B. Burck, Jr., Kehl, Pickering, Co-togno & Delsa, New Orleans, for plaintiff-appellee.
    Sam 0. Buckley, Buckley & Buckley, Chalmette, for defendant-appellant.
    Before KLIEBERT, BOWES and DU-FRESNE, JJ.
   KLIEBERT, Judge.

The defendants, Beryl Melendy, wife of/and Edward H. Keiler, bring this devol-utive appeal from a deficiency judgment in favor of the plaintiff, Century Bank, rendered by the Twenty-fourth Judicial District Court, Parish of Jefferson, following a sheriff’s sale of plaintiff’s property in an executory proceeding filed under docket No. 255-444. On appeal, defendants contend the trial court erred in granting a deficiency judgment because of improprieties in the executory process and in using executory process to collect a vendor’s lien, coupled with errors in the distribution of the sale proceeds to Century Bank as an assignee of the person holding an alleged invalid vendor’s lien. For the reasons which follow, we affirm the trial court’s judgment.

At the trial of the deficiency judgment claim, Century Bank introduced numerous documents and court records to support its deficiency claim. Hence, a somewhat detailed examination and discussion of these documents is necessary to appreciate the posture of the case before this Court.

Century Bank was the holder of defendant’s promissory note (hand note) in the amount of $95,000.00, dated January 28, 1981, secured by pledge of a demand mortgage note in the amount of $100,000.00 dated January 28, 1981. The demand mortgage note is paraphed “Ne Varietur” with a collateral mortgage, dated January 28, 1981 on the property which was the subject of the foreclosure here. When the defendants defaulted in payment, Century Bank, on July 7, 1981, instituted foreclosure proceedings under Docket No. 255-444 of the Twenty-fourth Judicial District Court. The court granted executory process and as a result a writ of seizure and sale issued. The sheriff of Jefferson Parish seized the property and held a public sale with benefit of appraisal. At the public sale the property was adjudicated to Century Bank for $108,000.00.

According to the sheriffs process verbal of the public sale, the proceeds were disbursed as follows: $3,798.82 to the sheriff of Jefferson Parish as cost and commission; $33,378.03 to Century Bank in payment of the claims it acquired by assignment from Miriam M. Ferris, wife of/and Christopher Ferris, the original vendors of the property, to the defendants herein, and the balance of $70,823.15 to Century Bank to be applied to its outstanding debt due on the January 28, 1981 demand note held by the bank.

The defenses to the deficiency judgments urged by defendants arise out of the application of $33,378.03 of the sale proceeds to Century Bank for the claims obtained under the assignment from the Ferrises rather than to the principal and interest due on the defendants’ January 28, 1981 notes held by the bank.

The vendor’s lien to which the $33,378.03 was applied originated out of a credit sale of the property by Miriam Ferris, wife of/and Christopher Ferris to the defendants here, dated December 30, 1976. For some reason, unexplained by the record, in addition to an act of credit sale and the execution of a $44,000.00 note representing the balance due on the purchase price, the defendants on the same date executed an additional $44,000.00 demand note and a separate $44,000.00 mortgage on the property. One of the $44,000.00 notes was par-aphed to the mortgage; the other had no paraph. Sometime thereafter, the separate mortgage securing the $44,000.00 note was cancelled.

Subsequently a foreclosure by executory process was initiated under Docket No. 254-225 by the Ferrises on the $44,000.00 notes. The Keilers filed a petition seeking to enjoin the executory process for lack of authentic evidence. On July 7, 1981, before the foreclosure action under Docket No. 254-225 was consumated, the Ferrises assigned to Century Bank by notarial act the $44,000.00 note and the vendor’s lien created by the Act of Credit Sale together with the Ferrises rights in the foreclosure proceeding initiated under Docket No. 254-225.

The defendants’ contention of improprieties in the foreclosure here are the same as those he alleged in his initial petition for injunction under Docket No. 254-225. The record, however, shows Century Bank’s foreclosure brought under Docket No. 255-444 was predicated on the $100,000.00 note secured by collateral mortgage, both dated January 28, 1981, held by Century Bank.

In Reed v. Meaux, 292 So.2d 557 (La.1973) our Supreme Court held that where one of three mortgages was sufficient to support the grant of executory process the others were mere surplusage and their deficiency had no effect on the executory proceeding. Hence, any improprieties between the $44,000.00 notes, the act of credit sale and/or the separate $44,-000.00 mortgage are irrelevant to the exec-utory process granted by the bank in its foreclosure initiated by the bank on the defendants’ $100,000.00 note secured by collateral mortgage on the property foreclosed on. Therefore, defendants’ contentions as to the invalidity of the executory process predicated on inconsistency in the $44,000.00 notes and/or mortgage are without merit.

We next consider the defendants’ contention there was an unlawful use of executo-ry process to collect a vendor’s lien.

Contrary to the defendants’ contention, the vendor’s lien was not the lien being enforced via executory process, hence, any want of authentication was not fatal to the action for executory process. The vendor’s lien was a mere surplusage to the principal action to enforce the collateral mortgage. Reed v. Meaux, supra. Hence, defendants’ contentions in this regard are without merit.

We now consider the alleged inconsistencies in the $44,000.00 notes, act of credit sale and separate mortgage as it may affect the computation of the deficiency claim.

In its petition for a deficiency judgment the bank alleged an entitlement to a deficiency of $64,318.41 computed as follows:

Principal $ 95,000.00
Interest 13,113.25
Attorney Fees 27,028.31
Total 135,141.56
Less Proceeds from Sale 70,823.15
Balance Due $ 64,318.41

The defendants contend the application of the $33,378.03 to the payment of the vendor’s lien was an impropriety which bars recovery on the deficiency claim because it constituted the unlawful use of executory process to enforce a vendor’s lien. They further contend the vendor's lien was invalid. The exact basis urged by the defendants is not clear; but, the essence of his contentions stems out of the inconsistencies and confusions between the $44,000.00 notes originally executed by the defendants and secured by the vendor’s lien and/or the separate act of mortgage.

In an effort to clarify the inconsistencies, the testimony of the notary who confected the notes, the act of credit sale and the separate mortgage were introduced in evidence. The notary testified that in March 1977 the defendants sought to cancel the separate mortgage securing one of the $44,000.00 notes because there was no consideration for the note. The recorder of mortgages for the parish refused to cancel the mortgage without a notarial release of the mortgage. Consequently, on March 30, 1977, the parties executed a partial release of mortgage which cancelled the $44,000.00 mortgage and which also recognized and reserved the vendor’s lien contained in the act of credit sale. At the same time, the notary redated the unparaphed noté of December 30, 1976 to read March 30, 1977 to coincide with the date of the partial release of mortgage, but he failed to paraph the $44,000.00 redated note with either the act of credit sale or the partial release. During the course of the hearing on the deficiency claim, the trial judge considered the notary’s error in the paraphing of the note to be a clerical error and accordingly permitted the notary to properly paraph the note in open court, pursuant to the provisions of LSA-R.S. 13:4104.

A Louisiana vendor’s lien arises by operation of law as provided by La.C.C. Article 3274. Lessard v. Lessard Acres, Inc., 340 So.2d 351 (1st Cir.1976). A vendor’s lien and mortgage may coexist on one and the same property and one may be renounced or cancelled without affecting the other. They are both necessary to the principal obligation or debt and both fall when the obligation or debt falls, but failure of the security does not necessarily cause the debt to fall. State v. Broussard, 177 So. 403 (1st Cir.1937). The cancellation of the mortgage here did not affect the validity of the vendor’s lien because the notarial act (partial release of mortgage) cancelling same specifically reserved the right to enforce the vendor’s lien.

Further, the vendor’s lien primed the mortgage which was the basis for the foreclosure and the executory process. In distributing the proceeds from the sale the sheriff was required to satisfy the vendor’s lien prior to satisfying the mortgage being foreclosed on. Since the vendor’s lien was not the basis for the foreclosure or of the executory proceeding, it was not necessary to prove the amount of the debt (the unpaid portion of the purchase price) by authentic evidence. See Code of Civil Procedure Article 2635.

In the instant case, the public record reflects a credit sale of the property. The sale was evidence of a vendor’s lien and an underlying debt. The defendants did not allege in the trial court or argue here that the debt had been extinguished by any mode. Hence, the holder of the vendor’s lien was entitled to payment regardless of any alleged deficiencies on the note.

The defendants have shown no defects in Century Bank’s collateral mortgage or in the executory process initiated by the bank on the mortgage. Their challenge was limited to alleged inconsistencies in an irrelevant mortgage and/or to the payment of an alleged invalid vendor’s lien with the proceeds from a sheriff’s sale obtained in an executory proceeding. Defendants did not challenge the testimony in this deficiency judgment proceeding which established the balance of the purchase price owed at the time of the assignment of the vendor’s lien to Century Bank. On the other hand, Century Bank has shown the balance of the purchase price was due and secured by a vendor’s lien when assigned to Century Bank. Therefore, in computing the amount of the deficiency claim it was proper to deduct the portion of the sales proceeds used to pay the vendor’s lien.

Code of Civil Procedure Article 2771 sets forth when a deficiency judgment is obtainable as follows:

“The creditor may obtain a judgment against the debtor for any deficiency due on the debt after the distribution of the proceeds of the judicial sale only if the property has been sold under the execu-tory proceeding after appraisal in accordance with the provisions of Article 2723.”

Century Bank has met those requirements and hence is entitled to the deficiency judgment.

Accordingly, the judgment of the trial court is affirmed. Appellant to pay all costs.

AFFIRMED.

ON APPLICATION FOR REHEARING

PER CURIAM.

The original opinion in this case was handed down on November 13, 1984. The defendant-appellant filed a petition for rehearing on December 13, 1984. The petition is denied for being untimely. Rule No. 2-18.2 Uniform Rules, Court of Appeal.


author: HALL, Judge.

text:
    STATE of Louisiana, Appellee, v. Charles Edward THOMAS, Appellant.
    No. 16436-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.

      Kidd & Kidd by Paul Henry Kidd, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Earl Cox, Asst. Dist. Atty., Monroe, for appel-lee.
    Before HALL, SEXTON and NORRIS, JJ.
   HALL, Judge.

The defendant, Charles Edward Thomas, appeals his conviction and sentence, pursuant to a guilty plea, of attempted possession of heroin, in violation of LSA-R.S. 14:27 and 40:966 C. The trial court sentenced the defendant to serve four years at hard labor without benefit of probation or suspension of sentence. On defendant’s application for writs, after denial of his motion by the district court, this court ordered the district court to grant defendant’s motion for an out-of-time appeal limited to excessiveness of sentence and jurisdictional defects. Because the record discloses a jurisdictional defect, the defendant’s conviction and sentence are set aside and the case is remanded to the district court.

The defendant assigns as error the following:

(1) The bill of information charging defendant with a crime punishable with life imprisonment should have been quashed by the trial court;

(2) The trial court erred in failing to set aside defendant’s guilty plea;

(3) The trial court erred in sentencing defendant to the Louisiana State Penitentiary;

(4) The trial court’s sentence imposed against defendant was excessive and failed to follow the sentencing guidelines; and

(5) The trial court erred in failing to set aside defendant’s guilty plea on the grounds that defendant was denied effective assistance of counsel during all phases of the criminal proceedings against him.

Assignment of Error No. 1:

On December 10, 1981, the defendant was charged by bill of information with Possession of a Schedule I Narcotic Drug, heroin, with the intent to distribute, contrary to the provisions of LSA-R.S. 40:966 A. Under LSA-R.S. 40:966 B, the penalty for distribution of a substance classified as a narcotic drug under Schedule I, such as heroin, is life imprisonment at hard labor without benefit of probation or suspension of sentence. Pursuant to the bill of information charging the defendant with possession of heroin with intent to distribute, and pursuant to a plea bargain, the defendant entered a plea of guilty to the lesser included offense of attempted possession of heroin. The record reflects that a new bill of information was not filed by the state, nor was the bill of information amended.

Art. 1, § 15 of the Louisiana Constitution of 1974 provides that the prosecution of a felony shall be initiated by indictment or information, but no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury. Additionally, LSA-C.Cr.P. Art. 382 provides that a prosecution for an offense punishable by death, or for an offense punishable by life imprisonment, shall be Instituted by indictment by a grand jury.

In the present case the defendant was charged, under a bill of information, with • possession of heroin with intent to distribute, a crime subject to a penalty of life imprisonment.

In State v. Green, 347 So.2d 229 (La.1977), the defendant was charged by bill of information with distribution of heroin contrary to the provisions of LSA-R.S. 40:966 A. The defendant was tried by a jury and found guilty of the lesser included offense of possession of heroin. The supreme court held that the offense charged can only be instituted by a grand jury indictment and that it was reversible error to proceed on the basis of a bill of information. See also State v. Stevenson, 334 So.2d 195 (La.1976).

The only distinction between the present c'ase and Green is that the defendant in the present case pled guilty to the lesser included offense pursuant to a plea ■ bargain. We do not find that distinction to be significant. It was reversible error for the trial court to allow the defendant to enter a plea of guilty on the basis of a void bill of information. The conviction and sentence based on an invalid bill of information charging an offense which can be instituted only by grand jury indictment must be set aside.

Having found error requiring the conviction to be set aside, review of the defendant’s other assignments of error is rendered unnecessary.

Decree

For the reasons assigned, the defendant’s conviction and sentence are set aside and the case is remanded to the district court. It is ordered that, pursuant to LSA-C.Cr.P. Art. 538, the defendant be held in custody or that his bail be continued for a period of 10 days from the date the judgment of this court becomes final, pending the filing of a new indictment or bill of information; absent which the defendant .should be discharged.

Conviction and sentence set aside and case remanded.


author: MARVIN, Judge.

text:
    STATE of Louisiana, Appellee, v. Becky Lynn SHOEMAKER, Appellant. STATE of Louisiana, Appellee, v. Jimmy SHOEMAKER, Appellant.
    Nos. 16468-KH, 16469-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.

      C. Jerome D’Aquila, New Roads, for appellants.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, T.J. Adkins, Dist. Atty., Joseph A. Cusimano, Jr., Asst. Dist. Atty., Farmer-ville, for appellee.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

In these appeals each defendant pleaded to identical charges and received identical sentences, suspended, with conditions of probation.

Each was charged with making threatening and harassing telephone calls. LRS 14:285. Each pleaded nolo contendere. Each was sentenced to 18 months, suspended on conditions which included the requirements that $250 be paid to the Indigent Defender’s Office for legal services; that $1,500 be paid to the criminal court fund to defray costs of operation of the court; that each attend one hour per week of religious, ethical, or moral training; and attend a substance abuse clinic and group therapy such as Alcoholics Anonymous or Narcotics Anonymous.

Each defendant was given the written conditions of probation, general and special. Each signed a statement at the end of the written conditions:

“I have read and received a copy of the foregoing conditions of probation and I agree to abide by them.”

The record in each appeal contains this signed statement. The conditions were orally stated to each defendant during the sentencing colloquy. Neither defendant objected to the conditions of probation.

Each defendant contends that the conditions recited above (payment and attendance) constitute an excessive sentence under LSA-Const. Art. 1, § 20. They argue that the attendance condition is unreasonable and that the court has no authority to require anyone to attend “religious services.”

The trial court has much discretion under CCrP Art. 895 and “may impose any specific conditions reasonably related to ... rehabilitation ...”

CCrP Art. 895. IB authorizes a court, as a condition of probation, to require payment of an “amount of money ... to any or all of the following:

“... the indigent defender program for that court
“... the criminal court fund to defray the costs of operation of that court.”

The PSI report shows that Mr. Shoemaker had been convicted of DWI (1980), Drunk and Disorderly (1982), and several simple batteries. Mrs. Shoemaker apparently has no criminal history related to alcohol or narcotics abuse. The threatening telephone calls were made to the parents of Mrs. Shoemaker’s recently deceased first husband, the paternal grandparents of the four-year-old child of Mrs. Shoemaker. Where a husband has some history of alcohol abuse, it is not error for a trial court, as a subject of probation, to direct him and his wife to attend alcohol therapy and moral, ethical, or religious training programs where both have pleaded to their involvement in criminal conduct. The attendance condition does not require attendance at “religious services.” This condition requires defendants to “spend at least one hour each week at some institution where [they] will receive religious, ethical, or moral training.” The institution need not be a church. The training need not be a religious service. The attendance condition is stated in the alternative and the choice of the institution, secular or clerical, is left to each defendant.

CCrP Art. 896 allows all conditions of probation to be adjusted by the court as the needs of the case may require. Hence, the conditions are not “final,” even though they are conditions relating to a sentence. Cf. CCrP Art. 912. If the conditions of probation, once agreed to as here, become unduly burdensome or impossible of reasonable fulfillment, a person under such a sentence may seek modification of those conditions from the trial court. CCrP Art. 896. The trial court’s exercise of its discretion under the article is subject to our supervisory review. A sentence, of course, is appealable on the grounds of excessiveness under LSA-Const. Art. 1, § 20. A defendant who is given a suspended sentence and conditions of probation is required to “agree in writing to the conditions.” CCrP Art. 895. That agreement is not acquiesence to the extent that the sentence becomes unappealable. Compare CCrP Art. 841.

Defendants do not otherwise attack the 18 month suspended sentence. Each sentence was “articulated” and is not, on its face, excessive. Defendants were exposed to a two year sentence and a fine of $5,000 by LRS 14:285.

Under these circumstances, the sentence in each appeal is AFFIRMED.


author: JASPER E. JONES, Judge.

text:
    STATE of Louisiana, Appellant, v. Pete BAILEY, Jr., Appellee.
    No. 16482-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Smith & Hingle by J. Randolph Smith, Monroe, for appellee.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Geary S. Aycock, Asst. Dist. Atty., Monroe, for appellant.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

The state appeals a trial court ruling of March 12, 1984 sustaining a motion to quash a bill of information which charges the defendant, Pete Bailey, Jr., with possession of a firearm by a convicted felon in violation of LSA-R.S. 14:95.1. At the time the bill was filed defendant’s appeal of the predicate felony conviction was pending before this court. The trial court found the term “convicted of” as used in 14:95.1 means a conviction that has become final either because it was not appealed or because it was affirmed on appeal. The state contends defendant was convicted of the predicate offense for purposes of 14:95.1 when the jury returned a guilty verdict. We reverse.

On July 13, 1983 a jury found defendant guilty of possession of cocaine and he appealed the conviction to this court. While the appeal was pending, defendant was arrested for the 14:95.1 violation, on November 1, 1983, and the bill of information charging him with that offense was filed on November 21, 1983. In a decision rendered June 6, 1984 we affirmed the possession of cocaine conviction. State v. Bailey, 452 So.2d 756 (La.App.2d Cir.1984).

As authority for his ruling the trial judge relied on State v. Gani, 157 La. 231, 102 So. 318 (1924). There the supreme court noted that the term “conviction” is ordinarily used to designate the stage in the criminal proceedings when the accused pleads guilty or the jury returns a guilty verdict; however, it is sometimes used to denote the final judgment of an appellate court. The court opined the latter definition is applicable when the conviction is made the ground of some disability or special penalty.

In Gani the defendant was charged with and found guilty of a second offense liquor law violation. At the time of his trial on the second offense the supreme court had affirmed his conviction on the first offense but the delays for rehearing had not expired. The court held there could be no conviction for a second offense because the judgment affirming the conviction on the first offense was not final at the time of trial.

The state argues that Gani was legislatively overruled by LSA-C.Cr.P. art. 934(3) which defines “convicted” as meaning adjudicated guilty after a plea or after trial on the merits. Article 934(3) was adopted subsequent to the rendition of Gani by Acts of the Legislature 1966, No. 310. It is the only statutory or codal definition of the term in Louisiana law.

The legislature has directed the courts to give the provisions of the Criminal Code a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context and with reference to the purpose of the provision. LSA-R.S. 14:3. We agree that the usual definition of convicted is that contained in article 934(3), however, the cases following the enactment of article 934(3) continued to follow the rule announced in Gani where the conviction is the ground of some disability or special penalty. See Sportservice Corp. v. Department of Public Safety, 293 So.2d 530 (La.App. 4th Cir.1974); State ex rel. Clark v. Hunt, 337 So.2d 438 (La.1976); State ex rel. Maenza v. Phelps, 342 So.2d 869 (La.1977).

In Sportservice Corp., supra, the fourth circuit, relying on Gani, reversed the revocation of an alcoholic beverage permit where the revocation was based on a conviction that was not yet final because the applicant’s appeal of the conviction was pending.

In State ex rel. Clark, supra, the defendant was convicted of a felony while on parole from the state penitentiary. While his appeal of the conviction was pending, the Parole Board brought proceedings to revoke his parole under LSA-R.S. 15:574.10 which states that when a person on parole is convicted of a felony his parole is deemed revoked. In reversing the revocation the supreme court, citing with approval Gani and Sportservice Corp., held:

Under the statute the conviction itself is conclusive that a violation of parole has occurred. See State ex rel. Bertrand v. Hunt, La., 325 So.2d 788 (1976). To have this conclusive effect, however, the conviction must be final, that is, the appeal of right to the Louisiana State Supreme Court must be terminated. In the context of the statute, the term “convicted” means that guilty has been determined by a final judgment. (emphasis in the original)

In State ex rel. Maenza, supra, the supreme court does not discuss Gani but it follows State ex rel. Clark in vacating a parole revocation based on a conviction that was not final.

The state urges this court to follow federal cases interpreting 18 U.S.C.App. § 1202(a)(1) which is the federal statute prohibiting the possession of a firearm by a convicted felon. A conviction on the firearm violation is valid where the appeal of the predicate conviction is pending. Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). See United States v. MacGregor, 617 F.2d 348 (3d Cir.1980), which holds that a conviction for a violation of § 1202(a)(1) is valid even though the predicate conviction is subsequently reversed on appeal. In Lewis, supra, the court stated in footnote 5 that, “the disability effected by § 1202(a)(1) would apply while a felony conviction was pending on appeal.” The Lewis court held the defendant’s prior conviction, which was constitutionally inform because the defendant pled guilty without benefit of counsel, could serve as the predicate for the § 1202(a)(1) violation.

The federal statute states, “Any person who has been convicted by a court of a felony is prohibited from possessing a firearm.” The phrase by a court was interpreted in Lewis to mean the conviction in the lower court and the court stressed the plain wording of the statute contained no limitation requiring the lower court’s conviction to be valid as a condition precedent to a valid conviction under the congressional statute. 14:95.1 states, “any person who has been convicted of.” It does not contain the by a court phrase and the defendant argues this difference in the wording of the two statutes requires the conclusion that the conviction in Louisiana must be final in order to serve as the predicate offense.

In State v. Martin, 382 So.2d 933 (La.1980) the defendant filed a motion to quash a charge of possession of a handgun after having pled guilty to the charge of simple burglary in 1976 on the grounds the burglary conviction was invalid. The trial court quashed the LSA-R.S. 14:95.1 bill of information because it concluded the conviction on the predicate offense was invalid because the plea was accepted following a Boykinization that failed to properly advise the defendant of his right against self-incrimination. The supreme court reviewed the case upon a writ application by the state and affirmed the trial court action. The Martin case was following the basic philosophy of Gani, Clark and Maenza in holding the conviction had to be free of defects to serve as a predicate for the 14:95.1 conviction. While the predicate conviction in Martin had not been appealed the concept of Martin was that only a valid conviction could serve as the predicate, which was consistent with the earlier cases which held a conviction on appeal had not been finally adjudicated as valid and for this reason could not serve as a predicate on the fact situations being considered by them.

In State v. Virgil, 390 So.2d 520 (La.1980) the supreme court reviewed a ruling by the trial court quashing a 14:95.1 bill of information on the grounds the predicate conviction was invalid because of a defective Boykinization on the waiver of the right against self-incrimination. The state urged the court to apply the rule of Lewis v. United States, supra, and construe the term “convicted” contained in 14:95.1 to include invalid convictions as the Lewis court had construed the similar federal act. The court rejected the Lewis approach to the 14:95.1 and adhered to the rationale of State v. Martin requiring the predicate in 14:95.1 prosecutions to be valid convictions. The court in Virgil found the trial court Boykinization on the predicate offense to be adequate and on this basis reversed the trial court’s ruling granting the motion to quash.

In State v. Williams, 392 So.2d 448 (La.1980) the court followed Lewis and held that a person charged under 14:95.1 cannot attack the predicate felony conviction on collateral constitutional grounds. During the course of the opinion the court, quoting in part from Lewis, stated:

LSA-R.S. 14:95.1 is also directed at “any person who has been convicted . of ...” certain offenses. As in the federal statute: “No modifier is present, and nothing suggests any restriction on the scope of the term ‘convicted’.” 445 U.S. 60, 100 S.Ct. 918, 63 L.Ed.2d 206. One classified as a convicted felon loses his right to bear arms. State v. Clement, 368 So.2d 1037 (La.1979). Until that status is changed and the disability removed, a convicted felon can possess a gun only if: (1) ten years have passed; or (2) a special permit is granted. LSA-R.S. 14:95.1C(1) and (2). [Compare 18 U.S.C. § 925(c).] The Louisiana statute is less restrictive than 18 U.S.C.App. § 1202, which applies to all felonies, and does not provide for a prescriptive period. The Louisiana legislature, like Congress, “... could rationally conclude that any felony conviction, even a (sic) allegedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm.” 445 U.S. 66, 100 S.Ct. 921, 63 L.Ed.2d 210. LSA-R.S. 14:95.1 represents a reasonable exercise of the police power.

The Williams case points out the purpose of 14:95.1 is to prohibit persons, who have committed certain serious felonies and thereby demonstrated a dangerous disregard for the law and a potential threat of future criminal activities, from possessing firearms. The court was here stressing the reason behind the law is to keep guns out of the possession of convicted felons to protect the public from their future criminal action. The court then stated: “That threat is not lessened by a technical defect in a prior felony conviction.” The court then specifically overruled State v. Martin and rejected the dicta in State v. Virgil which had approved Martin.

Though the court in Williams did not address the meaning of conviction as defined to include only a final conviction in Gani and it’s progeny, the Williams court unequivocably held that an invalid conviction containing technical defects can serve as a 14:95.1 predicate. We conclude that the very purpose of an appeal is to determine the correctness of “allegedly” invalid convictions and those containing technical defects. Since convictions subject to these infirmaties can serve as the predicate for a 14:95.1 prosecution there is no sound reason why a conviction pending on appeal cannot serve as a 14:95.1 predicate.

The conviction need not be finally adjudicated as valid to serve as the 14:95.1 predicate. '

The trial court’s ruling quashing the bill of information is vacated and set aside and the case is remanded for further proceeding.

      . 14:95.1 A provides:
      § 95.1. Possession of firearm or carrying concealed weapon by a person convicted of certain felonies
      A. It is unlawful for any person who has been convicted of first or second degree murder, manslaughter, aggravated battery, aggravated or simple rape, aggravated kidnapping, aggravated arson, aggravated or simple burglary, armed or simple robbery, burglary of a pharmacy, burglary of an inhabited dwelling, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony or any crime defined as an attempt to commit one of the above enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which if committed in this state, would be one of the above enumerated crimes, to possess a firearm or carry a concealed weapon, (emphasis added)

      . 15:574.10 provides:
      § 574.10. Conviction of a felony while on parole

        When a person is convicted in this state of a felony committed while on parole, his parole shall be deemed revoked as of the date of the commission of the felony. His parole officer shall inform the sentencing judge of the fact that the convicted defendant is a parole violator. The term for which the defendant shall be imprisoned as a parole violator shall be the same as that provided in cases of revocation of parole for violation of the conditions of parole. The new sentence of imprisonment shall be served consecutively to the term of imprisonment for violation of parole unless a concurrent term of imprisonment is expressly directed by the court.

      . 18 U.S.C.App. § 1202(a)(1) provides:
      § 1202. Receipt, possession, or transportation of firearms
      (a) Persons liable; penalties for violations
      Any person who—
      (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or
      and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both, (emphasis added)


author: FRED W. JONES, Jr., Judge.

text:
    STATE of Louisiana, Appellee, v. Freddie Gene WASHINGTON, Appellant.
    No. 16538-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Cameron C. Minard, Columbia, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Don C. Burns, Dist. Atty. by Iley H. Evans, Asst. Dist. Atty., Columbia, for appellee.
    Before JASPER E. JONES and FRED W. JONES, Jr., JJ„ and PRICE, J. Pro Tern.
   FRED W. JONES, Jr., Judge.

The defendant Washington was found guilty by a jury of the offense of forgery (R.S. 14:72) and sentenced to imprisonment at hard labor for five years. He appealed his conviction, asserting two assignments of error.

Factual Context

On August 24, 1982, the defendant gave a check to Howard Brothers Department Store in Caldwell Parish for $50.26 drawn on the account of his brother, Melvin Washington. The check was printed with Melvin Washington’s name at the top and was signed “Melvin Washington” at the bottom. When Howard Brothers found that there were insufficient funds in Melvin Washington’s account to cover the check, he was questioned by Deputy Fred Grant concerning the instrument. Upon the basis of information received and upon further investigation, defendant was arrested and charged with forging the check.

ASSIGNMENT OF ERROR No. 1

Deputy Grant testified at the trial that Melvin Washington denied writing the check but refused to give any additional information. Defendant argues that Grant’s relating of Melvin Washington’s statement constituted inadmissible hearsay.

It is axiomatic that an officer may explain the sequence of events leading to the arrest of a defendant, including conversations with others, when these statements are reported simply to show that they were made rather than to prove the truth of those assertions. State v. Edwards, 406 So.2d 1331 (La.1981); State v. Calloway, 324 So.2d 801 (La.1975).

The purpose of Deputy Grant’s testimony was to explain the course of his investigation leading up to the arrest of the defendant. The conversation with Melvin Washington was related, not to prove the truth of statements made therein, but simply to show that those statements were made. As such, they did not constitute hearsay evidence.

This assignment of error is without merit.

ASSIGNMENT OF ERROR No. 2

Defendant contends the trial judge erred in admitting the alleged forged check into evidence because it was not properly identified as having been written by the defendant.

As pointed out in State v. Drake, 319 So.2d 427 (La.1975):

Before the admission of an object in evidence, a foundation must be laid showing that it is related to the case. The foundation testimony may consist of visual identification of the object by witnesses or by establishing a continuous chain of custody from the seizure of the object to its introduction in evidence at the trial. For admission, it suffices if the testimony establishes that it is more probable than not that the object is connected with the case. A preponderance of the evidence is sufficient, [citations omitted]

In this case a clerk for Howard Brothers identified the defendant as the person who gave her the check in question for several items of merchandise. The clerk also visually identified the check by pointing to her initials on it. This constituted a proper foundation for admissibility of the check.

This assignment of error lacks merit. Decree

For the reasons above explained, defendant’s conviction is affirmed.


author: NORRIS, Judge.

text:
    FIRST FEDERAL SAVINGS & LOAN OF NATCHITOCHES, Appellant, v. AMERICAN BANK & TRUST COMPANY, COUSHATTA, Louisiana, Appellee.
    No. 16629-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.

      Gahagan & Gahagan by Marvin F. Gaha-gan, Natchitoches, for appellant.
    Horton & Jones by William R. Jones, Coushatta, for appellee.
    Before HALL, SEXTON and NORRIS, JJ.
   NORRIS, Judge.

In this breach of contract suit, plaintiff-appellant, First Federal Savings & Loan Association of Natchitoches, Louisiana, hereinafter referred to as “First Federal,” appeals a lower court decision in favor of defendant-appellee, American Bank & Trust Co., Coushatta, Louisiana, hereinafter called “American Bank,” concluding that there was no contractual agreement between the parties and rejecting appellant’s demands for damages and attorney’s fees. The basic issues involved are whether the parties actually reached a meeting of the minds and, if so, whether there was “cause” for American Bank to enter into the agreement. For the reasons hereinafter expressed, we reverse the lower court and render judgment in favor of plaintiff-appellant.

FACTS

First Federal filed foreclosure proceedings against a mortgagor in Red River Parish. The suit affected two contiguous tracts and their respective improvements, a house and a barn. First Federal held a first mortgage on the tract with the house; American Bank held a collateral first mortgage of record, in the face amount of $55,-000 on the “barn” lot. The foreclosure suit covered the barn property, on which First Federal held a second mortgage. The American Bank debt which was secured by a first mortgage on the barn property was 90% guaranteed by the Small Business Administration. The sheriff’s sale provoked by First Federal’s foreclosure proceedings was set for September 17, 1980.

At some point prior to the sheriff’s sale, First Federal found a buyer interested in buying both the house and barn properties for a price of $180,000, provided he could get them together. He was not interested in buying one of the properties without the other. Because First Federal could not assure the buyer of getting the barn property, it arranged a meeting between its representatives and American Bank’s attorney the day before the sheriff’s sale. The purpose of the meeting was to try to negotiate a satisfactory bid price whereby First Federal or its prospective buyer would be willing to purchase the barn property at the sheriff’s sale.

Robert G. Martin, President and managing officer of First Federal and the attorney, Marvin Gahagan, represented First Federal. Another attorney, Donald G. Horton, as legal counsel for American Bank, represented the bank.

At trial, Martin’s deposition was introduced into evidence. Martin recalled the meeting and its purpose as stated above. He was aware that American Bank’s loan, secured by the $55,000 mortgage, was an SBA loan but had no knowledge that the SBA had already honored its guarantee to American Bank. Martin also recalled that before this meeting, Attorney Horton had been requested to contact the sheriff about decreasing the percentage of the sheriff’s sale commission. Martin testified, however, that the main purpose of the meeting the day before the sale was to determine the amount American Bank would have to receive in order to satisfy the first mortgage. Martin testified specifically that Horton informed Gahagan and Martin that American Bank agreed to accept $55,000 as satisfaction of the first mortgage indebtedness. Martin also understood that American Bank still held the note that the mortgage secured. Based on this representation, Martin stated that First Federal was prepared to bid $60,000 for the barn property and its prospective buyer was prepared to bid $60,001.00. According to Martin, the agreement reached at the meeting was that $55,000 of the bid proceeds would go to American Bank, the various court costs and commissions in connection with the sale would be deducted, and First Federal would then receive the balance to minimize its loss on its second mortgage. Without a satisfactory agreement, Martin stated that First Federal would have negotiated differently with the prospective buyer or would not have bothered to bid on the barn property at all. Instead, they would have allowed the bank simply to bid the property in.

Donald G. Horton’s deposition was also introduced into evidence. Horton recalled the meeting with Gahagan and Martin but could not remember where the meeting took place. Horton recalled that the parties did talk about how much money the bank would take to satisfy the first mortgage. However, he stated he could not remember whether he told Gahagan and Martin the bank would take $55,000 specifically or that it wanted to be paid off on its first mortgage. Horton emphasized that he was authorized to speak for the bank at the meeting. He also testified that he did not tell Gahagan or Martin that they were negotiating with the wrong institution and should be talking with the SBA. Horton testified he “wouldn’t quarrel” with Martin’s recollection of the terms of the agreement because he simply did not remember what the agreement was. Horton also admitted that after he learned how the sale proceeds were actually distributed he discussed the matter with Keith Hayes, President of American Bank, who informed him that the bank wanted all the money it could get and was not going to give First Federal any money unless someone made him do so.

Keith Hayes, President of American Bank, was the only witness to testify before the trial judge. Hayes was not present at the meeting between Horton, Gahagan and Martin and did not testify concerning his understanding of what transpired at that meeting. Hayes never denied Horton was authorized to represent the bank at that meeting.

Hayes testified that American Bank made a $55,000 loan to Jimmy Long on July 31, 1978 and that 90% of that loan was guaranteed by the Small Business Administration. The loan was evidenced by a note and secured by the mortgage in question. When Long became delinquent on the loan, Hayes wrote to the SBA asking it to pay its guaranteed portion, and it did so on July 1, 1980, in the amount of $52,138.22. Of that amount, American Bank applied $49,012.84 to principal and $3,125.38 to interest, leaving a balance due American Bank of $6,069.99. American Bank then assigned the note to the SBA but there was no assignment of the mortgage recorded in the mortgage records of Red River Parish. Hayes testified that after the sale, the bank received a sheriff’s check for $58,-552.18, payable to the Small Business Administration and American Bank & Trust, dated September 29, 1980, representing the proceeds of the sheriff’s sale, less court costs and sheriff’s commission. This check was endorsed by American Bank and forwarded to the SBA. Afterwards, the SBA returned to the bank $5,855.22 on November 28, 1980 and the bank applied $5,618.15 of this amount to principal and $236.97 to interest, leaving a balance on the loan of $452.18 which was charged off. Hayes admitted that the bank’s mortgage securing the Long loan stated that the note described therein was due “on demand” at American Bank & Trust Company, Cous-hatta, Louisiana, and that nothing in the mortgage referred to the SBA.

After learning how the proceeds of the sheriff’s sale had been distributed, First Federal, through Gahagan, wrote several letters to Horton requesting that the bank honor the agreement and remit to First Federal the amount of $3,553.18. When no amicable resolution was reached, the instant suit was filed for recovery of the alleged overage paid to American Bank, damages and attorney’s fees. American Bank filed a peremptory exception alleging that SBA was an indispensable party to the suit and the exception was overruled by the lower court.

After trial, the lower court in written reasons for judgment concluded that Horton had the authority to represent American Bank and that Martin and Gahagan were authorized to represent First Federal at the meeting. The trial judge found, however, that the agreement was not supported by the existence of “cause” on behalf of American Bank and, alternatively, that there was no meeting of the minds between the parties, stating:

“This court has carefully considered all of the testimony and exhibits and has found nothing that supports the existence of cause on behalf of American Bank. There appears to be no motive or consideration such as would influence the American Bank to enter such a contract which in essence would cause it to receive less than it was entitled to under the first mortgage. It is indeed unfortunate that such fine and distinguished individuals could have left with diverse interpretations from the discussions which had taken place. This court must come to the conclusion that no contract as such existed and thus pretermits the issue of breach of contract.”

Judgment in accordance with the court’s opinion was signed April 4, 1984, and it is from this judgment that First Federal appeals assigning the following errors:

1)the trial court committed reversible error in failing to find a firm agreement between plaintiff and defendant that defendant would not claim more from the sheriff’s sale proceeds than the $55,000 amount agreed upon;
2) the trial court committed reversible error in finding that there was no cause for defendant to agree with plaintiff on the amount of $55,000 as being the amount acceptable to defendant; and
3) the trial court committed reversible error in shifting the burden of proof from defendant to plaintiff as to adequate cause, since lack of cause or consideration is a special affirmative defense which must be specially pleaded by a defendant in his answer, and proved at trial by defendant.

There are four elements required for the making of any valid contract:

1) parties possessing the capacity to contract;
2) mutual consent freely given thereto;
3) a certain object; and
4) a lawful purpose.

LSA-C.C. art. 1779; First National Bank of Shreveport v. Williams, 346 So.2d 257 (La.App. 3d Cir.1977).

The burden of establishing the validity of a contract rests upon the party seeking to establish it. North American Contracting Corp. v. Gibson, 327 So.2d 444 (La.App. 3d Cir.1975). Relying on. a contract, however, a litigant need not allege it was given for a valid consideration. The law presumes there is sufficient and valid consideration until that question is placed at issue and is established by competent proof on trial on the merits. Conner v. Lake, 228 La. 385, 82 So.2d 324 (1955).

ASSIGNMENT OF ERROR NO. 1

Did the parties reach an agreement that the defendant would claim no more from the sheriff’s sale proceeds- than $55,000?

We note at the outset that attorney Ga-hagan and Ronald Martin had the undisputed authority and capacity to contract on behalf of First Federal and that Attorney Donald G. Horton was authorized to contract on behalf of American Bank. The trial court accepted their agency but held that the parties failed to agree, consent, or reach a “meeting of the minds.” Both appellant and appellee recognize the potential contract as a crucial issue in the case and have briefed it extensively.

We are convinced from our reading of the depositions, examination of the exhibits, and testimony before the lower court, that the trial court erred in finding that the parties failed to agree on the object of the contract, that object being the amount American Bank would accept in payment of the first mortgage.

Ronald Martin testified in his deposition that the amount agreed upon was $55,000. Donald G. Horton testified he would not quarrel with Martin’s recollection, but that he simply did not remember. Thus, Martin’s version of the contracted amount fixed at the meeting between the parties is undisputed.

Had this issue turned on the credibility of the witnesses as determined by the trial judge, the manifest error rule would apply and we would be hesitant to disturb his factual finding in this regard. However, except for the testimony of Mr. Hayes, which in no way dealt with the meeting where the agreement was discussed, the trial judge heard no witnesses; the matter was otherwise submitted on depositions and documentary evidence. Thus, under these particular circumstances, this court is in just as good a position as was the trial judge to review the evidence and make findings of fact. Langford v. Calcasieu Parish Police Jury, 396 So.2d 956 (La.App. 3d Cir.1981).

Based on the evidence in the record we conclude that the trial judge was clearly wrong in its finding that no agreement was reached. The uncontradicted evidence is that there was a meeting of the minds as to the amount American Bank, through Mr. Horton, agreed to accept as a pay-off on the first mortgage and this amount was, as Martin testified, $55,000.

American Bank insists at length that since it had assigned the note in question to the SBA before the meeting, it had no right to enter into a contract on behalf of the SBA. Nevertheless, Horton acknowledged that at no time did he inform First Federal’s representatives that they were negotiating with the wrong party. Furthermore, Martin testified he had no knowledge that SBA had paid American Bank off on the loan, nor that SBA had been assigned the note. In fact, Mr. Hayes testified without reservation that he considered American Bank to have retained a 10% interest in the loan after the assignment and that the SBA did remit to American Bank $5,855.22 of the sheriff’s sale proceeds on November 28, 1980.

Because American Bank agreed to accept $55,000 in payment of its mortgage for the obvious purpose of recouping some of its 10% loss on the loan, and because it failed to reveal to First Federal that the note secured by the mortgage had been assigned to the SBA, we find that it is es-topped from now claiming it had no authority to negotiate the pay-off figure.

The common-law doctrine of estop-pel has been approved by the courts of this state. Equitable estoppel is defined as the effect of the voluntary conduct of a party by which he is barred from asserting rights or defenses against another party justifiably relying on such conduct and causing him to change his position to his detriment as a result of such reliance. Consequently, there are three elements of estoppel:

1) a representation by action or word;
2) justifiable reliance on the representation; and
3) a change in position to one’s detriment because of the reliance.

See State v. Gulf, Mobile and N.R. Co., 191 La. 163, 184 So. 711 (1938); American Bank & Trust Co. v. Trinity Universal Ins. Company, 194 So.2d 164 (La.App. 1st Cir.1967), affirmed 251 La. 445, 205 So.2d 35 (1967); Dept. of Culture v. First Macomb Development, 385 So.2d 1233 (La.App. 4th Cir.1980).

The doctrine was discussed in civil law terminology in Burk v. Livingston Parish School Board, 190 La. 504, 182 So. 656 (1938), in terms of unjust enrichment under Article 1965 of the Civil Code and under the concept that one cannot accept the benefits of an act and repudiate its obligations. Under either common-law or civil law terminology, all the elements of estoppel have been met in the present case. American Bank, through Horton, by his actions and words, encouraged First Federal to agree to the $55,000 pay-off figure and provide a bidder at the sheriffs sale to help minimize both First Federal’s and American Bank’s potential loss. American Bank certainly enriched itself when it recouped most of its 10% loss; even if it is forced to honor its agreement with First Federal, it will still recoup a portion of that loss. First Federal was certainly justified in relying on Horton’s representations and incurred a change in its position to its detriment because of that reliance. If we allow the lower court judgment to stand, American Bank will have been able to claim the benefits of its agreement and at the same time escape its contractual obligations. Such a consequence cannot be allowed.

ASSIGNMENT OF ERROR NO. 2

Appellant contends the lower court erred in its conclusion that there existed no “cause” on behalf of American Bank to enter into the agreement to accept $55,000 as a pay-off on the first mortgage.

An obligation without a cause, or with a false or unlawful cause, is without effect. LSA-C.C. Art. 1893. The “cause” of the contract means the motive for making the contract. LSA-C.C. Art. 1896; in re Canal Bank & Trust Co.'s Liquidation, 178 La. 575, 152 So. 297 (1933).

We agree with appellant’s contention. Certainly American Bank had a motive for entering into the agreement. It had already, unbeknown to First Federal, received a 90% payment of its debt from the SBA in the amount of $52,138.22. Mr. Hayes testified he considered American Bank still had a 10% interest in the debt after this payment, although it had assigned the note to the SBA. American Bank’s motive is clear: it wanted to mitigate its loss on the 10% as much as possible. First Federal was willing to bid on the property or produce a buyer who was willing to bid, provided the buyer could get both pieces of property involved in the foreclosure and provided First Federal could mitigate some of its loss on its second mortgage. American Bank, if the agreement was consummated, was assured of a bidder on the property and of receiving the difference between $52,138.22 and $55,000 to mitigate its loss. Conversely, First Federal was confident, if the agreement was consummated, of putting together a sale of the properties and receiving the difference between $55,000 and $60,001, less the sale costs and sheriff’s commission, to mitigate a portion of its loss on the second mortgage. Without the agreement, there may have been no bidder and the property may not have been sold, or American Bank may have had to get authority from SBA to bid the property in.

Finding that evidence preponderates in favor of an agreement supported by lawful cause, we pretermit further discussion of assigned error $ 3.

The amount of damages proved by First Federal resulting from the breach of contract was $3,553.18, which represented the difference between $55,000 and the bid price, less the costs of the sale. This sum we award appellant.

Appellant also sued for attorney’s fees in an amount of not less than $3,500.

A party may not recover attorney’s fees except where authorized by statute or provided for by contract. Evans v. Century Ready Mix Corporation, 446 So.2d 860 (La.App. 2d Cir.1984). There is no statutory authority for attorney’s fees in this breach of contract suit and there is neither allegation nor proof of such an agreement in the oral contract between the parties. The claim for attorney’s fees is rejected.

For the foregoing reasons, the judgment of the lower court is reversed and judgment is rendered in favor of plaintiff-appellant, First Federal Savings & Loan Association of Natchitoches, Louisiana, and against defendant-appellee, American Bank & Trust Company, Coushatta, Louisiana, in the sum of $3,553.18, with legal interest from date of judicial demand until paid, and for all costs of the proceedings below as well as costs of this appeal.

REVERSED AND RENDERED.

      . Recordation is necessary to affect third persons. LSA-C.C. Art. 2294; LSA-R.S. 9:2721.


text:
    STATE of Louisiana, Appellee, v. Kenneth H. SUMMERS, Appellant.
    No. 16636-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Rehearing Denied Jan. 4, 1985.
    Stay Order Denied Feb. 6,1985.
    Writ Denied March 15, 1985.

      William J. Guste, Jr., Atty. Gen., Johnny Parkerson, Dist. Atty., Michael Fontenot, Asst. Dist. Atty., Monroe, for appellee.
    Rick C. Anzalone, Monroe, for appellant.
    Before PRICE, SEXTON and NORRIS, JJ.
   NORRIS, Judge.

Defendant, Kenneth H. Summers, Jr., appeals as excessive a sentence of three years at hard labor imposed after a plea of guilty to a charge of felony theft, in violation of La.R.S. 14:67. We affirm.

Defendant was a sales representative working on commission for Wellsite Specialists, Inc., a supplier of oil field equipment. It is disputed whether the commission agreed to was 6 or 10 percent. Defendant sold two “blow-out preventers” to B & C Well Service and was paid by check, in thé amount of $63,457 for the equipment. Summers deposited the entire sum into his business account at Louisiana Bank. When Wellsite demanded payment from Summers of $56,508 ($63,457 minus a 5% commission) he sent two checks to Well-site, both of which were dishonored by the drawee bank due to insufficient funds.

As a result of this incident defendant was charged by bill of information with theft of $56,508. On March 5, 1984 defendant entered a plea of guilty to the charge. He was sentenced to three years at hard labor. From that sentence defendant appeals, alleging three assignments of error. Defendant claims the trial court erred in imposing a sentence of three years at hard labor, in light of the particular circumstances of this case; that the sentence imposed is excessive; and, that the trial court failed to fully comply with La.C.Cr.P. Art. 894.1 in imposing this sentence upon the defendant.

ASSIGNMENTS OF ERROR NOS. 1 & 2

Defendant claims that the trial court erred in imposing a sentence of three years at hard labor in light of the particular circumstances of this case and that the sentence imposed violates Article I, § 20 of the Louisiana Constitution of 1974 because it is unduly harsh and excessive.

Article I, § 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment. Although a sentence is within statutory limits it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). However, the sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Square, 433 So.2d 104 (La.1983); State v. Brooks, 431 So.2d 865 (La.App.2d Cir.1983); State v. Hammonds, 434 So.2d 452 (La.App.2d Cir.1983), writ denied 439 So.2d 1074 (La.1983). Here, the defendant was exposed to a maximum sentence of ten years at hard labor and a maximum fine of $3,000. The actual sentence imposed is less than one third of the maximum possible sentence. Considering the amount stolen by the defendant, in excess of $50,000; the defendant’s prior record, a 1967 conviction for misuse of a credit card, for which he received a one year suspended sentence and probation, a 1974 charge for felony theft, which was dismissed with the stipulation that restitution be made, and charges of grand larceny and embezzlement in 1983, which charges were also dismissed; the sentence imposed herein is not excessive. It is not a manifest abuse of the sentencing judge’s discretion and does not shock our sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980).

Accordingly, these assignments of error have no merit.

ASSIGNMENT OF ERROR NO. 3

Defendant claims the sentencing judge failed to fully comply with La.C.Cr.P. Art. 894.1 in imposing sentence, particularly in his consideration of the mitigating circumstances contained therein.

In imposing sentence, the trial judge must comply with the mandatory requirements of La.C.Cr.P. Art. 894.1 and individualize the sentence by stating for the record the considerations taken into account and the factual bases therefor. State v. Jones, 381 So.2d 416 (La.1980). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Article 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La.App.2d Cir.1983); State v. Smith, 433 So.2d 688 (La.1983).

The record reflects the sentencing judge conscientiously considered the factors enumerated in La.C.Cr.P. Art. 894.1 in imposing this sentence. The trial judge concluded that, while this was defendant’s first felony conviction, his prior criminal history made him an unsuitable candidate for probation since there was an undue risk that during the period of a suspended or probated sentence the defendant would commit another crime. Further, the sentencing judge concluded that in light of the large amount of money stolen, a lesser sentence than three years at hard labor would deprecate the seriousness of defendant’s crime.

In mitigation, the sentencing judge noted the defendant’s first felony offender status and his claim that there were additional commissions owed to him by the company.

We conclude that the record of the sentencing hearing reflects that the trial judge adequately complied with Article 894.1 in imposing this sentence.

We do note, however, defense counsel’s impassioned plea, both in brief and at oral argument, that he was unable to present to the judge evidence of certain mitigating circumstances prior to the imposition of sentence. Further, we note his claim that the pre-sentence investigation contained certain inaccuracies, and its failure to mention certain mitigating factors pertaining to defendant’s prior criminal history. Defense counsel blames these alleged deficiencies on an apparent lack of interest and diligence on behalf of the probation officer who prepared the PSI. Defense counsel also contends he made several serious and diligent efforts to meet with the sentencing judge to present this information, but was unable to do so until only a few minutes prior to the sentencing hearing.

Despite defense counsel’s brief and oral argument, the record is devoid of any objection to sentencing taking place, any request for a continuance, or any objection to the contents of the pre-sentence investigation. The transcript of the sentencing hearing reflects that the defendant was given ample opportunity to explain his criminal history and made corrections to certain information in the pre-sentence investigation relied upon by the sentencing judge. Absent objection at the time of sentencing, a claim that the defendant has not been afforded an opportunity to present to the sentencing judge mitigating evidence, or contradict unfavorable information contained in the presentence report cannot be asserted for the first time on appeal. Compare, State v. Norris, 347 So.2d 225 (La.1977); State v. Dugas, 441 So.2d 824 (La.App. 3d Cir.1983). These claims of counsel are completely outside the record. Had defendant felt he was being prejudiced, he should have moved for a continuance of the sentencing hearing or noted his objections in the record. Moreover, defendant could have filed in the record, prior to the sentencing hearing, the results of his own pre-sentence investigation for the judge’s consideration. Also, there was nothing, insofar as we can determine, to have prevented defense counsel from offering the evidence of mitigation at the sentencing hearing.

Since defendant made no objection for the record in connection with these contentions, there is nothing for us to consider. State v. Dugas, supra.

We find the trial judge adequately complied with La.C.Cr.P. Art. 894.1 in imposing this sentence. This assignment of error lacks merit.

Accordingly, defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . Defendant claimed at sentencing hearing that he possessed documents whereby Wellsite agreed to a 10% commission. However, all other information before the court indicated the commission was 5%. The lower court, however, accepted defendant’s version of the agreement for purposes of sentencing.