author: McClendon, j.

text:
    AMITECH U.S.A., LTD. v. NOTTINGHAM CONSTRUCTION COMPANY.
    No. 2009 CA 2048.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.
    Rehearing Denied March 28, 2011.

      Michael D. Hunt, A. Paul LeBlanc, Jr., Baton Rouge, Louisiana, for Plaintiff/lst Appellant Amitech U.S.A., Ltd.
    Murphy J. Foster, III, J. Mark Robinson, Baton Rouge, Louisiana, for Defendant/2nd Appellant Nottingham Construction Company, Inc.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McClendon, j.

LA contractor appeals a trial court judgment that rescinded an alleged settlement agreement between said contractor and an owner for whom the contractor had constructed a pipe manufacturing facility. The owner also appeals a judgment following a trial on the merits, which awarded the contractor $893,520.00 after the amounts the trial court determined the parties owed to each other were offset. For the following reasons, we affirm the judgment that rescinded the purported settlement agreement, but amend the trial. courts judgment following the trial on the merits to reflect that the owner is entitled to an award of $5,560.00 after the awards are offset.

FACTS AND PROCEDURAL HISTORY

Amitech U.S.A., Ltd. (Amitech) was created to bring certain foreign pipe-manufacturing processes (the Meyer and Flowtite processes) to North America. In 2001, Amitech hired Ron Cormier, who resided in Ohio, as a manager, and it began considering locations within the United States to build a pipe manufacturing plant that would utilize the Meyer and Flowtite processes.

Richard Vanek, a former business acquaintance of Cormier, suggested that Baton Rouge, Louisiana may be an attractive location for a plant because remedial work was required on the city’s sewer systems and infrastructure, which could result in the use of Amitech’s products. Vanek also suggested that Nottingham Construction, L.L.C. (Nottingham), a general contractor with experience in municipal and industrial construction, was a contractor in Baton Rouge that could construct Amiteeh’s facilities. In February 2001 and again in April 2001, Cormier traveled to Baton Rouge to meet with Ted Hicks, who was the principal of Nottingham.

In May 2001, Nottingham representatives, at Cormier’s request and Nottingham’s expense, agreed to travel to Europe to tour pipe manufacturing | .¡facilities that employed the Meyer and Flowtite processes. After returning from Europe, Nottingham submitted a proposal to Amitech, containing an estímate of costs for the construction of certain elements of the Meyer and Flowtite facilities in East Baton Rouge Parish.

In June 2001, Cormier traveled to Europe and made presentations to Amitech’s parent company, Saudi Arabian Amiantit Company (Amiantit), which owns pipe manufacturing facilities throughout the world. Cormier’s presentation reflected that “the total project cost for commissioning a North American production facility is assumed to be $26.02 million.” At the conclusion of the presentation to Amiantit, Cormier was provided with verbal authorization to proceed with the efforts to construct a pipe manufacturing facility in North America.

In November 2001, at Cormier’s request, Nottingham representatives, along with design professionals, took another trip to Europe to tour Meyer and Flowtite facilities. The representatives spent approximately one day touring a Meyer facility and one day touring a Flowtite facility. Amitech reimbursed Nottingham and the design professionals for their expenses incurred for this second trip.

Following the November 2001 trip to Europe, Nottingham and Amitech negotiated and entered into a Design-Build Contract, which was executed by the parties on February 26, 2002. The primary dispute at issue arises out of the scope of the work Nottingham was required to complete in accordance with the Design-Build Contract.

In the spring of 2003, Nottingham and Amitech reached an impasse concerning the amount due Nottingham for its work under the Design-Build Contract. As a result, the, parties engaged in a several-month-long process to resolve the claims between them, resulting in two agreements, namely a letter agreement dated June 30, 2003, and an agreement styled “Program |4Management Agreement” dated July 2, 2003. Both the letter and the agreement (sometimes collectively referred to as “the settlement agreement”) were signed by Cormier in his capacity as “President” of-Amitech.

On July -31, 2003, Amitech filed the instant action against Nottingham to rescind the settlement agreement, alleging that Cormier did not possess the requisite authority to bind Amitech to the settlement agreement, Nottingham filed an answer and a reconventional demand, wherein it sought to enforce the settlement agreement. Amitech amended its petition to assert claims for breach of fiduciary duty, breach of contract, and, alternatively, rescission of the Design-Build Contract.

Prior to trial, Amitech filed a motion for partial summary judgment, seeking to dismiss Nottingham’s suit to the extent it sought enforcement of the settlement agreement. On September 19, 2008, the trial court granted Amitech’s motion and rescinded the settlement agreement. Specifically, the trial court found that Amitech had not provided written authority to Cor-mier to settle, and absent such authority, Cormier could not enter into a valid settlement agreement. Moreover, in its September 25, 2008 judgment, the trial court ordered Nottingham to return the $409,000.00 that Nottingham had received from Amitech pursuant to the purported settlement.

In response to the trial court’s grant of Amiteeh’s motion for partial summary judgment, Nottingham amended its reeon-ventional demand, asserting that in the event the settlement agreement was not enforceable, Nottingham was entitled to damages in the amount of its claims existing prior to the parties’ settlement of disputes.

A bench trial was conducted between September 29 and October 8, 2008. After trial, the court took the matter under advisement, and subsequently issued |fiits written reasons for judgment. The judgment awarded Nottingham $1,040,000.00 less an amount recoverable by Amitech of $146,480.00, resulting in a net amount awarded to Nottingham of $893,520.00.

ASSIGNMENTS OF ERROR

Nottingham has appealed to seek enforcement of the putative settlement agreement and has assigned three errors, raising the following issues for review:

(1) Whether, in the absence of written evidence authorizing an agent to enter into a settlement agreement, a third party may enforce the settlement agreement against the principal based upon the theory of apparent authority?
(2) Whether, in the absence of written evidence authorizing an agent to enter into a settlement agreement, a third party may enforce the settlement agreement against the principal based upon estoppel and detrimental reliance as permitted by La. Civil Code art. 1967.
(3)Whether Nottingham demonstrated genuine issues as to material facts prohibiting Amitech from an award of summary judgment which rescinded a settlement agreement -in ■ conjunction with Issue Nos. 1 and 2.

Amitech has also appealed, assigning the following as errors:

(1) The trial court erred in finding that no fiduciary duty existed between Amitech and Nottingham.
(2) The trial court erred in failing to properly interpret the Design-Build Contract, and as a consequence further erred by finding that Amitech was not owed reimbursement for Nottingham’s failure to deliver the scope of the work contemplated by the contract price.
(3) Alternatively, the trial court erred in not rescinding the Design-Build Contract.
(4) The trial court erred in awarding Nottingham $800,000 for “Extra Fill and Site Work.”
(5) The trial court erred in awarding Nottingham $240,000 as part of an “early completion bonus.”

THE PURPORTED SETTLEMENT AGREEMENT

Nottingham has appealed to seek review of the trial court’s failure to enforce the purported settlement agreement entered into between the parties. In response, Amitech has filed a motion to dismiss Nottingham’s appeal, asserting that Nottingham waived its right to appeal the settlement issue by proceeding to trial on the post rescission demand. We disagree. The granting of |r,the motion for partial summary judgment was a partial final judgment from which no right to appeal existed absent a designation by the trial court. See LSA-C.C.P. arts. 1911 and 1915. We recognize that the trial court declined to designate the partial summary judgment — an interlocutory ruling — as final for purposes of an immediate appeal pursuant to LSA-C.C.P. art. 1915(B). However, after an appealable judgment is rendered in a case, the correctness of any interlocutory judgment can also be considered on appeal. Vanderbrook v. Jean, 2006-1975, p. 6 n. 4 (La.App. 1 Cir. 2/14/07), 959 So.2d 965, 968, n. 4; People of Living God v. Chantilly Corp., 251 La. 943, 947-48, 207 So.2d 752, 753 (1968). Accordingly, once the trial court signed the final judgment following the trial on the merits, Nottingham could seek review of the prior interlocutory ruling with regard to the settlement issue. Therefore, Amitech’s motion to dismiss Nottingham’s appeal is hereby denied.

Nottingham contends that the trial court, by focusing solely on whether Cormier possessed express authority to enter into the agreement, failed to consider whether Nottingham could enforce the settlement agreement against Amitech based upon the theory of apparent authority. The judicial understanding of the principles of apparent authority are analogous to the concept of putative mandatary set forth in LSA-C.C. art. 3021. See Walton Constr. Co., L.L.C. v. G.M. Horne & Co., Inc., 07-0145, p. 12 (La.App. 1 Cir. 2/20/08), 984 So.2d 827, 836. Under this theory, an agent is empowered to bind his principal in a transaction with a third person when the principal has made a manifestation to the third person, or to the community of which the third person is a member, that the agent is authorized to engage in the particular transaction. Walton Constr. Co., L.L.C., 07-0145 at p. 10, 984 So.2d at 835.

To support its position that a putative mandate existed, Nottingham notes that Cormier was the duly elected President of Amitech and was the only manager domiciled in the United States. Nottingham avers that the remaining |7managers visited Louisiana a total of possibly two to three times over the course of the construction. Nottingham asserts that Cor-mier took actions daily (for a period in excess of two years) on behalf of Amitech without the written approval or even knowledge of Amitech’s overseas managers. Particularly, Nottingham notes, among other things, that Cormier negotiated and executed the Design-Build Contract on behalf of Amitech, Nottingham received payments in the form of checks signed by Cormier in excess of $15,000,000.00, and Cormier participated in and consented to the performance of work beyond the scope of the Design-Build Contract for work performed at a cost in excess of $2,000,000.00. Hicks attested that not once did Amitech question, disavow, or challenge the authority of Cormier concerning actions taken on behalf of Ami-tech. As such, Nottingham concludes that it reasonably believed that Cormier had authority to settle the claims at issue.

Despite Nottingham’s position regarding why it assumed a putative mandate existed, we note that Hicks understood that Cormier’s authority was limited. Specifically, in his deposition, Hicks testified that Cormier did not “do anything or approve anything unless they called Hartmut and those guys over there ... We would get approval from them once they talked to their people overseas.” With regard to the cost-plus work, Hicks testified that “it was all done with Hartmut Ludwig’s and the — and all of the board’s approval. Everything had to be approved by the entire group.” Because Nottingham recognized that Cormier was required to obtain approval, we cannot conclude that a putative mandate with regard to Cormier’s authority to settle existed herein.

Moreover, even assuming a putative mandate existed, we note that Amitech did not provide Cormier express written authority to enter into a settlement agreement. Louisiana Civil Code art. 2997 provides that express authority must be given to enter into a compromise. Louisiana Civil Code article 3072 requires that a compromise “be made in writing or recited in open court.” Because the “law prescribes a certain form for an act, a mandate authorizing the act must be in that form.” LSA-C.C. art. 2993. The comments to LSA-C.C. art. | s2993 explain that when any act, such as a compromise, requires an authentic act or written form, a contract of mandate giving authority to do these acts must also be in authentic or written form. LSA-C.C. art. 2993, comment (c). Therefore, a third party cannot rely upon a putative mandate where the transaction at issue is one for which express authority is required under LSA-C.C. art. 2997. See Hoffman, Siegel, Seydel, Bienvenu & Centola, APLC v. Lee, 05-1491, p. 11 (La.App. 4 Cir. 7/12/06), 936 So.2d 853, 860, writ denied*, 06-1995 (La.11/3/06), 940 So.2d 671 (apparent authority could not be utilized to refer a matter to arbitration where arbitration requires express authority under LSA-C.C. Art. 2997(5)).

Also, Nottingham is charged with knowing the statutory limitations of an agent. In Carey Hodges Associates, Inc. v. Continental Fidelity Corp., 264 So.2d 734, 736 (La.App. 1 Cir.1972), this court noted:

The jurisprudence of this state has been consistent in holding that the person who deals with a corporation is chargeable with notice of the limitations and restrictions placed upon it by statute and is generally bound to know whether or not the person who presumes to represent the corporation and act in its name is authorized to do so. Our jurisprudence holds additionally that the person dealing with an agent is put on his guard by the fact of the person’s alleged agency alone and deals with him at his own risk. - It is his duty to inquire into and ascertain the nature and extent of his powers as an agent and determine whether or not the act or contract about to be consummated comes within the province of his agency and will or will not bind his principal.

Therefore, Nottingham could not rely upon an alleged putative mandate when express written authority was required by LSA-C.C. arts. 2993, 2997, and 3072. As such, assignment of error number one is without merit.

In its second assignment of error, Nottingham urges that the trial court erred in holding a third party may not enforce a settlement agreement against |9the principal based upon estoppel and detrimental reliance as permitted by LSA-C.C. art. 1967. Louisiana Civil Code article 1967 provides:

Cause is the reason why a party obligates himself.
A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

The doctrine of detrimental reliance is designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations, or silence. To prevail on a detrimental reliance claim, Louisiana law does not require proof of a formal, valid, and enforceable contract. Rather, in determining whether a claim for detrimental reliance has been established, the focus is on whether the party proved three elements by a preponderance of the evidence: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detriment. East Tangipahoa Dev. Co., LLC v. Bedico Junction, LLC, 08-1262, pp. 13-14 (La.App. 1 Cir. 12/23/08), 5 So.3d 238, 246, writ denied, 09-0166 (La.3/27/09), 5 So.3d 146 (citing Suire v. Lafayette City-Parish Consolidated Gov’t, 04-1459, p. 31 (La.4/12/05), 907 So.2d 37, 59.)

Nottingham notes that the Louisiana Supreme Court has indicated that a principal may be estopped from asserting the defense of lack of written authority if the third person can show a change of position in reliance on the appearance of authority manifested by the principal. Tedesco v. Gentry Dev., Inc., 540 So.2d 960, 964 (La.1989). However, as we noted above, Nottingham’s reliance was unreasonable given Hicks’ acknowledgement that Cormier was required to obtain approval from the overseas managers prior to entering into transactions.

| inMoreover, the Louisiana Supreme Court later recognized that “[ajbsent fraud, or at least affirmative misrepresentations as to the necessity of a writing ... it is almost always the case that it will be unreasonable to rely on an oral promise where the law requires such a promise to be in writing to be enforceable.” See Morris v. Friedman, 94-2808, p. 10 n. 14 (La.11/27/95), 663 So.2d 19, 26 n. 14; see also East Tangipahoa Dev. Co., LLC, OS-1262 at pp. 14-15, 5 So.3d at 247. In East Tangipahoa Dev. Co., LLC, this court held that it was not reasonable for the principal of East Tangipahoa Development to rely on an alleged oral agreement where an agreement to repurchase immovable property had to be in writing. East Tangipahoa Dev. Co., LLC 08-1262 at p. 15, 5 So.3d at 247. Because the law requires a writing giving an agent authority to enter into a valid settlement agreement, coupled with the fact that Nottingham was charged with knowledge of the limits of Cormier’s authority, it was unreasonable for Nottingham to rely on Cormier’s representations alone.

. In light of the foregoing, we find that LSA-C.C. art. 1967 cannot be applied under these circumstances. Accordingly, Nottingham’s assignment of error number two is without merit.

TRIAL ON THE MERITS

Fiduciary Duty

In its first assignment of error, Amitech contends that the trial court erred in finding that Nottingham owed it no fiduciary duty. Amitech asserts that the dealings between it and Nottingham prior to the execution of the February 26, 2002 Design-Build Contract created a fiduciary relationship; which Nottingham breached by failing to act honestly and divulge material information. Amitech seeks damages for what it deems was an unreasonable profit earned by Nottingham in relation to the Design-Build Contract and Amitech’s acquisition of real estate.

| nAmitech notes that Hicks agreed to assist in Amitech’s acquisition of real estate upon which a plant could be constructed. Hicks directed Amitech to a certain parcel located in Zachary, Louisiana (“the Zachary Property”), upon which his son, Kyle Hicks, obtained an option “about the same time” Hicks showed Amitech the property. The price quoted to Amitech to purchase various acreages of the Zachary Property was more than double the per acre price under the option held by Hicks’ son. The option was later extended several times by Nottingham, Hicks, VANED, L.L.C., Kyle Hicks, and/or Hartec Corporation (a corporation owned and operated by Hicks). At some point during the initial negotiations, the parties anticipated that Nottingham would acquire financing to purchase the property, construct the facility, and then lease the plant to Ami-tech.

However, in November 2001, because Nottingham could not secure financing absent a guarantee from Amitech, Amitech made the decision to purchase the Zachary Property and finance the construction of the facility. On December 7, 2001, after learning that Amitech would purchase the property, Nottingham invoiced Amitech $30,000.00 “to extend [the] option through February 24, 2002 for purchase of 52 acres on Hwy 61.” (Emphasis added.) Amitech paid the $30,000.00, and contends it was in turn used by Nottingham to extend the option on the Zachary Property on Nottingham’s behalf.

In January 2002, an Amitech board meeting was held in Baton Rouge. The board, after reviewing a presentation -of the site plan, objected to the proposed location of the plant because it was sited immediately adjacent to a residential traib er park. As a result, Hicks informed Ami-tech that the entire 94-acre tract was available. Amitech’s overseas managers approved acquisition of the 94-acre tract at the price quoted by Hicks. However, Amitech was unaware that the entire tract was already subject to an option held by Nottingham and financed (at least in part) by the $30,000.00 payment made by Ami-tech.

|12Two Zachary Property transactions occurred on February 26, 2002 — Nottingham purchased the entire 94-acre tract from its owner for $448,300.00 and then sold the property to Amitech for $911,800.00. Cormier was not aware that Nottingham had purchased the property until he appeared at the latter closing that day. Both Nottingham’s purchase of the property and the immediate re-sale to Am-itech were funded exclusively by Amitech. Only one settlement statement was prepared and Nottingham was paid off as if it were a mortgagee of the Zachary Property. Although Cormier posited that he did not believe Hicks was acting as Amitech’s agent, Cormier testified that Hicks “had negotiated with the owner for acquiring that land for us.”

Generally, whether a fiduciary duty exists and the extent of that duty depends upon the facts and circumstances of the ease and the relationship of the parties. Scheffler v. Adams and Reese, LLP, 06-1774, p. 6 (La.2/22/07), 950 So.2d 641, 647. As a basic proposition, for a fiduciary duty to exist, there must be a fiduciary relationship between the parties. The Uniform Fiduciaries Law, LSA-R.S. 9:3801(2) defines “fiduciary”:

“Fiduciary” includes a trustee under any trust, expressed, implied, resulting or constructive, executor, administrator, guardian, conservator, curator, receiver, trustee in bankruptcy, assignee for the benefit of creditors, pai'tner, agent, officer of a corporation, public or private, public officer, or any other persons acting in a fiduciary capacity for any person, trust or estate.

The dominant characteristic of a fiduciary relationship is the confidence reposed by one in the other and a person occupying such a relationship cannot further his own interests and enjoy the fruits of an advantage taken of such a relationship. He must make a full disclosure of all material facts surrounding the transaction that might affect the decision of his principals. Plaquemines Parish Com’n Council v. Delta Dev. Co., Inc., 502 So.2d 1034, 1040 (La.1987). One is said to act in a “fiduciary capacity” when the business which he transacts, or the money or property he handles, is not his own or for his benefit, but for the benefit of another person, as to whom he stands in relation implying and necessitating great confidence and trust on the one part and a high degree | lsof good faith on the other part. State v. Hagerty, 251 La. 477, 493, 205 So.2d 369, 374-75 (1967), cert. denied, 391 U.S. 935, 88 S.Ct. 1848, 20 L.Ed.2d 855 (1968).

We recognize that the initial options taken on the Zachary Property were done at Nottingham’s sole risk insofar as there was no guarantee that Amitech would utilize this location to construct a pipe manufacturing facility. However, the intentions of the parties and their respective positions with regard to the property changed after Amitech turned from a future lessee into a future owner and Nottingham no longer bore any further risk. After Nottingham learned that Amitech would purchase the property and construct its own facility, Nottingham, rather than utilizing its own funds to extend the option, billed Amitech to fund the extension of the option. Nottingham’s invoice clearly reflects that the $30,000 was being utilized to “extend” a prior option. The invoice does not reflect that Amitech was buying an option to purchase the property directly from Nottingham.

In light of the foregoing, we find that Nottingham owed a fiduciary duty to Amitech with regard to this specific real estate transaction. The money Nottingham handled in connection with the final option extension and the business it transacted in that regard was not its own or for its benefit, but for the benefit of Amitech. Hagerty, 205 So.2d at 374-75. The fiduciary’s duty includes the ordinary duties owed under tort principles, as well as a legally imposed duty which requires the fiduciary to handle the matter “as though it were his own affair.” Noe v. Roussel, 310 So.2d 806, 819 (La.1975). In addition, the fiduciary may not take even the slightest advantage, but must zealously,- diligently, and honestly guard and champion the rights of his principal against all other persons whomsoever, and is bound not to act in antagonism, opposition or conflict with the interest of the principal to even the slightest extent. Id.

As such, Nottingham was required to disclose, among other things, the price contained in the option agreement. Amiteeh has shown a breach of the | Utrust it placed in Nottingham, and Nottingham has failed in its duty not to take the slightest advantage of that trust. Therefore, Amiteeh is entitled to recover from Nottingham the profits Nottingham made on the real estate transaction as a result of the breach. Cf. Woodward v. Steed, 28,676 (La.App. 2 Cir. 9/25/96), 680 So.2d 1320, unit not considered, 96-2648 (La.12/6/96), 684 So.2d 411.

Amiteeh also seeks recovery for what it considers an “unreasonable” profit made by Nottingham in constructing the facility. Amiteeh contends that Nottingham ultimately earned a profit of at least $6,904,948.26 against Amitech’s total cost of $13,336,908.29, or a profit of more than 100% of cost. Amiteeh asserts that this occurred at the same time Nottingham was the paid consultant of Amiteeh, was providing Amiteeh with legal and real estate services, and was assisting Amiteeh in developing its building plan. Amiteeh urges that based on these facts, the trial court manifestly erred in failing to find a fiduciary relationship and a breach of same when considering the amount Amiteeh earned under the contract.

We note that the parties freely negotiated the terms of the Design-Build Contract in an arms-length transaction. A court is not to be concerned with the wisdom or folly of a contract. It cannot annul or amend it simply to avoid some supposed hardship arising therefrom. Its duty is confined to the ascertainment of the limits of the rights and obligations of the contracting parties as they have defined them for themselves. Weeks v. T.L. James & Co. Inc., 626 So.2d 420, 424 (La.App. 3 Cir.1993), units denied, 93-2909, 93-2936 (La.1/28/94) 630 So.2d 794. As such, a court cannot undermine a contract simply because it was a bad deal for one of the parties. Id. Accordingly, we affirm the trial court’s judgment to the extent that the trial court found that no. fiduciary duty was breached when the parties entered into the Design-Build Contract. .

Scope of Work Under the Design-Build Contract

In its second assignment of error, Ami-tech contends that the trial court erred in failing to properly interpret the Design-Build Contract, and as a consequence further erred by finding that Amiteeh was not owed reimbursement |1fifor Nottingham’s failure to deliver the scope of work contemplated by the contract price.

Amiteeh notes that Nottingham posits that it was only required to deliver the “shell” of the buildings with no interior electrical or mechanical processes, but Am-itech contends that the contract documents required Amiteeh to deliver full electrical and mechanical installation in the Meyer and Flowtite buildings, excepting only process equipment and installation of same.

Article 1.01 of the Design-Build Contract described the work contemplated by the contract as follows:

Construct site improvements, including but not limited to, rail road crossing, access road, paving, parking, limestone storage, signs, outside lighting, security fencing, utilities, landscaping; construct 4,000 sq. foot administration building; construct 3,000 sq. foot maintenance building; construct 4,000 sq. foot employee building; construct two (2) 4,000 sq. foot warehouses; construct 55,000 sq. foot “Meyer” building; and construct 24,500 sq. foot “Flowtite” building.

Moreover,' Article 3.01(B) of the general conditions of'the contract provides:

It is the intent of the Contract Documents to1 describe a functionally eom-píete Project (or part thereof) to be designed and constructed in accordance with the Contract Documents. Any Work, materials or equipment that may reasonably be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the intended result will be furnished and performed whether or not specifically called for. When words or phrases which have a well-known technical or construction industry or trade meaning are used to describe work, materials or' equipment, such words or phrases shall be interpreted in accordance with that meaning.

Article 8.01 of the Design-Build Contract further provides that “[t]he Contract Documents which comprise the entire agreement between OWNER and DESIGN/BUILDER concerning the Work consist of,” among other things, “Conceptual Documents” and the “DESIGN/BUILDER’S Proposal.”

Amitech notes that at trial, Hicks testified that the only “Conceptual Documents” were Flowtite schematics and a proposed layout of the Meyer Building. Amitech further notes that Hicks testified that the Budget Review document was the “DESIGN/BUILDER’S Proposal,” and other than the specific | lfichanges specified in the Design-Build Contract, there were no documents in existence which changed the scope of this proposal.

Amitech avers that the Budget Review Document clarifies the scope of a number of construction items, including specific items with regard to the Flowtite and Meyer Buildings. The document reflects that the Flowtite Building will be constructed “as per the copyright Flowtite Technology 2001 drawings and specifications,” excluding “all equipment and/or installation of same.” The drawings and specifications include details for full mechanical and electrical service. Also, the Budget Review document specifies that the Meyer Building includes “handrails, ladders, mezzanine decks, electrical, and mechanical,” excluding only “all equipment and/or installation.”

Amitech contends that the evidence showed that at least into the last quarter of 2002, Nottingham was proceeding as per the scope of work set out in the Budget Review Document — completing electrical and mechanical services to the Meyer and Flowtite buildings, excepting only equipment and installation of same. Amitech also asserts that Nottingham’s engineering subcontractors proceeded in the months prior and after the Design-Build Contract’s execution with an understanding of a scope of work that included interior mechanical and electrical services that would result in a functional manufacturing facility and prepared plans depicting such interior services, as well as structuring drawings regarding the foundations upon which particular pieces of equipment would sit. Amitech concludes that the trial court erred as a matter of law in failing tó give full effect to the referenced documents.

On the other hand, Nottingham points out that at the time the parties entered into the Design-Build Contract, neither party was aware of the specific equipment which Amitech would ultimately install in the facility. Hicks testified that as a result, at the time the contract was entered into it was “impossible for [Nottingham] to give a contract price on anything other than the shells.” Without information concerning the equipment and its layout, Hicks testified that there was no way for Nottingham to establish a scope of work to address h differing loads of the equipment and the attendant special foundations required to meet those loads, nor the requirements of the equipment for power supply, water supply, and drainage. Cor-mier testified that the Design-Build Contract only contemplated a “shell,” because Nottingham had no information with regard to the “electrical and the support slab” at the time the parties entered into the contract.

Similarly, Keith Shackelford, an employee of CSRS, Inc., explained that a Design-Build Contract is a “fast-track process” that saves time, but rarely saves money. He indicated that during construction, components are being designed as construction progresses. He testified that at the time the Design-Build Contract was signed, Nottingham may have received a list of the requisite electrical loads, but the parties had no knowledge whether any of the foreign components were compliant with codes in the United States. He also indicated that Nottingham did not have any information with regard to loads to determine the requisite foundations. Moreover, because alternate layouts were being considered, Nottingham did not have any information with respect to drainage requirements for different pieces of equipment.

Nottingham also points out that Bill McCann, an operations manager for Ami-tech, monitored Nottingham’s construction efforts. Nottingham notes that while it was working on the construction of the facility, McCann hired third-party designers and contractors on behalf of Amiteeh to perform work simultaneously with Nottingham’s work. Moreover, Nottingham contends that McCann never indicated,- either in writing or verbally, an understanding that the additional work performed by these third-party contractors was actually within Nottingham’s scope of work pursuant to the Design-Build Contract. Nottingham notes that Amiteeh approved additional work performed by Nottingham, which was billed outside of the scope of the Design-Build Contract, as evidenced by payment of the invoices. Nottingham argues that these facts establish that additional work outside the scope of the Design-Build Contract was anticipated by the parties.

| ^Contracts, subject to interpretation from the instrument’s four corners without the necessity of extrinsic evidence, are to be interpreted as a matter of law. The use of extrinsic evidence'is proper only where a contract is ambiguous after an examination of the four corners of the agreement. Freeport-McMoran, Inc. v. Transcontinental Gas Pipe Line Corp., 04-0031, p. 7 (La.App. 1 Cir. 10/14/05), 924 So.2d 207, 212, writ denied, 05-2358 (La.3/31/06), 925 So.2d 1256 (citing Investors Associates Ltd. v. B.F. Trappey’s Sons, Inc., 500 So.2d 909, 912 (La.App. 3 Cir.), writ denied, 502 So.2d 116 (La.1987)). However, when the terms of a written contract are susceptible of more than one meaning, or there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed, or fraud is alleged, parol evidence is admissible to clarify the ambiguity, show the intention of the parties, or prove fraud. Freeport-McMoran, Inc., 04-0031 at p. 7, 924 So.2d at 212.

Louisiana Civil Code article 2045 defines interpretation of a contract as “the determination of the common intent of the parties.” Such intent is to be determined in accordance with the plain, ordinary, and popular sense of the language used, and by construing the entirety of the document on a practical, reasonable, and fair basis. Moreover, Louisiana Civil Code article 2047 provides that “[t]he words of a contract must be given their generally prevailing meaning. Words of art and technical terms must be given their technical meaning when the contract involves a technical matter.” The rule of strict construction does not authorize perversion of language or the creation of ambiguity where none exists and does not authorize courts to make a new contract where the language employed expresses the true intent of the parties. One of the best ways to determine what the parties intended in a contract is to examine the method in which the contract is performed, particularly if performance has been consistent for a period of many years. Intent is an issue of fact which is to be inferred from all of the surrounding circumstances. Freeport-McMoran, Inc., 04-0031 at p. 7, 924 So.2d at 212. Whether a contract is ambiguous or not is a question of|1fllaw. Where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown. Freeport-McMoran, Inc., 04-0031 at p. 8, 924 So.2d at 213.

Because the terms of the Design-Build Contract were not “clear and unambiguous” with regard to the scope of the project, factual findings are pertinent to its interpretation and the trial court’s findings are not to be disturbed unless manifest error is shown. Under the manifest error standard, if the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given great deference by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

In denying Amitech’s claim for reimbursement for items associated with the building interior, the trial court reasoned:

While Amitech brought forth several documents to support [its] position, the exhibits do not establish the scope of interior electrical and mechanical work now claimed by Amitech. At best, they establish only that some electrical and mechanical work was contemplated. In fact, the “shell buildings” provided by Nottingham under the Design-Build Contract do contain some electrical and mechanical — certainly enough to support the position of Nottingham that the additional electrical and mechanical work invoiced under the cost-plus contract was extra work beyond the scope of the Design-Build Contract. As additional evidence of the intent of the parties throughout the course of the Project on this issue, Amitech (after review by McCann and Cormier) paid in full, without objection, the cost-plus invoices submitted by Nottingham. Clearly, such contemporaneous action by McCann and Cormier in accepting such work as cost-plus extra work flies in the face of Ami-tech’s and McCann’s position taken at trial that such work properly fell within the scope of the Design-Build Contract.

After considering the foregoing, and particularly in light of the credibility determinations made by the trial court, we find that a reasonable basis for the trial court’s ruling appears in the record. Accordingly, we cannot conclude that 12nthe trial court’s rejection of Amiteeh’s claims for reimbursement for items associated with the buildings’ interior was manifestly erroneous.

Amitech also asserts that despite Nottingham representatives visiting the manufacturing facilities overseas to ascertain what the pipe-manufacturing processes involved, Nottingham, in constructing the Meyer and Flowtite buildings, failed to address the noise, dust, and wastewater issues created by the processes, the electrical power required, the heat for the pipe-making processes, foundations sufficient to hold or seat the process equipment, as well as construct facilities necessary to accept raw materials used in the processes. Amitech also contends that other necessary components of buildings such as bathrooms, foreman offices, and control rooms were not built. Moreover, Amitech contends that additional work was required to bring the buildings up to code and/or work was deficiently performed that required correction.

121 Amitech also claims that Nottingham invoiced Amitech separately for “engineering services” comprised of work done by Shackelford under the Design-Build Contract, to install trenches, and to perform a number of tasks ranging from providing utilities to modifications required by code. Amitech contends that these items were necessary for the facility to function as intended and should have been included in the contract price.

With regard to the referenced claims, the trial court, in its written reasons, indicated:

The Court has gone through each of these claims in detail in its review of the case. Much time and effort was expended by the Court in reviewing the exhibits and in going back over the testimony given during trial. The Court finds that most of the items claimed do not fall within the scope of the Design-Build contract and are, therefore, not recoverable by Amitech.

After reviewing the record in its entirety, we find that a reasonable basis exists to support the trial court’s ruling with regard to these specific items. Accordingly, we cannot conclude that the trial court’s ruling with regard to any of these claims is manifestly erroneous.

Amitech also contends that the Design-Build Contract expressly includes a concrete “access road” and asserts that the trial court should have awarded it the monies necessary to complete the road. Amitech asserts that although a concrete road was required under the contract, Nottingham only constructed a limestone road.

• Amitech notes that the Design-Build Contract requires Nottingham to furnish “[a]ny Work, materials or equipment that may reasonably be inferred from the Contract Documents or'from prevailing custom or trade usage.as being required to produce the intended result ... whether or not specifically called for.” Amitech submits that a concreté access road was needed .to permit the plant to engage in its intended function, as the hauling of heavy pipes requires a paved access road.

^Moreover, Amitech contends that a concrete access road was included in the “Unit Price Work” under the Design-Build Contract under “Paving, Parking, and Limestone Storage,” which had a total estimated unit cost of $2,805,082.00. Ami-tech asserts that the unit price is unreasonable if the concrete access road is removed, given that all that remains is a parking lot for the administration building, lips around the buildings, and a limestone storage yard. Although the Design-Build Contract provided no specific cost breakdown, the Budget Review document prepared by Nottingham indicated a “[proposed 8 inch concrete paving for drives.” After execution of the Design-Build Contract, Amitech notes that Shackelford began drawing plans for an access road with an 8-inch concrete surface that followed up site plan drawings prepared by Shack-elford in January and March of 2002, both of which showed a 30-foot-wide concrete access road as part of the Amitech" facility. Ultimately, Shackelford’s plans for a paved access road were “issued for construction” in July of 2002, and constituted his “final design.”

The trial court, in finding that a concrete road was not included in the price of the contract, indicated that “[t]he testimony of Shackelford, Hicks and Cormier convinces this Court that both parties intended that the access road be concrete,” but that the “cost was going to be absorbed by the City/Parish.”

Specifically, Hicks testified that when the Design-Build Contract was signed, the parties understood that the Department of Economic Development (the Department) would fund the roadway. Hicks testified that the Department had set a budget funding number of $750,000.00 to dedicate to the roadway, and that he was certain that the funds would come through at the time the parties entered into the Design-Build Contract. Hicks also indicated that Nottingham did not include any charges for a concrete road in the Design-Build ^Contract. Hicks testified that the Department later determined that it would not be able to fund the roadway as a private street, so he met with local officials to determine a mechanism to make the roadway public. Hicks indicated that after Nottingham left the site, Ludwig decided that he did not want a public road in the facility.

Similarly, Shackelford testified that during the initial stages of planning, upgrading the limestone roadway to a thirty-foot concrete drive was contingent on receipt of funds from the Department. Although the plans reflected a thousand linear foot access road, Shackelford testified that the estimate he used for calculation of his engineering fees reflected the cost of the roadway at one hundred dollars per linear foot, or the cost of a limestone road. Shackelford indicated that a concrete roadway could not be built for such a'low price, so the Design-Build contract provided for something other than a paved roadway for access initially.

Moreover, Cormier testified that the Department indicated that it would “help” with the roadway. Cormier also pointed out that these discussions occurred long before the parties entered into the Design-Build Contract.

Nevertheless, Amitech argues that the trial court, in making its ruling, failed to consider the contract change order Nottingham submitted with its final application for payment. The change order reflected a reduction of $276,300.00 and the justification was to “[d]educt for Road, turnouts, fire hydrant and builders risk.” Amitech contends that the change order shows that Nottingham, prior to this litigation, recognized that a concrete access road was included in the scope of the Design-Build Contract. ' We note, however, that Hicks testified that his understanding was that the credit was for “eight-inch paving that was around the back side of the Flowtite Building.” Hicks further indicated that it is implausible for one to conclude that the credit was for completion of a concrete roadway insofar as the roadway would have cost significantly more than the proposed credit. Moreover, Joseph Caldererra, an Inexpert in the field of construction and construction cost estimating, estimated that the cost of the concrete access road was approximately $462,099.00, -which is significantly higher than the amount reflected in the change order.

In light of the foregoing, we find that a reasonable basis exists in the record for the trial court’s ruling.' Although we may have reached a different conclusion had we been sitting as a trier of fact, we cannot substitute our judgment for the judgment of the trial court. Ryan v. Zurich American Ins. Co., 07-2312, p. 1 (La.7/1/08), 988 So.2d 214, 215. Accordingly, we cannot conclude that the trial court’s failure to assess-Nottingham with costs to construct a concrete road was manifestly erroneous.

Rescission of the Design-Build Contract

In its third assignment of error, Amitech contends that the trial court erred in not rescinding the Design-Build Contract. Amitech asserts that the trial court failed to articulate any scope of work, finding that “the Specifications and Plans were developed on a continual basis and the Project details were decided between the parties as issues arose and as the Project progressed.” Amitech concludes that if the court accepts that the scope was simply that which evolved as the project progressed, then the contract lacked a determinable object at the time it was executed and should be rescinded. See LSA-C.C. arts. 1971 and 1973.

We disagree. The trial court found that the parties intended Nottingham to provide the “basic framework of the Project” under the Design-Build Contract, with the exception of the Administration Building, which the parties intended to be completed under the scope of the contract. The trial court also found that the parties intended for anything that fell outside of the scope of the Design-Build Contract, including much of the interior work in both the Meyer and Flowtite buildings, to be completed on a cost-plus basis. Moreover, Amitech’s actions in hiring third-party contractors to complete work contemporaneously with the work being performed by Nottingham and in approving and paying most of Nottingham’s cost-plus invoices reflects Amitech’s understanding that the | ^Design-Build Contract did not contemplate a finished facility. Accordingly, we find no merit in Amitech’s third assignment of error.

Extra Fill and, Site Work

In its fourth assignment of error, Amitéch contends that the trial court erred in awarding Nottingham $800,000 for “Extra Fill and Site Work.” As noted above, after learning that the initial plans sited the Amitech facility next to a residential trailer park, Amitech decided to move the buildings on the property to provide an additional buffer to the trailer park. In a letter to Cormier, dated February 4, 2002, Hicks wrote:

The costs to relocate the plant to the rear and opposite side of the property [cannot] be determined until elevations are established and final quantities of dirt are in place. By using this method we can use actual quantities and not estimated quantities.
We will submit the actual costs once all fill is in place and the new entrance road is complete.

Amitech notes that a few weeks later, the parties signed the Design-Build Contract, which obligated Nottingham to perform the ‘Work” defined in Article 1.01 to include “site improvements.” Article 3.01(B) of the general conditions of contract specifies that “[a]ny work, materials or equipment that may reasonably be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the intended result will be furnished and performed whether or not specifically called for.” Additionally, Article 3.01(A) of the general conditions of the Design-Build Contract further specifies that “[t]he Contract Documents comprise the entire agreement between OWNER and DESIGN/BUILDER concerning the Work.” Finally, Article 10.01 of the General Conditions states that “[t]he Contract Price constitutes the total compensation (subject to authorized adjustments) payable to DESIGN/BUILDER for performing the Work.’’

Amitech notes that the trial court found that an agreement existed to compensate Nottingham. for extra fill and dirt work due to Amitech changing the location of the plant, because “the extra fill was not contemplated in the original Budget Review document as the buildings were contemplated to be placed close 12Bto the highway, where the elevations were higher.” Amitech asserts that in so finding, the trial court erred as a matter of law by failing to give effect to the unambiguous language of the Design-Build Contract making it the parties’ “entire agreement” concerning “the Work,” and further specifying that the “Contract Price” was the “total compensation” to be paid for “the Work,” including all “site improvements.” Amitech urges that the Design-Build Contract displaced any antecedent agreement about the cost of “the Work,” and to construe the contract language otherwise would render the integrative and exclusive price clauses meaningless.

Additionally, Amitech contends that in ruling, the trial court ignored the subsequent actions of the parties, which it alleges were inconsistent with the existence of any enforceable obligation. Amitech notes that in March 2002, Cormier prepared a summary of potential cost overruns, but the document did not reflect “extra fill.” Amitech also notes that it was not invoiced for the dirt work, but received a change order submitted on May 30, 2003, nearly a year after the dirt work was complete. After receiving the referenced change order, along with a second change order, Amitech notes that Cormier sent an e-mail to Amitech on June 9, 2003, which characterized the change orders as seeking “an extra one million dollars, which is outside the contract, and ridiculous.” Amitech ultimately rejected this change order.

At trial, Hicks testified that he was aware that it would be more expensive to construct the plant at the new location, so he informed Nottingham that it would incur additional costs. Ludwig testified that following the decision to move the facility, he understood that Amitech “will incur some cost.” Similarly, Cormier testified that he knew “that there would be some additional excavation ... [and] that [Hicks] said he would be doing that on a cost-plus basis, but there would be an additional charge, yes.” Hicks testified that because the Design-Build Contract was signed a few weeks after Amitech decided to move the plant, Nottingham was unable to include the final figures in the contract.

li>7Moreover, Hicks testified that after the parties entered the Design-Build Contract, Nottingham, through Jim Montgomery, and McCann agreed on a unit price based on actual costs at the job site. Hicks testified that an agreement was reached because McCann knew that the parties agreed that the additional dirt work was to be done on a cost-plus basis.

We note that contracts have the effect of law for the parties. LSA-C.C. art. 1983. Courts are obligated to give legal effect to contracts according to the common intent of the parties. LSA-C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. LSA-C.C. art. 2046.

Written construction contracts may be modified by oral contracts and by the conduct of the parties, even when the written contract contains a provision that an owner is liable only if the change orders are in writing. Cajun Constructors, Inc. v. Fleming Const. Co., Inc., 05-2003, p. 8 (La.App. 1 Cir. 11/15/06), 951 So.2d 208, 214, writ denied, 07-0420 (La.4/5/07), 954 So.2d 146 (citing Pelican Electrical Contractors v. Neumeyer, 419 So.2d 1, 5 (La.App. 4 Cir.), writ denied, 423 So.2d 1150 (La.1982)). Whether an oral agreement modifies a written contract is a question of fact. Id. While modification can be presumed by silence, inaction, or implication, one person may not change the terms unilaterally. L & A Contracting Co., Inc. v. Ram Indus. Coatings, Inc., 99-0354, p. 15 (La.App. 1 Cir. 6/23/00), 762 So.2d 1223, 1232, writ denied, 00-2232 (La.11/13/00), 775 So.2d 438. The party asserting a modification of an obligation must prove by a preponderance of the evidence facts or acts giving rise to the modification. LSA-C.C. art. 1831.

Although Amitech alleges that the Design-Build Contract subsumed the prior actions of the parties, Hicks testified that after the Design-Build Contract was signed, the parties agreed that a unit sum for dirt work and fill was required [2⅜⅛ addition to the site improvement sum in the Design-Build Contract. In light of Hicks’ testimony in that regard, we cannot conclude that the trial court was manifestly erroneous in finding the parties agreed to modify the Design-Build Contract.

Amitech contends that even if an enforceable obligation existed, Nottingham failed to prove a quantum of damages. Amitech avers that Nottingham was unable to produce a single receipt or invoice associated with this “extra fill and site work.” Rather, Amitech contends that the amount awarded by the trial court was based upon an unsubstantiated eost-per-yard figure applied by Hicks. Amitech notes that Nottingham had not calculated the difference between the costs of the site work at the original location as opposed to the cost of the work at the final location. Amitech further contends that the exhibits and testimony reflect that under the original site plan, the pipe storage yard (the single largest unit by area) ran deeper into the northwest section of the property, the lowest point on the tract, and thus would have required substantially more fill than was used in the final location. As such, Amitech concludes that Nottingham failed to prove that it incurred any greater cost than it would have incurred had the site location not changed.

At trial, Shackelford testified that the topographical relief in the area where the plant was constructed was three and a half to four feet lower than the original plant site. Shackelford indicated that the floor elevations for the buildings required that they be at an elevation of 98.5 feet. In order to meet the requisite elevation, Shackelford testified that roughly 65,000 cubic yards of compacted fill was required, or roughly 90,000 cubic yards of loose dirt. Based upon these figures it appears that Nottingham billed Amitech $8.89 per cubic yard of loose dirt.

Hicks and Shackelford testified that the dirt utilized to meet the requisite elevations included dirt taken from the detention pond. However, Hicks also testified that the detention pond was included in the scope of the Design-Build 129Contract and that Amitech had been charged for excavation of the detention pond. Hicks further indicated that regardless of the elevations of the original site, the dirt taken from the detention pond would necessarily have been placed on that site had the plant location not have been moved. Caldererra testified that considering the detention pond “in the smallest view,” a minimum of 22,000 cubic yards of dirt had been removed. Because the scope of the Design-Build Contract, at a minimum, required Nottingham to excavate the pond and utilize the fill for Amitech’s facility, we find that the trial court manifestly erred in failing to credit Amitech for 22,000 cubic yards of dirt, or $195,580.00.

Early Completion Bonus

In its final assignment, Amitech contends that the trial court erred in awarding Nottingham $240,000.00 as part of an “early completion bonus.” The contract time was defined in Article 3.01 of the Design-Build Contract, which required that the work “be substantially completed within 349 calendar days” of February 26, 2002. Article 3.03 of the Design-Build Contract provided an incentive for early completion and required Nottingham to pay Amitech “$5,000.00 for each and every day that the Work is completed prior to the time specified in paragraph 3.01 for Substantial Completion.” Moreover, Article 11.02 of the General Conditions allowed extensions for delays beyond Nottingham’s control, including abnormal weather.

Amitech subsequently executed Change Order Number 1, which extended the contract time by 23 calendar days, thereby increasing the total contract time to 372 days. Amitech, through McCann, accepted the work required by the Design-Build Contract on December 20, 2002, or 76 days prior to the requisite completion date.

On March 13, 2003, Nottingham made a written request for payment of an “early completion” incentive. Therein, Nottingham requested a total or $440,000.00, consisting of $380,000.00 from execution of Notice of Acceptance lsn(76 days x 5,000.00 per day), and an additional $60,000.00 for “rain days” (60 days x 1,000.00 per day).

On May 19, 2003, Nottingham submitted Change Order Number 5, which reflected a $240,000.00 for “Adder Credits for future pipe purchases as agreed to by Ron Cor-mier.” Amitech rejected this change order.

The trial court concluded that Nottingham had earned an “early completion bonus” of $680,000.00, consisting of the $440,000.00 reflected by the March 13, 2003 request, and the $240,000.00 “pipe credit” reflected in Change Order Number 5. In reaching this conclusion, the trial court found that Cormier agreed to extend the contract time an additional 120 days for abnormal weather. The trial court found, in accordance with the March 13, 2003 request for payment, that Nottingham would receive $1,000.00 per day for 60 days of abnormal weather, but it also found that Cormier agreed that Nottingham would be compensated with pipe credits in the amount of $240,000.00 for the remaining 60 days of abnormal weather. Amitech contends that the trial court’s finding is unreasonable because the bonus was fixed upon substantial completion. Amitech asserts that Nottingham’s own demand for payment on March 13, 2003 reflects no extension of contract times other than the 23-day extension reflected in Change Order Number 1. Amitech contends that the pipe credit, as Cormier testified, was simply another way to pay Nottingham part of the $440,000.00 it claimed as an early completion incentive. Amitech asserts that such an understanding was consistent with Nottingham’s own documents, which set forth that the total calculation of the “early incentive bonus” was only $440,000.00, not $680,000.00. As such, Amitech .concludes that this court should reverse the trial court’s award of $240,000.00.

After a thorough review of the record, we find no reasonable basis to support the finding that the parties agreed that Nottingham, in addition to the 60 days referenced in the March 13, 2003 request, would be compensated with pipe 1credits in the amount of $240,000.00 for an additional 60 days of abnormal weather. Accordingly, the trial court was manifestly erroneous in awarding this sum to Ami-tech.

CONCLUSION

In sum, we deny Amitech’s motion to dismiss Nottingham’s appeal, but affirm the district court’s judgment on Amitech’s motion for partial summary judgment that rescinded the settlement agreement. Ami-tech, as a result of Nottingham’s breach of fiduciary duty with regard to the real estate transaction, is entitled to recover from Nottingham the profits Nottingham made on the real estate transaction, or $463,500.00. Amitech is also entitled to a credit of $195,580.00 for fill and dirt work because the work was contemplated and billed under the scope of the original Design-Build Contract. Additionally, the trial court’s $240,000.00 pipe credit award to Nottingham was manifestly erroneous. Accordingly, after the referenced amounts are set-off against the remaining trial court awards, Amitech is owed a sum of $5,560.00.

Additionally, we note that the trial court, in its September 25, 2008, judgment, ordered Nottingham to return the $409,000.00 it had received pursuant to the purported settlement. Accordingly, considering the two judgments collectively, Nottingham is required to pay Amitech $414,560.00, plus interest from the date of judicial demand.

Each party is to bear their own cost for their respective appeals.

MOTION TO DISMISS APPEAL DENIED; JUDGMENT ON MOTION FOR PARTIAL SUMMARY JUDGMENT AFFIRMED; JUDGMENT ON MERITS AMENDED AND AFFIRMED AS AMENDED.

      . Amitech had three other managers, Hart-mut Ludwig, Wehbe Rafih, and Fareed Kha-lawi, who all resided overseas.

      . Ludwig accompanied Cormier on the first visit.

      . In the letter, Amitech pledged to pay Nottingham $409,000.00 and enter into a Program Management Agreement to resolve all claims existing between the parties, and Nottingham agreed to cancel a lien that it had placed on Amitech's property. In the Program Management Agreement, Amitech designated Nottingham as Amitech's program manager and/or construction manager for all of Amitech's construction projects from April 15, 2003 through April 14, 2007, with a minimum guaranteed contract amount payable to Nottingham of $1,047,000.00. Although neither party performed pursuant to the Program Management. Agreement, Amitech paid Nottingham the $409,000.00 referenced in the letter and Nottingham cancelled its lien.

      . Notwithstanding a 1915(B) designation, we note that nothing precludes a party from seeking a supervisory writ if the circumstances dictate. See LSA-C.C.P. art. 2201.

      .Pursuant to Amitech’s operating agreement, however, any significant undertaking required the approval of a majority of Amitech's four managers. Although written resolutions signed by the managers were generally used to approve company undertakings outside of formal board meetings, the record contains no resolution or other writing reflecting that the Board authorized Cormier to settle the dispute.

      . Nevertheless, because we find that no putative mandate existed, agency by estoppel cannot be applied herein.

      . As a result of the purported settlement agreement, Nottingham contends that it can-celled its lien and lost the security afforded by the lien up to the amount of $2,700,000.00. However, Hicks also acknowledged that after Nottingham discovered Amitech would not honor the purported settlement agreement, Nottingham secured a new lien.

      . In light of our rulings with regard to assignments of error numbers 1 and 2, Nolting-ham's third assignment of error is also without merit.

      . VANED; L.L.C. was an unformed limited liability company to be owned in equal membership units by Vanek and Hicks.

      . CSRS, Inc. was an engineering firm hired by Nottingham to assist with the project. (R. 3072)

      . With regard to witness credibility, we note that the trial court made a specific factual finding that Cormier and Shackelford were the most credible witnesses. (R.2036)

      . Specifically, Amitech contends that the following should have been included within the scope of the Design-Build Contract:
      Sound proofing, air locks, sump pumps, pavement additions and catch basins, to suppress noise, dust, and channel wastewa-ter ($61,286.00)
      Construction of a control room in the Meyer building ($69,200.00)
      Construction of a foreman's office and restroom facilities in the Meyer Building ($85,-626.00)
      Build a limestone parking lot in front of the administration building as depicted on the Nottingham's site plan ($32,700.00)
      Design and construction of a gravel pit for the Meyer plant ($208,65.00)
      Delivery of basic electrical infrastructure to the Meyer building ($206,399.82)
      Connect power to heating units in both Flowtite and Meyer buildings ($17,020.92)
      Amitech also contends that it should be reimbursed for the following corrective work and/or work necessary to meet requisite standards:
      Additional work required to bring the buildings up to code ($30,700.00)
      Redesigning infrastructure items that failed to operate properly or not sufficient to meet the buildings' demands ($81,184.00)
      Alterations to Meyer Building foundations because the existing foundation could not handle process equipment load ($47,-250.00)
      Corrective electrical work due in part to sub-grade wiring ($42,183.00)
      Amitech also seeks reimbursement of $166,-05057 for the time and material billings, including overtime, from the contractors used for the referenced work.

      . Despite denying the referenced claims, we note that the trial court found that other items were recoverable by Amitech. These awards were not appealed by Nottingham.

      . We note that parol evidence as to what the parties to a contract may have said is not admissible for purpose of proving an antecedent or contemporaneous agreement contrary to that which was reduced to writing. See LSA-C.C. art. 1848 and Southern Fleet Leasing Corp. v. Brown, 257 So.2d 819, 821-22 (La.App. 1 Cir.1972). Amitech offered no contemporaneous objection to the admission of the parol evidence. Therefore, the parol evidence was properly admitted into the record. See Wade v. Joffrion, 387 So.2d 1265, 1266 (La.App. 1 Cir.1980), Moreover, Amitech has not raised this issue on appeal.

      . Amitech rejected this change order.

      . Notwithstanding Amitech’s argument, we note that no contemporaneous objection was made with regard to the parol evidence being admitted. See FN 14.

      . A contract may be modified by subsequent mutual consent.

      . It is unclear whether the 22,000 cubic yards consisted of loose or compacted fill. Because the unit price charged by Nottingham was based on loose fill, we have utilized that cubic yard measure to determine the credit owed.

      . On appeal, no party has alleged that the $440,000.00 early completion sum referenced in the March 13, 2003 letter has not been paid.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Respondent v. Joe A. DAVIS, Applicant.
    No. 45,662-KH.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 3, 2010.
    Rehearing Denied Dec. 9, 2010.

      Joe A. Davis, Pro Se.
    George W. Britton, III, for Applicant.
    James E. Paxton, District Attorney, Laurie Reis Brister, Assistant District Attorney, Lake Providence, LA, for Respondent.
    Before CARAWAY, DREW and LOLLEY, JJ.
   LOLLEY, J.

|2This writ of supervisory review arises from the Sixth Judicial District Court, East Carroll Parish, Louisiana. Joe A. Davis was convicted of misdemeanor simple battery, a violation of La. R.S. 14:35, and sentenced to 60 days in the parish jail. The defendant now seeks review of his conviction and sentence, which, for the following reasons, we affirm.

Facts

According to the testimony elicited during the trial, the defendant, Joe A. Davis, was a school bus driver working for the East Carroll Parish School Board transporting students to and from Monticello High School. Davis worked as a bus driver for many years and quite frequently would stay around the school after dropping students off in the mornings.

The victim, J.S., alleged that on October 23, 2008, she was standing behind Davis in the cafeteria line waiting for her meal. Davis was also waiting and talking to one of the cafeteria workers. Davis placed his hand on J.S’s thigh where he held it until she pushed his hand away. That same day J.S. was checked out of school early for a doctor’s appointment. She went to her aunt’s vehicle to wait while other siblings and relatives were also checked out of school. As J.S. waited at the vehicle, she saw Davis and he began to make gestures towards her indicating the length and circumference of his penis while saying, “This is how big my d-is and how round it is.” |3 According to J.S., the defendant also asked her if she could handle it. J.S. asked the defendant why he did not “go do that to his wife.” J.S. claimed that Davis replied he wanted her. Immediately following this exchange, the victim’s aunt arrived at the vehicle and they left.

It was several days later, October 27, 2008, when J.S. reported to Florice Coleman, a teacher at the school, of Davis’ actions towards her. Mrs. Coleman in turn took J.S. to the principal to report the incident. At that point, the principal began an investigation which was followed up by investigations conducted by the school superintendent’s office as well as the East Carroll Parish Sheriffs Office. Davis was arrested and charged with simple battery and contributing to the delinquency of a minor.

Following a bench trial, Davis was found guilty of simple battery and not guilty of contributing to the delinquency of a minor. He was sentenced to serve 60 days in jail with credit for time served. We are now considering his writ of supervisory review.

Discussion

Davis’ counsel and Davis both bring assignments of error related to the sufficiency of the evidence, arguing that the evidence was insufficient to convict. Further, Davis’ counsel also argues that the trial court failed to apply the proper legal standard of presumption of innocence and burden of proof when convicting Davis of simple battery. We disagree.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 1995-1377 (La.02/28/96), 668 So.2d 1132; State v. Murray, 36, 137 (La.App.2d Cir.08/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.09/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to the fact-finder’s decision to accept or reject the testimony of a witness in whole or in part. State v. Bowie, 43,374 (La.App.2d Cir.09/24/08), 997 So.2d 36, writ denied, 2008-2639 (La.05/22/09), 9 So.3d 141.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Ashley, 44,861 (La. App.2d Cir.10/28/09), 26 So.3d 193. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App.2d Cir.05/09/07), 956 So.2d 769.

An appellate court reviewing the sufficiency of the evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus |sviewed, the- facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Jacobs, 504 So.2d 817 (La.1987); State v. Adkins, 39,724 (La.App.2d Cir.06/29/05), 907 So.2d 232, writ denied, 2006-2514 (La.05/04/07), 956 So.2d 607.

Louisiana R.S. 14:35 provides that a simple battery is' a battery committed without the consent of the victim. Battery is defined as the intentional use of force or violence upon the person of another or the intentional administration. of a poison or other noxious liquid or substance to another. La. R.S. 14:33. Whoever commits a simple battery shall be fined not more than $1,000.00 or imprisoned for not more than six months, or both. La. R.S. 14:35.

In its oral reasons for judgment following the trial; the trial court noted that this case was about credibility. Whereas there were several witnesses called at the trial, there were no witnesses to the incidents other than J.S. and Davis, both of whom testified at his trial.

J.S. testified that she was an eighth grade student at Monticello High School in October 2008 when she began to feel “weird” around Davis as she noticed him staring and winking at her. As evidenced by testimony at trial, it was not unusual for Davis to have brief conversations with the students at the school, but J.S. noticed that he acted differently around her. J.S. testified she initially did not pay much attention to the defendant’s actions, but “it just made me feel uncomfortable really.” According to J.S., Davis’s attention to her began about a week before the October 23rd incidents.

|fiOn October 23, J.S. recalled being in the school lunchroom waiting in line to get her lunch. Davis was standing in front of her talking to a cafeteria worker. According to J.S., Davis reached down and grabbed her leg on her thigh. J.S. pushed his hand away from her leg then walked past him to get her lunch. According to J.S., Davis did not say anything to her, but continued to talk with the cafeteria worker. J.S. did not recall who the cafeteria worker was, and she did not believe that anyone saw what Davis had done because they were standing in front of the railing used to hold trays. J.S. testified that Davis reached under the railing to touch her thigh.

J.S. further testified that later that day another student, Dexter Davis, approached her during her P.E. hour and asked for her address while holding paper and a pen. He told J.S. he wanted to send her a senior picture. J.S. declined to give him her address, and then she saw him put down the paper and walk over to Davis to return the pen. J.S. testified she could clearly see Davis.

Shortly after this, J.S. was told she was being checked out for a doctor’s appointment. Her aunt, who had come to check her out, told her to go to the vehicle and wait. While walking to the truck, J.S. saw Davis, and he asked her why she had not given him her address so he could visit her at night. J.S. replied that she did not want Davis to visit. J.S. continued to walk to the truck as the defendant walked away. J.S. recounted that Davis then turned around standing about 100 feet from J.S. and made gestures showing J.S. the length and circumference of his penis. According to J.S., Davis asked her if she could handle it (referring to his penis). J.S. stated she turned away and asked the defendant “why don’t [you] go do that to [your] wife.” She testified that Davis replied, “No, I want yours.” J.S.’s aunt |7walked up to the truck shortly thereafter, but she did not hear Davis’s remarks.

J.S. testified that she specifically recalled the date of the incidents, because she remembered being checked out of school to go to the doctor. She did not attend school the next day and had to return to the doctor because of a sprained ankle. When J.S. went back to school on October 27, she was helping a teacher, Mrs. Coleman, in her classroom. Because she trusted Mrs. Coleman, J.S. confided in her about the events that occurred the week before. Mrs. Coleman took J.S. to the office where she told Flora Watson, the school principal, what occurred. Mrs. Watson had J.S. write a statement about the incidents.

J.S. testified that she waited before reporting the incidents because she was scared, anxious, and nervous. She did not believe anyone would believe a child over an adult. J.S. also told her story to Elizabeth Brice, an assistant principal at the school, because Mrs. Brice saw her in Mrs. Coleman’s room and wanted to know why she was there. J.S. initially told Mrs. Brice she was there for personal reasons, but Mrs. Brice continued to question her so she eventually told her what happened. Mrs. Brice responded to J.S. that she believed Davis could do that.

In his own defense, Davis also testified. He noted that he had been employed as a bus driver for the East Carroll Parish School Board since 1995. He stated he had been a “fixture” around Monticello High School for about 10 years, and he claimed to have never been told he could not remain on campus after completing his bus routes. Davis denied knowing J.S. other | Rthan having seen her in court, and he testified as only having a vague idea who J.S. was prior to the first court hearing.

Davis testified that he did not have any independent recollection of the events and recited his normal routine which included doing his bus routes, then going to eat lunch and later playing basketball in the gym or sleeping in the gym, working on a computer in the agricultural shop or working on his bus. Davis denied touching J.S. while she was in the lunch line and even denied entering the . cafeteria line. The defendant also denied having any conversation with J.S. in the parking area, and he believed cameras would have recorded that activity if it had in fact occurred. Davis denied asking his nephew to get a telephone number or address from anyone. Davis claimed that all the witnesses were lying during their testimony and he had not done any of the things alleged by the witnesses.

Officer Brandon Wiltcher of the East Carroll Sheriffs Office also testified at the trial. Officer Wiltcher investigated the complaint that was called in on October 23, 2008, by Shawn Mercer, J.S.’s uncle. After speaking to Mercer, Off. Wiltcher had a deputy go to Mercer to take an official complaint.. According to Off. Wiltcher, J.S. and Mercer reported that J.S. was approached by Davis and that he made some sexual gestures toward the child and touched her inappropriately. J.S. also explained how she noticed Davis staring at her at school earlier during the week, which made her uncomfortable, J.S. also related to Off. Wiltcher that Davis asked Veronica Ellerby, the victim’s cousin and best friend, for J.S.’s address and telephone number. She also described to the officer how Dexter Davis had asked her for her home address.

|flThe next day, October 24, 2008, Off. Wiltcher took official statements from J.S. and the incident was reported to the school principal and several teachers. Officer Wiltcher testified that he found little discrepancy in the statements gathered by the school board and the statements he took from the same individuals. According to Off. Wiltcher, J.S. was also interviewed at the Children’s Advocacy Center in Monroe by a child psychologist and again provided a statement that was consistent with the others she had given him and later, school officials. Based on the statements made by J.S., Off. Wiltcher obtained a warrant for Davis’s arrest, who was subsequently arrested and charged with contributing to the delinquency of a juvenile and simple battery.

Alice Nicholls, a supervisor with child welfare attendance for the school district, also testified. Nicholls explained that she conducted an investigation into the allegations on behalf of the superintendent. During her investigation, Nicholls interviewed Dexter Davis, Veronica Ellerby, and J.S.

Dexter Davis indicated to Nicholls that he did not have any information about the incidents and did not want to answer questions. Dexter Davis provided Nicholls with a written statement of the same facts claiming that he did not “have any idea if Joe was supposed to be getting J.S.’s number or address.”

Veronica Ellerby informed Nicholls that Davis had asked for J.S.’s telephone number on one or two occasions sometime in October; however, Veronica did not give him that information. Veronica indicated she later learned from the victim that the defendant wanted the victim’s address and telephone number because he wanted to visit J.S. at home.

ImWhen Nicholls interviewed the victim, J.S. reported that she was in P.E. class when Dexter came over to her with a pen and paper asking for her address, but she refused to give it to him. J.S. saw Dexter walk' over to an area where she saw the top of Davis’s head. Nicholls testified J.S. reported that she did not actually see Dexter give the pen and paper to Davis, and then Davis left the gym at that time.

Veronica Ellerby testified at the trial as well. Veronica was also a student at Monticello High School in 2008, and she had known the defendant for some time. In fact, Veronica was a friend of J.S. and they later found out they were related. According to Veronica, sometime in October 2008, Davis asked Veronica for J.S.’s telephone number on at least three occasions. Although Veronica testified she was not completely certain of the dates, she knew it could have happened around October 9 and twice toward the end of the month. Veronica also testified that she did not learn about Davis touching J.S. until after J.S. was being home-schooled. Before that time, J.S. had only told her about Davis talking about his anatomy. Flora Watson, the principal of Monticello High School, testified that 2008 was her first year as principal of the school. She observed Davis around the campus after his bus route and informed him that it was improper for him to just loiter at the school. Mrs. Watson stated at the trial that she knew Davis and his family and had indicated to him that it might be possible to find some kind of employment at the school which would give him a legitimate purpose for being there after ending his bus route; however, neither Mrs. Watson nor Davis pursued the idea of finding employment for him. Notably, Davis testified that he had never been told that he was not allowed to stay on the campus after his bus route.

|nMrs. Watson testified she was informed about J.S.’s complaint against Davis on October 27, 2008, when Mrs. Coleman brought J.S. to her office. At that time; J.S. explained to her that Davis had been sexually harassing her.

Mrs. Watson further testified regarding the school’s surveillance system, noting that the system was actually a monitoring system that would allow for review of internal tapes for approximately 30 days only. Mrs. Watson identified various photographs of the video monitoring system camera angles from around the school. Mrs. Watson noted that she did review the recordings of October 23, 2008, shortly after receiving J.S.’s complaint, and the only thing she was able to see was Dexter Davis moving around in the gym going toward the area where the girls were usually seated. There was no other evidence to directly confirm or refute J.S.’s complaint. Mrs. Watson testified that she did not inform anyone about the recording because she was not asked until after it was too late to retrieve the information from the system.

Mrs. Watson also identified a copy of J.S.’s report card from the 2008 school year which reflected that J.S. was present in school on October 23 and absent on October 24, 2008. J.S. was again present on October 27, 2008, but did not attend school anymore afterwards, and on November 12, 2008, a request for J.S.’s records was received and she was dropped from the school rolls. With regard to J.S. being checked out from school on October 23, 2008, Mrs. Watson identified a document generally used by parents or guardians to sign students out of school. On the October 23, 2008 date, it did not appear that J.S. was checked out of school; however, Mrs. Watson 112testified that it was not unusual for a student leaving late in the afternoon to leave the campus with a parent or guardian without the sheet being signed.

Elizabeth Brice, an administrative assistant (vice-principal) at Monticello High School, testified she recalled talking to J.S. about the incident that occurred on October 23, 2008. Mrs. Brice stated that she was walking in the elementary hall of the school when she saw J.S. sitting in Mrs. Coleman’s classroom at a computer. Mrs. Brice called J.S. out of the classroom to ask why she was there. J.S. started crying and asked Mrs. Brice if she could go to her office and talk. Mrs. Brice, observing no one else in the hallway, told J.S. they could talk there. At that time, J.S. told Mrs. Brice that the defendant had been sexually harassing her and when she was in the “lunch room” going to put her plate away, the defendant caught her leg. J.S. told Davis to take his hand off her leg. Mrs. Brice asked J.S. if she reported the information to the office and J.S. replied that she had. Mrs. Brice wrote a statement, two days later, at the direction of Mrs. Watson. Mrs. Brice noted that she reported in her statement exactly what J.S. had told her. Mrs. Brice indicated she had not observed the defendant and J.S. together at any time; however, she did note that the defendant usually sat at the end of the “teacher’s” table near where the students put away their trays.

Florice Coleman, a lab proctor at Monticello High School, testified that J.S. came to her room on October 27, 2008, and she appeared upset. When Mrs. Coleman asked her what was wrong, J.S. replied that someone could possibly lose their job when her father, who was working offshore, returned in two weeks. Mrs. Coleman attempted to find out what was wrong and asked J.S. to confide in her. J.S. stated that she did not want to get into trouble and she had not told her grandmother about the problem. As Mrs. |13Coleman continued to probe, J.S. told her that Davis had been harassing her for about two weeks. J.S. went on to say that when she was leaving school the week before, the defendant told her he wanted to have sex with her and that he described his body parts in detail to J.S. At that point, Mrs. Coleman told J.S. that she had to report the information to Mrs. Watson and it could not wait two weeks. Mrs. Coleman took J.S. to the office and had her repeat everything to Mrs. Watson.

Following closing arguments, the trial court rendered its decision. Finding that the state had failed to prove its case with regard to the charge against Davis for contributing to the delinquency of a minor, Davis was found not guilty. However, as to the charge against Davis for simple battery, the trial court noted that it found the testimony of the victim to be “honest” and that her testimony alone was sufficient to support the conviction. We believe that the record in this case supports the trial judge’s ruling finding Davis guilty of simple battery. Viewed in the light most favorable to the state, the evidence established that Davis, without the consent of J.S., intentionally touched J.S.’s leg during an encounter in the school’s cafeteria. J.S., through her own testimony, provided this account and this is sufficient to establish the-elements of (1) an intentional, use of force, (2) .against another person, and (3) without consent.

. The arguments presented by Davis are essentially that there were numerous inconsistencies and/or discrepancies between the testimony of the witnesses and accounts provided during the investigations by the school, police and school board. This argument is without merit. Any discrepancies in the testimony of the witnesses goes to the weight of the evidence and is a factor considered by the trier of fact in determining the credibility of the 114witnesses. See State v. Ashley, supra. The trier of fact in this case made it clear that he believed the testimony of the Victim and Veronica Ellerby as opposed to the testimony of Davis. Despite Davis’s arguments to the contrary, the discrepancies found in the testimony of the witnesses were not enough to undermine the veracity of their testimony. As noted by the trial judge, it is not uncommon that witnesses may vary slightly in their accounts of events, and, in fact, that makes their accounts more believable. It is not our function to assess the credibility of witnesses or reweigh evidence. The testimony of J.S. alone was sufficient to establish that Davis intentionally touched her thigh without her consent, thus committing a simple battery.

Further, Davis made much of the surveillance cameras utilized at the school, arguing that they would have surely shown something had he inappropriately touched J.S. as she claimed. Notably, however, it is inconclusive whether the cameras in the cafeteria or elsewhere on the campus would have picked up the precise site(s) where J.S. and Davis had contact on the school grounds, particularly the cafeteria. Nor does it seem, absent the cameras, that anyone would have actually seen Davis put his hand on her thigh under the tray railing as J.S. recounted. It is entirely plausible and reasonable to believe that could have occurred without any third person noticing.

Therefore, the assignments of error relating to the sufficiency of the evidence and the burden of proof are without merit.

Excessive Sentence

Davis also argues that his sentence of 60 days is excessive considering the fact that he has no previous record and he has a stable family and work | ^history. He also suggests that his sentence should have been probated. Davis notes that there is no undue risk that he might commit another crime while on probation, that his correctional treatment can best be provided without commitment to an institution, and finally that a lesser sentence would not deprecate the seriousness of the offense.

The test imposed by the reviewing court in determining the exces-siveness of a sentence is two-pronged. First, the record must show that the trial court' took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.02/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.03/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.08/13/08), 989 So.2d 267. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.08/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.05/15/09),. 8 So.3d 581. There is no requirement that specific matters be given any particular weight at 11fisentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.09/28/07), 964 So.2d 351.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.01/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir.01/24/07), 948 So.2d 379.

After providing the reasons for conviction, the trial judge merely stated that Davis was guilty of simple battery and sentenced him to serve 60 days in jail. Davis was given a delayed reporting date of September 1, 2009. While the trial judge did not specifically note the sentencing factors of La. C. Cr. P. art. 894.1, it was stated through the trial testimony that Davis had no prior record and was a husband, father, and grandfather. At the trial, Davis testified regarding his work history and personal history.

The sentencing provision for a conviction of simple battery provides that “Whoever commits a simple battery shall be fined not more than one thousand dollars or imprisoned for not- more than six months or both.” La. R.S. 14:35.

Considering the fact that the trial judge had wide discretion in determining Davis’s sentence and the fact that this sentence is in the low range for the offense of conviction, the trial court did not abuse its discretion in fashioning this sentence for this defendant. Louisiana C. Cr. P. art. 894 l17provides that the court may suspend the imposition or execution of the whole or any part of the sentence imposed, provided suspension is not prohibited by law, and place the defendant on probation. The statute does not require that a defendant receive a probated sentence.

While a probated sentence may have been more desirable to this defendant, in his opinion, it cannot be said that this sentence is excessive considering this defendant, the age of the young victim, the crime and its effect on this victim, and the harm done to society. Accordingly, this assignment of error is without merit.

Conclusion

For the foregoing reasons, the conviction and sentence of Joe A. Davis are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, GASKINS, CARAWAY, DREW and LOLLEY, JJ.

Rehearing denied.