text:
    STATE of Louisiana v. Dean J. WILLIAMSON.
    No. 10-KA-466.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      James D. Buddy Caldwell, Attorney General, Terri R. Lacy, Matthew B. Derbes, Frank Brindisi, Assistant Attorneys General, Baton Rouge, LA, for Plaintiff/Appellee.
    Mark A. Marino, Attorney at Law, Des-trehan, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKS HOMBERG WICKER and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

|2In this appeal, Dean Williamson challenges his conviction of unauthorized use of a movable and the four-year sentence that was imposed pursuant to his conviction. For the reasons that follow, we find no merit to the arguments raised by defendant herein, and accordingly, we affirm his conviction and sentence.

On August 24, 2007, the Attorney General for the State of Louisiana filed a bill of information in St. James Parish, charging defendant, Dean Williamson, with unauthorized use of a movable having a value in excess of $1,000.00, in violation of LSA-R.S. 14:68. At the September 26, 2007 arraignment, defendant pled not guilty. On April 23 and 24, 2009, the matter proceeded to trial before a six-person jury, which found defendant guilty as charged.

Following his conviction, defendant filed a motion for post verdict judgment of acquittal, which was denied by the trial court on September 21, 2009. Thereafter, on September 23, 2009, the trial court sentenced defendant to four years imprisonment at hard labor. Defendant now appeals.

J¿FACTS

Daniel Louque, Sr. has two companies in St. James Parish: Quality Machine Works, which was his original company started in 1985, and Quality Machine Manufacturing, which was a sister company started in 1999. Mr. Louque’s son, Daniel Louque, Jr., heads the administration for both companies and is owner and president of Quality Machine Manufacturing.

As Mr. Louque, Sr. explained at trial, he formed his machine part repair and manufacture business in 1985 after working as a machinist in local plants for about twenty years. Initially, he set up one business, Quality Machine Works, which was a one-man operation. All of Mr. Louque, Sr.’s work required, and still requires, drawings of the machine parts being worked on or manufactured. When he first opened Quality Machine Works, Mr. Louque, Sr. had no drawings available. In those early days when a customer called him, he took a pad to the plant and painstakingly prepared the drawings himself. Mr. Louque, Sr. explained that accurate drawings were essential to him performing quality work and that only by turning out a quality product could he keep and grow his business. Mr. Louque, Sr. testified that he carefully saved every drawing he made so that he would not have to repeat the time consuming drawing process each time he made or repaired a part. This was important so that he could more quickly fill his customers’ orders and therefore grow his business. As Mr. Louque, Sr. explained, twelve to fifteen companies formed his customer base, and he had 200 to 500 drawings for each of those customers. Before the business became computerized, Mr. Louque, Sr. placed every drawing in a separate folder for each customer and would put each customer’s name on the top of the folder. He then placed the folders in a binder and stored them in file cabinets. These drawings were company property.

|4In the late 1980’s, Mr. Louque, Sr.’s son, Daniel, joined him in the business. Eventually, in the early 1990’s, Daniel undertook the complex task of computerizing and technologically modernizing the company. To accomplish that end, Daniel hired some consultants to help him select the best software and other server type systems that would allow him to run his business efficiently on a daily basis and, at the same time, protect the integrity of the company files.

A key component of the company’s modernization was the installation of a drawing software system. Daniel installed Auto-CAD. Daniel explained that AutoCAD is a piece of software that allows an engineer or draftsman to put the physical paper sketches of the parts into electronic versions that could be maintained and stored on the computer. This software actually converted the drawings into computer files, which were then printed for the actual repair or manufacture work. Daniel further explained that although the drawings could be printed, the paper was just a duplicate picture; the actual file was needed to do any modifications. Instead of file cabinets, these completed and validated electronic drawings were stored within the computer system. Daniel invested in a software program called Document Loea-ter, which is basically a document management program. In addition to storing the computer files, this software program maintained the integrity of the drawings and allowed the company to create an avenue for customers to view their repair reports.

In order to protect these electronic drawings, it was necessary to employ security measures. Daniel explained that a user name and password were required to access the system and further the company kept track of who accessed the files. Daniel regularly monitored the computer activity and would generate reports that showed the activity of the repositories. In normal circumstances, Daniel would run lfithis report and view it on the computer screen. He explained that such a report was generally about two pages and would cover a six month span of computer activity-

According to Daniel, the job of building the computerized drawings and database was slow and painstaking. It took years to accumulate all of the validated drawings contained in the AutoCAD data base. As Daniel explained, while none of the Auto-CAD files were copyrighted, trademarked, or registered as confidential and protected, they were clearly company property and contained the company logo.

Dean Williamson was Daniel’s lifelong friend. He was best man at Daniel’s wedding. After Daniel joined the business, he convinced his father to hire Dean Williamson. Thinking the two friends would play around on the job, Mr. Louque, Sr. was reticent. However, he eventually acquiesced. Dean Williamson came into the company as an apprentice, first learning machinist and millwright skills. Dean Williamson stayed with the company for thirteen years, over time ascending into a manager position. As both Mr. Louque, Sr. and Daniel testified, even as a manager Dean Williamson had nothing to do with the drawings and was at no time an Auto-CAD operator. In September of 2003, Dean Williamson resigned from the company, telling Daniel that he wanted to pursue other ventures and was opening up a business.

After Dean Williamson left the company, Daniel noticed that Quality Machine Works and Quality Machine Manufacturing were losing substantial business from clients such as Cargill and Bayou Steel. While both Cargill and Bayou Steel had been good customers, after Dean Williamson left, Quality Machine’s Cargill and Bayou Steel business dropped basically to zero. Fearing that there had been a breach of integrity in the computer system, Daniel generated a report showing computer activity. Instead of the usual two-page report, it was a | fi200-page report showing an excessive amount of files had been opened over a short period of time. Daniel explained that the report showed the exact drawings that were opened and accessed. This type of report, which Daniel routinely generated, gave a log of the actual transaction each time a file was opened. It documented each line on each file that was opened, and it showed the date the file was accessed, the file name, and the employee who accessed the files. Daniel further explained that a person cannot mass open or copy all of the drawings at one time. This report showed that Courtney Heft, an IT employee who left the company six days after Dean Williamson’s resignation, had accessed and opened in excess of 15,000 files from September 5, 2003, until September 15, 2003. Daniel testified that as an IT employee, Courtney Heft had access to the AutoCAD files, but it was not her daily function to access these files. After generating this report of computer activity, Daniel suspected that Dean Williamson had stolen the drawings and used them to steal the companies’ customers.

Thereafter, Daniel contacted the St. James Sheriffs Office to report what he thought was a crime. The sheriffs office referred him to the State Attorney General. Daniel provided the investigators at the Attorney General’s Office with a copy of the report showing the files that were accessed, the date and time they were accessed, and the individual who accessed them. In addition, Daniel provided the investigators with a report showing the accumulated cost analysis on each of the drawings.

After Daniel made his report to the Louisiana Attorney General, Ricky Murphy, an investigator in that office, undertook the case investigation. When Mr. |7Murphy interviewed Dean Williamson, defendant told him that he had been approached by a business client of Mr. Lou-que, Sr., who said that the Louques’ business was not adequately servicing his company; however, he refused to name the company. Dean Williamson claimed to have “picked up” the client because it was unsatisfied. Dean Williamson also told Mr. Murphy that he had about 60 Au-toCAD drawings that he had engineered for clientele in doing service work for the companies; however, he refused to produce these drawings when requested. When talking to Mr. Murphy, Dean Williamson denied taking any AutoCAD drawings or files from Quality Machine Works or Quality Machine Manufacturers, although he admitted that when cleaning out his desk he possibly could have mistakenly picked up one or two. Mr. Murphy agreed that during the investigation he was not able to verify that Dean Williamson ever used a Quality drawing “to replicate, prepare or give anything to a party.”

Attorney General investigators also executed search warrants on both defendant’s home and business. Three computers were seized from defendant’s business and another was seized from his residence. From these computers, Geoff Miehelli, a forensic examiner in the Attorney General’s Office, extracted information about which he testified at trial. In connection with his examination of the computers, he generated a link file report to look for evidence of AutoCAD drawings in the computers and anything residing in the computers to show that the drawings had been on the computers. Mr. Miehelli explained that a link file report is “nothing more than a pointer to a file somewhere else.” When a person clicks on the link file, it directs the computer to a different location on the computer, such as CD ROMS, to open up the file. His examination in this case revealed many link files that pointed to AutoCAD drawings that were found on the computers. He explained that the link files pointed to files that originated from a CD ROM and he |8was able to see which files were accessed from the same CD ROM based on the serial numbers. Three AutoCAD files were found during the examination of the computer seized from defendant’s home address. These AutoCAD files had been accessed via CD ROM, which was written or burned on September 8, 200S.

Courtney Heft, the former Quality Machine Works employee who left the company six days after Dean Williamson left, confirmed at trial the she copied the Auto-CAD files for defendant. According to Ms. Heft, in September of 2003, Dean Williamson, whom she considered a supervisor, asked her to copy some files of drawings from the computer to disks. She recalled that Dean Williamson verbally gave her the names of the customers whose files he wanted copied. She believed that it was possibly over 1,000 files, and it took her about ten days to copy all of them. When each disk was completed, she wrote the client’s name on the disk, put it in a case, and gave it to Dean Williamson either personally or left it on his desk. She guessed that there were maybe 20 to 30 disks and said Dean Williamson gave her $100.00 “for getting it done.” Over a year after she left Quality, Ms. Heft went to work for Dean Williamson in his business. While working there, she saw between 20 and 30 disks in his office, and she knew they were the same disks she had copied for Dean Williamson because she recognized her handwriting on them. She also recalled defendant asking her to locate a drawing for him and she recognized the drawing when she gave it to him. Ms. Heft acknowledged that before Dean Williamson’s request at Quality to copy the files, she had never downloaded from AutoCAD to a disk, but had moved the files from one server location to another.

Defense counsel called several witnesses to testify at trial on Dean Williamson’s behalf. Joseph Bienvenu, defendant’s friend and co-worker at | flQuality Machine Works, explained that as a machinist, he was sometimes required to make drawings, and further he had access to the drawings at Quality Machine Works. Mr. Bienvenu recalled that he never signed an employee’s manual with Quality and did not sign a statement that he would not copy the drawings for his personal use. Although Mr. Bienvenu claimed that he could have copied the drawings if he wanted to, he admitted that he never took the drawings or used them for his personal use because they belonged to the company. With regard to the drawings, he claimed that some of the drawings were other people’s drawings too, and other companies had copies. He also said that at times he received drawings from companies and gave them to Quality to put on file for Quality’s use.

Brandon Poche, another friend of Dean Williamson, testified that as a machinist at Quality, he sometimes had to make his own drawing and maybe did three or four original drawings a year. He estimated that he completed 20 or 30 drawings over the six years he was there. He explained that the drawings were kept in binders in the QC room as well as in AutoCAD files, and anyone who needed the drawings had access to the QC room. However, he recognized that the drawings and files belonged to Quality. Mr. Poche did not recall signing an employee manual at Quality or being told that he could not copy or use the drawings for his own personal use. Yet, he admitted that he never used the drawings for his own personal use. Mr. Poche denied coming across a Quality drawing when working for Dean Williamson. Further, he claimed that he had to make many drawings when he worked for Williamson’s company and also recalled that Dean Williamson had received drawings from other companies.

David Champagne, who is employed by Cargill Grain, testified that he knew Dean Williamson from working with him at Quality Machine Works and still had a working relationship with him after he left Quality and opened his own business. 1 inMr. Champagne claimed that the only job Dean Williamson did for Cargill after leaving Quality was make small pieces for machine parts. With regard to this task, Mr. Champagne explained that either he made the drawings, or they were so simple that he gave Dean Williamson the measurements over the phone or emailed him a hand drawing. When working with Dean Williamson, Mr. Champagne never saw a file with Quality’s name on it. Furthermore, Mr. Champagne continued to give Quality work at the same time he was working with Dean Williamson. Quality did the more complicated work on the larger shafts while Dean Williamson did the simpler jobs. With regard to specifications on parts, Mr. Champagne explained that he could get design specifications on parts from manufacturers if needed and that some specifications were readily available on the open market. Mr. Champagne acknowledged the importance of the drawings in this type of business and admitted that “you don’t give your competitors drawings.” He opined that “Danny” had probably acquired drawings throughout the years, and that some were probably from when he was a millwright at Cargill. Further, Mr. Champagne had requested some drawings from Quality because he believed if Cargill paid for the part to be rebuilt, then it was Cargill’s property, especially when a cost was added for making the drawing. However, Quality was reluctant to give him the drawings of the parts.

Glenn Madere of Shell Chemical Company also had dealings with Dean Williamson when he was employed with Quality. At trial, Mr. Madere recalled that Quality had done about 50 drawings for Dow Chemical, who had an on-site plant at Shell, and he believed the drawings belonged to Dow Chemical because they paid for them. Mr. Madere knew that Quality kept a copy of the drawings, which were not copyrighted or trademarked in any way. As most other witnesses, Mr. Madere recognized the importance of the drawings and admitted that, although |nhe had access to the Dow Chemical drawings, he would not give them out without asking permission from Dow.

After hearing the testimony of the State and defense witnesses as set forth herein, the jury found Dean Williamson guilty of unauthorized use of a movable having a value in excess of $1,000.00.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, defendant contends that the trial court erred in denying his motion for post verdict judgment of acquittal because the State failed to prove two essential elements of the crime of unauthorized use of a movable. Defendant first contends that the State failed to prove that an actual taking occurred and argues second that data on a computer is not a “movable.”

The question of sufficiency of the evidence is properly raised by a motion for post verdict judgment of acquittal. See LSA-C.Cr.P. art. 821; State v. Hampton, 98-0381, p. 12 (La.4/23/99), 750 So.2d 867, 880 ceri. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999); State v. Bazley, 09-358 (La.App. 5 Cir. 1/11/11), 60 So.3d 7, writ denied, 2011-0282 (La.6/17/11), 63 So.3d 1039. A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the State, does not reasonably permit a finding of guilty. LSA-C.Cr.P. art. 821(B).

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), 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 beyond a reasonable doubt. See State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Bailey, 04-85, p. 4 (La.App. 5 Cir. 5/26/04), 875[12So.2d 949, 954-55, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

In the present case, defendant was convicted of unauthorized use of a movable in violation of LSA-R.S. 14:68, which provides the following:

Unauthorized use of a movable is the intentional taking or use of a movable which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the movable permanently. The fact that the movable so taken or used may be classified as an immovable, according to the law pertaining to civil matters, is immaterial.

A person commits the crime of unauthorized use of a movable when he either takes or uses another’s property without the owner’s consent or by means of fraudulent practices. Although the State is not required to prove that the defendant acted with intent to deprive the owner permanently of his property, LSA-R.S. 14:68 must reasonably be construed to require the existence of fraudulent intent. The State may produce direct or circumstantial evidence of fraudulent intent in unauthorized use cases. The determination of whether the requisite intent is present in a criminal case is for the trier of fact. Though intent is a question of fact, it may be inferred from the circumstances of the transaction. State v. Anderson, 07-752, p. 6 (La.App. 5 Cir. 2/6/08), 979 So.2d 566, 570.

On appeal, defendant first argues that the State failed to prove that there was an actual taking. Defendant asserts that LSA-R.S. 14:68 requires that the State prove that the defendant had an intent to at least temporarily deprive the victim of a movable. He argues that since there was no evidence that Quality was ever denied | ^access to the data that was taken off the computer, the State failed to prove the element of a “taking.”

In making this argument, defendant ignores the fact that LSA-R.S. 14:68 allows for either a taking or use of the property. Under the circumstances of this case, without regard to whether a taking occurred, we find that the evidence presented by the State at trial sufficiently proved that the computer files were intentionally used without consent and by fraudulent conduct. Defendant had the files copied just prior to his leaving the company to start his new business. Courtney Heft, the employee who copied the files for him on CD ROMS, later went to work with him and observed the CDs with her handwriting on them at his office. She also recalled defendant asking her to locate a drawing for him and she recognized the drawing when she gave it to him. Further, link file reports showed that some of the drawings that were for Quality were opened on defendant’s computers. Given these circumstances, we find that the State proved that defendant had the fraudulent intent to use these files to start up his own business and obtain clients for that business.

We now briefly turn to defendant’s argument that LSA-R.S. 14:68 requires proof that the owner was deprived of the movable, even if only temporarily. While LSA-R.S. 14:68 does not require proof that a defendant had the intent to deprive the other of the movable permanently, it is silent as to whether a temporary deprivation is an essential element of the offense. Regardless, we find that the State sufficiently proved that there was an intent to deprive the owners of the property in this case by using their files. Testimony presented at trial provided that Quality had files for each of their clients and that these files included numerous drawings. These drawings served as an opportunity to obtain business as well as a means to maintain business from their clientele. The evidence presented at trial 114showed that the owner of the computer files was not denied access to the files and their access was not interrupted in any way by the copying of the files onto the CD ROMS or by defendant taking the CD ROMS to his home and business. However, access to the files means nothing if Quality was deprived of the benefit of the files if defendant used the files to lure clients from Quality. Thus, Quality was deprived at least temporarily of the opportunity to use the files to obtain business, at the time when defendant was trying to use the same files for the same purpose.

Accordingly, we find that the State sufficiently proved that an intentional taking or use occurred “either without the owner’s consent, or by means of fraudulent conduct, practices, or representations, ...” As such, we find no error in the trial court’s denial of defendant’s motion for post verdict judgment of acquittal based on his argument that no “taking” occurred because the owner was never deprived of the property.

The second prong of defendant’s sufficiency argument is that the State failed to prove that defendant took a “movable.” He contends that the data copied from the computer was not a movable because it was not a tangible object but rather was intellectual property as contemplated by LSA-R.S. 14:73.1 et seq.

Movables are defined in the Civil Code in very general terms. The Civil Code defines movables in LSA-C.C. art. 475 by declaring that “[a]ll things, corporeal or incorporeal, that the law does not consider as immovable, are movables.” LSA-C.C. art. 461 distinguishes between corporeals and incorporeals:

Corporeals are things that have a body, whether animate or inanimate, and can be felt or touched.
Incorporeals are things that have no body, but are comprehended by the understanding, such as the rights of inheritance, servitudes, obligations, and right of intellectual property.

LSA-C.C. art. 471 further defines corporeal movables as “things, whether animate or inanimate, that normally move or can be moved from one place to | ^another.” LSA-C.C. art. 473 defines incorporeal movables as “[rjights, obligations, and actions that apply to a movable thing ... Movables of this kind are such as bonds, annuities, and interests or shares in entities possessing juridical personality.”

In South Central Bell Telephone Co. v. Barthelemy, 94-0499 (La.10/17/94), 643 So.2d 1240, the Louisiana Supreme Court was called upon to decide whether certain computer software constituted “tangible personal property” taxable under the sales and use tax imposed by the City of New Orleans. The Court recognized that the term “tangible personal property” was synonymous with corporeal movable property as used in the Louisiana Civil Code, and then determined that the computer software in the case was “tangible personal property” subject to municipal sales and use tax. In that case, the court recognized the following: “[t]he purchaser of computer software neither desires nor receives mere knowledge, but rather receives a certain arrangement of matter that will make his or her computer perform a desired function. This arrangement of matter, physically recorded on some tangible medium, constitutes a corporeal body.” Id. at 1244, 1246, 1250. The court also suggested that the software could be transferred to various media such as from tape to disk and did not take away from the fact that the software was ultimately recorded and stored in physical form upon a physical object. Id. at 1246-47. The court concluded that “once the ‘information’ or ‘knowledge’ is transformed into physical existence and recorded in physical form, it is corporeal property.” Id. at 1250.

In this case, Courtney Heft inserted CD ROMS into computer hardware and thereafter applied the appropriate programs to locate and open the desired files of the computer drawings of parts which were stored on the companies’ computer system. After accessing and opening the files that defendant told her he wanted, 11fiMs. Heft then copied the files that contained the desired drawings onto CD ROMS and gave the CD ROMS to defendant, who moved the CD ROMS from Mr. Louque, Sr.’s business to his own home and office. Using the corporeal body of a CD ROM allowed the AutoCAD files to be in movable form. Given these circumstances, we find that the AutoCAD files which were transferred from the software onto CD ROMS are movables within the meaning of LSA-R.S. 14:68. Thus, we find no error in the trial court’s denial of defendant’s motion for post verdict judgment of acquittal based on the argument that the AutoCAD files were not movables.

In light of the foregoing discussion and viewing the evidence in the light most favorable to the State, we conclude that any rational trier of fact could have found beyond a reasonable doubt that defendant committed the offense of unauthorized use of a movable. Accordingly, the arguments raised by defendant in this assigned error are without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assigned error, defendant argues that the jury instructions were incorrect as a matter of law as the instructions failed to fully advise the jury of the applicable law as it relates to the unauthorized use of a movable statute. Specifically, defendant argues “that the defendant ... used computer files ...” was a wrong statement of the law, and that the trial court should have included his requested charge that the offense was with “the intent to deprive the owner of the movable, even if only temporarily.”

LSA-C.Cr.P. art. 802 requires the trial court to charge the jury as to the law applicable to the case. Under LSA-C.Cr.P. art. 807, a requested special jury charge shall be given by the court if it does not require qualification, limitation or explanation, and if it is wholly correct and pertinent. Failure to give a requested 117jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. State v. Thomas, 10-220, p. 13 (La.App. 5 Cir. 11/9/10), 54 So.3d 678, 686, writs denied, 2010-2758 (La.4/25/11), 62 So.3d 89 and 2010-2752 (La.5/20/11), 63 So.3d 974.

In the present case, the trial court, in instructing the jury, followed the wording of the statute as well as the model jury charge. Further, the Louisiana Civil Law Treatise includes jury instructions for particular crimes and the instruction recommended for this offense is similar to the instruction given in this case. There is no mention of a “temporary” deprivation of property in this recommended instruction. See 17 La. Civ. L. Treatise, Criminal Jury Instructions § 10:68. The Treatise reflects that “[a]n intent to deprive the other permanently of the movable is not essential.” In fact, the comments explain the following:

As under the prior law, the prosecution need not prove that the offender acted with a specific intent to steal (deprive the other permanent of) the movable. The authors do not feel that the lack of intent to steal (to permanently deprive) is an element of the offense. See La. R.S. 14:5, comments. Thus, the authors recommend that the jury simply be told that the prosecution need not prove an intent to permanently deprive.

Based on the foregoing discussion, we find that the trial court did not err in refusing to include the proposed intent instruction regarding a temporary deprivation in the taking element as requested by defendant. Further, although the jury was not instructed as to defendant’s argument of a temporary deprivation, the jury at least heard this argument in closing arguments. It is noted that during closing arguments, defendant did argue that the State had to prove that defendant took the disk with the downloaded drawings even if the intent was to deprive use only momentarily. He explained that the crime would be theft if the intention was |1sto deprive permanently. Defendant also argued that the State brought the wrong charge against defendant.

Accordingly, based on the foregoing discussion, we find no merit to defendant’s argument regarding improper jury instructions.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assigned error, defendant contends that the trial court failed to set forth his reasons for sentencing him to approximately the maximum sentence as a first felony offender. He argues that the judge failed to comply with LSA-C.Cr.P. art. 894.1, and in particular, failed to consider his personal history, employment, and age. He requests that his sentence be vacated and the matter remanded for re-sentencing in accordance with LSA-C.Cr.P. art. 894.1.

In the present case, the record reflects that defendant did not make a timely oral or written motion to reconsider sentence pursuant to LSA-C.Cr.P. art. 881.1. The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a review of the sentence only for constitutional excessiveness. State v. Ragas, 07-8, p. 10 (La.App. 5 Cir. 5/15/07), 960 So.2d 266, 272, writ denied, 07-1440 (La.1/7/08), 978 So.2d 732, cert. denied, 555 U.S. 834, 129 S.Ct. 55, 172 L.Ed.2d 56 (2008).

However, even if defendant had properly preserved the issue regarding the trial court’s alleged non-compliance with LSA-C.Cr.P. art. 894.1, we find no merit to his argument. At the sentencing hearing on September 23, 2009, the trial court noted that defendant was a 40-year-old male who is officially classified as a first felony offender. The judge stated that he reviewed the PSI, that he considered the numerous letters asking for leniency, and that he considered the recommendation of the Department of Public Safety and Corrections that defendant be sentenced to five years. The trial court also recited defendant’s criminal history including some Impending charges and noted that some charges had been nolle prossed. The court also considered that defendant had admitted to experimenting with illegal drugs in the past. After thoroughly considering the PSI, the letters on defendant’s behalf, and the facts of the case, the trial court sentenced defendant to four years imprisonment at hard labor. Thus, the record clearly shows that the trial court gave reasons for the sentence and carefully considered the PSI report in determining the appropriate sentence for defendant.

As part of this assignment, defendant also claims that he was prevented from raising the issue of excessiveness of sentence on appeal due to the fact that the PSI was not attached to the reasons for sentence. This claim likewise has no merit. At the sentencing hearing, it was clear that defense counsel had access to the PSI and had gone over it with defendant. Moreover, we customarily consider the constitutional excessiveness of a sentence when a defendant fails to file a motion to reconsider sentence as is the case here.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even when it is within the applicable statutory range, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Warmack, 07-311, p. 7 (La.App. 5 Cir. 11/27/07), 973 So.2d 104, 109. In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court’s sense of justice. The trial judge is afforded wide discretion in determining sentences, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. Id., 07-311 at 7-8, 973 So.2d at 109.

laJn considering whether the sentencing court abused its discretion, the reviewing court should consider: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Pearson, 07-332, pp. 15-16 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Williams, 03-3514, p. 14 (La.12/13/04), 893 So.2d 7,16. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Warmack, 07-311 at 8, 973 So.2d at 109.

As previously noted, the trial court carefully considered the PSI report and gave sufficient reasons for the sentence imposed. In addition to those reasons given by the trial court, we further note that defendant did not receive the maximum sentence of five years and did not receive the potential fine of $5,000.00. In addition, the record reflects that defendant had worked for Quality for a while, had learned his skill from the job, and was trusted. Further, defendant was Daniel’s best friend and best man in his wedding. It appears that defendant involved another employee to facilitate the commission of this offense. This employee considered defendant a supervisor and did as she was told, and according to her testimony, she was not aware that he was about to leave the company. Finally, although the bill of information charged defendant with the taking or use of one to 48 files, it appears that some files consisted of numerous drawings. Defendant was not charged with a separate count for each file or drawing copied in this matter.

Although no case with similar facts was found, we find that, under the circumstances in this case, the sentence imposed on defendant was not excessive. 121 Accordingly, we find that the trial court did not abuse its discretion in sentencing defendant to imprisonment at hard labor for four years.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case.

For the reasons set forth herein, we affirm defendant’s conviction and sentence.

AFFIRMED

      . For purposes of this opinion, the father will be referred to as Mr. Louque, Sr. and the son will be referred to as Daniel.

      . At trial, Daniel showed the jury a copy of an AutoCAD drawing of a nose sprocket, with a drawing number of 800.036A. He explained that the drawing, which was for a Cargill product, had the company name, Quality Machine Works, to mark ownership as the creator. Each drawing was also assigned a particular number. The first part of the drawing number identified itself with a customer, and the remaining numbers identified the drawings for that company, in sequential order. Daniel explained, "for Cargill the 800 number was used every time and then we would count sequentially on the last three numbers.” Daniel testified that the total cost for the nose sprocket drawing was $1,140.00. The last time this particular file was accessed was by Courtney Heft. A stipulation was offered regarding 19 more of the AutoCAD drawings that corresponded with files shown on the report to have been accessed by Courtney Heft.

      . It is noted that one of the link files involved was the Quality nose sprocket drawing discussed in footnote 2.


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge. JOHNSON, J.,

license: Public Domain

text:
    Frank MASANZ, Jr. v. PREMIER NISSAN, L.L.C. and Carlos Zuniga.
    No. 11-CA-61.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      R. Todd Musgrave, Amanda H. Aucoin, Musgrave, McLachland, Penn, Attorneys at Law, New Orleans, LA, for Plaintiff/Ap-pellee-3rd Appellant.

      Edwin A. Stoutz, Jr., Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

| ¡.PROCEEDINGS

On September 28, 2008, plaintiff Frank Masanz, Jr. filed a petition in redhibition and for damages. He named as defendants, Premier Nissan, Inc. and its employee, Carlos Zuniga. By supplemental petition he added as defendant Adil Moun-is, who had been the service manager for Premier at the time of the sale. In his petition Masanz alleged that on April 21, 2008, he purchased a 2001 GMC Sierra SLE for $5,600.00 from Premier Nissan, through its salesman, Mr. Zuniga. Prior to selling him the Sierra, Zuniga showed him a Car Fax that was purported to be a report for the vehicle (however he later discovered that the serial numbers did not match). The next day, Mr. Masanz met with Mr. Mounis to complete the transfer of title and bill of sale. The meeting was not at Premier Nissan; instead it was at Casey & Casey, MPS Inc. DVA Auto Title Express. Approximately one month later, on May 29, 2008, as Mr. Masanz was driving the Sierra, it caught fire and was completely destroyed. Masanz alleges that the cause of the fire was a misplaced wire that apparently was present prior to the sale. In his petition, Masanz requested rescission of the sale and bad faith penalties and attorney fees, as well as damages for personal property, loss of use, inconvenience, mental anguish and distress, loss of enjoyment of life and other damages.

|sIn its answer, Premier Nissan alleged that it did not own the vehicle sold, and that Mr. Zuniga was acting outside of the course and scope of his employment by selling an un-owned vehicle on Premier’s premises. By way of third party demand, it named Mr. Mounis as the true seller of the vehicle and prayed that it be allowed indemnification and recovery from Mounis should it be cast in judgment.

Adil Mounis, despite being served by special process servers, failed to answer the petition and failed to appear at trial.

Trial was held on August 31, 2010. At trial it was established that the truck was not owned by Premier Nissan, but by Amanda McKay (wife of Mr. Mounis). On November 31, 2010, the trial court signed a judgment finding Premier Nissan, Carlos Zuniga and Adil Mounis in solido liable for the return of plaintiffs purchase price, plus expert witness fees of $1,736.00 and costs. Mr. Zuniga and Mr. Mounis were found to be liable in solido for general damages of $2,000.00 and damages for loss of personal possessions of $6,401.00. Finally, judgment was rendered in favor of Premier Nissan and against Mr. Mounis for $5,600.00, representing the purchase price of the vehicle, the expert fee of $1,736.00, judicial interest and costs.

Premier Nissan, Carlos Zuniga, and plaintiff Masanz each appealed the judgment of the trial court.

FACTS

The following was established at trial. On April 21, 2008, 20-year-old Frank Ma-sanz (plaintiff) went to Premier Nissan on Veterans Blvd. to purchase a used vehicle. This was his first vehicle purchase. He met Carlos Zuniga, who presented himself as a representative of Premier Nissan, and gave him a business card to that effect. At the time, Zuniga was wearing a t-shirt with Premier’s logo, and at no time did he indicate that he was working for someone other than Premier LNissan. They looked at several vehicles during a two-hour period, and ultimately Mr. Masanz decided to purchase a 2001 GMC Sierra. Mr. Masanz understood that the vehicle was a Premier Nissan vehicle, and he was not informed otherwise. He was also told that the vehicle was in good working condition. He was shown a Car Fax, which he believed was for the vehicle he was purchasing. Later he discovered that the VIN on the Car Fax did not match the VIN on the vehicle he purchased.

Mr. Masanz testified that he paid $5,600.00 in cash, and entered into a written bill of sale, while on the premises of Premier Nissan. At that time, he received the keys for the vehicle.

Carlos Zuniga testified that Mr. Masanz came onto the lot and looked at a few cars, but did not see any he was interested in. He then showed Masanz a truck, owned by Mr. Mounis, located in the back of the lot behind the building. At that time, Mr. Mounis was acting manager of Premier Nissan’s Used Car Department. Zuniga collected the money from Masanz and gave it to Mounis, who then wrote a receipt to give to Masanz. Zuniga testified that he told Mr. Masanz that the truck was owned by the Used Car Sales Manager, who was Mounis. Zuniga did not recognize the bill of sale given to Masanz.

As instructed, Mr. Masanz went to Casey & Casey Title the next day and completed the transfer of title on the vehicle. He was met by Mr. Adil Mounis, who was wearing a Premier Nissan t-shirt. There was also a woman there, which at trial he opined may have been Ms. McKay. Carlos Zuniga was not there. The title transfer paper states that the purchase price was $4,000.00, but he was told by both Mr. Zuniga and Mr. Mounis that the price was stated as lower that it actually was to benefit both him and Premier Nissan, relative to taxes.

RZuniga also stated that there was no benefit to Premier Nissan in the transaction in which he sold the truck to Masanz. Mounis paid him a commission of $300.00 for selling the truck. He also stated that he believed Amanda McKay was Mounis’ wife.

Amy Casey of the Casey & Casey, MPS Inc. DVA Auto Title Express testified that according to the records of the State of Louisiana, Amanda McKay sold the vehicle in April of 2008 to Mr. Masanz. The stated sales price was $4,000.00. She stated that there was a benefit to the purchaser, but not to the seller, in stating a lower price than the actual price. She further testified that the records reflected that Premier Nissan was a prior owner of the vehicle and that they had sold it to Ms. McKay in January of 2008 for $2,000.00. In a sale from a dealership, the DMV requires that the bill of sale has the dealer’s letterhead, with the dealer’s code and dealer license number issued by the Motor Vehicle Commission. The bill of sale that was given to Mr. Masanz did not have those features. Furthermore, the signature on the bill of sale given to Mr. Masanz did not match the bill of sale used to transfer title.

Nancy Chanthanhothirat of Casey & Casey testified that both Amanda McKay and Mr. Masanz came into the office on the date the title was transferred. She was unsure if anyone else was with them. She was a witness on the documents.

Mr. Masanz drove the truck for one month and then it caught on fire. Immediately prior to the fire, he had driven over some railroad tracks, which caused the electronics on the dashboard to “go crazy.” During that one month period, he changed the oil but made no repairs. The cab of the pickup was totally destroyed, as were his possessions. (At trial, he submitted a detailed, itemized list of his personal possessions destroyed in the truck fire, totaling $6,401.00.)

| (jMasanz contacted Premier Nissan; however, it would not return his money or replace the vehicle. He had been using the truck for work, and he was out of work for three months as a result. At that time, he was averaging $1,600.00 monthly in earnings.

At trial he testified that he would not have purchased the truck had he known it was a fire hazard. He bought the truck because it was represented to him that it was in good shape without a defect and the representation was supported by what he believed was a Car Fax pertinent to the truck. He also believed that he was purchasing the truck from Premier Nissan.

Donald Horaist, a Fire Specialist and Investigator for Unified Investigations and Sciences, was qualified as an expert in cause and origin in fire cases. He testified that he first inspected the vehicle on June 13, 2008. He opined that the fire first started in the general area of the battery, in the upper left part under the hood of the vehicle. There was a loose wire or terminal, probably for speakers or amplifiers that was not properly connected to the battery and/or should have been removed. There was also a mass of wires under the seat indicating that at some point the system had been installed in the truck, however the system was not present when Ma-sanz purchased the truck. He further opined that this condition (the wire or terminal) was a defect creating a fire hazard that should have been corrected prior to selling the vehicle.

Walter Cannon, Service Manager of Toyota of New Orleans, was qualified as an expert in auto mechanics. He stated that if oil was not properly installed during an oil change procedure, it could leak and be a source of fire. He did not inspect the vehicle and he is not an expert in the cause and origins of fire.

Troy Duhon, the owner and managing member of Premier Nissan, testified that he does not allow his employees to sell their private vehicles from his |7dealership. He was not aware that Mr. Mounis was offering to sell his pickup truck at the dealership, and he would not have allowed it had he known. He knew Amanda McKay as Mounis’ wife, and he did not authorize Mounis to sell her truck, nor did he allow Zuniga to assist in the sale. Premier Nissan did not receive any benefits from this sale. He also stated that he could not rescind the sale since it was not Premier Nissan’s sale. His bill of sale and notary acts are done at the dealership, and then Casey & Casey secures the new title and the plates.

At the conclusion of trial, the court found Premier Nissan, Zuniga and Mounis liable in solido for the purchase price of the car and for the expert fees and costs. In so doing the court found that the sale was made at Premier, by people employed at Premier, and that the plaintiff assumed that he was buying the ear from Premier. The court further found no bad faith on the part of Premier, and so it assessed general damages of $2,000.00 and loss of personal property of $6,401.00 against Mounis and Zuniga in solido. Finally, the court rendered judgment for indemnification in favor of Premier Nissan and against Mr. Mounis.

DISCUSSION

As previously mentioned, Premier Nissan, Carlos Zuniga, and plaintiff Masanz each appealed the judgment of the trial court.

Premier Nissan alleges that it cannot be held in redhibition as a non-seller, that the doctrine of apparent authority is not applicable to a redhibition action and that there was no evidence of negligence on its part to support the judgment.

Frank Masanz alleges that the trial court erred in failing to find Premier Nissan liable in concert with Zuniga and Mounis and in failing to assess bad faith attorney fees and penalties.

Carlos Zuniga did not present any issues for this Court to review and further filed a motion to dismiss the appeal in this Court. | ^Appeal of Premier Nissan

Premier Nissan first asserts that a non-seller cannot be held liable in redhibition.

The law is clear that La. C.C. Articles 2520-2540 provide that the action in red-hibition may be brought only by a buyer against a seller of property. That is consistent with the understanding that redhibition is not so much directed toward who is at fault in causing the vice to exist but is directed toward warranty of vendor against vices in thing sold. The redhibition claim is between sellers and purchasers. A redhibition action cannot be maintained absent such relationship.

Connell v. Davis, 06-9 (La.App. 5 Cir. 10/17/06), 940 So.2d 195, 205, writ denied 06-2810 (La.1/26/07), 948 So.2d 175, 178.

Because no legal ownership is attributable to Premier Nissan, it cannot be considered a seller for purposes of redhibition. Duplechin v. Adams, 95-0480 (La.App. 1 Cir. 11/9/95), 665 So.2d 80, 84, writ denied 95-2918 (La.2/2/96), 666 So.2d 1104.

Premier Nissan next argues that the doctrine of apparent authority is not applicable in this case.

LSA-C.C. art. 3021 provides that “One who causes a third person to believe that another person is his mandatary is bound to the third person who in good faith contracts with the putative mandatary.” However, this article is inapplicable because the mandataries herein did not sell anything belonging to the principal.

Thirdly, Premier Nissan argues that plaintiff cannot recover under any theory of negligence.

LSA-C.C. art. 2315(A) provides that “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” The Louisiana Supreme Court set forth the factors to be considered in evaluating a claim under LSA-C.C. art. 2315 as follows:

|flThe standard negligence analysis we employ in determining whether to impose liability under La. Civ.Code art. 2315 is the duty/risk analysis, which consists of the following four-prong inquiry: (1) Was the conduct in question a substantial factor in bringing about the harm to the plaintiff, i.e., was it a cause-in-fact of the harm which occurred? (2) Did the defendant(s) owe a duty to the plaintiff? (3) Was the duty breached? (4) Was the risk, and harm caused, within the scope of protection afforded by the duty breached? Under a duty/risk analysis, all four inquiries must be affirmatively answered for plaintiff to recover. As such, in order for liability to attach under a duty/risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and, (5) actual damages (the damages element). (Citations omitted).

Rando v. Anco Insulations Inc., 08-1163 (La.5/22/09), 16 So.3d 1065, 1086-7.

A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Whether a duty is owed is a question of law. Elaborating further, we stated:
Whether a duty is owed is a question of law. In deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. The inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support the claim that the defendant owed him a duty. (Citations omitted).

Lemann v. Essen Lane Daiquiris, Inc., 05-1095 (La.3/10/06), 923 So.2d 627, 632-633.

In this case, the threshold question becomes whether there was a duty owed by Premier Nissan to plaintiff that was breached. We find that there was not.

Mr. Mounis was not present at trial; however testimony established that he was aware that the car belonged to his wife, and not Premier Nissan. Zuniga testified that he was aware that the car did not belong to Premier Nissan, and he believed it belonged to Mounis. Accordingly, they did not negligently sell a car they believed was owned by Premier Nissan, but intentionally sold a car that they knew was not owned by Premier Nissan. The duty that Premier Nissan owed to | inplaintiff did not encompass the risk that one of its employees would sell a car that Nissan did not own.

Next, we also find that Premier Nissan was not liable to the plaintiff under the theory of respondeat superior, or an employer’s vicarious liability for the acts of its employees. In Baumeister v. Plunkett, 95-2270 (La.5/21/96), 673 So.2d 994, 996, the Louisiana Supreme Court noted that

... in an analysis of vicarious liability for an employee’s tortious actions, the court must consider more than simply whether the employee was in the course and scope of employment at the time of the incident. An employer is not vicariously liable merely because his employee commits an intentional tort on the business premises during working hours. Vicarious liability will attach in such a case only if the employee is acting within the ambit of his assigned duties and also in furtherance of his employer’s objective.

In determining whether an employee is acting in furtherance of his employer’s objective, courts consider the following

A finding of scope of employment hinges on the predominant motive of the tortfeasing employee, whether the purpose of serving the employer’s business actuated the employee to any appreciable extent. Generally speaking, an employee’s conduct is within the course and scope of his employment if the conduct is of the kind he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer. (Citations omitted).

Garcia v. Furnace and Tube Service, Inc., 40,517 (La.App. 2 Cir. 1/27/06), 921 So.2d 205, 211.

In this case, it is clear that the employees were not acting in furtherance of their employer’s objectives by selling a car that was not owned by the employer and from which the employer received no benefit. Accordingly, Premier Nissan is not vicariously liable for the actions of Zuniga and Mounis.

Considering the foregoing, we find that the trial court erred in holding Premier Nissan liable along with Mounis and Zuni-ga. We further find no liability | non the part of Premier Nissan and we render judgment in its favor, dismissing plaintiffs suit against it.

Appeal of plaintiff, Masanz

Frank Masanz also appeals, alleging first that the trial court erred in failing to find that Premier Nissan acted in concert with Zuniga and Mounis, and second that the trial court erred in failing to award damages for defendant’s bad faith pursuant to LSA-C.C. art. 2545, which provides that a seller who knows the vice of the thing which he sells and omits to declare it is answerable to the buyer in damages.

Initially, because we find no theory supporting recovery against Premier Nissan, and no evidence to indicate that it was aware of the actions of Zuniga and Mounis, the trial court did not err in failing to find that Premier Nissan acted in concert with Zuniga and Mounis.

Masanz alleges that the trial court erred in failing to find bad faith on the parts of Zuniga and Mounis. In addition to restitution of the price and repayment of expenses, including reasonable attorney’s fees, the bad faith seller is also answerable for other damages, and under the proper circumstances, those damages can include nonpecuniary damages for mental anguish, aggravation, and inconvenience. Landaiche v. Supreme Chevrolet, Inc., 602 So.2d 1127 (La.App. 1 Cir. Jun. 29, 1992);

In this case, Masanz alleges that the fact that Zuniga provided a false Car Fax along with the fact that Mounis made a profit on selling the car supports a finding that Zu-niga and Mounis were in bad faith. However, every false representation does not fall into the category of fraud. Cotton States Chemical Co., Inc. v. Larrison Enterprises, Inc., 342 So.2d 1212 (La.App. 2 Cir.1977).

112Masanz presented no evidence to show that either Mounis or Zuniga knew of the defect prior to selling the truck. Accordingly, we cannot say that the trial court erred in failing to find that they knew of the defect prior to the sale and in failing to award damages for bad faith.

Appeal of Zuniga

Zuniga has filed a motion to dismiss his appeal in this Court, which we referred to the merits of this appeal. Zuniga did not file a brief, and therefore we need not address any merits of his appeal. To the extent that his motion to dismiss is not considered moot, we grant that motion and dismiss his appeal.

CONCLUSION

For the above discussed reasons, the trial court’s judgment finding Premier Nissan liable is reversed and plaintiffs suit against Premier Nissan is dismissed. In all other respects, the trial court’s judgment is affirmed. The motion to dismiss appeal filed by Carlos Zuniga is granted. Costs are assessed against plaintiff.

APPEAL OF CARLOS ZUNIGA DISMISSED; AFFIRMED IN PART; REVERSED IN PART; RENDERED

JOHNSON, J., dissents with reasons.

JOHNSON, J.,

dissents with reasons.

hi. respectfully, dissent in part with the majority opinion. The quandary I have with the opinion lies within the analysis of the theory of respondeat superior/vicarious liability. The jurisprudence relied upon from Baumeister v. Plunkett, 95-2270 (La.5/21/96); 673 So.2d 994 is inapplicable to the facts of this case. That case refers to the theory of vicarious liability for an intentional tort. However, the case at bar is a negligence claim under vicarious liability. Despite the fact that the employees may have intentionally sold a vehicle not owned by Premier Nissan to the plaintiff, that action does not place this case within the ambit of intentional torts.

In Richard v. Hall, 03-1488 (La.4/23/04); 874 So.2d 131, 138, reh. denied, (La.6/25/04), the Louisiana Supreme Court set forth a distinction in reviewing an intentional tort and a negligence vicarious liability case by stating, “[i]n a negligence case, as distinguished from an intentional tort case, the court need only determine whether the servant’s general activities at the time of the tort were within the scope of employment.” (See also, Ermert v. Hartford Ins. Co., 559 So.2d 467, 478 (La. 1990), reh. denied, (La.1990), where the court held, “[i]n contrast to these intentional tort cases, in which it must be determined whether the tortious act itself was within the scope of the servant’s employment, the court in a negligence case need only determine whether the servant’s general activities at the time of the tort were | ¿within the scope of his employment”). In view of this jurisprudence, the furtherance of the employer’s objective is not the determining factor of whether the employer should be found vicariously liable for the actions of an employee.

When considering whether an employee was within the scope of his or her employment, the Louisiana Supreme Court has stated the following in Ermert v. Hartford Ins. Co., 559 So.2d at 476-477:

Because vicarious liability is imposed based upon the attribution of business-related risks to the enterprise, specific conduct may be considered within the scope of employment even though it is done in part to serve the purposes of the servant or of a third person. The fact that the predominant motive of the servant is to benefit himself or a third person does not prevent the act from being within the scope of employment. If the purpose of serving the master’s business actuates the servant to any appreciable extent, the master is subject to liability if the act is otherwise within the service. So also, the act may be found to be in the service if not only the manner of acting but the act itself is done largely for the servant’s purposes. (Citations omitted).

In the instant case, the plaintiff, Frank Masanz, visited the Premier Nissan used car lot to purchase a vehicle. He was greeted by a salesman of Premier Nissan, Carlos Zuniga, and shown different vehicles on the lot. Once Mr. Masanz voiced that he was not interested in the vehicles shown to him, Mr. Zuniga followed protocol and informed Adil Mounis, a service manager of Premier Nissan, of Mr. Ma-sanz’s discontent. After being instructed by Mr. Mounis, Mr. Zuniga presented a 2001 GMC Sierra SLE located on the back of the lot to Mr. Masanz for sale. Mr. Masanz agreed to buy the Sierra and paid cash to Mr. Mounis in his office at Premier Nissan for the vehicle, and a sale occurred. Subsequently, Mr. Masanz was instructed by Mr. Mounis to meet the following day at Casey & Casey, MPS Inc. DVA Auto Title Express, a title company that Premier Nissan regularly does business with, to complete the title transfer. Mr. Masanz left the |sPremier Nissan premises in the Sierra the same day he paid for the vehicle.

The actions of Mr. Zuniga and Mr. Mounis were largely within the scope of their employment with Premier Nissan, even though the predominant motive was self-serving. Mr. Zuniga and Mr. Mounis had followed the same protocol that should have been followed for any other vehicle being sold on Premier Nissan’s lot. Despite the fact that Premier Nissan did not receive any of the proceeds from the sale, the employees were actuating Premier Nissan’s business. The act of displaying and selling a vehicle not owned by Premier Nissan on Premier Nissan’s used car lot by the employees is a risk assumed by Premier Nissan when employing its salespeople and managers. (See Ermert v. Hartford Ins. Co., 559 So.2d at 477, where the court held, “[t]he scope of risks attributable to an employer increases with the amount of authority and freedom of action granted to the servant in performing his assigned tasks. This is the logical extrapolation of a rule that fixes liability based upon the course of employment: The greater potential course of employment expands the servant’s potential opportunities to commit torts.”) (Citations omitted).

For the foregoing reasons, I am of the opinion that Premier Nissan should be held liable under the theory of respondent superior/vicarious liability for the actions of its employees toward Mr. Masanz. In all other respects, I agree with the majority opinion.


author: MARION F. EDWARDS, Chief Judge. CHEHARDY, J., ROTHSCHILD, J.

text:
    Carole A. FEIL, Marilyn R. Barry, and Judith Jaffe v. GREATER LAKESIDE CORPORATION, a Louisiana Corporation.
    No. 11-CA-92.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.
    Harry S. Hardin, III, Judith V. Win-dhorst, Avery B. Pardee, Jones, Walker, Waechter, Poitevent, Carrére & Denegre, L.L.P., New Orleans, LA, for Plaintiffs/Appellees.

      Charles L. Stern, Jr., Danielle C. Ba-bashoff, Steeg Law Firm, LLC, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   MARION F. EDWARDS, Chief Judge.

[2This matter returns to this Court following our remand of a prior appeal for clarification of the trial court’s judgment. For the reasons that follow, we affirm the ruling of the trial court.

The plaintiffs/appellees are Carole A. Feil, Marilyn R. Barry, and Judith Jaffe, three sisters who each own 25 percent of the stock of Greater Lakeside Corporation (“GLC”), a closely-held family corporation founded by their father, Louis Feil. The remaining 25 percent of the stock is held by Jeffrey Feil, brother of the three plaintiffs. The sisters filed suit to obtain various records and documents of the corporation in order to ascertain the value of its stock.

The plaintiffs sought a writ of mandamus to inspect documents of GLC. GLC allowed inspection of the records of GLC itself, but it opposed the inspection as it related to some of the entities in which GLC holds an interest. The trial court ^granted the mandamus as requested on all documents without reasons. GLC appealed.

As we explained in our prior opinion:

GLC is a holding company that invests in entities that own real estate, receives distributions from those investments, and also manages and does accounting for some properties that it owns. GLC also manages some properties that it does not own. GLC’s financial statements are generated by a New York management company; however, the accounting staff in Metairie prepares monthly financial statements in order to monitor GLC’s interests in other companies as well as monitoring its own assets. This includes creating ledgers, bank reconciliations, and billings for entities in which GLC owns an interest. GLC creates and maintains monthly folders for each of these entities (except for about six companies) and has records dating to 2002. The documents for the owned entities other than GLC were not produced. With regard to the non-owned properties, GLC bills for management services, and these records are maintained separately.

Upon review, we affirmed in part and remanded for clarification in accordance with our opinion. Specifically, we stated:

In summary, the Feil plaintiffs are entitled to the records generated, maintained, and possessed by GLC as to all companies in which it has ownership interest, or in which it performs accounting and management functions. However, the judgment of the trial court granted the writ as to all the documents outlined in the petition. In that petition, certain things are requested from entities “in which GLC hold an interest, direct or indirect ...” and also asks for “all documents relating to” certain transactions. The phrases “all documents” and “indirect interest” are over-broad and render the scope of the mandamus somewhat ambiguous.
For the foregoing reasons, the judgment of the trial court granting the writ of mandamus is affirmed. The matter is remanded to the trial court for clarification, including any necessary amendment in accordance with this opinion.

On remand, in accordance with this Court’s ruling, the trial court issued the following amendment of its prior order:

To the extent that requested documents have not already been produced to Plaintiffs, Plaintiffs’ requests are to be qualified as follows:
Where Plaintiff [sic] refers to “all documents/agreements/transjactions/etc.”4 or to entities “in which GLC holds an interest, direct or indirect,” Defendant is required to produce only those records generated, maintained, and possessed by GLC as to all companies to which GLC has an ownership interest, or in which GLC performs accounting and management functions.

GLC is a holding company that has ownership interests in twenty-six entities. Twenty of those entities are located in Louisiana and are managed by GLC. The remaining six entities are located in New York and Washington, D.C. Some time prior to 1989, Broadwall Management (“Broadwall”) began managing the six out-of-state entities on behalf of GLC. Broad-wall is a company wholly owned by Jeffrey Feil.

The focus of the attention in this litigation is the extent of GLC’s ownership interest in the six out-of-state entities managed by Broadwall. The sisters clearly want accurate information of ownership interests in these companies, while Mr. Feil maintains he does not have to produce the documents under this Court’s opinion in the prior appeal, or the judgment of the trial court on remand.

Mr. Feil filed a motion for clarification of the production order in the trial court seeking a declaration from the trial court that the financial records of the six entities in which GLC holds an ownership interest, managed by Broadwall, do not fall within the scope of the amended order and, therefore, need not be produced.

The trial court ruled against Mr. Feil, ordering production of all records related to GLC’s assets regardless of whether those companies are located in Louisiana. The trial court further ordered that “[t]o the extent that Broadwall Management generates or maintains records related to GLC’s assets consisting of investments in other companies, Defendant shall produce those records as well.”

On appeal, GLC argues that the trial court has misapplied the directive of this Court by requiring GLC to produce the records of the six non-Louisiana companies. GLC characterizes the trial court’s ruling as an improper use of the 1 ¿“pierce the corporate veil” principle to circumvent the corporate identity of Broadwall. We disagree.

This is a shareholders’ action pursuant to La. R.S. 12:103 that entitles the Feil sisters to the “right to examine, in person or by agent or attorney, at any reasonable time, for any proper and reasonable purpose, any and all of the records and accounts of the corporation and to make extracts therefrom.” The Feil sisters are seeking to obtain records of GLC, a holding company investing in entities that own real estate. Louisiana corporate law requires a corporation to keep records showing the amounts of its assets and liabilities at its registered office or at its principal place of business. The “assets” of GLC are its ownership interests in real estate holdings. Whether they are in Louisiana, or not, is irrelevant to this case. The shareholders have a right to inspect GLC’s records as to all of its ownership interests in its assets, regardless of the location of those assets, and GLC has an obligation to make those records available to its shareholders.

The Feil sisters have appealed seeking sanctions for a frivolous appeal by GLC. Under the circumstances of this case, we do not find such sanctions are appropriate.

Accordingly, we affirm the judgment of the trial court and deny the request for sanctions for a frivolous appeal. Costs of this appeal are assessed to GLC.

AFFIRMED

CHEHARDY, J., dissent with reasons.

ROTHSCHILD, J., dissents.

CHEHARDY, J.,

dissents with reasons.

Iil respectfully dissent. In my view, the trial court misapplied the law and violated the fundamental principle that gives corporations a separate legal existence from their shareholders.

A court can pierce the corporate veil under certain circumstances, in order to reach the “alter ego” of the corporate member and hold the corporate member hable for the debts of the corporation. Common control or ownership, however, does not authorize a court to ignore the boundaries between two separately incorporated entities. “Before the corporate entity is disregarded on the basis it is simply the alter ego of the member, proof of fraud or deceit is usually required. The corporate entity may also be disregarded when the individualities of the corporation and member cease to exist.”

In ordering production of the financial records of the six non-Louisiana companies, which were “generated, maintained, and possessed” by Broadwall Management rather than GLC, the trial court placed special emphasis on Jeffrey Feil’s ownership of Broadwall Management, treating Jeffrey Feil’s overlapping interests in Broadwall Management and GLC as justification for obliterating the boundary between these two separate corporate entities. The trial court obviously found merit to the plaintiffs’ argument that they are entitled to the records because 12GLC owns an interest in each of the six non-Louisiana entities; Broadwall Management generates, maintains, and possesses the financial records of those entities; Jeffrey Feil owns Broadwall and is the President of GLC; any documents generated, maintained, and possessed by Broadwall should therefore be treated as if they were generated, maintained, and possessed by GLC because Jeffrey Feil can direct the activities of both Broadwall Management and GLC.

I do not find the plaintiffs’ arguments convincing. I agree with GLC’s argument that the trial court’s ruling “distorts the limiting language carefully chosen by the Court in its prior opinion — effectively expanding, rather than limiting, GLC’s obligation to produce records — and ignores longstanding Louisiana law regarding separate corporate existence.” GLC itself does not “generate, maintain, and possess” the financial records of the six non-Louisiana entities. I would find the trial court erred in ordering GLC to produce records of Broadwall.

La. R.S. 12:103(D)(l)(a) does not supersede the legal theory of separate corporate existence. GLC cannot be compelled to produce documents that it does not generate, maintain and possess unless the legal distinctions between GLC and Broadwall and the Six Entities are ignored.

In my view, the plaintiffs and the trial court are trying to pierce the corporate veils of GLC and Broadwall, without having followed the formalities required to do so. They have neither pleaded nor proven the circumstances under which the veil may be pierced.

The records the plaintiffs seek are generated and maintained elsewhere by another entity as part of a legitimate, longstanding management structure. They are not records that GLC would be expected to possess in the normal course of |sbusiness, and there is no evidence that GLC in fact possesses them. Accordingly, they are not subject to production under the Amended Order.

Thus, I would vacate the judgment and remand to the trial court for recasting and clarification in accordance with the opinion in the first appeal.

ROTHSCHILD, J.

dissents.

hi respectfully dissent from the majority’s opinion for the reasons assigned by Judge Chehardy.

      . See, Feil v. Greater Lakeside Corp., 09-441 (La.App. 5 Cir. 1/26/10), 31 So.2d 520, writ denied, 10-0434 (La.4/30/10), 34 So.3d 298.

      . Feil v. Greater Lakeside Corp., 31 So.3d at 523.

      . Id. at 526.

      . La. R.S. 12:103(A).

      . Juridical persons, such as corporations and limited liability companies, are distinct from their members. La. C.C. art. 24.

      . Bottom Line Equipment, L.L.C. v. BX Equipment, L.L.C., 10-830, p. 6 (La.App. 5 Cir. 1/25/11), 60 So.3d 632, 636.

        .Prasad v. Bullard, 10-291, p. 7 (La.App. 5 Cir. 10/12/10), 51 So.3d 35, 40.

      . See Town of Haynesville, Inc. v. Entergy Corporation, 42,019 (La.App. 2 Cir. 5/2/07), 956 So.2d 192, writ denied, 2007-1172 (La.9/21/07), 964 So.2d 334.

      . Fell v. Greater Lakeside Corp., 09-441 (La. App. 5 Cir. 1/26/10), 31 So.3d 520, writ denied, 2010-0434 (La.4/30/10), 34 So.3d 298.


author: MARC E. JOHNSON, Judge.

text:
    DROR INTERNATIONAL, L.P. and NMI Enterprises, Inc. v. THUNDERVISION, L.L.C., individually and d/b/a Homes & Gardens of Louisiana Magazine d/b/a Louisiana Health Magazine d/b/a Louisiana Homes & Gardens, Roger W. Smith and Dale C. Higgins, Jr.
    No. 11-CA-215.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Henna Ghafoor, Attorney at Law, New Orleans, LA, for Plaintiffs/Appellees.
    Vance W. Ott, Attorney at Law, Metair-ie, LA, for Defendants/Appellants.

      Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

1 ?Defendants, Roger Smith, Dale Higgins and Wright Avenue Associates, L.L.C., appeal the granting of summary judgment in favor of plaintiffs, DROR International, Inc. and NMI Enterprises, Inc. (“DROR”). For the reasons that follow, we affirm in part and reverse in part.

FACTS & PROCEDURAL HISTORY

DROR, a printing company, filed a suit on an open account on July 6, 2007 against Thundervision, L.L.C., individually and d/b/a Home & Gardens of Louisiana Magazine d/b/a Louisiana Home & Gardens d/b/a Louisiana Health Magazine (“Thun-dervision”), Roger Smith (“Smith”) and Dale Higgins (“Higgins”) for the non-payment of six invoices totaling $174,778.03. Plaintiffs subsequently amended their petition to add Wright Avenue Associates, L.L.C. (“Wright”) as a defendant claiming it was the employer of Higgins. DROR alleged |sthe six invoices resulted from printing services it provided pursuant to three separate agreements.

DROR asserted that it entered the first printing agreement on February 5, 2004 with Louisiana Home & Gardens and Smith for the printing and delivery of the magazine, Home & Gardens of Louisiana, on a monthly basis from March 2004 through March 2007. It alleged it entered into a second printing agreement with Thundervision in August 2006 for the printing of a second magazine, Louisiana Health, from August 2006 through September 2009. DROR asserted Smith and Higgins signed this agreement as guarantors. It further alleged it entered a third printing agreement on October 20, 2006 with Smith for the printing of 500,000 subscription reply cards to be inserted in the monthly publication. DROR maintained defendants breached these contracts by failing to pay the submitted invoices for services provided under the contracts.

All three defendants answered the lawsuit, and Thundervision filed a reconven-tional demand alleging plaintiffs breached the contracts by printing the magazine on substandard paper. Thereafter, on May 23, 2008, plaintiffs filed its first motion for summary judgment claiming there were no issues of fact that it rendered printing services, the goods of which were delivered and accepted, resulting in six invoices that remained unpaid. The trial court denied the summary judgment after finding genuine issues of fact existed.

Plaintiffs filed a second motion for partial summary judgment on December 8, 2008 as to five of the six invoices. Defendants Smith, Higgins and Wright also filed a motion for partial summary judgment claiming there was no contractual obligation to guarantee. After a hearing on January 13, 2009, the trial court denied both motions for partial summary judgment. Both plaintiffs and defendants filed separate supervisory writs with this Court seeking review of the trial court’s ruling. JjThis Court denied both writs. DROR International, L.P. v. Thundervision, L.L.C., 09-C-130 (La.App. 5 Cir. 3/3/09) (unpublished writ); DROR International, L.P. v. Thundervision, L.L.C., 09-C-154 (La.App. 5 Cir. 3/27/09) (unpublished writ).

On April 21, 2009, Thundervision filed for Chapter 11 bankruptcy in the United States Bankruptcy Court, Eastern District of Louisiana. On June 1, 2009, Thundervision filed a notice of removal in the 24th Judicial District Court giving notice that the pending state court proceeding was removed to federal court under 28 U.S.C. §§ 1452 and 1334 and Rule 9027 of the Federal Rules of Bankruptcy Procedure, and formed a core proceeding in the bankruptcy case, bearing case number 09-11145. Subsequently, on July 15, 2009, the Eastern District referred a portion of the state case involving claims against Thundervision to Bankruptcy Court, but remanded those claims against Smith, Higgins and Wright to the 24th Judicial District Court.

In September 2009, the Bankruptcy Court issued a preliminary injunction enjoining plaintiffs from pursuing their claims against Smith and Higgins in state court. This injunction was dissolved in June 2010 after the Bankruptcy Court rendered two judgments in favor of plaintiffs and against Thundervision. Specifically, on September 29, 2009, the Bankruptcy Court partially granted plaintiffs’ motion for summary judgment as to five of the six invoices in the amount of $143,728.05. Thereafter, trial was held on the sixth invoice. On June 1, 2010, the Bankruptcy Court awarded plaintiffs $37,688.35 on the sixth invoice. The Bankruptcy Court also awarded Thundervision $18,900.00 for computer fraud under 18 U.S.C. 1030, et seq., and La. C.C. art. 2315, which was to offset the amount owed by Thundervision to plaintiffs.

On September 21, 2010, DROR filed an exception of res judicata and a third motion for summary judgment in the state court proceeding seeking a judgment | ^against Smith, Higgins and Wright as guarantors of the printing contracts deemed valid by the Bankruptcy Court. After a hearing, the trial court denied the exception of res judicata but granted the motion for summary judgment and awarded DROR the full amount of the bankruptcy judgments against Smith, Higgins and Wright as guarantors. Defendants appeal the trial court’s granting of summary judgment finding them liable as guarantors for the debts of Thundervision.

LAW & ANALYSIS

Appellate courts conduct a de novo review of a summary judgment under the same criteria which govern the trial court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730. The summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of every action, except those disallowed by law. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact and that the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The burden of proof remains with the movant. La. C.C.P. art. 966(C)(2).

Defendants contend genuine issues of material fact exist regarding the existence of a surety agreement and, thus, summary judgment is precluded. We disagree.

A contract of guaranty is equivalent to a contract .of suretyship. The terms guaranty and suretyship may be used interchangeably. Eclipse Telecommunications Inc. v. Telnet International Corp., 01-271 (La.App. 5 Cir. 10/17/01), 800 So.2d 1009, 1011. Suretyship is “an accessory contract by which a person binds himself to a creditor to fulfill the obligation of another upon the failure of the latter to do so.” La. C.C. art. 3035. Suretyship must be expressed and in writing. La. C.C. art. 3038.

Contracts of suretyship are subject to the same rules of interpretation as contracts in general. Although parole evidence is inadmissible to vary the terms of a written contract, if the terms are susceptible of more than one interpretation, or there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed, parole evidence is admissible to clarify the ambiguity and show the intent of the parties. In interpreting provisions of an agreement about which there exists some doubt, a court must seek the true intention of the parties, even if to do so necessitates departure from the literal meaning of the terms. Pelican State Wholesale, Inc. v. Mays, 44,442 (La.App. 2 Cir. 6/24/09), 15 So.3d 341, 343.

DROR attached a copy of two contracts to its motion for summary judgment. The first contract was executed on February 5, 2004 between NMI Enterprises by its president, Nitzan Mendelbaum, and Home & Gardens of Louisiana for the printing of the Home & Gardens of Louisiana magazine from March 2004 through March 2007. On the first page of the agreement, it states: “TERMS: 25 days from invoicing (Shipping date) with personal guaranty.” Smith signed this page as publisher of Home & Gardens of Louisiana. Additional terms and conditions were included on the reverse side, which was also signed by Smith as president of Home & Gardens of Louisiana magazine. Attached to the agreement is a page entitled, “INDIVIDUAL AND PERSONAL GUARANTY” which is signed by Smith without any reference to a representative capacity for JjHome & Gardens of Louisiana. We find this evidence clearly shows Smith signed and intended to sign the guaranty relating to the February 2004 printing agreement in his personal capacity and, thus, is liable for the invoices generated for services provided under the agreement.

The second printing agreement was executed in August 2006 between Thun-dervision, as publisher; DROR, as printer; and Smith and Higgins, as guarantors. The agreement related to the printing of Louisiana Health magazine from August 2006 through September 2009. Paragraph seven of the agreement states: “Guarantee Mr. Roger Smith and Mr. Dale Higgins shall be personally responsible and liable in all respects and without limitation for the Publisher’s performance and timely payment under this Agreement.” The agreement is signed by Smith as publisher of Thundervision, L.L.C., Louisiana Health. Additionally, Smith and Higgins signed on lines under the heading, “GUARANTORS.” Each signed then-names with no indication of any representative capacity. The agreement further noted additional terms and conditions were contained on the reverse side. Paragraph 30 on the reverse side is entitled “Guarantee” and provides, in part, that “the Guarantor unconditionally and personally guarantees the due and punctual payment of the Printer on demand of all money which is payable or may become payable by the Publisher to the Printer.” This page is initialed by Smith and Higgins. Based on this evidence, we find Smith and Higgins absolutely expressed their intent to be personally obligated under the laws of surety-ship for the debts incurred by Thundervision in the printing of the Louisiana Health magazine.

DROR also attached a copy of the six outstanding invoices, which are summarized as follows:

IsInvoice Date Amount Description
# 11343 9/21/06 $29,012.31 Publication of Lotdsiana Health magazine
# 11366 10/2/06 $28,167.20 Publication of October 2006 issue of Louisiana Health magazine
# 11367 10/2/06 $43,197.07 Publication of October 2006 issue of Home & Gardens magazine
# 11415 11/2/06 $30,183.87 Publication of November 2006 issue of Louisiana Health magazine
# 11416 11/3/06 $37,683.35 Publication of November 2006 issue of Home & Gardens magazine
# 11422 11/4/06 $13,167.60 Printing of insert reply cards for Home & Gardens magazine

In our de novo review, we find no genuine of issue of material fact that under the 2004 printing agreement, Smith is liable as a surety for invoices # 11367, # 11416, and # 11422, or a total of $94,048.02; and, under the 2006 printing agreement, Smith and Higgins are liable as sureties for invoices # 11343, # 11366 and # 11415, or a total of $87,363.38.

We find no merit to defendants’ arguments that their surety obligation was extinguished by the alleged failure of DROR to comply with the printing agreements by printing the magazines on inferior paper. The Bankruptcy Court rendered judgment against Thundervision for its failure to pay the six outstanding invoices. In rendering its decision, the Bankruptcy Court determined the alleged breach of the printing agreement did not extinguish the principal obligation. Thus, as guarantors, defendants owe the debt of Thundervision as determined by the Bankruptcy Court.

| ^Regarding the liability of Wright, we find no basis for any judgment against Wright. Wright’s name does not appear on any of the printing agreements. Further, there is no' evidence Higgins, alleged to be an employee of Wright, signed any contract on behalf of Wright. From the evidence presented for the summary judgment, it cannot be said that Wright expressed its intent to be personally bound for the debts of Thundervision. Accordingly, we find the trial court erred in rendering judgment against Wright as a surety-

DECREE

We find summary judgment was properly rendered against Roger Smith and Dale Higgins as guarantors of the debts of Thundervision as itemized in the six outstanding invoices. Accordingly, we affirm that portion of the trial court’s judgment rendering judgment in favor of appellees, DROR International, Inc. and NMI Enterprises, Inc., against Roger Smith in the amount of $94,048.02 and Roger Smith and Dale Higgins in the amount of $87,363.38. We further reverse that portion of the trial court’s judgment rendered against Wright Avenue Associates, L.L.C.; there was no evidence it was a guarantor in this case and, thus, appellees were not entitled to judgment as a matter of law. Costs of this appeal are assessed against appellants Roger Smith and Dale Higgins.

AFFIRMED IN PART, REVERSED IN PART

      . Mr. Mendelbaum stated in his deposition that he is full owner of both NMI Enterprises and DROR. He explained that NMI Enterprises used to be the major corporation but when he formed DROR, NMI Enterprises became the general partner of DROR. He stated the two companies act as a print producer.